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Per Curiam.
Appellant, Dennis Eugene Williford, by his attorney, Charles E. Hanks, has filed a motion for rule on the clerk.
The motion admits that the transcript of the case was not timely filed and it was no fault of the appellant. His attorney admits that the transcript was filed late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re; Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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McCulloch, J.
Appellants occupied the land in controversy, a quarter-section, under a deed of conveyance executed by the county clerk pursuant to the provisions of the act of March 14, 1879, authorizing the conveyance of lands returned delinquent and forfeited for nonpayment of taxes. Appellants claim to have occupied the land adversely for more than seven years before the commencement of this suit instituted against them by appellees to cancel said deed as a cloud upon the title. It is contended by appellees (1) that the clerk’s deed, being void on its face, was not effective as color of title under either the two years or seven years statute of limitation, (2) that the seven years statute of limitation was not pleaded, and (3) that the proof is not sufficient to sustain a plea of adverse-possession for seven years.
The first two questions stated above are disposed of in the case of Bradbury v. Dumond, anle, p. 82, and need not be again discussed in this opinion.
Appellant’s plea of limitation is in the following form, in the separate answers filed by both of them:
“Defendant states that this cause of action, if cause of action it be, did not accrue within seven years next before the commencement of this suit; and defendant here sets up and pleads and asks that he receive the benefit of the two years statute of limitations applicable to tax sales.”
No objection was made to-the form of the plea; no request or motion presented that it be made more definite and certain. The statute of limitation, to be available as a defense, must be pleaded in some form in cases in equity as well as at law. Strayhorn v. McCall, 78 Ark. 209, and oases cited.
We think the plea in this case was sufficient to apprise the plaintiff that seven years adverse possession was relied upon as a defense under the general statute of limitations. The form of the plea was not questioned, and the proof was directed especially to that issue.
The proof was sufficient to sustain the plea of continuous adverse possession for seven years. The clerk’s deed was executed to John W. White, appellant’s grantor, August, 5, 1882, and he testified that he went into possession the next year and occupied it continuously.
The chancellor erred in rendering a decree for the plaintiffs, and the same is reversed, and the cause remanded with directions to enter a decree dismissing the complaint for want of equity. | [
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Hill, C. J.
This action is for personal injuries received by a traveler on a public road crossing a railroad track. The court has had numerous cases of the kind recently. The Hitt cases—St. Louis, I. M. & S. Ry. Co. v. Luther Hitt, 76 Ark. 224, and St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227—St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520, and St. Louis & S. F. Ry. Co. v. Wyatt, 79 Ark. 241, have called for discussion of the rules governing the respective conduct of the traveler and the operatives of the train at public crossings. This case is free of the difficulties presented in ..those cases.
Briefly stated, appellee’s evidence tended to prove:
A string of wagons, headed by one occupied by Puckett and appellee Evans, left the town of Comivay, traveling along the Conway and Quitman public road. About two miles from Conway the highway crossed the track of appellant railroad company at a place called “the Gap.” The highway was up grade to the railroad track from a branch, a distance of about ioo yards, until close to the track. For a short distance, some fifteen or twenty steps, before reaching the track the highway is level. To the west the railroad curves around a hill, so that a train from that direction can not be seen until the traveler is almost to the track, and then only to be seen a distance of 50 or 60 yards. Puckett and Evans drove up this grade slowly, stopped on the level ground close to the track, and looked and listened for approaching trains. Evans rose up from his seat, and looked both ways, and both, becoming satisfied that there was no ■ train approaching, slowly drove on the- crossing, and continued to watch as they drove on, and were caught by a rapidly moving train from the west coming around the curve. The whistle sounded just before the engine struck the wagon. Evidence of appellee also tended to show that the whistle was sounded at Doty’s field, - a distance of 160 rods from the crossing, but this was not heard by appellee and his companions on the other side of the hill from that point, and there were no other signals given until the alarm whistle sounded an instant before the engine struck the wagon. Evans and Puckett only saw the train aiter they were on the track. Puckett was driving, and as soon as he saw the train whipped up his horses, trying to get them across, but was unable to do so. The appellee and some of his witnesses were contradicted by statements in writing made to appellant’s claim agent, and appellant’s evidence put a different aspect to the case.
1. The first point made is the evidence does not.support the verdict. Taking appellee’s evidence to be true (and the jury have so found it), it presents a clear case for recovery.
2. The appellant’s next point, is that the. only allegation of negligence is in failing to sound a whistle or ring a bell or give proper warning at a crossing, and that it was error to give an instruction stating that, if the evidence showed that the appellee was injured by the operation of the train, the law presumes the railroad company was negligent, and a prima- fac{e .case is made out. That such.an instruction is correct has been often decided. See numerous cases cited to that effect in Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548. Appellant attempts to take the case without the rule by insisting that the presumption can not extend to the particular negligence charged in the complaint. The complaint here charges generally negligence .in .running the train into the wagon of appellee, as well as the particular negligent act of failing to give the statutory signals before reaching the crossing. Hence the question is of no importance in this case, if in any.
3. Appellant contends that the presumption created by Kirby’s Digest, § 6773, only reaches to a remedy against the corp%is of the railroad property, and not against the railroad •company, and appeals to Little Rock & Ft. S. Ry. Co. v. Daniels, 8 Ark. 171, to sustain this view. The Daniels case only holds that the lessor company can escape liability for injuries by the lessee company, but the corpus of the property can not escape the liability; and in an action to enforce the liability against the corpus the lessor road, which owned the property, and the lessee road which caused the injury, should both be parties. No issues of that kind are presented here.
4. Appellant criticises this instruction:
“If you believe from the evidence that the defendant, through its employees, was negligent in the running or operation of its train, which injured the plaintiff, and that there was no contributory negligence on the part of the plaintiff, as explained in the former instructions, then your verdict will be for the plaintiff.”
The abjection urged is that the negligence of appellant was too broadly stated, and should have been confined to the negligence alleged in the complaint. The law of a case is usually given in many instructions — frequently too many — each presenting a' particular phase of the case, and it is not expected to state the entire law of the case in one. When read with the other instructions, this would naturally be understood to be referable to the alleged acts of negligence, and not something foreign to the issues, and correct instructions were given on the negligence in issue.
5. The next point made is on the refusal of the court to give two instructions putting the burden of proof upon the plaintiff throughout the case. They should have been refused. When the plaintiff showed that the injury was caused by the operation of the train of appellant, that made out a prima facie case, and shifted the burden. See Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548, and cases there cited.
6. Appellant complains of two instructions refused which sought to have the jury told that, if the train could have been seen or heard for 300 yards by one about to cross the track, appellee was conclusively presumed to have seen or heard the train and assumed the risk in crossing. The court properly sent to the jury the duty resting upon travelers approaching the crossing, and instructed that a failure to discharge that duty was negligence, barring their recovery. This is the proper way to dispose of this issue, except where the evidence leaves no question of fact or question -about which reasonable men would differ as to the care exercised, in which event the case should be withdrawn from the jury. But this is far from such a case.
7. Appellant contends that the verdict was grossly excessive, but appellant did not abstract the testimony on that issue, and by the established practice of this court that precludes an exploration of the transcript to find the alleged error. Shorter University v. Franklin, 75 Ark. 571.
On the whole case, the court is of opinion that there is no error in the record, and the judgment is affirmed. | [
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McCulloch, J.
This case involves, the title to forty acres of land, containing a valuable brake of cypress timber. Mrs. Foote, the appellee, first brought ejectment in the circuit court of Ashley County against appellants, but subsequently instituted suit in the chancery court to restrain appellants from cutting the timber, and the two actions were consolidated in the chancery court, where a decree was finally rendered in favor of appellee. Both parties claim title to the land by limitations. Appellee claims title by actual adverse possession of a part of the tract under color of title to the whole; and appellant claims to have paid taxes under color of title for seven years in succession, the last three payments being since March, 1899.
Only a small part of the land — about an acre and a half— has been fenced and cultivated or otherwise actually occupied. This small clearing was made about fifteen years ago by one Bloomer, the owner of the adjoining tract, who cleared the land under a mistake as to the boundary. Appellee claimed the lands then under color of title, and as soon as Bloomer made the clearing she laid claim to it, and he (Bloomer) conceded her .right to possession. He continued in possession up to about the time of the commencement of this litigation — a period of more than seven years — under an agreement with appellee that he could occupy and cultivate the land in consideration that he would protect the timber from trespassers. He testified that he occupied it as the land of appellee and pursuant to that agreement with her. The small clearing was all of the tract which was susceptible of cultivation — the remainder was low and covered by the cypress brake. The facts, which are practically undisputed, are sufficient to make out appellee’s title by adverse possession. Her occupancy of a part of the tract through her tenant, Bloomer, under color of title to the whole, gave her title to the whole. This amounted to an investiture of title by limitations, and the only remaining question is whether or not appellants and their grantors subsequently acquired title by the continuous payment of taxes for seven years under color of title.
It is conceded that appellant’s paper title is invalid, though effectual as color of title to support adverse possession by payment of taxes. The application of the act of March 18, 1899 (Kirby’s Digest, § 5037), which was construed by this court in Towson v. Denson, 74 Ark. 302, is in express terms limited to unimproved and uninclosed lands. It has no application to improved or inclosed lands. Now, as has already been stated, a small portion of the tract on which appellants have paid taxes is improved and in actual occupancy by appellee’s tenant.
But counsel for appellant insist that the remainder of the tract- — about 38^ acres of it — is unimproved and uninclosed, and therefore falls within the operation of the statute. We do not think, however, that the statute can be invoked under those circumstances. The tax payments were upon the whole tract as an entirety, not upon any separate or distinct part, and it can not be said that the tract, as an entirety, was unimproved or uninclosed.' A part of it was in fact improved and occupied. We do not mean to hold that the statute in question can not be applied to unimproved and uninclosed land" because some person other than the taxpayer may have constructive possession of it; for instance, where taxes are paid on a tract entirely unimproved and uninclosed, but where another person has constructive possession by reason of being in actual possession of a contiguous tract under a deed describing both tracts. That question is not before us in this case, and we do not decide it. What we do decide now is that the statute does not apply where a part of the particular tract on which the taxes were paid was improved and actually occupied by another person.
Affirmed. | [
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Wood, J.,
(after stating the facts.) We need not discuss in detail the evidence bearing upon the disputed questions of fact. The evidence presented conflicting theories as to the origin of the fire. But these were submitted to the jury -upon the following instruction asked by appellant:
“1. I charge you that the burden of establishing by proof that the fire was set -by the engine of the defendant railroad company is on the plaintiffs. If the proof fails to show this proposition, or if it preponderates against it, or is equally balanced, you should find in favor of the defendant.”
In St. Louis, I. M. & So. Ry. Co. v. Dawson, 77 Ark. 434, we said: “It is not required that the evidence should exclude all possibility of another origin, or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause.” It was not error therefore to refuse the following : “4. If the evidence fails to .establish the origin of the fire, you will find for the defendant.” This is abstract. The evidence shows the fire originated from a stove in the house or from appellant’s engine. The verdict finds that the fire was caused by the engine of appellant, and the evidence is sufficient here to warrant the verdict.
'Appellant contends that the court should have granted the following request: “3. I charge you that there is no law requiring a railroad company to use coal as a fuel, and the use of wood as a fuel would not constitute negligence.” The request was a correct proposition of law, but it was abstract here. The only issue presented was whether or not the fire was caused by the negligent operation of appellant’s engine. If the fire was caused by the negligent operation of appellant’s engine, as the jury finds, it was wholly immaterial whether appellant used wood or coal as fuel. Tihe court should not have permitted counsel to argue that it was negligence for the appellant to use wood, instead of coal, but the argument was not prejudicial, because, under the instructions, the jury had to base its verdict upon the negligence of appellant in the use of insufficient appliances for arresting sparks, and not on its negligence in the kind of fuel used. If the fire was caused by sparks from the engine, as the jury must have found, it was immaterial whether the sparks were from wood or coal fuel. The verdict and judgment are in accord with principles announced by this court in recent cases. See St. Louis, I. M. & S. Ry. Co. v. Dawson, supra; St. Louis, I. M. & S. Ry. Co. v. Coombs. 76 Ark. 132; St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371.
Affirm | [
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Riddick, J.
This is an action by Mrs. Mary Miller against the Little Rock Traction & Electric Company to recover judgment for damages on account of injuries sustained by her in alighting from one of the defendant’s street cars. The plaintiff alleged that on the 18th day of September, 1901, she boarded a car on defendant’s street railway going south; that, desiring to get off at 18th and Main streets, she asked the conductor to stop the car and let her off, which he did, but before plaintiff had time to alight from the car, and without giving her a reasonable time to alight in safety, the agents in charge of the car negligently and recklessly started it with a sudden jerk, and threw her to the ground, causing her great injury. She asked judgment for $5,00°.
The defendant filed an answer, denying most of the material allegations in the complaint, and further alleging that, if plaintiff was injured, her injury was due to her own carelessness in attempting to alight while the car was in motion, and not to the negligence of the defendant.
On March the 3, 1905, over three years after filing the original complaint, .the defendant filed an amended complaint, in which, after setting out the cause of her injury substantially as stated in her original complaint, she proceeded as follows:
“That, on account of the injuries so inflicted, suffered and sustained, the plaintiff suffered great pain of body and mind, and was confined to her bed for several months, and for a long time was and still is sick, sore, disordered and disabled, and was put to great expense, to wit: $350 for medicine, medical attention, care, nursing and assistance and loss of time and earning, and will be put to great expense hereafter, in trying to obtain relief and cure said injuries, and was hitherto, and still is, and will for a long time, and probably for life, continue to be, subject to great pain, suffering, inconvenience and loss of time and earning and permanently diminished capacity to work or attend to her millinery or dressmaking business which she had, or any business, and is permanently disabled, to her damage $5,000.” Wherefore she asked judgment for that amount and other relief.
The material allegations in the amended answer were also denied by defendant, and it further pleaded the statute of limitations.
On the trial the jury returned a verdict in favor of the plaintiff for the sum of $3,000, composed of the following items: For pain and suffering they assessed damages at $1,700, for medical expense $300, and for loss of time and earnings $1,000.
In answer to special interrogatories propounded by the court, the jury found that the car had come to a full stop at the time Mrs. Miller attempted to step from the car, but that the car was started and its speed quickened while she was getting off.
The defendant appealed from the judgment rendered against it, and several grounds for reversal are urged by its counsel.
The first contention is that the different items of damages set out in the amended complaint are barred by the statute of limitations. But we are of the opinion that the specifications of damages .set out in the amended complaint did not constitute a separate cause of action from that set out in the original complaint. The cause of action set out in the original complaint is not barred; and as no other cause of action was set out in the amended complaint, the contention that the action is barred can not be sustained.
The next contention is that the plaintiff can not recover for medical expenses caused by her injury, and that a recovery of such damages must be by an action in the name of her husband. But there is nothing in the pleadings or evidence to show that Mrs. Miller is a married woman or has a husband, and this point does not appear to have been made in the trial court. The same thing may be said of the contention that she can not recover damages for loss of time and diminished capacity to work and attend to her millinery and dressmaking business. These points seem to be raised here for the first time, and can not be entertained.' Besides, as before stated, there is nothing in the record to show bat plaintiff was a married woman. She testified that she was engaged in the millinery and dressmaking business, that her injury was such that she was now incapable of attending to that business, and that, on account of her injury, she had paid out considerable sums for medicines and for medical attention. We see no reason why she can not recover for such items of damage.
The evidence was, we think, sufficient to support the verdict. When considered in connection with the special findings of fact returned by the jury, we can see no prejudicial error in the instructions or rulings of the trial court. We are therefore of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Hill, C. J.
There has been unusual and unnecessary delay in perfecting the appeal in this case; the responsibility for which is shouldered by the court stenographer.
The evidence on part- of the State shows that appellant shot' James McBeth from the rear while he was walking with bowed head along a public road, evidently oblivious of the presence of appellant. The shot w-as fatal. This testimony comes from apparently disinterested eyewitnesses, whose evidence reads as if given intelligently and without bias or favor. It is true that another version is given by appellant and supported by his companion at the time, one Berry; but the jury has rejected it, and found him guilty of murder in the second degree, and assessed his punishment at ten years in the penitentiary. The State’s evidence is amply sufficient to have sustained a graver grade of murder, and there is no merit in the assignment of error that the verdict is not supported by the evidence.
Appellant’s attorney cross-examined one of the State’s witnesses, a woman, fully and exhaustively as to a former statement regarding the posture of McBeth when he fell. The State’s attorney objected to further examination, and the .objection was sustained. and to this ruling error is assigned. The control of the examination of witnesses is committed to the sound judicial discretion of the trial judge, and his rulings thereupon are not reversible, except in case of abuse of this discretion. There must be a limit to proper cross-examination; and when it appears that the matter of inquiry is fully developed, and the subject clearly before the jury, it is not only the right, but the duty, of the trial judge to terminate it. Such was the case here, and there was no error in it.
Exceptions are noted to two instructions and to the refusal of the court to give fifteen instructions asked by appellant. The instructions contained nothing new, and no departure from established precedents is pointed out or discovered. The instructions given covered every phase of the case proper to be sent to the jury, and there was no error in refusing additional ones requested by appellant, even if every one of them was correct.
After the jury was instructed the court gave them in writing forms of verdict applicable to each degree of murder, and orally gave them the form of verdict in case of acquittal. The motion for new trial assigns error in this, but no request for written instructions is shown of record, and no exception to the oral direction as to form of verdict was noted at the time. This precludes consideration of it here, even if these directions as to form of verdict be treated as part of the instructions which may be required to be in writing by sec. 23, art. 7, Const. Counsel excuse their failure to except by the fact that they did not know until after verdict that this direction was not in writing. The record shows they were within a few feet^of the judge when he gave these instructions. If there was error, it affirmatively appears to have been harmless, and, as indicated in Arnold v. State, 71 Ark. 367, then an oral instruction is not cause for reversal, even when the request for written instructions is made.
The judgment is affirmed. | [
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Battle, J.
F. W. Maurice brought an action against James Hunt to recover possession of two gray mules and damages for their detention. He alleged in his complaint that he was the owner and was entitled to the possession of them, that they were each of the value of $150; and asked for judgment for the mules and $100 damages for their detention. Summons and an order of delivery were issued and executed, the plaintiff having given bond; and, the defendant failing to give bond for the purpose of retaining them, they were delivered to the plaintiff.
The defendant answered, and denied that plaintiff was the owner or entitled to the possession of the mules.
Plaintiff claims the mules under a mortgage executed by the defendant to Charles Pruden and J. B. Avery, partners doing business as Pruden & Company, by which the mules were mortgaged to Pruden & Company to secure the payment of a note executed by the defendant to them on the 6th day of January, 1904, for $350 and ten per cent, per annum interest thereon from date until paid, and due on the 6th day of February, 1904. Plaintiff purchased this note and mortgage from Pruden & Company, and they assigned the same to him. The sole question in the case was, had the mortgage been satisfied? Plaintiff claimed that Hunt wlas indebted to 'him for note and for goods, wares and merchandise sold and delivered, and defendant alleged and testified that he had more than paid plaintiff all that he owed him by the labor and services of himself and his teams .of horses and mules.
After the trial had commenced, and while one witness was testifying, the defendant was allowed to amend his answer by pleading payment, over the objection of the plaintiff. Pie asked for no continuance on account of such amendment.
After plaintiff had testified in his own behalf and stated what he agreed to pay the defendant for his teams, and no evidence to the contrary had been adduced, the court refused to allow him to prove by a witness, Avery, what the services or labor of such teams were worth. And the court refused to allow R. B. Maurice, the son of plaintiff, to testify in rebuttal, after the close of defendant’s testimony, what the plaintiff paid for teams.
Each party adduced evidence in the trial tending to prove his claim as before stated.
After giving three instructions at the request of the plaintiff,. the court refused the fourth as follows:
“4. If the jury believe from the evidence that the plaintiff intended to offer and did offer only four dollars per day, with board, for the services of defendant and a team of mules or horses, and that the defendant thought he was offered four dollars per day, with board, for each pair of mules or horses he furnished, then there was no agreement or contract of employment, and defendant is entitled to only the reasonable value of the services of his team and himself.”
And among others gave the following:
“I. In this action the title of the plaintiff to the mules in controversy is based upon the mortgage executed by the defendant to Pruden & Company to secure the sum of $350 and interest. If there is any part of the debt so secured which remained unpaid and due at the time of the institution of this suit, then the plaintiff is entitled to recover. In ascertaining this fact — that is, whether there is any part of the debt so secu.red yet due- — -it becomes necessary for you to consider the state of ¡the accounts existing between the two parties. As to the item for which the defendant claims credit — -that is, for work and labor performed by himself and his teams — the burden is on the defendant to show by a preponderance of evidence what the contract was between him and the plaintiff, and how much he is entitled to recover fordiis services rendered in accordance with that contract. If you find that the plaintiff was to pay the defendant the sum of $4 per day for each team of two mules, or horses, furnished by him, and his wagon, and his own services as driver, and was to feed the team and the defendant, and that his rate of pay was to be for “straight time” — that is, for all the time that elapsed- — and that there was to be no deduction for the time lost by defendant and his teams by reason of wet weather or other causes not the willful act of the defendant, and that the amount due defendant under this contract for services so rendered by himself and his teams is equal to or greater than the amount of the debt secured with interest, and any other sums which the defendant may be shown to have owed .the plaintiff for goods, moneys or supplies of any kind furnished him by plaintiff on open account, then you should find for the defendant for the mules in controversy, or their value as . shown by the proof, and also for the reasonable value of their use from the time the same were taken away from the defendant under the writ in this case and delivered to the plaintiff up to this date, according to the proof. As to the items charged to the defendant by the plaintiff in his account, the burden is on the plaintiff to show by a preponderance of testimony that he furnished 'the same, and that the defendant either expressly agreed or was liable to pay therefor undef the terms of the contract between them. The plaintiff could not have the right to arbitrarily charge the defendant with anything; it must appear that the item charged was either by virtue of an agreement between the parties, or that it was a just and proper charge which the law would imply a promise on the part of the defendant to pay. In arriving at your verdict you should first consider the amount of the mortgage debt, with interest thereon, as shown by the mortgage, to the beginning of this suit. This much is undisputed. Second, you should consider and add to the foregoing all of such sums as you may find that the defendant was legally indebted to the plaintiff for, and liable to pay under the contract existing between them, with six per cent, interest thereon to the same date. Adr ding these two together, you should set off against the sum so found whatever sum you may find that the defendant was entitled to receive from the plaintiff under his contract for the services of himself and his team, with interest on such sums from the time they were due at the rate of six per cent, per annum up to said date. If the amount due from the defendant to the plaintiff is larger than the amount due from the plaintiff to the defendant, then the plaintitff is entitled to recover. If the amount due from the plaintiff to the defendant is greater than the sum of all the credits that the plaintiff would be entitled to as aforesaid, the defendant would be entitled to recover the property in controversy, with damages for its detention as heretofore explained.”
The jury returned a verdict in favor of the defendant, and plaintiff appealed.
Appellant has no right to complain of the amendment to appellee’s answer. He never asked for a continuance on account of it. Appellee had the right to amend in furtherance of justice on such terms as the court, in the reasonable exercise of its discretion, might impose.
The court properly excluded the testimony of witness Avery as to value of services of teams. The evidence at the time it was offered showed that the parties had agreed as to the price to be paid for them, and there was no evidence to the contrary. Afterwards, when evidence had been adduced to prove that the .contract was not as plaintiff testified, it might have been admitted, the proper foundation being laid, in rebuttal, but it was not offered. -
The -testimony of Maurice, offered to prove what the plaintiff, his father, paid for teams, was incompetent. That did not fix the value of such services. Others might have paid more.
The fourth instruction asked by the appellant and refused by the court should not have been given. There was no evidence that the parties understood the contract differently at the time it was made. Each testified positively as to its terms. Nothing indicated that they understood it differently at the time it was made, or that there was room for misunderstanding it. Whatever it was, the contract was simple and easily understood, and the evidence does not indicate that either did anything to mislead the other. They may have not remembered it alike, and the question for the jury was, what weight should be given to the testimony of each? The question was fairly submitted to the jury by the instructions of the court. Whatever they decided the contract to be, they must have found that both parties agreed to it.
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Hill, C. J.
Appellant was a grain dealer at Cairo, 111., and shipped seven cars of corn and one car of flour to customers at Magnolia, Arkansas, in December, 1905, at a delivered price. The shipments were made over St. Louis Southwestern Railway from Cairo, 111., to Pane Bluff, Ark., there consigned to a local agent of appellant, and by him reshipped over the St. Louis Southwestern from Pine Bluff to McNeil, and from McNeil to Magnolia over line of appellee. The latter distance is 6.4 miles, and the distance from Pine Bluff to McNeil about 100 miles. Cairo to Magnolia is about 378 miles. The appellee railroad collected from appellant’s consignees 12^ cents per hundred pounds -for its freight for shipment over the 6.4 miles from McNeil to Magnolia; and appellant repaid to its consignees the charge over its contract price of delivery, and sued appellee company for an amount claimed to foe excessive and unreasonable and unjust, and alleged six cents per hundred pounds on corn and 7L2 cents per hundred pounds on flour would have been a reasonable rate, and prayed for recovery of the sum paid over said rate. The court directed a verdict for the defendant, and the sole question is whether appellant adduced evidence authorizing it to go to the jury on the charge made.
In passing upon this question only the evidence favorable to appellant is pertinent, and only it will be reviewed.
Just previous to.the shipments in question there had been a joint rate between St. Louis Southwestern Railway 'Company and appellee from Cairo to Magnolia on corn twenty cents and on flour twenty-five per hundred weight, of which appellee received thirty per cent, or six cents on corn and 7jd cents on flour. Whether this rate was in force at time of shipment was a matter of conflict in the evidence. There was also a joint rate existing between appellee near this same time with other connecting roads for corn and flour from Cairo to Magnolia coming over Vicksburg, S. & P. Railroad to Gibbsland, La., there connecting with appellee, and over appellee’s road from Gibbsland to Magnolia, a distance of 54 miles, for much less than the charge complained of. There was also in evidence the Arkansas commission tariff, which was five cents on corn and eight cents on flour from McNeil to Magnolia. There was evidence from a witness thoroughly familiar with rates on the commodities under inquiry, and in this section of the country, who testified to the unreasonableness of the charges made, and sustained as reasonable and fair the charges as alleged in the complaint. The basis of his estimates was knowledge of rates under similar circumstances and knowledge of the usual divisions of accepted rates. Other testimony along the same line was offered.
Appellee also introduced the rate clerk of the Arkansas Railroad Commission, whose duties were to assist the commission in fixing rates within the State, and who had full knowledge of existing rates and conditions. He had before him the financial statement of appellee road rendered to the commission (the correctness of which was attacked by appellee) showing its earnings and expenses, capital invested, etc. Taking into consideration proper compensation to the road and a proper rate, based on other considerations as well as a compensatory one, he pronounced the rate charged excessive and unreasonable, and fixed five cents on corn and eight cents on flour as the reasonable rate.
Appellant’s superintendent explained why the shipment was made to Pine Bluff and reshipped from there to Magnolia in this way: He was under the impression that a through rate theretofore in force from Cairo to Magnolia had been withdrawn. Pie afterwards learned this was a mistake, but, believing that there was no through rate, he thought he had better ship to appellant’s local agent at Pine Bluff, and let him reship on a combination of local rates, rather than ship direct to McNeil on the St. Louis Southwestern Railway, where he had no one to make reshipment over appellee’s line from there to Magnolia. Pine Bluff is a city on the St. Louis Southwestern Railway between Cairo and McNeil.
1. Appellee argues that the evidence of the Railroad Commission rate clerk was incompetent because it was shown by the president and auditor of the company that the financial statement furnished the Railroad Commission by the former auditor was no.t correct, and showed a surplus, when it should have shown a deficit. The report was duly verified by proper officers of the company, and was made pursuant to law, and was a competent basis from which to make estimate on proper compensation in rgtes, and was furnished for that purpose. It was open to appellee to show errors in it, but that did not destroy the admissibility of testimony based upon it unless the testimony against it was uncontradicted, reasonable and consistent in itself, not weakened by cross-examination nor its credibility impeached.- If' within the latter category, then the jury could not arbitrarily disregard it. The testimony against the report .was not of such a character that it would have been an arbitrary and unwarranted action on part of the jury to have disregarded it. The rate clerk did not base his testimony entirely upon the financial statement, although it was one of the controlling factors.
An attack is -made upon testimony of a former superintendent of appellant company. His testimony as to rates has heretofore been mentioned. He properly qualified himself as an expert to testify on the subject within the rules governing the qualification of experts, i Wigmore on Evidence, § 556; 5 Enc. of Evidence, pp. 517 and 599; Railway Company v. Bruce, 55 Ark. 65.
The expert’s evidence of a reasonable rate based on special knowledge of rates under similar conditions was properly admissible, although he did not have knowledge of the financial condition of the road and cost of transportation on this line, for a reasonable compensation is usually determined by usage or the amount commonly or customarily paid for like services under similar conditions. Johnson v. Pensacola & P. Rd. Co., 16 Fla. 623, S. C. 26 Am. Rep. 731; Louisville, E. & St. L. Ry. v. Wilson, 4 L. R. A. 244; 4 Elliott on Railroads, § 1560; Hutchinson on Carriers, § 447; Ray on Neg. of Imp. Duties Freight Carriers, p. 845. See, also, 2 Elliott on Railroads, § § 692, 663.
The evidence of through rates» and the division thereof on Noth ends of appellee’s line was also admissible. -It would be fair to deduce therefrom that the appellee would not agree to maintain rates which were not fair and compensatory to itself, as well as reasonable for the services rendered. Of course, none of these matters was controlling, and it was open to appellee to remove them by a weight of evidence or to explain them, but the facts adduced were competent and sufficient to go to a jury as tending to prove the matters charged, and the case should have been sent to the jury, unless the matters urged by appellee presented legal obstacles.
2. Appellee says that appellant’s action was based on State statutes regulating freight rates on interstate shipments, and that Congress has by statute covered the same field, and hence it can not be maintained. If this is a statutory action, the proposition is correct. Gulf, etc., Rd. Co. v. Heffly, 158 U. S. 98; Texas & P. Ry. Co. v. Mugg, 202 U. S. 242; Spratlin v. St. Louis S. W. Ry. Co., 76 Ark. 82.
Originally, this action was brought for overcharge, penalty and attorney’s fees, and it may fairly be inferred that the pleader was basing his action upon secs. 6730, 67331 and 6621, Kirby’s Digest. The penalty feature (sec. 6733) was stricken out, and an amended complaint filed which seems to be in the language of, and pursuant to, secs. 6730 and 6621, supra. It is conceded by appellant that, under the decision in Porter v. St. Louis S. W. Ry. Co., 78 Ark. 182, the facts in this case make the shipments in question interstate transactions, and they will be so treated. That decision was rendered after the trial of this case. “Reasonable and just” rates are a subject of legislation in sec. 1 of the Interstate Commerce Act of 1887 (3 Comp. Stat. p. 3154), and therefore the subject-matter of sec. 6730, Kirby’s Digest, is covered by the Congressional legislation, and the State statute is ousted from applying to interstate transactions.
Appellee contends that this ends the case, and so it does unless the complaint, and facts adduced to support it, can be sustained as a good common-law action.
Sec. .22 of said Interstate Commerce Act provides: “And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by. statute, but the provisions of this act are in addition to such remedies.” 3 Comp. Stat. p. 3171.
At common law the carrier could charge reasonable remuneration for the services performed, and no more. The rea sonableness of the charge is determined by similar services under like condition the cost of service, fair compensation for capital invested, and the manifold elements entering into it which makes rate-making one of the problems of the age. The common law went no further in this regard than to demand that the charge be a reasonable and fair one. Johnson v. Pensacola & P. Rd. Co., 16 Fla. 623, S. C. 26 Am. Rep. 731; Hutchinson on Carriers, § 447; 4 Elliott on Railroad, § 1560; Ray on Freight Carriers, p. 845-
It follows that section 6730, Kirby’s Digest, is but declaratory of the common law, and a complaint good under one is good under the other.
Is 'there a oommon law in interstate transactions? Let Mr. Justice Brewer answer it. “There is no body of Federal common law separate and distinct from the common law existing in ,the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States,- and that the countless multitude of .interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. * * * Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, * * * and are su-bj ect to no rule except that to be found in the statutes of Congress ? We are clearly of opinion that this can not be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by Congressional enactment.” W. U. Tel. Co. v. Call Publishing Co., 181 U. S. 92; See, also, Judson on Interstate Commerce, § 66.
Appellee insists that a suit to enforce a common-law right growing out of an interstate shipment is a matter of primary and exclusive jurisdiction in Federal courts, and cites to sustain that position a decision by Judge Grosscup, Swift v. Philadelphia & R. Rd. Co., 58 Fed. Rep. 858, decided in 1893. This decision is bottomed on the proposition that the common-law rule forbidding common carriers from exacting unreasonable charges does not apply to interstate transactions, and that such an action is purely one 'based on the Interstate Commerce Act. If Judge Grosscup’s premise was right, his conclusion would be sound, for the jurisdiction to enforce statutory rights conferred by the Interstate Commerce Act of 1887 is conferred on United States courts by section 8 of said act. 3 Comp. State, p. 3159. But Judge Gross-cup’s premise was wrong, and directly in opposition to the principles announced eight years later in the decision quoted from. The court is unable to see any reason why the State courts may not entertain jurisdiction of a suit.based on common-law rights flowing from an interstate shipment when Congress has expressly declared that such remedies are not ousted by the legislation on the subject of interstate commerce, but that such legislation is in addition to existing common-law .remedies.
Chief Justice Conner for the Court of Civil Appeals in Texas so fully and completely reasoned out in principle and on authority the soundness of this position that he left nothing further to be said on it. Abilene Cotton Oil Co. v. Texas & P. Ry. Co., 85 S. W. Rep. 1052-3, and same case in 60 Central Law Journal, 468, where an interesting note is found.
Appellant was entitled to go to the jury with its case.
Reversed and remanded.
See, however, Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403. (Rep.)
Note.—.Since the opinion herein was handed down, the case of Abilene Cotton Oil Co. v. Texas & Pac. Ry. Co. was reversed on appeal by the Supreme Court of the United States (Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co. 204 U. S. 426). (Rep.) | [
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McCulloch, J.
This is a suit in equity brought by the children of Jonathan Jones and his wife, Bethny Jones, both deceased, against Mrs. M. M. Jones, the widow of said Jonathan, to recover a tract of land in Greene County. It is claimed that the land was purchased by Jonathan Jones with funds belonging to his wife, Bethny, the mother of plaintiffs, and that he subsequently conveyed it to the defendant.
The land in controversy was purchased in the year 1859 from one Brown. The deed has not been produced or accounted for, but it seems to be conceded that the land was conveyed to Jonathan Jones, and there are in the record certain receipts for payments which show that the purchase was made in the name of Jonathan Jones. In fact, the complaint alleges that the deed was made to Jonathan Jones, ánd this is not denied. A part of the purchase price was paid with proceeds of the sale of a slave owned by Bethny Jones, and a part by the proceeds of sale of land in Alabama formerly owned by Jonathan Jones but which had been sold under execution.
Conceding that all the funds used in payment of the price of the lands in controversy were derived from Bethny Jones, the facts fall squarely within the principles stated in Gainus v. Cannon, 42 Ark. 503, and the application thereof must control this case. The money and other personal property which Bethny Jones received from her father fell to Jonathan Jones by virtue of his marital rights, as they then existed under the common law, and remained his property as long as he saw fit to hold it as such, and unless he waived his right to it and elected to hold it as trustee for her benefit.
In Leslie v. Bell, 73 Ark. 338, the husband purchased real estate in his own name with funds derived from his wife’s property, and we decided that he had elected to waive his common-law marital rights and hold the real estate as trustee for his wife. In that case, however, the proof was plain that he had elected to hold as trustee for his wife. But in the case at bar the proof is different. There is no proof of any intention on the part of Jonathan Jones to waive his right to the personal property of his wife, Bethny, or of his election to hold as trustee for her the real estate purchased. It is true there is some proof of statements made by him after her death to the effect that the land had been bought with funds belonging to her, and that her children could recover the land after his death, but these declarations are entirely too general and vague to manifest a solemn election on his part to hold the land as trustee for his wife and her heirs. Especially so after he had bound himself by an antenuptial contract to convey the land to the defendant, his second wife, and after he conveyed the land to her by deed.
Judge Eaicin in Gainus v. Cannon, supra, in discussing the effect of much stronger evidence of an election to stand as trustee than is found in this case, said: ’ “An examination of the evidence, which has been made under a very natural tendency to support her claim against the collateral heirs of her husband, fails to disclose any definite, clear agreement, on his part, to exercise and" hold this fund as her trustee for her separate use. * * * Much of it consists of casual expressions with regard to his wife’s ownership, which are commonly used by husbands with regard to property obtained through the wife, or which has been furnished by the husband with a special view to the wife’s comfort or gratification. It is the conventional language of domestic affection, and does not ordinarily mean to imply legal or equitable title. *' * * The proof that the husband received the money under a self-imposed trust to convert it into a home for her separate use is too indefinite and unsatisfactory to warrant a reversal of the decree on this point.”
Appellants, as heirs of said Jonathan Jones, also undertake to cancel and set aside the marriage contract’between the latter and appellee, and his deed executed to her, on the ground that he was mentally incapable of executing said documents. The evidence fails to sustain the allegations of mental incapacity.
The decree of the chancellor is correct, and is affirmed. | [
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Battle, J.
B. J. Brown instituted a suit against J. F. Reid in the Pulaski Chancery Court, to foreclose a mortgage executed by the defendant to the plaintiff to secure certain indebtedness. On the 29th day of March, 1905, the chancery court rendered a decree in favor of the plaintiff against the defendant for $3,241.80, the amount of the indebtedness secured, and ordered the land described in the mortgage to be sold to satisfy the judgment, and appointed F. A. Garrett, the clerk of the court, a commissioner to make the sale. On the 21st day of April, 1905, the day appointed for the sale, the commissioner offered the lands to the highest bidder at public vendue, and sold the same to W. H. Schaer for $3,485, which he paid to the commissioner.
On the 21st day of April, 1905, B. W. Green commenced an action, before a justice of the peace of Pulaski County, against J. F. Reid on a promissory note, and sued out an order of attachment ; and on the 26th day of April, 1905, as a part of the attachment proceeding, sued out from before the justice of the peace writs of garnishment, alleging therein that F. A. Garrett, who was clerk of the Pulaski Chancery Court, and F. A. Garrett, the same person, as commissioner, was indebted to Reid, the defendant, for a surplus from a sale. The writs were directed to any constable of Pulaski County, and commanded him to summon F. A. Garrett, and F. A. Garrett as commissioner, as garnishee, to appear before the justice of the peace, on the 6th day of May, 1905, to answer what goods, chattels, moneys, credits or effects he may have in his hands or possession belonging to the defendant, and to answer such further interrogatories as may be propounded to him. The writs were served on the same day. Thereafter, on the same day, Reid made an assignment of all his right, title and interest in and to the purchase money that might accrue to him from the said sale to T. N. Robertson. On the same day Robertson filed a petition in the chancery court, in B. J. Brown v. J. F. Reid, stating that the assignment had been made 1o him, and asking that his rights be protected.
On the 28th of April, 1905, the commissioner, Garrett, reported to the court that he had sold the lands to Schaer, and that he (Schaer) had paid the purchase money, and asked that he be allowed $50 for his services; all of which the court approved, and on the same day the court allowed Schaer, the purchaser, $46.20, as a.credit for taxes paid by him on the lands.
• On the 2d day of May, 1905, commissioner Garrett, in pursuance of the order of the court, paid to Brown the amount due on his judgment against Reid out of the proceeds of the sale under the decree of foreclosure.
On the 4th day of May, 1905, Green filed his petition in the chancery court, stating that he had caused the writs of garnishment to be issued and served before the assignment to Robertson, and asking that an order be made directing the commissioner to hold the money arising from the sale under the decree of the court, and remaining in his hands and not disbursed under previous orders of the court, “in obedience to the writs of garnishment.”
On the 6th day of May the petitions of Robertson and Green were presented to the court, and on the 13th day of May the court adjudged, ordered and decreed “that the F. A. Garrett as commissioner is not subject to the writ of garnishment; that there is not now nor has there been in the hands or possession of F. A. Garrett or F. A. Garrett as commissioner any goods, chattels, moneys, credits, or effects belonging to J. F. Reid as surplus from the foreclosure sale subject to the garnishment; that B. W. Green be forever enjoined and restrained from the further prosecution of the garnishment proceedings against F. A. Garrett as commissioner; that T. N. Robertson, by virtue of the assignment to him by J. F. Reid, is the lawful owner of the balance of the purchase money from the foreclosure sale, amounting to $- now remaining in the custody of this court and not disbursed by its previous orders; that said amount is hereby ordered to be paid ever to him, the said T. N. Robertson, as the lawful owner.” And Green appealed.
Was so much of the proceeds of the sale of the lands under the decree of the court as would be due to Reid, after the payment of the judgment in favor of Brown and all other claims thereon, subject to garnishment or attachment at the time the writs of garnishment were served on Garrett? -This is the only question presented by the appellant and appellee for our consideration and decision.
The proceeds of the sale, when paid by the purchaser, became conditionally a fund in court. It was subject to the control or disposition of the court. The purchaser or bidder could not, without permission of the court, regain possession of it. On the contrary, it was within the power of the court, by summary orders and proceedings, to compel him to act in pursuance of the decree under which the sale was made. Porter v. Hanson, 36 Ark. 591, 606. The only condition on..which it could cease to be a fund in court was a disapproval of the sale by the court. When the sale was confirmed, it absolutely became a fund in court, and the confirmation related back to the day of s'ale.
In the absence of a statute authorizing it, a fund in court is not subject to garnishment or attachment until the purpose for which it is held as such has been accomplished, and the only duty of the officer holding the same is to pay the money to the defendant in the garnishment or attachment. Dunsmoor v. Furstenfeldt, 88 Cal. 522; Weaver v. Davis, 47 Ill. 235; Willard v. Decatur, 59 N. H. 137; Wilbur v. Flannery, 60 Vt. 581; Rood on Garnishment, § § 27, 31-34; 2 Shinn on Attachment and Garnishment, § § 506 and 507.
We have, however, a special statute in this State authorizing the attachment of funds in court. After prescribing the manner in which orders of attachment containing clauses authorizing the summoning of garnishees may be executed upon different kinds of property, it says: “Where the property to be attached is a fund in court, the execution of the order of attachment shall be by leaving with the clerk of the court a copy thereof, with a notice specifying the fund; and where several orders of attachment are executed upon such fund on the same day, they shall be satisfied out of it ratably.” Kirby’s Digest, § 358. The time when it can be attached is not specified. So long as it exists, it can be attached at any time.
We are not without precedents sustaining this construction “1’n the absence of a special statute it was an undisputed rule of law that an executor or administrator could not, in his official capacity, be held liable as a garnishee at the suit of a creditor of the decedent, or of one who was a legatee or distributee, or other creditor of the estate.” 2 Shinn on Attachment and Garnishment, § 510. In Massachusetts a statute provided “that any debt or legacy due from an administrator, and any other goods, effects or credits in the hands of an administrator or executor, may be attached by the trustee process.” In Wheeler v. Bowen, 20 Pick. 563, is was held that, under this statute, “the interest of an heir at law in a distributive share of an intestate estate, in the hands of" the administrator, is subject to be attached on the trustee process before a decree of distribution, and although it may be uncertain whether there will be any assets for distribution; and the suit may be continued until sufficient opportunity has been given for the settlement of the administrator’s account ,and a decree of distribution.” See to the same effect Strong v. Smith, 1 Metc. (Mass.), 476; Hoar v. Marshall, 2 Gray, 251; Sinnickson v. Painter, 32 Pa. St. 384; Simonds v. Harris, 92 Ind. 505; 2 Shinn on Attachment and Garnishment, § 511, and cases cited.
In Strong v. Smith, 1 Metc. 476, Chief Justice Shaw, speaking for the court, said: “The trustee process,” under the Massachusetts statute, “operates as a species of compulsory statute assignment by which a creditor may obtain that by operation of law which his debtor might voluntarily assign to him in payment of his debt.”
In the case before us the writs of garnishment were a part of an attachment proceeding, the legal effect of the execution of which was to attach the fund in court in controversy at. the time they were executed, and, the writs 'being prior in time to the assignment to Robertson, he takes nothing until the debt secured by garnishment is satisfied.
The decree of 'the court is reversed, and the cause is remanded with directions to the court to enter an order' commanding the commissioner to hold the said surplus subject to the garnishment. | [
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Per Curiam.
The appellant Clarence Jerome Hill was convicted in the Circuit Court of Jackson County on March 27, 1990, of possession of cocaine, possession of marijuana, possession of drug paraphernalia, and the offense of felon in possession of a firearm. He was sentenced to four terms of six years imprisonment. The terms for marijuana possession, possession of drug paraphernalia and felon in possession of a firearm were ordered served concurrently with each other but consecutively to the term imposed for cocaine possession. Appellant’s retained attorney B. Richard Allen, who had represented him at trial, filed a timely notice of appeal in April. In July, appellant filed a pro se motion supported by affidavit seeking to be declared indigent and requesting appointment of counsel. The trial court denied the motion, and appellant brings this appeal. B. Richard Allen has also filed a motion in this court seeking to be relieved as attorney-of-record for the appellant. On November 12, 1990, this court issued a writ of certiorari to bring up the record of the hearing held in the trial court on the question of whether appellant was indigent for the purposes of appeal. The record of the hearing is now before us.
The trial court appointed an attorney to represent the appellant at the indigency hearing. After taking testimony from the appellant, the court declared that appellant was not entitled to proceed as an indigent, noting that he had an interest in real property, a monthly income from Social Security, had made bond, and had made no effort to raise money for the appeal. On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Toomer v. State, 263 Ark. 595, 566 S.W.2d 393 (1978).
In Griffin v. Illinois, 351 U.S. 12 (1956), the United States Supreme Court established that an indigent defendant appealing a criminal conviction must be provided a transcript or other record of the lower court proceedings against him when such a record is necessary for an “adequate appellate review.” The court stopped short of specifying minimum standards for indigency or setting forth guidelines to aid in the determination of indigency. This court has considered indigency on a case-by-case basis, as have most other jurisdictions. Most appellate courts have held that a person need not be destitute to qualify as an indigent. See Adkins v. Du Pont Co., 335 U.S. 331 (1984); see also Temple v. Ellerthorpe, 586 F. Supp. 848 (D.R.I. 1984). The burden of establishing indigency is on the defendant claiming indigent status, and the defendant who seeks indigent status is responsible for verifying the motion to proceed as a pauper with a supporting affidavit as set out in our Rule 28. While there is no bright-line test for indigency, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal. See W. LaFave and J. Israel, 2 Criminal Procedure § 11.2(e) (1984). This court has also considered whether the able-bodied appellant who is educated and capable of working has made any attempt to find employment while free on bond. Toomer, 263 Ark. 595, 566 S.W.2d 393. Ablebodiness and the level of education, however, must not be given undue weight since the ability to obtain employment after conviction may be limited. See March v. Municipal Court, 102 Cal. Rptr. 597, 498 P.2d 437 (1972). Some weight may be given to whether appellant himself paid the cost of an appeal bond, but the state cannot force an appellant to choose between posting bond and being able to obtain counsel and pay the cost of an appeal. See People v. Eggers, 27 Ill. 2d 85, 188 N.E.2d 30 (1963). The ability of bystanders such as friends and family members to post bond or assist with expenses is not a factor in determining the appellant’s indigency since indigency of the appellant does not depend on the financial position of his family and friends. Bystanders have no obligation to the state. Fullan v. Commissioner of Corr. of State of N. Y., 891 F.2d 1007 (2d Cir. 1989); State v. Borgenstein, 147 N.J. Super. 234, 371 A.2d 96 (1977). An exception could be made, however, where the appellant has control or complete discretionary use of funds raised by others.
Applying the factors for determining indigency to the evidence adduced in appellant’s indigency hearing, we note the record reflects the following: (1) had tax-free income of $522.00 a month from social security; (2) he had a half-interest in real property presently valued between $5,000 and.$7,500 where he currently was residing rent-free and that the real property had been appraised in 1987 at $19,000 but had sustained damage since that time; (3) the money for the appeal bond was paid by a relative; (4) the cost of that portion of the transcript designated for appeal was $153.00, and B. Richard Allen informed the appellant that he would not lodge the record on appeal until he had been paid every penny owed to him, which was approximately $6,750.00. That amount included money owed Allen for representation at prior hearings and trials and on appeal. Counsel stated that his fee for the appeal was $2,000.00. There was no mention made of money on deposit, debts or persons dependent on appellant for support, but the affidavit filed in July 1990 pursuant to Rule 28 with the motion to proceed as an indigent indicated that appellant had $20.42 in a bank account and a daughter who received social security benefits. Appellant left blank the answer to the question of when and where he had last been employed and his most recent wages.
We find it necessary to remand this matter to the trial court again for a second evidentiary hearing and findings of fact. Testimony should be taken to reflect appellant’s last place of employment and his wages, his total indebtedness and living expenses, the support he provides for his daughter, the nature of his disability on which the security benefits are based, the amount appellant has deposited in accounts, whether the entire appeal bond was paid by someone other than the appellant, and the exact amount owed to counsel for the trial on appeal of this case only. The record of the hearing shall accompany the trial court’s findings when they are filed with this court.
Remanded.
Hays and Newbern, JJ., would aifirm;
Brown, J., would reverse. | [
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Dale Price, Justice.
Kenneth Traylor, appellant, was convicted of breaking or entering, theft of property and of being a felon in possession of a firearm. He was sentenced to a fine of $20,000 and a term of 60 years in the Arkansas Department of Correction. On appeal, appellant argues four points for reversal. We affirm.
John Matlock testified his barn was broken into between October 2 and October 6, 1989, and several items were stolen. The items introduced at trial as stolen from his barn were an air compressor, a mitre saw, a chainsaw and a .410 gauge shotgun. The state crime lab determined that the shackle of the lock on Matlock’s barn had been cut by bolt cutters found in the vehicle that appellant was driving when stopped by a sheriffs deputy on October 13, 1989.
Katherine Shelton, who runs Mattie’s Cafe in Sparkman, testified at trial that appellant came to her cafe in October, 1989, and offered to sell her the items allegedly taken from Matlock’s barn. Shelton bought the shotgun and loaned money to John Oliver to buy the saws and the compressor.
Appellant had previously been convicted of aggravated robbery and two counts of burglary and theft. Ark. Code Ann. § 5-4-501 (1987) provides for enhancement of penalties when a person is convicted of a felony if that person has previously been convicted of a felony. Under Ark. Code Ann. § 5-73-103 (1987), it is a separate offense for a person who has previously committed a felony to be in possession of a firearm.
Appellant argues that the state cannot use his prior felony convictions to convict him of felon in possession of a firearm and then use the same prior felony convictions to enhance the penalty for that conviction.
Ark. Code Ann. § 5-4-501 through § 5-4-505 (1987), the habitual offender statute, does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).
Although appellant does not explicitly state it, it would appear he is making an argument that his right to be free from double jeopardy is being violated. Appellant was not convicted of two offenses which share the same elements, and thus he was not twice put in jeopardy for the same offense. Accordingly, we find that the trial court did not err in denying appellant’s motion to prohibit enhanced penalties for his felon in possession of a firearm conviction under Ark. Code Ann. § 5-4-501 (1987).
Next, appellant contends that he was prejudiced and received an unfair trial because the state was allowed to amend the information on the day of the trial charging him under the habitual offender statute, Ark. Code Ann. § 5-4-501 (1987). Appellant contends that since he did not fully know the charges against him until the day of the trial, his constitutional rights were violated.
The record of the lower court’s proceedings shows that appellant was put on notice that the state intended to make an amendment to the information to enhance appellant’s punishment through the habitual offender statute, and that appellant was not surprised when the trial court allowed the information to be amended so as to allow for enhancement of his punishment upon conviction.
Further, appellant stated in a motion filed one day before the trial that he was aware that the state intended to try appellant as a habitual offender. In Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987), the state filed an amended information four days before trial to show that the defendants were habitual offenders. The court ruled that since the defendants’ attorneys had been given a “rap sheet” showing that the defendants were habitual offenders, there was no surprise when the information was amended.
The amended information did not change the nature or degree of the crime, but simply afforded evidence to increase the punishment. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985). Also, appellant did not ask for a continuance and did not demonstrate prejudice. We hold the trial court did not err in allowing the state to amend its information, charging appellant as a habitual criminal, on the day of trial.
As to the circumstantial evidence the state offered at trial, the bolt cutters, appellant contends this was not sufficient evidence to prove he committed the offense of breaking or entering. He argues that there are other possible defendants for the offenses he has been convicted of since there were other people present when the stolen items were sold.
In determining the sufficiency of the evidence upon appeal, this court considers the testimony that tends to support the verdict and views the testimony in the light most favorable to the appellee. We will affirm the trial court if there is any substantial evidence to support the verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).
Substantial evidence is evidence that is of sufficient force and character that will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).
For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982). It is for the jury to determine if the evidence excludes every other reasonable hypothesis. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974).
A firearms and tool marks examiner from the state crime lab testified that the bolt cutters found in the vehicle appellant was driving on October 13, 1989, were the same bolt cutters used to cut the lock on the barn where the stolen items were taken. Mattie Shelton testified that appellant came to her cafe the same month of the alleged breaking or entering and theft of property and sold the very items that were stolen from Matlock’s barn. Applying the evidence in the record to Ark. Code Ann. § 5-39-202(a) (1987), which defines the offense of breaking or entering, and to Ark. Code Ann. § 5-36-103(a)(l) (1987), which defines the offense of theft of property, it would appear that there is substantial evidence to find that appellant committed the offense of breaking or entering for the purpose of committing theft of property. Appellant had in his possession the bolt cutters that were directly linked to the breaking or entering offense, and when appellant sold the four items in question to persons in Mattie’s Cafe, he had knowingly exercised unauthorized control over the four stolen items which were the property of another person, the owner, Matlock, with the purpose of depriving the owner of his property.
Clearly, there is substantial evidence to support the jury verdict as is required in Jones v. State, 269 Ark. 121, 598 S.W.2d 748 (1980).
With respect to the final argument raised by appellant, he contends that he was not allowed to testify before the jury during the sentencing phase of the trial and so he could not controvert and explain the nature of his prior convictions. Ark. Code Ann. § 5-4-502(2) (1987) lists the sentencing procedures for habitual offenders and states that the defendant, if found guilty of a felony, shall have the right to hear and controvert evidence of any previous felony conviction and offer evidence in his support outside the hearing of the jury.
Appellant testified outside the hearing of the jury concerning his previous convictions and presented evidence that his prior convictions were the result of involuntary guilty pleas. The purpose of that procedure was to enable the court to determine the number of prior convictions the jury might consider in the sentencing phase. The statute does not provide that the hearing be held before the jury. It provides exactly the opposite.
There was no error and we, therefore, affirm. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Ross Duncan, was convicted of possession of a controlled substance with intent to deliver and sentenced as an habitual offender to 40 years in the Arkansas Department of Correction.
Duncan asserts two points of error on appeal: 1) that the trial court erred in denying his motion to suppress because his consent to the search was not voluntary but obtained by implied coercion, and 2) that the trial court erred in denying his pro se motion to withdraw his guilty plea because there was sufficient evidence to support ineffective assistance of counsel. We find neither argument persuasive and affirm.
On December 23, 1988, Officer Charles Durland of the Little Rock Police Department responded to a call regarding an erratically driven car at the Budget Inn. Upon arriving at the inn, Officer Durland was met by the caller, who identified Duncan’s car as the one about which he had called. Officer Durland pursued Duncan around the parking lot, and Duncan ultimately stopped against a curb but had difficulty putting his car into parking gear. Two additional officers arrived in another patrol car to assist Officer Durland.
Duncan appeared to be intoxicated, although no odor of alcohol could be detected. One of the assisting officers observed a syringe on the floorboard of Duncan’s car, and Duncan was then read a Miranda warning and patted down for a weapon. According to the officer, Duncan understood his rights as they were read to him from the standard Miranda rights card used by the police department.
In addition, the officers claim that Duncan gave them permission to search his car, where they found two additional syringes. The officers testified that Duncan also consented to a search of the trunk of his car and gave them the keys-to his car. The officers opened the trunk and discovered two plastic containers of crystal methamphetamine, a machine that sealed plastic containers, and a locked toolbox.
According to the officers, Duncan subsequently consented to opening the toolbox and showed them which key unlocked the toolbox. Inside the toolbox was a quart-sized Mason jar and a plastic bag that both contained crystal methamphetamine. The officers seized the syringes and containers of crystal methamphetamine, and Duncan was taken to University Hospital, where he refused a blood test, and then to detention. Duncan denies giving voluntary consent to the search.
On March 15, 1989, Duncan was charged by felony information with possession of a controlled substance with intent to deliver. The charge was amended on January 12,1990, to include habitual offender status. An omnibus hearing was held on February 12, 1990, and Duncan’s written motion to suppress evidence and oral motion for dismissal on speedy trial grounds were both denied. Duncan subsequently entered a conditional guilty plea on February 15 and reserved the issue of the suppression of the evidence obtained in the officer’s search of his car.
On April 8, 1990, the date set for sentencing, Duncan attempted, pro se, to withdraw his guilty plea. The trial court denied Duncan’s motion and proceeded with sentencing.
Duncan initially asserts that the trial court erred in denying his motion to suppress because his consent to the search was not voluntary but obtained by implied coercion. Duncan claims that the Miranda warning he received does not refer to any rights regarding searches and that he was not given an opportunity to sign a consent form. The essence of his argument is that he was impliedly coerced by the presence of the three police officers into consenting to their search.
We noted in McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), that the practice on appellate review is to state the facts in a light most favorable to the appellee, and the State has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. In reaching a decision, we look at the totality of the circumstances in determining whether a consent is voluntary, and the trial court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981).
Additionally, although we recognize that the trial court may take into consideration whether a defendant knew he had the right to refuse consent in determining voluntariness, it is not a conclusive factor. McIntosh v. State, supra. In fact, we have specifically noted that knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980) (citing McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979)).
In this case, the police officers testified that Duncan consented to their search of his car, trunk, and toolbox and even showed them which keys unlocked the trunk and toolbox. Additionally, it appears from the record that Duncan is not a complete stranger to criminal proceedings in that he had been previously arrested and accorded the assistance of counsel. See generally Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977).
Consequently, we find that the trial court’s denial of Duncan’s motion to suppress evidence and ruling that his consent was given voluntarily is not against the preponderance of the evidence.
In his second point of error, Duncan claims that the trial court erred in denying his pro se motion to withdraw his guilty plea because there was sufficient evidence to support ineffective assistance of counsel.
Arkansas R. Crim. P. 26.1 addresses plea withdrawal and provides in pertinent part as follows:
(a) The court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
* * * *
(c) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(i) he was denied the effective assistance of counsel.
* * * *
In Hill v. Lockhart, 474 U.S. 52 (1985), the two-part standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel - requiring that the defendant show that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different - applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the second requirement, the defendant must show that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial. It is the defendant’s burden to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).
We note initially that Duncan was questioned by the trial court on February 15, 1990, at the time he tendered his conditional guilty plea as follows:
Q Have you discussed this with your attorney, sir?
A Yes, sir.
Q And do you have questions about it?
A No, sir.
Q Do you have any complaints about the services of your attorney, sir?
A No, I don’t.
Q Do you know of anything your attorney has failed to do, sir?
A Not that I’m aware of.
Yet, on April 8, 1990, the date of his sentencing, Duncan presented a prose motion alleging several grounds of his counsel’s ineffectiveness, which included: 1) his trial counsel was not present for the plea and arraignment, which was delayed until the next day, and then his counsel had to be summoned from another court in the courthouse, 2) his trial counsel agreed to file a motion for speedy trial but failed to do so, 3) his trial counsel made an oral motion regarding the speedy trial issue, but it was not timely (in fact, the trial court determined that an excludable period had prevented the time from running), 4) his trial counsel did not consult him regarding his defense, and 5) his trial counsel never discussed calling him as a witness, even though he was called as a witness at the omnibus hearing.
Although he recognized the necessity of showing that he would have pleaded not guilty and insisted on going to trial but for his counsel’s alleged errors, Duncan has failed both in his motion and his appellate argument to show how he was prejudiced as a result of the alleged ineffective assistance of his counsel.
Accordingly, he has not met his burden encompassed within Rule 26.1 as to proof of a manifest injustice or satisfied the standard of ineffective assistance of counsel set out in Hill v. Lockhart, supra.
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Jack Holt, Jr., Chief Justice.
This case involves the denial of the Probate Court of Garland County to probate an instrument as the will of Claude Rogers.
On August 2, 1989, Mr. Rogers, who was 78-years-old and unmarried, had been living with Ms. Maxine Robertson in a home that they had purchased jointly in October of the preceding year. In anticipation of extended travels, Mr. Rogers and Ms. Robertson invited Judee and Bill Dunn, Ms. Robertson’s daughter and son-in-law, and Ina Witherspoon, a friend, to dinner that night. During the course of the evening, Ms. Robertson drafted a two-and-a-half page will in her own handwriting, at the end of which she signed her name,
Beneath her signature on the third page of her holographic will, Ms. Robertson also wrote the following:
Judee Dunn Claude & I give you full power to do & take care of all our Business & do as you wish with, with it, with no problems from anyone.
You can sell or dispose of all property & monies.
[Signed]
[Signed]
Roxie Maxine Robertson & Claude Rogers
Sign [Signed] Ina Witherspoon
[Signed] Bill Dunn
She again signed beneath this passage, and Mr. Rogers also signed below Ms. Robertson’s signature. Ina Witherspoon and Bill Dunn signed the document as witnesses.
Mr. Rogers died on October 16, 1989, and Henry Means, III, appellee, filed a petition for appointment of administrator at the request of Virgil Rogers, Mr. Rogers’ brother, on the basis that Mr. Rogers had died intestate. Letters of administration were issued to Mr. Means on October 23, 1989; however, on January 31, 1990, Judee Dunn, appellant, petitioned for the probate of a will and appointment of herself as personal representative of Mr. Rogers’ estate. A hearing on this petition was held on April 20, 1990, and the probate court denied the admission to probate of the instrument proffered by Ms. Dunn and granted the motion of the estate to dismiss the petition.
Ms. Dunn appeals and argues that the probate court erred as a matter of law by refusing to consider her extrinsic evidence of testamentary intent. We find no merit in this argument and affirm.
In Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984) ), we noted that we review probate matters de novo on appeal and will not reverse the findings of the probate judge unless clearly erroneous.
In determining whether an instrument is in fact a will, we stated in Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985) , as follows:
A will is a disposition of property to take effect upon the death of the maker of the instrument. To be valid as a will an instrument must be executed with testamentary intent, or animus testandi. That merely means the intention to dispose of one’s property upon one’s death. By looking to the four corners of the instrument, we determine that intent. It is a question of law for the court to determine from the face of the instrument whether the writer intends to make a testamentary disposition.
(Citations omitted.)
Further, where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. McDonald, Ex’x v. Petty, et al., 262 Ark. 517, 559 S.W.2d 1 (1977).
In this case, we find no testamentary intent whatsoever within the passage that Ms. Dunn claims to be the will of Mr. Rogers. Certainly, it cannot be said that this instrument’s expressions are so clearly stated that, without inference, no mistake can be made as to the existence of testamentary intention. See generally, McDonald Ex’x v. Petty, et al., supra.
Accordingly, the probate judge’s denial of admission of Ms. Dunn’s extrinsic evidence in this matter is not clearly erroneous.
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David Newbern, Justice.
This is a medical malpractice case. The appellants, Marlin A. and Nancy H. Powell, husband and wife, alleged that Dr. Hugh F. Burnett was negligent in performing artery bypass surgery to correct Mr. Powell’s abdominal aneurysm. The case was tried to a jury which returned a verdict in favor of Dr. Burnett. The Powells contend the trial Court erred by (1) not granting a mistrial when counsel for Burnett asked a doctor testifying on behalf of the Powells about a case in which the witness was a defendant, (2) by allowing a doctor testifying in favor of Burnett to go beyond the “ultimate issue” and tell the jury how it should decide, and (3) by allowing a witness for Burnett to testify as to Burnett’s reputation for truthfulness. We hold that (1) the error on which the motion was based was insufficient to cause a mistrial, especially in light of an admonition by the Court to the jury to disregard the question and the answer, (2) there was no timely objection to the testimony telling the jury how to decide, and thus no reversible error, and (3) the evidence as to Burnett’s reputation for truthfulness was properly admitted, as the Powells had placed the matter in issue. The judgment is affirmed.
As a result of the surgery, Marlin Powell suffered loss of bowel and bladder control, necrosis of buttock tissue, and other injuries caused by cessation of the flow of blood to his pelvic region and lower extremities. Burnett contended the injuries were unavoidable because he had to tie off arteries due to other, unanticipated aneurysms he encountered after the surgery began. The Powells contended the extended surgery was unnecessary and was intended for a different patient but was mistakenly, negligently, performed on Marlin Powell. They offered evidence that Burnett’s surgery notes made no reference to the additional, unanticipated aneurysm he said he found, and that Burnett was thus not telling the truth.
1. Mistrial
During cross-examination, counsel for Burnett asked Dr. Mills, a witness for the Powells, whether he recalled a case involving Joyce Parker. He replied that he did, and then counsel asked, “It’s a case against you personally, was it not?” The Powells’ counsel sought a mistrial. Counsel for Burnett argued she was inquiring about Dr. Mills’s testimony in the other case to show that he used a different standard there with respect to record keeping than he was advocating in this case as the norm.
The focus of the Powells’ accusation against Dr. Burnett was that the “operative notes” he made about the surgery contained nothing about the additional aneurysms he later said caused him to tie off the blood supply. Dr. Mills testified, in effect, that a doctor should write down everything occurring in the course of surgery. The purpose of cross-examining Dr. Mills with respect to the Joyce Parker case, in which he had been a defendant, was to impeach him by showing that he had once testified to the contrary. In the course of the discussion in the judge’s chambers, it became apparent that in the Joyce Parker case, the question was whether Dr. Mills had had a conversation with his patient on a certain day when he asserted he had informed her of possible complications from surgery. Apparently there was no “nurse’s note” showing that he had visited the patient at the time he contended he had informed her or obtained her “informed consent” to the surgery.
At the point it became clear that all Dr. Burnett’s counsel had to cross-examine Dr. Mills about the “nurses’ notes” rather than physicians’s “progress notes” or “operative notes,” the judge ruled that the cross-examination would be too “collateral;” however, the judge clearly stated that Burnett’s counsel could cross-examine about the matter of notations regarding “informed consent” of the patient. The judge ruled that Dr. Mills’s testimony was subject to impeachment, but that the fact that the previous testimony was given in a case in which Dr. Mills was the defendant was irrelevant.
Upon returning to the presence of the jury, the Court instructed that the jury was to disregard the question and response indicating that Dr. Mills had been a defendant. Burnett’s counsel proceeded to ask questions based on Mills’s testimony in the case of Joyce Parker. The questions and answers made it obvious that Mills was the defendant in that case, but no further objections were made by counsel for the Powells.
The only legal standard argued to the trial court was that of A.R.E. 403, although the Rule was not mentioned by name or number. The discussion in the judge’s chambers was long, and his ruling was somewhat fluid or evolving. The Court seemed to agree with Burnett’s counsel that the fact that Mills was a defendant in a case where he might have stated a different standard of care was relevant because it revealed his possible reason for stating a different standard. He referred to “damage” having been done. After refusing the mistrial, he asked counsel’s help in solving the problem in a manner which would cause the fewest further problems. The wording of the admonition given to the jury was suggested by counsel for the Powells. Dr. Burnett’s counsel said several times that she planned to go further with her examination of Dr. Mills on the basis of the Parker case transcript and that it would become obvious that Mills was the defendant in that case. The Court remarked that it would be necessary to evaluate the questions when asked and answers when given.
The contention, again, is that informing the jury that Dr. Mills had been sued for malpractice was so prejudicial as to outweigh the probative value of his testimony stemming from the Joyce Parker case. The Powells asserted that the sole purpose of Burnett’s counsel was to introduce the fact that Dr. Mills had been a defendant in a malpractice action. This, they say, is borne out by the fact that Burnett’s lawyer was unable to refer to anything in the Joyce Parker case other than an instance of Dr. Mills possibly excusing incompleteness of notes made by a nurse in connection with that case rather than progress notes or operative notes for which Mills would have been directly responsible.
On appeal, the Powells argue Rule 403 specifically, saying that relevant evidence may be excluded under the Rule, citing Cullum & Boren v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980), and Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984). In both cases it was held on appeal that the trial Court erred in admitting evidence the probative value of which was outweighed by the danger of unfair prejudice. Neither case held that a mistrial should have been granted.
Although, as the Powells have pointed out, the Court apparently thought that “damage” was done by the question and answer revealing that Dr. Mills was once sued for malpractice, we have been cited to no holding that such a revelation is unfairly prejudicial impeachment. If it is unfairly prejudicial, the admonition may have cured it at least up until the time the further questions and answers from the Joyce Parker transcript made the fact obvious.
A trial court has considerable discretion in deciding whether to grant a mistrial, Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). It is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 332 (1980). That is especially so where an admonition has been given in an attempt to cure erroneously admitted testimony. We find no abuse of discretion in the refusal of a mistrial.
2. Testimony telling the jury the result to be reached
While testifying as a witness on behalf of Dr. Burnett, Dr.. Crow stated that the complication experienced by Mr. Powell was very rare “and for this to be construed as malpractice in any court would be a great disservice to any future patient that we have with aneurysm disease.” The Powells contend this Court has made it clear that, while an expert may give his opinion embracing the ultimate issue in the case, it is impermissible for him to “instruct the jury as to the proper verdict” to be reached. See Aetna Cas. & Sur. Co. v. Broadway Arms., 281 Ark. 128, 664 S.W.2d 463 (1984); Grambling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).
We decline to consider this point, as no objection was made when the testimony was elicited. The Powells cite Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984), for the proposition that a specific ground of objection need not be stated when the error is obvious from the context. That is a correct citation of the case, but it does not mean that no objection need be made, only that a specific ground need not be stated.
During oral argument before us, counsel for the Powells noted that a tactical decision had been made not to object to Dr. Crow’s testimony because it would look to the jurors as if counsel were trying to suppress the testimony of a “home town” doctor. While we sympathize with the tactical position in which counsel was placed, we know of no authority which would permit reversal on the basis of an objection counsel would like to have made but chose not to for tactical reasons.
By motion in limine, Dr. Burnett’s counsel was prohibited from inquiring as to Burnett’s general reputation as a surgeon. The Powells contend the Court’s order was violated by questions asked by Dr. Burnett’s counsel of Dr. Jouett, an expert witness presented by the Powells, as follows:
3. Reputation for truthfulness
Q Have you ever known of Dr. Burnett to lie about his care and treatment of a patient?
A No.
Q Have you ever heard of him doing surgeries that were absolutely unnecessary?
A No.
Q Do you know of his reputation in the community?
A It’s good. It’s excellent.
***
Q Are you familiar with his reputation as a vascular surgeon in this community?
[Objection sustained.]
***
Q Have you ever known Dr. Burnett to not be truthful in his treatment of patients?
A I have not.
Q Have you ever known of Dr. Burnett to perform unnecessary surgery?
A I have not.
[Objection overruled.]
Whether Dr. Burnett was telling the truth as to what he saw and what he did during the operation was made an issue by the Powells, thus making the testimony in response as to Dr. Burnett’s reputation for truthfulness specifically admissible in accordance with A.R.E. 608(a). See Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). The question as to Dr. Burnett’s general community reputation was improper; no objection was made. The question about Dr. Burnett’s reputation as a vascular surgeon was improper; an objection was sustained. The question whether Dr. Jouett knew of Dr. Burnett performing unnecessary surgery was proper, as it went to the question of truthfulness raised by the Powells’ the objection was properly overruled.
Citing Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), the Powells contend counsel for Burnett “intentionally violated the pre-trial order in an effort to draw objections from counsel for the Powells. Counsel for the Powells was left in the precarious position of objecting to questions regarding . . . [Dr. Burnett’s] overall competence and general reputation, thereby alienating the jury.”
In our opinion in the Alexander case, we referred to the situation there as “unique.” We noted instances where counsel for the appellee had violated an in limine order, but concluded they became “more significant” when combined with the fact that counsel for the appellee had simply refused to follow the court’s order to stop asking leading questions. That resulted in 28 objections, 14 of which were sustained, nine of which were overruled, three were not ruled upon, and two were withdrawn. The judge, in attempting to deal with the problem, admitted to counsel that he had lost control of the trial, and we found prejudice from the cumulative effect of the leading plus violations of an in limine order.
In this case the problems as described in the Powells’ brief, was far less severe. If there was a concerted effort by Burnett’s counsel to ride roughshod over the judge, it is not evident from the cited parts of the record, and it does not reach the level of prejudice sufficient for reversal which we found in the Alexander case.
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George Rose Smith, Justice.
The Workmen’s Compensation Commission entered an award granting compensation to the appellee for ten weeks of total disability, together with medical expenses, attributable to a heart attack suffered in the course of his employment by Bradley County. The circuit court affirmed the award. The only question here is whether there is substantial evidence to support the Commission’s conclusion that there was a causal connection between the claimant’s work and his disability.
On the morning of June 7, 1966, Adams assisted the foreman of the county bridge crew in dismantling a bridge made of heavy timbers. The day was hot, and the work hard. Shortly before noon Adams suffered chest pains that proved to be the onset of his disabling heart condition. That afternoon Adams quit work early and was taken by his wife to a hospital, where he was treated by Dr. Whaley, the only medical witness who testified.
Dr. Whaley’s deposition was taken on interrogatories. Counsel for the claimant propounded a detailed question which, summarized Adams’s activities just before his illness and asked whether in Dr. Whaley’s opinion those activities had been a contributing factor in the onset of the attack. Dr. Whaley answered: “The term used by doctors in this sort of case would be that the physical exertion is a precipitating factor, a term very close to the word contributing.”
A cross-interrogatory asked if it isn’t “highly unlikely that work on the day of the occurrence of the chest pains had any causal relation to the pains?” The answer: “No. The basic lesion had to develop slowly, but it is 'entirely possible that the precipitating event was a more vigorous heart action and flow rate through the diseased artery due to increased workload on the day in question.”
The final cross-interrogatory read: “From all you know about this case, in your opinion, did the work on the day in question have any causal relation to the incomplete blockage of coronary blood flow?” Dr. Whaley answered: “As a simple matter of fact, I do not know, and to state an opinion on that basis would be foolish. I understand that the Commission has to determine one way or the other, but there is no clear medical reason for me to have an opinion.”
Dr. Whaley’s testimony is evidently open to two interpretations. On the one hand, he expressed the opinion that the claimant’s work was a precipitating factor in the onset of the attack. Dr. Whaley twice underlined the the word precipitating. Webster’s Second New International Dictionary defines precipitate as “to hasten the occurrence of; as, to precipitate a journey, or a conflict.” That is plainly the sense in which the witness used the word.
It is true that Dr. Whaley also declared that, as a simple matter of fact, he did not know whether the required causal connection existed. But the Commission J were at liberty to take that statement to mean merely that the doctor was unwilling to express complete certainty about a matter not admitting of such an inflexible view. We considered a similar situation in American Life Ins. Co. v. Moore, 216 Ark. 44, 223 S. W. 2d 1019 (1949), where we said:
“Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law, is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg. . . No alternate theory has been proposed by appellant. We are unwilling to say that Dr. Monroe’s testimony is conjectural merely because his opinion did not preclude every other possible cause of death.” In the case at bar the Commission was also justified in considering the fact that Adams’s attack occurred under circumstances strongly indicating that it was work-connected.
We have held, in cases too numerous to mention, that it is not our province to decide contested issues of fact in compensation cases, that it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, and that the Commission’s findings have the force of a jury verdict. Those principles demand that the Commission’s decision in the case at hand be upheld.
Affirmed.
Brown and Fogleman, JJ., dissent. | [
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Lyle Brown, Justice.
Johnny Edington was adjudged guilty of voluntary manslaughter. The first of two points advanced for reversal is that the court should have held appellant Edington’s “confession” inadmissible. The facts incident to this contention are brief.
Theodias Jimmy Turner died as a result of a knife wound received at the home of Gracie Broughton. Mrs. Broughton was taken to the police station in Fordyce for questioning. She disclosed that Edington was the only adult in the room with Turner at the time of the stabbing. An officer immediately located Edington at borne and in bed. Edington was not then aware the knife wound had proved fatal to Turner. When the officer and Edington walked into the room in City Hall, Mrs. Broughton advised Edington of Turner’s death and asked why he stabbed Turner. Edington responded that “he loved her” and was jealous of Turner. The officers did not instigate the conversation nor did they make any effort to stop it. They recounted the conversation in an in-chambers hearing. There the court held the conversation to be admissible.
Appellant argues that the recited testimony of the officers, should have been excluded under Escobedo v. Illinois, 378 U. S. 478 (1964) and Miranda v. Arizona, 384 U. S. 436 (1966). He insists that these decisions require the warnings in Miranda to be given at the moment a suspect is first taken into custody. This is not required in every instance of arrest or detention. The officer who went after Edington was merely instructed to bring him to headquarters. The officer did not interrogate Edington and consequently had no reason to give Edington the Mircmda warnings. Nor is this a situation where officers set up a conversation between the suspect and another in order to obtain an admission of guilt. The trial court heard evidence of a spontaneous admission by the suspect to his friend, Mrs. Broughton. The trial court correctly admitted the evidence. See Turney v. State, 239 Ark. 851, 395 S. W. 2d 1 (1965).
Secondly, appellant urges that the eyewitness testimony of Mrs. Broughton’s eleven-year-old son constituted reversible error. The boy was in the fourth grade and had never failed in school. He attended Sunday School and named his teacher. He was questioned about the effect of an oath. His account of the incident of the stabbing was coherent. Rigid cross-examination failed to disturb him. The trial court, in its discretion, concluded that the boy met the oft-recited tests of understanding the obligations of an oath and had the ability to receive and transmit accnrate impressions of the events. Batchelor v. State, 217 Ark. 340, 230 S. W. 2d 23 (1950).
Affirmed. | [
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Tom Glaze, Justice.
The issue in this case is whether an agreement between the Fleet Lease, appellee, and Fisher Trucking, appellant, for the “lease” of thirty-four trucks for thirty-six months was a true lease or a conditional sale in disguise. The appellant stopped making payments under the agreement after approximately fourteen months. As a result • of this breach, appellee filed suit against the appellant, and the appellant counterclaimed alleging that the agreement was actually a conditional sale which was usurious and therefore void as to the unpaid interest. Both parties filed partial summary judgment motions which included this issue. The trial court granted the appellee’s motion finding that the transaction was a true lease and that appellant was liable for its breach.
After the trial judge’s ruling on the lease issue, the parties stipulated to the facts concerning their transaction and the case was submitted to the jury solely on the issue of damages. Both sides presented testimony supporting their respective calculations on damages, and the jury awarded $1,000,000 to the appellee. Alleging that the amount of damages was excessive, the appellant made a motion for new trial under ARCP Rule 59. This motion was denied by the trial court.
On appeal, the appellant argues that the trial court erred in finding that the agreement was a true lease and not a conditional sale and in denying its motion for a new trial. While we affirm the trial court on the first issue, we agree with the appellant that the amount of damages awarded was excessive. We affirm if the appellant elects to remit the amount in excess, otherwise the cause will be remanded for a new trial.
This court has addressed on other previous occasions the issue of whether a lease was in fact a conditional sale subject to the usury defense. In doing so, the court has determined that the presence of the following factors indicates a conditional sale: 1) the lessor is a finance company; 2) the agreement puts all the risk upon the lessee; 3) the agreement provides the same remedies upon the lessee’s default in the payment of rent that would be available to a conditional seller or to a mortgagee upon similar delinquency; 4) the agreement provides that the lessee will upon the lessor’s request join the lessor in executing financial statements pursuant to the Uniform Commercial Code and other assurances the lessor deems necessary for protection of the interest of the lessor in the equipment; and 5) there is an absence of any appreciable residual in the lessor at the expiration of the lease. See Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986), Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W.2d 1 (1977). Under the last factor, which we have referred to as the most fruitful single test, great emphasis is put on the amount the lessee must pay to acquire title after all payments have been made. See Hill, 288 Ark. 623, 708 S.W.2d 608.
In applying the above factors to the transaction here, we first note that the facts show that the appellee, the lessor, is not a finance company but has indeed performed as a leasing company. Appellee’s sole assets were the thirty-four trucks, and it had leased those trucks to another company before having leased them to the appellant. Next, the agreement was silent as to the appellee’s remedies upon default. After the appellant defaulted in its lease payments, the appellee’s lenders repossessed the trucks and sold them; this remedy, however, was not provided for in the agreement between the appellant and appellee. In addition, the parties’ agreement did not provide for the signing or filing of any financial statements pursuant to the Uniform Commercial Code.
And finally and significantly, the record reflects that an appreciable residual existed in the appellee at the expiration of the lease. In this respect, the appellant did not have a nominal purchase option at the end of the lease period. For example, in Bell, we held that an option price for 10 % of the original contract price was nominal. Here, however, the purchase option amount was established at 50 % of the average of three appraisals to be performed by different dealerships. Such an amount certainly is more than nominal. In considering the parties’ proof as to the trucks’ values at the end of the lease period, the estimated values of each truck ranged from a low of $15,000 to a high of $23,000. Given these appraisal amounts, the lease period clearly did not exceed the expected economic life of the trucks — which is another indicator that the appellee retained an appreciable residual at the end of the parties’ lease agreement.
One of the conditional sales indicators is present in the agreement, viz., the agreement appeared to place all the operating risks on the lessee. In this regard, the lessee agreed to be responsible for all operating costs of the truck including but not limited to insurance, driver payroll, federal and state payroll taxes, fuel maintenance, licenses, and permits, highway use and ton mileage taxes and any other costs related to complying with federal and state regulations. Even so, when we consider the other factors already discussed above, we believe the trial court was correct in holding the parties’ agreement to be a lease. Thus, we affirm the trial court’s ruling that the appellee, as lessor, was entitled to a judgment on this issue as a matter of law. ARCP Rule 56(c).
We now discuss the damages awarded appellee in the sum of $1,000,000. The appellant made a motion for a new trial arguing that the jury erred in the amount of recovery. Under ARCP Rule 59(a) (5), an error in the assessment of the amount of recovery, whether too large or too small can be a ground for a new trial. When the primary issue on a motion for new trial is the alleged miscalculation of the damages and not a question of liability, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. See Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).
Both parties presented testimony and introduced an exhibit to support their respective measure of damages. The appellee’s evidence established the amount of damages at $1,209,078.28; the appellant’s estimation of damages was much lower, $30,786.47. The jury was instructed that the measure of damages for breach of an equipment lease is the amount that would put the lessor in as good a position as the lessor would have been had the lessee performed his obligations under the lease. In determining the amount of damages suffered by the appellee, the jurors were told they may consider, among others, the following factors: 1) remaining lease payments due and owing from the date of the breach through the remaining term of the lease; 2) the market and rental value of the trucks at the end of the term of the lease; 3) the amount due to appellee’s lenders at the end of the lease; and 4) sums received by the appellee’s lenders upon the sale of the trucks and the amount of deficiencies owing.
When the appellant breached the lease agreement, the trucks were sold by the appellee’s lenders and the amount from the sale was applied to the trucks’ loan balance. In the appellee’s calculations of the damages no credit is given to the appellant from the amount from the sale of the trucks. On the other hand, the appellant in calculating the amount of damages failed to consider the remaining lease payments due under the agreement and therefore failed to put the appellee in as good a position as if the lease had been performed.
Considering the appellee’s figures offered at trial, the appellant owed $996,936.10 in remaining lease payments to the appellee’s lenders. In addition, under the agreement at the end of the lease period, the appellee had the right to sell the trucks at an estimated or appraised value of $660,000 and to use that money to pay off the remaining loan balance of $246,235.50. Appellee, in calculating damages, proposed that any amount left over was to be split between the appellant and appellee. The appellee also included incidental damages of $6,159.68.
Taking the appellee’s foregoing calculation of damages, the total amount of damages owed the appellee under the agreement is $1,209,078.28. When the lease was breached, the appellee’s lenders received $892,000 from the sale of the trucks and insurance proceeds received due to the loss of one of the vehicles. As previously noted, appellee, in its calculation, never credited this amount against the lease balance amount appellant owed under the parties’ agreement. Thus, appellee’s failure to deduct the sale proceeds amount from its total amount of damages under the lease results in the appellee getting a double recovery in that amount. Therefore, we must find that the trial judge abused his discretion in not granting a new trial under ARCP Rule 59(a)(5). When this $892,000 amount is deducted from the appellee’s total amount of damages due under the lease, the correct amount of damages is $317,078.28. If the appellee remits $682,921.72 pursuant to this holding, the rest of the judgment will be affirmed. Otherwise, the cause must be remanded for a new trial. See Shepherd v. Looper, 293 Ark. 29, 732 S.W.2d 150 (1987); Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986).
804 S.W.2d 367
MARCH 4, 1989
Davidson Law Firm, Ltd., by: D. Westbrook Doss, Jr., for petitioner.
No response.
We note the appellant’s reliance on In re Peacock, 6 B.R. 922 (N.D. Tex. 1980) in its analysis. However, we believe the factors set out in Peacock are sufficiently covered in this court’s cases on this issue. | [
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David Newbern, Justice.
This is a usury case. James A. Winn and Juanita B. Winn, the appellants, sold an apartment complex to appellee Chateau Cantrell Apartment Company (Chateau Cantrell), a general partnership, for $2,300,000, taking in return a promissory note for $1,600,000 which was secured by a mortgage.
Chateau Cantrell sold the property to Chateau Residential Partnership (Chateau Residential), through its nominee E. Ralph Cotham IV, which in turn executed a deed of trust in favor of appellee Charles T. Tuggle, Jr., trustee, and appellee First Tennessee Bank. The deed of trust provided an assignment to Chateau Cantrell of rents and profits from the complex as security. Chateau Residential also assigned rents and profits as security for its obligation to the bank. Cotham subsequently purchased the interests of the other Chateau Residential partners who took a mortgage from him to secure payment. Also joining as appellees are Mrs. E. Ralph Cotham IV, Mr. and Mrs. James R. Bearden, and Mrs. John W. Joyce, Mr. and Mrs. John E. Slayden, and Mr. and Mrs. Henry A. Lile. The Beardens, Joyces, and Liles are Mr. Cotham’s mortgagees. Mrs. Cotham was named a defendant on the assertion that the Winns’ interest is superior to her dower interest.
Our concern here is with a usury defense raised by Chateau Cantrell to a suit to foreclose the mortgage brought by the Winns. Payments were made on the original note from Chateau Cantrell to the Winns until 1988. When the payments to the Winns ceased, they sought foreclosure. The note from Chateau Cantrell to the Winns was to bear interest at 10 % per annum from November 1, 1982, until paid. The payment clause, however, contained a compounding formula which the chancellor concluded made the interest rate usurious under Ark. Const., art. 19, § 13. The note was executed prior to the adoption of Amendment 60 which eliminated the constitutional flat 10% interest cap. The court also found that the transaction was not “a loan for business purposes” and thus the interest rate was not made legitimate by § 511 of the Depository Institution Deregulation and Monetary Control Act of 1980, 12 U.S.C.S. § 86a, which would have preempted the Arkansas law.
The Winns raise six issues on appeal. We agree with their first contention that it was error for the chancellor to hold that the transaction was not one falling within the preemption contained in § 511. We, therefore, need not consider their second contention which is that the note was not usurious under the 1982 Arkansas law. We also need not consider their third point which has to do with whether the mortgage in favor of the bank was a breach of a clause in Chateau Cantrell’s mortgage to the Winns providing against further mortgages. As the mortgage in favor of the Winns takes precedence over the later ones, the trial court on remand will have to determine the extent to which the bank must reimburse the Winns for rents and profits which the bank received. The fifth point argues that the court erred in not continuing a receivership for the rents and profits from the apartment complex during the appeal. It is now moot. Lastly, the Winns contend they were erroneously denied attorney fees. Upon remand the trial court will have an opportunity to reconsider that question in light of this decision.
1. The partnership’s note
Chateau Cantrell was a general partnership organized for the purpose of owning the apartment complex. The note and mortgage were prepared by counsel for Mr. John Flake and Flake and Company. Mr. Flake testified he was the managing general partner, and the other partners included “two physicians . . ., two or three businessmen, a financial institution service corporation was involved, as well.” Flake and Company was not a partner but was hired by Mr. Flake, acting for the partnership, to manage the apartment complex. The other partners, according to Flake’s testimony, were “there for investment and tax benefits,” and were not to take an active role in managing the property.
The note bears Mr. Flake’s signature and contains this language:
The maker [Chateau Cantrell] acknowledges and represents to the holders [the Winns] that the proceeds of the loan evidenced hereby shall be used solely for a business or agricultural purpose within the meaning of the Depository Institutions Deregulation and Monetary Control Act of 1980 and specifically Sections 511 and 512, Part B: business and agricultural loans, same as being public law 96-211, March 31, 1980, 94 Stat. 164, which law shall govern and control all issues involving all interest charged on the loan proceeds.
The lawyer who prepared the note on behalf of the partnership testified that he inserted that clause because he felt the interest specified might make the loan usurious under the Arkansas law, and he felt as a matter of “fact” the loan was being made for business purposes.
2. The preempting federal law
Section 511 provides:
If the applicable rate prescribed in this section exceeds the rate a person would be permitted to charge in the absence of this section, such person may in the case of a business or agricultural loan in the amount of $ 1,000 or more, notwithstanding any State constitution or statute which is hereby preempted for the purposes of this section, take, receive, reserve, and charge on any such loan, interest at a rate not more than 5 percent per centum in excess of the discount rate, including any surcharge thereon, on 90-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the person is located.
The appellees do not argue that the rate specified in the note to the Winns exceeded that allowed by this language of § 511. They do urge us to accept the trial court’s conclusion that the loan evidenced by the note was not a “business loan” as contemplated by the statute. The Winns argue it is a business loan either as a matter of law or as a matter of fact. The appellees argue that the issue is one of fact and that the chancellor cannot be shown to have been clearly erroneous in deciding that the loan was not one for business purposes as contemplated by § 511.
The Winns cite a number of cases from other jurisdictions, none of which is quite on point. We are asked to infer, for example, that a mortgage loan can be a business loan from the holding in Union National Bank of Laredo v. Nelson, 747 F.2d 310 (5th Cir. 1984), that a mortgage loan was a “variable rate loan” covered by § 511 because it applied to such loans made before the current law came into effect. There was no issue as to whether the loan was a business loan. Even if a mortgage loan can be a business loan, that does not help in deciding whether the mortgage loan in this case is a business loan. Explanation as to how each of the cited foreign cases is not quite on point would not be helpful and would unduly prolong this opinion.
The Winns’ strongest citation is Briggs v. Capital Savings & Loan Ass’n, 268 Ark. 527, 597 S.W.2d 600 (1980), which was decided under the predecessor to the current §511. Briggs was asked to participate with others in developing land Worsham had purchased and mortgaged to Capital Savings & Loan. The development plans fell through. Worsham could not make a loan payment to Capital, so Briggs loaned Worsham $6,250 to make the payment but noted on the check that it was “advance on purchase.” Subsequently Worsham needed $150,000 to keep from losing the property. In order to loan Worsham this additional amount, Briggs borrowed $110,000 from Capital, using other property Briggs owned as security. A usury question arose, and the issue became whether the loan from Capital to Briggs was a business loan and thus not subject to the Arkansas usury limit because of the federal preemption.
Briggs contended he used the money from Capital to lend to Worsham just to help Worsham as a friend, but the loan application Briggs had filed with Capital contained these inserts: “commercial loan” and “cash to purchase property.” In addition, Briggs had signed an affidavit to the effect that he understood the loan was a business loan within the meaning of the federal law permitting interest in excess of the maximum non-usurious interest which was 10%.
In affirming the trial court’s holding in favor of Capital, we pointed out that the trial court had gone too far in declaring that any real estate loan was to be considered as a business loan for the purpose of the federal preemption. We wrote that a loan “for the purchase of a home by an individual may not be a ‘business’ loan. . . .” We agreed, however, that the loan was for business purposes because “Capital had every reason to believe that. . . [Briggs’s] payment of the Worsham note still related to a purchase of . . . [the development property].” We treated the issue as one of fact and held that the chancellor’s conclusion that it was a business loan was not clearly erroneous.
The main difference between the Briggs case and this one is that here the loan was made to allow Chateau Cantrell to purchase property which was already developed whereas in the Briggs case it was to conduct development. In their argument that the difference is essential, the appellees cite In re Lawson Square, Inc., 816 F.2d 1236 (8th Cir. 1987). First South, F.A., loaned Lawson Square, Inc., money to convert an apartment complex into condominiums for sale. A usury question arose, and the issue before the court of appeals was whether the Arkansas usury law (Amendment 60) was preempted by § 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980.
First South argued that the loan to Lawson Square, Inc., was secured by a first lien on “residential property” and thus it was covered by the preemption found in § 501(a)(1)(A) of the act. The court of appeals agreed that the property in question was “residential.” The appellees here argue that if such property qualifies as residential under § 501 the loan may not qualify as one for business purposes under § 511. We know of no authority for that proposition and can see no logic in it. No explanation is given as to why the two preemptions do not or should not overlap.
The only other citation of consequence furnished by the appellees is to an opinion issued by the General Counsel of the Federal Home Loan Bank Board, March 19, 1981. The opinion was furnished to us as an appendix to the appellees’ brief, and the. Winns contest its legitimacy and move that it be stricken. We need not respond to the motion to strike, as we do not find the opinion to be controlling in this case whether or not it should be authoritative.
The opinion does not contain the facts upon which it is based. It states only that it is a response to an inquiry from a supervisory agent of the Federal Home Loan Board in Little Rock. It concludes that the “nature of the loan” for purposes of determining whether it is for business purposes is to be determined by the use to which the loan proceeds will be put and states:
The more difficult question is when does a loan have a business purpose. In construing the language in the National Bank Act, 12 U.S.C. § 85, which is virtually identical to that contained in § 511, the Office of the Comptroller of the Currency (OCC) takes the position that the loan proceeds must be used in the active conduct of a trade or business.. . . This construction would preclude the applicability of § 511 to loans for passive investments, i.e., business ventures in which the borrower will not take an active role in the operation or management of the enterprise.
Further on in the opinion, comments made by congressmen at the time the statute was enacted are discussed. Rep. St. Germain took the position that a loan by a broker to a margin investor would qualify as one for business purposes. The opinion states:
Since Rep. St. Germain’s position is inconsistent with traditional interpretations, we would advise the more cautious course and confine the business loan exemption to those loan transactions in which the proceeds will be used in active business investments.
While the opinion may or may not be authoritative, it does not necessarily cover the situation before us. It does not define “passive investment.” One investment perhaps thus described might be an investment in a stock or bond purchased on a public exchange. The average investor takes no active part in operation or management of AT&T. That is unlike the sort of investment we have here. The Chateau Cantrell partners could be said to be engaged in an “active business investment” albeit they are operating the apartment complex through Mr. Flake’s company as agent. The opinion, by saying that “active business investments” are included in loans for business purposes clearly does not exclude all loans for “investment” purposes, and thus we would not find it helpful even if we were to rule it acceptable as authoritative.
Conclusion
We agree with the Winns that our decision should be controlled by the Briggs case. We can see no significant distinction between the use to which the money was to be put by the borrowers here and the borrowers there. The Briggs case opinion recites nothing to the effect that Briggs and the others Capital was led to believe were engaged in a land development project intended to do the development personally. We have no quarrel with the facts found by the chancellor, but in a de novo review we are free to reach a different result required by the law. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Larey, Comm’r v. Cont. Southern Lines, 243 Ark. 278, 419 S.W.2d 610 (1967). We do so here. Mr. Flake, the managing general partner, testified that he was in the business of buying, selling, and organizing the management of real estate properties. He derived part of his income from just such activities as this one. The fact that other partners motives were based on tax avoidance and “investment” does not, in our view, lessen the “business loan” nature of this transaction. Not only could the Winns have believed from the circumstances that Mr. Flake and his partners were buying the apartment complex for business purposes, that very declaration was made by the partnership in the note.
The case is remanded for the chancellor to sort out the entitlements to rents and profits as well as to rule on the question of attorneys’ fees.
Reversed and remanded.
Holt, C.J., not participating.
Justice Glaze and Special Justice Judith A. DeSimone dissent. | [
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CarletoN Harris, Chief Justice.
This appeal relates to the validity of an Executive Proclamation issued by the Governor of Arkansas on May 24, 1967, and directed to the Pulaski County Board of Election Commissioners, calling a special election for November 7, 1967. The pur pose of the special election is to elect a County Judge for Pulaski County, Arkansas. Appellee, Guy H. Story, instituted a taxpayer’s suit against the Board of Election Commissioners, seeking to restrain expenditures by the commission for such an election, and further seeking a declaratory judgment that the Governor’s proclamation was null and void. Gene G. McCoy, a voter, and appellant herein, by leave of the court, intervened, and sought judgment declaring the Governor’s proclamation to he valid. After the filing of additional pleadings by the parties, a written stipulation of fact was entered into, and the cause submitted to the trial court. That court held that the Governor’s proclamation was null and void, and of no effect, and the appellant’s intervention was denied and dismissed for the reason that there is no statute authorizing the election. Prom the the judgment so entered, appellant brings this appeal. For reversal, it is contended that Article 19, Section 5, of the Arkansas Constitution authorizes the election as called by the Governor.
Background of the litigation is as follows:
R. A. (Arch) Campbell duly assumed the office of County Judge on January 1, 1965, which term of office would normally have expired on January 1, 1967.
Tom Gulley was elected to the office of County Judge of Pulaski County, Arkansas, at a general election held on November 8, 1966, for a two year term beginning January 1, 1967. Mr. Gulley died November 24, 1966, prior to qualifying for the office to which he was elected.
R. A. (Arch) Campbell, the incumbent County Judge for Pulaski County, held over in office, and is still holding said office, pursuant to the Supreme Court decision in Justice v. Campbell, 241 Ark. 802, 410 S. W. 2d 601.
Article 19, Section 5, relied upon by appellant, provides as follows:
“All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”
Appellant asserts that this provision is self-executing, i. e., it requires no implementation by the General Assembly, and this is the sole contention advanced by by appellant.
In Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, quoting Judge Cooley, we stated:
“* * * A Constitutional provision may be said to be self-executing if it supplies a sufficient rule by means - of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.”
It is at once apparent that the constitutional language here under discussion, to paraphase Griffin, only indicates a principle, viz., that a successor should be elected, and it is equally clear that no rules are laid down concerning such election which can be given the force of law. In other words, no method or procedure is afforded by which the right to elect may be enjoyed. Mainly, there is no mention of when such an election should be held, and the importance, and necessity, of this requirement will be subsequently pointed out. In fact, the reasoning set forth in this paragraph explains why, in Justice v. Campbell, supra, after holding that Article 19, Section 5, contemplated the filling of the term by an election, that we further stated:
“There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.”
Appellant now asserts that onr holding, in effect, interpreted Article 19, Section 5, to read:
“All officers shall continue in office after the expiration of their official terms until their successors are elected at a special election and qualified.”
We do not agree. Article 7, Section 29, of the Arkansas Constitution provides that the judge of the county court shall he elected by the qualified electors of the county for a term of two years. This election is covered in Article 3, Section 8, which sets out that general elections shall be held biennially, and the General Assembly may fix the time. Amendment 29 to our Constitution provides for the filling of vacancies, but here, of course, all parties agree that no vacancy exists, and appellant likewise agrees that there is no statutory provision for a special election under the circumstances here at issue.
In urging that this court should adopt the interpretation (of Article 19, Section 5) set out in the italicized phrase, appellant states:
“In the instant case, if the judgment below is affirmed, the Legislature will indeed be authorized to continue any officer in office for an indefinite period simply by not providing for elections for his successor.”
Two cases from other states are cited as authority by appellant for his position, hut we consider neither case in point, and at any rate, our own cases are contrary to appellant’s position.
Let it first be said that the quoted argument is plainly erroneous, for failure of the Legislature to act will not continue the present Pulaski County Judge in office for an indefinite period of time — rather, the failure to act only continues him in office until the general election in November, 1968. Our early case of Merwin v Fussell, 93 Ark. 336, 124 S. W. 1021, uses language which is entirely pertinent to the case at hand. There, quoting McCrary on Elections, we said:
“ * * it must be conceded by all that time and place are the substance of every election,’ and that ‘it is, of course, essential to the validity of an election that it be held at the time and in the place provided by law.’ ”
It is further stated:
‘ ‘ The authority to hold an election at one time will not warrant an election at another time, and an election held at a time not fixed by the law itself will be void.”
The matter is governed purely by statute, of course, because the system of elections followed in the United States was unknown to the common law.
Article 19, Section 5, of our Constitution does not specifically order an election, nor does it fix any time for holding such an election, and this being true, the language of our court in Simpson v. Teftler, 176 Ark. 1093, 5 S. W. 2d 350, is completely applicable:
‘ ‘ The Legislature alone had authority to provide for an election, and any election held without authority is a nullity.”
Justice v. Campbell, supra, is here controlling. In that opinion, we stated that implementary legislation by the General Assembly was necessary; had we felt otherwise, we would simply have held that the Constitution directed that an election be held forthwith.
Affirmed.
Originally, Section 8 set the general election for the first Monday of September, but the General Assembly, under the authority of the amendment, changed the date of such elections to the Tuesday next after the first Monday in November, in every second year, and this applies to all elective state, county, and township officers “whose term of office is fixed by the Constitution or General Assembly at two (2) years.”
Amendment 29 provides that vacancies (except those occurring in the offices of Lieutenant Governor, members of the General Assembly, and Representatives in the Congress of the United States) shall be filled by appointment by the Governor. It will be observed that except for the offices enumerated in parenthesis, the people, in passing this amendment, set forth this manner of filling vacancies in constitutional offices, rather than by special elections.
State v. Thoman, 10 Kansas 191 (1872); and Gray v. Bryant, 125 So. 2nd 846.
Of course, the successor to the present judge would not take office until the following January, | [
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Conley Byrd, Justice.
Appellant, Jim Pate Chandler, was convicted upon a charge of possessing an illicit still, Ark. Stat. Ann. § 48-936.1 (Repl. 1964). In his motion for new trial he listed six points upon which he relies for error here. Appellant in his brief has argued the six points under two general headings — i. e., (1) sufficiency of the evidence and (2) prejudice of his case by the trial court through comments on the evidence and in the maimer in which he intervened to correct and question witnesses.
The evidence shows that on September 20, 1966, early in the morning Deputy Sheriff Lewis Tollett, learning of a still in the vicinity of appellant’s home some three miles east of Dierks, drove by there accompanied by State Police Sergeant Ernest Hawthorne. Observing that appellant’s vehicle was not there, they parked some distance away and proceeded to a gravel pit. The still was found about a hundred yards south of the gravel pit near a pond and approximately 440 yards northeast from appellant’s home. The officers concealed themselves in the briars and waited. In about thirty minutes they heard a door slam and a pickup drive off in the direction of appellant’s home. About fifteen minutes after the door slammed, appellant came to the still from over the pond bank, walked straight past the first two barrels and took the cover off the third barrel. Appellant then walked toward the cooker from the barrel and back to the barrel. When appellant was arrested he was filling a glass jug in the third barrel. He told the officers that he was just passing by, smelled the mash and stopped to get a drink.
Upon further investigation the officers determined that the mash in the first two barrels, which appellant had walked by, was not as sour and milky-looking as that in the third barrel.
From the still, two well-beaten paths were observed. The one up over the dam to the pond was the most used but after that it petered out. The other path went southwesterly through the woods toward appellant’s house down an old road running parallel with the road that runs north and south in front of appellant’s house.
Sergeant Hawthorne testified that according to appellant’s reputation he was definitely involved in liquor. Other testimony showed that in 1955 he had pleaded guilty to having a still, had subsequently been fined for having untaxed liquor, and had recently been drunk on numerous occasions.
Under the circumstances, we hold that there was sufficient evidence to make a jury issue on the possession of a still.
Appellant’s contention that the trial judge showed his bias and prejudice against the defendant arises, principally, from the conduct of the trial judge during the prosecution’s examination of Deputy Sheriff Lewis Tollett and during defendant’s examination of his witness Harmon Chandler.
Upon the examination of Deputy Tollett, in answer to a question as to whether appellant had a reputation as to dealing or trafficking in illicit liquor, the witness had stated “Yes,” whereupon the following occurred:
“Q. What is that reputation?
A. He drinks it.
THE COURT: (To witness) No, just what they say about him dealing in it. Not whether he drinks it or not.
A. He drives up and down the road drunk.
THE COURT: (To witness) I don’t think you understood his question. He asked if he had a reputation for dealing in intoxicating liquors in that area, and you said he did have a reputation. Now, he wants to know if that reputation is1 good or bad.
A. Bad.”
During defendant’s examination of witness Harmon Chandler, counsel for defendant was attempting to elicit what appellant’s reputation was when the following occurred:
“MR. HARDEGREE: Your Honor, we object to any further questioning unless properly founded.
THE COURT: Yes, sir. If there was evidence showing he had a reputation for drinking it shouldn’t have been introduced. It could have been without objection. I think the question was, did he deal and traffic in intoxicating alcoholic beverages.
MB. FEATHERSTON: No testimony that he did, so if the Court would rule to exclude that other testimony, I now move that you do, and the jury consider no testimony on reputation, because he had no reputation of possessing or having anything to do with an illicit still. We need no further testimony on that.
THE COURT: Mr. Featherston, I am not permitted to comment on the evidence. I can say there was evidence introduced concerning his reputation for dealing in intoxicating beverages in recent times. There was evidence to that effect, by reputation only, and that’s all that is permitted, of course.
MR. FEATHERSTON: Then if the Court will let that testimony stay, then we are entitled to offset it.
THE COURT: You are entitled to show he has a reputation for being a peaceable, law abiding citizen if you desire to.”
The record fails to show any objection on appellant’s part with respect to any conduct of the trial judge challenged by appellant. In Graves v. State, 155 Ark. 30, 33, 243 S. W. 855 (1922), we held that , the failure to make such an objection or exception waived the alleged error on appeal. This is in accordance with our procedure, 15 Ark. L. R. 69, and we accordingly hold that appellant’s contention is without merit.
The judgment is affirmed. | [
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CaRletoN Harris, Chief Justice.
This litigation relates to the constitutionality of Act 101 of the Arkansas General Assembly of 1963 (Ark. Stat. Ann. § 27-2501 through 27-2506 [Repl. 1962]). Rector-Phillips-Morse, Inc., hereinafter called Rector, instituted suit in the Pulaski County Circuit Court (3rd Division) against Paul D. Bowsher, petitioner herein, asserting that it was a licensed real estate broker, engaged in the business, inter alia, of selling land belonging to others for a commission. The complaint alleged that Bowsher, a resident of the state of Ohio, was the owner of certain lands lying in Pulaski and Perry Counties, and that Bowsher had authorized the plaintiff to sell this land, and had agreed that if an offer were obtained for an option to purchase at a price not less than $100,000.00, petitioner would accept the offer, and grant the option “provided that the option would not be for more than six (6) months and further provided that defendant would receive at least $3,500.00 consideration for the granting of the option to be his whether or not the option was exercised.”
The complaint further asserts that the plaintiff obtained an offer in compliance with these requirements, and submitted same to petitioner, but that he refused to accept the offer, and had since conveyed the property to a third party, thereby breaching his agreement with Rector. The prayer sought a judgment in the amount of $10,000.00, or whatever amount the proof might reflect it entitled to under its contract. A copy of the complaint and summons was sent by the sheriff of Pulaski County to Bowsher in Ohio by way of certified mail in compliance with the statute, heretofore mentioned. Thereafter, Bowsher appeared specially for the purpose of challenging the jurisdiction of the court of his person under the service of said summons, and he prayed that the service be quashed. Rector filed its response, contending that the court had personal jurisdiction under the statute here in question, because of Bowsher’s ownership of the real estate. Subsequently, Bowsher replied, contending that the application of the statute was unconstitutional under the due process and equal protection clauses of the state and federal constitutions, it being his position that the mere ownership of land was not sufficient to give a court jurisdiction of a cause of action allegedly arising out of that ownership, without there being other contacts, or business transactions, within the state. On hearing, the court overruled Bowsher’s motion, and directed him to plead further. Thereafter, Bowsher filed his petition for writ of prohibition wherein we are requested to prohibit the Pulaski Circuit Court from proceeding further in this cause. The question, therefore, which confronts us is whether, under the facts set out in the complaint, the Pulaski Circuit Court has personal jurisdiction of the non-resident defendant.
The pertinent portion of Section 27-2502 provides as follows:
“1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person ’s
(a) transacting any business in this State;
(b) contracting to supply services or things in this State;
(c) causing tortious injury by an act or omission in this State;
(d) causing tortious injury in this State by an act or omission outside this 'State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State nr derives substantial revenue from goods consumed or services used in this State;
(e) having an interest in, using, or possessing real property in this state; or
(f) contracting to insure any person, property, or risk located within this State at the time of contracting.
2. When jurisdiction over a person is based solely upon this section, only a (canse of action) (claim for relief) arising from acts enumerated in this section may be asserted against him. ”
The instant action is not based in any wise upon a theory of jurisdiction arising from Subsection (a), but respondent relies entirely on Subsection (e). We agree that prior to the passage of Act 101 of 1963, known as the long-arm statute, the court would not have had any jurisdiction over the petitioner under the ground herein asserted;.it would have been necessary to establish that the petitioner was doing business in the state of Arkansas. Petitioner’s argument is that the constitution guarantees immunity from a suit in a foreign state unless the non-resident has established minimal contacts within the state, and the ownership of land, standing alone, is not sufficient to grant jurisdiction.
Apparently, at least three other states, Illinois, Wisconsin, and Pennsylvania, have passed long-arm statutes ■ which bear a provision comparable to our own Subsection (e), though it appears that the Pennsylvania statute covers only actions for physical injuries arising from the property. Our own statute is quite similar to that of Illinois. One case has been reported. Petitioner says:
“There have been no reported cases in any state, including these three states, where a Court has held that the bare ownership of real estate is sufficient to give Court jurisdiction.”
It is contended that the Illinois case of Porter v. Nahas, 182 N. E. 2d 915 (1962), cited by respondent, is not in point because of the difference in the facts. There, the owner of a Chicago apartment building sued former tenants to recover damages alleged to have been occasioned by the tenants ’ use of the apartment in violation of the terms of the lease. Personal service was had on the defendants in New York. The defendants appeared specially, and moved to quash the service of summons, and the trial court upheld the defendants ’ position, and granted the motion. On appeal, the Appellate Court of Illinois, First District, Second Division, reversed the trial court, stating:
“* * * We think that the cause of action comes within Sec. 17 (1) (c) which embraces all causes of action arising from ‘the ownership, use, or possession of any real estate situated in this State.’ The complaint alleges that the defendants were in ‘possession’ of an apartment on the first floor of plaintiff’s building in Chicago for four years under the terms of a two-year lease, which was renewed for an additional two years, that on its termination defendants surrendered possession of the apartment in badly damaged condition in violation of their express obligation under the lease to return the premises in as good condition as received, and that plaintiff has the right to recover the damages thereby suffered and attorney’s fees.
“It is to be noted that the requirements for jurisdiction are in the disjunctive. Section 17 (1) (c) applies if any one or more of the three grounds for jurisdiction exists, namely, ‘ownership,-’ ‘use’ or ‘possession.’ A tenant under a lease of real estate is in possession and using the real estate.”
Here, though petitioner has not lived in this state (which, appellant says, distinguishes the instant case from Porter), he does own real property within the boundaries of Arkansas, and it seems logical to presume that he has paid real e'state taxes, and, as pointed out in the brief for respondent, undoubtedly looked to Arkansas law and our courts for the protection of his interest in this property. Quite a lengthy article appears in Volume 73, Harvard Law Be view (1959-60), on “The Due Process Clause and Personal Jurisdiction.” Included in this article is a short discussion which is pertinent to the instant case, and which is found at Pages 947-48, as follows:
“The ownership, use, or possession of real property has, in a few states, been treated by statute as a sufficient basis of jurisdiction in personam for certain actions related to the property. Decisions under such a statute have been reported only in Pennsylvania, where the statutory provision covers only actions for physical injuries arising from the property. The Penn sylvania law is thus nothing more than a limited single-act tort statute. Presenting more constitutional difficulty is a statute like that of Illinois, which allows the property right to he a sufficient basis of jurisdiction for any action related to the property. Such a generalized provision would, however, also appear to be constitutional, even in the extreme situation in which a nonresident owner and another non-resident contract outside the state with respect to the property, because of the state’s recognized interest in the title to land within its borders in addition to the defendant’s substantial relationship with the state.”
While the validity of the Illinois statute has not been before the United States Supreme Court, that court has furnished guidelines to be followed in the constitutional exercise of personal jurisdiction over non-residents. We refer to the cases, inter alia, of International Shoe Co. v. Washington, 326 U. S. 310 (1945), and McGee v. International Life Ins. Co., 355 U. S. 220 (1957) In International Shoe, it was held that a course of activity, consisting merely of the solicitation of business by salesmen, admittedly less than the doing of business in Washington, was sufficient to enable that state to subject the foreign' corporation to personal jurisdiction based on constructive service. The court said that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
In McGee v. International Life Insurance Company, supra, a resident of California was issued a policy of insurance by a foreign insurer. Upon his death, the ben eficiary was successful in a suit in California against tlie defendant, a Texas insurance company, (which, had assumed the obligation of the original insurance company). The company was not served in California, and the jurisdiction of the California court was based on a state statute subjecting foreign corporations to suit in that state on insurance contracts with residents of California, even though such companies could not be served with process within the borders of the state. A judgment was obtained, and subsequently, the beneficiary instituted suit on the California judgment in a Texas state court, but was denied relief on the ground that the California judgment was void under the Fourteenth Amendment because of lack of service upon the company within California. The Court of Civil Appeals of Texas affirmed, but the United States Supreme Court reversed the decision, holding that the service had been sufficient for the purpose of the due process clause, and that the beneficiary’s suit had been based upon a contract which had substantial connection with California.
Let us now turn to our own court decisions. In American Farmers Insurance Company of Phoenix, Arizona v. Thomason, Guardian, 217 Ark. 705, 235 S. W. 2d 37, Dr. Robert A. Leñar, Distinguished Professor of Law (at that time an Associate Justice of this court), mentioned that, following the holding in International Shoe, a statute, Act 347 of 1947, Ark. Stat. Ann. § 27-340 (1947), providing for service in Arkansas on this theory, was enacted by the General Assembly. This court passed upon this statute in the case of Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, holding that Act 347 was not intended to change the rule concerning the breaking of the' journey of interstate shipments as announced in earlier cases. Less than three months later, this court, in Chapman Chemical Company v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, held that service on the appellant, a foreign corporation under the provisions of Act 347, was valid. Some confusion resulted, it appearing that possibly the two cases were somewhat in conflict, and in Aldridge v. Marco Chemical Company, 234 Ark. 1080, 356 S. W. 2d 615, we held service good on Marco Chemical Company, a foreign corporation by virtue of service under Act .347, and, as to any conflict between Rodgers and Chapman, added:
“* * * While we think the facts in this case are distinguishable from the facts in the Rodgers case, we do not predicate, nor base this opinion, upon that premise. Actually, we are of the view that the Chapman case, in effect, overruled the Rodgers case, though it did not specifically so state. Therefore, as a matter of removing all doubt, we explicitly state that the Rodgers case can no longer be relied upon as authority for foreign corporations to evade the jurisdiction of our courts- in factual situations similar to the one at bar.”
It is thus clear that this court has taken the liberal view.
Appellant asserts that Act 101 is discriminatory as between residents and non-residents, and is therefore unconstitutional. In his brief, he states:
“* * * This alleged cause of action is transitory against a resident. It can be brought in any county in which the defendant resides or can be found. However under this new long-arm statute the bare ownership of land in any county gives any other county in the state jurisdiction. Thus this suit could have been brought in any county in Arkansas.”
Appellant then cites the case of Forsgren v. Gillioz, 110 F. Supp. 647, an action based on contract, wherein Judge Miller stated that a construction of Act 347 of the General Assembly of 1947 (heretofore discussed), which would render it applicable to contract actions would be unconstitutional because it would discriminate between residents and non-residents as to venue. Of course, this holding by the learned federal judge related only to our earlier act, and, in fact, was rendered ten years before the passage of Act 101. Subsection (E) of Section 1 of Act 10,1 sets forth a method for the forum to comply with any objection as to venue which a nonresident might have, by providing that when the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just. In the instant litigation, it would appear that the action was commenced in the logical county, for it was brought in Pulaski County, where a part of the land in question is located. While the site of the action is not controlled by Ark. Stat. Ann. § 27-609 (Repl. 1962), since it is not an action for the recovery or partition of real property, for an injury to real property, or for the sale of such property under a mortgage, lien, or other encumbrance, the cause is based on a purported transaction arising out of the ownership of real estate partly located in Pulaski County. It may be that petitioner will be somewhat inconvenienced by having to defend an action at any place other than his home county in Ohio, but it would. not appear that he will be any more inconvenienced by being made a defendant in Pulaski County than if he were made a defendant in any other county in the state. As Justice Oliver Wendell Holmes stated in his dissent in Power Manufacturing Co. v. Saunders, 274 U. S. 490 (1927):
'‘In order to enter into most of the relations of life people have to give np some of their constitutional rights. If a man makes a contract he gives up the constitutional right that previously he had to be free from the hamper that he puts upon himself.* * *
“ * * * A foreign corporation merely doing business in the state and having its works elsewhere will be more or less inconvenienced by being sued anywhere away from its headquarters, but the difference to it between one county and another is likely to be less than it will be to a corporation having its headquarters in the state.”
Petitioner also asserts that the subsection here in question is unconstitutional under the Declaration of Eights, Article 2 of the Constitution of Arkansas, asserting that that subsection is in conflict with Sections 2, 3 and 8. Section 2 provides that all men are created equally free and independent, and have certain inherent rights, among these being the acquirement, possession and protection of property. Section 3 states that all persons are equal before the law, and Section 8 deals with criminal charges (not involved in this litigation). We find no merit in this contention.
Summarizing, petitioner owns real estate in this state. He depends upon the laws and courts of Arkansas for protection of this property and his rights therein. He allegedly entered into a contract relating to this particular property. Arkansas has an interest in providing an effective means of redress for its residents against persons or corporations outside the state who allegedly have violated a contract relating to this realty. Many times, necessary witnesses will be found in tbe locality of the party alleging a breach. While there may be inconvenience to petitioner in defending the suit in this state, there would be as much inconvenience to respondent in bringing the action in Ohio.
Writ denied.
FoglemaN, J., not participating.
It will be noted that this language, though not identical in wording with our Subsection (e), has the same meaning and effect.
Porter v. Nahas, supra, was decided subsequent to the publication of this article.
In Hanson v. Dencka, 357 U. S. 235 (1958), the court held that a Florida state court lacked in personam jurisdiction over a foreign trust company, because sufficient contacts were not established by the evidence.
The court held that, as to personal injury and personal property damage actions, the act was constitutional, since it provided substantially-.the same venue provisions to non-residents as are applied to residents. This decision was rendered in’ March, 1953, and in November, 1953, our court, in Hot Springs School Dist. No. 6 v. Surface Combustion Corp., 222 Ark. 591, 261 S. W. 2d 769, held that Act 347 (Sections 2 and 3) applies to actions on contact in certain instances.
It. also appears that Rector-Philíips-Morse, Inc., has its place of business in Little Rock, Pulaski County. This fact is mentioned in' respondent’s brief, and is not disputed by petitioner. However, the pleadings do not, apparently through oversight, reflect this particular fact, and it is accordingly not considered in reaching our conclusions.
The question, of whether the ownership of real property in this state is sufficient to confer personal jurisdiction in an action not related to any transaction concerning such real estate is not at issue in this cause. | [
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George Rose Smith, Justice.
This is a petition for post-conviction relief under our Criminal Procedure Rule No. 1. 239 Ark. 850a. The trial court denied the petition.
In October, 1965, the appellant, Ronnie Lee Elser, and a codefendant, Victor Houk, were charged with having robbed two motels in Garland county. At the arraignment Elser declined the offer of the trial judge, P. E. Dobbs, to appoint counsel for him. Elser pleaded guilty to one charge and not guilty to the other. No evidence was introduced except written statements by the two defendants, both of whom said that Elser had nothing to do with the robbery of one of the motels, the Sands. The trial court nevertheless found Elser guilty upon both counts and imposed a sentence of imprisonment for fifteen years, with five years suspended on condition of good behavior.
Two months later Elser filed his present petition, in which he asserted his complete innocence of both offenses. He attributed his earlier plea of guilty to bru tality on the part of the Little Rock police when he was first arrested and to his fear of similar mistreatment by the Hot Springs police if he insisted on his innocence. When the Rnle 1 petition was filed Judge Dobbs appointed Earl Mazander, a member of the Grarland county bar to represent Elser. After a hearing, at which Elser and several police officers testified, the court entered an order finding that Elser had committed perjury and that the relief sought should be denied.
For reversal it is argued that in the original arrest and arraignment the appellant’s constitutional rights were violated in several respects. We do not reach those issues, because, unfortunately, it is apparent from the record that Elser did not receive in the court below the impartial hearing to which he was entitled. It is evident that from the outset Judge Dobbs had a preconceived conviction that the assertions in the Rule 1 petition were false. Again and again he intervened in the presentation of the evidence, exhibiting such unmistakable bias and such a prejudiced demeanor as to render his findings of no value to this court. To make our point clear we think it sufficient to quote a few excerpts from the record.
The Court: Now you’ve filed a petition in here because your rights have been violated by — under the Constitution. You’re representing him. I appointed you to represent him?
Mr. Mazander: That’s correct, you honor.
The Court: You know I’m getting tired of you guys coming in here to court and I’ve got to appoint somebody to represent you. All right, put on your evidence.
Circuit Clerk, Mr. Hilliard [to Elser]: Will you raise your right hand and be sworn please, sir?
The Court: I don’t think that would do any good but go ahead and swear him.
* # *
The Court: Do you mean to tell me that you still don’t admit that you robbed the Holiday Inn!
A. I did not rob the Holiday Inn.
The Court: You walked in there and knocked a poor old man in the head with a pistol and you don’t admit it?
A. I did not.
* * * # *
The Court: Just a minute, answer my question. You were identified as the person who used a pistol and beat this poor old man over the head, aren’t you?
A. We were identified.
The Court: Okay ... I know more about this case than you do, just about as much about it.
The Court: Just a minute. He’s a thug [referring to Houk, the eodefendant] just like you are, isn’t he? Uh? You want to admit it?
A. I don’t know as I’m a thug, your honor.
The Court: If you wasn’t a thug why did you,go down there and take a pistol and hit an old man over the head?
A. I denied that.
The Court: I know you denied it, but it’s the truth. Just like I am right now, I’m a little bit worked up, too.
The Court: Mr. Whittington [the prosecuting attorney], I think he’s admitted everything he wanted to. I want to file a perjury charge against him. But he’s admitted everything—
Mr. Whittington: Sir, we haven’t made a liar out of him yet.
The Court: Huh?
Mr. Whittington: Give me about five minutes, sir.
The Court: Okay ... I would like to sentence him now for 20 more years. [To this point no one had testified except Elser, who denied his guilt.]
# * # # *
The Court: Let me say this to you, Mr. Mazander. There was no warrant. I issued the warrant the next day.
Mr. Mazander: Your honor, I’m just trying to make a record. We allege in this petition that it was an illegal arrest, and I think I ought to be able to put in evidence that this Lieutenant—
The Court: How is there going to be an illegal arrest? You just answer me one question, how is it going to be illegal arrest when two thugs come inhere and beat an old man with a pistol?
# • # # *
Mr. Mazander: That’s all the testimony, your honor.
The Court: I want him to stand up. At the time I gave you a sentence I gave you fifteen years, five suspended. Now since you came in here and lied like a dog against all the police officers and everybody I’m going — you know what — I’m going to put that up five year, ’cause you in my opinion, you’ve just lied like nobody’s business. You admit it’s your pistol, don’t you?
A. I did not admit that was my pistol.
Q. You admitted you had one, didn’t you?
A. I had a pistol.
Q. And you admit robbing the Holiday Inn?
A. I deny that.
Q. You do, eh? I tell you what I’m going to do. I’m going to suspend this other five years. I want you to go down for fifteen more years and don’t come back up here before me again. Now that’s all I’ve got to say — I’m going to suspend — I gave you ten and I suspended five of it trying to give you a chance. And you’ve come up here and lied before all the officers and everybody else. I want you to go back down there where you belong. The Sheriff will take him back down there and lock him in the cell and deliver him to the penitentiary. I want you to take him to the penitentiary yourself, for somebody—
Mr. Mazander: If it please the court, your honor, I’d like to enter into the record the objection to the changing of the original sentence.
The Court: Mr. Mazander, I think you know that I retained your assistance.
Mr. Mazander: That’s correct, your honor, but I want the objection in the record.
The Court: Okay, you can object, ’cause I’m going to give him another five years down there for coming back up here.
As we have indicated, we attach no weight to the trial court’s findings. It is evident that the trial judge should have withdrawn from the case when the petition came on to he heard. A new hearing is accordingly necessary. Even though the testimony has been extensively developed and is before us, in cases at law it is not our province to decide issues of fact when the evidence is in conflict. Boatner v. Gates Bros. Lbr. Co., 224 Ark. 494, 275 S. W. 2d 627, 51 A. L. R. 2d 326 (1955). Of course we do not imply that Riser’s uncorroborated testimony outweighs that of the five police officers who testified for the State, or vice versa. The circuit judge who hears the case on remand (Judge Dobbs having retired) will pass upon contested issues of fact.
Reversed. | [
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George Rose Smith, Justice.
The trial court, sitting without a jury, found the appellant guilty of robbery and sentenced him to three years imprisonment. For reversal it is contended that the court erred in admitting proof of an oral confession made by the accused while he was being questioned by four police officers.
At about nine o’clock on the night of February 14, 1966, a man armed with a pistol held up the clerk in a Little Rock liquor store and took about $100 in cash and a bottle of whiskey. At about midnight the North Little Rock police arrested the appellant, Calvin Davis, and his companion, George Overton, who was wanted for several robberies. Davis was then nineteen years old and bad no prior criminal record. The two were riding in a pick-up truck that belonged to Davis’s employer and was being driven by permission.
Overton eventually pleaded guilty to the offense now in question and to four other robberies. In the court below, however, Overton exonerated Davis of any complicity in the offense with which Davis was charged. Overton testified that he alone committed the robbery while Davis waited in the truck and that Davis knew nothing about it. Davis’s testimony was to the same effect. The principal evidence connecting Davis with the crime was his asserted in-custody confession, in which he admitted that he knew that Overton entered the liquor store with the intention of committing robbery.
As we have said, Overton and Davis were picked up in North Little Rock at about midnight. An hour or so later they were turned over to the Little Rock police, who questioned them separately at about two o’clock in the morning. According to the ’State’s proof the officers warned Davis of his right to remain silent and of his right to an attorney. After having been so warned Davis at first said that he did not want to tell what had happened. The officers nevertheless continued the interrogation. Davis then said that he was willing to discuss the case but that he would rather not sign anything. The officers soon elicited the oral confession that constituted the principal evidence against Davis at the trial.
Under the ruling in Miranda v. Arizona, 384 U. S. 436 (1966), the alleged confession was plainly inadmissible. There the court, after detailing the officers’ duty to warn a suspected person of his constitutional rights; went on to say: “Once warnings have been given, the subsequent procedure is clear. If. the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any state ment taken after the person invokes his privilege cannot he other than the product of compulsion, subtle or otherwise.” Here the State’s own proof shows that the rule just quoted was violated by the officers who interrogated Davis. His asserted confession was therefore inadmissible.
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Paul Ward, Justice.
This is an action for damages resulting from a collision between a “log truck” and a “gravel truck”, where tbe driver of the gravel truck was killed.
The parties. Appellants are: Joe Skorcz (called Joe) and J. H. Hamlen & Son, Inc. Joe was driving his own log truck. Appellees are: Mary Howie, Adm’x of the estate of Jimmy Dale Hudson, deceased, who was driving the gravel truck, and Silas Kincaid who owned the gravel truck.
The issues. One is whether Joe was an “agent” of Hamlen. The other is a question of negligence, or what caused the collision.
Appellees sued appellants alleging Joe caused the collision, and that he' was an agent of Hamlen & Son, Inc. A jury trial resulted in a verdict in favor of appel-lees on both issues.
Some additional undisputed facts. On January 21, 1966 Joe was driving his truck loaded with logs in a westerly direction toward Little Hock on Highway 40. He was delivering the logs to Hamlen. Joe’s truck consisted of two connected units — the tractor and a trailer, joined together by a three or four inch metal pipe which ran from the wheels on the rear end of the trailer to the tractor. The logs on the trailer extended over onto the back portion of the tractor.
On the same day and time the deceased (Hudson) was driving the empty gravel truck (with a trailer) on the same highway in the same direction but to the rear of Joe.
The truck driven by the deceased ran into the rear end of Joe’s truck, causing the collision and resulting damage.
On appeal two main issues or questions are raised. One pertains to the status of Joe — was he an independent contractor or was he an agent of Hamlen? Two, is there .substantial evidence to support the jury verdict?
One. It is our conclusion ■ that Joe was an independent contractor, and there is no substantial evidence to support a finding he was an “agent” of Hamlen.
Hamlen, engaged in manufacturing wood products, purchased the timber of certain specifications on a certain tract of land. He contracted with Joe to cut, and deliver to his place of business in Little Bock, the timber for $35 per thousand feet. Joe, who had thirty-five years’ experience in this nature of work, used his own mules, tractors, chains saws, loading machine, and trucks. He had three employees, was not financed in any way by Hamlen who did not handle or assist in handling Joe’s payroll or records. There is not, and cannot he, any question about Joe being an independent, contractor under above stated facts.
Appellees, in attempting to show Joe was removed flom the above category and became an agent, rely upon the following facts disclosed by the record. About once a week a representative of Hamlen visited the tract to see if the operation was confined within proper boundary lines; if all trees of proper size were being cut; if stumps were too high, and if usable logs were being left. The record also reveals that Hamlen would tell Joe where to unload the logs when they were delivered at the yard in Little Rock. Appellees also rely on certain testimony tending to show Hamlen might have been able to discharge Joe if he, refused to do the things, mentioned above, as directed by Hamlen or his agent, and also on the fact that Hamlen and Joe had no written contract.
We find no merit in any of the above contentions on the part of appellees. In the case of J. L. Williams & Son, Inc. v. Hunter, 199 Ark. 391, 133 S. W. 2d 892, we find this language:
“It is common knowledge that hundreds of logging operations throughout the state are constantly handled under contract, both oral and written, which leave to the performing party complete independence in effectuating the purposes of such contract.”
In Pine Woods Lumber Company v. Cheatham, 186 Ark. 1060, 57 S. W. 2d 813, the pertinent facts were similar to those here — where the contractor cut and sawed trees into lengths directed by appellant’s foreman, this Court held the trial court was not warranted in submitting employer-employee question to the jury, See also, to the same effect, Moore and Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, and Rice v. Sheppard, 205 Ark. 193, 168 S. W. 2d 198.
Tivo. A closer question is presented with regard to what caused the collision. Appellant presents an excellent and exhaustive brief to show the verdict (of liability by Joe) is “based on demonstrably false evidence and is contrary to the physical facts”. We agree with appellants’ contention (supported by citations) that substantial evidence is a question of law; that jury verdicts must not be based on conjecture or speculation, and; that, in some instances, physical facts outweigh oral testimony.
Here, it appears, appellant relies heavily on two gieneral grounds. One, the testimony of appellees’ witness, James C. Young, must be disregarded and, two, the physical facts show the grave! truck (driven by deceased) ran into the rear of Joe’s truck, causing the accident.
Young testified that he was an eyewitness to the accident; that the log truck “seemed to start stopping in the road and logs spilling all over the road and dump truck [gravel truck] coming pretty fast so he tried to swerve, hit his brakes and'he couldn’t miss it”, and that he was certain the logs started coming off the log truck before the dump truck ran into it.
For the purpose of this opinion, and to avoid unnecessary details, we admit that the jury could have very easily disbelieved the abov,e testimony and particularly other of his testimony. He was in a truck traveling east and was something like a half mile away from the accident when it happened. He says he went immediately to the scene of the accident and stayed some forty minutes, but didn’t see a policeman who was admittedly there. However, it is established that his truck was there. The jury could have found he was present.
Appellants’ main contention however appears to be that the undisputed physical facts show the accident could not have happened like Young said it did. Put another way, appellants contend the physical facts show that the gravel truck must have hit the log truck and caused the accident. This contention is principally based upon the following undisputed facts: (a) the connecting rod (joining the trailer to the tractor) was broken; (b) Joe was severely hurt by the collision, and; (c) the cal) on the gravel truck was demolished. The inescapable conclusion is drawn by appellants therefore that the said damages could not have occurred unless the gravel truck hit the log truck while it was traveling, in normal condition, along the road.
For reasons presently stated we are unable to agree with appellants’ contention.
(a) The connecting rod on Joe’s truck was broken at the point where it had been broken once before, and was re-welded. The jury saw pictures of the broken rod and could have found it was defective. They also could have found that vibration of the heavily loaded truck caused it to break, (b) They could have also found that the severe jolt (causing injury to Joe) was the result of the break in the connecting rod. This rod was bent, and part of it struck the pavement (as shown by pictures). This might have stopped the speed of the truck and thereby caused the logs to plunge forward against th;c cab in which Joe was seated. It is not denied that the logs extended onto the tractor, (c) Likewise the jury might have reasonably found that (even if the accident happened like Young said it did) the logs remaining on the truck could have caused the damage to the cab of t he gravel truck.
We also point out that when the case was tried before the jury model trucks were used to demonstrate how the accident happened- — an aid which we do not have. Taking all these things into consideration we are unwilling- to say the jury verdict was not supported by substantial evidence.
Three. The jury fixed the amount of damages as follows: $60,000 for the widow; $1,100 for the estate, and $5,277 for damage to Kincaid’s truck.
It is contended by Hamlen that the judgment in favor of the widow is excessive by pointing out that she is only eighteen years old; that she was married in August 1964; that she has no children, and that she is working and living with her parents. Hamlen, of course, will not be liable to pay the judgment;. We are therefore in no position, and are unable, to say the verdicts are excessive.
The cause is reversed in part and affirmed in part, and it is remanded for the trial court to enter judgment consistent with this opinion.
Harris, C. J., George Kose Smith and Byrd, JJ., dissent as to the affirmance. | [
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John A. Fogleman, Justice.
Appellant made an adjusted assessment against appellee Oklahoma Gas & Electric Company under the Arkansas Compensating Tax Act on the use of certain items claimed to be exempt by the electric company. After paying the tax under protest and exhausting administrative remedies, the company brought suit against appellant seeking to recover the tax with interest. Southwestern Power Company was permitted to intervene, but has actually only asked that Oklahoma Gas & Electric Company have the relief it seeks. Since Southwestern has actually filled the role of amicus curiae, we will refer to Oklahoma Gas & Electric Company as the appellee.
The adjusted tax and penalty in the sum of $21,74-3.29 were assessed upon some 365 items. Protest was made on items on which the assessment amounted to $21,126.27. These items fall roughly into three categories :
1. Steel towers, wooden poles, crossarms, supports, insulators and other items supporting the wires over which electric current is transmitted and distributed.
2. Items constituting substations.
3. Items used for street and area lighting purposes.
Exemption of these items is claimed under § 6 of Act 487 of 1949 [Ark. Stat. Ann. § 84-3106 (G-) (Supp. 1965),] the pertinent provision of which is as follows:
“Public Electric Power Companies. Tangible personal property, consisting of electric power generating machinery, transformers, control boards, substation equipment, lines, meters, and all other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power generating and distribution system is declared to be a public transmission facility and exempt from the tax imposed herein. Buildings, dams, shops, tools, maintenance equipment, office machines and supplies, automotive equipment, and all other materials of whatever kind or character incidental to such primary generating transmission facility are not included or classified as exempt.”
The trial court granted judgment in favor of appellee on all items involved in the protest. From that judgment appellant brings this appeal, citing the following points for reversal:
I. Exemptions from taxation are never presumed, and to doubt is to deny an exemption.
II. Ark. Stats., § 84-3106 (G-), paragraph 3 exempts from the Arkansas Compensatng (Use) Tax a certain class of tangible personal property which is both specific and limited in its composition.
III. The Legislature further limited this' exemption by providing four rules or guide lines by which the particular item seeking exemptions must abide before the exemption may be granted.
We find it unnecessary to deal with the first point as we feel that the statute may be applied to the various items in question without reasonable doubt, making resort to presumptions inappropriate. As to the other points, we will deal with them as related to the various items rather than discuss the points separately.
It is the contention of appellant that the word “lines” as used in the exemption statute should be construed to mean “wires” only and that none of the materials utilized for the support of these wires is exempt. On the other hand, appellee contends that this exemption is broad enough to cover transformers, substations, street lighting equipment, and virtually all of the questioned items. Appellant’s position is that the popular definition of the word should control, while appellee contends that the technical definition followed in the industry should govern. Appellee bases its contention upon the rule that commercial, trade or professional terms used in a statute dealing with the trade, business or profession are construed in the sense in Avhich such terms are generally understood in that trade, business or profession* even though such meaning may differ from the common, ordinary meaning. As to the items involved, we would come to the same conclusion without regard to the definition used. We base our findings on what appears to us to be the clear legislative intent.
The word “electric” preceding the specification of items of tangible personal property in the first sentence of the applicable subsection quite obviously modifies each of the items specified; i. e., the tangible personal property'includes electric transformers, electric substation equipment, electric lines and electric meters. In view of the commonly accepted concept of the meaning of the term “electric lines,” we do not see how the ex tremely narrow definition urged by appellant could have been intended by our General Assembly. Individuals in ordinary conversation refer to electric lines as the entire structure carrying electric current from the point of generation to the place of consumption. We speak of electric lines in the same sense as we do of railroad lines and telephone lines. On those subjects we do not think of railroad lines as consisting of the steel rails only, nor do we mean that telephone lines are composed of the wires only. Definitions of the word “lines’’ in our dictionaries reflect this usage. Among those given by Funk & Wagnalls New Standard Dictionary are: “The roadbed of a railroad” [Emphasis added]; . . . “The system of wires and poles comprising a telegraph or telephone connection between two points, as the Western Union lines were all down.”
Webster’s New International Dictionary, Third Edition, includes: “The principal circuits of an electric power system” ... “The track or roadbed of a railway.”
The General Assembly resorted to this usage in granting to electric power companies the right of eminent domain and the right to use public highways and streets when authorized the construction, operation and maintenance of “lines of wire, cables, poles, etc., necessary for the transmission of electricity.” Ark. Stat. Ann. § 35-301 (Repl. 1962). Rural electric cooperatives are given similar rights for their “lines.” § 77-1104 (11) (Repl. 1957).
The legislative intent is further indicated by reason of the fact that the General Assembly specifically mentioned items such as transformers, control boards, and meters. All of these terms identify the articles intended with certainty. It seems only logical that if the General Assembly had intended to exempt only wires, it would have used that word. Furthermore, no logical reason has been offered to explain why it would exempt all generating machinery, transformers, control boards, substation equipment, wires, meters, all other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power generating and distribution system and not exempt the steel towers, wooden poles, crossarms, insulators, guying equipment and other items supporting the wires and making it possible for electric current to be transmitted over them. "We agree with the chancellor that these items are exempt. We also agree that such items as signs and numerals required to be mounted on the structures are exempt.
Appellant also questions the exemption of the substations and the fences around them. While we do not agree that these are parts of the “lines” exempt, we must consider whether these items constitute “substation equipment” or “other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power . . distribution system. ” In doing so, we must keep in mind that buildings, shops, and other materials incidental to such primary generating transmission facility are not exempt.
According to the undisputed evidence, substations serve the purpose of transforming the electricity from the high voltage used for transmission to a voltage suitable for distribution to customers for use. Substations consist of transformers, switches, control systems and other appurtenances necessary to transform electricity from one voltage to another. The structural steel which supports substation equipment apparatus (such as capacitors, fuses, switches, busses, insulators, regulator, wave trap, line terminals, current and potential transformers) is one of the principal substation items on which the assessment is questioned. The undisputed testimony is that it is necessary that this equipment be structurally supported and elevated above the ground. It was also shown that the protested reinforcing steel was an essential component of necessary concrete foundations and pads which supported apparatus constituting substation equipment which includes units such as circuit breakers and lightning arresters as well as the above enumerated items. This steel is also tied to the ground mat — a series of criss-crossed conductors under the earth. It seems to us that all this steel is as essential to a substation as is the apparatus it supports and is exempt as substation equipment.
Appellant also urges that the trial court improperly sustained an exemption of the chain link fencing around the substations. This fencing is required by the Arkansas Public Service Commission through adoption of the National Electric Safety Code. Its purpose is to, prevent the general public from coming into the substation, where, due to the presence of extremely high voltage electrical equipment, danger to uninformed persons might be imminent. While safety requirements of the Commission are persuasive, they are not necessarily controlling. The undisputed testimony, however, shows that the fencing complex is bonded into the ground mat through the ground grid connection as a part of the earth feature of the substation. This in itself is sufficient basis for holding this item to be exempt as substation equipment.
By similar reasoning, we find that fluorescent lights are equipment essential to the utilization of control boards and should be considered exempt as a part thereof. The same may be said of conduit for control cables connecting other substation equipment to control boards. An electric heater is substation equipment because it is necessary to control the temperature in which the sensitive devices constituting the control board must operate.
Appellant contends that components of an enclosure for control boards, meters and other substation control equipment should be classified as a building and, thus, subject to the tax. These units are roof ventila tors, wall louvers, steel doors and joists, door frames and roof decking. We hold these to he substation equipment. The undisputed testimony is that these components constitute what is known as a control house, the function of which is to protect the very sophisticated and sensitive control board and equipment from adverse environment by providing an enclosure which can be ventilated, heated or air conditioned as the occasion demands.
A line tuner is a control device which automatically disconnects the lines in the event of inadvertant contact with the lines or an uncontrolled flow of electricity and which later automatically reconnects the circuit. When used in a substation, it is substation equipment.
We cannot agree, however, that lighting equipment is exempt. These light fixtures and components are for the consumption, not the transmission or distribution of electric power. Appellee makes the ingenious argument that these items should be exempt because we have held that street lighting fixtures constitute an integral part of a municipal electric system. In Todd v. McCloy, 196 Ark. 832, 197 S. W. 2d 160, it was said that the provision of ornamental standards and electric lighting equipment to provide modern “white way” electric illumination for city streets was such an enlargement, extension and improvement of a municipally owned light plant and distributing system as to constitute a proper project for financing by issuance of bonds by the city under Amendment Thirteen to our Constitution. Appellee is not operating a municipally owned system which traditionally furnishes street lighting in cities without charge. It is making a charge to cities and private consumers for the service on the basis of a monthly tariff. As a matter of history, the very origin of municipal power systems was in the authority granted to cities to construct or acquire works for lighting the streets. See § 14, Act No. 1 of March 9, 1875. The authority to furnish the power to consumers was added later. See § 1, Act No. 230 of May 6, 1909. The luminaries, hoods, reflectors and mounting and supporting brackets used for street lighting purposes do not constitute equipment and devices used directly in and becoming a part of the primary electric power and distribution system.
Neither can we agree that pole bandages come within any of the property exemptions under the statute. These bandages are impregnated with chemicals used to protect wooden poles from fungi. They are placed around the ground line of reset poles to restore wood preservatives. that have leached out while the pole was formerly set in the ground. If these can be said to be a part of the lines, so could a chemical wood preservative bought for treating poles or chemicals acquired to keep pole attacking insects from the power line right-of-way.
Appellant makes the-argument that exemption of these items gives out-of-state vendors an advantage over in-state businesses dealing in these products. We need not go into the purposes or objectives of the legislative department in granting these exemptions. The wisdom of legislation is not for our determination or consideration, but is for the General Assembly.
Appellee has asked that we assess costs for its supplemental abstract upon the contention that appellant’s abstract was not in compliance with Buie 9. Appellant’s abstract failed to contain reproductions of exhibits introduced, many of which were necessary for a clear understanding of the testimony, since practically all of the principal witness’s testimony was directed toward the introduction and explanation of the exhibits. Furthermore, appellant gave references to the record page numbers only at the introduction of the testimony of each: witness, then he showed only the respective beginning and ending pages of the record of their testimony. A considerable part of appellee’s supplemental abstract was essential to an understanding of all the questions, presented to this court. An award of costs might be app ropriate if it were not for the fact that the State of Arkansas is the real-party in interest. It is a generally recognized principle that a state has no liability for costs unless there is specific statutory authorization,‘at least where the state is acting in a governmental capacity and did not institute the action. The immunity, an attribute of sovereignty, extends to the officers, boards and agencies of the state. See, Annot., 72 ALR 2d 1379; 20 Am. Jur. 2d 27, Costs, § 32; 81 C.J.S. 1345, States, § 234. We find no authorizing statute. No mention of costs is made in the statute [Ark. Stat. Ann. § 84-3120 (Repl. 1960)] authorizing this action. The policy of Arkansas in this regard may be found in statutes which exempt the Commissioner of Revenues from payment of costs for institution or prosecution of any suit (§ 84-1719) and which exempt the State from giving security for costs (§ 27-2307). Thus, we cannot assess costs against appellant in this case.
The chancery court is affirmed as to that part of the judgment rendered for recovery of the tax paid on the items we find to be exempt and reversed on those we find not to be exempt. While we would ordinarily modify the judgment here, neither the adjusted assessment nor any other exhibit showing the detailed calculation of tax and penalty paid under protest is in the record and we are unable to make the necessary calculation, so we remand this case for entry of a proper decree.
While this is the principal use of the stations involved in this litigation, they are also used in certain instances to increase voltages for transmission. | [
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Lyle Brown, Justice.
This is a replevin action brought by First Jacksonville Bank against Jeri Anderson. It is undisputed that appellant, Anderson, was in default under the mortgage held by the Bank, and possession of the mortgaged automobile was awarded ap-pellee Bank.
The facts were stipulated by the parties. The appellant executed a promissory note and chattel mortgage to the Bank to secure the purchase price of a 1966 Ford automobile. The certificate of title was never assigned to the appellee; that is, a notation evidencing an encumbrance or lien was never recorded on the title. Jeri Anderson defaulted on the note after making three payments. The sole question to be resolved is whether the Bank is entitled to sustain its action in replevin on the basis of the default and under the facts just recited.
The appeal is founded on two premises. First, appellant asserts that under the Commercial Code a chattel mortgage avails the mortgagee nothing. In support of this proposition we are cited to Ark. Stat. Ann. §§ 85-9-301-2-3-4 (Add. 1961). Appellant claims those provisions provide that a chattel mortgage holder against an automobile is not a lien creditor. The second premise is that Ark. Stat. Ann. § 75-160 (Supp. 1967) (Motor Vehicle Act) states that a valid lien giving right to possession must be noted on the certificate of title. She then points to the stipulation which concedes that the Bank’s interest is not noted on the certificate of title. Arguendo, appellant would conclude that the Bank is nothing more than an open account creditor.
We hold the lower court was correct in awarding possession of the automobile to the Bank. A chattel mortgage, as between the parties, is a secured transaction within the meaning of the code. Ark. Stat. Ann. § 85-9-102 (2) (Add. 1961). Lonoke Prod. Credit Assn. v. Bohannon, 238 Ark. 206, 379 S. W. 2d 17 (1963).
Sections 85-9-301-2-3-4 are not here applicable. Those sections concern priorities of perfected and un-perfected security interests as against third persons. This being a suit between the parties, Ark. Stat. Ann. §§ 85-9-201-2-3-4 (Add. 1961) control. Section 85-9-201 reads: “Except as otherwise provided by this act a security agreement is effective according to its terms between the parties. . .” See also Ward Industries Corp. v. Bizzy Bee Cleaners, Inc., 6 Adams County Legal Journal 191 (Pa. 1965). Section 85-9-203 provides that the only requirements for an enforcible security interest against a debtor are: (a) a written agreement; (h) the debtor’s signature; and (c) a description of the collateral. In the case before us all the requirements are met. So, according to Section 85-9-204, the security interest here attaches immediately because no explicit agreement postponed the time of attaching.
Since a valid security interest as between th.e parties exists under the U. C. C., the final point to be considered is the failure to comply with Ark. Stat. Aun. § 75-160. That statute requires that all liens and encumbrances be noted on the certificate of -title. A reading of the statute indicates that it does not apply as between the parties. “No '. . . chattel mortgage ... is valid as against the creditors of an owner or subsequent purchaser . . . until the requirements of this article (§§ 75-160, 75-161) have been complied, with.” In Benton County Motors v. Felder, 236 Ark. 356, 366 S. W. 2d 721 (1963), we held that the legislative purpose of the statute was for the benefit of bona fide purchasers.
Appellant argues that the unencumbered title remained in her possession and that the Bank’s security interest was unperfected. As earlier stated, it is not determinative as between the parties whether the interest is perfected, only that it has attached. As for the “retention of title” argument, the U. C. C. provides for integration of the Motor Vehicle Act into the Code, but they must be read together in order to result in consistency. A primary purpose in the adoption of the U. C. C. was a simplification of the earlier law. One of the more difficult problems resulted in the quest for the title holder. As a result, title is no longer a determining factor under the Code. “Each provision of this Article [chapter] with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or the debtor.” Ark. 'Stat. Ann. § 85-9-202 (Add. 1967).
Since a valid security interest was created by the chattel mortgage and it attached, and nothing in the Motor Vehicle Act changes this as between the parties, the lower court was correct in awarding possession of the automobile to appellee.
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John A. FoglemaN, Justice.
This is a petition for certiorari for review of the contempt conviction of Carl Widmer in the Sebastian Circuit Court. Petitioner apparently has been one of the most prolific litigants in that court and has appealed numerous decisions thereof to this court. Mr. Widmer has elected to exercise his right to plead and present his own cases, saying that he cannot afford to employ an attorney. His conviction of contempt arises out of an irritating and indiscreet habit of filing a motion asking the trial court to vacate virtually every decision adverse to petitioner which is embodied in an order or judgment. This practice persisted until the trial judge wrote a letter to petitioner on April 24,1967. The reference title of the letter was: Carl Widmer v. Modern Ford Tractor Sales, et al, Sebastian Circuit No. 4776. With that letter, the judge returned to petitioner such a motion and stated his refusal to hear it. In the letter the judge reminded petitioner of previous admonitions by the court against his habit of filing these motions without regard to merit. Not only did the judge repeat previous directions to Widmer to desist from frivolous pleadings, but he emphatically reiterated that he did not want another of the motions he described as frivolous, unmerited and provocative. The judge specifically pointed out that his caveat included any motions by whatever title seeking to have the court revoke or ignore a former order. An express warning was given that petitioner would make himself subject to summary punishment for contempt for imposing on opposing counsel, the clerk, and the court and interfering with its business. Not only did the trial judge post this letter, but he gave the same warning to petitioner in chambers on the day the letter was dictated but before it was mailed.
In spite of this, petitioner filed just such a motion in the case of Carl Widmer v. Otis S. Tole, No. 4726, on May 5, 1967, seeking to have vacated an order of dismissal and praying a summary judgment for petitioner. On May 12, 1967, according to a certified copy of the court’s docket, petitioner was adjudged guilty of contempt of court and fined $50.00. Widmer paid the fine under protest in order to avoid incarceration for nonpayment.
Respondent questions the right of petitioner to a review of the proceedings because of his failure to include in the record a formal judgment. In all cases of criminal contempt there should be a judgment reciting a finding of the facts constituting the contempt. Davies v. State, 73 Ark. 358, 84 S. W. 633; Meeks v. State, 80 Ark. 579, 98 S. W. 378. Failure of the court to set forth the facts in its judgment does not void the proceedings, however, so the alleged contemnor must ask the court to so recite the facts or, in case of the court’s refusal, bring the facts into the record by bill of exceptions. Ex parte Chastain, 94 Ark. 558, 127 S. W. 973. The respondent has very graciously and in keeping with the sense of justice and fair play characteristic of the eminent trial judge, supplied all deficiencies by filing a complete transcript of the record and proceedings relating to petitioner’s conviction. Consequently, we must review the record to determine the propriety of the trial court’s action.
Petitioner has listed four points relied on by him for the granting of the writ. We deem it necessary to consider only the second one which is:
“Filing of motions or repeated motions in civil cases do not constitute contempt of court, so long as they do not contain any matter reflecting upon the integrity of the Court and are presented in a respectful maimer.”
Respondent urges that petitioner’s conduct was an attempt to resist, disobey, evade and prevent the execution of a lawfully entered pretrial order; an abuse of legal process tending to obstruct or impede the administration of justice; and an open flouting and flagrant disobedience of the trial court’s orders. The record reveals no direct evidence of these assertions except for a review of many such pleadings filed by petitioner.
The record further reveals that petitioner had been the plaintiff in at least 12 cases filed since January 1964, and the trial judge indicated that the petitioner was defendant in perhaps half as many. The judge also indicated that one or more motions for the court’s reconsideration of its orders had been filed in most of these cases and that petitioner had made a very liberal, if not excessive, use of requests for admissions and motions for summary judgments.
The philosophy governing petitioner’s procedural steps seems to be that if one makes persistent hyper-technical use of each pretrial step permitted by law, he will eventually emerge victorious in some case by windfall resulting from oversight by a careless opponent. It well may be that the numerous motions for reconsideration of the court’s rulings are dilatory.
We sympathize with the trial judge and can well understand how provoking and vexatious petitioner’s tactics must have been to this judge whose court had the second highest rate of termination of cases of any single-judge district in Arkansas in 1966 . If every litigant pursued these same tactics, orderly disposition of litigation would be seriously impeded. Yet, the mere filing and presentation of a motion or of repeated, vexatious and dilatory motions do not constitute contempt of court, so long as they are not presented in a contemptuous or disrespectful manner and do not contain matter which is, of itself, contemptuous. Johnson v. State, 87 Ark. 45, 112 S. W. 143. As indicated in the cited case, the court may, in the exercise of its inherent powers, refuse to hear, or strike from the files, any motions which are presented not to subserve the ends of justice but for vexation or delay. We do not mean to imply that a trial court may not adopt reasonable procedural rules not in contravention of statute governing the filing of motions for reconsideration of actions by the court.
The petition is granted and petitioner’s conviction of contempt is quashed.
See the Second Annual Report of the Judicial Department in Arkansas. In 1966, 8.69% of all cases terminated in the 18 judicial districts were handled in his district.
There is doubt that this means physical removal from the files of a pleading in proper form, properly executed and verified, ' and not containing scandalous or impertinent matter. It could well be that any pleading filed should remain in the court’s files, at least as long as there is any possibility of the necessity for use thereof on appellate review. It seems likely that it is only intended that such a pleading be “stricken from the files” in the sense that it no longer constitutes a part of the record to be considered by the trial court. See 71 C. J. S., Pleading, § 609; 4A C. J. S., Appeal & Error, § 740. | [
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J. Fred Jones, Justice.
Mr. and Mrs. A. E. Hensley brought suit in the White County Circuit Court against Farm Bureau Mutual Insurance Company of Arkansas to recover on a fire insurance policy issued in the face amount of $2,000.00. A jury was waived and the cause was tried before the trial court sitting as a jury. The trial court denied recovery and dismissed the complaint on the equitable theory of unjust enrichment. Mr. and Mrs. Hensley have appealed and rely upon the following points for reversal:
“1. The contract of insurance was valid at its inception, and remained valid until the time the insured property was totally destroyed, and under the ‘Valued Policy Statute’ became a liquidated demand on the date of loss.
“2. Appellants as vendors under a Contract of Sale of the realty upon which the insured property was located retained a separate insurable interest in the insured property and subsequent transactions with persons not parties to the contract sued upon did not alter the fixed liability of the insuror.
“3. The lower court erroneously applied the doctrine of unjust enrichment to an action at law controlled by the ‘Valued Policy Statute.’ ”
For. some time prior to 1965, appellants had carried their fire insurance in separate policies with the appellee, Farm Burean Mutual, and one of the policies was on a rent house in the face amount of $2,000.00. This policy was renewed on January 24, 1965, with loss payable clause in favor of the Searcy Bank who held a mortgage on the property, and the annual premium for 1965 was paid by appellants. On March 2, 1965, appellants entered' into a sales contract with H. D. Taylor whereby they agreed to sell the property to Taylor for $2,000.00, with $200.00 paid in cash and the balance to be paid over a period of three years in $600.00 annual installments. The contract of sale provided:
“BUYER hereby covenants and agrees that he will keep the improvements on the property fully and adequately insured with a reputable insurance company with minimum coverage of $2,000.00, and will reflect the interest of SELLERS and of the Searcy Bank, Searcy, Arkansas.”
Mr. Taylor did not have money for an insurance premium when the contract of sale was entered into, but subsequently, and without notice to, or knowledge of, the appellants, he did procure an insurance policy on the property from Glens Falls Insurance Company in the amount of $2,000.00 with loss payable to himself and to the Searcy Bank as mortgagee. On September 9, 1965, the house was completely destroyed by fire. Glens Falls paid the face amount of its policy to Taylor, who in turn paid appellants the balance due on the sale price. Appellants paid their indebtedness to the Searcy Bank and transferred title by appropriate deed to Taylor as provided in the contract of sale.
We agree with appellants on all three points relied on for reversal. As a matter of fact, appellee agrees with appellants on the first two points, but contend in their argument as follows:
“This appeal does not involve a question of the amount of damages, hut whether appellants have a right to recovery.
“A question for determination is whether appellants. breached a condition or conditions of their policy so that appellee may avoid a liability it would otherwise owe. The trial court found that they did. A second issue is whether appellants would be unjustly enriched if permitted to recover. The trial court found that they would.”
We do not agree with the trial court on either of these points. We find nothing in the declaration, or in the application for membership and insurance signed by appellant, that is shown to be false when signed by appellants. As a matter of fact the declaration recites that the premises were inspected by appellee’s agent, Lloyd L. Brown, who personally inspected the risk, and considering utility value, recommended that appellee accept same. The property insured was a “one-story one-family tenant dwelling.” Appellant testified that this property had been sold the previous year on a contract which was forfeited, and that agent Brown advised him, upon inquiry, that such contract would not affect' the insurance so long as a deed had not been delivered. This is not denied by appellee. Certainly the insurable risk should be no greater on premises occupied by a prospective purchaser who had paid $200.00 toward the purchase price than it would be when occupied by a tenant.
We find no merit to appellee’s contention that appellants violated any of the provisions of the policy by willfully concealing or misrepresenting any material facts concerning the insurance subsequently procured by Mr. Taylor and of which the appellants knew nothing, until several days after the house burned down.
The policy contains a clause providing that “other insurance may be prohibited or the amount of the in surance may be limited by endorsement attached hereto,” but we find no such endorsement to the. policy.
The policy also contained a provision as follows:
“This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering property against the peril involved, whether collectible or not.”
This provision in the policy avails appellee nothing in the way of defense in this case, as the insured property was a total loss.
We have in Arkansas a “valued policy law” with little change since 1889. Ark. Stat. Ann. § 66-3901 (Repl. 1966) provides as follows:
“A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be a liquidated demand and against the company taking such risk, for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property.”
The Arkansas case of Mann v. Charter Oak Fire Ins. Co., 196 Fed. Supp. 604, was a very similar case to the one involved here. In the Mann case, Mr. Mann had a policy in force with Trinity Universal Insurance Co. for $15,000.00 with a mortgage clause to First Federal Savings and Loan. He owed First Federal $8,000.00. The Trinity policy prohibited other insurance. First Federal requested physical possession of the Trinity policy from Mann, but never did receive delivery of it, so First Federal procured an additional policy from Charter Oak in the amount of $8,000.00. The house was destroyed by fire, Mann collected on the Trinity policy, paid off the First Federal mortgage and sued on the Charter Oak policy.
In holding that Mann was entitled to recover, the court said:
“The defense based on the prohibition of other insurance contained in the Trinity policy and upon the conduct of Mann in connection with his obtaining payment under that policy does not lack some ethical appeal, but it cannot be sustained legally.
“An insurance company has the right to stipulate against other insurance on the insured premises, and Trinity exercised that right. Charter Oak did not do so, and, in fact, the prorata clause in its policy recognizes that the insured may- carry other insurance on the property. Since the Mann property was totally destroyed by the fire, the Arkansas ‘valued policy’ statute, Ark. Stats. 1947, Cum. Supp. § 66-3901, is applicable, and the measure of the loss is the aggregate of the concurrent policies in force, with each insurer being liable for the full amount of its policy. 29 A Am. Jur. Insurance, § 1552; 45 C.J.S. Insurance § 922, p. 1032, supra; see also Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S. W. 2d 89.”
In 29 Am. Jur., Insurance § 1196, we find the following:
“It is recognized by all the cases decided upon the question that under a valued policy or the provisions of a valued policy statute, the insured insuring the property at a given valuation accepted by the insurer at the time of the issuance of the policy as the value of the insured’s interest may recover the full value insured, even though he in fact has a limited or qualified interest worth less than the amount of the insurance. The insurer may not go behind the policy and show that the insured’s interest is worth less than the amount of the policy. ’ ’
In Couch on Insurance 2d Vol. 16, § 62:28 is found the following statement:
“The cases in general hold that provisions of policies on real property for a proportionate liability in case of co-insurance are inconsistent with statutes providing for valued policies, and are therefore invalid. ’ ’
And again in Couch §§ 62:94-95 appears the following :
“A provision in a policy that in case of other insurance on the property insured, made prior or subsequent to the policy, the insured shall be entitled to recover no greater proportion of the loss than the sum insured bears to the whole amount so insured therein, applies only to cases where the insurance covers the same interests, and can have no application to insurance obtained upon another distinct insurable interest in the property. Conversely stated, ‘other insurance’ within the meaning of an apportionment of loss clause in a policy is other insurance on the same interest.
“Other insurance relates only to insurance held by the person insured by the policy in question, as contrasted with policies naming other persons as the insured. ’ ’
See United States Fire Ins. Co. v. Hodges, 275 Ala. 243, 154 So. 2d 3; American Century Ins. Co. v. Harrison, (Texas Civ. App.) 205 S. W. 2d 417
Couch at § 62:100 states
‘ ‘ The policy covering the interest of a vendee under a purchase contract has no application to the insurance issued on the vendor’s separate and distinct insurable interest.”
In the Wisconsin case of Ciokewicz v. Lynn Mut. Fire Ins. Co., 248 N. W. 778, Wisconsin had a standard value policy statute and also had statutory provisions whereby an insurance company could provide by policy provisions for non-liability for loss or damage occurring while the insured has another contract of insurance, etc. The owner of a barn obtained a fire insurance policy on tbe barn in the amount of $1,400.00 from Lynn Mutual. He later applied to Lynn Mutual for additional insurance and the application was denied. He then purchased a policy from American Insurance Company in the amount of $1,900.00 and attempted to cancel his policy with Lynn Mutual. The barn was totally destroyed by fire before the cancellation was fully accomplished and American paid the face amount of its policy. The owner sued Lynn Mutual on its policy and the facts of that case, the contentions of the parties, and decision of the court on the pertinent point involved, may be concisely quoted from the body of that opinion as follows :
“[4] The policy issued by the defendant contained the following clause: ‘This Company shall not be liable under this policy for a greater proportion of any loss on the described property or for loss by an expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, covering such property.’ It is contended by the defendant that in view of this provision in the policy, the so-called Valued Policy Law, section 203:21, which provides: ‘Whenever any policy of insurance is written to insure real property and the . property insured is wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property when insured and the true amount of loss and- measure of damages when destroyed,’ does not apply in this case.” * * *
‘ ‘ [6, 7] It. is further argued that the plaintiff, having already been paid $1,300 by the American Insurance Company, if he be now permitted to recover the amount named in the policy of the defendant, Ms total recovery will exceed the value of the property. This is no doubt true. Most insurers protect themselves in a situation of that kind by including in their policies a provision that the insurer shall not be liable for loss or damage occurring while the insured shall have any other contract of insurance, etc., in which event section 203:215 appears to be applicable. The provisions of the valued policy law are valid and we perceive no reason why the law does not apply in this- case. Fox v. Milwaukee Mechanics Insurance Co. (Wis.) 246 N. W. 511. Courts cannot suspend the operation of statutes merely because an unexpected result may work out in a particular case. The Valued Policy Law being applicable, it being stipulated that the property was totally destroyed and the fire was accidental, the plaintiff should have had judgment for the amount named in the policy, $1,400, with interest.”
In the case before us there is no evidence at all of fraud in the procurement of either of the policies. Each insured had a separate insurable interest. Subrogation rights as between the two insurance carriers are not involved. Had the contract purchaser not procured his own policy, certainly appellee would have been liable on its policy and payment to appellant on that policy would not have affected the purchaser’s liability under the sales contract in the least. Whether the purchaser paid his indebtedness to appellant out of funds paid to him by his own insurer or out of some other funds is no concern to appellee. The liability of Grlens Falls to its own insured is not before us, but its liability could in no wise affect appellee’s liability to it's insured. Although appellee’s policy provided ‘ other insurance may be prohibited or the amount of insurance may be limited by endorsement attached hereto,” no such endorsement was attached. Although the policy provides “this company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not,” we interpret “the whole insurance covering the property” to mean the whole insurance procured by the insured on his own insurable interest and not including insurance on the insurable interest of some third party who has contracted to purchase the insured premises. Even if we should interpret this provision otherwise, it would be ineffective as in conflict with the Valued Policy Statute in this case. (Mann v. Charter Oak, supra.)
The appellant did not breach his insurance contract by not advising appellee of matters he had no knowledge of until some thirty days after the fire. The actual value of the insurable interest of the purchaser was not necessarily confined to the amount he agreed to pay for the premises or the cost of rebuilding the house. The value of the interest he did insure was fixed at the full face amount of his policy under the statute, and what he did with the proceeds was of no concern to appellee. The insurable interest of the appellants is not questioned, and we fail to see where unjust enrichment is involved in this case.
If the appellants were unduly ^enriched at all in this case, it was because the purchaser honored his purchase agreement and paid for the property even though the house had been destroyed by fire. As between the appellants and appellee, there was no unjust enrichment involved. Appellants paid the premium for one year on insurance in the amount of $2,000.00. The house was totally destroyed by fire within the year, so appellants should be paid the face amount of the policy in the amount of $2,000.00. The record does not show how many annual insurance premiums appellants had previously paid to appellee on this and his other property, but if he had continued to pay premiums on a $2,000.00 policy for any number of years and no fire had occurred, appellants would be entitled to no payment under the terms of their policy, neither would the appellee be unjustly enriched by the premiums paid.
We conclude that the judgment of the trial court should be reversed and this cause remanded to the trial court for entry of a judgment not inconsistent with this opinion. The trial court will fix and award the penalty and attorney fee.
Reversed and remanded. | [
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Paul Ward, Justice.
The issue presented here for decision is whether Glenn F. Walther (appellant) is legally a member of the Arkansas Public 'Service Commission. Set out below are some of the undisputed background facts which explain how the issue reaches this Court.
The Legislature convened in regular session on Monday, January 9, 196?. On that day Dan D. Stephens was a duly appointed, qualified and acting member of the said Commission.
On January 14, 1967, the term for which Stephens was appointed expired, but pursuant to Ark. Stat. Ann. § 73-101 (E»epl. 1957) he continued to hold office “until his successor was appointed and qualified.”
On February 9, 1967 the Senate went into the Committee of the Whole, and then into Executive Session, at which time appellant was appointed to succeed Stephens for a term to expire on February 14, 1973. Shortly thereafter (but on the same day) the Governor sent to the Senate the appointment of Jerry Thomasson to the same position on the Commission.
On February 10, 1967 (Friday) the Senate passed a resolution (No. 16) reaffirming its action on the previous day.
On the following Monday (February 13, 1967) the Senate resumed its deliberations (in Executive Session) of appointments by the Governor which began on February 9, and the appointment of Jerry Thomasson by the Governor was rejected because the position had already been filled by the appointment of appellant.
On February 24, 1967, David C. McDonald Jr., a resident, citizen and taxpayer filed a complaint in the Pulaski County Chancery Court, against appellant, the State Auditor, and the State Treasurer, asking the court to declare appellant’s appointment illegal and void, and to enjoin the state officers from paying his salary. The complaint alleged, among other things, that the appointment of appellant was illegal and void under the provisions of Ark. Stat. Ann. § 6-601 et seq. and § 7-201 et seq. (Repl. 1956).
On February 27, 1967 the state officers filed a general denial and on the following day appellant filed an answer denying all material allegations in the complaint and further alleging that his appointment was “in conformity with the rules and customs of the Senate, the Statutes of the State of Arkansas and the Constitution of the State of Arkansas, and that he is now serving as a legally appointed member of the Public Service Commission since the 10th day of February, 1967.” He also asked that the complaint be dismissed for want of equity.
A trial was had on the issues joined on a stipulation of facts and the oral testimony of one member of the Senate. At the conclusion, the trial judge issued an exhaustive Memorandum Opinion from which we quote the following portions:
“The Arkansas Senate, in adopting Resolution No. 16, seemingly acted (according to the undisputed arguments of all parties) under the authority of Act 417 of 1947, Acts of Arkansas. Therefore, the first question considered by the Court in reaching its conclusion in this case is the applicability of this act to these circumstances. * * *
“Because it is the conclusion of the Court that 417 is not applicable to the facts of this case, it is not necessary to consider the other points of argument presented by the parties.”
The trial court then, in its decree, found “that the purported appointment of the defendant, Glenn F. Wal-ther, by the Arkansas Senate, as a member of the Public Service Commission is illegal and void,” and restrained him “from acting or purporting to act” as a member of the Commission — also restraining the other defendants from paying his salary.
We agree with the trial court’s interpretation of the decisive issue presented in this case, and also agree with its determination of that issue:
On appeal, and in response to the one vital issue found by the trial court, appellant states:
Act 417 of 1947, Section 1 [Ark. Stat. Ann. § 6-601 (Repl. 1956)] applies to all Boards and Commissions, specifically including the Public Service Commission.
We are unable to agree with the interpretation appellant gives to the above statute. There are several reasons why we conclude this statute deals only with Honorary Boards and Commissions, and does not include the Public Service Commission. We note here that appellant does not, and cannot reasonably, contend that the Public Service Commission is an Honorary Commission.
(a) The title of said Act 417 contains this clause: “For regulation of sessions of Honorary Boards and Commissions.” In Stewart v. Shaver, 207 Ark. 847 (p. 849), 183 S. W. 2d 299, this Court said:
/
“Result is that we must deal with an act wherein the title (which, of course, is not controlling, but may be looked to in ascertaining intent) * *
In the early case of Reynolds v. Holland, 35 Ark. 56 (p. 60) the Court said: “The title of this act affords the clue to its intention.” Our research reveals that this case (on the point stated) has been cited with approval in more than 10 decisions of this Court, including- the case of Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S. W. 2d 50. It is true that we have said that the language in the act must be considered, and, when clear, it is controlling.
(b) We now look at some of the language in Act 417. Section 2 says the “board or commission shall meet in regular session at least once during each bimonthly period;” that the board shall notify the Governor who shall be eligible to attend and sit with the Commission; Section 3 provides that any member of the board who shall be absent from two successive regular meetings shall be subject to removal. Considering the above language, it would be unreasonable to say it was meant to apply to the Public Service Commission.
Appellant, in this connection, argues that if the legislature had intended for Act 417 to apply only to honorary boards, it would have obviously amended Act 1 of 1943, but we find no merit in such argument. Said Act 1 abolished all boards and commissions charged with “charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas as now established”, and created sixteen other boards of nature. It is common knowledge of which we take judicial notice that since 1943 many honorary boards and commissions have been established which are in no way related to, or of the nature of, the ones mentioned above, and which may be subject to the provisions of Act 417.
Ark. Stat. Ann. § 73-101 (Repl. 1957) specifically deals with the appointments to the Arkansas Public Service Commission, and is applicable in this case. It provides, among other things, that the Governor shall appoint the commissioners — subject to approval of the Senate; that the terms will expire on January 14 of each year, and that: “Each commissioner shall hold office during the term for which he was appointed and until his successor is appointed and qualified”. (Emph. supplied.)
In view of what we have heretofore said, we conclude that appellant’s appointment by the Senate was a nullity and that the decree of the trial court must be, and it is hereby, affirmed.
FoglemaN and Byrd, JJ., dissent. | [
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Lyle Brown, Justice.
This is a boundary line case. Smith and Mefford orally agreed on a line. Smith purported to rescind the agreement and brought this suit to establish his title by deed and adverse possession. The chancellor denied relief to Smith, holding that the oral agreement fixed the common boundary. Appellant Smith here contends that the true boundary line was never in doubt; that there was no consideration; and that the agreement was rescinded by the parties.
In 1958 Hiram Smith, bought the major portion of a forty-acre tract in Johnson County. His deed called for the west 33 acres. Shortly after June 1966, Mefford purchased the balance of the forty from Smith’s neighbor. Mefford’s deed called for the easterly seven acres. A survey made duripg the period of boundary line discussions disclosed a “short forty.” That revelation made a contribution to the misunderstanding which brought about this litigation.
We start with the premise that a question developed between these neighbors about the location of the boundary line between their lands. It came about ydien Mefford approached Smith about straightening and rebuilding a meandering fence. Smith advised that he would first like to have a survey in order to put it on a straight line. Mefford testified that Smith stated the old fence was not actually on the line. Before the line was surveyed the two landowners, according to the surveyor, agreed that the fence would be established on the line determined by the surveyor to be the boundary. The surveyor determined the true boundary line to be several feet west of the old fence. That line would of course result in the loss of acreage by Smith, who had for some time occupied up to the old fence.
Smith was disappointed at the anticipated loss of acreage and in fact disputed the accuracy of the survey. Since Mefford would of course gain acreage on the basis of the survey, his first expression was they should abide by what he considered to be their agreement. Mef-ford, however, indicated that he would consider a compromise rather than the expense of a lawsuit. In fact, Mefford offered to pay Smith, for the land between the old fence and the surveyed line, but Smith declined. It was then that the landowners, in the presence of the county surveyor, entered into an oral agreement advanced by Smith. He proposed that the boundary fence be constructed at a distance six feet east of the surveyed line; that Smith would furnish the wire and the labor of himself and a helper; and that Mefford would furnish the posts and a laborer. Actually, the extra six feet would place the fence on a line where it had originally stood. Smith and the predecessor in title of Mefford had moved the fence to avoid a flooding problem. This is apparently the reason Smith thought he was entitled to the six feet; it strongly indicates Smith believed that line to be the true boundary — six feet east of the surveyor’s line.
The day following the agreement on the line location the work was begun. Smith and two helpers started at the agreed south corner and proceeded, without incident, to set posts for a distance of approximately 300 feet. At that point and on the second day of work, Mef-ford arrived and complained that a straight line was not being followed, to his disadvantage. A heated argument ensued. Smith called off the work project and went home, declaring the agreement at an end. A few days later Mefford completed the project. However, the fence veered slightly to the west from the point where Smith stopped the work and came out on the north end some two feet from the northern point agreed upon. It was then that Smith filed this suit, claiming title by deed and by adverse possession to all lands inside the old irregular fence line.
The chancellor held that a boundary line had been agreed upon; that Mefford should be required to relocate that part of the fence which protruded over the “six-foot line”; that since Mefford supplied the shortage of posts, most of the labor and the wire, ownership of the fence should be vested in Mefford unless Smith shared the moving cost. The only exception made by the chancellor to the “six-foot line” was a few feet on the north end where a gully required a slight modification. That slight change is not here questioned. We hold that the chancellor’s findings were in all respects correct.
Unfortunately, the need for straightening an irregular fence line developed into a dispute over the actual property line. There were three possible true boundary lines: (1) the line from which Smith and Mefford’s predecessor removed the boundary fence; (2) the irregular fence which Smith relied upon in his complaint; and (3) the line fixed by the county surveyor. In that situation our court has many times held that agreements between adjacent landowners as to their boundaries are encouraged. “Convenience, policy, necessity, justice, all unite in favor of such an amicable settlement.” Krutz v. Faught, 204 Ark. 1036, 166 S. W. 2d 655 (1942). Settlement by parol agreement is valid on the principle that the agreement does not pass real estate from one party to another; it merely defines the boundary lines to which the respective deeds extend. Sherman v. King, 71 Ark. 248, 72 S. W. 571 (1903). Mutual concessions by the parties are sufficient consideration. Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723 (1910).
In the fact situation before us, we find a state of uncertainty as to the true boundary line; that there was a bona fide dispute as to its location; and that the parties agreed on a dividing line. The beginning and ending points were marked. Labor and materials were advanced by the parties. Installation of the fence was started and posts were erected extending more than 300 feet.
Restatement, Contracts, § 196 (1) reads as follows: “An oral agreement between owners of adjoining tracts of land fixing a dividing boundary the location of which was honestly disputed, ceases to be within Class IV of § 178 [Statute of Frauds] and becomes enforceable when the agreed boundary has been marked or has been recognized in the subsequent use of the tracts, or when other action has been taken by either party in reliance on the agreement(Italics supplied.)
In Sherman v. King, 71 Ark. 248, 72 S. W. 571 (1903), there was an oral agreement as to a disputed boundary line. All elements of the agreement were performed except the removal “of that portion of the boundary fence that did not conform to the line estab lished between them by this agreement.” This court held that Sherman could hold King to the agreement if he could prove that the land which Sherman sought to recover by suit was within the lines established by the agreement. The case was reversed for lack of sufficient proof on that point; however, this court’s pronouncement became the rule of the case on remand.
In Garvin v. Threlkeld, 190 S. W. 1092 (Ky. 1917), it was said:
“While the validity of parol agreements to settle disputed boundaries was long resisted on . the ground that, in effect, they passed the title to real property without the solemnities required by the statute, it is now settled that, where the dividing line is uncertain and there is a bona fide dispute as to its location and the parties agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions of the law that regulate the manner of conveying real estate.”
The performances by the parties, which we have enumerated, bring the case within the law just recited. Therefore Smith could not rescind the contract by abandoning the construction of the fence.
Affirmed.
Harris, C. J. and Fogleman, J., dissent. | [
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George Rose Smith, Justice.
This is a condemnation suit in which the Highway Commission is taking 3.18 acres out of an 8.7-acre tract owned by the appel-lees. At the trial the condemnor’s theory, supported by the testimony of its expert witnesses, was that the con struction of the proposed highway would enhance the value of the uncondemned portion of the Hamhuchens’ tract to such an extent that they would actually benefit by the taking. The jury rejected that theory, fixing the landowners’ just compensation at $30,000. The Commission urges two points for reversal.
First, it is contended that the court erred in refusing to allow the Commission to introduce an option contract, which had expired before the date of trial, by which Humble Oil & Refining Company had paid $400 to the Hambuchens for an option to purchase the 8.7 acres for $85,000. The agreement was executed on May 20, 1966, which was less than three weeks before this condemnation action was filed. It is evident that the parties anticipated the condemnation, for the contract provided that if any part of the premises had been condemned before the sale was consummated, the Ham-buchens would assign to Humble the right to receive any condemnation award that might be made.
We find it necessary to explain at what stage of the trial the condemnor sought to introduce the option agreement. The landowners, having the burden of proof on the issue of value, rested their case after having produced only two witnesses. Both were experts in appraising real estate. One testified that the value of the tract before the taking was $85,750 and that the value of the remainder after the taking was $43,650. The other put the before and after values at $85,300 and $43,000.
The Commission opened its defence by calling Hambuchen himself as its initial witness. Counsel first elicited the information that Hambuchen had paid $16,-000 for the 8.7-acre tract, acquiring it by three separate purchases made in 1955, 1961, and 1962. Counsel then offered the Humble option contract, which Hambuchen and his wife admittedly had signed. Upon objection the court ruled that the contract was not admissible, for the reason that Humble had allowed it to expire before the date of trial.
The Commission’s attorneys readily concede that ordinarily offers to purchase are not admissible. As we pointed out in Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621 (1960), isolated offers to purchase are mere hearsay declarations of third persons, not made under oath and not subject to coss-examination.
Here, however, the Commission insists that the option contract was admissible to prove its theory that the condemnation and highway construction actually benefited the landowners. We are not certain that we fully understand the appellant’s argument. To avoid any possibility of misstatement we quote the essential language in its brief:
Obviously, the appellant’s purpose in calling Mr. Hambuchen as its witness was to put evidence before the jury of enhancement to the remainder of the appellees’ land after condemnation. The option which the Hambuchens had given to Humble Oil Company was a vital part of this proof. The enhancement would have been very obvious to the jury had they known of the option. Mr. Hambuchen had purchased land. a few years prior to the condemnation proceedings for a total amount of $16,-000.00 which could now be sold to Humble Oil Company for $85,000.00, a difference of $69,000.00. An investment of $16,000.00 for a total of 11 years with a net return of $69,000.00 is a tidy profit indeed. The fact that the Arkansas State Highway Department is constructing an Interstate Highway near Mr. Hambuchen’s land has made him $69,000.00 richer, yet the trial court ruled that it would be prejudicial to introduce such testimony....
Appellant should have been allowed to elicit testimony from Mr. Hambuchen about the option which he had entered into with Humble Oil Company for $85,000.00. Such testimony is admissible in an eminent domain proceeding as an admission against interest. ...
It can easily be seen bow inflated offers could be conjured up by a landowner who wanted to inflate the value of his land in a condemnation proceeding. But a bona fide offer of a substantial amount by a substantial corporation could hardly be falsified, and in this case the existence of the option was admitted by the landowner and a copy introduced of record. The exclusion of evidence as to the option ... constituted reversible error and was highly prejudicial to the appellant’s theory of enhancement.
There are two patent defects in counsel’s train of reasoning. One, the option agreement, standing alone, had no tendency to prove that the enhanced value of the land was attributable to the proposed construction of the highway. The only two preceding witnesses had said that the construction actually damaged the Hambuchens by more than $40,000. The Commission’s expert witnesses had not yet taken the stand. We fail to see how the jury could have inferred from the naked option contract that the enhanced value was attributable to the interstate highway.
Two, counsel’s entire argument plainly rests on the assumption that the jury were entitled to conclude from the contract that Humble valued the land at $85,000. Why else would counsel say that “a bona fide offer of a substantial amount by a substantial corporation [there is no proof to that effect] could hardly be falsified”? Yet, as we have already seen, the contract was not competent proof of Humble’s evaluation of the land, being neither under oath nor subject to cross-examination.
We are not convinced by the suggestion that the option agreement was admissible as a declaration by the Hambuchens against their interest. That might be true if they were contending that the 8.7 acres were worth substantially more than $85,000. In that event it would doubtless be proper for the Commission to prove that they had shown their willingness to sell for a much smaller figure. For instance, in Hersey v. Merrimack County Mut. Fire Ins. Co., 27 N. H. 149 (1853), the owner contended that an insured dwelling house had been worth $600. The court rig’htly permitted the defending insurance company to prove that shortly before the house burned down the plaintiff had offered to sell it for $250. That offer, when laid beside the plaintiff’s trial testimony, was clearly a declaration against his pecuniary interest. There is, however, no parallel in the case at bar, for Hambuchen expressed no opinion about the value of his land before the taking, and his witnesses gave substantially the same figure as that contained in the option.
The Commission’s second point for reversal is that the court erred in instructing' the jury that the Commission had the burden of proving that the highway had enhanced the value of the property remaining after the taking and that the benefits were of a special and peculiar nature, not shared by the general public. We have so held; so there was no error. Martin v. Raulston, 239 Ark. 769, 394 S. W. 2d 133 (1965).
Affirmed.
Byrd, J., dissents. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Carmon Cain, 52 years of age, was an employee of Reynolds Metals Company, working at the Jones Mills plant near Malvern. On April 3, 1964, Cain was tightening electric bar nuts on an ore pot in the plant when he began to experience pain in his chest and arms, finally being forced to stop the work which he was doing. He continued to experience pain during the night, and consulted a physician the next day, following which he was hospitalized for three weeks. On August 31, Cain returned to work, and remained on the job until September 22, when, because of chest pains, he was forced to quit. A claim for benefits was filed, but the referee held, that, though the claimant was disabled, the disability did not arise out of his employment. Upon appeal to the full commission, the referee’s decision was reversed, and the commission awarded disability benefits for permanent and total disability. On appeal to the Hot Spring County Circuit Court, the judgment was affirmed, and from that judgment, appellant brings this appeal. It is urged that there is no substantial evidence to support a finding of an accident arising out of and in the course of the employment, and that there is no substantial evidence, to support the finding that claimant’s present disability is a result of the employment.
It is appellant’s contention that appellee’s attack was due to pre-existing arteriosclerotic heart disease, and his work had nothing to do with precipitating the attack. It is true that Cain was suffering from arteriosclerosis, and there is no dispute in the medical testimony on that point. The test, however, is whether the work that appellee was doing aggravated the pre-exist-ing condition to the extent that it (the work) was a factor in bringing on the attack. Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489. Numerous cases hold in like manner. The commission set out pertinent facts, as follows:
‘ ‘ The claimant testified that on the two days preceding April 3, 1964, he had been running a jack hammer and that he experienced pain during this two day period. On the morning of April 3rd, he was tightening electric bar nuts on an ore pot located on the production line when he again experienced pain in his chest and arms which forced him to stop work.”
The record supports the above statement.
Dr. Philip Cullen, who had examined the claimant and taken an electrocardiogram, testified that on the basis of the electrocardiogram, the history, and other physical findings, Cain suffered a myocardial infarction in April, 1964. He stated that the exertion on the job placed demands upon Cain's heart which could not be met by the diseased arteries. The doctor, in a letter of January 30, 1965, stated that the myocardial infarction “was aggravated and precipitated by his activities that day [April 3]. A pre-existing relative coronary insufficiency might well have been aggravated by this type of activity involving a high energy cost. In this case there would be a definite connection between his job activities and the occurrence of an acute myocardial infarction in Api’il of 1964.” Dr. Cullen testified that the blood delivered'by the narrowed artery vras adequate for rest, but not for hard work.
“Well, it would have to be that he was there on the job performing certain duties because I think his arteries at that time were good enough for him to be home sitting in a chair and I don’t think if he had he would have experienced the trouble on that particular day at that particular time.”
The witness testified that an infarction implies permanent damage to the heart muscle itself, and that the attack suffered on April 3 was a component of the present disability. He stated that at the time he examined Cain (January, 1965), appellee had about “70% to the body as a whole permanent partial disability.” He attributed 50% of this to the infarct.
Dr. Walter O’Neal, a Little Rock internist, who examined Cain, took a history, did an electrocardiogram, and made other tests, stated that Cain had “pre-existing arteriosclerotic heart disease and that he was working at strenuous activity at the time that his last coronary occurred and that it was my opinion that there was a direct causal relationship between this activity and his myocardial infarct. * * *
“Well, to put it simply, physical stress requires more nutrition to the heart muscle by the way of blood flow than does the heart at rest. If the heart is inadequately supplied, then there occurs an area of ischemia, that is, an inadequate blood supply. This, in turn, produces an irritable area and the blood vessel itself, of course, which is ischemic will go into spasm.’’
Dr. Alfred Kahn, Jr., disagreed, being of the opinion that Cain’s exertion did not have any effect on the underlying arteriosclerosis. He stated that he did not believe that the work activity contributed to the occlusion, though it was conceivable.
It can readily he seen that there was substantial evidence to support the finding by the commission, and, of course, that means we will not disturb the commission ruling. Reynolds Metals Company v. Robbins, supra. Actually, appellant’s brief appears to he mainly directed to a criticism of past holdings in heart cases. Appellant states:
“Apparently, the Court now interprets the Act to include as accidental, within the meaning of the quoted provision, any heart attack which occurs on the job.”
Of course, we do not know how a doctor would be able to say that the same result would have occurred— or would not have occurred— if the worker happened to he loading his boat with heavy equipment for a fishing trip. But here, Dr. Cullen did state that this man’s work aggravated — and thereby hastened — the occlnsion. Certainly, we have not held that any heart attack occurring on the job is compensable. For instance, only a few weeks ago (October 16, 1967), in Ottenheimer Brothers Manufacturing Company v. Casey, we denied compensation in a heart attack case, the claimant testifying that the attack occurred on the job. A reading of that case will disclose important distinctions from the case at bar.
However, in a long line of cases, too numerous to recite here, we have constantly held that we will not reverse the commission if there is substantial evidence to support its findings. This is an established rule (and the general rule over the nation), and, if it is to be changed, legislative action by our General Assembly will be required.
In line with the reasoning herein set out, the judgment of the Hot Spring County Circuit Court is affirmed.
Additional medical evidence was presented to the full commission, viz., depositions of Dr. Leeman H. King, Dr. Walter H. O’Neal, Dr. Philip T. Cullen, and Dr. Alfred Kahn, Jr.
He also testified that the coronary artery disease became evident in June, 1956, with the onset of an acute myocardial infarction.
This refers to Ark. Stat. Ann. § 81-1302 (d) (Repl. 1960), defining “injury.” | [
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Lyle Brown-, Justice.
This is a tort case arising out of an intersection collision between an ambulance and a passenger car. Appellees, plaintiffs below, occupied, the ambulance; they recovered judgment against Clint Walden, appellant, who was driving the passenger car. Campbell-Bell, Inc., owner of the car driven by Walden, intervened to recover property damages from Harold. Bay Hart, the ambulance driver. Campbell-Bell was denied recovery. The principal issue on appeal concerns the attack by appellants on the constitutionality of our statute which vests in the chief of police the power to authorize or designate certain ambulances as emergency-vehicles.
Harold Bay Hart, owner and operator of the ambulance, was carrying a heart patient from Westville, Oklahoma, to Veterans Hospital in Fayetteville, Arkansas. The vehicle was equipped with the statutory siren and mounted flashing lights. Appellee Bather was riding in the ambulance and seated beside the patient. At the intersection of College Avenue and North Street in Fayetteville, Hart was faced with a red light. Hart was proceeding through the red light, using his siren and flasher signals. Walden entered the intersection at about the same time from North Street, intending to drive across College Avenue. The vehicles collided in the southeast quadrangle of the intersection, Hart’s lane of travel. The chief of police of Fayetteville testified he was aware that Hart regularly brought patients to Fayetteville and the chief considered Hart’s ambulance an emergency vehicle. He had not been requested to specifically designate it an emergency vehicle but the chief testified he recognized it as such.
Appellants timely challenged the validity of Ark. Stat. Ann. § 75-402(d) (Bepl. 1957) which defines authorized emergency vehicles as follows:
“Vehicles of the fire department (Fire-Patrol), police vehicles, and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorised by the (commissioner) or the (chief of police of an incor porated city).” (Italics supplied.)
The recited provision is a part of the Uniform Motor Vehicle Code. The italicized portion of the act would fall if appellants’ contention of unconstitutionality is sustained.
We are aware that an act of the Legislature is presumed constitutional and should he so resolved unless it is clearly incompatible with the constitution; and that any doubt must be resolved in favor of constitutionality. Hickenbottom v. McCain, 207 Ark. 485, 181 S. W. 2d 226 (1944).
Under our constitutional doctrine of separation of powers the functions of the Legislature must be exercised by it alone. That power cannot be delegated to another authority. Ark. Const. Art. 4. Oates v. Rogers, 201 Ark. 335, 144 S. W. 2d 457 (1940). Had the Legislature, in delegating the power to the chief of police or state motor vehiclp commissioner, afforded reasonable guidelines, we would have a different situation. That is because the Legislature may delegate “the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend.” State v. Davis, 178 Ark. 153, 10 S. W. 2d 513 (1928). But here the Legislature gave to the named authorities an unbridled discretion and that is fatal to the italicized provision of § 75-402 (d).
The motor vehicle code of the City of Dallas, Texas, contained a provision identical with our § 75-402 (d), except that it does not use the word “commissioner.” The Texas Supreme Court invalidated that section of the Dallas code insofar as it pertained to the power of the chief of police. Walsh v. Dallas Ry. & Terminal Co., 167 S. W. 2d 1018 (1943). That decision was based on the fact that no standard was set to guide the chief in administering his duties.
Typical of valid legislation in this field is an ordinance enacted by Utica, New York, and discussed in Rizzo v. Douglas, 201 N. Y. S. 194 (1923). That ordinance made it unlawful to operate a taxicab in Utica without first having secured a license approved by the commissioner of public safety. The court said if the ordinance had stopped at that point, the attack of unconstitutionality “would be of great force.” However, the ordinance set up these guidelines for the commissioner:
“The applicant must satisfy the said commissioner of public safety that he is over eighteen years of age; of good moral character; competent to drive a motor vehicle upon the streets of the city of Utica and has a thorough knowledge of the laws of the state of New York affecting or regulating the operation of motor vehicles, the traffic ordinances of the city of Utica and of this ordinance.”
In California State Automobile Ass’n. Inter-Insurance Bureau v. Downey, 216 P. 2d 882 (1950), the state insurance commissioner suspended appellant’s license to write automobile liability insurance in California. There the Supreme- Court said:
“There can be no doubt that it is the law that a valid statute cannot delegate unlimited powers to an administrative officer and that, to be valid, the statute must provide an adequate yardstick for the guidance of the executive or administrative body or officer empowered to execute the law.”
There are two situations in which the “guidelines rule” is substantially liberalized: first, when it is difficult to lay down a definite or comprehensive rule; and secondly, when the administrative officer is dealing with matters involving public morals, health, safety, and general welfare. But a statute or ordinance which “reposes absolute, unregulated or undefined discretion in an administrative body will not be upheld.” City of Florence v. George, 127 S. E. 2d 210 (S. C. 1962). See 12 ALR p. 1435 and 92 ALR p. 400.
■Since § 75-402(d) obviously provides no standards for the chief of police or commissioner, appellees point to Ark. Stat. Ann. § 75-725(b) and (c) (Supp. 1967). There it is required that emergency vehicles be equipped with a siren, whistle, or bell, and that certain other emergency vehicles mount on top of the car two alternately flashing red lights. Those are all the special requirements cited us which are imposed on emergency vehicles. To say that those two provisions establish sufficient standards for the licensing of an emergency vehicle is unreasonable. Certainly a competent administrative officer would take those two statutes into consideration in evaluating an application for a permit. But what other factors are to be considered by him? The legislation does not answer that question. That vacuum creates the constitutional defect.
The practical danger created by the absence of legislative standards is exemplified in this case. The chief of police at no time made a cheek of this ambulance. He was not aware of any affirmative responsibility reposed in him. He merely “considered” Hart’s ambulance as an emergency vehicle because (1) his ambulance was equipped with red lights and a siren, and (2) he knew Hart brought patients to Fayetteville hospitals. What about other factors so essential to protect the public from the inherent dangers of an emergency vehicle? For example, consider those essential standards quoted from the Rizzo case. Our statutes give no authority to the chief to ascertain any facts about the age of the driver, his character, his competency as a driver, or his knowledge of traffic laws.
Appellees argue that some nineteen other states and numerous municipalities have the same provision as our § 75-402(d) and that, excepting Texas, its constitutionality has never been attacked. However, a review of many statutes and cases in other -jurisdictions reveals that their legislatures have, in numerous instances, supplemented their statutes with additional safeguards that remove the constitutional infirmity found in our situation.
Arkansas adopted the Uniform Motor Vehicle Act, with some modifications, in 1937. Since that time it has been substantially amended by our Legislature to keep abreast of changing conditions. In the pocket part of Uniform — Act, § 1, 11 U. L. A., is found this statement: “The uniform and model acts constituting this volume were declared obsolete or were withdrawn by the National Conference of Commissioners on Uniform State Laws in August 1943.” That is understandable because the Uniform Motor Vehicle Code is of 1930 vintage. We point up these facts to show that the original act is not entitled to veneration. Our § 75-402(d) was in the code as first adopted.
In view of a possible retrial we shall briefly consider objections made by appellants to the giving, and refusal to give, certain instructions.
(1) Campbell-Bell asked for two instructions covering its theory that the driver Walden was a gratuitous bailee. Walden regularly drove the corporation’s car from work to his home, where he kept it overnight. We have examined those instructions and find them to be confusing and not understandable. Siee our per curi-am order of February 1, 1966, and reproduced inside the front cover of AMI. Had proper instructions been offered on that point we think they should have been given.
(2) The trial court gave AMI 2219, “Present Value — Definition.” That term was not used in any instructions, hence the instruction was inappropriate.
(3) Campbell-Bell requested, and was refused, AMI 701, “Agent — Employee—Definition.” Since the jury was called upon to decide the scope of Walden’s activities as they related to his employer, it would have been proper to give that instruction. AMI 702 and AMI 703 were given.
The effect of our holding that portion of § 75-402(d) which we italicized to be unconstitutional is to place Harold Ray Hart’s vehicle in the category of a private ambulance. See Buck v. Ice Delivery Co., 29 P. 2d 523 (Ore. 1934).
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John A. Fogleman, Justice.
These appeals by three codefendants are from adverse judgments in favor of appellees for alleged personal injuries sustained in a motor vehicle collision. At the time of the incident out of which the action arose, appellees, husband and wife, were passengers on a bus of appellant Midwest Bus Lines, Inc., driven by appellant T. 0. Tyler. A collision, on the night of December 17, 1966, between the bus and an automobile owned and operated by appellant Larry Cooper gave rise to the litigation. -
Appellees’ cause of action against Midwest was based on allegations that Tyler was driving at such a high rate of speed that he was unable to swerve the bus in order to avoid the collision; that he was not keeping a proper lookout; and that he failed to slow down, stop or swerve to avoid the impact. Their allegations as to Cooper were that he drove his vehicle into the proper lane for the bus which was proceeding in the opposite direction from that Cooper was traveling and that he failed to regain control of his vehicle and bring it back into its proper lane. Each of appellees sought recovery for physical pain and suffering and mental anguish, permanent partial disability, and past and future medical expenses.
•Cooper denied the allegations of negligence as to him and alleged .that any injuries suffered by appellees were caused by negligence of Tyler. Tyler and Midwest denied all allegations of appellees, but alleged that any injuries suffered by appellees were caused by the negligence of Cooper. They asserted that this consisted of his driving at an excessive rate of speed across the center line of the highway into the lane where the bus was properly proceeding and his failure to keep his vehicle under control, to keep a proper lookout, and to yield the right-of-way to the bus. They asked judgment against Cooper in the amount of any recovery against them, and Midwest cross complained, seeking recovery for damages to the bus. Cooper denied liability to the bus company and asked judgment over against the company for indemnity or contribution.
The case was submitted to a jury upon interrogatories. Responses of the jury showed that it found Cooper guilty, and Tyler not guilty, of negligence which was a proximate cause of the occurrence. It found Tyler guilty of failure to use the highest degree of care for the safety of appellees. It allocated responsibility for appellees’ injuries — 60% to Cooper and 40% to Tyler. It found the damages of appellee Jeff Williams to be $20,-000, those of appellee Lola Williams to be $30,000, and those of the bus company to be $534.67.
Appellants Tyler and Midwest moved for an order directing that judgment be entered upon the verdict or that the special verdicts be set aside. Their motion was based upon contentions that responsibility for the occurrence should not have been apportioned by the jury and that appellees’ complaint should be dismissed as to them upon the jury’s findings, or, in the alternative, that they should have judgment against Cooper for any sums assessed against them in favor of the appellees. They also asked, alternatively, that the verdicts be set aside for inconsistency.
Cooper likewise moved for entry of judgment or the setting aside of the jury verdicts for inconsistency. He contended that judgment aganst him should be limited to 60% of the damages to the other parties.
The judgment entered allowed recovery of $12,000 from Cooper and $18,000 from Tyler and Midwest by Lola Williams. It awarded Jeff Williams $8,000 from Tyler and Midwest and $12,000 from Cooper. It provided that Midwest have full recovery from Cooper for the damages to its bus.
Midwest and Tyler appealed from the judgments against them. Cooper appealed only from the adverse judgments in favor of the Williamses. Tyler and Midwest rely upon five points for reversal. Cooper asserts four. We will discuss those necessary to our decision on these appeals, together with any which may be pertinent on the retrial ordered.
The first ground for reversal urged by Tyler and Midwest is the failure of the trial judge to direct a verdict in their favor. The evidence showed that Cooper was driving a Chevrolet automobile east on Highway No. 64 and that the bus was going west when they collided on a sharp “S” curve on a steep hill about six miles west of Ozark. There is actually a series of three sharp curves in close succession. After the collision, skid marks, debris and dirt were found over an area covering five or six feet on the pavement, centered about two feet north of the center line, with pieces scattered over the line.. The Chevrolet, a total loss, was found 192 feet east of the debris in the highway, severely damaged on the left side from front to rear. The bus sustained damage to the left front and left side. The damage to the left front extended from a point about six inches to one foot left of the front headlight to the left corner and that to the left side extended from this corner three or four feet toward the rear of the bus. There were a white center line and double yellow lines extending the entire distance of the curve and hill. Skid or “scuff” marks on the pavement extended a distance of 12 feet from the south lane across the center line into the westbound lane where the debris was lying. There were no other skid marks. The curve in the direction in which the bus was traveling was to its left. For eastbound traffic there is a fairly “steep” curve, to the right just before the point where this collision occurred. The investigating officer testified that scuff marks are generally caused by rear wheels of a vehicle and result from a cutting of its wheels while it is proceeding around a curve at a high fate of speed so as to cause the vehicle to slide. The bus was found by the officer 50 feet from the debris but the driver had pulled the bus up and backed it off the highway before his arrival.
Jéff Williams testified that he was watching traffic as he sat in the second seat back of the driver. His wife was asleep in the seat beside him. While he estimated the speed of the bus to be between 70 and 75 miles per hour at the time of the collision, his estimate was based entirely on the fact that the driver “had his motor revved up.” He did not know what gear the bus was in or whether it was going uphill or downhill or traveling on a level or straight stretch. After he saw the lights of the approaching car through the bus windshield, the collision happened so quickly he did not have time to do anything or say anything to his wife or even to brace himself. He knew that either the bus or the car was over too far, but he couldn’t tell which. He further testified that for a time before the collision, he could not see the terrain or telephone poles out the window. Earlier he had been able to see “passing lights” along the way and the bus was passing them pretty fast. He had no way-of knowing how fast the car was coming, but he said that it was at a high rate of speed and its headlights “came up there pretty quick.” After he felt a bump and heard a noise, he saw Tyler wrestling with the wheel trying to get the bus stopped. There is some uncertainty whether his estimate of the distance required to stop the bus after the collision was 30, 40 or 50 feet, or 30', 40 or 50 steps. He could only see the back of the head and shoulders" of the driver before the impact, but Tyler was looking out the front of the bus and his head was straight ahead. He could only guess that' a lookout was being kept ahead because the driver followed the road from Morrilton to this point past Ozark.
Since these appellants offered evidence after their original motion for a directed verdict was overruled, we must give consideration to any such evidence as may be favorable to appellees in determining whether a verdict should have been directed at the conclusion of all the evidence. Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S. W. 2d 1. In addition to the testimony of Tyler, these appellants offered that of two passengers on the bus as to the cause of the collision. These witnesses located the bus in its proper lane at all times. One of them was sitting on the front seat with a clear view of the road ahead. He testified that the speed of the bus could not have been over 50 miles per hour and that the Cooper vehicle was only 50 or 60 feet ahead and two or three feet over the center line when he observed it. It appeared to him at first that the Cooper car would get back. He further stated that the lapse of time from the time he saw the car until the impact was “very, very fast, a couple of seconds.” He said-there wasn’t really enough time for the driver to do anything but the driver did try to get out of the way the last second. The other passenger said that the bus was going uphill at a speed which could not have been over 50 miles per hour.
Tyler estimated his speed -at 40 to 45 miles per hour and that of the Cooper car at 80. Cooper estimated his own speed at 45 miles per hour coming downhill and that of the bus at 60. Cooper first saw the bus when it was 8 or 10 car lengths from him just prior to going into a curve. He said that when he first saw the bus, it looked as if the driver was setting himself up for the curve, cutting over to his left some. Cooper thought that his own car was pretty close to the center line, but did not feel that it was across it. He stated that “apparently the bus was over the center line.”
Appellees’ contention that the evidence presented a jury question is founded entirely upon the basis that the evidence as to speed of the bus was controverted. The necessity for so confining their argument is obvious, because reasonable minds could not have come to any conclusion except that the Cooper car was at least across the center line when it came into the vision of the bus driver so suddenly and at such a short distance away that Tyler was helpless to do anything to avoid the collision. A directed verdict in favor of Midwest should have been granted, since whether the bns was going 45 miles per hour or 70 miles per hour, its speed could not have been a proximate cause of appellees’ injuries. According to the testimony most favorable to appellees, the vehicles became visible to each other at a distance of approximately 100 feet. Assuming that Tyler saw the dangerous situation at the first possible moment, he would still not have had sufficient time,to avoid the collision, or even to react, as the vehicles were approaching each other at a speed of at least 132 feet per second. Thus the testimony of Jeff Williams as to speed would not afford a sufficient basis to support a jury verdict against these appellants for failure to exercise that degree of care with which' they are charged. It is clear that a verdict should have been directed in favor of Midwest for the reason that reasonable minds could only conclude that there was no breach of the duty to exercise the highest degree of care. Where, as here, reasonable minds can only come to one conclusion, we have no alternative to a reversal of the lower court on this point. Kansas City Southern Ry. Co. v. Bull, 120 Ark. 43, 179 S. W. 172; Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399, S. W. 2d 658. Since the ease has been fully developed in this respect, it will be dismissed as to Tyler and Midwest, so we need not consider other points raised by them.'
We also find it necessary to reverse the trial court on appellant Cooper’s contention that the court erred in instructing the jury to consider future medical expenses, future loss of earnings, and permanent disability as elements of damages to appellees. The' only evidence relating to any of these elements was. the testimony of Dr. Thomas H. Hickey, who examined and treated appellees and testified in their behalf. While Dr. Hickey stated that he thought Mr. Williams had a permanent disability resulting from this accident, he repeatedly and persistently stated that he would prefer that a greater period of time elapse before he was called upon to state an opinion as to the extent of this disability. After stating his estimate, based upon the time that had elapsed, he stated that this percentage might change as time passed. He was unable to tell how long Mr. Williams would require treatment. On cross-examination he agreed that it was really too early to base an accurate medical opinion as to any permanent partial disability and that whatever opinion he stated would be a sort of qualified medical guess.
With reference to Mrs. Williams, the doctor stated that in his experience a cervical sprain injury, suffered by Mrs. Williams, would he fairly permanent if healing did not occur by 9 to 12 months. (The trial was approximately three months after the collision.) He also stated that a greater period of time should elapse before an evaluation of her disability was made. He said that he would prefer for the healing period to end in order to give an accurate medical opinion as to the possibility of her permanent disability and that there w;as a possibility that she would not have any. On cross-examination he stated that his evaluation was a medical guess on his part.
Finally, on cross-examination, these questions and answers were propounded and given:
“Q. Now, in order to properly evaluate their condition, particularly with reference to a medical certainty, don’t you feel professionally that you need additional time?
A. I do.
Q. And is it not true, Doctor, that any evaluation which you now make in the absence of the opportunity for additional treatment and examination is pure speculation?
A. It is speculative.”
In Missouri Pacific Transp. Co. v. Kinney, 199 Ark. 512, 135 S. W. 2d 56, this court said of these elements of damage:
“Before such a recovery can be allowed, the permanency of the injury must be made to appear from the evidence with reasonable certainty and that future pain and suffering are inevitable and if they appear to be only probable or uncertain they cannot be taken into the estimate.”
The court also quoted from the opinion in St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104, as to the propriety of the jury’s considering such elements upon evidence of this nature. A part of this quotation is:
“The experts on behalf of appellee did not testify that, in their opinion, the injury to Wharton Bird was permanent. It was a matter of speculation with them as to whether it was permanent or not. This being true, it must also have been only a matter of conjecture with the jury. But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to find that such was the fact; and the court should not allow the permanency of the injury to be considered as an element of damage, where the witnesses themselves are uncertain as to whether there would be any permanent injury, and where the nature of the injury, per se, does not show that the injury was permanent. ’ ’
If there is any difference in the medical testimony here and that in the Kinney case, the testimony there may have been less speculative. The testimony here falls far short of establishing these elements of damage to the extent required, particularly in view of the fact that both appellees were said by the physician to have had virtually identical symptoms prior to the collision.
We are unable to even estimate to what extent the jury considered these elements in their liberal assessment of damages, so the case will have to be remanded for retrial as to Cooper’s liability.
In view of this disposition, we need only mention one other point relied upon by appellant Cooper, since there is a possibility that the identical situation might arise. Cooper contends that the trial court erred in admitting testimony by him that he forfeited bond on a traffic violation charge arising out of this occurrence in violation of Ark. Stat. Ann. § 75-1011 (Supp. 1965). The testimony given, however, was not strictly responsive to a question asked Cooper on cross-examination. In answering a proper question as to whether he pleaded guilty to driving his car over the center line, Cooper responded: “Yes. I forfeited bond.” A plea of guilty to the charge would have been a declaration against interest, and interrogation of Cooper about it was permissible. Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758. Objection made, on behalf of Cooper, to the question was properly overruled. The court was not called upon by this appellant to make any ruling upon the voluntary answer given by appellant, to give any admonition to the jury, or to dó anything at all, so no error was committed by the trial court. Furthermore, appellant cannot complain of errors which he himself committed. Wallace v. Collins, 5 Ark. 41, 39 Am. Dec. 359; Sithen v. Murphy, 12 S. W. 497 (Ark. 1889); Scott v. McCraw, Perkins & Webber Co., 119 Ark. 133, 177 S. W. 901; Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S. W. 17; Withem v. State, 175 Ark. 453, 299 S. W. 739; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; Burton v. State, 204 Ark. 548, 163 S. W. 2d 160.
Reversed and dismissed as to Tyler and Midwest Bus Company. Reversed and remanded as to Larry Cooper. | [
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Battle, J.
W. S. Knox was indicted in the White circuit court, at the January term thereof, 1885, under Section 5872 of Mansfield's Digest, for a failure to comply with the requirements of Section 5862, which says :
“Justices of the peace, city judges, police judges, recorders, and-all other municipal, township or county officers shall, semiannually, on or before the first day of the circuit court, at each term thereof, file in the office of the clerk of the circuit court of their respective counties, an official transcript of all fines, penalties and forfeitures, adjudged by them against defendants in their courts, giving the style of the case, the full names of the parties, and amount of the judgment, if any, in each case, and the name of the officer collecting the same.”
The parties, by consent, waived a jury and submitted the law and facts to the court, upon an agreed statement of facts, in the words and figures following:
“ It is agreed, that the defendant was justice of'the peace until the September election for 1884, when he was defeated, and his successor was in due time qualified'as such justice, from the date of his commission-—-from the 30th day of October, 1884—to whom defendant immediately turned over and surrendered his docket, with all judgments and entries thereon, and had no further control thereof; and at the January term of the White circuit court he was not a justice of the peace, or authorized to do or perform any official act as such; but that before the qualification of his successor, and since his report at the July term of this court for 1884, he tried some one or two criminal cases, which he has not reported, and made no report at the succeeding January term, as he did not regard it as his duty to do so, as his docket had passed into the hands of his successor and he was no longer justice of the peace.”
The court found the facts in accordance with the agreed statement of facts, except that it found that after the July term of the White circuit court of 1884, and before the 30th day of October, 1884, appellant, in his capacity of justice of the peace, tried one or more cases of misdemeanor, in which the defendants were convicted and fined.
And the court declared the law as follows:
“The fact that the defendant’s official term expired before the January term, 1885, of the circuit court, did not excuse him from filing an abstract of the misdemeanors tried before him between the date of his July report and the date of his retiring from office. It was his duty to have filed an abstract of cases tried between said dates at the time his official term closed, or at least on or before the succeeding term of the circuit court.”
The court found the defendant guilty and imposed on him a fine of five dollars ; and he filed a motion for a new trial, which was overruled, and he appealed.
The court erred in its finding of the facts. There was no evidence that the defendants in the criminal cases tried by appellant, or any of them, were convicted, or that there were any fines imposed by appellant while acting as justice of the peace.
The object of the statutes, under which appellant was indicted, was to enforce the collection and payment of all fines, penalties and forfeitures adjudged by justices of the peace and other officers named in the statutes, against defendants in their respective courts. B'or this purpose an official report of such fines, penalties and forfeitures, made out in the manner prescribed by the statute, is required to be filed by such justices and other officei's, on or before the first day of each term of the circuit court. The county clex'k is required to audit the accounts of constables and other collecting officers, and to charge them with the amount of fines, penalties and forfeitures adjudged against defendants in justices’, city, police or other courts in the county, excepting only circuit courts, according to the official report of such fines, penalties and forfeitures on file. The clerk is prohibited from crediting constables and other collecting officers with any deficits as to fines and penalties, unless they show the death of the party against whom the fine or penalty was adjudged, or that imprisonment, in default of the payment of the fine, has been enforced in accordance with the provisions of the criminal law. The county clerk is required to furnish the prosecuting attorney, at the commencement of each term of the circuit court of his county, with a written statement of all -deficits of constables and other collecting officers, on account of fines, penalties and forfeitures; and it is made the duty of the prosecuting attorney to bring suit against the defaulting constables and collecting officers and their sureties for the deficiency due, and also to prosecute said officers by indictment for, malfeasance in office. The failure to comply with any of these requirements by any of the officers named is made a misdemeanor, punishable, on conviction, by a fine not Exceeding five hundred dollars, and removal, from office. Mansf. Digest, Secs.. 5862, 5866, 5872.
In this case the appellant was a justice of the peace of White county. The White circuit court was required,to be begun and held on the third Mondays in January and July of each year. On or about the thirtieth day of October, 1884, appellant’s term of office expired an,d he delivered, his docket and official papers to his successor in office. . It was his duty, while in office and possession of his docket, to have made out an official report of all fines, penalties and forfeitures adjudged by him, in his capacity of justice of the peace, against defendants, after the July term of the White circuit court in the year 1884, in the manner prescribed by the statute. This he could easily have done. It was his duty to have filed this report with the circuit clerk of White county, on or before the first day of the January term of the White circuit court, in the year 1885, notwithstanding he was not in office after the 30th of October, 1884. The law making it his duty, empowered him to do so. If 'he failed he was guilty of a public offense, the penalty of which is a fine not exceeding five hundred dollars, and .removal from office. The expiration of his term of office did not wipe out the offense and relieve him of the penalty. While he cannot be removed from office, he can be fined. The object of the law, in fixing the penalty of the offense, has only been accomplished in part. He is still liable, on conviction, to a fine not exceeding five hundred dollars.
Because the court erred in its finding of the factg, the judgment of the court below is reversed, and the cause is remanded with instructions to grant the appellant a new trial. | [
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Smith, J.
Peters sued Akin & Co. upon a book account. The defense was a novation of the contract, by which one Murray had, by and with the consent of all parties concerned, been substituted in their stead as the plaintiff’s debtor and themselves had been discharged from further liability. A jury having been waived, the court found the issue in favor of the plaintiff and gave judgment accordingly.
The facts, as agreed upon, were that the defendants, merchants in Texarkana, were indebted on open accoúnt to the plaintiff, who resided in St. Louis, in the sum of $72.55 due January 20, 1884, and in the further sum of $151.96, due February 23, 1884. On the 9th of January, 1884, the defendants sold their business and stock in trade to one Murray, who assumed all liabilities of the late firm. The plaintiff was immediately informed of this arrangement by the defendants, and also by Murray. He drew two bills of exchange on Murray for the several debts,' payable respectively at the dates when said indebtedness would mature, and Murray accepted them. The first draff was paid at maturity; but the second remains in the plaintiff’s hands unpaid. For, before it fell due, Murray’s creditors closed his store by the levy of attachments, and he is now insolvent. Immédiately upon Murray’s failure in business, and again upon non-payment of the last draft,, the plaintiff notified the defendants that he should look to them.
The'question is, who took the risk of Murray’s solvency, while the bill was running to maturity?
Dicta and adjudged cases are to be found in the reports, which go far to sustain the defendant’s contention. In Tatlock v. Harris, 3 Durnf & E., 180, Buller, J., puts the following case: “ Suppose A owes B ^100, and B owes C ^ioó, and the three meet, and it is agreed that A shall pay C the Y100; B’s debt is extinguished and C may recover that sum,of A.”
In Heaton v. Angier, 7 N. H., 397, Heaton sold Angier a wagon, and immediately thereafter Angier re-sold the wagon to Chase, who agreed to pay Heaton the purchase price, and Heaton agreed to take Chase for his debtor; and it was held that Angier was discharged.
Possibly this case may be explained by the fact that it was a sale of property and not the case of an antecedent debt; for a distinction is recognized between the two classes of cases. Thus in Clark v. Mundall, 1 Salk., 124; S. C., 12 Mod., 203, Lord Holt said, that if A sells goods to B, and B is to give a bill in satisfaction, B is discharged, though the bill is never paid, for the bill is payment; but otherwise a bill should never discharge a precedent debt or contract; but if part be received, it shall be only a discharge of the old debt for so much. See also to the same effect, Ward v. Evans, 2 Ld. Paym., 928; Whitbeck v. Van Ness, 11 Johns., 409; Jones on Pledges, Secs. 688, 691, and cases cited.
In Cadens v. Teasdale, 53 Vt., 469, the plaintiffs, having a claim against the defendant, agreed if he would procure one Oliver, his debtor, to give the plaintiffs a note at four months, they would take it in payment of so much of the defendant’s •account. The agreement was accepted and the contract was consummated. Oliver failed before the maturity of the note, and nothing was realized upon it. It was held, in a suit to recover of the defendant the amount of the original claim, that the loss by Oliver’s insolvency fell on the plaintiff.
Here, it appears, was an express agreement by the creditor to take a third person’s note as absolute payment of a preexisting debt. Or, if so much cannot ■ be gathered from the report of the case, we believe that in Vermont, contrary to the rule that prevails in England, and generally in this country, taking the note or bill of a third person for an antecedent debt is prima facie satisfaction, and precludes the creditor from en forcing the original demand, whether the new security is or is not honored.
In Dever v. Aiken, 40 Ga., 423, D. was indebted to F. for slaves, and F. was indebted to T. for land, and by agreement between the three D. gave his note to T., the amount of the two debts being the same. This was held, by a divided court, to be a novation, putting an end to both of the old debts, and creating a new one. But there was evidence that the transaction was an exchange of notes, D. giving up'the note he held against F., and F. giving up his note against T. This was thought sufficiently to evince the intention of the parties to substitute a new contract.
In the present case, the alleged substitution of debtors amounts to no more than taking the bill of a third party on account of a debt. Akin & Co. indicate to Peters a mode of payment. Peters, being willing to receive his money from anybody that-will pay, draws upon Murray in compliance with the implied request contained in the letters of Akin & Co., and of Murray himself. The source of payment provided having proved unproductive, Peters has the same recourse upon Akin & Co. as if they had sent him Murray’s note or acceptance, which had afterwards turned out to be'worthless. There is no evidence that Peters intended to release Akin & Co. The draft upon Murray and his acceptance were equivalent in legal effect to the receipt by Peters of a bill or note of Murray drawn to the order of Peters. Prima facie such an instrument is conditional, not absolute payment- It operates only as a collateral security. It does not take the place of the debt, but is placed in the hands of the creditor to make !him safe. And in the event of the non-payment of the security, the debtor remains liable for his own debt. If the transaction has any greater efficacy—as of course it may have by special agreement of the parties—it is for the debtor .to show it. Extinguishment of his own debt does not follow as a consequence, unless that was a part of the contract. Sto. Prom. Notes, 7 ed., Secs. 104, 389, 404, 408, 438; Tobey v. Barber, 3 Johns., 68; S. C. 2 Am. Lead. Cas., 5 ed., 245 and notes; The Kimball, 3 Wall., 37; Hunter v. Moul, 98 Pa. St., 13.
Affirmed. | [
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Jim Hannah, Chief Justice.
Appellant Howard Nash, individually, and as special administrator for the Estate of Roderick Nash, Deceased, appeals the order of the Pulaski County Circuit Court, Third Division, granting summary judgment in favor of appellees Brad Hendricks, Lamar Porter, and Brad Hendricks Law Firm, P.A. (collectively referred to as Hendricks Law Firm or law firm). On appeal, Mr. Nash argues that the circuit court (1) abused its discretion in refusing to permit a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits of a summary-judgment motion, where an evidentiary hearing had been requested, (2) erred in granting summary judgment as a matter of law in a legal-malpractice lawsuit where legal experts had submitted disputing affidavits as to the defendant lawyers’ breaches of the applicable standard of care, and (3) erred in granting Hendricks Law Firm’s motion for summary judgment on statute-of-limitations grounds. Although this case was originally filed in the court of appeals, we assumed jurisdiction of the case as it involves questions that arise under the power of the supreme court to regulate the practice of law. See Ark. Sup. Ct. R. l~2(a)(5). We affirm.
The facts underlying the case are as follows. Roderick Nash was a military serviceman who was injured in a motor vehicle accident while off his marine base in California. Roderick suffered severe injuries, including trauma to his brain. He was later transported to Arkansas for rehabilitation, diagnosis, and treatment.
On January 17, 1995, Roderick underwent a brain biopsy procedure at McClellan Veterans Administration Hospital in Little Rock. The procedure was performed by Charles Teo, M.D., and assisted by Anthony Russell, M.D. However, the brain biopsy was performed on the wrong side. After the biopsy was performed, Warren Stringer, M.D., interpreted radiological studies of Roderick’s brain. Subsequently, Howard and Zettie Nash, Roderick’s parents, were appointed as co-guardians of Roderick’s estate and retained the Brad Hendricks Law Firm to represent their son in a medical-malpractice lawsuit against Drs. Teo, ' Russell, and Stringer.
A medical-malpractice complaint naming Drs. Teo, Russell, and Stringer as defendants was filed in Pulaski County Circuit Court on December 31, 1996. According to the Hendricks Law Firm, the complaint was filed in Pulaski County Circuit Court to determine if the physicians were government employees or private physicians when they provided services at the VA. The law firm states that the complaint was not intended to file a federal-tort-claim lawsuit.
The lawsuit was later removed to the United States District Court, Eastern District of Arkansas, and in an order entered on August 11, 1997, the district court found that Drs. Teo andRussell were employed by the VA and were acting within the scope of their employment during the relevant time of the alleged medical malpractice. Accordingly, the district court concluded that the United States of America must be substituted as the proper defendant in the place of Drs. Teo and Russell. The district court then found that an administrative-tort claim had not been made to the VA, as required by 28 U.S.C. § 2675(a). Concluding that it did not have subject-matter jurisdiction over the United States, the district court dismissed the case. The district court also deter mined that it lacked jurisdiction over Dr. Stringer, who was determined to be a private physician, and remanded the case against him back to the circuit court.
The Hendricks Law Firm did not file an administrative-tort claim, nor did the law firm commence prosecution of the suit against Dr. Stringer. Instead, the law firm terminated its attorney-client relationship with the Nashes. In a letter to the Nashes, attorney Lamar Porter explained that the federal court had terminated the claims against Drs. Teo and Russell, based on the fact that they were employees of the federal government at the time of the alleged malpractice. Porter stated that the law firm saw no reason to appeal that decision and that if the Nashes desired to appeal, then they should contact another attorney. The letter also explained that the federal-court order of dismissal was entered on August 12,1997; thus, the Nashes would have thirty days from that date to appeal.
Additionally, Porter stated that the case against the radiologist, Dr. Stringer, was being sent back to state court. Porter stated that, because Dr. Stringer did not interpret the x-rays until after the biopsy had already been completed, the firm would be non-suiting the case in state court. Finally, Porter explained that the nonsuit would allow the case against Dr. Stringer to be refiled within one year in the event the Nashes hired another attorney to pursue the case.
The time for filing an administrative-tort claim subsequently lapsed. The Nashes then retained counsel to pursue a legal-malpractice lawsuit in Pulaski County Circuit Court and had a guardian appointed for Roderick. The suit was filed on August 5, 2004. Discovery was taken, and during that time, the Nashes learned that the circuit judge’s father had previously represented one of the appellees in a legal-malpractice lawsuit.
The Hendricks Law Firm filed a motion for summary judgment on February 8, 2006. The Nashes responded and later moved for recusal, requesting an evidentiary hearing and an opportunity to conduct additional discovery. The law firm moved to strike the expert affidavit submitted by the Nashes. A hearing was held on the various motions on May 1, 2006. On May 15, 2006, the circuit court denied the Nashes’ motion for recusal and request for evidentiary hearing, denied the motion for additional discovery, denied the motion to strike the Nashes’ expert affidavit, and granted summary judgment in favor of the Hendricks Law Firm.
In the order granting summary judgment, the circuit court ruled that the Nashes could not have prevailed on their medical-malpractice lawsuit due to the application of the Feres doctrine. Further, the circuit court determined that the statute of limitations had run on the legal-malpractice lawsuit.
On May 16, 2006, Roderick died. An order was entered on June 12, 2006, substituting Howard Nash as special administrator and reviving the lawsuit. This appeal followed.
Mr. Nash first argues that the circuit court abused its discretion in refusing to grant a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits where an evidentiary hearing had been requested. Mr. Nash filed a motion for recusal and request for evidentiary hearing on April 28, 2006, at 2:53 p.m., which was the Friday afternoon prior to the Monday, May 1, 2006 hearing on the summary-judgment motion. The motion for recusal was based on the stated facts that appellee Lamar Porter was previously represented by the Honorable James Moody, the circuit court judge’s father, in a legal-malpractice action when both the Honorable James Moody and the circuit court judge were previously attorneys employed at the law firm Wright, Lindsey & Jennings. The circuit court denied the motion to recuse.
On May 1, 2006, prior to hearing arguments on the Hendricks Law Firm’s summary-judgment motion, the circuit court heard arguments on the recusal motion, and the following colloquy took place between counsel for Mr. Nash and the circuit court:
The Court: Well, you had indicated that you had some request for an evidentiary hearing. I’m not sure what you are requesting because I think it’s my understand ing that the first time that my father’s involvement in this case would have come to your attention would have been October of’04, in response to interrogatories.
Counsel: That’s correct.
The Court: So we’re a year and some months later. And so I’m prepared for you to put on your record whatever you want to put on, to bring something that’s not in the pleadings to my attention regarding the recusal. Are you prepared to do that at this time?
Counsel: I’m not — I didn’t bring any witnesses with me today, your Honor. But I think that Mr. Nash is entitled to take the deposition of Mr. Lamar Porter and anyone else in that law firm as to who was representing them during this period of time.
The Court: Well, Mr. Wallace, I would agree. But you’ve had a year — over a year to do that. And I don’t think it’s appropriate to bring up that issue on the eve of a motion for summary judgment to delay those proceedings when you’ve had ample time to do that, because I’m not aware of anything new that’s come up in your pleadings since the response in, I believe, October of 2004 that my father had previously represented Mr. Porter.
Counsel: That’s correct, your Honor.
The Court: And so I guess my question is, why haven’t you done something before?
Counsel: Because we haven’t been before this Court on a motion for summary judgment until today.
The Court: I understand that. But you knew I was going to be the judge in this case on the day you filed the lawsuit.
Counsel: Your Honor, Mr. Nash has no problem, and he would waive any question about you serving as judge if we were not here today at this hour on their motion for summary judgment. They’re asking you to rule on a matter of fact.
The Court: Well, I am going to give you an opportunity to put on whatever evidence you have today, but I’m not going to postpone this hearing pending discovery that you might make on an issue that you’ve been aware of for a year and a half. So I will give you that opportunity to do that now, and I understand that you may not be prepared to do that.
I will state for the record, if it will help Mr. Nash, set his mind at ease, that it was not until the filing of this motion that I knew of anything about my father’s representation of Lamar Porter nor, to my recollection, was I in any way involved in that case....
I am not inclined to recuse just on the fact that roughly in excess of 10 years ago, my father represented somebody in a case that I wasn’t familiar with. I’m saying those [sic] in an effort to supplement your evidentiary situation, because I know I can’t be deposed. But I feel it important for Mr. Nash’s state of mind that he knows that I knew nothing about any of those things.
My father has been on the bench for 10 years, so I can tell you it was in excess of that that this representation would have happened. And I am pretty confident that that representation, at least to my knowledge, didn’t have anything to do with the Nash[e]s, did it? I don’t know.
Counsel: No, it did not, your Honor.
The Court: So—
Counsel: Your Honor, as I read the Dolphin case, in Chiefjustice Arnold’s opinion, I’m entitled to take their deposition on that issue.
The Court: Yes, sir.
Counsel: And I would—
The Court: And I guess my position would be, yes, you are. But you’ve waived that right by waiting a year and a half to do so, if we need — if we need — if I need to make a ruling on that. I acknowledge that you should be able to do that. But I don’t know that you can wait until the Friday before a Monday summary judgment when you’ve had that information for roughly- — well, you’ve known since February, I guess, that the motion for summary judgment has been filed.
Counsel: Yes, your Honor.
The Court: And a year and a half since that information has given rise and you knew I was going to be making some rulings in this case, evidentiary or otherwise at trial.
Counsel: Yes, sir.
The Court: So I just want to make that record and acknowledge that I agree, you should be able to make some kind of discovery. But it should have been done prior to [to] day. So the motion for recusal and request for a continuance of this matter will be denied.
A judge is presumed to be impartial. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). The party seeking recusal must demonstrate bias. Id. A hearing is necessary where requested and where there is more than a conclusory allegation that a judge is biased or otherwise subject to recusal. See Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006).
Judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). However, we will not reverse a judgment on the basis of a trial judge’s decision not to disqualify unless the judge has abused his or her discretion. Id. To decide whether there was an abuse of discretion, we review the record to determine if any prejudice or bias was exhibited. Id.
Here, the circuit court gave Mr. Nash the opportunity to present evidence prior to the hearing on summary judgment; however, Mr. Nash had no evidence to present. Although Mr. Nash knew of the prior attorney-client relationship between one of the appellees and the circuit judge’s father over a year prior to the filing of the motion, he waited until the last business day prior to the summary-judgment hearing to file the recusal motion. Despite the fact that the circuit judge concluded that the recusal motion was not timely, in an effort to “set [Mr. Nash’s] mind at ease,” the circuit judge clearly set forth the reasons he did not have any prejudice or bias in the case and explained that he could fairly conduct a hearing on summary judgment. In sum, Mr. Nash has failed to demonstrate any prejudice or bias on the part of the circuit court. We hold that the circuit court did not abuse its discretion in denying Mr. Nash’s motion for recusal.
We next turn to Mr. Nash’s arguments regarding the circuit court’s grant of summary judgment in favor of the Hendricks Law Firm. Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. See Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). 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. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002).
An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). To prevail on a claim of attorney malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. In this respect, a plaintiff must prove a case within a case, as he or she must prove the merits of the underlying case as part of the proof of the malpractice case. Id. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. Moreover, an attorney is not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of the highest jurisdiction and on which reasonable attorneys may differ. Id.
To address Mr. Nash’s arguments in this case, we must begin with a brief explanation of the FTCA and the Feres doctrine. The Federal Tort Claims Act of 1946, codified at 28 U.S.C. § 2671, waived the traditional immunity from suit of the United States in its sovereign capacity. The FTCA provides for federal jurisdiction of claims against the United States for injuries negligently caused by government employees acting within the scope of their employment, if a private person would be liable under the same circumstances. 28 U.S.C. §§ 2674-2675 (2000). In a series of decisions now known as the Feres doctrine, the United States Supreme Court established a judicially-created exception to the waiver of sovereign immunity in the FTCA, holding that the United States “is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950).
In Feres, a serviceman was killed by a fire in the barracks, and his estate sued the government for negligence. Id. at 136-37. Two companion cases, Jefferson v. United States, and United States v. Griggs, involved servicemen who were injured as a result of alleged negligence of Army doctors. Id. at 137. In barring all three claims, the Feres Court held that the United States remains immune from suit “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. The United States Supreme Court has explained that an injury “incident to service” is an injury that occurs “because of [a service member’s] military relationship with the Government.” United States v. Johnson, 481 U.S. 681, 689 (1987).
Mr. Nash argues that summary judgment cannot be granted as a matter of law in a legal-malpractice lawsuit where legal experts have submitted disputing affidavits as to the Hendricks Law Firm’s breaches of the applicable standard of care. In support of their motion for summary judgment, the law firm submitted the affidavit of attorney William Martin. He opined that the Feres doctrine would bar Roderick’s medical-malpractice claim. In response, Mr. Nash submitted the affidavit of attorney Peter Masciola who stated that the Hendricks Law Firm had failed to adequately research the law regarding the Feres doctrine and erroneously concluded that any FTCA claim by Roderick Nash would be barred because he was on active duty and received the subject medical care “incident” to his service. Mr. Nash contends that, based upon Masciola’s affidavit alone, the question as to whether the Feres doctrine would have been a bar to filing a federal-tort claim and lawsuit on behalf of Roderick Nash is not an appropriate question for summary judgment. In other words, Mr. Nash contends that the issue is a question of fact. We disagree. “The question of whether the Feres doctrine is applicable to the facts reflected in the record of a case is a question of law reviewed de novo.” Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997); see also Jones v. United States, 112 F.3d 299 (7th Cir. 1997); Schomer v. United States, 59 F.3d 26 (5th Cir. 1995). Thus, the question of whether the Feres doctrine bars suit is not a question for the jury, as Mr. Nash suggests, but a question of law to be determined by the circuit court.
In its letter order, the circuit court made the following findings:
The Court is convinced that the following facts relevant to this motion are undisputed or, at least, have been decided as a matter of law by Judge Howard making them undisputable:
1. Dr. Teo and Dr. Russell were civilian doctors contracted to provide services to the federal government acting within the scope of their employment and, thus, were employees of the United States.
2. Roderick Nash was active duty military at the time of the alleged medical negligence.
3. The medical services he received were extended to him as a result of his military status.
Taking these undisputed facts and applying them to the law as set down by the Eighth Circuit Court of Appeals. . . the Court finds that the application of the Feres doctrine would have barred any recovery by the plaintiffs for damages resulting from Dr. Teo’s or Dr. Russell’s negligence.
This finding necessarily leads to the legal conclusion that the plaintiffs cannot sustain their burden of proof as a matter of law on the issue of proximate cause in the legal malpractice action. This ruling applies to any damages stemming from any action against Drs. Teo or Russell.
Next, the defendants have moved for summary judgment on any claim for damages resulting from the failure of the defendants to properly pursue the plaintiff’ claim against Dr. Stringer. The plaintiffs were required to meet proof with proof on the issue of Dr. Stringer’s negligence but candidly admitted to a lack of such proof at the hearing.
Since there is no proof upon which a fact finder could find negligence on the part of Dr. Stringer, the defendants’ motion for summary judgment on the claim for damages resulting from Dr. Stringer’s negligence is granted.
We must now determine whether the circuit court clearly erred in concluding that the Feres doctrine is a bar to suit in the instant case. The law firm argues that, because the medical-malpractice injury of Roderick Nash was clearly incident to service, any administrative claim filed on his behalf would have failed pursuant to the Feres doctrine.
Courts have applied the Feres doctrine to bar medical-malpractice claims that arose from treatment by government doctors of active-duty personnel. In Cutshall v. United States, 75 F.3d 426 (8th Cir. 1996), the Eighth Circuit held that the claims of Corporal Cutshall, whose cancer was not discovered while undergoing treatment at a Navy medical facility, were barred by the Feres doctrine. In reaching its holding, the federal court found the following cases dispositive:
In Lampitt v. United States, 753 F.2d 202 (8th Cir.) (per curiam), cert. denied, 472 U.S. 1029, 105 S.Ct. 3505 (1985), this court held that Feres barred a medical suit brought by a serviceman, although the alleged tort had arisen when the serviceman was on convalescent leave. The serviceman had claimed Navy physicians had negligently performed surgery on him and had argued his injuries did not arise out of activity incident to service because he was not on active duty. Id. at 703. This court noted that the two companion cases to Feres related to medical malpractice where no recovery was allowed, and that courts have adhered to the view that surgical malpractice in the military comes within the bar of the Feres doctrine. Id. This court concluded that “[t]he bottom line is that [the serviceman] seeks recovery for injury caused by the Navy doctors’ negligence, both in their own conduct of the surgery and in their failure to secure the participation of [a civilian physician.] For that he cannot recover.” Id. at 703.
In Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), this court held that Feres barred a medical malpractice claim by an Air Force recruit. The Bowers plaintiff had cancer which was not diagnosed during a pre-induction physical at a military hospital, and his cancer continued untreated. Id. at 451. We concluded that Johnson required us to hold that the plaintiffs claim was barred under Feres, even though no military benefits were available to the plaintiff who was not a service member at the time of the alleged negligence. Id. at 451. We concluded that “a court decision that the physicians who examined [the plaintiff] were negligent would have a direct effect upon military judgments and decisions.... [A]n effect on the allocation of military resources [which] is precisely the kind of thing that the Feres doctrine is supposed to prevent.” Id. at 452.
Cutshall, 75 F.3d at 428-29.
Mr. Nash relies on C.R.S. v. United States, 761 F. Supp. 665 (D. Minn. 1991), where the court held that the Feres doctrine was not a bar to claims brought by plaintiffs arising out of a medical-malpractice incident even though one of the plaintiffs was on “active duty” at the time of the incident. In C.R.S., a former member of the National Guard, his wife, and their child brought claims under the FTCA, alleging that they contracted AIDS due to the negligence of the United States in screening blood for HIV and in failing to notify the service member that he received infected blood. The court focused on three rationales underlying the Feres doctrine: that a uniform federal law regarding suits arising from military service is needed owing to the “distinctively federal” relationship between the government and its military personnel; that suits for service-related injuries are prohibited because such injuries are presumed compensated by benefits provided by the Veterans’ Benefits Act; and that permitting such suits would imperil decisions about national security and military missions. C.R.S., 761 F.Supp. at 667-68 (citing Feres, supra, and Johnson, supra). The court held that, because the claims “failed to invoke the three rationales supporting the Feres doctrine, the plaintiffs’ claims are not barred.” Id. at 668.
Mr. Nash argues that C.R.S. is clear authority for the proposition that the circuit court in this case cannot rule as a matter of law that Roderick Nash did not have an underlying FTCA claim. We disagree. In light of the decisions of the Eighth Circuit Court of Appeals, we believe that Roderick Nash’s injury during surgery was incident to service; therefore, Mr. Nash’s claim for medical malpractice is barred by the Feres doctrine. Thus, we hold that the circuit court did not clearly err in concluding that the Feres doctrine barred suit in this case. It follows that, because Mr. Nash could not have prevailed on his medical-malpractice claims, he cannot prove that, but for the Hendricks Law Firm’s negligence, the outcome of the case would have been different. Therefore, Mr. Nash’s legal-malpractice claim must fail. Because we have concluded that the Feres doctrine is applicable in this case, we need not address Mr. Nash’s remaining arguments. We hold that the circuit court did not err in granting summary judgment in favor of the Hendricks Law Firm.
Affirmed.
Title 28, section 2675(a) of the United States Code provides in part: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency....
Feres v. United States, 340 U.S. 135 (1950). See discussion of the Feres doctrine infra.
Mr. Nash does not dispute the findings with respect to Dr. Stringer. Accordingly, our analysis will be confined to the claims against Drs.Teo and Russell.
We note that the C.R.S. decision has been criticized. In Minns v. United States, 974 F. Supp. 500, 504 (D. Md. 1997), the court stated that C.R. S. “is called into question by the fact that the court allowed the serviceman to proceed on his own claim in contradiction to the clear holding of Feres.” Further, the court stated:
The persuasive value of the initial district court opinion in C.R.S. is further eroded by the fact that the district court later ruled that all of the claims against the United States were barred by the discretionary function exception to the FTCA. C.R.S. v. United States, 820 F. Supp. 449 (D. Minn. 1993). The Eighth Circuit upheld the district court’s grant ofsummaryjudgment in favor of the United States based on the discretionary function exception without considering the earlier ruling on the Feres doctrine. C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993).
974 F.Supp. at 504. | [
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Per Curiam.
John Joplin, a full-time, state-salaried public defender in Sebastian County, was appointed by the trial court to represent appellant, Ronald L. Mishion, an indigent defendant, in connection with a petition to revoke filed by the State. Following a hearing held on August 9, 2006, the circuit court found that appellant violated the terms of his suspended sentence and sentenced him to serve ten years in the Arkansas Department of Correction, with an additional suspended sentence of ten years. A timely notice of appeal was filed with the circuit clerk, and the record has been lodged in this court.
Mr. Joplin now asks to be relieved as counsel for appellant in this criminal appeal, based upon the cases of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam) (relieving appellant’s court-appointed public defender and appointing new counsel on appeal).
Since the time of those decisions, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[P]ersons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005).
Mr. Joplin’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Mr. David L. Dunagin will be substituted as attorney for appellant in this matter. The Clerk will establish a new briefing schedule. | [
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Per Curiam.
This case came to us on January 4, 2006, when Appellant, Arkansas Department of Health and Human Services (DHHS), filed a petition for writ of prohibition, or, in the alternative, a writ of certiorari directed to Appellee Honorable Vann Smith of the Pulaski County Circuit Court. While the appeal was pending, Alan Blaylock, the respondent in these proceedings, died. We remanded the case to the circuit court to determine whether the cause of action was extinguished by the death of Blaylock.
The circuit court has found that Blaylock’s death does not extinguish the cause of action and that (1) revivor is appropriate and (2) the cause of action should proceed. Now DHHS asks us to reinstate its appeal. Respondent, represented by Karen Blaylock, his surviving spouse and the executrix of his estate, joins.
We grant the motion to reinstate the petition for writ of prohibition, or in the alternative, writ of certiorari, to the active docket. The parties may supplement the record with the order of the circuit court on remand within fifteen (15) days of this order. This court will decide the case on the original briefs.
Petition granted. | [
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Annabelle Clinton Imber, Justice.
This is an original action under the Arkansas Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law (“Procedures”) in which Petitioner Stark Ligón, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (“Committee”), seeks the disbarment of Respondent Jerry Wayne Stewart (“Stewart”), an attorney licensed to practice law in the State of Arkansas. Our jurisdiction is proper pursuant to Procedures § 13(A) (2006).
A chronology of the relevant facts is as follows:
• January 10, 2006 — Stewart entered a plea of guilty in circuit court to the felony criminal offense of DWI - Fourth, and the court sentenced him to two years in prison and an additional two years suspended imposition of sentence.
• January 13, 2006 —Judgment and commitment order filed of record in the circuit court.
• February 24, 2006 — Order entered by Panel A of the Committee after presentation of a file-marked copy of the felony-conviction judgment, which order reflects the Committee’s directive that a disbarment proceeding be instituted against Stewart in accordance with Procedures § 15(C)(1) (2006) and the Committee’s interim suspension of Stewart’s privilege to practice law.
• March 13, 2006 — Petition for disbarment filed by the Committee in this court, asserting that (1) Stewart’s conviction constitutes a “serious crime” as defined in Procedures § 2(J) (2006); (2) his conduct violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; and (3) his conduct constitutes “serious misconduct” as defined in Procedures § 17(B) (2006).
• April 27, 2006 — This court appointed the Honorable David Bogard as special judge to preside over the disbarment proceedings. See Ligon v. Stewart, 366 Ark. 229, 234 S.W.3d 315 (2006).
• September 21, 2006 — The prosecutor filed a motion to revoke suspended imposition of sentence in the criminal case based on allegations that Stewart had engaged in the unauthorized practice of law in violation of Ark. Code Ann. § 16-22-501 (a) (2) (Repl. 1999).
• October 5, 2006 — Bench warrant issued ordering Stewart to appear before the circuit court on October 13, 2006, and answer the State’s revocation motion.
• October 19, 2006 — Disbarment hearing before the special judge. Stewart’s counsel, Stuart Vess (“Vess”), appeared and informed the special judge that his client was absent due to illness. Counsel’s request for a continuance was denied. The Committee presented the testimony of witnesses and exhibits in support ofits allegations in the petition. No witnesses were called by Stewart’s counsel. Although the special judge granted Stewart’s request to submit an affidavit by October 25, 2006, on condition that he appear for cross-examination on October 27, 2006, no affidavit was submitted.
• October 27, 2006 — Letter opinion issued setting forth the special judge’s findings of fact and conclusions of law: (1) Stew art’s DWI conviction constitutes a “serious crime” and “serious misconduct” as defined in the Procedures; (2) Stewart violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct; and (3) Stewart’s actions in practicing law without a valid license constitute “serious misconduct” as defined in the Procedures. The special judge recommended that Stewart be disbarred from the practice of law in Arkansas.
• December 13, 2006 — Stewart arrested on the October 5 bench warrant directing him to appear before the circuit court and answer the State’s revocation motion. Within two hours of his arrest, Stewart’s blood-alcohol level registered .32%, or four times the amount necessary to be charged with DWI.
• January 10, 2007 — The circuit court granted the State’s motion to revoke suspended imposition of sentence and sentenced Stewart to two additional years in prison.
The special judge’s findings of fact and conclusions of law, as well as his recommended sanction, are now before this court. For the reasons explained below, we conclude that the findings of fact and conclusions of law are not clearly erroneous, and we accept Judge Bogard’s recommended sanction of disbarment.
Section 1(C) of the Procedures provides that disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning of their own kind. See Procedures § 1(C) (2006); Ligon v. Dunklin, 368 Ark. 443 , 247 S.W.3d 498 (2007); Ligon v. Newman, 365 Ark. 510, 231 S.W.3d 662 (2006). The special judge’s findings of fact are accepted by this court unless they are clearly erroneous. Ligon v. Price, 360 Ark. 98, 200 S.W.3d 417 (2004). This court imposes the appropriate sanction as warranted by the evidence. Id. There is no appeal from this court except as may be available under federal law. Id.
A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Ligon v. Dunklin, supra. We must view the evidence in a light most favorable to the decision of the special judge, resolving all inferences in favor of his or her findings of fact. Id. Disputed facts and determinations of the credibility of'witnesses are within the province of the fact-finder. Id. The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Id. Applying the clearly erroneous standard of review mandated by Procedures § 13(D) (2006), we now consider Stewart’s assertion that there is insufficient evidence to support the Committee’s petition for disbarment.
In support of his challenge to the sufficiency of the evidence, Stewart contends that he was not convicted of a “serious crime” under Procedures § 2(J) (2006). He also disputes the finding that his actions after the interim suspension of his law license constitute the practice of law. As noted previously, the special judge found that Stewart’s DWI conviction constitutes a “serious crime” and “serious misconduct” as defined in the Procedures, that he violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct, and that his actions in practicing law without a valid license constitute “serious misconduct” as defined in the Procedures.
Section 2(J) of the Procedures defines “SERIOUS CRIME” as:
[A]ny felony or any lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a “serious crime.”
Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law § 2(J) (2006). With regard to this section, Stewart specifically argues that, in the absence of a comma following the words “any felony,” the phrase is modified and limited to felonies that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Thus, according to Stewart, a felony DWI conviction cannot be considered a “serious crime” under the Procedures. We find no merit in this argument.
It is well settled that we construe court rules using the same criteria, including canons of construction, that are used to interpret statutes. See Cortinez v. Arkansas Supreme Court Comm, on Prof'l Conduct, 353 Ark. 104, 111 S.W.3d 369; Gannett River States Pub. Co. v. Ark. Judicial Discipline and Disability Comm’n, 304 Ark. 244, 801 S.W.2d 292 (1990). We review issues of statutory construction under a de novo standard. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006). Because it is for this court to decide the meaning of a statute, we are not bound by the circuit court’s determination of the statute’s meaning. Id. The first rule in determining the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id.
The language in Procedures § 2(J) clearly defines a “serious crime” as “any felony or any lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Procedures § 2(J) (emphasis added). In other words, any felony constitutes a “serious crime”; whereas, any lesser crime will constitute a “serious crime” only if it reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. The interpretation suggested by Stewart would render the words “any felony or any lesser” mere surplusage, leaving the phrase to effectively read “any crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”
In the instant case, applying a de novo standard of review and construing Procedures § 2(J) just as it reads, the special judge did not err in concluding that the felony DWI conviction constitutes a “serious crime” as defined in the Procedures. It is undisputed that Stewart entered a plea of guilty to the felony offense of DWI. According to the Procedures, a certified copy of the judgment of conviction shall be conclusive evidence of the attorney’s guilt. Procedures § 15(C)(3) (2006). We hold that Stewart’s conviction of the felony offense of DWI — Fourth constitutes “any felony” and is therefore a “serious crime” as defined in the Procedures.
As further support for his contention that the evidence must show a felony conviction that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, Stewart cites testimony elicited at the disbarment hearing about one applicant having been admitted to the bar with a prior felony. The Director of the Office of Professional Programming and Executive Secretary to the Arkansas State Board of Law Examiners,. Chris Thomas, when asked about any applicant with a felony of any kind on his or her record, testified as follows:
That applicant would have an exceedingly difficult time of being admitted to the Bar of Arkansas. I guess in the 18 years I’ve been doing this, I’ve overseen probably 6,000 or more applications and I can remember only one where an applicant had a previous felony who was admitted to the bar.
According to Thomas, many applicants with felonies have not been admitted to the bar. In fact, Thomas testified that he could not recall any applicant who had a DWI third or fourth offense on his or her record.
The special judge had the benefit of observing the witnesses and hearing the testimony. It is well settled that the determination of the credibility of witnesses is exclusively within the province of the fact-finder. Ligon v. Newman, supra. Accordingly, we hold that the record supports the special judge’s conclusion that the felony DWI conviction constitutes a “serious crime” as defined in Procedures § 2(J).
We now turn to the special judge’s conclusion that Stewart’s felony DWI conviction and his actions in practicing law without a valid law license constitute “serious misconduct” as defined in Procedures § 17(B). Under § 17(B), the termination of a lawyer’s privilege to practice law is warranted when the lawyer engages in “serious misconduct”:
B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
Procedures § 17(B) (2006).
Stewart initially challenges the Committee’s decision to impose an interim suspension of his license to practice law based solely upon the fact that he was convicted of a felony. He further argues that because there was no basis for the interim suspension, we should not consider whether he violated the Committee’s order. These arguments are without merit for the reasons stated earlier in connection with Procedures § 2(J). Pursuant to §§ 16(A)(2) and 17(E)(3)(b), the Committee was authorized to temporarily suspend Stewart’s license to practice law upon proof that he had been found guilty of a “serious crime.” Once again, the felony DWI conviction constitutes a “serious crime” under Procedures § 2(J), and the copy of the judgment of conviction is conclusive evidence of Stewart’s guilt. Procedures § 15(C)(3).
Stewart next disputes the judge’s finding that he was practicing law in violation of the Committee’s interim suspension order and the judge’s conclusion that his actions were “serious misconduct” under Procedures § 17(B). More particularly, he argues that “the specific allegations are that he attempted to help in an eviction of a tenant and that he attempted to assist someone appearing before a city council. It is [his] position that neither constitute the practice of law and neither incident was serious misconduct.” Conversely, the Committee argues that
[t]his argument conveniently overlooks the fact that [his] law license was placed on interim suspension by a proper action of the Committee, following a vote to initiate disbarment proceedings, and he was bound to honor and obey that suspension order until it was lifted by the Committee or this Court .... An experienced attorney, above all others in our society, is expected to know that valid court (and attorney discipline committee) orders are to be obeyed.
Very recently, we addressed a similar situation in Walker v. Supreme Court Committee on Professional Conduct, 368 Ark. 357, 246 S.W.3d 418 (2007). In that case, the appellant attorney argued that he did not practice law during his suspension because he did not appear in court, he did not represent his client in connection with a third party, he did not accept a fee, and he did not tell his client how to conform to the law. Id. Noting the Committee’s assertion that “the practice of law encompasses many different actions and is not limited to appearing in court or representing a client to a third party,” this court agreed with the Committee’s findings that the attorney practiced law while his law license was suspended in that he held himself out as a licensed attorney during his suspension and met with his client at his former law firm’s office to discuss the client’s legal matter. Id.
With regard to the unauthorized-practice-of-law allegations in this case, Jimmy Wayne Dodson, Jr. (“Dodson”), a tenant renting a house owned by S.A. Potter (“Potter”), testified that Stewart came to his residence with Potter in July 2006. According to Dodson, Stewart represented himself to be the landlord’s attorney and advised him that he had seventy-two hours in which to vacate the premises or the sheriff s department would return and remove him and his personal belongings.
Sam Gibson (“Gibson”), the Benton City Attorney, provided additional testimony about Stewart’s actions at a city council meeting on August 14, 2006. Before the meeting, Gibson asked Stewart why he was at the council meeting, and Stewart replied that “he represented Mr. Potter.” When Gibson asked Stewart whether he was licensed to practice law in the State of Arkansas, Stewart replied that his license was suspended. According to Gibson, Stewart said that he felt like he could lobby a legislative body as a layman without the requirement of a law license. Gibson then advised Stewart that he considered Stewart’s actions to be the unauthorized practice of law and that Gibson would make a formal report to the Committee if Stewart made an appearance before the city council.
Gibson also testified that he received a telephone message on July 25, 2006, about Stewart representing Potter “in a matter where the City of Benton was trying to condemn some property.” The message indicated that the matter had been voted on at a city council meeting the previous night and that Stewart had made several attempts to contact the mayor in an effort to request that the matter be moved to a later date because his client was ill and could not attend. Finally, the phone message stated as follows: “Mr. Stewart is very upset and says his client obtained the permit from the city to work on the house, which is not occupied at this time and is trying to comply with code enforcement.”
Based on the record before us, there is no question that Stewart held himself out to others as representing Potter in connection with two separate matters ■— the eviction of a tenant and a condemnation matter before the Benton City Council. Consequently, we conclude that Stewart, with conscious disregard of the Committee’s order of interim suspension, practiced law without a valid license. We further conclude that Stewart’s actions in practicing law without a valid law license constitute “serious misconduct” under Procedures § 17(B). Specifically, Stewart’s misconduct was likely to result in substantial prejudice to a client or other person. Likewise, his actions in practicing law without a valid license were part of a pattern of similar misconduct.
Notwithstanding Stewart’s failure to appear and testify at the disbarment hearing, he claims that under Procedures § 19, certain factors must be considered in imposing sanctions. He specifically points to the factor listed in § 19(M): “Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.” Procedures § 19(M) (2006). Based on that subsection, Stewart asserts “[he] does not even have to present evidence that he is attempting recovery from the alcohol problem to mitigate his sanction.” In support of that assertion, he cites the Americans with Disabilities Act (“ADA”), codified at 42 U.S.C. §§ 12111 through 12213 (2007). Stewart’s argument on this point is misplaced. The Committee correctly notes that § 19(M) states that a claim of disability or impairment resulting from the use of alcohol may not be considered unless Stewart demonstrates he is successfully pursuing in good faith a program of recovery. The Committee argues that “[s]ince this record is devoid of any evidence that [Stewart] is in [the Arkansas Lawyer Assistance Program] or any other recovery program, he cannot use [this section], or his admitted alcohol impairment condition, as possible mitigation here.” We agree.
This court addressed a comparable claim in Ligon v. Price, 360 Ark. 98, 200 S.W.3d 417 (2004). There, an action for disbarment was filed against an attorney who claimed “that [he] would not have violated so many model rules ‘but for’ a severe emotional impairment which is cognizable under the [ADA].” 360 Ark. at 117, 200 S.W.3d at 429. On appeal, we rejected the attorney’s claim, citing with approval decisions by the supreme courts of California and Florida in cases involving similar issues:
In Slaten v. State Bar of California, [citations omitted], a California court held that the attorney’s alleged mental problems, even if they had been sufficiently established, would be entitled to litde weight in mitigation of his numerous acts of misconduct. The purpose of disciplinary proceedings is to protect the public and the need for protection is the same whether or not the attorney is mentally impaired. Further, in Florida Barv. Clement, [citations omitted], a Florida court held that “the ADA did not prevent it from disbarring a disabled attorney who suffered from bipolar disorder and had been accused of misuse and misappropriation of client funds. The court in that case held that the ADA did not preclude disbarment because his conduct was not causally related to his disability and, even if it were, the attorney would not be protected under the ADA because he was not a ‘qualified’ individual with a disability.”
360 Ark. at 117-18, 200 S.W.3d at 429.
In the instant case, the Director of Client Services at the Arkansas Lawyer Assistance Program (“ArLAP”), Sarah Cearley, testified that as the custodian of records on clients and nonclients of ArLAP, she was not permitted to either confirm or deny that any attorney or judge has had any contact with ArLAP, or has ever been a client of the program. However, she noted that the confidentiality rules for ArLAP permit an individual to execute a waiver of release of information for the program to provide information under certain circumstances. In view of the fact that Stewart had not waived release of the information, Cearley could provide no further testimony. Consequently, the record is devoid of any evidence that Stewart was or is currently involved in any recovery program. Thus, his claim of disability or impairment from the use of alcohol may not be considered as a factor in imposing sanctions under Procedures § 19.
We now turn to the specialjudge’s recommendation that the sanction of disbarment be imposed in this matter. Section 17 of the Procedures divides violations of the Arkansas Rules of Professional Conduct into two separate categories of misconduct: serious misconduct and lesser misconduct. Procedures § 17(B) and (C); see Ligon v. Dunklin, supra. Serious misconduct warrants a sanction of terminating or restricting a lawyer’s license to practice law, while lesser misconduct does not. Ligon v. Dunklin, supra; Ligon v. Price, supra.
Stewart’s felony DWI conviction and his actions in practicing law without a valid license are more than sufficient evidence to support the Committee’s petition for disbarment. Accordingly, Stewart’s license to practice law in the State of Arkansas is hereby terminated.
Order of disbarment issued. | [
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Robert L. Brown, Justice.
Appellant Ormond Enterprises, Inc. (“Ormond”) appeals from the order of the circuit court, in which the court granted the appellee Point Remove Wetlands Reclamation and Irrigation Improvement District’s (“District”) motion, to dismiss. On appeal, Ormond raises two points: (1) the circuit court erred as a matter of law in ruling that its property could not be excluded from the District; (2) the circuit court erred in finding it was not in the best interest of the District to exclude its property without affording Ormond an opportunity to present evidence.
On September 14, 1993, multiple petitioners filed a petition in the circuit court for the creation of the District. In their petition, those petitioners claimed that they were the majority in value of the lands in Conway County described in the petition. The petitioners claimed that the District would serve the following purposes:
The purposes of this district are for the construction, operation and maintenance of dams, gates, weirs, ditches, canals, pipelines and other waterways; pumping facilities and, other capital improvements for the purpose of the provision of water for the Ed Gordon/Point Remove Wildlife Management Area (WMA), a public wedands area maintained and operated by the Arkansas Game and Fish Commission for the purposes of providing habitat for migratory waterfowl and other game and non game species, irrigation, flood control, and the improvement of agricultural lands included within the proposed district.
The petitioners added that the project was “necessary in order to provide irrigation to some estimated 18,500 acres of agricultural land which will facilitate a significant increase in both the yield and diversity of crops capable of being grown with accompanying economic benefits not only to the [a]ffected landowners, but to the entire region and state.” By its order entered on October 20, 1993, the circuit court granted the petitioners’ request to create the District for the purposes designated in the petition.
On December 11, 2001, the circuit court entered an order accepting the District’s adopted assessments of land and finding that those assessments were proper, in accordance with the law, and equitable. On September 24, 2002, the District petitioned for authority to borrow money through the Arkansas Soil and Water Conservation Commission, which the court granted by its order entered on November 13, 2002.
On April 24, 2003, the District filed a petition to ratify its Phase II plans for irrigation and to modify the property owner assessments. The District noted that based on its completed Phase II construction plans, it would not be feasible to provide irrigation for certain lands and that these landowners, who were named in the petition, would derive no benefits from the construction or operation of the project. The District prayed that those lands be deleted from the District and that the related assessments be eliminated. The District also claimed that the National Resource Conservation Service (“NRCS”) was conducting research about other properties that may have derived diminished benefits from the project. According to the District, there might be an additional request for modification of assessments and elimination of tracts of land on the lower end of the project once it received the recommendations from the NRCS.
The circuit court entered an order on May 14, 2003, that ratified the Phase II plans and ordered that the assessments on the tracts of land identified in its order should be eliminated, effective with the July 1, 2003 tax year. The court also ordered that the collection of those taxes be suspended from the date of its order forward and that any taxes accruing and collected after that date be remitted to the landowners.
On September 24, 2003, the District filed a second petition for amended ratification of Phase II plans and modification of assessments. Based on the NRCS study, the District found that all the land in a certain location would derive no additional benefits from the project and should, therefore, be eliminated from the project. The District moved for their elimination. On November 12, 2003, the circuit court entered an order for amended ratification of Phase II plans and modification of assessments based on the NRCS study. In that order, the court directed that the plans for Phase II construction be approved and that the assessments on the tracts described in the District’s exhibits be eliminated, effective with the January 1, 2003 tax year and for all subsequent tax years. The court also ordered that the collection of those taxes be suspended from the date of the order forward and that any taxes accruing and collected after that date be remitted to the landowners.
On January 14, 2005, Ormond and others filed a pleading entitled Petition and Notice of Appeal and claimed that its land should have been excluded along with the land that was excluded in the circuit court’s November 12, 2003 order. Ormond asserted that its land abutted the land that was excluded. It also requested that the court find that the assessment ofbenefits as to its properties was inaccurate, that it disallow any purported levying of real property taxes on the property, and that it enter an order excluding its land from the district. Ormond requested, in addition, that the court order that no taxes be levied on its land pending a full hearing on this matter.
On January 21, 2005, the District moved to dismiss Ormond’s petition. The District relied on Arkansas Code Annotated § 14-117-207 (Repl. 1998), for its argument that Ormond had filed its petition late. According to the District, the thirty-day period required under § 14-117-207 had elapsed for Ormond to challenge the inclusion of lands within the District and the assessment of benefits. Thus, the District concluded in its motion that Ormond’s petition and notice of appeal failed to state facts upon which relief could be granted and should be dismissed.
In its response to that motion, Ormond stated that the court should rule on the issue of exclusion of the Ormond land “prior to the execution of any bonds or other indebtedness by the District.” Ormond next filed an amended response to its motion to dismiss, in which it stated, in addition to adopting all previous allegations in its prior motion to dismiss, that no levy should be made on its land since it received no benefit from the District.
On July 10, 2006, the circuit court entered an order granting the District’s motion to dismiss. The court ruled that Ormond did not “timely appeal from the order creating the [District,” as required by § 14-117-207. The court further found that, as a matter of law, it was precluded from excluding Ormond’s property based on Arkansas Code Annotated § 14-117-208(h) (Repl. 1998), because the District had an outstanding and existing indebtedness to the Arkansas Soil and Water Commission that was to be repaid from the assessments against the land within the District. Additionally, the court determined that, pursuant to § 14-117-208(d), it was not in the best interest of the District to exclude additional property from the District at that time. The court added that it was presented “with fairly extensive testimony pertaining to the design and operation of the District in the previous proceeding.” It is from this order that Ormond now appeals.
I. Exclusion from District
Ormond first claims that the circuit court erred in ruling that its petition to exclude its property from the District was untimely. In making this argument, Ormond presents a challenge to the circuit court’s construction of the relevant statutes, which this court reviews de novo. See, e.g., Williams v. Wayne Farms, LLC, 368 Ark. 93, 243 S.W.3d 316 (2006). This court is not bound by the trial court’s determination of a statute’s meaning, as it is for the appellate court to determine what a statute means. See id. In the absence of a showing that the circuit court erred, however, its interpretation of the statute will be accepted as correct on appeal. See id.
The pertinent statute regarding exclusion of land from an improvement district is § 14-117-208. That statute provides:
(a) (1) The holder or holders of tide representing in assessed value one-half (1/2) or more of any body of lands benefited or capable of beingbenefitedby the works of a district may petition the chancery or circuit court which established the district to change the boundaries of the district to include that body of lands.
(2) Any owner of lands within the boundaries of a district may also petition the court to change the boundaries of the district to exclude such lands.
(b) The petition shall describe the boundaries of the parcel or tract of land owned by the petitioner or petitioners.
(c) The clerk shall give notice by publication for two (2) weeks in some newspaper published and having a general circulation in the county or counties within the district, calling upon all persons owning property within the district and, in the case of a proposed inclusion of lands, all persons owning property within the area proposed to be included to appear before the court on some day to be fixed by the court to show cause in favor of or against the inclusion or exclusion of lands of petitioners.
(d) If the court deems it to be to the best interest of the district that the lands be included or excluded from the district, it shall make an appropriate order upon its records changing the boundaries of the district.
(e) If the court finds that lands should be included in the district, the court shall make a finding and order as to an equitable amount to be paid by the petitioner or petitioners in lieu of the amount the petitioners or their grantors would have been required to pay to the district as assessments had the lands been included in the district at the time the district was originally formed. These amounts shall be divided into installments as the court may determine and shall be added to and be collected with any assessments subsequendy levied against the assessment of benefits and shall be a part of the assessment of benefits.
(f) If the court finds that lands should be excluded from the district, the court shall make a finding and order as to the amount, if any, which shall be refunded by the district to any and all persons who have paid any assessment or assessments to the district.
(g) In making this determination, the court shall consider whether the parties have realized benefits from the organization and operation of the district, and the value of those benefits as determined by the court shall be deducted from the assessments paid in by the parties.
(h) No land excluded from the district shall be released from any obligation to pay any valid outstanding indebtedness of the district at the time of filing the petition for exclusion unless the holders of the indebtedness shall assent to the release of the lands from such obligation.
(i) All costs of the proceedings shall be assessed against the petitioners.
(j) Appeals from judgments of the court made pursuant to this section shall be taken by an aggrieved party in accordance with the provisions of § 14-117-207.
Ark. Code Ann. § 14-117-208 (Repl. 1998).
Section 14-117-207 is also relevant to this appeal. It provides:
(a) The order of the chancery or circuit court establishing the district shall have all the force of a judgment.
(b) Any owner of real property within the district may appeal from the judgment within thirty (30) days after the judgment has been made, but if no appeal is taken within that time, the judgment shall be deemed conclusive and binding upon all the real property within the bounds of the district, and upon the owners thereof.
(c) Any owner of property in the proposed district may within a like time appeal from any order refusing to establish the district.
Ark. Code Ann. § 14-117-207 (Repl. 1998).
Ormond specifically asserts that there is no statutory time limit during which a petition to exclude land from the District must be filed. Accordng to Ormond, § 14-117-208 (a) (2) merely says, “[a]ny owner of lands within the boundaries of a district may also petition the court to change the boundaries of the district to exclude such lands.” The District concedes that § 14-117-208 does not provide a time limit for filing a petition to exclude lands in an improvement district but states that the circuit court, nevertheless, properly held that, after a bond indebtedness is in place, it is too late to file an exclusion petition under that section of the Improvement District Code.
As Ormond notes, the language included in § 14-117-208 contemplates that a district has already been established; thus, the statute does not apply to a “proposed district.” Further, § 14-117-208(f) provides, “[i]f the court finds that lands should be excluded from the district, the court shall make a finding and order as to the amount, if any, which shall be refunded by the district to any and all persons who have paid any assessment or assessments to the district.” Ormond contends that an owner cannot pay assessments until after the district has been established, benefits have been assessed, and those assessments have been charged. All of this, Ormond observes, cannot take place within the thirty days immediately following the court order establishing the district. Ormond concludes, accordingly, that the thirty-day time limit in § 14-117-207, which relates to appeals from orders establishing the district, does not apply to his petition for exclusion.
Ormond’s argument has merit. There is no doubt that the circuit court relied on § 14-117-207 for its determination that Ormond should have appealed within thirty days from the entry of the order creating the District. The District, however, was created on October 11, 1993 — almost twelve years earlier. It is true that assessments for land in the District were modified on November 12, 2003, and certain lands were excluded. It is unclear whether the circuit court considered the modification of the District on this date to be the order “creating the District” to which the court alludes. Nevertheless, to the extent the circuit court based its untimeliness decision on a failure to appeal within thirty days from the establishment of the District, that was error. We reverse the circuit court on this point.
We also agree with Ormond that § 14-117-208 has no time limit for filing a petition to exclude land from an improvement district. As already noted, the District concedes this fact. Moreover, Ormond is correct that the statutory scheme for the establishment and operation of an improvement district under § 14-117-208(h) permits lands to be excluded from the district even when a bond indebtedness is in place, although for lands to be released from the existing bond indebtedness, the bondholders must agree.
Ormond, however, goes further in its petition and prays that it be released from future bond indebtedness. Being saddled with any new debt appears to be Ormond’s primary concern. It is beyond our jurisdiction to address at this juncture such a speculative matter that may occur in the future. To do so would be to issue an advisory opinion, which we decline to do. See, e.g., Dodson v. Allstate Ins. Co., 365 Ark. 458, 462, 231 S.W.3d 711, 715 (2006) (noting that “[w]e have long held that courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for future conduct”).
II. Best Interest
Ormond also maintains, without citation to authority, that the circuit court erred in finding it was not in the best interest of the District to exclude its property without affording it a hearing on the matter. According to Ormond, it should have been permitted to present testimony on this point.
Section 14-117-208(d) provides that “[i]f the court deems it to be to the best interest of the district that the lands be included or excluded from the district, it shall make an appropriate order upon its records changing the boundaries of the district.” Section 14-117-208(g) provides that “[i]n making this determination, the court shall consider whether the parties have realized benefits from the organization and operation of the district, and the value of those benefits as determined by the court shall be deducted from the assessments paid in by the parties.”
In the instant case, the circuit court noted that it had been presented with “fairly extensive testimony pertaining to the design and operation of the District in the previous proceeding.” The court then held that “[b]ased on . . . the uncontroverted facts, it is not in the best interest of the District to exclude additional property from the District at this time.”
Ormond cites this court to no authority for the proposition that this court should reverse the circuit court because it failed to hold a full hearing on the petition. Indeed, in its one-paragraph argument in its brief on this point, Ormond fails to develop the issue at all and merely contends that it was entitled to a hearing in order to make its argument. We make two observations. Between the time of its petition filed on January 14, 2005, and the circuit court’s order dated July 10, 2006 (more than a year and a half), the record shows that no request for a hearing was made by Ormond. There is only the oblique reference in its petition to “pending a full hearing.” Secondly, Ormond never specifically invoked § 14-117-208(c) and the requirement that the circuit clerk give notice of a hearing on its petition either before or after the circuit court’s July 10, 2006 order. Nor does Ormond argue § 14-117-208(c) in its brief on appeal to this court. As a final point, Ormond does not tell this court what a hearing would have added to the circuit court’s knowledge on this issue, which the court said it had accumulated from earlier proceedings.
We decline to raise § 14-117-208(c) on Ormond’s behalf, particularly in light of the fact that it did nothing to pursue a hearing for a year and a half between the filing of the petition and the circuit court’s order and the fact that the corporation still does not allude to this statute in its brief on appeal.
We hold that Ormond has not developed this argument on appeal by citation to authority or by convincing argument. See, e.g., Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006) (noting that this court does not develop issues for appellate parties at the appellate level); see also Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006) (holding that this court refuses to consider arguments not supported hy convincing argument or citation to legal authority).
Affirmed in part. Reversed in part.
Danielson, J., not participating.
Beginning with this petition, the parties and the conrt use the term“excluded” rather than “eliminated.” “Excluded” is the term used in the Improvement District Code.
This court is aware of the fact that § 14-117-208(j) refers to § 14-117-207, which includes the thirty-day limit regarding appeals from judgments. The parties do not refer to § 14-117-208Q) in their briefs. Ormond titles its January 14, 2005 petition as a notice of appeal and a petition to exclude its land. Ormond was too late to appeal the November 12, 2006 order, but it was not too late to file a new petition to exclude its land.
The circuit court’s order was, in reality, an order for summary judgment. See, e.g., Robbins v. Johnson, 367 Ark. 506, 510, 241 S.W.3d 747, 750 (2006) (“A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court.”). | [
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Tom Glaze, Justice.
The State has appealed, or in the alternative, petitioned for a writ of certiorari, from an order of the Perry County Circuit Court dismissing three cases against appellee Lynn Wilmoth. Wilmoth was charged with rape in March of 1981; this case was given a docket number of CR81-10. A Perry County jury convicted Wilmoth of rape on February 17, 1982, and sentenced him to twenty-one years’ imprisonment. The Perry County Circuit Court entered the judgment in CR81-10 on September 16, 1982, nunc pro tunc to February 17, 1982. Wilmoth appealed his conviction to the Arkansas Court of Appeals, which affirmed in an unpublished opinion. See Wilmoth v. State, CACR82-162 (Ark. App. May 4, 1983). For unknown reasons, however, the judgment and commitment order from CR81-10 was not sent to the Arkansas Department of Correction (ADC) until October 16, 1997.
Pending his appeal in CR81-10, Wilmoth remained free on bond. However, during the pendency of his appeal in CR81-10, Wilmoth was charged with carnal abuse in Perry County in two additional and separate offenses, docketed as case numbers CR82-05 and CR82-06. Wilmoth entered pleas of guilty in both CR82-05 and CR82-06 on April 12,1983, and he was sentenced to ten years on each count, to be served concurrently. In yet other felony charges, Wilmoth also pled guilty to four counts of first-degree camal abuse in case number CR82-351 in Pulaski County; he received four ten-year sentences, to be served consecutively. The commitment order in CR82-351 also noted that Wilmoth’s sentences were to mn consecutively to the sentence he received in Perry County. Wilmoth was committed to the ADC on April 12, 1983.
Wilmoth was paroled in 1995, but in 1997, he violated his parole; it was apparently at this time that the Perry County conviction and sentence in CR 81-10 were discovered and forwarded to the ADC. Upon being returned to prison, Wilmoth served another seven years until his release in 2004.
On February 22, 2006, Wilmoth filed a motion to dismiss the three Perry County charges — CR81-10, CR82-05, and CR82-06 — on the grounds that his right to a speedy trial had been violated by the State’s failure to send the Perry County Circuit Court judgment and commitment order in CR.81-10 to the ADC until 1997. Citing Jolly v. State, 358 Ark. 180, 189 S.W.3d 40 (2004), Wilmoth argued that the delay of over fourteen years in the placing of the judgment and commitment order into execution violated his constitutional rights. Without conducting a hearing, the circuit court granted Wilmoth’s motion on July 27, 2006. The court found that the State had no valid excuse for the delay in the execution of the sentence, and Wilmoth was prejudiced by the delay “based upon the fact that it effected [sic] his release from prison and his parole status.” As such, the court ordered “that the above cases are dismissed for violation of speedy trial.”
The State filed a timely notice of appeal on August 23, 2006, and now contends that the circuit court lacked jurisdiction to entertain Wilmoth’s motion, or alternatively, that the court’s decision to dismiss the three Perry County cases was in error.
Before addressing the merits of this case, this court must determine whether the State has properly brought its appeal pursuant to Ark. R. App. P. - Crim. 3 (2006). As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Boyette, 362 Ark. 27, 207 S.W.3d 488 (2005); State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002); State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). When this court addresses an appeal by the State, we first determine whether the correct and uniform administration of the criminal law requires our review. See Rule 3(c); State v. Markham, 359 Ark. 126, 194 S.W.3d 765 (2004); State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of the law. State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005); State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001).
However, we have recently noted that, when an appeal involves neither a direct nor an interlocutory appeal following a prosecution, but is rather a civil appeal arising from a collateral proceeding, the appeal is civil in nature, and the State is not required to satisfy Rule 3. See State v. Burnett, 368 Ark. 625, 232 S.W.3d 427 (2007). Because the instant case arises from a collateral proceeding, we conclude, as we did in Burnett, supra, that the State need not satisfy Rule 3.
We now turn to the merits of the State’s appeal. The primary point raised by the State is that the circuit court lacked jurisdiction to entertain Wilmoth’s motion to dismiss. In his motion, the only statutes or rules cited as authority by Wilmoth were Rules 28.1, 28.2, and 28.3 of the Arkansas Rules of Criminal Procedure. These rules, however, are quite plainly inapposite, as they deal specifically with the time in which a defendant must be brought to trial, when that time commences, and what periods of time may be excluded. In this case, Wilmoth has already stood trial, and in fact, he has received a sentence for every conviction and guilty plea that he has accrued. Thus, the only authorities cited in Wilmoth’s motion to dismiss do not indicate what jurisdiction the circuit court possessed to hear his motion.
In its brief on appeal, the State asserts that there was no basis or ground on which the circuit court could have claimed to have the authority to consider or grant Wilmoth’s motion. The State has approached its argument by positing several different ways in which Wilmoth might have attempted to challenge his sentencing, but argues convincingly that none of them would have had merit, even if Wilmoth had utilized them. More specifically, the State discusses the following: 1) postconviction relief under Ark. R. Crim. P. 37; 2) habeas corpus relief; 3) error coram nobis relief; and 4) Ark. Code Ann. § 16-90-111 (Supp. 2005).
Regarding Rule 37, the State maintains that the circuit court lacked jurisdiction to treat Wilmoth’s motion as a Rule 37 motion for several reasons. First, the State notes that Wilmoth did not challenge his belated imprisonment due to the alleged delay in the execution of his sentences, but instead sought to have the judgments of conviction vacated due to the alleged delay. Indeed, Wilmoth’s motion asked the circuit court to “dismiss the charges in Perry County.” This court has held that a “petition for postconviction relief attacking a judgment, regardless of the label placed on it by the petitioner, is considered pursuant to our postconviction rule, Criminal Procedure Rule 37.” Bailey v. State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993) (per curiam) (citing Williams v. State, 291 Ark. 244, 724 S.W.2d 158 (1987)). However, Rule 37 is “applicable only to such persons who are in custody.” Bohanan v. State, 336 Ark. 367, 370, 985 S.W.2d 708, 709 (1999) (emphasis added) (rejecting argument that a person on parole was “in custody” of the Department of Correction and holding that a petitioner must be incarcerated to be entitled to Rule 37 relief). Compare State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998) (holding that the trial court had jurisdiction to grant Rule 37 relief where petitioner Herred was in custody at the time the court ruled on his motion).
Here, at the time Wilmoth filed his petition in 2006, he had been released from custody in 2004 and was on parole. Because he was not in custody, the circuit court lacked jurisdiction to consider Wilmoth’s attack on the judgment as a petition for postconviction relief pursuant to Rule 37. See Bailey, 312 Ark. at 182, 848 S.W.2d at 392 (the timeliness ofa postconviction petition is jurisdictional, and a trial court cannot grant postconviction relief on an untimely petition).
The State further urges that, even if Wilmoth had been in custody, his petition was untimely, and the circuit court lacked jurisdiction to consider it for that reason as well. At the time of Wilmoth’s conviction, a Rule 37 petition had to be entertained within three years after the date of commitment. In Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989), this court held that Rule 37.2(c) required a petition for postconviction relief to be filed “within three years of the date of commitment, unless the ground for relief would render the judgment absolutely void.” Maxwell, 298 Ark. at 331, 767 S.W.2d at 304. Where petitioner Maxwell did not file a Rule 37 petition for seven years, this court held that the circuit court clearly lacked jurisdiction to consider Maxwell’s untimely petition. Id. Moreover, this court held in Locklear v. State, 290 Ark. 70, 71, 716 S.W.2d 766, 767 (1986), that an alleged speedy-trial violation is not a defect sufficient to void a judgment. Accordingly, even if Wilmoth had been in custody, his petition was untimely, and it did not raise a ground for relief that would have rendered the judgment void; thus, we conclude that the circuit court lacked jurisdiction to consider Wilmoth’s motion as a Rule 37 petition for postconviction relief.
The State next raises and addresses an alternative argument wherein it contends that, even if it were possible to view Wilmoth’s motion to dismiss the Perry County cases as a petition for some other form of relief, such as either a request for habeas corpus relief or a petition for writ of error coram nobis, the motion would still have been untimely, and thus, the circuit court still lacked jurisdiction to entertain it. We agree.
The circuit court could not have treated Wilmoth’s motion as a petition for writ of habeas corpus, because Wilmoth was not in custody at the time he filed it. See Anderson v. State, 352 Ark. 36, 98 S.W.3d 403 (2003); Pardue v. State, 338 Ark. 606, 608, 999 S.W.2d 198, 199 (1999) (per curiam) (where petitioner was not incarcerated as a direct result of his conviction when he filed his habeas-corpus petition, the circuit court lacked jurisdiction to grant relief). Further, the circuit court could not have treated Wilmoth’s motion as a petition for writ of error coram nobis because Wilmoth had not petitioned this court for leave to proceed in the trial court with such a petition. See Dansby v. State, 343 Ark. 635, 637, 37 S.W.3d 599, 600 (2001) (circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after this court grants permission).
Wilmoth responds that the court could and should have treated his motion as a writ of error coram nobis, because the writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. See, e.g., Pitts v. State, 336 Ark. 580, 986 S.W.2dd 407 (1999) (per curiam). However, his argument ignores the requirement that he must have first sought this court’s permission to file such a petition. See Dansby, supra.
Finally, the State suggests that the trial court lacked jurisdiction to consider Wilmoth’s motion under Ark. Code Ann. § 16-90-111 (a) (Supp. 2005), which authorizes a circuit court to correct an illegal sentence at any time. The State urges that this statute could be of no aid to Wilmoth for two reasons: first, no argument has been raised that his sentences were facially invalid, and second, the sentences were imposed before the effective date of the original version of that statute, Act 431 of 1983, which was July 4, 1983.
Wilmoth responds by noting that this court has held that § 16-90-111 “is substantially in conflict with Rule 37.2.” In Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994), this court stated that § 16-90-111 (Supp. 1991), “which permits the trial court to correct a sentence imposed in an illegal manner with[in] 120 days after receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time is in conflict with Criminal Procedure Rule 37.” Reed, 317 Ark. at 288, 878 S.W.2d at 377. See also Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (declaring that Rule 37 controls over § 16-90-111, because statutes are given deference' only to the extent that they are compatible with our rules; the language in § 16-90-111 that permitted an illegal sentence to be corrected at any time was in conflict with Rule 37, which provides that a petition is untimely if not filed within sixty days). Wilmoth’s response to the State’s argument is of no avail, however, because whether his motion could be viewed as a petition for relief under § 16-90-111 or under Rule 37, it was untimely in any event.
Finally, Wilmoth suggests that the trial court did not err in correcting his sentence because “Ark. R. Civ. P. 60(a) allows the correction of a judgment outside the ninety-day period where there has been a misprision of the clerk.” Flowever, this contention mns afoul of this court’s statement in McArty v. State, 364 Ark. 517, 519, 221 S.W.3d 332, 332 (2006) (per curiam), that we do not apply Rule 60 in criminal cases, “including those involving a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1.”
In sum, there was simply no authority by which the circuit court could have considered Wilmoth’s motion to dismiss the Perry County cases. Because the circuit court lacked jurisdiction to entertain Wilmoth’s motion, we must reverse the decision of the circuit court and dismiss the action.
Wilmoth contends that the State failed to raise its jurisdictional arguments in the circuit court. However, when the issue is whether the trial court acted in excess of its authority, it becomes a question of subject-matter jurisdiction, and the trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” State v. Boyette, 362 Ark. 27, 31, 207 S.W.3d 488, 491 (citing Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985)). Accordingly, the State’s failure to raise this argument below is not an impediment to our consideration of it on appeal.
Even if the court were to apply the version of Rule 37 in effect at the time Wilmoth filed his motion, the motion would have been even more patendy untimely. In 2006, Rule 37 required that, when a defendant has been convicted and has appealed the judgment of conviction, as Wilmoth did with his 1982 Perry County conviction, a petition for postconviction relief must be filed within sixty days of the date the mandate was issued by the appellate court. See Ark. R. Crim. P. 37.2(c) (2006).
Because we decide this case on the jurisdictional question, we do not address the State’s additional argument, in which it contends that, even if the circuit court could be said to have had jurisdiction, the court nonetheless misinterpreted the holding of Jolly v. State, supra, and erred in granting Wilmoth’s motion to dismiss. | [
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Per Curiam.
Gary W. Potts, a full-time deputy public defender, moves this court for substitution of appellate counsel. He states in his motion that he was appointed to represent the appellant in the circuit court proceedings. He further states that due to a very heavy caseload, he has reservations regarding his ability to provide the appellant’s appeal the attention it deserves. He states his belief that no prejudice will occur and requests an order from this court substituting Dwain Oliver as appellate counsel for the appellant.
Since this court’s decision in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), in which we held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal, the General Assembly has changed the law. Act 1370 of 2001 provided, in part: “[P]ersons employed as full-time public defenders who are not provided a state funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” Act of Apr. 5, 2001, No. 1370, 2001 Ark. Acts 5165, § 1 (codified at Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2005)).
Mr. Potts’s motion does not state whether he is provided a state-funded secretary. Accordingly, we must deny his motion at this time. Mr. Potts may resubmit-his motion, providing information about whether he is provided a state-funded secretary, in order for us to determine whether he qualifies for relief from appellant’s representation in light of section 19-4-1604(b)(2)(B). See, e.g., Walters v. State, 354 Ark. 403, 125 S.W.3d 818 (2003) (per curiam). | [
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Tom Glaze, Justice.
This termination-of-parental-rights case comes to us by petition for review. Appellant Jamie Long appeals from an order terminating her parental rights of her two children, her daughter, K.L., and her son, M.S. Each child has a different biological father. K.L.’s father is Kenneth Langston, and M.S.’s father is Miguel Sanchez. The Arkansas Department of Health and Human Services (DHHS) filed a petition for termination of parental rights against Jamie, Langston, and Sanchez. The circuit court entered an order terminating the parental rights of Jamie and both biological fathers. Jamie appealed that order, and her only argument is that there is insufficient evidence. The court of appeals reversed the circuit court’s termination order, agreeing with Jamie that there was insufficient evidence to support the circuit court’s order. We affirm the circuit court’s order and reverse the court of appeals’ decision.
The children were originally taken into DHHS custody on March 3, 2003, when Jamie was arrested and charged with possession of drugs and drug paraphernalia and two counts of endangering the welfare of a minor. The circuit court immediately issued an emergency order on March 3, the same day of the arrest, granting DHHS temporary custody of the children. Just seven days later, on March 10, the circuit court entered a probable-cause order, finding that there was still probable cause to remove the children from Jamie’s custody. At that time, Jamie was not given visitation rights, because she was incarcerated at the Pulaski County Regional Detention Facility. The circuit court then scheduled an adjudication hearing for April 25, 2003, wherein the circuit court again determined that it was in the children’s best interest for them to remain in DHHS custody. In addition, the circuit court warned that a permanency-planning hearing would be held on February 27, 2004, at which time the court would determine permanent living arrangements for the children. In its order, the court encouraged Jamie to comply with all the court’s directions in order to make progress toward reunification. The court set another review hearing for July 25, 2003. In a review order, filed August 13, 2003, the circuit court indicated that, as of the July 25 review hearing, returning the children to Jamie would not be in their best interest. The circuit court also stated the following in its order:
5. If the mother fails to appear for one more appointment for her psychological evaluation, the mother will pay for any psychological evaluation that she undergoes.
6. [DHHS] has made reasonable efforts to provide services to work toward the goal of reunification with the mother. Services include: a foster home, casework services, transportation, educational services, medical services, visitation, specialized day care, a referral for mom to have a psychological evaluation, a drug and alcohol assessment and random drug screen.
7. Mom has not complied with all the court orders and the case plan services. She has not had a psychological evaluation, she has not completed parenting classes, she no longer attends NA/AA meetings at Celebrate Recovery. Mom did have a drug and alcohol assessment, has had some visitation and some random drag screens. Mom continues to bring people to her visitation although [DHHS] has told her not to do so. Mom arrives late for visits without calling to indicate that she will be late.
The court held yet another review hearing on October 30, 2003, at which Jamie informed the court that she had been living in Georgia for two months. After that hearing, the circuit court entered another foster-care-review order on November 18, 2003. The court, in that order, stated:
3. The court advised Mom that the clock is ticking. Mom has not complied with all the court orders and case plan services. Mom still needs to complete parenting classes, continue intensive substance abuse treatment, visit the children regularly, have random drug screens as set up by [DHHS], have a stable home and employment and demonstrate she can properly provide for her kids.
4. Mom has not visited the kids since September 8, 2003. Mom needs to prove that her children are her priority. [DHHS] will assist the mother with reunification services if she returns to Arkansas.
On February 26, 2004, after the children had been in DHHS’s custody for almost a year, the court held a permanency-planning hearing. At this time, Jamie showed signs of progress toward reunification. She had returned home from Georgia, had completed parenting classes, had visited the children, and had tested negative on a recent drug screen. In fact, the circuit court noted in its order that Jamie was living with her sister and allegedly was working regularly at McDonald’s. Despite that progress, however, the circuit court noted that Jamie had not completed outpatient drug treatment, nor had she been attending regular Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings. Still, based on Jamie’s level of improvement at that time, the circuit court continued with the goal of reunification. After that hearing, Jamie was given unsupervised weekend visitation, but those privileges were suspended when Jamie failed to return the children on time.
The circuit court held another permanency-planning hearing in May 2004. After a three-month grace period from the last permanency-planning hearing, the circuit court discovered that Jamie was still not attending NA/AA meetings. Moreover, she still could not provide the court with documentation that she had received outpatient-drug treatment, she missed a drug screening, and, since the last hearing, she had only visited the children three times. In a subsequent order, the court explained that the case had been thoroughly reviewed at the hearing, and it found that it was in the children’s best interest that the permanency goal be changed from that of reunification to that of adoption, “which can be achieved by a termination of parental rights petition being filed and the court holding an adjudication on that petition.” Even though the court set a termination hearing, however, the court explained that if Jamie made progress in between then and the termination hearing, this order was not a “death knell” to her.
As expected, DHHS filed a petition for the termination of parental rights. The circuit court held the termination hearing on September 15, 2004. At that hearing, evidence was presented that Jamie had recently tested positive to propoxyphene (Darvon), she missed a scheduled drug screen, and she tested positive for opiates in August. The circuit court, in a long, detailed, seven-page order, concluded that termination of Jamie’s parental rights was appropriate and granted DHHS’s petition. From this order, Jamie timely appeals. As stated earlier, the court of appeals, in a 4-2 decision, reversed the circuit court’s order of termination, concluding that there was insufficient evidence to terminate Jamie’s parental rights. We disagree and affirm the circuit court.
The sole issue on appeal is whether there is insufficient evidence to support the circuit court’s determination that Jamie should have her parental rights of her two children terminated. Under Ark. Code Ann. § 9-27-341 (Supp. 2005), a circuit court may terminate parental rights if the court finds that there is an “appropriate permanency placement plan for the juvenile” and finds by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health, and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds:
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve
(12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3) (B)(1) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months.
Ark. Code Ann. § 9-27-341 (b)(1)(a), (b)(3)(A) & (B)(i)(a), (b); see Linker-Flores v. Ark. Dep’t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Linker-Flores, 364 Ark. at 229, 217 S.W.3d at 112. When the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Such cases are reviewed de novo on appeal. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. In the instant case, the circuit court found that there was ample evidence to meet all the above-cited statutory requirements for termination. This court is not left with a definite and firm conviction that the circuit court made a mistake.
A review of the termination hearing reveals the relevant testimony of several witnesses. Jim Pfeiffer, a certified drug-abuse therapist, testified that, during Jamie’s incarceration in May 2003, he performed a drug and alcohol assessment on her. His, report indicated that her drug of choice was hydrocodone, but she had previously used methamphetamine (four or five times) and marijuana (one time). Jamie, at that time, estimated to Pfeiffer that she took around four to five hyrodocone pills a day for five years. In his evaluation, Pfeiffer reported that Jamie stated that she did not need treatment for her drug problem because she had not experienced cravings since her incarceration.
Additionally, at the termination hearing, Forensic Psychologist Paul DeYoub, Ph.D., reviewed his assessment of Jamie’s psychological evaluation. He indicated that Jamie had missed three appointments before she actually made it to his office for the evaluation. He stated that she had an admitted drug problem, more so with prescription pills than any other drugs. According to Dr. DeYoub, Jamie was also involved in a relationship with a man named Mario Cirilo, who was given a top priority in her life. In fact, she stated in the interview that after the case was over she intended on marrying him. Dr. DeYoub, after his evaluation, diagnosed Jamie with Personality Disorder NOS [not otherwise specified] because she had traits of several different personality disorders. More importantly, he concluded that she had a drug-abuse problem, and he indicated that Jamie was certainly at risk for continued drug use.
Jan Kucala, K.L.’s counselor, testified she observed family progress during her counseling sessions with K.L. She stated that K.L. had bonded to her mother, and there was a chance that K.L. would regress if Jamie’s rights were terminated. However, Kucala noted K.L.’s need for stability and did not recommend immediate reconciliation with Jamie; instead, she recommended that Jamie be given more time to become stable.
Jamie testified that she was currently employed by her father, earning about $200 a week for taking care of her aged grandmother. She explained that, while she had previously maintained employment at McDonald’s, she was pregnant with her third child and working at McDonald’s while pregnant became too difficult. Moreover, she contended that she was moving from a one-bedroom apartment to a larger one in the very near future — one that would be more suitable for her children. With respect to her drug-abuse problem, Jamie maintained that she had been seeking treatment with the UAMS Adult Psychiatry Department, but she failed to provide proof of her treatment there. Jamie also stated that she attended Celebrate Recovery at a local church, and she was unaware that it was not in line with the recommendation for intensive outpatient treatment.
Finally, Tamika Floyd, one of Jamie’s DHHS caseworkers, informed the court of her lack of compliance with the case plan. In short, Floyd attested that (1) with respect to the positive drug screen, Jamie had not provided her with proof of prescription medication, (2) she never saw proof that Jamie had completed drug treatment, and (3) Jamie never provided her proof of employment while at McDonald’s. In fact, the only proof of employment that Jamie provided, according to Floyd, was a letter from Jamie’s father on the day of the termination hearing. Moreover, despite Jamie’s claim that she had put the additional money down to move into the larger apartment, Floyd testified that when she called the apartment complex on the day before the hearing, she had yet to put down a deposit or transfer her lease. Finally, Floyd testified that since her case was open, Jamie had not “had a period of being stable.”
Jamie’s argument, in sum, is that she “substantially complied with the orders of the trial court and corrected the problems that caused removal of her children; therefore, her parental rights should not have been terminated.” In other words, she maintains that the record reveals that she complied with the circuit court’s order, and, thus, termination of her parental rights was not appropriate. Yet, the record reveals numerous instances where Jamie failed to comply with orders mandated by the circuit court. Of utmost concern is that Jamie never provided evidence to the circuit court that she had remedied her drug problem — the very reason for the children’s initial removal. For instance, Jamie never provided evidence of drug treatment, regular attendance at NA/AA meetings, and, even though she claimed that the positive drug screen was a result of properly prescribed medications, Jamie failed the drug test taken prior to the termination hearing.
Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Linker-Flores v. Ark. Dep’t. of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). However, parental rights should not be allowed to continue to the detriment of the child’s welfare and best interest. Id. Here, because the evidence shows that Jamie failed to address her problems with drug abuse, failed at providing any meaningful proof of employment, and refused to establish proof of a stable living environment for her children, we affirm the circuit court’s order terminating her parental rights.
Affirmed.
Court of Appeals Reversed.
Jamie’s explanation for being late was that she had been hospitalized, but she never provided proof of such hospitalization to the circuit court.
Notably, the circuit court, in its termination order, did not take judicial notice and incorporate by reference into the record all pleadings and testimony in the case that occurred before the termination-of-parental-rights hearing. The circuit court, however, did take judicial notice of its prior orders issued in this case. Thus, our review of the case preceding the termination hearing is limited to the circuit court’s prior orders. | [
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Battle, J.
The Rex Buggy Company sold to Charles H. Ross two carloads of buggies. Each carload was purchased under separate orders and at different times. This action was brought by the company against the St. Louis, Iron Mountain & Southern Railway Company and Ross for the possession of the carload purchased last. The complaint in' the action contains allegations as to the first carload. But, as the purchases of the two carloads were separate transactions, they should have been omitted, and we shall say nothing about them. Plaintiff alleges that it sold to Ross a certain carload of buggies on condition that the title should remain in plaintiff until they were paid for, and that they should be sold at retail by Ross, and the proceeds of each buggy as sold should be delivered to it; that it shipped the carload to Ross on the 14th of April, 1904, in a car No. 13,549 of the St. Louis, Iron Mountain & Southern Railway Company, at the same time forwarding the bill of lading executed therefor to Ross; that the carload was of the value of $2,142.50; that thereafter, and before the buggies were delivered by the railway company, learning that Ross was -insolvent, it stopped the goods in transitu in the possession of the- railway company ; that the defendants, although requested to do so, refused to deliver possession to the plaintiff; and that -it is entitled to the possession thereof.
The defendant Ross answered, and denied that he was insolvent, and that plaintiff had the right to stop the buggies in transitu; admitted that he purchased the buggies; that he has the bill of lading therefor; and claims the same, and offered to comply with the terms of the sale; and alleged that he was damaged by being deprived of the sale and possession of the goods in the sum of $1,000, and asked for judgment.
By consent of all the parties the action as to the railway company was dismissed.
A jury tried the issues in the case, and, after hearing the evidence adduced by both parties and the instructions of the court, returned a verdict in favor of the defendant, Ross, for $250 damages. Plaintiff appealed.
Appellant contends that the verdict was not sustained by sufficient evidence.
The buggies were sold conditionally to appellee, appellant retaining the title until the purchase money was paid. They were sold to be retailed in the regular course of trade, with the understanding that the proceeds of the sale should remain the property of the buggy company until the purchase price was paid. Ross agreed to execute his promissory note - for the price of the buggies, upon receipt thereof, payable in four months after date, with the privilege of renewing his note for one-half of the price at maturity, payable at the expiration of four months thereafter. Upon executing the notes he was entitled to the possession of the goods and to retail the same in due course of trade until he failed to comply with the conditions of the sale to him. Columbus Buggy Company v. Turley, 73 Miss. 529; Rogers v. Whitehouse, 71 Me. 222.
Evidence was adduced in the trial which tended to prove that appellee was solvent at the time of the sale, and thereafter so continued; that he offered to comply with the terms of his purchase; that he claimed the carload of buggies, insisted upon his title to the same, and refused to give them up; and that appellant sued out an order of delivery in this action, and by means thereof obtained possession of the buggies, and ever thereafter held the same, to his damage in a sum as much as or more than the amount of the verdict.
The evidence was sufficient to sustain the verdict.
Appellant also insists that the court erred in instructing the jury, over its objections, as follows:
“Insolvency is a general inability of a merchant to pay his indebtedness in the ordinary course of business, and the protest of a note, while a circumstance to be considered, is not conclusive evidence of insolvency.” ' The definition of insolvency in this instruction is not correct. Insolvency is not confined to merchants, and it is not necessary to be a merchant to be insolvent. But appellant did not object to this part of the instruction. As appellee was a merchant, this part of it could not have been prejudicial. It objected to the latter part in which the court told the jury'that the protest of a note is not conclusive evidence of insolvency. In this'part the court told the jury that the protest, was a circumstance to be considered, but it did not exclude from their consideration all other evidence upon the same subject— that it was not conclusive. This is the law, and we can not see how the court committed a prejudicial error in telling the jury so.
Judgment affirmed. | [
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Battle, J.
“The purpose of this action,” as stated in the decree of the court therein, “is to restrain the defendant, W. J. Pinson, as clerk of the circuit court, from purchasing the necessary records for the use of the circuit, chancery and probate courts and recorder at the proposed new seat of justice at Eelsenthal in -the Eastern District of Union County, and from establishing a separate circuit clerk and recorder’s office in said district, and to restrain the defendant, W. G. Pendleton, as sheriff, from opening a separate sheriff’s office in said district.”
The ground upon which the injunction was sought and granted is the alleged unconstitutionality of the act of the General Assembly of the State of Arkansas, entitled “An act to establish twti separate judicial districts in the county of Union, State of Arkansas,”. passed over the veto of the Governor on the 26th day of April, 1905.
The act provides “that the County of Union shall be divided into two judicial districts, to be called the El Dorado District and the Eastern District.”
The chancery court held that the act is unconstitutional. In so holding it says:
“We first meet with difficulty when we come to consider the fourth section of the act. This section provides, among other things, for the holding of circuit, chancery and probate courts in the Eastern District, and that such courts shall be held in the town of Felsenthal, in the public hall in the bank building in •said town; and that the records shall be kept in the vault of said bank for the next five years, and afterwards at a place to be provided by the citizens of said district, free and without co.st to the county. The particular bank building is not named. There is nothing to designate the particular bank building referred to, except the assumption, which may or may not be true, that there is but one such building at Felsenthal. But, if we assume this to be the case, it does not remove the difficulty. It is proposed here, by simple legislative enactment, to condemn for public use private property (whether of an individual or corporation does not appear) without process of law, and without any provision for compensation to the owner. Further than this, it is proposed by mere legislative enactment to open the doors of the vault of a banking establishment, where the funds of the bank and other valuables are kept, .to a public officer, not connected with the bank or its concerns, with, necessarily, the power and privilege of ingress and egress at all hours, without consulting the owners or managers of the bank, without process of law, and without any provision for compensation to the owner, for the use of the same. This provision is clearly in contravention of article 2, section 22, of the State Constitution, which provides: 'The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or condemned for public use without compensation therefor.’ And this arrangement is to continue for five years, with no provision, under any circumstances, for holding a session of any of the courts named anywhere else in the Eastern District; and no provision, under any circumstances,, for storing the records, or keeping them at any other place than in the vault of this bank.
“Now, if it were to so happen that the 'owners of this bank building should refuse to permit the hall to be used, or should refuse to permit the officers to use the vault of the bank as a receptacle or repository for the records, or should refuse to give the clerk access to the records deposited in the vault except at certain hours which the bank officials might denominate ‘business hours’; or suppose this particular hall should be destroyed by fire or otherwise, or should become untenable or unfit for a court room, or that the vault named should be destroyed, or prove an unfit place for the keeping of the records, where would the courts be held, and where the officers store their records? There is no pro- • vision whatever for the county court or other officer to provide a place. The only authority for holding a court in this particular part of the county is the act in question; and that takes away from t'he county court, and other county authorities, all authority to provide or designate a place for holding the courts, or for keeping the records, not only for a period of five years, but for all time to come. This provision of the act is emphatic, that the courts shall be held in the town of Felsenthal and in this particular hall for the time named; and after that, not at a place to be designated by the county authorities, but at whatever place that may be provided in the Eastern District by the citizens of that district, free and without cost to the county, evincing clearly the purpose of the Legislature that at least the court house and vault for this Eastern District should cost the county nothing, which cost could not be, if the county court, or other officer acting in .an official capacity, were to make the provision necessary. But, suppose there should be no difficulty about holding the courts at the place designated in the act for the term of five years, and that at the end of that time the citizens of the Eastern District should fail to provide a place for the holding of courts, or a suitable receptacle for the records? There is nothing to indicate that they have agreed to do so; and, if they had so agreed, the agreement would be void. Besides, the citizenship of a particular locality undergoes changes; and much of the present citizenship will likely be changed for others in the next five years.”
We do not think that section 4 of the act is unconstitutional because it provides that the circuit, chancery and probate courts for the Eastern District shall be held in the public hall in the bank building in the town of Felsenthal, and that records shall be kept in the vault of the bank for the next five years. It does not authorize the use of the hall and vault by the courts without the consent of the owner, because the Constitution of the State, which is higher than the statute, provides that “private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” Art. 2, § 8. If the owner should refuse to allow the courts to use the hall and vault, the icounty court of the .county could provide a temporary court house for the use of courts and records. Hudspeth v. State, 55 Ark. 323; Lee v. State, 56 Ark. 4. This part of the section could be stricken out without impairing the validity of the act. It is unnecessary to consider, that portion of the section which provides that, after the expiration of the five years, the courts shall be held and the records kept in the Eastern District “at a place to be provided by the citizens of said district, free and without cost to the county.” We can not anticipate what the citizens will do. When they refuse to provide the place free of cost to the county, it will be time to consider the effect of the refusal.
The court further says:
“But there is a provision in this section yet to be considered. It is provided that no citizen or resident of the Western District (I presume that by this is meant the El Dorado District) shall be liable to be sued in the Eastern District; nor any citizen of said Eastern District shall be liable to be sued in the Western District in any action whatever. Now, if this provision is valid, it follows that if any person residing in Union County or elsewhere in the State, or even a non-resident of the State, has a cause of action against two or more persons residing in different districts of Union County, as in this act defined, whether such cause cf action be legal or equitable, and whether it grows out of contract or tort; whether it be on a bond, bill, promissory note, mortgage, express or implied trust, or open account; even an action on the defaulting officer’s bond, he could not couple such defendants in a single action, and send his process across the district line to summon defendant to answer. His only course would be to institute suits in both districts, or to give up his cause as against all except such as might happen to reside in one district. This, too, in real actions, when the general law of the State and universal custom provide that such actions shall be brought in the forum in whose territorial jurisdiction the real estate lies; and that, too, without regard to whether any of the defendants reside in such territory.”
This part of the section has reference to actions wherein all, the defendants are residents of the same district, and the place of their residence determines where the action shall be brought, and must be construed in connection with section 6 of the act, which says: “That, in order to ascertain in which of the respective districts in said county actions cognizable in the circuit and chancery courts shall be returnable and tried, the said districts, for all the purposes of this act, shall be considered as separate and distinct counties, and the mode and place for trying suits shall be determined by the general law applicable to different counties.”
The words “criminal court” are used in section six. This is a clerical error. Circuit court is meant.
The proviso in this section is objected to by the chancery court, but it is unnecessary to notice it in this opinion. It may be stricken out, without impairing the validity of the act.
The next objection to the act is to section 16. Of this the court says:
“The 16th section of the act provides, inter alia, ‘that the clerk of the circuit court of Union County shall keep an office in the town of Felsenthal in the‘Eastern District, at which place said clerk or his deputy shall reside, in addition to the office now required by law, to be kept, at the county seat of said county, and that it shall be the duty of said clerk to provide a seal for the circuit and .chancery court of the county of Union for the Eastern District, which shall be the seal of the probate court of the Eastern District, and also the seal of the new recorder [whatever that may mean], and said seal to be in all respects and in like manner as the seal of the circuit court is now used in this State; and that he, said clerk, shall furnish all necessary books and records now by law required to be kept in the office of the circuit and probate courts and recorder’s offices in this State.’ It is contended, and I think correctly, that it is intended by this provision to .make or have the circuit clerk to act as the clerk of the probate court of Union County for this eastern district. This is manifest, if from nothing else, from the provision that the seal of the circuit, court shall be the seal of the probate court. * * * It is manifest that the idea of the Legislature was to provide for but one clerk for all the courts in the Eastern District, and that the clerk of the circuit court should be the clerk of all the courts in said district. The idea that Union County has, or is entitled to, a separate county'clerk is entirely ignored. This may have grown out of the fact that whoever drafted the bill for the act in question was ignorant of the fact that Union County has, and is constitutionally entitled to, two clerks. But, however it came about, the fact remains that the county is entitled to two clerks, and in fact that the act in question undertakes to deprive a part of the citizens of the county of the benefit of a separate county clerk, who is ex officio clerk of the probate court, is an infringement on the constitutional rights of Union County’s citizens residing in this Eastern District. It follows that section 16 of the act is void.”
The above construction of section sixteen of the act is not correct. Such is not its legal effect. In assuming that Union County was entitled to only one clerk, the Legislature did not deprive it of one. It did not “alter, the law by betraying an erroneous opinion of it so as to make it accord with the misconception and- it did not undertake to carry its mistake into effect by making it a law. As said by Chief Justice Marshall in Postmaster General v. Early, 12 Wheat. 148, “a mistaken opinion of the Legislature concerning the law does not make law.” Wood v. Wood, 59 Ark. 451; Endlich on the Interpretation of Statutes.' § 372. Notwithstanding the Legislature was in error as to the clerks of Union County, it is still entitled to a clerk of the circuit court and a county clerk, and they are clerks in both districts, and are required to perform their respective duties therein in the manner required by law and at the places appointed for the performance of the same.
The act is defective and can be nmch improved, but the defects to which our attention has been called do not affect its constitutionality.
The decree of the court is reversed, and the complaint of appellees is dismissed for want of equity. | [
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Riddick, J.
This was an action by the Theo. Maxfield Company against C. E. Jett to recover the amount due on two accounts for goods and merchandise sold and delivered.
One of these accounts was for goods sold to defendant by the plaintiff, Theo. Maxfield Company, a corporation doing business at Batesville. The other account was for goods sold to the defendant by the Maxfield Grocery Company, a corporation formerly doing business at the same place. Plaintiff alleged that, though the latter was a separate corporation, the stockholders in both corporations were the same, and that the plaintiff was now the owner of the account of the Maxfield Grocery Company.
There was no denial of this allegation in the answer, but before filing his answer the defendant filed a motion objecting to the complaint on the ground of a misjoinder of parties and actions, and asking that the second paragraph of the complaint be stricken from the complaint, or that plaintiff be compelled to elect on which count of its paragraph it would proceed to trial. This motion to strike out the cause of action improperly joined was proper practice under our statute. Kirby’s Digest, § 6081; Waldo v. Thweatt, 64 Ark. 126.
We are of the opinion that the motion to strike out the second count in the complaint or compel an election should have been sustained. An open account is, under our statutes, not assignable, and a party to whom it is sold or transferred can not sue on it alone, but must make his assignor a party to the action. St. Louis, I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541. It follows that the Maxfield Grocery Company was a necessary party to an action to recover the amount due on the second account, and for that reason a suit on this account could not be joined with an action on the first account, the parties plaintiff not being the same. Meehan v. Watson, 65 Ark. 211.
There are other points discussed, but we are of the opinion that the rulings and judgment of the circuit court on the first paragraph of the complaint were correct. That paragraph was based on the account of Theo. Maxfield & Company against defendant for $306.42, but the circuit court found that one item of $79.66 was improperly charged on that account.
We are of the opinion that the judgment of the circuit court for the balance due on that aco.unt with interest, after deducting the sum named, should be affirmed. The clerk of this court will make the computation and enter judgment accordingly.
But the judgment on the second paragraph of the complaint for the account pf the Maxfield Grocery Company will be reversed, and the action thereon dismissed without prejudice to another suit. | [
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Riddick, J.
The defendant, W. H. Hoard, was indicted by the grand jury of Ouachita County for murder in the first degree for killing Ely Ford by shooting him with a pistol. On a trial he was convicted of voluntary manslaughter, and his punishment assessed at two years in the penitentiary. From this judgment he appealed.
The defendant and Ford were negro barbers, working in the same shop. Some altercation having arisen between them, Ford, who was the larger man of the two, started towards the defendant with a stick in his hand, and defendant shot him twice with a pistol. At the time the shots were fired Ford was some seventeen or eighteen feet away with two of the chairs of the shop between him and defendant. The first shot missed Ford, and the witnesses say that he stopped and seemed to be trying to get behind a chair when the second shot was fired. This shot entered his head, and produced almost instant death.
The defendant asked the court to instruct the jury that if “it appeared to defendant without fault on his part that he was in danger of losing his life or receiving great bodily harm, then in that event he was not required to wait until the deceased got in reach of him with the stick before defending himself.” The court modified this instruction by inserting therein the words, “acting as a reasonable person.”’ The law, as thus declared, was that the defendant had a right to defend himself if it appeared to him “acting as a reasonable person, without fault on his part, that he was in danger of losing his life or receiving great bodily harm.” Counsel for defendant contends that the trial court erred in modifying the instruction in that way. But if it appeared to defendant without fault on his part that he was in danger, that is to say, if defendant acted with caution in coming to the conclusion that he was in danger, he then acted as a reasonable person in coming to such conclusion. So it seems to us that the words added to the instruction did not change the sense of it, the phrase added being only a repetition in other words of what was said before. The only error committed by the court on adding these words was the rhetorical one of tautology, which in itself is not prejudicial, for the meaning of the instruction is not thereby altered.
If it had been shown that the defendant was a weak-minded person bordering on idiocy, then such a reference to a reasonable person might have been prejudicial, for the law is not so unreasonable as to require that one bordering on idiocy should in defending himself act as a reasonable person. But, when nothing is shown to the contrary, the law presumes the defendant to be a person of ordinary reason, and holds him accountable as such. In such cases our statute, as well as the decisions of this court, show that the trial court did not err in telling the jury that the defendant must act as a reasonable person. In other words, he must not only believe, but he must have reasonable cause to believe, that he is in immediate danger of loss of life, or of receiving great bodily harm, before he can lawfully slay his assailant. Kirby’s Digest, § 1797; Palmore v. State, 29 Ark. 248; Brown v. State, 55 Ark. 593; Velvin v. State, 77 Ark. 97; Allen v. United States, 164 U. S. 498. This is the law in most of the States, and is thus stated in a recent work: To justify taking life in self-defense, “it should appear that the circumstances in which the slayer was placed were such as would have produced the fear of death or great bodily harm in the mind of a reasonable man-one reasonably prudent, courageous and self-possessed. To justify the taking of human life, the law makes no discrimination in favor of a coward or a drunkard or any particular individual, but the circumstances must be such as to justify the fears of a reasonable man.” 25 Am. & Eng. Enc. Law (2 Ed.), 262, 263.
Mr. Wharton, in his work on Criminal Law, makes a labored argument to show that this test of a reasonable man is inadequate. But, while we can agree to much that he says, some of his questions and illustrations indicate that he had an erroneous conception of the rule he is combating. For instance, to quote his language, after stating that some of the courts hold that the danger must be such as would move the fears of a reasonable man, he proceeds as follows: “But who is the ‘reasonable man’ who is thus invoked as the standard by which the apparent danger is to be tested? What degree of reason is he supposed to have? If he be a man of peculiar coolness and shrewdness, then he has capacities which we rarely discover among persons fluttered by an attack in which life is assailed; and we are applying, therefore, a test about as inapplicable as would be that of the jury who deliberate on events after they have been interpreted by their results. Or, if we reject the idea of a man of peculiar reasoning and perceptive powers, the selection is one of pure caprice, the ideal reasonable man being an undefinable myth, leaving the particular case ungoverned by any fixed rule. And that this ideal reasonable man is an inadequate standard is shown by a conclusive test. Suppose the ideal reasonable man would at the time of the conflict have believed that a gun aimed by the deceased was loaded, whereas in point of fact the defendant knew the gun was not loaded; would the defendant be justified in shooting down an assailant approaching with a gun the defendant, knows to be unloaded, simply because the jdeal reasonable man would suppose the gun to be loaded? No doubt that in such case no honest belief of the ideal reasonable man would be a defense tc the defendant who knew that the belief was false and that he was not really in danger of .life. And if the belief of the ideal reasonable man be not admissible to acquit, a fortiori it is inadmissible to convict.” Wharton on Crim. Law (io Ed.), § 489. Now, this argument and illustration of the learned author have often been quoted to show the fallacy of the rule which tests the conduct of the defendant by that of a reasonable person, but it does not seem to us to be of much force. First, his questions as to who is the reasonable man by whose conduct that of the defendant is to be judged, and what degree of reason must he possess, are answered by his own statement in the previous section that he must be a man of ordinary reason. This is the law both in civil and criminal procedure. When, in order to determine whether one has been guilty of negligence or not, it becomes necessary to test his conduct by comparing it with what we should expect of a reasonable person under the same circumstances, the reference is always to a person of ordinary reason and prudence. To quote the words of another author on this point, “the standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man — the average prudent man, or as our books rather affect to say, a reasonable man standing in this or that man’s shoes.” Webb’s Pollock on Torts (Am. Ed.), 540.
Second, the illustration which Mr. Wharton makes in order to show that the test of a reasonable man is inadequate seems to be based on the erroneous assumption that the “reasonable man” referred to in the rule is some bystander who might have knowledge of material facts of which the defendant is ignorant, or be ignorant of facts of which the defendant had knowledge. But it is impossible, under the rule, to make such an assumption, for under the rule the supposed reasonable person by whose conduct that of the defendant is tested is one placed in the same situation as defendant, knowing what he knows or ought to know, and i'.othing more, and beset by the same assailant under the same circumstances. It is therefore impossible to assume under this rule that the defendant might honestly believe that the pistol in the hands of his assailant is loaded, while the reasonable person by whose conduct that of the defendant is tested knows it to be unloaded, or that the reasonable person should believe it to be loaded, while the defendant knows to the contrary. The question for the jury under this rule is whether the defendant acted as a man of ordinary prudence and caution would have acted under the same circumstances. In determining that question, only those facts known to the defendant, or which he as a man of ordinary prudence and reason ought to have known, are to be considered as part of the circumstances by which his conduct is to he judged. When we keep this in mind, it will be seen that for practical purposes there is little difference between this rule which judges the conduct of the defendant by that of a reasonable person placed in his situation and the rule which judges him by determining whether under the circumstances he acted without fault or carelessness. For, if you adopt the doctrine that the defendant must act without fault or carelessness, in other words without negligence, then, in order to determine whether he was guilty of negligence or acted with due care, you must compare his conduct with what you would expect of a man of ordinary sense and prudence placed under the same circumstances, for that is the way a question of due care or negligence is determined. The definition of negligence itself shows that this is so. “Negligence,” said Alderson, B., in a decision that has often been approved, “is the omission to do something which a reasonable man * * * would do, or doing something which a prudent and reasonable man would not do.” Blyth v. Birmingham Water Works, 11 Exchequer, 783.
It follows that if the guilt or innocence of the defendant depends on whether he acted without negligence, or, in other words, without fault or carelessness, then, in order to determine that question, you must compare his conduct with that which you would expect from a man of ordinary prudence and reason under the same circumstances. So by either rule you come at last to the question as to whether the' defendant acted as a reasonable person should have done under the same circumstances; which shows that the rule is the same, and that the two ways of stating it amount in substance to the same thing. This view is supported by a large number of decisions of the courts of the different States and also of the United States. Palmore. v. State, 29 Ark. 248; Brown v. State, 55 Ark. 593; Fitzpatrick v. State, 37 Ark. 257; Velvin v. State, 77 Ark. 97; State v. Crawford, 66 Iowa, 318; State v. Row, 81 Iowa, 138; State v. Shreves, 81 Iowa, 615; People v. Williams, 32 Cal. 280; People v. Lynch, 101 Cal. 229; Commonwealth v. Woodward, 102 Mass. 155; Roden v. State, 97 Ala. 55; Allen v. United States, 164 U. S. 492, 498.
In the last case cited above the Supreme Court of the United States said: “It is clear that to establish a case of justifiable homicide it must appear that something more than an ordinary assault was made upon the prisoner; it must also appear that the assault was sxtch as would lead a reasonable person to believe that his life was in peril.”
Illustrations of these two different ways of stating the law of self-defense may be found in our own decisions. In one of them the law on this point is stated substantially as follows:
“In ordinary cases of one person killing another in self defense it must appear to the defendant that the danger was so urgent and pressing that, in order to save his own life, or prevent his receiving great bodily injury, the killing was necessary. And if it does so appear to him, and he acts in good faith under such belief without fault or carelessness, he will be excused, though it should turn out that he was mistaken in the belief of danger. But to justify the defendant he must act with due circumspection, and if there was no such danger, and his belief in the existence thereof be imputable to his own fault or carelessness, he is not excused, however honest the belief may be.” Smith v. State, 59 Ark. 137; Magness v. State, 67 Ark. 594, opinion of Battle, J.
This statement of the law, as we have seen, is in accordance with the views of Wharton, and is also preferred by Bishop, who says that it is “more nicely in accord with the principles upon which the rule is founded.” Bishop’s New Crim. Law, § 305. Other decisions of this court follow the other form of stating the rule in substance as follows:
“In ordinary cases of one person killing another in self-ciefense it must appear to the defendant that the danger was so urgent and pressing that, in order to save his own life or prevent his receiving great bodily injury, the killing was necessary; and if it does so appear to him, and he acts in good faith under such belief, and has reasonable cause therefor, he will be excused, though it should turn out that he was mistaken in the belief of danger. But to justify the defendant there must be reasonable cause for his belief of danger; in other words, the circumstances under which the defendant acted must be sufficient to excite the fears of a reasonable person placed in the situation of defendant; and if there be no danger, and no reasonable cause for such belief, defendant will not be excused, however honest his belief may be.” Palmore v. State, 29 Ark. 248; Magness v. State, 67 Ark. 607, opinion of Wood, J.
While Mr. Bishop, -in his able work on Criminal Law, states the law as laid down in Smith v. State, 59 Ark. 137, yet in a note he refers to the other form of stating it last above stated as found in Palmore v. State, 29 Ark. 248, and in the other cases before referred to, and says: “This statement of the doctrine is under the facts of most cases not in essence different from that in my text: namely, without fault or carelessness. But as a general doctrine it is believed to be less accurate and more likely to mislead the jury.” I Bishop’s New Crim. Law section, 305, note 2.
It is easy to imagine a case where, as Mr. Bishop says, the statement of the law as found in Palmore v. State might mislead. For instance, if the defendant was a person bordering on idiocy or a boy just arrived at the age of legal responsibility for crime, it might be very unjust to test the conduct of such a person by that of a man of average judgment and reason. But such cases are exceptional, and we do not have one of that kind before us. For ordinary cases we think there is no substantial difference in these two ways of stating the rule, and consider it a matter of form that should be left to the taste and judgment of the trial judge. We have examined the question at greater length than its importance may seem to deserve, for the reason that there is some little conflict in our own decisions on this point.
Our conclusion is that no prejudicial -error was committed. While there was provocation, the jury made allowances for it, and we think the evidence sufficient to support the conviction for manslaughter, and the judgment is therefore affirmed.
Battle; J., not participating. | [
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Battle, J.
On the 28th day of March, 1906, a Democratic primary election for the nomination of candidates for various offices was held in the county of Sebastian, in this State. N. E. Hester was a candidate at that election for the nomination as candidate of the Democratic party for the office of county clerk of that county. According to the returns of the election, he was defeated by his opponent, T. N. Reed, who was afterwards declared the nominee of the Democratic party of Sebastian County ■for county clerk. On the 23d day of June, 1906, Hester filed a complaint in equity before J. V. Bourland, chancellor of the Sebastian Chancery Court, and thereby sought to contest the election of Reed upon various grounds of fraud and irregularity. The chancellor refused to hear the contest; and Hester filed in this court a petition for mandamus to compel him to do so.
The proceedings before the chancellor were based upon an- act of the General Assembly of this State, entitled “An Act to Provide' for Contests in Primary Elections,” which is as follows:
“Sec. 1. That any defeated candidate at any legalized primary election in this State may contest such an election before the chancellor at chambers, or the chancery court of the chancery district in which such an election took place, by giving the contestee five days’ notice in writing, which notice shall be served as other process is served, and by filing a complaint in equity setting forth the grounds of such contest in the county where such contest originated. Said contest shall be heard by such chancellor at chambers or the chancery court, if it be in session in the county where the contest originated, upon depositions, affidavits, or oral testimony.
“Sec. 2. The chancellor at chambers or the chancery court shall have the power to have the ballots, ballot boxes, poll books, and tally sheets used at such an election brought before him and investigated and the ballots recounted, and do all other acts and things necessary to arrive at the true result of such an election.
“Sec. 3. The chancellor at chambers or the chancery court shall hear and determine such contest speedily and without delay, to the end that the name of the successful candidate may be certified as required by law and printed on the ballots to be voted at the ensuing ©lection.” Acts 1905, c. 328, p. 782.
The intention of this act is to vest the chancery court with the jurisdiction to hear and determine contested elections for nominations, with power to the chancellor to hear the same in the vacation of court. The respondent holds the act to be unconstitutional.
The Constitution provides: “The judicial power of the State shall be vested in one Supreme Court; in circuit courts; in county and probate courts; and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established; and, when deemed expedient, may establish separate courts of chancery.” Art. 7, § 1.
It vests the-Supreme Court with appellate jurisdiction and with power to issue writs of quo warranto to the circuit judges and chancellors, “and the officers of political corporations when the question involved is the legal' existence of such corporation.”
The county court has 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.”
Probate courts have jurisdiction “in' matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates.”
Justices of the peace are vested with jurisdiction, exclusive of the circuit court, “in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest, and concurrent jurisdiction in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars, excluding interest; and concurrent jurisdiction in suits for the recovery of personal property, where the value of the property does not exceed the sum of three hundred dollars, and in all matters of damage to personal property where the amount in controversy does not exceed the sum of one hundred dollars;” and such jurisdiction of misdemeanors as may be prescribed by law, and to sit as examining courts and commit,, discharge or recognize offenders to the courts having jurisdiction for further trial, and to bind persons to keep the peace or for good behavior; and they are made conservators of the peace in their respective counties.
The General Assembly may invest corporation courts, for towns and cities, with jurisdiction concurrent with justices of the peace in civil and criminal matters, and may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary.
The General Assembly may authorize the judge of the county court of any county to hold a court of common pleas, with such jurisdiction in matters of contract and other civil matters, not involving title to real estate, as may be vested in such court.
The circuit court is vested with jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by the Constitution; and, until the General Assembly shall deem it expedient to establish courts of chancery, shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court; and with appellate jurisdiction over courts inferior to it. Const. 1874, art. 7, § 15.
The Constitution divides and parcels the judicial power of the State among the courts named. The General Assembly is authorized to create only three classes of courts, corporate, common pleas and chancery courts, and the jurisdiction with which they may be vested is specified. It can vest chancery courts only with jurisdiction in matters of equity. All other jurisdiction is vested in other courts. The Legislature is without power to divest or change it. Any law passed for that purpose would be unconstitutional and void.
Election contests for nominations are not matters of equity, and have never been so considered'; and the act of the Legislature to. vest chancery courts with -jurisdiction as to them is unconstitutional and void.
After providing for the contest of elections for • Governor, Secretary of State, Treasurer, Auditor and Attorney General, the Constitution provides: “The General Assembly shall provide by law the mode of contesting elections in cases not specially provided for in this Constitution.”. Art. 19, § 24. But this has reference only to elections for office, and not for nominations. The only elections of persons mentioned in the Constitution are elections. for office.
The petition is denied. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the chancery court of Chicot County declaring the title to certain lands in that county to be in S. S. Bissell, and quieting his title thereto against the claims of the defendant, W. T. Hardie. Bissell claims title to the land under a chain of conveyances extending back to the United States, while Hardie claims title under a tax sale and under a sale in pursuance to a decree agaiqst the land for overdue taxes.
The evidence shows that this land was conveyed to Bissell by Valentine and A. L. Morgan in 1895, and that the Morgans held by mesne conveyances from the Government. This action was commenced by the railway company, which claimed the lands, and which alleged that they were wild, unimproved and unoccupied. Hardie and Bissell afterwards became parties to the action, and set up title in themselves, but neither of them denied the allegations in the complaint of the railway company that the lands were wild and unoccupied. The recitals in the decree show that the chancellor based his judgment in favor of Bissell, not only on the fact that Bissell had title by these conveyances,, but on the further fact, found by the chancellor, that Bissell under this claim and color of title had paid taxes continuously for more than seven years next before the bringing of the suit, three of the payments being subsequent to the act of 1899 above referred to.
Now, there is an'order of the chancery court found in the transcript which sets out the evidence on which the case was submitted to the chancellor. This order immediately precedes the formal decree, and seems to have been intended as a part of that decree. It recites that Bissell introduced, with other evidence, “tax receipts from 1895 to 1902, inclusive, and record of tax payments prior to 1895.” It further recites that Hardie, in addition to other evidence, introduced “the tax receipt record from 1869 to 1903 inclusive.”
.Now, neither a copy of these tax receipts nor a copy of the tax receipt record is found in the transcript. It is true that there is copied in the record what purports to be a report of the clerk as to payments of taxes on the land in controversy from 1882 to 1903 inclusive. The clerk certifies that this report contains “a true, correct and perfect copy of the tax payments” for the years therein mentioned as the same appears on the books of his office. This report may and probably does contain a correct statement of the facts in regard to the payment of -taxes as shown by the records in the clerk’s office. But, being only a report of what the clerk finds in the record, and not a certified copy of the record itself, it is not competent evidence of the contents of such record, and it is not the evidence which the decree or the order referred to recites was before the chancellor, and upon which he based his findings and decree.
If the evidence had shown that both of these parties paid taxes on this land the same year, then the first payment thereof would have been the legal payment of the taxes, for the collector had no right to accept two payments; but, as before stated, the tax receipts and tax receipt record, on which it seems the chancellor based his findings, are not before us, and we can not, in the absence of that evidence, review his findings of fact based thereon.
Counsel for appellant has filed an affidavit of the deputy clerk tending to show that no tax receipts were read in evidence, while the appellee has filed a certificate of the chancellor which, appellee claims, shows to the contrary. But this affidavit and certificate are both matters outside of the record, and can not be considered on this appeal. We have to look to the record alone.; and as the record recites that tax receipts and also the record of tax receipts were read in evidence, and as these are not found in the transcript here, we must presume that the chancery court had before it evidence which the transcript here does not contain.
In a case where the record showed that it did not contain all the evidence, this court held that it would presume that the evidence was sufficient to sustain the finding and decree of the chancellor. This presumption in favor of the decree,- the court said, "prevails to the extent of curing every defect in the allegations of the pleadings which by reasonable intendment may be considered as having been proved.” Hershy v. Baer, 45 Ark. 240.
Now, in the condition of the record before us we must take it as true that Bissell introduced tax receipts and evidence showing a continuous payment of taxes on the land in controversy by him for over seven years next before the commencement of this action, and that these payments of taxes were made under color of title and claim of ownership adverse to that of Hardie.
As there was no denial of the allegation in the complaint that these lands were wild and unimproved, the continuous pay.ment of taxes for the period named in -the statute under color and chain of title thereto was sufficient to uphold the finding of the chancellor that plaintiff was the owner of the lands. Towson v. Denson, 74 Ark. 303.
The contention of appellant that this statute does not apply for the reason that the land was forfeited to the State for nonpayment of taxes in 1894, and that the State was the owner of the land from then until 1899, 's of no force, for the reason that the State afterwards conveyed its title to the railroad company, and that company conveyed it to Bissell. If the forfeiture to the State was valid, then Bissell is the owner by virtue of that title. On the other hand, if this forfeiture to the State was invalid, then the title was never in the State, and the mere fact that the State claimed the land did not prevent the statute from running against the real owner.
If we treat the answer of Hardie as a counterclaim, no advantage of the fact can be taken that no reply was filed thereto. No judgment was asked for want of a reply. The parties treated the matters alleged therein as controverted, and we must treat them in the same way.
There are other points discussed; but, as the view we take of the record requires an affirmance, it is unnecessary to discuss them.
Judgment affirmed. | [
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David Newbern, Justice.
Arkansas employers pay an unemployment tax under the Employment Security Law. Exempted from the requirement is employment in the service of a “church or convention or association of churches” or an “organization operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.” Ark. Code Ann. § 10-11-210(a)(4) (A)(i) and (ii) (Supp. 1989). St. Vincent Infirmary Medical Center (SVI) paid the tax after being determined liable for it in 1972 without contest. In 1988 SVI sought exemption. The Arkansas Board of Review determined SVI was not “operated primarily for religious purposes” and denied the exemption. The Arkansas Court of Appeals reversed, reaching the contrary conclusion. We reverse the Court of Appeals decision, reinstating that of the Board, because we conclude the Board’s interpretation of the statute was correct.
The record compiled by the Board consisted of testimony about the nature of the SVI operation. Testimony of Sister Margaret Vincent Blandford established the connection between the infirmary and the Roman Catholic Church; testimony of Don Oglesby presented records to show that the infirmary had been granted an Internal Revenue Service ERISA exemption; testimony of Jack Reynolds established the limitations placed on SVI by the Roman Catholic Church; and testimony of Don Nixon established SVI’s attempts to obtain an exemption.
Sister Blandford testified extensively. She stated that SVI is a “wing” of the Roman Catholic Church and she asserted that the hospital is a conduit for the mission of service to the sick by the Sisters of Charity of Nazareth, a Kentucky charitable corporation. SVI is a separate charitable corporation, subsidiary to the Sisters of Charity of Nazareth. SVI is incorporated in Arkansas, and has run the Infirmary and Medical Center since 1888. The mission of the Sisters is dictated by the Roman Catholic Church, and they are controlled by the Church. They, in turn, manage the hospital. Sister Blandford also established that the Church restricts the type of services they can deliver and does not permit abortion, sterilization, contraception, or euthanasia. She also testified that SVI could operate as a hospital without the Church, although it would not have existed but for the religious mission. Her testimony was clear that, whatever the motivation of the Sisters, SVI functioned as any other hospital in the area except in those areas prohibited by the Roman Catholic Church.
Mr. Reynolds testified that the basic mission of SVI is care for the ill and injured in a Christian environment. He also stated that while the purpose was secular in that SVI was not trying to educate people in the Catholic faith but deal with any and all health related problems, the motivation was religious. He also said very clearly that the religious motivation did not in any way negate the fact that SVI is viewed for licensure and other such purposes as a health care facility, not a religious institution, and absence of the religious motivation would in no way change its status as a hospital.
Mr. Oglesby testified that there was no real difference between SVI and other hospitals and there was no religious affiliation requirement connected with the hiring of 98% of the 2600 employees. He also said the hospital, though exempt from some provisions of ERISA, is still required to follow some of the provisions of that Act. Also, SVI is described as a general hospital in tax documents.
The United States Government imposes a tax on certain classes of employers. 26U.S.C.S. §§ 3301-3311. State unemployment insurance tax programs have been created because the federal law gives employers a credit against the tax for contributions made to federally approved state unemployment insurance tax programs. The history of this relationship is explained in Community Renewal Soc. v. Dept. of Labor, 439 N.E.2d 97 5 (Ill. App. 1982). Because of the relationship to the Internal Revenue Code, arguments are often made on the basis of interpretations of the basic federal law and other federal acts.
SVI argued that the IRS exemption as a “church plan” for ERISA purposes was evidence requiring exemption from the employment security requirements because of the similarity in the language of the controlling statutes. The ERISA exemption provides that a plan will qualify as a “church plan” if it is maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement or welfare benefits, or both for the employees of a church or convention or association of churches, if such an organization is controlled or associated with a church or convention or association of churches. 26 U.S.C.A. § 414 (e)(3)(A). “Associated” with a church simply means sharing common religious bonds and convictions with that church. 26 U.S.C.A. 414 (e)(3)(D). All § 414 (e)(3)(A) requires for an exemption is that the organization in question have as its principal purpose the administration of a qualified plan and also be associated with a church. The language is substantially different from that with which we are dealing here.
The proper focus of inquiry to determine the primary purpose of operation of SVI was stated in St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 781 (1981), quoting legislative history of the federal statute on which the law we interpret today was based:
Thus, the services of the janitor of a church would be excluded, but services of the janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes. H.R. Rep. No. 91-612, p. 44 (1969).
In the process of construing the meaning of the primary purpose limitation with organizational entities incorporated separately but religiously motivated the Supreme Court has provided some guidance. With reference to separate parochial schools the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), noted that church related primary and secondary schools have a “significant religious mission and that a substantial portion of their activities is religiously oriented.” Id. at 616. In Meek v. Pittenger, 421 U.S. 349, 365-366 (1975), the Court wrote:
[I] t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many . . . church-related . . . schools ....
[RJeligion is so pervasive that a substantial portion of its functions are subsumed in the religious mission. Id. at 365-66.
In recognition of the religious orientation of even separately incorporated entities courts have routinely exempted religious schools. See Nampa Christian Schools Foundation, Inc. v. State, 719 P. 2d 1178 (Idaho 1986); Community Lutheran School v. Iowa Department of Job Service, 326 N.W. 2d 266 (Iowa 1982). A test enunciated in the Nampa Christian Schools case is as follows:
The Commission made the finding of fact that “Nampa Christian could not exist as a private school without the moral support of those several churches [citation omitted, emphasis added in original].” Substantial and competent evidence supports this finding. We therefore may not set aside this finding of fact, [citations omitted] We hold that this type of support constitutes ‘principal’ support — if the school ‘could not exist’ without the churches’ support, it is dependent upon that support. Such dependency constitutes ‘principal’ support for purposes of I.C. § 72-1316 A(g) (1) (ii).
Our holding today is not broad. It does not mean that mere moral support offered by a church or group of churches to an organization operated for religious purposes will qualify that organization for tax exemption status under Idaho’s Employment Security Act. Rather, our decision states that before tax exemption status can be granted, the Commission must find as fact that such support is necessary for the religious organization’s continued operation.
Where the religion pervades the operation of the institution, exemption of the operation as one operated primarily for a religious purpose may be had. The evidence here did not establish that. The testimony made it clear that religion is involved in less than 1 % of the budget of the infirmary, no proselytizing takes place, and no religious requirements are involved in hiring and staffing decisions except with reference to 18 employees associated with the chapel.
The Court of Appeals relied upon Kendall v. Dir. of Div. of Emp. Sec., 473 N.E. 2d 196 (Mass. 1985), where the Supreme Judicial Court of Massachusetts determined that a separately incorporated mental health clinic owned and operated by a religious order for the purpose of providing education and training for mentally retarded children was exempt. The Massachusetts Board had found the institution exempt and the Court was asked to reject the Board’s definition of “primarily operated for a religious purpose.” The Court wrote:
At oral argument the claimant conceded that the Center’s operations are religiously motivated but argued that this motivation is distinct from the Center’s secular purpose, the education of the mentally retarded. We do not see a clear distinction between such motive and purpose. The fact that the religious motives of the Sisters of St. Francis of Assisi also serve the public good by providing for the education and training of the mentally retarded is hardly reason to deny the Center a religious exemption.
We disagree with the approach taken in the Kendall case. The Idaho Supreme Court in the Nampa Christian Schools case was able clearly to distinguish between religious motivation for the performance of a service and operation “primarily for religious purposes.” See also St. Augustine’s Center for American Indians, Inc., 449 N.E.2d 246 (Ill. App. 1983). We too are able to make that distinction.
The evidence in this case makes it clear that SVI is operated primarily for the purpose of providing health care although the sole motivation may be religious in nature. The Board of Review reached the following conclusions:
[T]he primary function of SVI is the commercial delivery of health care services as a hospital facility and medical institution and that the religious aspects are secondary. . . . Although SVI was founded by a religious order of the Roman Catholic Church, was first brought into existence through a religious motivation and for a specific religious purpose and mission, and remains under the control of the Church up to the present day, the essential function of the institution remains that of a hospital, infirmary and medical institution.
The record amply supports those factual conclusions. Given our interpretation of the statute in a manner separating motivation from purpose of operation, we hold the “operated primarily for religious purposes” exemption does not apply.
Reversed and remanded to the Arkansas Board of Review. | [
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Per Curiam.
The appellant Edward Chambers was found guilty by a jury on May 6, 1987, of aggravated robbery with a deadly weapon and sexual abuse in the first degree. He was sentenced as a habitual offender to consecutive terms of life and thirty years imprisonment. We affirmed. Chambers v. State, CR 87-144, (December 14, 1987). Appellant subsequently filed a petition for post-conviction relief in this court pursuant to Criminal Procedure Rule 37. The petition was denied. Chambers v. State, CR 87-144, (February 8, 1988). Appellant also filed a petition for writ of habeas corpus in the trial court which was denied. The denial of relief was affirmed by this court. Chambers v. State, CR 90-54, (June 4, 1990).
On June 26,1990, appellant filed in the trial court a petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (Supp. 1989). In the petition he alleged that (1) the sentence imposed for sexual abuse was excessive, and thus illegal, because he had not been convicted of four prior felonies as the state contended at trial; (2) he was arrested illegally; (3) there was no probable cause to charge him with aggravated robbery; (4) the evidence was insufficient to establish sexual abuse; and (5) he was not afforded effective assistance of counsel at trial. The trial court noted that although the petition was styled a petition for reduction of sentence, it asserted the same issues raised in earlier pleadings under Criminal Procedure Rule 37. The court denied the petition as untimely. Appellant now seeks appointment of counsel.
The motion is denied and the appeal dismissed because it is clear that there was no merit to the petition filed in the trial court. This court- has consistently held that counsel will not be appointed to pursue a meritless appeal. Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) and Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).
As the appellant raised issues which were cognizable under Criminal Procedure Rule 37, the trial court was entitled to treat the allegations under Rule 37. Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). We agree with the trial court that, considered under Criminal Procedure Rule 37, the petition was untimely. Where a petitioner raises no issue which, if found meritorious, would render his conviction absolutely void, a Rule 37 petition is untimely if not filed within three years of the date of judgment. Rule 37.2(c); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). The allegations in the petition filed in trial court were not sufficient to establish that the judgment was void. Moreover, Rule 37.2(b) provides that all grounds for relief available to a petitioner under the rule must be raised in his original petition unless the original petition was denied without prejudice to filing a second petition. Appellant did not receive permission to file a subsequent Rule 37 petition. Thus, the petition was not only untimely but also subject to dismissal as an unauthorized second petition.
Furthermore, even if the petition filed in the trial court were considered under Ark. Code Ann. § 16-90-111 (Supp. 1989), which provides a means to correct an illegal sentence, the petition was untimely. The statute provides a narrow remedy whereby the trial court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within one-hundred-twenty days after the sentence was imposed or within one-hundred-twenty days after receipt by the trial court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. The mandate issued upon affirmance in this case on January 4, 1988. Appellant did not file his petition in the trial court until 1990, which was more than one-hundred-twenty days after the mandate issued. After the one-hundred-twenty days period for filing a petition elapses, relief is not available under the statute unless the petitioner demonstrates that the sentence imposed was illegal on its face. Williams, 291 Ark. 255, 724 S.W.2d 158; Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). As the allegations of error raised in the trial court were not sufficient to establish that the judgment was illegal on its face, the petition could have been dismissed if treated as a petition pursuant to Ark. Code Ann. § 16-90-111.
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Tom Glaze, Justice.
Appellant appeals his conviction for aggravated robbery, criminal attempt to commit murder, felon in possession of a firearm and his sentence as a habitual offender which totals 112 years imprisonment. At trial, appellant moved to suppress a photo lineup used by the victims, and the court denied his motion. The victims also made an in-court identification of appellant as their assailant. His sole issue on appeal is that the trial court erred in denying his motion to suppress the in-court identification. Appellant’s argument is meritless, and we affirm.
As stated recently, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Further, we do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous, and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id. Finally, we have also held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. The following factors must be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty, and (5) the time lapse between the crime and confrontation. Id.
The victims’ testimony reflects no doubts that appellant was the person who pulled a gun and demanded the victims’ valuables on the night of September 20,1989. The victims, Lucky Thompson and Kelly Barbee, both related essentially the same story. They were outside in front of Lucky’s house, sitting on Kelly’s car, when appellant walked up and engaged them in conversation. During the conversation, appellant referred to himself as the devil’s son, pulled a gun and asked for all of the victims’ valuables. Appellant was about five feet from them and the street light was sufficient to distinguish appellant’s face and clothes. Lucky and Kelly testified that the appellant had a mustache and wore a blue cap, a light gray sweatshirt with cut off sleeves and baggy white or khaki pants. After Lucky and Kelly failed to give the appellant their valuables, appellant backed away, pointed his gun at them, pulled its trigger about five times without its firing and then ran away. They saw appellant fire a shot in the air as he ran. Both victims agreed they observed appellant for about ten to fifteen minutes. Shortly afterwards, appellant was found in the same neighborhood by the police. In this connection, an officer testified that he was driving his car when he saw appellant run from two subjects (Lucky and Kelly) and the officer further related that appellant aimed and shot his pistol at him. Apparently, other officers joined pursuit and arrested appellant. Appellant was conveyed to the police station where his photograph was taken for photographic line-up purposes.
About one and a half hours after their encounter with appellant, Lucky and Kelly were asked to view a photographic lineup of six black males with mustaches. Lucky and Kelly viewed the lineup separately and without prompting from police officers, and they both selected appellant’s picture as the person who confronted and threatened them. They said that they recognized appellant immediately because of their encounter just one and a half hours before. Lucky described the perpetrator as being 5T0” to 6’ tall, but appellant was actually 5’7”. Lucky explained this difference was probably due to the appellant standing on the sidewalk while they were standing in the street when the encounter between them occurred. Given the victims’ strong and compelling testimony identifying the appellant, we cannot conclude the trial court was clearly erroneous in determining that testimony to be reliable.
Appellant complains that the photograph taken of him was suggestive because when compared to the other five, his picture was a close-up, showing more of his head and face. He also argues appellant’s photograph showed him in clothing that closely matched descriptions given the police by Lucky and Kelly immediately after the incident. From our review of the photographs, we find nothing to show they were impermissibly suggestive. Instead, we conclude those photographs were very well selected and offered largely shoulder-to-head shots of six black males with mustaches. Appellant’s photo barely reflected a white shirt but several other pictures revealed men in white or light-colored shirts, although two had some colored trim in their shirts. Appellant closed his eyes and had to be restrained when the photograph was taken, but those officers were not included or revealed in the picture. We fail to see how any of appellant’s complaints tainted the photographic lineup. We should also mention that Lucky Thompson, by his testimony, left no doubt that he quickly selected appellant from the photographic lineup only because Lucky “knew who [he] was” and because “I recognized the guy.”
Because the trial court correctly refused appellant’s motion to suppress the in-court identifications, we affirm. | [
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Tom Glaze, Justice.
This is a criminal case in which appellant was convicted on three counts of delivery of cocaine arising out of alleged transactions on May 30, 1989, July 12, 1989, and August 18,1989. He was sentenced to forty years and a $25,000 fine on each count, and the terms of imprisonment were set to run concurrently. On appeal, appellant raises two points for reversal.
Appellant first complains that, in trying one of the three charges against him, viz., the August 18 transaction, the prosecutor failed to comply with Ark. Code Ann. § 12-12-313(d) (1) (Supp. 1989). Simply put, the prosecutor, in attempting to prove one of the three charges against the appellant, improperly introduced a chemical analysis report through Norman Kemper, a chemist with the State Crime Laboratory, who had not personally performed the analysis. The analysis report was purportedly prepared by Keith Kerr, another chemist who worked in the laboratory. In introducing the report, the state had Kemper acknowledge Kerr’s signature, which appeared at the bottom of the report, and further had him relate that Kerr was a certified drug chemist who had worked in the crime laboratory for the past three years. Citing § 12-12-313(d)(1), appellant objected to the report’s introduction because the report had not been properly attested. The trial court overruled appellant’s objection, indicating the report’s introduction had been previously decided in “pre-trial.”
In explanation of the trial court’s “pre-trial” remark, our review of the record reflects that, before lunch break on the day of trial, the prosecutor informed the trial court that Kerr could not testify due to a scheduling conflict that made him a witness elsewhere in the state. The prosecutor stated that, in lieu of Kerr’s live testimony, he would introduce Kerr’s report pursuant to § 12- 12-313(d)(1), after deleting a reference to another case mentioned in the report. The trial court asked if there was any objection to the report if the deletion was made. The appellant responded, “No.” The state argues the appellant should have objected at this time rather than doing so later when the report was offered during Kemper’s testimony. In other words, since appellant did not object at the first opportunity to the report’s introduction, the state claims he waived his objection. See Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).
We reject the state’s contention. Upon revealing his inability to present Kerr as a witness, the prosecutor informed the trial court and appellant that he would introduce Kerr’s report under § 12-12-313(d)(1) and specifically indicated that the report would be duly attested. While appellant interposed no objection at this initial opportunity, it nowhere appears in the record that appellant was aware that the report to be offered by the state would not be properly attested. When the state actually introduced the report at trial, appellant objected the report did not, in fact, comply with § 12-12-313(d)(1) because it merely contained a certification, not an attestation or “language to the effect [the report] was sworn to.” Thus, under these circumstances, we believe the appellant’s objection was timely.
In addressing appellant’s first argument, we note § 12-12-313(a) (Supp. 1989) provides that, subject to the rules of criminal procedure, courts shall receive drug analysis reports as competent evidence when the reports are duly attested to by the executive director or his assistants, associates, or deputies. Section 12-12-313(d)(1) further provides as follows:
(d)(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
Here, the disputed drug analysis report reflected Kerr’s signature and it was stamped with the words “This is a True and Certified Report of the Analysis of the Indicated Sample.” Superimposed on these words was a notary seal and the signature of “R.L. Keith,” notary public. The question arises as to whether this certification and notarization satisfies the “duly attested to” requirement under § 12-12-313(d) (1). We hold the state’s report was not attested in the manner contemplated by § 12-12-313(d)(1).
Attest has been defined as follows: “To bear witness to, certify; declare the truth of, in words or writing, esp. affirm in an official capacity; to attest the truth of a statement.” See The Random House Dictionary of the English Language.
Section 12-12-313(a) and (d)(1) clearly permitted Kerr’s chemist report to be admitted into evidence for the truth of the findings and statements contained in it if Kerr had attested to their validity. In fact, the General Assembly appears to have provided this exception for the introduction of this type governmental report in criminal proceedings, assuming it meets the prerequisites of the statute; otherwise, such reports are considered inadmissible hearsay under Rule 803(8)(iii) of the Uniform Rules of Evidence. See also Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982) (the court of appeals, citing Rule 803(8), affirmed the trial court’s exclusion of a chemist’s report as inadmissible hearsay because the testifying witness, the supervisor of the State Crime Laboratory, did not have any personal knowledge of the drug testing done by the chemist who performed the tests and prepared the report.)
Considering the major purposes of § 12-12-313, to allow hearsay reports under limited conditions, we feel confident that the General Assembly intended for the phrase “duly attested to” to require more than the mere signature of the person or chemist who performed the analysis, as was the situation here. Undoubtedly, some indicia of truthfulness must attend such a report’s admissibility when it is introduced into a criminal proceeding as competent evidence. That assurance of truthfulness can best be given by the one who performed the tests and made the analysis as is provided by § 12-12-313(d)(1).
Before leaving this first point, we note the state’s alternative argument that even if the report was not admitted properly under § 12-12-313(d)(1), there was no prejudice because the police officer involved in the drug transaction testified and could identify the substance. See Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). While such testimony of an officer may be elicited so as to prove an item to be a controlled substance, the state in this case never asked the officer to give her opinion as to whether the substance she purchased and obtained through appellant’s assistance was cocaine.
We do agree with the state’s argument that its failure to prove the one drug charge against appellant does not require the reversal of the other two counts. The state presented strong proof to establish appellant’s guilt as to these other drug delivery charges, and we have held that when a judgment in a criminal case is correct as to the one count but erroneous as to another, this court has the power to sever the judgment and affirm the count(s) upon which there was a proper conviction and reverse the other count. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986). From our examination of strong evidence in this case, we believe the jury’s verdict giving the maximum penalty on the other two counts to run concurrently was not affected by the one erroneous conviction which we hold must be reversed. See Id.; Lee v. Lockhart, 754 F.2d 277 (8th Cir. 1985).
In his second point, appellant contends Officer Barbara Crow’s rebuttal testimony was improper and therefore reversible error. Appellant’s defense was that he never sold, purchased or delivered any cocaine, and he had never seen Officer Crow who testified he had. Appellant’s wife, Jannette, corroborated her husband’s story and specifically denied having met Crow during one of the drug transactions. The state called Crow to rebut Jannette’s version. Clearly Crow’s testimony involved a collateral matter, viz., whether she had ever met appellant’s wife during one of the drug deals. We have held that a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).
Although we agree, and the state seems to conclude, that Crow’s rebuttal testimony was error, we cannot agree such error requires reversal. This court will not reverse a conviction for an error which is unaccompanied by a showing of prejudice. Richmond v. Smith, 302 Ark. 498, 791 S.W.2d 691 (1990); Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990). Here, appellant simply failed to show any prejudice resulting from Crow’s rebuttal testimony.
Thomas A. Potter, for appellant.
Mary B. Stallcup, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
For the reasons given above, we reverse and dismiss the one delivery of cocaine count that allegedly occurred on August 18, 1989, but affirm the remaining two convictions and sentences.
Kemper performed the tests on the substances obtained in the other two drug transactions with which appellant was charged, and appellant does not challenge the testimony and evidence underlying those charges. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Hugh Williams, was convicted of possession of cocaine with intent to deliver and second degree escape. He was sentenced to forty years and five years imprisonment, respectively, and a fine of $10,000.
On appeal, Williams contends that 1) the trial court erred in refusing to grant a motion for mistrial after he was brought before the prospective jury in shackles, and 2) the trial court erred and abused its discretion in allowing the state to use a prior felony conviction to impeach his credibility. We find no merit in either argument and affirm.
On the morning of trial, and prior to selection of the jury, Williams was brought into the courtroom in restraints. The trial judge was informed of the fact and immediately ordered them removed.
The trial proceeded and after nearly all of the state’s witnesses had testified, Williams’ attorney moved for a mistrial, contending that it was prejudicial for Williams to have been seen by the jurors wearing restraints. The court denied the motion as untimely and because there was no proof that any of the thirteen jurors actually selected had seen Williams “shackled.”
The trial court’s ruling was correct. The motion was not made until well into the trial, nearing the close of the state’s case. It is well established that in order to preserve an argument for appeal, the appellant must make an objection at the first opportunity. A.R.Cr.P. Rule 36.21; Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984).
Notwithstanding his failure to make a timely motion for mistrial, Williams has not demonstrated prejudice. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). We have held that it is not prejudicial, per se, when a defendant is brought into court handcuffed and that the defendant must affirmatively demonstrate prejudice. See Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). Williams has offered no proof that any of the jury members actually saw him in restraints and, in fact, in his motion for mistrial, Williams’ attorney stated, “I do not know if any of the jurors saw [Williams] ... If he was observed by jurors, I would move for a mistrial.”
This case is similar to Hill v. State, supra, where, in upholding the trial court’s denial of a mistrial, we stated:
In this case, from the record of the in-chambers conference on the mistrial motion, it is not evident there was anything but a brief, inadvertent sighting by some of the jurors. The appellant offered no proof of any jurors having actually seen the appellant, nor was any voir dire requested to substantiate any allegation of prejudice. There was no affirmative showing of prejudice by the appellant.
Furthermore, as in Johnson v. State, supra, Williams was charged with escape (in this case from the county jail as opposed to the state penitentiary in Johnson) and was an inmate at the state prison at the time of trial. All of these facts were revealed to the jury during the course of trial and, thus, any prejudice which may have resulted from Williams having been seen in restraints would be rendered harmless.
A motion for a mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Given the facts before us, we cannot say the court’s denial of a mistrial was in error.
We also find no error in the trial court’s ruling that the state would be permitted to impeach Williams with a prior felony conviction.
After moving for a mistrial, Williams’ counsel informed the court that he “believe [d] [they were] gonna have Mr. Williams testify” and asked the court “not to allow Mr. Foster (the prosecutor) to impeach him with that prior felony due to the prejudicial effect that it would have on Mr. Williams.” Noting that Williams’ counsel stated in opening argument “you are probably going to hear evidence today that a year or so back Mr. Williams had a conviction for breaking into a car,” the court responded that defense counsel had “opened the door to it” and that “if the state does introduce [prior convictions], I’m going to allow it.”
Later, Williams testified on direct examination that he had “trouble before on a breaking or entering and theft by receiving” and that he “broke into a car.” In addition, he testified on cross-examination that he had a previous conviction for breaking and entering and theft of property.
Rule 609(a) of the Arkansas Rules of Evidence provides as follows:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Inasmuch as Williams’ counsel alluded to his prior convictions in his opening statement and the appellant testified to his various criminal involvements during direct examination, it would be a vain and useless act for the trial court to weigh the probative value of admitting this evidence on cross-examination under Rule 609(a).
Furthermore, where a defendant, himself, initiates discussion of a certain subject, he opens the door to a line of questioning by the state. See generally Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); Thompson v. State, 298 Ark. 502, 769 S.W.2d 6 (1989).
On the basis of the foregoing reasons, we affirm. | [
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Robert H. Dudley, Justice.
The appellee taxpayer, Southwestern Truck Sales, Inc., filed a complaint in Chancery Court of Pulaski County asking that B.A. McIntosh, the Pulaski County Assessor, and Ken Taylor, the Pulaski County Collector, be enjoined from taking any further action to collect taxes from the taxpayer for 1986. The county officials filed a motion to dismiss because of lack of subject matter jurisdiction in chancery court. The taxpayer filed a motion for summary judgment. The chancellor denied the county officials’ motion to dismiss for lack of subject matter jurisdiction and granted summary judgement for the taxpayer. The chancellor erred in exercising jurisdiction and, accordingly, we reverse and dismiss.
We must first address a procedural matter. The county officials argue that the taxpayer’s brief must be stricken because Homer Tanner, the taxpayer’s attorney, submitted to the trial court a twenty-five paragraph affidavit in support of the motion for summary judgement. The affidavit is a sworn statement of facts. When the affiant is an attorney in the case, and the affidavit is submitted in support of a motion, whether attached to the motion itself or to the brief, it is tantamount to the attorney testifying. We have repeatedly admonished members of the bar that an attorney cannot serve as both a witness and an advocate in the same action. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). Neither can an attorney represent a party on appeal if the attorney testified below. Id. When an attorney serves as both witness and advocate in the same action, however, that fact alone does not require automatic reversal and dismissal of a case, as argued by appellants. In Calton Properties, Inc. v. Ken’s Discount Bldg. Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984), we clearly stated that the attorney’s affidavit was not evidence and that we would not consider it. Without it, there was simply no evidence at all which would have allowed this Court to affirm. Consequently, the judgement was reversed and the case dismissed. Had there been other evidence upon which this Court could have affirmed, however, it would have done so. Accordingly, it was wrong for Mr. Tanner to serve as a witness and an attorney, and we will not consider the affidavit as evidence; however, we refuse to strike the taxpayer’s brief and automatically reverse and dismiss the case.
We consider the case on the jurisdictional issue, and reverse and dismiss because the chancery court was without jurisdiction. The taxpayer owned two lots, designated Lot A and Lot B of the Inmon Addition to North Little Rock. A building was built on Lot A. Lot B remained unimproved. The taxpayer received three tax bills for 1986, just as it had in 1985. According to the affidavit of Buell James, Deputy Assessor, and the officers’ responses to requests for admission, one tax bill was for the land of Lot A, one was for Lot B, and the third tax bill, designated with the letter “E,” was for the improvements on Lot A. The 1985 tax bills were paid. In the process of selling Lots A and B, the taxpayer delivered all three 1986 tax bills to its attorney who was also serving as the closing agent for the sale. He paid two of the 1986 tax bills, but refused to pay the third one which, according to the officials, covered the building on Lot A. He contended that it was for a nonexistent Lot E.
The county courts have exclusive original jurisdiction in all matters relating to county taxes. Ark. Const., art. 7, § 28; Burgess v. Four States Mem. Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971). Yet, it is undisputed that the taxpayer did not pursue any action with the county Board of Equalization. Rather, it went to chancery court and sought an injunction relying upon Ark. Code Ann. § 16-113-306 (1987),' which provides in pertinent part:
The judge of the chancery court for any county may grant injunctions and restraining orders, in all cases of illegal or unauthorized taxes and assessments by county, city, or other local tribunals, boards, or officers.
The key words of the statute are those which have been emphasized above. There is no doubt that a court of equity may grant relief against a void or illegal tax assessment. Burgess v. Four States Mem. Hosp., supra. However, in order for the chancery court to have subject matter jurisdiction, it must involve illegal or unauthorized taxes and assessments. Neither is present in the instant case. That is, it cannot be disputed that the building located on Lot A is assessable. Therefore, at most, there may have been a flaw in the assessment or collection procedures concerning the manner in which the building was assessed as a parcel separate from Lot A itself. Even if that procedure were flawed, and we are not holding that it is, that still does not make the assessment or the exaction illegal or unauthorized. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). See also “Taxpayers’ Suits to Prevent Illegal Exactions in Arkansas,” 8 Ark. L. Rev. 129 (1954). Without either of those jurisdictional prerequisites, the chancery court was without power to hear the case. Since the chancery court was without jurisdiction to hear the case we must reverse ánd dismiss. | [
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Robert L. Brown, Justice.
This dispute involves the power of the courts to interfere with the rules of a voluntary regulatory agency, the Arkansas Activities Association (“AAA”), which is established and supported by local junior and senior high school systems. More specifically, the case involves the AAA’s appeal from an adverse chancery court decision denying the application of its age rule to appellee Shane William Meyer and enjoining the AAA from prohibiting Meyer’s participation in interscholastic activities including athletics.
The facts are not contested by the parties. In September of 1980 the AAA, which has 495 public and private junior and senior high schools as its members, adopted an age rule for interscholastic events:
B. Senior High. A senior high student whose 19th birthday is on or before October 1, may not participate in an interscholastic event.
NOTE: Grandfather Clause. This rule may be waived for a senior high school student who is ineligible by the above rule due to events that occurred before adoption (September 1980). He may participate until the day he is 20 years old, if normal progression has occurred since 1980 and upon approval of the AAA Executive Director.
Meyer is a student at Highland High School, which is located in Ash Flat. Highland High is an AAA member. Meyer was born on July 10,1971, and was age nineteen at the beginning of his senior year and as of October 1, 1990, which disqualified him from interscholastic events under the AAA age rule. Meyer runs afoul of the age rule because although he entered public schools before September 1980 (the operative date for the grandfather clause under the rule), he repeated the fifth grade in academic year 1983-84. This repetition was not the decision of the school administration but was instead at his mother’s request. Meyer’s mother was not aware of the AAA age rule in 1983, and the AAA took no steps to inform parents of elementary students of the rule at that time.
Meyer was notified about the age rule during his junior year in high school, and on February 28,1990, he petitioned the AAA Executive Director, Lamar Cole, for a hardship exception to the rule. The petition was denied, and the AAA Executive Committee affirmed that decision on March 15,1990. Meyer then filed a petition for injunctive relief against the AAA in chancery court. After a full hearing on his petition, the chancellor, on July 2, 1990, permanently enjoined the AAA from halting Meyer’s participation in interscholastic activities for the 1990-91 school year and further permanently enjoined the AAA from requiring the school to forfeit any AAA regulated activity in which Meyer participated. In a letter opinion which accompanied the chancellor’s order, he found that the age rule itself was rational based on safety considerations but then went on to make additional findings relative to the grandfather clause:
b. It does not appear to this court that the AAA was rational in making an exception to the rule grandfathering students in who would otherwise be ineligible after the adoption date of said rule.
c. Since the rule was adopted to protect students and an exception was made to the rule grandfathering students in until their 20th birthday regardless of their size, mental status, or athletic ability as long as normal school progression had occurred, each case should be determined with the safety and fairness of other students in mind.
d. Shane Meyer was held back in the 5th grade by his parents, not the school, therefore, he should have passed on to the 6th grade.
e. Shane Meyer has progressed normally, since being involved in activities under the AAA rules and regulations.
f. Shane Meyer’s mental or physical ability does not present an unfair or unsafe condition to other students should he be permitted to participate under the grandfather exception.
We disagree with the chancery court’s analysis of the grandfather clause, and we reverse the chancellor’s order and vacate the permanent injunction.
The AAA first raises the argument that the courts are powerless to interfere in the affairs of voluntary organizations. As a general rule the AAA is correct. It is well settled that the power of the courts to review the actions of voluntary associations is extremely limited, and the courts will avoid interference with such associations except in case of “fraud, lack of jurisdiction, or the invasion of property or pecuniary rights or interests.” Bruce v. South Carolina High School League, 189 S.E.2d 817, 819 (S.C. 1972). The Bruce court went on to say that the decisions of associations and their tribunals will be accepted by the courts as conclusive “in the absence of mistake, fraud, illegality, collusion, or arbitrariness.” Id.
Appellee Meyer, nonetheless, contested the grandfather clause of the AAA age rule on a variety of constitutional grounds including arbitrariness and capriciousness, denial of due process, deprivation of pursuit of happiness and enjoyment of life, and violation of equal protection of the laws. The constitutional issues raised easily place the matter within the narrow criteria where judicial review is appropriate.
A threshold question is whether the allegations of constitutional deprivation involve state action. Here, we are concerned with a voluntary association; while it is not a state agency, the association had significant contacts and relationships with the public schools of this state. For example, the AAA membership consists of the superintendents and principals of the 495 member schools who are responsible for adopting the rules which regulate interscholastic activities at those schools. Under such circumstances state action has been found to exist. See, e.g., Barnhorst v. Missouri State High School Activities Ass’n., 504 F. Supp. 449 (W.D. Mo. 1980). We hold that it exists in this case due to the close and symbiotic relationship between the AAA and the Arkansas public school system.
The AAA argues that Meyer’s right to participate in interscholastic events is more a privilege than a constitutional right. While that may be, the distinction between rights and privileges, where governmental benefits are concerned, has been largely discarded by the United States Supreme Court. See Graham v. Richardson, 403 U.S. 365 (1971). Be that as it may, there is clearly no constitutional right to play sports or engage in other school activities. See Barnhorst v. Missouri State High School Activities Ass’n, supra. It legitimately falls within the purview of a voluntary association like the AAA, acting in conjunction with the schools, to regulate such activities. However, to the extent that rules are adopted by the AAA they must satisfy constitutional principles as applied and may not impinge on due process or equal protection rights. A student has the right to have his or her request to participate in student athletics reviewed under rules that are constitutional. Id. Here, Meyer’s assertion is the AAA’s grandfather clause fails to pass constitutional muster as applied to his situation.
The crux of this case, then, is whether a rational basis exists for the grandfather clause under the age rule. Neither party contests the age rule itself or the policy rationale supporting the rule. But Meyer contends the grandfather clause unfairly discriminates against him and in favor of nineteen-year-olds who did normally progress through school after September 1980, and, therefore, it violates the Equal Protection Clause of the state and federal constitutions. Both Meyer and the AAA agree that the test for determining whether the classification between students normally progressing and those who do not under the grandfather exception is whether the exception bears a rational relationship to a legitimate state interest.
In a situation bearing striking similarities to the present case, the Fifth Circuit Court of Appeals refused to find that a distinction drawn by a high school athletic association between repeating a grade voluntarily and a mandatory repetition due to academic failure was either inherently suspect or an encroachment of a fundamental right under the Equal Protection Clause. Mitchell v. Louisiana High School Ass’n, 430 F.2d 1155 (5th Cir. 1970). There, the issue was whether three students who had voluntarily repeated a grade lost their fourth year of eligibility to play sports in high school. The association rule was clear in saying that the three students who voluntarily repeated did lose their eligibility. But the rule also provided that it did not apply to students repeating a grade due to academic failure.
The three students contested the rule, specifically the classification between academic failure and voluntary repetition. The court found that the classification was grounded in and related to a legitimate state interest which was “to minimize the hazard of having usual high school athletes competing with older, more skilled players.” 430 F.2d at 1158. More specifically, the court said that the repetition of a grade due to academic failure was less likely to be influenced by athletic considerations than voluntary repetition.
The Mitchell case offers substantial guidance in this case. Here, too, there is a legitimate state interest sustaining the AAA rule — the safety of the younger players. There is, further, a legitimate interest in permitting students already in the school system as of September 1980 to play until age twenty, if they normally progress from grade to grade. Failure to progress normally due to a voluntary repetition of a grade could be used as a subterfuge to enable older students to engage in activities like sports during their senior year.
It is true that the grandfather clause allows students already in school as of September 1980 to play sports until age twenty, if they satisfy the “normal progression” requirement. This seemingly undermines the purpose of the rule in that it permits nineteen-year-olds to engage in interscholastic sports with all of the implied safety risks. At the same time the grandfather exception is grounded in legitimate public policy. To have changed the rules in September 1980 and thereby denied to existing students who started school late the right to engage in certain school activities would have been a deprivation of their rights without notice. The rights of such existing students who were older than their classmates as of September 1980 must also be protected against any arbitrary severance of their rights occasioned by the new rule.
We have continuously upheld the legitimacy of grandfather clauses and the policy behind them. See, e.g., Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Legislators have the right to make distinctions in their enactments between existing rights and conditions and those that may come into existence in the future, when there is a rational basis for that distinction. Valley Bank v. State, 335 A.2d 652 (N.H. 1975). We hold that a rational relationship to a legitimate state interest exists for the grandfather clause in the AAA age rule, that is, that existing students in September 1980 not be penalized by the adoption of a new rule so long as they progress normally through school from that date forward. Meyer, ironically, argues that the grandfather clause is invalid on constitutional grounds. But without the grandfather clause, he has no recourse for a hardship exception, since he was clearly nineteen and ineligible for 1990-91 activities under the rule itself.
The grandfather exception to the AAA age rule is uniformly applied by the association in that all students “grandfathered in” must satisfy the normal progression requirement as of September 1980. Meyer failed to do so and because of that is rendered ineligible. In addition to uniform application the exception has a legitimate reason for its genesis as discussed above. Under these circumstances we find no grounds for a finding of arbitrary or capricious behavior on the part of the AAA.
It is true that Mrs. Meyer was not aware of the AAA age rule in 1983, when she held her son back to repeat the fifth grade, and it is further true that the AAA did not advise parents of elementary students of the age rule at that time. But that information was available to her had she sought it out from the school administration or the AAA. She did not, and this leads to a harsh result for her son. We hold, however, that the lack of notice to Mrs. Meyer in 1983 does not rise to the magnitude of a constitutional deprivation of due process of law under either the state or federal constitutions. See Mitchell v. Louisiana High School Ass’n, supra (failure to give notice of an association rule was not a violation of due process under the federal constitution).
Finally, we cannot agree that Meyer normally progressed through school after September 1980, when he repeated the fifth grade in 1983-84. This simply is not normal progression. The fact that he did so at his mother’s behest rather than the school’s is not a persuasive argument. The safety policy set out in the age rule is clearly jeopardized by a repetition of grades, regardless of the reason for that repetition.
We hold today that the court clearly erred in finding no rational basis for the age rule’s grandfather clause and further erred in concluding that Meyer progressed normally through school after September 1980. The permanent injunction is therefore vacated and this case is dismissed.
Reversed.
Glaze, J., concurs. | [
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Robert H. Dudley, Associate Justice.
The only issue in this car-truck accident case is whether the trial court committed reversible error in refusing to allow a qualified state trooper to testify about the point of impact. We hold there was reversible error.
The accident occurred in the westbound lanes of Interstate 40 in North Little Rock. The appellant, Loraine Sledge, was proceeding west in the outside lane in a car owned by her husband. The appellee truck driver, Harry Meyers, was proceeding west in the inside lane in appellee Bestline, Inc.’s truck. The truck driver was signaling to change to the outside lane. The front right side of the truck hit the rear left of the car. At trial, the car driver testified that she never crossed over into the inside lane. The truck driver, and another truck driver who was following, testified that the truck never crossed over into the outside lane. Thus, the crucial issue was, which vehicle crossed over into the other’s lane?
In her case-in-chief, appellant, the car driver, called State Trooper June Carmen as her witness. Trooper Carmen testified that she had been a police officer for nine years, five years as a trooper and, before that, four years on the Greenwood police force. While a trooper she successfully completed a thirteen-week course on accident investigation and reconstruction and, while with the Greenwood police department, successfully completed a three-week course on accident investigation. She testified that she had investigated more than 110 accidents each year since becoming a trooper, and had testified many times in both civil and criminal cases. The trooper then testified that she investigated the accident by starting with the position of the wrecked vehicles and tracing the skid and scuff marks to the initial point of impact. She said, “We could see how they ... we call it a scuff mark or . . . .” The truck driver’s attorney interrupted and objected to “speculative reconstructionist testimony.” The trial court did not clearly rule on the objection, but, instead, responded: “Don’t use that word ‘we could see’ there and tell what you saw.” The following then transpired:
Q. (By Mr. Adametz) [Appellant’s attorney] Go ahead, Ms. Carmen.
A. We located scuff marks and could see the line that the vehicle was carried straight.
Q. A minute ago you used the term “area of impact.” Tell the jury what the area of impact is, please.
A. Area of impact is what I locate as where the vehicles first make contact.
Q. And did you determine that area?
A. Yes, sir, I did.
Q. And where was that area?
A. Approximately four inches over the centerline.
Q. Which lane was that in?
A. It would be in the right-hand lane, sir.
Q. That would be the lane that’s away from the median? A. Yes, sir.
Q. Go ahead, please.
A. The vehicle was carried approximately 677 feet underneath. You would be going eastbound — westbound. It would be carried underneath the bridge, in all total approximately 677 feet that it was carried before it finally came to rest in the left-hand lane.
Q. They came to rest in the left-hand lane.
A. Yes, sir.
Q. So it is your belief then that the accident started in the right-hand lane at least four inches over the centerline?
THE COURT: That’s what he objected to, Mr. Adametz. I sustained the objection. You may cross-examine. I thqught you were through with the witness.
Prior to 1983 our law was that a police officer should not be able to state his conclusions about the point of impact, or location of the vehicles, based upon the officer’s examination of the skid marks, scuff marks, or debris because it was not beyond a jury’s ability to understand those facts and draw its own conclusions. S & S Constr. Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967); Reed v. Humphreys, 237 Ark. 315, 373 S.W.2d 580 (1963). In 1983, in Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165, we changed our position and wrote:
Where an officer investigates a vehicle accident, observes sufficient relevant evidence such as skid marks, debris from the vehicles, position of the vehicles, or makes other observations, and where he can rationally form an opinion about the point of impact, he should be allowed to testify as to that opinion.
Subsequently, in Ferrell v. Southern Farm Bureau Cas. Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987), we expressly said a qualified trooper could state “who crossed over a center line.” Thus, the trial court erred in ruling that the trooper could not state her opinion about the location of the vehicles at the moment of impact.
We no longer presume error to be prejudicial. Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 688 S.W.2d 275 (1985). A good part of the time devoted to this case at our decisional conference was spent in discussing whether the error was harmless or prejudicial. Preponderating against prejudice is the trooper’s testimony that the area of impact, or place of first contact, was four inches over into the outside, or car’s, lane. Surely, most jurors would know that the trooper was testifying, in her opinion, the truck was at least four inches over into the car’s lane, and no harm resulted from the later ruling. However, after that testimony, the trial court, on its own motion, stated, “I sustained the objection to that testimony.” As a result, the jurors quite possibly thought they should not consider the trooper’s statement, and, since the subject of the testimony was the most crucial issue in the case, prejudice most likely occurred. Accordingly, we reverse and remand. | [
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Per Curiam.
The City of Mountain View (City) has moved to dismiss the appeal of Albert and Ruby Mitchell because the time for filing the record on appeal has expired. Notice of appeal was filed on September 19, 1990, and the Mitchells have neither filed the record with the Clerk nor responded to the motion to dismiss the appeal.
Ark. R. App. P. 5(a) provides that, “[t]he record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court as hereinafter provided. . . .” The Mitchells have not filed a request for an extension in which to file the record and none has been granted. Consequently, the Mitchells are procedurally precluded from pursuing their appeal, and the City’s motion to dismiss the appeal must be granted.
This procedure is unusual in that no appeal is pending in this court and were the Mitchells to attempt to perfect an appeal the record would be refused by the Clerk as untimely. However, since the trial court has no power to dismiss an appeal [except as provided in Ark. R. App. P. 3(b)], Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), there is some uncertainty as to how a stale appeal may be dismissed. We think the procedure followed by the City in this case is proper, that is, if the time for appeal has expired and the prevailing party prefers to formalize that fact without waiting for seven months to elapse, such party may file with the Clerk a partial record and move for a dismissal. Where the partial record demonstrates that the appeal is barred that motion will be granted.
The City also requests that it be reimbursed for its costs. We grant that motion, pointing out that if a would-be appellant, after filing notice of appeal, permits- the appeal to become stale, it can avoid incurring further costs by seeking a dismissal in the trial court pursuant to Ark. R. App. P. Rule 3(b).
Motion for dismissal of appeal and recovery of costs granted. | [
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Paul Ward, Justice.
This appeal calls for a decision on the constitutionality of Act 441 of 1967 which created a State Printing Specifications Review Committee (hereafter referred to as Committee), which has the duty to review and classify state printing contracts, etc. The Committee, consisting of three members, is composed as follows:
I. The Purchasing Agent of one of the state supported institutions of higher learning.
2. The Purchasing Director of the State Health Department.
3. The State Purchasing Director.
On September 8,1967, Ernie J. Ambort (a taxpayer and appellee herein) filed a Complaint in Chancery against the Committee and others, alleging that the Secretary of State, pursuant to regulations promulgated by the Committee, is about to take bids on printing contracts in compliance with Act 441; that said Act is unconstitutional, and; that, if the contracts are awarded, plaintiff and other citizens and taxpayers will be irrevocably damaged. The prayer was that said Act be declared unconstitutional and void, and that the Secretary of State and the Commission be enjoined from proceeding further.
The Secretary of State answered that he neither admits nor denies the allegations in the complaint. The Committee, by answer, stated said Act 441 was a valid statute, and asked that the complaint be dismissed. The Attorney General, being permitted to intervene, also asked to have the complaint dismissed.
The matter being presented on a stipulation of facts, the trial court held Act 441 was unconstitutional and void, and enjoined further proceeding under same.
For reversal appellants rely upon one point, stated as follows:
“Act 441 is a valid enactment of our legislature which does not in any way violate Article 19, § 15 of the Arkansas Constitution.”
To clarify the pivotal issue here involved we first quote the portion of the Constitution referred to and abstract briefly Act 441.
Article 19, § 15 reads:
“15. Contracts for Stationery, printing and other supplies — Personal interest in contracts prohibited. —All stationery, printing, binding and distributing of the General Assembly and other departments of government, shall be furnished and the printing, binding and distributing of the laws, journals, de partment reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.” (Emphasis ours.)
Act 441 of 1967, in substance and in parts deemed pertinent here, provides.
§ 1. The Secretary of State, with the advice of the Committee, shall prepare specifications of all state printing contracts, etc.
§ 2. Creates the Committee.
§ 3. Relates to when the Committee meets and payment of expenses.
§ 4. The Committee has the following powers: (a) study and review existing contracts contemplated by said Section 15 of Article 19; (b) To evaluate the requirements of various departments relative to costs and services; (c) To assist in developing necessary specifications, rules and regulations.
§ 5. (1) Similar to (c) above — and approve such specifications. (2) Classify and specify the duration of contracts — whether one or two years. (3) Study requirements of state agencies.
$ 6. Secretary of State to supervise the opening and tabulation of bids contemplated under Art. 19, § 15, and specify the time and manner of advertising for bids.
Relates to manner of opening bids.
§ 8. Similar to § 7, and requests contracts to be let to lowest responsible bidder.
§ 9. The Secretary of State, with the Auditor and Treasurer, shall determine sufficiency of bond given by bidder, etc.
§ 10. Secretary of State may investigate sufficiency of bidder to carry out contract.
§ 11. The Secretary of State, with approval of the Committee, has discretion to determine when a contractor is in default, etc.
§ 12. All contracts awarded shall be approved by the Governor, Auditor and Treasurer.
§ 13. Repeals all laws in conflict.
§ 14. If any provision is invalid it shall not affect other provisions.
§ 15. Emergency Clause. Since it is found: that state agencies spend thousands of dollars each year for printing and stationery; that most laws governing such contracts are obsolete, and; there is a need to establish a procedure io. review the contracts now bemg let and in order that new specifications and procedures may be established to promote efficiency and economy in the letting of such contracts, an emergency is declared. (Our Emph.)
A careful examination of that portion of the Constitution copied above and the provisions of Act 441, leads us- to the conclusion that there is nothing in Act 441 which conflicts with the Constitution. We feel it is unnecessary to further belabor this conclusion, because appellee has failed — after being challenged by appellants — to point out any specific conflict or any reasons for an. affirmance of the trial court except those hereafter examined.
One. It is contended by appellee that the case of Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586, is in point and calls for an affirmance here. We do not agree.
In the Ellison case we construed Act 107 of 1889 which selected the Governor, Secretary of 'State, and Auditor as a Board to award the printing contracts, and held said Act 107 invalid because Art. 19, § 15 necessarily meant someone other them the Governor must let or award the contracts. This was based on the fact that the Constitution required the governor to approve the contracts, not to let them. That conflict of interest does not arise under Act 441.
Also, appellee likewise relies on Muncrief v. Hall, 225 Ark. 570, 262 S. W. 2d 92, but that case is distinguished from the case here under consideration on the same principle announced in the Ellison case. This is fully explained at page 575 of the Arkansas Reports.
Two. Attention has been called to certain language used in § 4 (a) of Act 441 which shows the Act is unconstitutional. It states that the Committee shall have the power and duty “To study and review all existing contracts ...” There is no merit in this contention. A casual reading of the Act, and especially the emergency clause, indicates clearly there was no intent of the legislature to change any existing contract but only to procure information helpful in negotiating contracts in the future. Also it is pointed out that if such language violates the Constitution it can be eliminated under § 14 of the Act, and would not render the rest of the Act inoperable.
It is therefore our opinion that Act 441 of 1967 is valid and not unconstitutional, and that the decree of the trial court must be, and is hereby, reversed.
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Paul Ward, Justice.
This litigation relates to the immunity of a doctor from liability for certain acts or conduct. To better understand the issue, how it arose, and how it reaches this Court, we set out below a brief -summary of the background facts.
On August 19, 1965 Mrs. Carolyn E. Chudy (appellant here) filed suit for a divorce from her husband; Brunan S. Chudy. On August 30, 1965 Dr. Amail Chudy (appellee here, and a brother of Brunan S. Chudy) allegedly signed a false certificate stating appellee was in need of psychiatric treatment. On the same day a hearing was held before the Probate Court relative to the condition of appellee, and the presiding judge or dered her to be taken to the Arkansas State Hospital for Nervous Diseases. Appellee was held in said hospital for one day when she was released, on a petition for a writ of habeas corpus, by the Probate Judge.
On November 17, 1965 appellant filed a Complaint, and later an Amended Complaint, in circuit court against appellee wherein she made, in substance, the following allegations :
(a) The defendant wilfully and intentionally made and signed a false statement or certificate, stating that she was psychotic and in need of psychiatric care, at the time appellee knew said statement was false.
(b) Appellee’s purpose in making this statement was to have it submitted to the Probate Court in order to have her committed for psychiatric treatment in said hospital, knowing at the. time she was not psychotic.
(c) At all times she was “sane and competent and free from psychosis and was not in need of mental or psychiatric care.”
(d) Appellee was engaged in a conspiracy with his brother, Bruñan S. Chudy, for the purpose of as--sisting the said Brunan S. Chudy in deterring her in the aforementioned divorce proceedings, and to falsely and unlawfully deprive her of her liberty, and to humiliate, intimidate and embarrass hér.
(e) She is the mother of three children who live with her, and she has suffered anxiety, humiliation and embarrassment over said detention and deprivation of her liberty, as well as from public notoriety, and that she will continué to so suffer.
(f) She has suffered compensatory damages in the sum of $100,000 and punitive damages in the sum of $50,000 for which she prays judgment.
To the above complaint appellee filed a" Motion for Summary Judgment which was sustained by the trial court, hence this appeal.
It is our conclusion that the complaint states 8 cause of action, and that the trial court erred in granting the Motion for.Summary Judgment. It.is wéll settled by decisions of this Court that the Motion does not lie when material facts are in issue. Griffin v. Monsanto Co., 240 Ark. 420, 400 S. W. 2d 492.
If, as alleged, appellee wilfully, knowingly and maliciously executed the false certificate and conspired with appellant’s husband to deprive (and did deprive) appellant of her liberty and freedom, causing her to suffer as pleaded, she has a right to recover damages in a court of law.
In the case of Comfort v. Young, 69 N. W. 1032, Young filed “with the board of insane commissioners . . . charging that plaintiff [Comfort] was and is insane, and a fit subject for custody and treatment in the insane hospital of the state.” There it was held the trial court properly instructed the jury as follows:'
“ ‘The real question for you to determine first in this case is: Was the information made by the defendant and filed by him honestly and in good faith, upon probable cause ...”
The case of Brandt v. Brandt, 3 N. E. 2d, 96, 286 Ill. App. 151, is in point with the above holding that such allegations are matters for the jury to consider. There, plaintiff (appellant) sued her former husband (and others) alleging the defendants “conspired to commit plaintiff to a hospital for the insane unlawfully and improperly.” The case was tried by a jury which found appellant had not proved the allegations. On appeal, the Court cited cases which held “that one who maliciously and falsely sues out an inquisition of lunacy may be liable to the party injured.” The Court then said: ‘ ‘ There is no question of the law in that respect, . . . hut that is wholly beside the question” because there “is no proof here from which a conspiracy can be inferred.” Of course, in the case before us, appellant was not even allowed to offer proof of her allegations. In accord with the rule above announced are other cases cited in 145 A.L.R. at page 705 et seq.
In reply to the above, and in urging an affirmance of the trial court, appellee makes this statement: “The sole question before the Court in this case is the application of the defense of absolute privilege.” In support of that position appellee cites cases which we will examine and which, we think, can be distinguished and are not applicable under the pleadings in the case here under consideration.
(a) Hurley v. Towne et al, 155 Me. 433, 156 A. 2d 377, is a case where the doctor was called, as an expert witness, before the committing proceedings, and there the doctor was immune from liability for that reason. In the case before us appellee was not called and he was not a witness. The court pointed out that “every person shall have a remedy at law for every wrong,” but that public policy requires that witnesses shall not be restrained by fear.
(b) MeZullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356, was an action based on Tort, where the doctor “was called upon to perform an important duty,” i. e. to sign a certificate of commitment. There the Supreme Court also pointed out that “Plaintiff does not contend that a case at Common Law is made.”
(c) Dyer v. Dyer, 178 Tenn. 234, 156 S. W. 2d 445, is where appellant sued her former husband and two doctors for damages for false imprisonment in the state hospital. The- trial court had sustained a demurrer to the complaint. On appeal the Supreme Court affirmed. In doing so, however, the Court said that the statements of appellees “were made in a judicial proceeding under
oath, in response to a call for their professional opinion and were, therefore, absolutely privileged.” (our emphasis) The Court again said that the statements were “responsive to questions propounded to the defendant by counsel while being examined ... in a judicial proceeding . . (our emphasis.)
In the case here under consideration this is the situation: Appellee was not a witness in a judicial proceeding and he was not called by anyone to make a statement or certificate. He is charged with conspiring with the husband of appellant to have her taken from her home and children and placed in the State Hospital for Nervous Diseases, and is charged with doing so wil-fully, falsely, and maliciously to hinder the divorce proceeding and to cause her embarrassment and humiliation. It is our conclusion that appellant has a right to try to prove the allegations in her complaint.
Reversed.
Hakris, C. J. and Byrd, J., dissent.
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Tom Glaze, Justice.
This is an appeal from the trial court’s dismissal of the appellant’s cause of action against the appellees for breach of an oral contract. This litigation resulted from storm damage to appellant’s gymnasium roof. At the time of the damage, appellant was insured by appellee Union Standard Insurance Company (Union). The appellant alleges that Union made an oral contract with appellee PercyMart, Inc. to repair the roof.
PercyMart completed its repairs around May 30, 1984, but shortly thereafter, the roof began to leak. PercyMart was unable to fix the problem after several attempts. Nearly five years later, on May 8, 1989, the appellant filed suit, alleging that it was a third party beneficiary of the earlier oral contract between Union and PercyMart and that PercyMart breached the agreement by not performing the work as warranted. The trial court dismissed the appellant’s action as being barred by Ark. Code Ann. § 16-56-105(3) (1987), the three year statute of limitations for breach of ■contract actions. In addition, the trial court granted Union’s motion for summary judgment, finding there was no evidence of a contract between Union and PercyMart. On appeal, the appellant argues the trial court was erroneous in these rulings. Because we affirm the trial court’s finding that the appellant’s action is barred by the three year statute of limitations, we need not address the summary judgment issue.
Appellant argues that the trial court erred in applying § 16-56-105(3) (1987), to its cause of action, and that instead the correct statute of limitations is Ark. Code Ann. § 16-56-112(a) (1987), which in pertinent part provides as follows:
No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by . . . construction and repair of any improvement to real property or for injury to real property or personal property caused by such deficiency, shall be brought against any person performing . . . the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
While the appellant’s cause of action was not brought within three years of the alleged breach, its action was brought within five years of the completion of the deficient repairs.
This is our first opportunity to address § 16-56-112 and its effect, if any, on § 16-56-105(3) and other statutes of limitations. Before the enactment of § 16-56-112, a third party could sue architects and people in the construction and building field at any time after completion of work, so long as the third party brought suit within the applicable statue of limitations period commencing from when an injury or breach occurred.In recognition of this fact, states, including Arkansas, adopted statues to limit the time within which actions could be brought against persons in the construction and building field. See generally Annotation, Time Limitations — Action Against Architect, 93 A.L.R.3d 1242 (1979).
In making its argument, the appellant cites the established rule of law that if two statutes of limitations apply to the same cause of action, generally the statute with the longest limitations will be applied. See O’Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989). That rule, however, is not applicable to this case. Section 16-56-112, by its own terms, is not meant to extend existing statutes of limitations. In this respect, subparagraph (f) of the statute provides as follows:
Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, nor shall the parties to any contract for construction extend the above prescribed limitations by agreement or otherwise.
In keeping with the express language of § 16-56-112(f), we believe it is clear that the five year limitations contained in § 16-56-112(a) cannot be used to extend the three year limitations period provided in § 16-56-105(3). As it relates to the facts in the present case, § 16-56-112(a) clearly establishes a maximum five year period within which an injured party can bring suit against a person who deficiently constructs or repairs an improvement to real property. That period commences after the substantial completion of the improvement. But, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action. For example, in the present case, if the breach or injury occurs immediately after the completion of the improvement, the injured party must still comply with § 16-56-105(3) and bring his action within three years from when the breach occurs but not later than the five year period provided in § 16-56-112(a).
In holding that § 16-56-112 does not extend the three year statute of limitations for the appellant to bring its contract action, we note that other jurisdictions with similar statutes have followed this reasoning. See Lee v. Fisher, 413 F.2d 1286 (6th Cir. 1969) (applying Kentucky law); Benning Const. Co. v. Lakeshore Plaza, 240 Ga. 426, 241 S.W.2d 184 (1977); Berns Const. Co. v. Miller, 491 N.E.2d 565 (Ind. App. 1 Dist. 1986); O’Connor v. Altus, 67 N.J. 106, 335 A.2d 545 (1975); Comptroller of Virginia v. King, 232 S.E.2d 895 (Va. 1977).
For the reasons stated above, we affirm.
Newbern, J., not participating.
We have addressed § 16-56-112 in other opinions, but in those cases the plaintiffs’ actions were barred because they were brought after five years from the date of construction. See Elliotte v. Johnson, 285 Ark. 383, 687 S.W.2d 523 (1985); Okla Homer Smith Manuf. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983); Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W.2d 528 (1975). | [
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Steele Hays, Justice.
This dispute arises under the Attorney’s Lien Law, Ark. Code Ann. § 16-22-301-304 (Supp. 1989).
On September 14, 1984, Ms. Fritzi Ketcher-Montgomery was injured in a collision with James L. Redditt, an insured of American National Property and Casualty Insurance Co., (ANPAC). Ms. Ketcher-Montgomery hired The Haskins Law Firm (Haskins) and agreed to a contingent fee of 33 '/h percent of all sums recovered. Approximately a year later, on November 20, 1985, she terminated her agreement with Haskins and hired Guy Jones, Jr. On December 2,1985, Haskins sent certified letters to ANPAC advising that Haskins no longer represented Mrs. Ketcher-Montgomery, but also claiming an attorney’s lien on behalf of Haskins against any settlement. On December 16,1985, Guy Jones wrote to ANPAC that he was “trying to work out” an agreement with Haskins and in February Jones wrote to Haskins offering to “assure and guarantee for an attorneys lien on your part $4,000, to cover the time and expense your firm or office has been out.” Jones continued, “After talking with Ms. Ketcher about a division of the fee, she was very adamant about your firm having nothing whatsoever to do further with her claim and has authorized me to assure the lien amount.” Haskins responded: “Your offer to assure and guarantee our attorney’s lien on our part in the amount of $4,000, is accepted.”
In October of 1987, the claim was settled for $50,000, ANPAC’s policy limits. No notice of the settlement was given to Haskins by any of the parties to the settlement. Some two years later, after learning of the settlement, Haskins wrote to Jones and Ketcher-Montgomery demanding payment of the $4,000. When payment was not forthcoming, Haskins filed suit in chancery court against ANPAC, Jones, and Ketcher-Montgomery, seeking judgment against all parties in the amount of $16,666.66, representing one-third of the settlement figure. ANPAC generally denied the allegations and sought a judgment over against Ketcher-Montgomery and Jones.
Haskins moved for summary judgment against ANPAC, resulting in an order denying Haskins any recovery against ANPAC, but awarding Haskins a judgment against Jones for $4,000, plus costs and an attorney’s fee. Haskins appeals asking that the order be reversed and for judgment against ANPAC for $16,666,666.
Haskins first argues this case is governed by Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990). But there are material differences between the two cases. In Lockley there was no substitution of counsel and no agreement to accept a different fee. Mrs. Carter (formerly Mrs. Lockley) hired Michael Easley to recover moneys due under a decree of divorce from a former husband. The fee agreement was for a contingent fee of one-third of any recovery. Easley filed a petition to show cause and $6,000 was offered in settlement. At that point Mrs. Carter indicated to Easley her intention to drop the matter and she directed him to dismiss the pending petition. Easley did as she instructed and then billed Mrs. Carter for time and expenses, $297.50. Easley later learned that not long after the dismissal, Mrs. Carter had received a payment of $6,000 and had signed an agreement with her former husband in the office of his attorney releasing all claims against him. Easley sought and recovered a judgment of $2,000 (less $297.50) against Mr. Lockley and Mrs. Carter pursuant to the attorney’s lien statutes. Mrs. Carter argued on appeal that Easley had waived any claim to the contingent fee by billing and collecting for his services on an hourly basis. We found that argument unconvincing:
But the chancellor found that Easley had submitted the statement for $297.50 in good faith and before he discovered the facts concerning the payment and settlement, and concluded that his rights under the contractual agreement with Mrs. Carter could not be thereby defeated. We believe that was correct and appellants have not cited authority requiring a different result.
Haskins argues that its agreement with Jones is analogous to the agreement between Easley and Mrs. Carter. But Easley had no knowledge of the recovery Mrs. Carter had received at the time he billed her for his service, nor was there any discussion between them of an attorney’s lien. In the absence of the attorney’s awareness of this material fact at the time of settling his client’s account, he did not waive any claim to a contingent part of a recovery made without his knowledge. See Schaefer v. Arkansas Medical Society, 853 F.2d 1487 (8th Cir. 1988).
A compromise agreement is conclusive only as to those matters which the parties have fairly intended to include within its terms and the necessary consequences thereof. Meyers, v. Meyers, 210 Ark. 714, 197 S.W.2d 477 (1946). No reasonable inference could be drawn from the circumstances in the Lockley case that attorney Easley intended to accept $297 in payment of services that had resulted in a recovery of $6,000 by his client. See also 6 A. Corbin, Corbin on Contracts § 1296 (1962). “Inconsistent Contracts” (The settlement operates as a discharge by substitution only so far as the inconsistency extends). In contrast, Haskins expressly agreed to accept $4,000 in settlement of its fees, irrespective of the amount of any recovery ultimately realized.
Here we are not dealing merely with a billing for Haskins’ services performed on an hourly basis, as in Lockley, but with an express contracting away of Haskins’ contingent fee for a specific amount. When Haskins agreed to accept $4,000 from Jones, it bargained away its rights to any future recovery that might occur. For by the language of the attorney’s lien statute, the lien applies to “any settlement.” § 16-22-304. We conclude that the intention of the parties was that Haskins substituted a liquidated sum in exchange for surrendering its right to a percentage of any subsequent recovery.
Haskins next argues that if the agreement with Jones/ Ketcher-Montgomery did intend to waive any lien on future settlements or judgments, that agreement was breached by Jones’s failure to pay and Haskins could then revert to its rights in its original agreement for one-third of any settlement or judg ment. We disagree.
Under general contract principles, upon the execution of a valid and legally substituted agreement the original agreement merges into it and is extinguished, and failure to perform the substituted agreement will not revive the old agreement. 17 Am. Jur. 2d Contracts § 459 (1964). See also Id. at § 483; Restatement (Second) of Contracts § 279 (1990); 6 A. Corbin, Corbin on Contracts § 1293 (1962); Farelly Lake Levee Dist. v. McGeorge, 172 Ark. 460, 289 S.W. 753 (1926); and Ozark and Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 243, 122 S.W. 624 (1909).
The Restatement (Second) of Contracts § 279 (1990) provides:
(1) A substituted contract is a contract that is itself accepted by the obligee in satisfaction of the obligor’s existing duty.
(2) The substituted contract discharges the original duty and breach of the substituted contract by the obligor does not give the obligee a right to enforce the original duty.
Further, Comment a. to the section reads: If the parties intend the new contract to replace all of the provisions of the earlier contract, the contract is a substituted contract. Was Haskins’ second contract for $4,000 a substituted contract for its original contract? We believe it was. The question is, did Haskins and Jones intend for any rights under the original contract to be reserved or incorporated into the second contract? As noted above, we think it was fairly intended that Haskins release its rights to one-third of any settlement under the original contract, in exchange for a liquidated sum. It is evident the intent of the parties was to substitute the second contract for the first and to accept it in satisfaction of the obligor’s existing duty. Nor has Haskins offered anything below or on appeal to suggest otherwise. Therefore, the terms of the original contract had been extinguished and were not available as an alternative basis for suit.
As its last argument Haskins contends that under the attorney’s lien statutes [Ark. Code Ann. § 16-22-301 through 304 (Supp. 1989)], regardless of any agreement with Jones, it still has recourse against any other parties to the settlement. Specifically, Haskins argues it has a lien for $16,666.66 against ANPAC under the terms of its original contract with Mrs. KetcherMontgomery. Haskins is correct in the contention that it can pursue all parties to the settlement. See § 16-22-303 (b)(1); Lockley v. Easley, supra. We have no difficulty concluding that Haskins has a cause of action against ANPAC under the statute, and we agree, were it not for the agreement with Jones/KetcherMontgomery, Haskins would be arguably entitled to its contingent fee under the above language against ANPAC. However, as discussed previously, Haskins can no longer rely on the terms of the original contract as those were extinguished when the substituted contract was entered into. Therefore Haskins is limited to the stipulated sum of the substituted contract for its remedy, which sum was also determined by the trial court to be a reasonable fee pursuant to Ark. Code Ann. § 16-22-303(b) (1987).
We find that under Ark. Code Ann. § 16-22-303 (Supp. 1989), ANPAC is one of the parties that could be sued for the attorney’s fee of $4,000, and we modify the trial court’s order to the effect that the judgment be entered against both Jones and ANPAC, with ANPAC entitled to a judgment over and against Jones and Mrs. Ketcher-Montgomery.
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George Rose Smith, Justice.
The parties were married in 1943 and separated in 1964. In January, 1965, Mrs. Riegler obtained a decree awarding her separate maintenance and the custody of the couple’s five daughters, the oldest of whom was then 18. In March, 1966, Mrs. Riegler filed suit for an absolute divorce on the ground of personal indignities. Dr. Riegler did not oppose his wife’s suit for a divorce, but he did resist her claims to alimony, child support, and a share of lps property. This appeal and cross appeal relate only to those contested matters, presenting primarily questions of fact.
I. The decree awarded Mrs. Riegler alimony of $250 a month, which is to be increased to $350 when the jointly owned family residence is sold and she surrenders possession. The decree also awarded her $550 a month for the maintenance of the minor children, with a similar $100 increase upon sale of the residence. (Dr. Riegler does not now question this award.) The decree recognizes Dr. Riegler’s asserted desire to provide his children with a college education and directs that if he fails to do so voluntarily the matter will be submitted to the court for decision.
Ordinarily the amount to be allowed as alimony and child support lies within the sound discretion of the chancellor. Childers v. Childers, 229 Ark. 11, 313 S. W. 2d 75 (1958). Here Dr. Riegler contends that his former wife’s misconduct precludes her from any award of alimony and, alternatively, that the monthly allowance is excessive in view of her independent means and his ability to pay.
We find no abuse of the chancellor’s discretion. By tacit consent the parties allowed the case to proceed in two stages. It was first submitted to the court’s master in chancery as an uncontested case on the issue of the plaintiff’s right to a divorce. With respect to property rights, however, the issues were reserved for an adversary hearing before the chancellor. At that hearing the chancellor refused to consider proof of Mrs. Riegler’s supposed misconduct. On that point counsel made their record by offers of proof.
The chancellor rightly rejected the charge of misconduct. We have some doubt about the parties’ agreed procedure, for such a two-step approach might be used to achieve a collusive divorce. In any event, however, the testimony heard by the master is not abstracted; so we are unable to compare the spouses’ relative fault. Much of the misconduct attributed to Mrs. Riegler occurred years ago and falls within the doctrine of con-donation. Finally, the fact that Dr. Riegler does not question his wife’s suitability to have the custody of the children confirms the view that Mrs. Riegler is of good character.
The evidence about Mrs. Riegler’s independent means is in such conflict that we are unable to estimate the worth of her property with accuracy. Much of it is involved in litigation. Moreover, even if we take a liberal view of the value of Mrs. Riegler’s property, her available income would still be only a small fraction of Dr. Riegler’s. According to his 1965 federal income tax return, his net income, before the deduction of alimony, was $59,431.35. His federal and state income taxes totaled $26,088.72, leaving* him a net income of more than $33,000. It is quite evident that the alimony and child support allowances fall well below Dr. Riegler’s ability to pay. We are unwilling to modify the chancellor’s award of alimony, either upward or downward.
The matter of the children’s college education was deferred for a later decision. What we have to say in Part V of this opinion may be pertinent if that question comes up in the future.
II. The weight of the evidence supports the chancellor’s award of a 1964 Chevrolet to the appellee. Not only is there convincing proof that Dr. Riegler gave this car to his wife, but there is no showing that the court’s disposition of the car resulted in the appellee’s receiving* more than one-third of her husband’s personal property, taken as a whole.
III. For a number of years preceding the trial Dr. Riegler practiced general medicine in partnership with his father. In attempting to arrive at the plaintiff’s statutory one-third interest in the partnership property, Ark. Stat. Ann. § 34-1214 (Repl. 1962), the chancellor made specific awards for some items, such as cash on hand and the value of partnership life insurance, and then directed that Mrs. Riegler he given a specified share of accounts receivable as they are collected in the future.
This approach to the problem is wrong. Under the Uniform Partnership Act Dr. Riegler’s rights in specific partnership assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1966). A judgment creditor properly reaches that interest by means of a charging order. Section 65-128. What the chancellor should do is to determine the value of Dr. Riegler’s interest in the partnership, treating the accounts receivable as assets having a provable fair net present value. That determination will result in a monetary decree in the plaintiff’s favor, to be enforced, if necessary, by a charging order. We cannot make the determination ourselves on the record before us, for the proof is far from adequately developed. Further proceedings will be necessary on remand.
IV. There are two disputes about the cash value of insurance policies. One relates to policies owned by the partnership and will therefore be considered on remand, under Part III. The other concerns the value of policies owned by Dr. Riegler individually. The chancellor fixed Mrs. Riegler’s interest in those policies at $8,811.38, deriving that figure from a statement of Dr. Riegler’s assets prepared by his accountant. Mrs. Rieg-ler insists that the court should have considered instead the doctor’s sworn answers to interrogatories propounded to him. Those answers, however, gave the cush values as of November 26, 1965. The accountant stated the values as of May 11, 1966, the date of the divorce decree. The chancellor correctly chose the latter as the controlling date for his determination.
V. The decree for separate maintenance awarded Mrs. Riegler $600 a month “for maintenance of herself and the four children now in her custody.” In the in terval between that decree and the one now being reviewed Mrs. Riegler spent a total of $3,187.68 for college educational expenses of her oldest daughter, who was of age when the separate maintenance decree was entered, and for similar expenses of her next daughter, who reached 18 before the rendition of the later decree. The chancellor directed Dr. Riegler to repay $2,749.00 of those outlays.
That direction was an error. Ordinarily a mother who spends more for child support than the court has allowed her cannot recover the excess, because an award of child support ought not be increased retroactively. She should apply in advance for a larger allowance. Gant v. Gant, 209 Ark. 576, 191 S. W. 2d 596 (1946). On the other hand, a father may by contract bind himself to go beyond the decree in supporting a daughter who has reached her majority. Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648 (1944). Mrs. Riegler insists that the proof establishes such a contract on Dr. Riegler’s part.
We do not so find. Dr. Riegler testified, as most fathers would, that he wanted all his children to have a college education. We do not read his testimony, however, as embodying an agreement to pay the expenses now at issue. To the contrary, he said that if he paid for his daughters ’ higher education he expected them to treat him with the respect due a father and to counsel with him about their college training. He complained, among other things, that his oldest daughter had told him to go to hell and had declared that the only thing he had to do with her education was to give her the money to spend as she chose. On the proof as a whole Mrs. Riegler did not sustain the burden of proving an agreement for support over and above the allowance made by the separate maintenance decree.
VI. In 1960 Dr. and Mrs. Riegler borrowed $7,-141.25 from Mrs. Riegler’s aunt, Mrs. Wagar. Both spouses signed a note for that amount, payable to'Mrs. Wagar and Mrs. Riegler jointly (apparently beeanse the money was taken from a joint bank account that seems to have been established by Mrs. Wagar in the name of herself and Mrs. Riegler). At the trial Dr. Riegler insisted that his liability on the note was barred by limitations, but the chancellor rejected that defense, holding that Dr. Riegler’s obligation on the note is still enforceable.
We disagree with that view of the problem. This issue does not involve a division of property owned by the husband. Instead, Mrs. Riegler is contending that her former husband is contractually bound to repay her for money borrowed from her aunt, who died before the trial, without regard to the fact that Mrs. Riegler is a joint maker of the note. No such cause of action was asserted by the plaintiff in her complaint or other pleadings. The proof was not developed with respect to the source of the money borrowed, the extent of the doctor’s obligation, or the circumstances surrounding a part payment by Mrs. Riegler herself which is said to have tolled the statute of limitations. The evidence falls so decidedly short of sustaining Mrs. Riegler’s right to recover upon the note that this aspect of the case must be decided in Dr. Riegler’s favor.
VII. What we have said disposes of most of the points urged by Mrs. Riegler on cross appeal, such as her demand for more alimony and child support, for reimbursement for additional college expenses paid by her, and for an even greater recovery upon the Riegler-Wag’ar note. One remaining- issue on cross appeal is Mrs. Riegler’s request that she recover $654.95 expended by her for medical treatment for the minor children, after the entry of the separate maintenance decree. That decree, however, directed that Dr. Riegler be consulted before medical or dental expenses for his children were incurred. He was not so consulted. He testified without contradiction that he might have obtained the services of his fellow doctors either as a matter of professional courtesy or at a reduced rate if he had been afforded an opportunity to do so. Upon that proof he cannot fairly he saddled with the charges now being asserted.
VIII. We affirm the chancellor’s award of a $3,-500 attorney’s fee to the appellee’s counsel and allow an added $1,000 for their services in this court, to he applied upon their fee.
Affirmed in part, reversed in part, and remanded.
Byrd, J., not participating. | [
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Robert L. Brown, Justice.
This appeal concerns the notice procedures a lender must follow under the Uniform Commercial Code in order to claim a deficiency judgment against the debtor following the sale of collateral. The facts in this case are not disputed.
On May 24, 1985, appellants Edward Walker and his wife, Ortha Walker, signed a promissory note in favor of appellee Grant County Savings and Loan Association in the amount of $59,134.39, which was secured by thirty head of cattle and various pieces of logging equipment including a John Deere skidder, two Ford trucks, a Prentice loader, a Massey Ferguson tractor, and an International tractor, the back of the note contained the terms of the security agreement which included notice to the Walkers in the event of default and sale of collateral:
I also agree that if any notice is required to be given to me of your intended sale or disposition of the property, notice will be considered commercially reasonable if provided by first class mail addressed to me at the address listed on the front side of this form mailed 10 days before the date of intended disposition. [Emphasis ours.]
The Walkers subsequently defaulted on their note payments, and the savings and loan commenced the process for repossessing the equipment and selling the same. On September 8,1988, the Walkers and representatives of the savings and loan signed their names to a handwritten list of the Walkers’ collateral equipment and prices:
Loader 7,500
Skidder 12,000
Int’l Tractor 5.000
Ford Truck 4.000
Massey Ferguson 4.000
These figures represented amounts the Walkers considered acceptable for the items.
On September 27, 1988, Frank Springer, on behalf of the savings and loan, wrote Edward Walker a handwritten message on the bottom of a statement of account for the defaulted note which read:
Mr. Walker, This is to advise you that we will pick up the equipment pledged on the above contract no later than the 3rd day of October, 1988, unless you have been successful in selling the equipment before that time. The equipment will be included in our auction sale on October 8, 1988 at Sheridan. Should it fail to bring as much as the balance on the loan account you will then be responsible to us for the deficency [sic].
Springer hand-delivered the message to the Walkers on September 27, 1988.
The savings and loan caused an auction flyer to be printed which advertised the sale of multiple items, including the Walkers’ equipment, for 10:00 a.m. on October 8,1988, at a designated site in Sheridan, Arkansas. According to Springer, this flyer was mailed to the Walkers on October 3, 1988. Two pieces of the Walkers’ equipment were sold at the auction, but the Prentice loader and the 1976 Ford truck with the skidder mounted on it were not sold because the prices offered were inadequate.
Following the October 8,1988 auction, Springer did receive an offer on the Prentice loader from Alvin Rogers and conveyed that offer by telephone to Edward Walker. Springer testified that Walker agreed to this sale. Springer also testified that he contacted Edward Walker about selling the 1976 Ford truck with the skidder to Billy Wilson and that he and Walker had three separate telephone conversations about it. According to Springer, Edward Walker first refused to sell at the offered price but then relented in late December, 1988. Ortha Walker testified that her husband “told me that Mr. Lamb [of the savings and loan] had called him and told him that they were getting ready to sell this equipment. . . .” She added that “the next day I got this letter that it was sold.”
In answering a series of questions about his understanding of what was to happen to unsold equipment after the auction, Edward Walker said:
Well, that was kind of an agreement that they was gonna sell it after, you know, that, uh, if somebody come by they were gonna agree they would sell it, get all we could out of it to pay on that note.
A deficiency resulted after sale of all the Walkers’ collateral, and on April 10, 1989, the savings and loan filed suit against the Walkers in the amount of $30,865.04. A trial was held before the circuit court, and, following the savings and loan’s case, the Walkers moved for a directed verdict on grounds that the sale of equipment was not conducted in a commercially reasonable manner and that reasonable notice of the sale was not given as required by the Commercial Code. The trial court denied the motion and the Walkers rested their case, whereupon judgment was entered in favor of the savings and loan. In his judgment the trial court specifically found that a post-default agreement existed between the parties which was reasonable and which rendered the issues of notice of sale and commercial reasonableness “immaterial.”
We do not agree and reverse the trial court’s decision.
The savings and loan’s primary argument before the trial court and on appeal is that it had an oral post-default agreement with the Walkers and that the oral agreement controlled the sale of the collateral equipment and eliminated the necessity for notice under the Code. As evidence of this agreement the savings and loan points to statements made by Edward Walker in a deposition taken in a related case concerning arrangements he had made with Mr. Lamb of the savings and loan:
Q. Okay. Did you make an agreement with Mr. Lamb that your equipment would be sold?
A. Yeah, we made an agreement that he was gonna sell it.
Q. Was the agreement ever put in writing?
A. On selling it?
Q. Yes, sir.
A. Well, now we did put in writing, but the price, he told me about what it would bring.
Q. So the writing was what his estimate was as to what he thought the equipment could bring?
A. Uh-huh.
4* 4* 4*
Q. Okay? Was — now, I realize, and you stop me if I’m wrong, Mr. Walker, but in your own mind, what did you think the Savings and Loan was going to do with the equipment that didn’t sell at the auction that Saturday?
A. Well, they was gonna wait for another — I mean, they were supposed to maybe have another auction or maybe somebody would come by and buy it before, you know, they had another auction.
Q. All right. Now, was that just something that was in your mind or was that part of an agreement that you had with Mr. Lamb and Mr. Easley?
A. Well, that was kind of an agreement that they was gonna sell it after, you know, that, uh, if somebody come by, they were gonna - agree they would sell it, get all we could out of it to pay on that note.
Q. Okay. To get all they could?
A. Yeah, what I said, they were gonna sell it — they were waiting to get a big price for it while we were trying to get the note paid off.
In probing Ortha Walker for her understanding of any post-default agreement, she testified the savings and loan told the Walkers it would try to sell the equipment “for as much as they could get out of 'em.”
We find no law in Arkansas to support the savings and loan’s argument that an oral post-default agreement suffices to render Code notice requirements and commercial reasonableness immaterial. On the contrary, the one Arkansas case that deals with post-default agreements and waiver of notice requirements involved a written agreement signed by the parties which specifically waived all notices of sale. Teeter Motor Co. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W.2d 938 (1976).
Under the Commercial Code the debtor has specific rights after default which are enumerated:
1. The debtor has those rights and remedies provided in the security agreement. Ark. Code Ann. § 4-9-501(2) (1987).
2. The sale of the debtor’s collateral must be commercially reasonable as to method, time, place, and terms. Ark. Code Ann. § 4-9-504(3) (1987).
3. The secured party must send the debtor reasonable notice of the time and place of public sale of collateral and reasonable notice of the time after which private sales will be made, unless the debtor has signed a statement renouncing or modifying that right. Ark. Code Ann. § 4-9-504(3) (1987).
4. The debtor has the right to redeem the collateral by full payment of the debt before sale, unless otherwise agreed in writing. Ark. Code Ann. § 4-9-506 (1987).
The Code further provides that “the parties may by agree- merit determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable.” [Emphasis ours.] Ark. Code Ann. § 4-9-501(3) (1987). The only reasonable interpretation of the “agreement” contemplated by this section is an agreement in writing. Indeed, at least one appellate court, in another jurisdiction, has interpreted the agreement reference in this section to be the original security agreement which outlined procedures for notice and sale in the event of default. Chapman v. Field, 124 Ariz. 100, 602 P.2d 481 (1979).
Any other interpretation does not withstand scrutiny. It would be radically inconsistent for the Code to underscore the debtor’s security agreement rights and rights to written notice of sale on the one hand and then permit the erosion of those rights by imprecise oral understandings on the other. One clear policy reason underlying Article 9 default provisions is the protection of post default debtors from the potential of overbearing tactics and intimidation by secured parties. After default the secured party is unquestionably in a position of control and even dominance. To insure that the debtor is fully apprised of his rights and fully aware of the process for the disposition of his property, the Code contemplates that agreements and notices and modifications relating to the sale be in writing.
It should also be noted that the Walkers are not as sophisticated in default procedures as the savings and loan. Edward Walker is visually impaired and has been totally disabled since 1987. Under such circumstances the Code places the responsibility of compliance with its default provisions squarely on the secured party, and evidence of this compliance must be in writing.
The savings and loan places great weight on a case which held that Code notices are immaterial where the debtor either agreed to the sale of collateral or actually made the sale himself. Pine Bluff Production Credit Ass’n v. Lloyd, 252 Ark. 682, 480 S.W.2d 578 (1972). That case is distinguishable on its facts because it dealt with perishable collateral which is specifically excepted from the notice requirements of § 4-9-504(3).
We, therefore, hold today that in order for a post-default agreement to establish the commercial reasonableness of a sale of collateral and to govern the notices relating to such sales as required by § 4-9-504 (3), it must be in writing. This holding certainly comports with our earlier decision considering such an agreement. See Teeter Motor Company, Inc. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W.2d 938 (1976).
In the various dealings between the Walkers and the savings and loan, there is no writing that rises to the level of a post-default agreement. The only writing that even arguably could qualify is a list of equipment and prices signed by the parties on September 8, 1988. This casual list falls far short of a document establishing the commercial reasonableness of the sale.
A closer question is whether the savings and loan gave reasonable notice of sale to the Walkers as required under § 4-9-504(3). The savings and loan does not argue this point but prefers to rest its case on the existence of an oral post-default agreement. Nevertheless, the savings and loan clearly discussed the sale of collateral with the Walkers. The parties then signed the property list containing prices on September 8, 1988, and on September 27, 1988, Frank Springer at the savings and loan gave the Walkers notice of repossession, stating, “The equipment will be included in our auction sale on October 8, 1988 at Sheridan.” Springer says he personally gave this memorandum to Edward Walker.
The Code is precise about what is required of the secured party in terms of notice:
Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.
Ark. Code Ann. § 4-9-504(3) (1987). We have held that the notice requirements of § 4-9-504(3) must be consistently adhered to. First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987). We have further held that a debtor’s prior knowledge of the sale of collateral is not sufficient to satisfy this section in the absence of written notice:
Knowledge of repossession does not equate with notice of sale, nor does knowledge that an automobile [the collateral] will be sold. The debtor is entitled to notification of a specific date after which the creditor intends to dispose of the property. This would provide the debtor a fixed period within which to protect himself from an inadequate sale price in any manner he saw fit.
Wheeless v. Eudora Bank, 256 Ark. 644, 648, 509 S.W.2d 532, 534-535 (1974).
The handwritten message from Springer to Edward Walker does refer to a date and town. It was also hand-delivered, according to Springer, eleven days before sale, thus complying with the ten day notice-of-sale requirement contained in the security agreement signed by the parties. But there is no reference in the message to time of sale, or to specific location of sale, or to the method, manner, and terms of the sale other than the fact it was to be an auction. Any reference to private sales to be held after the auction was also omitted, and no subsequent written notice was given to either Walker about private sales.
Nor does the auction flyer mailed to the Walkers on October 3,1988, satisfy the Code requirements. It did not meet the test of commercial reasonableness under the security agreement because it did not comply with the ten day notice requirement.
We have previously held that the debtor is entitled to notice of the time and place of a public sale and notice of the date after which a private sale will be made as the Commercial Code provides. See Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968). We have further held that “[w]hen a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency judgment, unless the debtor has specifically waived his rights to such notice.” Rhodes v. Oakland Bank, 279 Ark. 51, 55, 648 S.W.2d 470, 471-472 (1983). Hence, the failure of the secured party to give written notice under § 4-9-503(4) of the Commercial Code or otherwise to establish the commercial reasonableness of the sale by written agreement with the debtor will bar the secured party from any right to a deficiency. See Bank of Dover v. Shipley, 299 Ark. 451, 773 S.W.2d 825 (1989). As we observed recently, “The rule and requirement are simple. If the secured party wishes a deficiency judgment, he must obey the law. If he does not obey the law, he may not have his deficiency judgment.” First State Bank of Morrilton v. Hallett, 291 Ark. 37, 41, 722 S.W.2d 555, 557 (1987); quoting Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315 (1972).
There is, finally, the issue of whether the Walkers waived notice requirements under the Commercial Code by their actions or whether the doctrine of estoppel applies. The Code specifies that any modification or renunciation of notice must be a “statement” signed by the debtor. Ark. Code Ann. § 4-9-504(3) (1987). No such statement was signed by the Walkers in this case about either the public auction or the later private sales. Because a statement in writing signed by the debtors does not exist, waiver cannot be established by the savings and loan, and the debtors are not estopped to raise failure to give adequate notice as a bar to the deficiency judgment. To the extent that Pollack v. Pulaski Bank & Trust Co., 30 Ark. App. 20, 781 S.W.2d 497 (1989) stands for the proposition that written notice of sale is not required, we override that decision.
Again, we are mindful that the savings and loan relied solely on the theory of an oral post-default agreement between the parties which obviated the need for written notices or compliance with the commercial reasonableness requirements of the Code. The trial court adopted that theory as its conclusion of law. Though the Walkers argued before the trial court and on appeal that failure to give written notice and failure to sell the collateral in a commercially reasonable manner were defenses, this argument was not countered by the savings and loan. Indeed, the savings and loan did not present evidence that it had complied with § 4-9-504(3) because compliance, according to its theory, was immaterial. Nevertheless, the record appears complete on what was done by the savings and loan in the way of contacts with the Walkers following default on their loan.
The decision of the trial court is reversed and the case dismissed.
Dudley, Hays, and Glaze, JJ., dissent. | [
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John A. Fogleman, Justice.
The question to be determined on this appeal is whether Ark. Stat. Ann. § 75-1251 (Supp. 1965) [Section 11, Chapter 2, Act No. 40 of the Acts of the First Extraordinary Session of the General Assembly of 1965] is constitutional. The action was brought against the Commissioner of Revenues of the State of Arkansas by appellees, all of whom are in the business of transporting passengers and goods, for hire, in interstate commerce to and through. Arkansas by motor buses which use special distillate fuels. Each of them filed reports, showing the mileage traveled, on forms prescribed by the Commissioner of Revenues of the State of Arkansas. Upon the basis of these reports, but under protest, each of the appellees paid taxes on the special distillate fuel used at the rate of 8½ cents per gallon on the number of gallons indicated by assuming that each of the appellees used one gallon for each five miles traveled pursuant to the section questioned. Appellees’ suit was to recover all that portion of the tax paid by each in excess of 8½ cents per gallon used, with interest from date of payment. They allege that each of them maintained an average consumption of ]ess than the amount determined by statute. The case was tried upon a stipulation of facts. In pertinent part, the stipulation was as follows:
“1. * * * There are intrastate carriers (bus companies) engaged in the identical business and competitive with the Plaintiffs over certain routes.
2. The plaintiffs and the intrastate bus companies operate motor vehicles which primarily use diesel engines for propulsion.
3. The intrastate bus companies pay an excise tax of $.085 per gallon on all distillate special fuels purchased by them either at the time delivered to their storage facilities for later use or when purchased from a retailer for delivery directly into the motor vehicle’s tank.
4. The Plaintiffs, as interstate bus companies, submit a monthly report to the Defendant itemizing the quantity of fuel purchased and mileage traveled in Arkansas during the preceding month. With respect to the distillate special fuel imported into Arkansas and used for operation of a motor vehicle, the Plaintiffs pay $.085 per gallon based on the presumption that their motor vehicles consume one gal- Ion of fuel for each, five miles traveled. The greater part of the fuel used is imported into Arkansas in the tanks of the vehicles.
5. All of the Plaintiffs obtain more than five miles of travel for each gallon of special distillate fuel consumed. The Plaintiff, Continental Southern Lines, Inc., maintains an average of 6.3 miles per gallon and this is representative of the fuel consumption of the Plaintiffs as a group. The intrastate carriers have comparable consumption standards.
6. An intrastate bus company which obtains 6.3 miles per gallon pays a tax of $.0135 per mile of travel. A Plaintiff maintaining the same consumption pays a tax of $.017 per miles of travel.”
The chancellor rendered judgment for appellees with interest at the rate of 6% from date of payment of the tax until they are paid. He also enjoined appellant from attempting to enforce § 75-1251 in such a manner as to result in the collection of the distillate fuel tax in an amount exceeding 8½ cents per gallon.
The third paragraph of § 75-1251 reads as follows:
“For the purpose of determining whether a distillate special fuels user is entitled to a refund or a refund credit, or owes the State of Arkansas tax on distillate special fuels used in this State, as provided hereinabove, the number of gallons of distillate special fuels used in this State shall be determined by the Commissioner of Eevenues on the basis of five (5) miles per gallon of distillate special fuels. The Commissioner may make appropriate rules and regulations to assure accuracy in the reporting of such mileage and to prevent violations thereof.”
Appellees contended and the trial court found that the section was unconstitutional in that it is arbitrary, unreasonable, a burden on interstate commerce and discriminatory against interstate carriers in violation of Article 2, § 3 and Article 16, § 5 of the Constitution of Arkansas, and Article 1, Section 8, Cl. 3, Article 4, Section 2, Cl. 1 and Amendment Fourteen, Section 1 of the Constitution of the United States.
Under the facts in this ease, we find that the paragraph above quoted from § 75-1251 is unconstitutional as a burden upon interstate commerce, in violation of Article 1, Section 8, Cl. 3 of the United States Constitution. .
There is nothing in this record or in Act No. 40 to indicate that the five mile per gallon basis was other than arbitrary. It is stipulated that an average of 6.3 miles of travel per gallon of special distillate fuel is representative of the fuel consumption of appellees and of intrastate carriers. This means that a tax of 8½ cents per gallon is paid by intrastate carrier's at the time they purchase gasoline in the state, while interstate carriers who purchase their fuel at a point outside Arkansas pay tax on the fuel used in Arkansas at the rate of 10.71 cents per gallon. Thus, whether the tax be figured upon a gallonage basis or a mileage basis, the interstate carriers pay 1.26 times the tax paid by an intrastate carrier. The only way the interstate user can avoid this inequality is by buying all his fuel in Arkansas. However desirable this might be from the standpoint of the economy of the State of Arkansas, this discrimination in favor of the intrastate operator violates the constitutional standards for interstate commerce. Halliburton Oil Well Co. v. Reily, 373 U. S. 64, 83 S. Ct. 1201, 10 L. Ed. 2d 202.
Appellant urges that since this tax is an excise tax on a privilege, the legislature may make reasonable classifications for the purpose of taxation which must be upheld by the courts unless the classification is clearly unreasonable and arbitrary aiid without just distinction as a foundation. While we agree with the general statement, appellant has not cited any case, nor do we know of any, where any court has held that a. classification based solely upon a distinction between intrastate and interstate commerce has been upheld as reasonable or appropriate. Cases such as Vaughan v. City of Richmond, 165 Va. 145, 181 S. E. 372, cited by appellant, upholding the imposition of higher license taxes on businesses of nonresidents than on businesses of residents have no application here. There the higher licenses were said to be justified because it was shown diat residents were taxed in ways which the nonresidents wholly escaped. Nonresidents of the City of Richmond who resided in the State of Virginia were charged the higher rate in that situation, so the commerce clause was not involved. To afford equal protection of the laws, required by Amendment Fourteen to the United States Constitution, such classification must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Royster Guano Co. v. Commonwealth of Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989. Equality for the purposes of competition and the flow of commerce is measured in dollars and cents and not legal abstractions. Halliburton Oil Well Co. v. Reily, 373 U. S. 64, 83 S. Ct. 1201, 10 L. Ed. 2d 202.
The commerce clause of the United States Constitution forbids discrimination whether forthright or ingenious. Best & Co. v. Maxwell, 311 U. S. 454, 61 S. Ct. 334, 85 L. Ed. 275.
The Supreme Court of the United States has held privilege taxes or license fees unconstitutionally discriminatory against interstate commerce in cases where the corresponding taxes or fees paid by those in intrastate commerce only are substantially less. Best & Com pany v. Maxwell, supra; Memphis Steam Laundry Cleaner v. Stone, 342 U. S. 389, 72 S. Ct. 424, 96 L. Ed. 436; West Point Wholesale Grocery Co. v. Opelika, 354 U. S. 390, 77 S. Ct. 1096, 1 L. Ed. 2d 1420. It has also been held that equal treatment for in-state and out-of-state taxpayers is a condition precedent to valid use taxes on imported goods. Halliburton Oil Well Co. v. Reily, supra.
This court has long recognized that privilege taxes on acts which are part of the processes of interstate commerce must be calculated so that in their practical effect they will not substantially discriminate in favor of comparable activities in intrastate commerce which compete economically with the interstate activities that are taxed. Nicholson v. Forrest City, 216 Ark. 808, 228 S. W. 2d 53.
Although our fuel tax is a privilege tax, it can be sustained as to those in interstate commerce, not as a tax, but as reasonable compensation for the use of our highways. As such, the measure of compensation exacted from an interstate carrier must have a reasonable relationship to the use which the carrier makes of the highways. Dixie Greyhound Lines, Inc. v. McCarroll, 101 F. 2d 572 (8th Cir.) affirmed 309 U. S. 176, 60 S. Ct. 504, 84 L. Ed. 683.
In an effort to sustain the classification, appellant urges that the cost of collection of the tax is greater where the interstate user is involved than it is where the intrastate user is involved. Appellant cites us no authority sustaining this position, but it is unnecessary for us to determine whether this difference might constitute a proper basis for classification since we have nothing before us to indicate that this cost bears any relationship whatever to the resulting difference in the tax collected.
We do not mean to say that any act basing the tax to be paid by one in interstate commerce upon a deter mination of gallonage consumption based upon a fixed mileage per gallon factor arrived at upon an appropriate factual basis would necessarily be unconstitutionally discriminatory. The determination of that constitutional question is not necessary to our decision, since under the stipulated facts, the result here is obviously an improper burden on interstate commerce.
There are two particulars in which the decree of the trial court is erroneous, and it must be modified. That decree stated that all of § 75-1251 was unconstitutional. We find no basis for this holding as to the first two paragraphs thereof. Obviously, this was inadvertently said as there is no question raised except as to the third paragraph. The court also allowed interest on the amounts to be refunded. As an attribute of sovereignty, the state is not liable for interest in any case, unless it has by statute made itself liable, or authorized a contract providing for the payment of interest. State v. Thompson, 10 Ark. 61; Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 121. In the latter case, the court held a contract entered into by the Board of Commissioners of the State Penitentiary providing for the payment of interest was void and reversed and dismissed a judgment for interest. In discussing the possible moral obligation of the state to pay interest, this court .there said:
“In the next place, it does not lie within the province of the courts to speak for the State and determine and enforce her moral obligations. The courts are not the keepers of the conscience of the State. The honor and integrity of the State or sovereignty are lodged in the people — her citizens and the subjects — and in turn the honor and integrity of her people are reflected through the Legislature of the State. The people or sovereignty speak by legislative enactment, and on all questions involving the moral obligation of the State, the Legislature is the sole and exclusive tribunal to determine and adjust such matters. * * * ”
While appellant does not raise either of these questions, this is a matter of public interest. Since the trial here is a trial de novo, we may enter such judgment as the chancery court should have entered upon the undisputed facts in the record. Baxter County Bank, v. Copeland, 114 Ark. 316, 169 S. W. 1180; Pickett v. Ferguson, 45 Ark. 177. When a chancery decree grants relief to which an appellee is clearly not entitled on the record, this court will modify the decree to omit the excessive relief. Hess v. Adler, 67 Ark. 444, 55 S. W. 843. When it appears that a portion of a chancery decree is inadvertently inserted, this court may modify the decree by striking out that portion. City of Ft. Smith v. Mikel, 232 Ark. 143, 335 S. W. 2d 307. In view of the lack of power of the courts to recognize a moral obligation of the state, the action of the trial court in rendering a judgment for interest is in excess of its jurisdiction. When a trial court enters an order without jurisdiction over the subject matter, the question cannot be overlooked even if not raised. Sibley, Receiver v. Leek, 45 Ark. 346.
The decree of the chancery court is modified to declare only the third paragraph of § 11, Chapter 2, Act No. 40 of the First Extraordinary Session of 1965 unconstitutional as being in violation of Article 1, Section 8, Cl. 3 and Amendment Fourteen of the Constitution of the United States and to eliminate the clause adding interest on the recovery of each appellee at the rate of 6% from the date of payment until paid.
The decree is affirmed as modified.
The action was instituted against Doris McCastlain, then Commissioner of Revenues, but B. Bryan Larey, her successor, was substituted as a party to the action, on his motion, on the date the decree was rendered.
See Sparling v. Refunding Board, 189 Ark. 189, 71 S. W. 2d 182, where it is held that the tax is a privilege tax for the use of the highways. | [
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Carleton Harris, Chief Justice.
Ralph Burk Shaddox was charged with the offense of assault with intent to kill, the Information charging that Shaddox shot Johnny Younes on August 9, 1966, in Boone County, with the intention of killing Younes. On trial, the jury returned a verdict of guilty, and fixed appellant’s punishment at five years imprisonment in the State Penitentiary. From the judgment so entered, Shaddox brings this appeal.
For reversal, it is first asserted that the evidence was insufficient to sustain a conviction for the offense alleged. We do not agree. Evidence on the part of the state was to the effect that Shaddox was indebted to Younes, who operated an automobile supply store in Boone County. On August 9, Younes was visiting at a service station operated 'by Clyde Loftin, when Shaddox drove into the station. Both men spoke, and Younes then inquired of Shaddox “why he hadn’t been in to see me, and he knew what I meant because everytime I see someone who owes me and who is past due, I say why haven’t you been in and he said he had it on him, then he said do you want to try to take it off me — those were the words he used.” Younes testified that the words were spoken in an unfriendly manner, and that he stepped over to the front of appellant’s car, and, opening the door, reached in for the purpose of complying with Shaddox’s invitation, i.e., to take the money “off him.” Younes was not armed, and the witness testified that he had no intention of harming appellant. As he reached in, grabbing hold of appellant’s shirt, Shaddox fired a pistol, striking Younes in his right chest. The victim stated that he said something to Shaddox to the effect that the latter had shot him, and he testified that appellant said, “Yes, I -will kill you, too.” Dr. Jean Gladden, who removed the bullet, testified that if the shot had “been a little over the other way” the wound would have been fatal; that a large blood vessel was perforated in the lung, and that if Younes “had been very far away from a hospital, I think he would have died.” Clyde Loftin testified:
“Ralph had brought me a jack, a big hydraulic jack, and I was going around the car to get the jack and I walked up on the right side of the car and Ralph told me the jack was between the seats and I was going behind the car, around to get the jack* * *
“I walked up to the right side of Ralph’s car, that’s when he told me the jack was there between the seats and I did look inside the car.”
Loftin stated that he observed ‘ ‘ a pistol laying in the front seat. Laying about the middle of the seat.” Within seconds, he saw Younes reach into the car, and heard the report of the pistol. Shaddox testified that he thought Younes had cut him, and that he was only trying to scare the prosecuting witness. In Farrar v. State, 240 Ark. 447, 400 S. W. 2d 289, we said:
“It was within the province of the jury to determine the true facts in the case, and certainly, there was substantial evidence to support the verdict. The facts and circumstances of the assault, as related by Staudt, indicated an intention by Farrar to kill the prosecuting witness, or to cause great bodily harm. The weapon used, a 12-gauge shotgun, and the extent of wounds on the body, together with the state of feeling existing between the parties prior to the difficulty, were all matters to be considered by the jury. Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.”
Here, likewise, the jury was entitled to consider the state of feeling existing between the two men prior to the difficulty, the nature of the wound on the body, the weapon used, and the fact that it was in the seat beside Shaddox, ready for instant nse. The evidence was sufficient to sustain the conviction.
It is next asserted that the court erred in denying appellant’s motion for mistrial due to the special prosecutor’s manner of questioning Shaddox concerning alleged prior acts of misconduct by appellant. This point is well taken, and the error committed calls for reversal.
The transcript reflects a long line of questioning during cross-examination relative to convictions, including references to arrests. Ark. Stat. Ann. § 28-605 (Repl. 1962) permits evidence of former convictions of crime as a matter of going to the credibility of the weight to be given a defendant’s testimony. See also Johnson v. State, 236 Ark. 917, 370 S. W. 2d 610, and cases cited therein. However, the special prosecutor went far afield in this particular cross-examination. The prosecutor was evidently holding a “rap sheet” in his hand, and several times made, reference to this paper. On one occasion, Shaddox was asked if he had been in Albany, California, and the witness replied that he didn’t remember being there, but “if you say I did, I was.” The prosecutor then replied, “I don’t say, I am reading from a paper that has been furnished me.” Again, the prosecutor said:
‘ ‘ These notes here shows that Ralph Burk Shaddox, and gives the number of the ease on June 17, 1953, while yon were in the Public Health Service Hospital at Lexington, Kentucky you were charged with unlawfully mailing narcotics and the notes show you were sentenced to two years in the penitentiary.”
Appellant’s attorney objected, and the court replied, “Mr. Shouse, don’t refer to the amount of the-sentence, just was he convicted.” Defense counsel then moved for a mistrial, and the motion was denied. We think the court erred in not granting this motion. The reference to the “notes” undoubtedly could influence members of the jury to feel that the state’s attorney was holding irrefutable evidence of previous convictions, and could well have been prejudicial. We commented on a similar matter in Shroeder v. Johnson, 234 Ark. 443, 352 S. W. 2d 570. This was a civil case, but the principle likewise applies here, if not more so. In that case, Shroeder denied using a room in his hotel for immoral purposes, and counsel then- stated, “Mr. Shroeder, do you want to keep for your own information this rap sheet here. Just stick it in your pocket. ” In reversing the case because of this occurrence, we stated:
“In the.case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the ‘rap sheet, ’ but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record. The admonition of the court did not tell the jury what and to whom the ‘rap sheet’ referred, and if it had done so the prejudice probably would have been even greater.”
Here, of course, the paper did tell “what and to whom the ‘rap sheet’ referred,” and we agree that the prejudice may well have been much greater than in Shroeder, supra. Not only that, but in the cited case, the court did admonish the jury to disregard the reference to the paper, though we held that the admonition was insufficient to cure the prejudice that had resulted. Here, no such admonition was given. In addition, it will be quickly observed that the prosecutor’s, statement was, in effect, testimony — unsworn—and hearsay. The court should have granted the motion for a mistrial.
Other errors complained of are not likely to arise again in another trial.
Because of the error herein discussed, the judgment is reversed, and the cause remanded to the Boone Circuit Court.
This is true, unless there is a statutory prohibition. For instance, see Ark. Stat. Ann. § 75-1012 (Repl. 1957), and our cases relative to this section.
When a man is arrested and charged with crime in this state, under the usual procedure, he is fingerprinted, and a copy of the prints sent to the Department of Justice in Washington. That department then sends back to the arresting officers a copy of the defendant’s record, if any, which shows both previous arrests and convictions. This is sometimes referred to as a “rap sheet.” It is not clear in the instant case whether the special prosecutor was actually holding a copy of appellant’s' record in his ¡hand, or whether he had taken notes from the record, and was using those notes.
In Shroeder, this court quoted a Kansas case, as follows: “There is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney and positively and emphatically instructed the jury to disregard the prejudicial statements.” | [
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Paul Ward, Justice.
Appellant, Augustus Ray Studdard, was charged with grand larceny for stealing a Ford pickup truck on December 4, 1966. By agreement, a jury was waived and the case was tried before the presiding judge. Appellant was found guilty and sentenced to serve five years in the State Penitentiary— the last two years being suspended with certain contingencies.
It is not disputed that the truck was taken from its owner, in Hot Springs, in the late afternoon of the 4th and that it was found (almost a complete wreck) near the main highway near Mt. Ida at about midnight of the same day.
In general terms, we here set out briefly below the opposing versions of appellant and the State.
Appellant, who testified at the trial, contends: he met some boys in Hot Springs about seven p.m. on the 4th who said- they were headed for Fort Smith; he decided to go with the boys 'because six boys were after him and he wanted to get out of town, and also because he wanted to see a girl friend; when they went to ¿he car (being driven by the boys) he saw a pickup truck attached to the rear end; on the way to Ft. Smith the boys told him the truck was “hot”; just before they reached Mt. Ida the truck broke loose from the car and ran off the road; then he told the boys he didn’t want to get into trouble, and that he was going^hack to Hot Springs, and; he returned in a car driven by Jerry White at his invitation.
The State, in essence, contends: appellant’s story about the taking and wrecking of the truck is not true; appellant’s own statement to others shows that he took the truck, and; that he was driving it at the time it was wrecked.
On appeal appellant’s only contention for a reversal is that the testimony “is not sufficient to sustain a verdict of guilty. . .”
For reasons hereafter set out, we are unable to agree with appellant’s contention.
Appellant takes the position that he was convicted solely on circumstantial evidence, citing (among other cases) Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936, and; Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379. In all these cases the convictions were reversed, there being only circumstantial evidence to support the convictions. We agree that, in such cases, the evidence must be strong and convincing — as was well stated in the Taylor case, supra, where we find this statement:
“This demands that, in a case depending upon circumstantial evidence, the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. ’ ’
Although, in the case under consideration here, no one saw appellant actually take the truck, we think there is more than circumstantial evidence to support the conviction — as presently pointed out.
(a) Appellant does not deny that he rode back to Hot Springs with Jerry White: White testified as follows :
Q. “Would you tell the court what he had to say?
A. “Well, right after we picked him up he said that he was the driver of the truck and he said he didn’t want to say anything until he got to know us a little hit but being’ we was so nice to him he was going to tell us, he said he thought we ought to know.
Q. “You mean he told you he was the driver of the truck there that had been wrecked?
A. “Yes, sir.”
Again, White testified:
Q. “And he explained to you that after these six boys got after him he had time to go steal a truck, is that right?
A. “If I recollect right he said he had to find a way to get away from them. These boys was wanting to fight him or something there and he was trying- — I didn’t ask him all the details because I didn’t figure it was none of my business.”
Appellant, at the time he was arrested by an officer on his return to Hot Springs, admitted that he picked up the truck “and wrecked it”.
Although this case was tried before the trial court, by agreement, still we must view the sufficiency of the evidence as though it was tried before a jury.
Appellant stresses the fact that, as was admitted by the trial court, there were discrepancies and contradictions in the testimony of some of the State’s witnesses-— such as: White could not remember whether appellant was with, him when he went from the wreck back to Mt. Ida before returning to Hot Springs; "White’s story-differed as to just where he picked up appellant; White was not sure whether the truck was a Gr.M.C. or a Chevrolet; the witnesses did not agree as to the extent of damages to the truck, and; appellant denied he told White he was the driver of the truck when it was wrecked. It is also shown that appellant made contradictory statements as to how he got back to Hot Springs.
In any event, these contradictions in the testimony posed questions of fact for the trial judge (sitting as a jury) to resolve. In our opinion the evidence was sufficient to support the verdict.
Affirmed. | [
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CarletoN Harris, Chief Justice.
This is a Workmen’s Compensation case. Appellee, Joe Johnston, an employee of The Singer Company, Wood Products Division, engaged in common labor, received a compensa-ble injury to the lower back on September 20, 1963. He was paid weekly benefits for temporary total disability from September 21, 1963, through August 7, 1964, and thereafter, was paid an additional sixty-seven and one-half weeks compensation, representing 15% permanent partial disability to the body as a whole. The company took the position that the compensation for the healing period had been paid, and that the 15% permanent partial disability to the body as a whole was a correct rating. Johnston took the position that he was still totally disabled and unable to work, and a hearing was conducted by a referee in March, 1966. In August, 1966, the referee filed an opinion, finding that the healing period expired on August 7, 1964, with claimant’s having a residual disability of 25% to the body as a whole, and directing that Singer pay additional compensation in the total amount of $1,534.95. Claimant appealed to the full commission, and on December 5, 1966, that tribunal found that Johnston had been temporarily totally disabled since September 21, 1963, and that he should return to Dr. Matthew Wood, a Memphis neurosurgeon, for further treatment; that the matter of termination of the healing period and extent of permanent partial disability should be held in abeyance. The company appealed to the Circuit Court, which affirmed the commission, and from the judgment so entered, appellant brings this appeal.
Background of earlier events is accurately set out in the commission’s “statement of the case,” as follows:
“The record reflects that the claimant sustained a compensable back injury on September 20, 1963, at which time he reported to Dr. Smith’s Clinic in Tru-mann where he was kept in traction for approximately one week. Dr. Smith then referred the claimant to Dr. Matthew W. Wood, a Memphis Neurosurgeon, and Dr. Wood’s reports reflect that the claimant reported for evaluation on September 27, 1963, and was admitted to the Baptist Hospital. A pantopaque myelogram was performed which showed a large defect at the L4 level. On October 3, 1963, a large herniated L4 disc was removed on the right. The claimant was subsequently released to convalesce at home. He was seen by Dr. Wood for postoperative visit on November 21, 1963. Again on December 26, 1963, and on the December 26 visit he made complaints of continuing low back pain and was fitted with a lumbosacral support. On January 23, 1964, the claimant returned to Dr. Wood complaining of low back pain and left leg pain, the side opposite the old surgery. He was sent home to return in two months for evaluation. In a report dated April 1, 1964, Dr. Wood stated, ‘His present symptomatology on the left I feel is also related to Ms injury which caused the herniation on the right. I advised him to re-enter the hospital to have his left sided herniation surgically removed.’ Dr. Wood’s report of July 3, 1964, reflects that on June 25, 1964, from an objective standpoint the claimant was unchanged. The report of August 4, 1964, reflects that the claimant had complaints in regard to his low hack hut that he was advised to return to light work which does not involve excessive bending or heavy lifting. The report of September 21, 1964, reflects that the claimant had recovered and his permanent disability in relation to his herniated lumbar disc is 15 per cent.”
Of course, we are only concerned with whether there was substantial evidence to support the findings of the commission, and there is no necessity to review all of the testimony. It appears that prior to working for appellant, Johnston had engaged in hard, manual labor for a number of years, and had had no trouble or difficulty with.his back, legs, feet,- or neck. After Dr. Wood removed the large herniated L-4 disc, Johnston returned to his home. Thereafter, he continued to complain of low back pain in his legs, and he testified that these complaints were due to his injury because of the time lapse between the injury in September, 1963, and June, 1964, when his records first indicated the other complaints. He did find the swelling in the left ankle, but felt that this was due to an arthritic condition, rather than being connected with the injury, “although we didn’t prove it.” As previously set out (in the commission’s statement of the case), in March of 1964, Dr. Wood had advised Johnston to re-enter the hospital to have a herniated disc removed from the left; however, this operation was not performed, and the doctor did not recall the reason therefor. He said that when he last examined Johnston on August 4, 1964, he did not feel that surgery was advisable with relation to the .left-sided herniation. Dr. Wood stated however, that “these discs go in and out,” and there was a possibility that it would get worse. The evidence reflected that Wood had directed a letter to The Singer Company in April, 1964, as follows:
“Gentlemen: Mr. Joe W. Johnston returned to the office on March 30, 1964 and since being seen here last has had continued low back and left leg pain. He now has signs of a herniated disc on the left side at L-4. As you know, he had a herniated L-4 disc surgically removed from the right side in October of 1963 and has done quite well from a symptomatic standpoint on the right. His present symptomatology on the left I feel is also related to his injury which caused the herniation on the right. I advised him to re-enter the hospital to have the left sided herniation surgically removed.”
The doctor did not recall that the company authorized that Johnston be admitted to the hospital. He did say that, at the time of appellee’s last examination, he felt that Johnston could try “light work,” but that he should not work at anything that required bending, lifting, or stooping, and if he were required to stand on his feet all day, “that would work against his back.” Dr. Wood was of the opinion that appellee did actually experience the pain that he complained of, and he said that the continued low back pain, going down the left leg into the left foot, was in keeping with his earlier findings of a herniated disc condition on the left side. It was his opinion that, if Johnston were still suffering-back and leg pains, claimant should be further evaluated by a neurosurgeon.
Following his last visit to Dr. Wood in August, 1964, Johnston subsequently went to Dr. John T. Gray, an orthopedist at Jonesboro for examination. In a report dated March 5, 1966, Dr. Gray stated:
“Examination reveals this patient is ambulatory with slow, guarded gait and uses a cane to protect his weight from the left lower extremity. He moves about, undressing and dressing with some difficulty — particularly in unlacing his shoes due to limited motion of the lumbar spine. * * *
“Motions of the lumbar spine are limited approximately 50c/< in all directions. * * *
“He is unable to do heel and toe gait. He is unable to squat and regain the erect posture. He gets on and off the examination table with considerable difficulty and has obvious pain when he rotates to the side or abdomen.
“There is limitation of motion in both hips, particularly in flexion. He can only flex to 90 degrees and complains bitterly of pain upon any attempt to flex beyond this range.* * #
“Multiple x-ray films were made. ÁP and lateral views of the lumbar spine reveal some calcification of the intervertebral spaces between D9 and 10 and between DIO and 11 with some definite wedging of the 7th dorsal vertebra. There is also flattening of the normal lordotic curve. There is some minimal osteoarthritic lipping of the lower lumbar vertebrae.
“Oblique views of the cervical spine show some encroachment on the spaces between 03 and 4 and 04 and 5 on the right and to a lesser extent, the 2nd and 3rd on the left. The lateral view of the cervical spine shows normal contour of the vertebrae and fairly normal in-tervertebral spacing. There is some osteoarthritic lip-ping of the inferior border and the superior border at the 4th interspace.”
Dr. Gray concluded that the patient appeared disabled, and he suggested further tests before making a definite recommendation for surgery.
At the request of the referee, Johnston was referred to Dr. Robert Watson, neurosurgeon of Little Rock. Dr. Watson filed a report and also testified by deposition. Though the doctor did not advise re-exploration of Johnston’s back after viewing the myelographic studies made by Dr. Gray, he did indicate that Gray was possibly in a better position to evaluate than one who only reviews the film of the study:
“Now in answer to your question, what Doctor Gray described was something that he saw, a -moving action as he did the myelogram, and of course I did not see what he saw when he did the myelogram. At repeated intervals permanent films are made of the dye in the different positions in the back and these are the films that I saw, the permanent record, not what he visualized as the dye moved, but I saw the photographs that he took, and in the photographs that were furnished me I did not see on the left side what you have just read that he saw in the moving picture.”
Dr. Watson felt that claimant had a 25% permanent partial disability to the body as a whole, and that any disability beyond that point was without neurological confirmation; however, he said that, in his opinion, on June 6, 1966 (when an examination was conducted), Johnston was not able to perform what is ordinarily referred to as common ordinary labor. The rating given by Dr. Watson was based on physical disability alone, and did not include any emotional factor, nor did the rating' relate in any way to age, education, training or experience of the employee. He found no evidence of disability to the neck or upper extremities. Irrespective of his views relative to permanent disability and his opinion that in time Johnston could improve to the point where he could make a living at some type of common labor, Dr. Watson, when asked, “If you were examining for- a company, a firm, or a person, would you recommend that this claimant be hired to do common, ordinary physical labor in the condition that you found him to be in on June 6, 1966?” answered, “Ño.”
We think there was ample testimony to justify the commission in holding that there should be a reevaluation, and in directing further medical treatment, including surgery, if deemed advisable.
Affirmed.
From Dr. Watson’s report:
“On-examination, this man moves about as one with very definite low back disability. He carries a cane at all times, and seemingly puts it to 'good use. All of his movements are made with-caution and deliberation and in the examining room, with the cane laid to one side, he still, repeatedly reaches toward a table or chair for some supplemental support. This man professes to be totally unable to walk at all on either his heels or his toes, but he does not have the supportive findings to cause one to feel that he is genuinely unable to do so, and instead, I believe, this so-called inability is a reluctance or fear or limitation of his own thinking rather than to be due to bona fide inability. * * *
“Apparently this man did have an initial injury sometime in 1963, and shortly after that, he did undergo surgery for a lumbar disc lesion, and from the appearance of his x-rays, two spaces were explored. However, despite all of this, his present bona fide neuro logical findings do not substantiate the extreme degree of disability that he professes to have. If such a marked degree of bona fide residual disability were actually present, then there be some reflex changes, some sensory changes, and there should be some evidences of muscle atrophy, but none of these are present'. Therefore, I believe that a part of this man’s present residual disability is of a bona fide character, and that an additional portion of his supposed disability is actually superimposed emotional overlay on the part of the patient. Already this man has applied for and is now receiving 100 per cent permanent residual disability benefits from the Veteran’s Administration. Even if this man did have bona fide need for further surgery and if. further surgery were carried out, with what the surgeon and others might think were very gratifying results, even so, I doubt that the patient would ever admit to any gratifying degree of improvement. Instead, I believe the man would always profess to still being ‘totally and permanently disabled.’”
The doctor felt that Johnston’s feelings were genuine: “I believe it is real to him. We might not want to accept it in our own thinking as being real, but I believe that to the man it is.” | [
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Per Curiam.
Appellant Cynthia Brown Thomas appeals the order of the Clark County Circuit Court finding that it had continuing exclusive jurisdiction and that venue was proper in that court in a child-custody matter between Thomas and Appellee James W. Avant. Specifically, Thomas alleges that the trial court no longer had jurisdiction of the matter because under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ark. Code Ann. §§ 9-19-101 to -401 (Repl. 2002), Oklahoma, the state in which she and her minor child, T.B., now reside, is the home state for purposes of establishing jurisdiction under the UCCJEA. Additionally, Thomas alleges that venue does not lie in Clark County under Ark. Code Ann. § 9-10-113 (Supp. 2005). We are unable to reach the merits of these arguments as Thomas failed to file a sufficient record for our review pursuant to Ark. R. App. P. — Civ. 6.
The record on appeal contains several orders pertaining specifically to the issue of jurisdiction and venue. In an order entered of record on May 11, 2006, the trial court states that a hearing was held on May 2, 2006, on a petition filed by Thomas for a change of venue. This order reflects that testimony was taken at the hearing. Nowhere in the record now before us is a transcript of a hearing on May 2.
Pursuant to Rule 6(c), “this court shall not affirm or dismiss a case based on an abbreviated record if the record was abbreviated by the parties in good faith either by agreement or without objection from the appellee.” Gilbert v. Moore, 362 Ark. 657, 658, 210 S.W.3d 125, 126 (2005) (per curiam) (quoting West v. West, 362 Ark. 456, 457, 208 S.W.3d 776, 768 (2005) (per curiam)). Further, pursuant to Rule 6(e), this court can sua sponte direct the parties to supply any omitted material by filing a certified, supplemental record. See id.
In order for this court to adequately review the circuit court’s order regarding venue, we must have before us all of the evidence upon which the circuit court relied in making its decision. It appears that the record before us is abbreviated due to the materials requested by Thomas in her notice of appeal and designation of the record, but Avant failed to object to the limited appeal, nor did he file a designation of any additional materials he believed should have been included in the record. Thus, Avant tacitly consented to the record. See, e.g., Gilbert, 362 Ark. 456, 208 S.W.3d 776.
Pursuant to Rule 6(c) and (e), we order Thomas to supply this court with a certified, supplemental record that includes a transcript of the hearing held before the circuit court on May 2, 2006, within sixty days of the issuance of this opinion.
Thomas is further ordered to file a substituted brief that includes an abstract of the relevant testimony and argument of counsel that is essential to this court’s understanding of the case and issue presented, as required by Ark. Sup. Ct. R. 4-2(a)(5) and (a)(8).
Certified supplemental record ordered; rebriefing ordered. | [
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Jim Gunter, Justice.
Appellant, Lamar Advantage Holding Co., Inc. (“Lamar”), appeals the Saline County Circuit Court’s ruling granting summary judgment in favor of the Arkansas State Highway Commission (“ASHC”). We reverse the circuit court’s order granting summary judgment and remand for trial.
Lamar is in the outdoor advertising business. On May 1, 2000, Lamar, through a predecessor, leased a small piece of land next to Interstate 30 in Alexander, Saline County, Arkansas, for a ten-year term with a ten-year option to renew. Lamar erected a billboard structure, with four illuminated faces supported on a steel monopole, on the property. Lamar subsequently rented advertising space on the billboards to third parties.
On May 10, 2002, ASHC bought the land from the owner and condemned Lamar’s leasehold interest in the property so that ASHC could construct and maintain highway facilities in Saline County. ASHC estimated just compensation for Lamar’s property interest to be $23,950.00. ASHC filed suit on May 9, 2002, in Saline County Circuit Court, asking that Lamar’s leasehold interest be extinguished; just compensation for the taking of the leasehold interest and the removal and relocation of the sign be awarded to the parties entitled thereto; and for other lawful and proper relief. ASHC also filed a declaration of taking on May 9, 2002, stating that Lamar’s leasehold was condemned and taken under the power of eminent domain and the police power pursuant to Act 419 of 1953, codified as Ark. Code Ann. §§ 27-67-301 to 27-67-321 (Repl. 1994). On May 10, 2002, the Saline County Circuit Court granted ASHC’s Motion for Immediate Possession.
Lamar engaged Dr. Rodolfo J. Aguilar, a Certified General Appraiser, to value its leasehold interest. Dr. Aguilar estimated the just compensation to Lamar on three different approaches: the cost approach, the income approach, and the sales-comparison approach. Dr. Aguilar testified that his estimate of the market value for Lamar’s property as of May 10, 2002, was $69,200 under the cost approach; $115,200 under the income approach; and $115,200 under the sales-comparison approach.
On May 3,2005, ASHC filed a motion in limine asking the court to exclude the testimony and evidence concerning Lamar’s “business profits from their advertising business, for the purpose of determining just compensation for the taking of their lease.” The circuit court granted ASHC’s motion in limine. Dr. Aguilar then recalculated his estimate of just compensation and prepared a revised report that eliminated the income approach. He computed the average sale price of billboards in the market per square foot of display area based on recent sales. He then multiplied the average price per square foot of display area by the total square footage of the display area on Lamar’s billboards to arrive at an estimate of $130,600.
ASHC requested a telephone conference that was held immediately prior to trial where ASHC argued that Dr. Aguilar’s entire revised report and any testimony relating thereto should be excluded because, pursuant to Arkansas State Highway Commission v. McHaney, 234 Ark. 817, 354 S.W.2d 738 (1962), the sole measure of damages available to a leaseholder is the difference between the amount of rent reserved in the lease and the fair rental value of the property (the “lease bonus rule”). The circuit court agreed with ASHC, and ASHC filed a Motion to Exclude Evidence and Motion for Summary Judgment.
The circuit court ruled:
After full consideration of the evidence and arguments of the parties, the Court concludes as a matter of law that Dr. Aguilar’s opinions of just compensation based on the cost approach, income approach, and sales comparison approach are inadmissible because those approaches cannot be used to value a leasehold interest under McHaney. In addition, the Court finds that Lamar’s proffered valuation evidence under the income approach impermissibly considers Lamar’s lost business income or profits as a result of the taking.
The circuit court found that, because Dr. Aguilar’s appraisals failed to calculate the fair market value of Lamar’s leasehold under the lease bonus rule, his appraisals were inadmissible, and ASHC’s motion to exclude evidence was granted. The court ruled that, because Lamar’s expert testimony regarding value was excluded, Lamar had no admissible evidence ofjust compensation higher than the amount deposited by ASHC. The court granted ASHC’s motion for summary judgment, entering a final judgment in favor of Lamar in the amount of $23,950. Lamar now brings this appeal.
Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Nash v. Hendricks, 369 Ark. 60, 250 S.W.3d 541 (2007). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. (citing City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 60 S.W.3d 443 (2001)). 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. (citing Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002)).
On appeal, Lamar argues that the circuit court erred in rufing that a leaseholder is not entitled to recover lost rental income as an element ofjust compensation. In response, ASHC argues that Lamar is deceptively labeling their income derived from the advertising business as “lost rental income,” and that it is clear that the true nature of the income is actually “business income,” and that business income cannot be used to compute just compensation.
The Arkansas Constitution provides that “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” Ark. Const, art. 2, § 22. In McHaney, supra, ASHC purchased property from the owner on which a filling station was located, and the issue was the amount of damages sustained by the sublessee in possession of the property. We held that the measure of damages was the difference between the amount of rent reserved in the lease and the fair rental value of the property at the time of the taking. Id. at 819, 354 S.W.2d at 739.
We have held that a lessee of condemned property is entitled to damages for the value of his leasehold interest separate and apart from the lessor’s reversionary interest. North Little Rock Urban Renewal Agency v. Van Bibber, 252 Ark. 1248, 483 S.W.2d 223 (1972) (citing Ark. State Highway Comm’n v. Polk, 250 Ark. 377, 465 S.W.2d 671 (1972)). In evaluating loss of value to a leasehold interest, the correct measure of damages is the amount by which the fair market value of the lease exceeds the agreed-upon rent. Pearson v. Hendrickson, 336 Ark. 12, 983 S.W.2d 419 (1999) (citing Ark. State Highway Comm’n v. Humble, 248 Ark. 685, 453 S.W.2d 408 (1970)). In that regard, we concluded that evidence of the value of leasehold improvements and lost rental income as a result of losing a subtenant may be considered in determining the value of the leasehold interest. Id.
We now turn to the distinction between “business income” and “rental income.” In McHaney, we held that “rental value” did not mean probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for, or by evidence of other facts from which the fair rental value may be determined. Id. at 819, 354 S.W.2d at 740. We also discussed this distinction in Van Bibber, supra, where we stated:
[I]t seems proper to draw a distinction between income which represents the profits earned by a business conducted on the land in question (which would, of course, be attributable in many instances not only to the property itself but also to such other considerations as market conditions, the skill and knowledge of the proprietor of the business, etc.) and income which is attributable solely or primarily to the use of the property itself, such as rents.
Id. at 1254, 483 S.W.2d at 226 (citing Hot Springs County v. Crawford, 229 Ark. 518, 316 S.W.2d 834 (1958); 134 A.L.R. 1125). In Van Bibber, we also discussed Housing Authority of the City of Little Rock v. Rochelle, 249 Ark. 524, 459 S.W.2d 794, stating:
Capitalization of income is a recognized method of arriving at the fair market value of real estate used to produce rental income, in determining just compensation in eminent domain cases. We have long held evidence of rental value to be admissible as a factor to be considered in determining just compensation. As to this point in the case at bar, we are dealing with the value of a lease rather than the before and after value of the property. In Rochelle, supra, in distinguishing that case from Hot Spring County v. Crawford, supra, we strongly implied that this method (capitalization of income) is acceptable when the income of the property consists only of rent.
Van Bibber at 1255, 483 S.W.2d at 226-27. With regard to the trial court’s assessment of damages to the leasehold, the Van Bibber court approved the lower court’s consideration of a percentage of gross sales made by the lessee on the property. Such a percentage of income from the business conducted by the lessee was used to determine the rental value because this was the standard means of calculating rent for similar property in the area. Van Bibber, however, did not allow income from the business to be capitalized.
Thus, it is clear from our case law that rental income can be used to compute just compensation while business income cannot. The results in both McHaney and Van Bibber as to the issue of whether income is “business” or “rental” were dependent on the specific facts of those cases. In the present case, the facts are not sufficiently developed for us to make a ruling as to whether the income Lamar seeks to recover is business income or rental income. We also note that the circuit judge made a finding of fact in the order granting summary judgment by saying “the Court finds that Lamar’s proffered valuation evidence under the income approach impermissibly considered Lamar’s lost business income or profits as a result of the taking.” Because genuine issues of material fact exist, we hold that summary judgment was inappropriate. See Nash, supra. Therefore, we hold that the circuit court erred in granting summary judgment to ASHC on the issue of just compensation. Accordingly, we reverse and remand.
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Per Curiam.
Appellant Ronald L. Mishion, by and through his attorney, has filed a motion for rule on the clerk. His attorney, John Joplin, Public Defender for the 12th Judicial District, states in the motion that our clerk has refused to accept his untimely tender of the record.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” Id. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney fihng the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney fifing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
Although Mr. Joplin does not accept responsibility for failing to perfect this appeal, it is clear that he failed to tender the record in a timely manner. Pursuant to Ark. R. App. P. - Civ. 5(b)(2) (2006), the circuit court may not extend the time for filing the record “more than seven (7) months from the date of the entry of the judgment or order . . . .” Here, the judgment and commitment order was entered on August 24, 2006. Therefore, the circuit court could not extend the deadline for filing the record beyond March, 25, 2007. The record, as certified by the circuit court clerk on March 7, 2007, was not tendered to our clerk until March 27, 2007. No further facts need to be determined. Mr. Joplin clearly failed to file the record in a timely manner.
In accordance with McDonald v. State, supra, there is no need for Mr. Joplin to admit fault. The record plainly shows that he is at fault. The motion for rule on the clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Hill, C. J.
This is a taxpayer’s injunction against the county judge and other officers to prevent the erection of a county hospital. The validity of the hospital plan rested upon an. appropriation of the county court appropriating five hundred dollars for the building and maintenance of a hospital. It was alleged that a hospital building to cost $35,000 to $40,000 was about to be erected on a site to cost about $4,500.
The correctness of these statements is challenged, but it is unnecessary to go into these collateral issues. The primary question is the validity of the five hundred dollar appropriation. If it was valid, the hospital plan was valid, and could, within proper lines, be carried out; if it was not valid, the whole project was illegal, and should be restrained.
The chancellor took the latter view, and the county judge and other officers appeal.
The point of decision ia the chancery court is thus stated in the decree: “The court finds the facts to be that the revenue arising from a five-mill county general tax levied would be $61,780.75, and that the total appropriation made by the levying court at that term and prior to the appropriating five hundred dollars for t)he building of a qourity hospital,' amounted to $77,700, which is in excess of the ninety per cent, of the taxes levied for that year. The court further finds from the testimony that the levying court did not undertake to appropriate any of the money that was on hand in the treasury at that time, and that the appropriation at the time for the building of the county hospital was therefore illegal because the court had appropriated more than ninety per cent, of the taxes levied for that year.”
Adding the $500 for hospital, the total appropriations were $78,200; as stated, the revenue from the five-mill tax was $61,780.75, and in addition thereto there was cash in the county treasury subject to appropriation of $27,035.60, and there was an estimated revenue of $13,100 from liquor licenses, $2,147.76 from fines in justice of the peace courts and numerous other minor sources of income.
The appropriations were general; that is, not specific as payable out of any given source of revenue. The chancellor evidently interpreted section 1500 of Kirby’s Digest as inhibiting the county court from appropriating for county objects more than 90 per cent, of the county tax levy unless the appropriation was expressly made out of some other source of revenue than the five.-mill tax, for instance, from the revenue derived from liquor license, or other distinct source.
The true construction of section 1500 was given by Mr. Justice Eakin in Allis v. Jefferson County, 34 Ark. 307. These excerpts are peculiarly applicable here:
“The policy of the act seems to be to check extravagance in appropriations with reference to contracts, rather than to encourage the accumulation of funds in the county treasuries. The particular limitation of ninety per cent, was, obviously, to provide that the taxes collected might meet the appropriations, by allowing for ten per cent, for loss or delinquency. It was not to retain ten per cent, of each year’s levy in the treasury as a sinking fund. * * * Nor does it seem that the Legislature had in view, in this section, the revenue to arise from fines, forfeitures, penalties or licenses. * * * They belong to the county for county purposes, and it would be absurd in the Legislature to prevent the counties from using them, because the whole amount to be used would exceed ninety per cent, of the levied taxes. There is no tie between the subject-matter, nor any conceivable policy making one control the other. The statute, on this point, means simply to say that, of the -taxes levied -and to be extended on the tax books for county purposes, not more than ninety per cent, shall be appropriated for that year. A very wholesome provision, inasmuch as perchance, and very probably, not more than that might be collected. This does not prevent the county from using revenues undoubtedly her own, upon a proper appropriation by a full court.”
In the case at bar, after reserving the ten per cent, of the current tax levy, there were ample funds belonging to the general revenue of the county and subject to general appropriation to render valid all of the $78,200 appropriated by the county court. The statute is not an inhibition upon proper county appropriations of the available county funds on hand, and it is a mere limitation on using more than 90 per cent, of one class of the county funds, towit, the amount receivable from the tax levy.
Appellee insists that the appropriation does not include a power to purchase land for the site of the hospital, but contemplates the use of land owned by the county. The appropriation was in this language: “Be it resolved by the levying court now assembled that we do hereby appropriate the sum of $500 for building and maintaining said county hospital; same ' being owned by Jefferson County for all the people.” In Fones Hardware Co. v. Erb, 54 Ark. 645, and Weigel v. Pulaski County, 61 Ark. 74, it has been decided that it requires the concurring judgment of the levying court and the county judge to make these contracts for public buildings. When the levying court makes an appropriation for the purpose, a proper contract exceeding the appropriation may be made by the county judge. See Bowman v. Frith, 73 Ark. 523. The appropriation is the assent to the plan, the groundwork, the basis for the subsequent contract. Unless there is something to affirmatively show otherwise, authorization for the building and maintenance of a public institution would necessarily include necessary grounds for it to rest upon. It may be that the county has suitable ground and place, as in the case of replacing a burned building ; but, in the absence of any showing of that kind, the authorization to start a new enterprise and build and maintain it would necessarily carry authorization to procure ground for it. See 7 Am. & Eng. Enc. Law (2 Ed.), pp. 933 and 934, cases and notes. A subsequent order of the county court stated that the court had no suitable grounds of its own for this purpose, and authorized purchase of grounds.
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McCulloch, J.
The grand-jury of White County returned an indictment, containing two counts, against appellant, James Cook, charging him with the crimes of burglary and grand larceny. The indictment charged that on the 14th day of April, 1906, appellant committed the crime of burglary by breaking into the storehouse of R. J. Eyon & Son, a partnership, in the nighttime with intent to steal certain property of said R. J. Lyon & Son of the value of $25; and that he committed the crime of grand larceny by stealing $6 in money, a lof of canned goods of the value of $5, and twenty bottles of Gin Seneca of the value of $20, the property of R. J. Lyon & Son.
The trial jury returned a verdict, finding the defendant guilty of grand larceny, and fixed his punishment at one year in the penitentiary. Judgment was rendered accordingly, and h'e appealed to this court.
Appellant demurred to the larceny count of the indictment on the ground that it failed to describe the money alleged to have been stolen. He assigns error of the court in overruling the demurrer, and also contends that the evidence is insufficient to sustain the verdict because the kind of money is not described. The indictment describes it as “six dollars in money of the value of six dollars,” without alleging the kind, whether gold, silver or paper, and the evidence goes no further than that in describing it. This is not sufficient, as the statute provides that “it shall not be necessary to particularly describe in the indictment the kind of money taken or obtained, further than to allege gold, silver or paper money.” Kirby’s Digest, § 1844.
This defect, however, was not fatal either in the indictment or proof, as other property of value exceeding the sum of $10 was alleged and proved to have been stolen. Johnson v. State, 73 Ark. 101. The undisputed testimony is that canned goods of the value of $1.50 and a quantity of Gin Seneca, a liquid compound used as a beverage, of the value of about $20, was stolen at the time alleged.
There is some conflict in the evidence as to the ownership of the Gin Seneca, but it is undisputed that R. J. Lyon & Son had some kind of ownership. The conflict extended only to the character of their ownership, whether general or special. Proof of special ownership will sustain an allegation of general ownership. Merritt v. State, 73 Ark. 32; McCowan v. State, 58 Ark. 17. It is undisputed that R. J. Lyon & Son had exclusive possession and control of the property, though there is some conflict whether it belonged to them or not.
Appellant was convicted mainly on the testimony of an accomplice in the crime, and he insists that there was not sufficient corroboration to warrant a conviction. Without rehearsing all the corroborating testimony in detail, we think it was abundant to sustain the conviction. Appellant and his two accomplices, together with several other companions, assembled at a vacant house in the neighborhood of the scene of the crime on the night in question for the purpose of playing cards and having an “egg roasting,” as they termed thé entertainment. These three left the crowd about the same time, were absent a short while, and then returned about the same time, and one of them produced two bottles of Gin Seneca. The accomplice who testified in the case said it was during this interval that- the crime was committed. Pie testified that they took the money which was stolen and divided it equally between the three; and the appellant, when arrested the next day, is shown to have had a sum of money on his person equivalent to his share of the swag. Besides this, it was proved by a witness, Mrs. Goodrich, that about two weeks before this occasion appellant and his two accomplices attempted to effect an entrance into the store of R. J. Lyon & Son through the closed back door about nightfall. Taking all this testimony together, it was sufficient to corroborate the accomplice who testified positively as to the burglary -and theft.
Appellant objected to the testimony of Mrs. Goodrich concerning said occurrance two weeks before the commission of the crime charged in the indictment, and his counsel now insist that the court erred, in admitting this testimony. It is well settled that, with some exceptions as to certain crimes, proof of the commission of one crime can not be introduced for the purpose of establishing another. But the occurrance testified to by Mrs. Goodrich was so intimately connected with the crime set forth in the indictment that proof of it was competent in this case. It was established by the testimony of another witness that Tom Smith, the accomplice who testified in the case, a short time before surreptitiously obtained the key to the back door of the store of R. J. Lyon & Son and kept it. This was the door through which these three parties effected an entrance when they finally committed the crime charged against them. Mrs. Goodrich testified that she saw them one evening or night about two weeks before the burglary attempt to open the door and enter the store. We think this was clearly competent, for the purpose of showing, in connection with other proof in the cause, concert of action between these three parties in the commission of the crime charged in the indictment. 6 Cyc. pp. 235, 236. It is especially applicable and admissible in corroboration of the testimqny of the accomplice as tending to establish a joint association and purpose in the commission of the crime.
Counsel also contend that the verdict is inconsistent, and should be set aside because the jury acquitted appellant on the charge of burglary upon testimony which tended in the same degree to establish guilt of that offense as it did the crime of grand larceny. The evidence was sufficient to warrant a conviction of both offenses, and, appellant can not complain that the jury extended greater leniency than he was entitled to. Benton v. State, 78 Ark. 284.
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Hill, C. J.
This case is a contest between an attorney and his client. The client was not satisfied with a statement of money collected and expenditures made, and refused to accept the check sent to it, and this suit resulted. The amount of collections was admitted, and the difference grew out of the amount that should be allowed as credits.
Passing all other questions and going to the heart of the case, it is found that on January 27, 1903, the appellee, Taylor, the attorney, submitted to his client a statement and transmitted a draft for $342.10 as the balance due the client after paying various items and his fee, which were set forth in the statement. The fee charged was $200, and in regard to that the appellee said in his letter: “You will remember that there were four trials in the case, two in the circuit court, and two in the Supreme Court; and while the fee of $200 seems large, it is not, when the work done is taken into consideration. This does not include the two other trials, one in the circuit court at the outset of the litigation, and one some time after in the chancery court, making in all six trials. Hoping this will be satisfactory,” etc.
In reply to this, the client (which was represented by home counsel who conducted 'the correspondence) wrote, refusing to accept the check for $342.10, and calling attention to the matters that had been overlooked, which are not material here, and asked that the account be recast, and in regard to the fee said: “We do not object- to your fee, except that we think we are entitled to one-third of it. Please send us corrected statement,” etc.
On February 13th the appellee wrote them, stating that he would look into some (natters referred to in the letter not material to this issue, and said nothing in regard to the fee.
On February 26 he again wrote, remitting $393.50, having added $50.40 to his previous remittances for matters explained in the letter, and added. “There are some costs that I find that I paid, but I will let that go and count the matter even. All costs are paid.”
On March 7, 1903, on learning that his check had been returned and the claim against him placed in the hands of an attorney for collection, he wrote a full history of the litigation which he had conducted, with circumstantiality and detail, which is apparently a correct and truthful history of the case. The gist of the letter was an insistence upon the correctness of the charge that he had made.
To this the appellant's attorneys replied on March 11, in which they said: “We are in receipt of your favor of the 7th instant, and in answer beg to say that it is not a question of fees at all that compelled us to put the matter of Lane & Bodley Company v. J. W. Leonard in the hands of Mr. Oliver. On that point we refer you to our letter of January 29, 1903, but solely for the reason that you failed to send us money that you had collected, and when you did send check you did not send the correct amount,” etc. ,
On March 25, 1903, the appellee wrote further in regard to costs and other matters, and concluded as follows: “I certainly think that I ought to have every cent of the fees that I have charged, and that you should take your charges out of the amount that I sent you, and then I will not have enough to pay my personal expenses in looking after the litigation, and besides I paid $150 of that to associate counsel.”
Subsequent correspondence between the parties followed, no dispute or difference developed as to the fee, but the matter was not adjusted, and suit was brought. In said suit the defendant answered admitting the collection of the three items, towit: $129.60, $100 and $553.50, which were charged in the complaint to have been collected by him, and said that the same had been paid, and by way of cross-complaint he alleged that the appellant was indebted to him in the sum of $155 as attorney’s fees and expenses in collecting said sums of money and the litigations concerning the matter.
On trial before a jury a verdict resulted in the sum of $5.00 in favor of. appellee, and the appellants brought the case here.
The court sent the case to the jury upon instructions directing them to charge the appellee with the three items collected by him with interest (less a remittance of $79.60, and then credit him with the court costs paid by him, and also credit him with whatever fee he was entitled to for his services under the evidence, including expenses, and return a verdict for the party for the difference between the chargeg in whoseever side the difference stood.
Various other instructions were given, principally upon the question of amount of fee to be allowed the appellee, and upon that point the testimony of attorneys had been taken which presented a wide conflict as to the proper amount to be charged. It was error to submit to the jury this question of the amount of fee to be found to be due upon a quantum meruit, because the correspondence which has been just detailed shows that that was a closed incident. It had become an account stated between appellant and appellee, and the appellee was only entitled to recover the $200 which he had charged, and which was agreed to by the attorneys conducting the correspondence on behalf of the appellant. They expressly disclaimed any difference with him over the amount of fee, and said that the reason they would not accept his check for $393.50 was on account of‘other items, and not on account of the fee which he had charged. After making this charge and remitting $393.50, which was not accepted but returned to the appellee, he then made a charge in this litigation for his services and expenses, which would more than absorb the collections made and leave due him $155, and sustained that charge by some evidence that the same would be reasonable for the services performed. But he was not at liberty to reopen this question and recover upon the quantum meruit. When an attorney makes a charge for services, and the same is accepted by the client, it becomes an account stated between them, and may be sued upon as such by him. Wilcox v. Boothe, 19 Ark. 684; Pulliam v. Booth, 21 Ark. 421. Necessarily, the converse is true, and the client’s rights are likewise fixed. The rendition of an account is not of itself sufficient to make it an account stated; but where the other party goes over the account and assents to its correctness, then it becomes a settled matter. See this subject fully discussed in r Cyc. pp. 370-372. When it is thus settled, it can then only be reopened for fraud or mistake. Roberts v. Totten, 13 Ark. 609; Lawrence v. Ellsworth, 41 Ark. 502; St. Louis, I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541; Weed v. Dyer, 53 Ark. 155; Glasscock v. Rosengrant, 55 Ark. 376.
The only uncertain element in this account was the fee; the other matters were mere ascertainment of the correct expenditures and costs to be charged against the collections, and were not matters open for contract or adjustment like the fee matter then stood.
But, even aside from the rules governing an account stated growing out of its rendition and acquiescence, and considering this, not as an account, but as a negotiation between the parties, it is evident that a contract was consummated.- .Taylor offered upon his part to accept $200, which he then retained, in full for legal services growing out of the numerous law suits involved in the collection of the claim, and his -client accepted that proposition. This ended the matter, so far as the fee was concerned, as both parties were capable of contracting in regard to the subject-matter, and did contract in regard to it, and there is no evidence authorizing the reopening of that contract upon- the ground of fraud, undue advantage, mutual mistake or any other ground which sets aside a contract.
The court gave the jury the following instruction:
“2. If you find from the evidence that the defendant rendered a statement in which he charged a less sum for his services than he now asks, that does not prevent him from recovering whatever amount his services were worth. Or if you find that the defendant- rendered his statement for services through mistake caused by reason of his books and papers being misplaced, and he could not find them, and did not remember about the cases sufficiently to fix the proper amount, then he is not necessarily bound by the statement that he made.”
This instruction was improper, as it does not correctly state the law; and, even if it did, there was no evidence to justify the issue being presented to the jury. The correspondence at the time the fee was fixed and while the negotiation was pending about it showed an intimate knowledge of the services performed, and a recitation of those services to the client to satisfy him that the fee was reasonable. The testimony of Mr. Taylor does not state the extent and nature of his services any more definitely than his letters did at the time he was fixing this fee — merely gives more detail. It is true that he testifies that it was some two years from the time he got the money until he made his settlement, and that he had misplaced his docket and letters, and could not get the data necessary to make a statement^ and says that he had forgotten about paying his associate counsel $150. One month after making the second remittance, and as a reason for assuring his client that the charge of the transmitting attorneys should not come out of the amount retained by him, he says that he would not have enough to pay his personal expenses in looking after the litigation, and besides that he had paid $150 .to associate counsel. At this time he did not ask that the matter be reopened on account of this oversight, and merely insists that for these reasons the charge that he had made was a proper one.
Doubtless, there were other matters as shown in his testimony that he was deprived of having the benefit of in his settlement by reason of his lost docket and correspondence and.failing to remember details, but those matters did not go to the only matter subject to negotiation, the fee; they were matters that went merely to a proper accounting for the money received and proper credits in his own behalf, and they were subject to adjustment upon the ascertainment of those amounts at any time.
Other questions were discussed in the case in regard to the instructions, but it is not necessary to notice them ;• the view the court takes of the fee renders the others unimportant.
Objection was made to the bill of exceptions not showing all the testimony, but since that objection was made the bill of exceptions has been amended by the trial' court, and the omitted matters have been inserted. >
For the error in submitting to the jury the question of the fee the cause is reversed and remanded with directions to grant a new trial. | [
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Hill, C. J.
This is the second appeal in this case. In the former appeal the cause was remanded to cancel the deed from Hutchinson to Park on payment of the taxes expended by Park. Hutchinson v. Park, 72 Ark. 509. On the remand it was shown that Hutchinson was unable to give a supersedeas bond, and that, rather than surrender possession to Park, he had paid rent to Park pending the appeal. The court found Park indebted to Hutchinson $100 on this account, and deducted $25 for taxes paid,'and gave judgment for $75 in favor of Hutchinson against Park, and canceled the deed. Park recovered in 1902 a judgment against Hutchinson for $1,540.93, and asked to offset this judgment against him, pro tanto, against that one under sec. 6238, Kirby’s Digest. Mr. D. B. Sain represented PIutchinson in the litigation, and became entitled to $100 as a fee, and, immediately upon the entry of the judgment in favor of Hutchinson against Park, Sain asserted his lien upon it under § 4462, Kirby’s Digest. The court refused to permit the judgment to be offset, owing to the attorney’s lien.
Appellant contends that the chancery court in this case did not have jurisdiction to do anything except enter judgment cancelling the deed upon the repayment of the taxes, and that the demand asserted was purely a legal one, enforceable at law, but not a subject of litigation in this case. Appellee contends that equity, having taken jurisdiction for one purpose, is competent to adjust all matters — legal or equitable — growing out of the transaction. This question is not important to the litigants, as the rent is due, whether in law or in equity. The point of importance to them is whether the attorney’s lien on the judgment prevents it being offset.
Park had recovered his judgment some years prior to this, and it was in full force when the court gave this jugdment against him. Pie at once sought the offset, and at-that time Sain had no lien upon the judgment, and Park had no knowledge of his claim upon the judgment. Sain acted within the time prescribed by statute, and preserved his lien against Plutchinson, but did his subsequently created lien defeat the right of offset? Park and Sain were creditors of Plutchinson; Park put his debt into a judgment which, proprio vigore, carries certain rights; a lien upon real estate, a lien through execution upon personalty, and the right to use it as an offset against a contrary judgment. Pars, perfected this right before Sain established any rights. Sain also had certain rights against his client, but they had to be worked out through the judgment in favor of his client. The fact that his client failed to pay him his fee should not give his client’s judgment immunity from offset. To defeat the right of offset’ given by statute, the debtor can fail to pay his attorney, and then his attorney his a right to prevent the judgment then acquired being used in liquidation of a prior judgment wherein the judgment creditor is the judgment debtor. This will not be tolerated m the law. This is not 'a question of an assignment of part of a judgment under § 4457, Kirby’s Digest. An attorney’s lien filed after the right to offset the judgment with a prior one has accrued can not defeat such offsetting. The decree is reversed, and cause remanded with directions to permit the offset as prayed. | [
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McCulloch, J.
Appellant, Sengel, borrowed $3,500 from Port Smith Building Association No. 2, Permanent, a building and loan association, on stock in the association held by him, and mortgaged certain real estate in the city of Fort Smith as security for the loan. The association subsequently passed into the hands of receivers, the appellees being appointed by the court as such receivers.
On April 23, 1900, he conveyed the mortgaged real estate to the receivers by deed in absolute form, reciting consideration of $1,723.98, and on November 27, 1903, the receivers brought an action at law against him to recover the balance alleged to be unpaid on his obligation to the association.
Appellant answered, his answer being made a cross-complaint, admitting the execution of the obligation for payment of $3>500> borrowed money, but alleging that his deed conveying the real estate to the receivers was given on express agreement that the conveyance should be considered a mortgage to secure the said indebtedness, that the receivers agreed to assume payment of certain prior mortgage liens on the property conveyed and account to him for all rentals and proceeds of re-sale of the property, and that the receivers had rented out the property for a time and afterwards sold it to other parties. The prayer of his cross-complaint is that the deed be declared to be a mortgage, and “that plaintiffs be adjudged to make an account of the moneys received by them from the said described properties both as to rentals and proceeds of sales, and that same be applied to payment of the mortgage incumbrances on said property.”
■ Appellees filed an answer to the cross-complaint in which they denied that the deed was intended as a mortgage, but admitted that they -had agreed with appellant that he should have a re-conveyance of the property on payment of the debt, and that in case of sale he should have credit on his debt; for the amount of proceeds of sale.
The cause was transferred to equity, where it was heard, and a final decree entered in accordance with the prayer of appellant’s cross-complaint, declaring the deed to be a mortgage and making a reference to a master to take proof and state an account of appellant’s indebtedness, the taxes and expenses paid by the receivers and the amount of rentals and proceeds of sale of the property collected by the receivers.
At the next term of the court the master filed his report, finding a balance against appellant of $2,082.99, and asking that an allowance of $131.77 be made to the receivers as commission on rents collected.
Appellant filed exceptions to the report, but the court overruled the same, confirmed the report, including the allowance to the receivers, and rendered a decree against appellant for the amount found due by the master with accrued interest.
The brief of learned counsel for appellant contains an interesting discussion on the duty of the appellees, as trustees, to obtain-the highest market price for the property sold and upon their liability therefor if they have sold for less than the highest market price. This question was not, however, raised in the pleadings, and can not be considered now. The cross-complaint of appellant contains no allegation that the property was sold by the receivers for less than its value. No issue was tendered on this point, but appellant claimed credit only for the proceeds of sale of the property. It would be manifestly unjust to charge the receivers, or the interests which they represent, with an amount in excess of the actual sums received for property sold, in the absence of allegations as to dereliction of duty on the part of the receivers in selling the property. . Appellant asked the court to credit him only with the amount of the proceeds of sale of the property, which the court did,_ and he is in no position to ask for more now.
Exceptions to the master’s report are based on the further ground that he credited the proceeds of sale first on the debt to the building and loan association which bore interest at six per cent, per annum, instead of on the prior mortgage liens which bore a higher rate of interest.
The receivers, acting under orders from the court in the cause in which they were appointed, bought in the outstanding prior mortgages on the property in order to protect the security which they held. One of the incumbrances was purchased before the conveyance executed to them by appellant, and the other afterwards. There was no express agreement between appellant and the receivers as to which of the mortgages the proceeds of sales should be applied upon. Nor does it appear that the re-' ceivers ever -made an'y specific appropriation of the funds so received. But, whether they did so or not, the execution of the several mortgages was an appropriation in advance of the proceeds to the respective mortgage debts in the order of priority, and neither party could, without the other’s consent, change the appropriation. Greer v. Turner, 47 Ank. 17; Caldwell v. Hall, 49 Ark. 508; Fort v. Black, 50 Ark. 256; Sanford v. Van Arsdall, 53 Hun (N. Y.), 70; Orleans County National Bank v. Moore, 112 N. Y. 543.
It was error, therefore, for the master to credit the' proceeds of sale on the junior incumbrance having the lower rate of interest. The application should have been, first, in extinguishment of the prior incumbrances. This makes a difference, as calculated by appellant’s counsel and undisputed by appellees, of $47.92 on interest on proceeds of sale to Howell and $58.77 on proceeds of sale to Moss, a total of $133.69 excess. There is also a difference of a few dollars on the sale to Bumgarden, the exact amount of which we are unable to ascertain from the record, but it is too small an amount to justify reopening the case. Appellant claims credit for about two months’ rent which he says the receivers should have collected from Bumgarden, the purchaser, on part of the property between the dates of the agreement for sale and the consummation thereof. We think the chancellor properly refused this credit.
It is further contended that the chancellor erred in deducting from the amount of rents and proceeds of sale the items of commissions to real estate agents who negotiated the sales, cost of abstract of title and commissions to the receivers on the rent collections. These were, under the circumstances, proper charges against the funds received, and the chancellor was correct in allowing them to. be deducted from the gross amount of collections.
The decree against appellant will be modified to the extent of the sum of $133.69 and affirmed as do the remainder. It is so ordered. | [
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Per Curiam.
The petitioner was convicted on June 22,1990, of the offense of murder in the first degree and sentenced to forty years in the Arkansas Department of Correction. A timely notice of appeal was filed by his court appointed counsel on July 18, 1990, along with the designation of record.
After the notice of appeal was filed, petitioner informed his counsel that he was relieved of further responsibilities and on June 28, 1990, he filed a pro se motion for a new trial alleging, among other things, a conflict of interest with his counsel. Upon counsel’s petition and an order of the circuit judge, the court appointed counsel was relieved of further duties and responsibilities in this case. The petitioner’s pro se motion for a new trial was denied in December 1990. The circuit clerk tendered the transcript of the proceedings to the clerk of this court, but the transcript was not permitted to be filed by the clerk.
Pursuant to the Ark. Sup. Ct. R. 11(h):
Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this Court [Arkansas Supreme Court] and is to contain a statement of the reason for the request, and shall be served upon the defendant appealing . . .
Under this rule, the petitioner’s counsel should have addressed his request for withdrawal to this court.
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 Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987). Here, the attorney does not admit fault on his part but instead implies that he had been discharged from his duties. 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, the petitioner’s motion must be denied.
If the appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. | [
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Steele Hays, Justice.
Petitioner A.P. Cox, Jr. contends he has been denied a speedy trial and brings this original action for prohibition. Cox stands charged in Miller Circuit Court with the offense of theft by receiving (case No. CR -89-630-3). When the trial court denied his motion to dismiss for want of a speedy trial, Cox sought a writ of prohibition in this court. We granted a temporary writ and requested briefs under Rule 16. Having considered the arguments, we hold the petitioner has not been denied a speedy trial.
Cox was originally charged with theft by receiving on August 21, 1987, (case No. CR-87-347). He was arrested and released on a property bond. The case was twice continued at the request of the defense and at least once at the request of the state. On the morning of September 19, 1989, before the commencement of trial, the state asked leave to introduce certain evidence which had not been furnished to the defense under a discovery order. When that request was refused the state moved for a continuance and when that, too, was denied, the state obtained permission to nolle prosequi. An identical information was filed later that same day (CR 89-630-3).
In July of 1987 A.R.Cr.P. Rule 28.1 was amended to reduce the speedy trial period from eighteen months to twelve months for defendants charged after October 1,1987. On October 29,1989, Cox asked the trial court to dismiss case No. CR-530-3 for want of a speedy trial, arguing that under A.R.Cr.P. Rule 28.1, as amended, he was entitled to a trial within twelve months from his initial arrest on August 24, 1987. The motion was heard on November 27,1989, and the trial court denied the motion, finding that the speedy trial period applicable to Cox was eighteen months, that November 15,1988, to September 19,1989, was an excludable period and that only fifteen months of trial time had expired. Cox renews his argument by this petition for prohibition.
While Rule 28.1 (c) states that a twelve month period applies to anyone charged after October 1,1987, it makes no provision for the situation we now face — a defendant charged a second time for the same crime after a nolle prosequi. Cox was charged both before and after the rule change became effective. But nothing in the rule indicates which of the two charges should be treated as the triggering event for determining the time for trial. Consequently, in that situation there is ambiguity requiring that we construe the rule.
Cox cites Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989), Washington v. State, 273 Ark. 82, 617 S.W.2d 3 (1981), and Abernathy s .State, 278 Ark. 250,644S.W.2d 590 (1983). In Washington, the trial court dismissed the charges because Charles and C.L. Washington were not brought to trial within three terms of court (the equivalent of eighteen months). On appeal the state argued that the time between an order of nolle prosequi and the refiling of charges should have been excluded. We rejected that argument, refusing to permit the state to use the device of nolle prosequi to subvert the speedy trial proviso, absent a showing of good cause. Here, the nolle prosequi was not taken for the purpose of tolling the speedy trial rule; the information was refiled within a matter of hours, and did not affect the time for trial. In Abernathy, speedy trial was not an issue; the state had nolle prossed a first degree murder charge and refiled a capital murder charge. Citing Washington v. State, supra, Abernathy argued the nolle prosequi permitted indirectly what could not be done directly. We rejected the argument, noting that the procedure in Washington was in itself perfectly permissible, “it was only because the results of that procedure worked to prejudice [Washington] that we found it to be improper.” In short, Washington and Abernathy have only distant resemblance to the case at bar.
The Asher case has similarities, but material differences as well. Asher was arrested on February 19,1987, but not charged until October 7,1987, after the amendment reducing the time had taken effect. A majority of this court held that the rule as amended was unambiguous — that Asher was charged after October 1, 1987, and, under Rule 28.2 was entitled to be tried within twelve months from the date of his arrest. In Asher there was only one charge and one arrest. Here there were two of each, yet the petitioner wishes to couple the charge in case No. CR-89-630-3, which occurred after October 1, with the arrest in case No. CR-87-347, which occurred before October 1. He cannot have it both ways. The evident fact is, if the charge and arrest in No. CR-87-347 are used, the time for speedy trial is eighteen months and it was not exceeded. If the charge and arrest in No. CR 89-630-3 are used, the time for speedy trial is twelve months and it was not exceeded. Under either stand petitioner has not been deprived of a speedy trial.
Moreover, the interpretation Cox proposes leads to an illogical result. Cox maintains that we must look to the charge in case No. CR-89-630-3, which occurred after October 1, 1987, and to the date of arrest in case No. CR-87-347, which occurred on August 24, 1987, and by that theory the time for speedy trial had run some thirteen months before the information in CR-89-630-3 was even filed. We have no hesitancy in rejecting that as not what was intended by the 1987 amendment.
Writ of prohibition denied, temporary writ dissolved.
Holt, C.J., and Newbern and Price, JJ., dissent. | [
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Per Curiam.
Appellant, Delmar Lee Lewis, by his attorney, has filed for a rule on the clerk.
His attorney, A. Wayne Davis, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
In this civil case, we denied the petitioners’ motion for rule on the clerk to lodge the transcript because the attempt to lodge it with this Court was untimely. The petitioners ask that we reconsider our ruling, stating that we “routinely grant a rule on the clerk when counsel freely admits his negligence in tendering the record on appeal in . . . [an untimely] manner.” The case cited in support of that statement is Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987).
It is correct to say that we routinely grant such motions in criminal cases. The reason is as follows:
The authorities, Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970), hold that the denial of an appeal for such causes amounts to a denial of a constitutional right, on the theory that such a miscalculation, although honestly made, amounts to ineffective assistance of counsel.
Since to deny the Motion for a Rule on the Clerk would furnish grounds for Petitioner to obtain a new trial in a post-conviction proceeding, we as a pragmatical matter must grant the motion to docket the record as a belated appeal.
Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
The “pragmatical” basis of the Harkness case rule does not apply in civil cases, so we do not grant such petitions except in criminal cases.
Petition denied. | [
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David Newbern, Justice.
This is a negligence case in which the main issue is whether the court erred in granting a new trial on the ground that the jury verdict was clearly against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). We affirm because the judge did not abuse his limited discretion in granting a new trial. We also address a damages issue which is not necessary to the decision here, but which may arise upon retrial.
The appellant, Robert Worthington, is a pilot who was hired by Earl Watkins to spray a chemical known as STAM on Watkins’s rice field. The field is located south and across a road from a four-acre wooded tract upon which the residence of the appellees, Bruce and Carolyn Roberts, is located.
Bruce Anthony Roberts, the son of the appellees, who was living with them, testified that on the morning of June 4, 1984, Watkins came to the Roberts’s door and asked if Bruce could help Watkins hold some tarps over the Roberts’s tomato plants because a crop duster was about to spray. Bruce testified that he tried to help hold the tarps over the plants but the wind was blowing hard enough to make it difficult. The tarp kept “flying up.” He also testified, without objection, that Watkins told him he had not thought the spraying would occur that day because the wind was so bad. The wind was blowing from the southwest, and the chemical burned his eyes. Bruce testified that since that date there have been large quantities of leaves and limbs in their yard which he did not remember being there before.
Bruce’s sister, Tracey Roberts, who was also living in the home, said she went into their yard to watch the attempt to cover the tomato plants and heard Mr. Watkins.say “he had told the pilot not to fly if the wind was blowing hard.” She testified that the wind was blowing hard. She said “You could smell the chemical in the house real bad, and we left the house. A day or two later I broke out in a rash.”
Arthur Mullins, an employee of the Federal Aviation Administration, testified that on June 4,1984, between nine and ten a.m., the wind was blowing from the southwest from six to eight knots. While he did not state a conversion formula,- Mullins said that wind velocity in knots is faster than the same number in miles per hour.
Finis Burns, an employee of the Arkansas State Plant Board, testified that he went to the Roberts property in response to a complaint about the chemical damage to shade and fruit trees and flowers. He observed that they were damaged by chemical drift which caused “a burning effect — browning of the leaves — defoliation.” The damage was “moderate to severe.”
Appellee Carolyn Roberts testified that they had purchased the land as the location for their house because of the trees. They built the house in the middle of the tract in such a way as to displace as few trees as possible. She recalled June 4, 1984, and the fact that the wind was blowing hard. She also stated that the home smelled of the chemical spray which was so strong that the family spent the night elsewhere. She said the trees lost their leaves and some branches and became ugly.
Appellee Bruce Roberts testified that on the date in question he was working away from home on a construction project involving sheet metal, and the wind was blowing so hard the metal sheets were difficult to handle. When he arrived home and learned of the spraying problem he inspected his trees and found that the leaves were “curling.” He testified that of the 10 or 12 fruit trees he had planted none survived. The oak trees had become “sparse” because of dying limbs which had to be picked up every time the yard was mowed. He testified that the property was devalued because the trees are “continually dying.”
Ed Dickey of the Dickey Tree Service testified that he had inspected the Roberts’s trees. He found 107 oak trees, all of which had been damaged, and 12 of which had died. Fie said the damage would be progressive, and in his opinion, in the second year after the spraying larger branches would begin to die toward the tips of the branches. In the third year entire limbs would die, and in the fourth year some trees would die with only the strongest surviving.
Mr. Watkins testified that he was present when his rice land was being sprayed by Worthington. He saw the chemical drift onto the Roberts property, and he recalled covering the tomato plants and the gusts of wind. He also testified that some of the Roberts’s trees were already damaged, and that he had used STAM many times and had never seen it destroy mature oak trees.
Appellant Robert Worthington testified that he had been applying STAM to rice fields since 1968. It is a “contact” herbicide rather than a hormonal one. It is designed only to kill plants it touches and not get into the root system. It is used to kill grass growing in a rice field. Worthington testified that when he sprayed Watkins’s field the wind was blowing three to five miles per hour but he could not argue with someone who said it blew faster. He calculated the wind speed and tried to stop spraying in a manner to prevent drift out of the field he was spraying.
Worthington also testified that he had previously flown over the Roberts property and had seen dead limbs in the trees, and that he saw only a small amount of “burn” on the trees after the spraying. He stated that he had seen trees on which STAM had been sprayed over the years, and no mature trees were killed by the chemical. The ones damaged came back the following year.
Albert Lee Frasure, Jr., an agricultural consultant, testified as an expert for the defense. He had examined the Roberts situation on July 6, 1984, and discovered it was “very evident” that STAM had drifted from the Watkins farm onto the Roberts’s property. A number of the trees had evidence of “burn” on the leaves and there was partial defoliation but not as much as three fourths defoliation.
1. New trial
The jury, responding to an interrogatory, determined there had been no negligence. The Robertses moved for a new trial, and the court granted the motion, stating that “the defendants’ verdict in favor of defendant, Robert Worthington, is clearly contrary to the preponderance of the evidence and, therefore, should be set aside.”
Prior to the adoption of the Arkansas Rules of Civil Procedure in 1979, the grounds for granting a new trial were found in Ark. Stat. Ann. § 27-1901 (Repl. 1962). The grounds found in Rule 59(a) were taken verbatim from the statute with one exception. In 1982 the word “clearly” was added so that the ground now found at Rule 59(a)(6) states that a new trial may be granted by the trial court if “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.”
The change in the rule came in conjunction with our decision in Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982), where we explained:
The trial court is vested with discretion in acting on such a motion because the trial judge’s opportunities for passing upon the weight of the evidence are superior to those of this Court. On appeal, the trial court will not be reversed absent an abuse of discretion. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Freeman v. Morrilton Water Co., 274 Ark. 419, 625 S.W.2d 492 (1981).
In view of the consistency of the testimony in this case to the effect that the wind was blowing at the time the spraying occurred and that at least some injury was caused to the trees and other vegetation on the Roberts property, we cannot hold that the trial court abused his discretion in granting a new trial. Even the expert testifying for the defense observed that the STAM had drifted onto the Roberts land and had caused some injury there. The appendix contains no testimony about precautions taken by Worthington to keep the STAM off the Roberts’s trees other than his attempt to calculate how far the STAM would drift. Although Worthington testified about the mechanism used in the plane to keep the STAM from dripping from the spraying booms after it was shut off, that had nothing to do with the drift caused by spraying on a windy day but was a mechanism used to see to it that when the plane flew over land other than that to be sprayed no STAM would be released.
The evidence seems to us to be strong that there was negligence which was the proximate cause of a loss suffered by the Robertses. While there was some evidence on the other side, including Watkins’s statement that he saw no need to call off the spraying due to the wind and some evidence that STAM could not cause the kind of damage reported by the majority of the witnesses, we cannot fault the trial court for finding that the preponderance was clearly in favor of the Robertses. The very wording of Rule 59(a)(6) contemplates that there will be some evidence on both sides of the issue. Otherwise the rule would permit granting a new trial only when all of the evidence, rather than a clear preponderance of it, favored the moving party.
Worthington has argued that by granting the motion the trial court, in effect, took the case from the jury and found there was negligence as a matter of law. That is not the case. As we pointed out in Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), “showing of abuse is more difficult when a new trial has been granted [as opposed to refused] because the party opposing the motion will have another opportunity to prevail.” A new trial is hardly the equivalent of a directed verdict.
2. Damages
While it is not necessary to the decision of this case, we review the court’s instruction on damages for the purpose of guidance upon retrial. The court instructed the jury on damages as follows:
If any interrogatory requires you to assess the damage to the property of the plaintiffs, you must then fix the amount of money which will reasonably and fairly compensate them for the following element of damage if proximately caused by the negligence of Robert Worthington. . . .
The difference is the fair market value of the land and its improvements before and after the occurrence. In determining the amount of damage you may consider replacement value, cost of future treatment, aesthetic value, or benefit of shade trees or ornamental trees in assessing such damage.
Worthington argues that the instruction was improper because it does not limit the possible damages solely to “The difference in the fair market value of the land [and its improvements] immediately before and immediately after the occurrence” which is the language of AMI 2222.
The instruction given was apparently a combination of AMI 2222 and language based upon the damages award in Bowman v. McFarland, 1 Ark. App. 235, 615 S.W.2d 383 (1981). In the Bowman case, the court of appeals dealt with intentional destruc tion of trees in violation of a contractual duty and held that “the cost of replacement” value rule permissible in contract cases was appropriate.
The instruction contained elements of both “cost of replacement” rule and the “difference in value of the land’’ rule. To allow both would, of course, result in double recovery. While cost of treatment or replacement could possibly be of some help in guiding the jury to determine the difference in the value of the land immediately before and immediately after the occurrence, Floyd v. Richardson, 211 Ark. 177, 199 S.W.2d 754 (1947), we regard the combination of rules in the instruction given here as presenting a danger of double recovery. If the court intended to limit damages to the difference in the value of the land before and after the injury, it should have given AMI 2222 without alteration.
While AMI 2222 states the only rule of damages we have approved in cases such as this, by our approval of the model instruction as well as by our opinion in Cy Carney Appliance Co., Inc. v. True, 226 Ark. 962, 295 S.W.2d 768 (1956), we do not regard the law as limiting recovery solely to the measure stated there. Modern cases recognize that the use to which an owner puts land may sometimes be considered. In some instances, for example, tortious destruction of trees resulting in the clearing of land might increase its market value but decrease the value of the land for the use made of it by its owner. See, e.g:, Milozar v. Gonzales, 619 S.W.2d 283 (Tex. App. 1981). Where the market value of the land remains the same or is increased by the allegedly tortious conduct, an instruction to the jury to award as damages the difference between the before and after market value of the land (decrease) would result in no recovery by the owner. That would be unfair to a landowner who has suffered a loss with respect to the use being made of the land.
The cost of restoration of land is recognized as a measure of damages in Restatement of Torts 2d, § 929.(l)(a) (1977). The following appears in comment b. to that subsection:
. . .when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value of the premises has not been decreased by the defendant’s invasion.
Professor Dobbs discusses the problem, concluding that where ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. “The landowner is entitled to keep his land in whatever condition he likes, short of a nuisance, and this interest is protected only if the owner is sufficiently compensated so that he can restore it.” D. Dobbs, Remedies, p. 316 (1974). He cites Samson Construction Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430 (1958), in which a plaintiff was allowed to recover for replacement of destroyed trees with ones as large as practical. Where, as in this case, many of the trees have not been destroyed but may have been injured to the extent they require treatment to help restore them to their former condition, we see no reason why reasonable cost of treatment might not be recoverable as alternative to cost of replacement.
Whether AMI 2222 or an instruction on cost of restoration is to be given will depend on the evidence. The evidence here justified the giving of an instruction allowing reasonable replacement cost of the destroyed trees or other reasonable cost of restoring the property, as nearly as possible, to its condition prior to the alleged tortious act.
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Per Curiam.
The petitioner James L. Chiasson pleaded guilty in 1986 to one count of incest. In 1989 he filed a timely petition to vacate the conviction. The petition was styled a petition for post-conviction relief pursuant to Criminal Procedure Rule 37, or in the alternative, a petition for writ of habeas corpus. The petition was denied and an order entered January 23, 1990. The petitioner, who did not file a timely notice of appeal with the circuit clerk, has now tendered the record to this court. He seeks a rule on the clerk to lodge the record despite the untimely notice of appeal.
We will grant a belated appeal of an order denying a petition for post-conviction relief if good cause is shown for the petitioner’s failure to file a timely notice of appeal. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). We have held that good cause can be established by the petitioner where the state is unable to demonstrate that the circuit clerk promptly provided the petitioner with á copy of the court’s order as required by Criminal Procedure Rule 37.3. Here, the petitioner contends that he was not provided a copy of the order until March 13, 1990, after the time for filing a timely notice of appeal had elapsed. As the state has indicated that it has no objection to the granting of the motion for rule on the clerk, it may be assumed that the state is unable to demonstrate that the circuit clerk complied with Rule 37.3. Therefore, we will permit the record on appeal to -be lodged. See Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985).
Motion granted.. | [
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Bobby McDaniel, Special Justice.
This case involves an appeal from an order of the Circuit Court of Washington County directing that legal memoranda prepared by outside counsel for the City of Fayetteville be released to the public under the Freedom of Information Act (FOIA). The trial court found the documents to be covered by the FOIA and ordered the appellants, the City of Fayetteville and its acting city manager, Scott Linebaugh, (City) to produce the documents to appellees, Dave Edmark and Donrey, Inc., d/b/a Springdale News (Donrey).
To comprehend the complexity of the facts and issues presented here, a detailed summary of events and litigation maneuvering is necessary. The circumstances underlying Donrey’s request for production of documents relate to an undertaking by the City as part of the Northwest Arkansas Resource Recovery Authority (Authority) to develop and operate an incinerator and a landfill. In short, the City issued bonds, without an election, in the amount of approximately $22,000,000 and let contracts to construct the incinerator. After the Authority issued the $22,000,000 in bonds, which had been unconditionally guaranteed by the City, the public voiced strong opposition to the incinerator and landfill and voted to reject the project. The Authority then proceeded to cancel contracts and to attempt to repay the bonds, but found it was approximately $7,000,000 short of funds to repay the bondholders.
Although the City had a regular city attorney, the City retained outside counsel due to the complexity of the circum stances surrounding the disengagement process and potential litigation. The City is represented by attorneys of McDermott, Will & Emery (McDermott) based in Washington, D.C., and the Niblock Law Firm of Fayetteville, Arkansas, (Niblock) and they have been paid approximately $400,000 of public funds for fees and expenses. The attorneys have generated extensive documents analyzing the legal circumstances and potential litigation issues; Donrey filed an FOIA request seeking disclosure of these legal memoranda.
A separate suit was filed in the Chancery Court of Washington County and is referred to as the “incinerator litigation,” Robson v. City of Fayetteville, et al., (E-89-1170), and was assigned to Judge Oliver Adams. It challenges, among other things, the authority of the City to guarantee bonds of this type and attempts to invalidate an ordinance passed by the City to raise sanitation fees to cover the $7,000,000 shortfall on the bonds. The City sought a protective order from Judge Adams to block the FOIA request of Donrey. Judge Adams denied the motion for a protective order on the grounds that the proper parties were not before the court and, thus, the court lacked jurisdiction. The appellees were not parties in that action. No appellate relief of this denial was sought by the City.
The City then filed an action against Dave Edmark, the Springdale News, and others for declaratory judgment in the Chancery Court of Washington County (E-89-1443). Judge Thomas F. Butt denied the petition for lack of jurisdiction. The record reflects that the City filed a notice of appeal in the chancery court and ordered a transcript; however, the appeal was not pursued.
The prosecuting attorney, in the Circuit Court of Washington County, Criminal Division, issued a prosecutor’s subpoena for the documents covered by the Donrey FOIA request (CR-90-1). The City filed a motion to quash the subpoena and a protective order was issued by Circuit Judge Mahlon Gibson prohibiting, inter alia, the prosecutor or his staff from releasing any of the documents produced. The documents produced to the prosecutor are the same documents at issue in this case and were examined by the trial court in camera. Judge Gibson, as acknowledged by the record and counsel for appellants, left open the issue of Donrey’s right to proceed in circuit court, civil division, to obtain FOIA documents.
After the protective order to the prosecutor was issued, Donrey renewed its FOIA request. Upon refusal by the City to comply, Donrey filed suit in the Circuit Court of Washington County, Civil Division, (CIV-90-0043), to obtain the documents. The City opposed the petition asserting that the documents were not in the possession of the City, were not “public documents,” the documents would not assist the public in judging the performance of the public officials, the criminal protective order barred the release, and the release of the documents would violate the City’s right to a fair trial in the incinerator litigation. This appeal is from Circuit Judge Kim Smith’s order that the documents be disclosed.
The FOIA ws originally enacted in 1967 and is now codified at Ark. Code Ann. § 25-19-101 through 107 (Supp. 1989). Unlike many cases involving statutory interpretation, the FOIA specifically states the legislative intent.
§ 25-19-102 — Legislative intent.
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.
The intent of the FOIA establishes the right of the public to be fully apprised of the conduct of public business. The first case interpreting the FOIA was Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), in which this court held that there was no attorney-client privilege concerning FOIA information. Laman has served as the benchmark for the interpretation of the intent of the FOIA and provides the perspective from which we view the legislative intent. This court said:
As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. . . .We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
The language of the act is so clear, so positive, that there is hardly any need for interpretation. . . .
Laman, supra.
Therefore, the points of error raised by appellants must be viewed in the light of the clear intent and purpose of the statute.
I. PUBLIC RECORDS
Points I and II challenge the findings by the trial court that the legal memoranda prepared by the outside attorneys, McDermott and Niblock, are documents within the coverage of the FOIA. Appellants first contend that the extensive legal memoranda are not “public records,” subject to disclosure. They contend that a) the requested memoranda do not constitute a record of the performance or lack of performance of official functions; and, b) the City’s outside counsel are not “agencies” supported by public funds. This argument is without merit.
Although not binding as precedent, an Attorney General’s Opinion, (89-095), concluded the memoranda were public records and subject to the FOIA. The trial judge, Hon. Kim Smith, stated, “. . . I think it would be ludicrous for us to say these aren’t public records. . . .” We agree.
“Public records” is defined in the FOIA at Ark. Code Ann. § 25-19-103(1) (Supp. 1989):
“Public records” means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
The memoranda include extensive evaluations of the propri ety of the decisions and actions undertaken by City and Authority officials. For example, one document details the specifics in which the final contract varies from the terms approved by the City’s board of directors. Another record analyzes the constitutionality of the City’s undertaking to unconditionally guarantee the bonds issued by a separate entity, i.e., the Authority. The memoranda clearly could be used to evaluate the performances and decisions of the city officials, the city attorney, and Authority officials.
Counsel for the City conceded that if the documents were in the possession of the regular city attorney, instead of outside counsel, they would be subject to production under FOIA, unless the City could prevail on its arguments relating to the protective order and the fair trial issue.
In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987) documents from the litigation files of a state agency’s deputy general counsel were held subject to FOIA. This court rejected the agency’s argument that the litigation files were not subject to FOIA disclosure on the grounds of A.R.E. Rule 502 (lawyer-client privilege) and ARCP Rule 26(b)(3) (attorney work product) since there is no statutory exemption for the attorney-client privilege or attorney work product. See Ark. Code Ann. § 25-19-105(b) (Supp. 1989). Similarly, the legal memoranda presented to the trial court and reviewed in camera here are in the nature of litigation files and, as such, are “public records” within the meaning of the FOIA.
II. POSSESSION OF THE DOCUMENTS
The City’s second contention that the records are not in its possession and are thus not subject to disclosure is also without merit. The legal memoranda were in the possession of McDermott and Niblock who were retained as attorneys for the City in lieu of the regular city attorney. In fact, when Scott Linebaugh, acting city manager, was ordered to produce the records to the prosecuting attorney, it was an attorney with the Niblock firm who delivered the records. The specially retained attorneys were the functional equivalent of the regular city attorney. The City cannot avoid the FOIA requirements by substituting a private attorney for the city attorney. To condone such logic would arguably enable public officials to shield from disclosure sensitive or controversial material by hiring an outside attorney instead of using its regular city attorney. The FOIA requirements cannot be circumvented by delegation of regular duties to one specially retained to perform the same task as the regular employee or official. This would be contrary to the requirements and intent of the FOIA. See generally J. Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741, 764 (1984). As Professor Watkins points out,
When the state or a political subdivision thereof seeks to conduct its affairs through private entities, it seems clear that those entities are for all practical purposes the government itself. It should not matter whether the activity is “proprietary” or “governmental” in nature, for in either case the government is involved in the “public business”. Thus when a county official hires a certified public accountant to conduct an audit of a county department instead of using public employees for that purpose, the CPA’s records relevant to that task should be obtainable under the FOIA.
The City has paid in excess of $400,000 in legal fees to McDermott and Niblock relating to the disengagement process, which includes advice to, and representation of, the City in the FOIA actions. These fees would certainly fall within the ambit of Section 25-19-103, and any work performed by the attorneys on behalf of the City is subject to the FOIA. Our observation in Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987), is applicable here. We said:
To agree with the appellant would be to ignore the plain and simple language of the act and deny the public access to these public records. We have never taken a narrow view of the FOIA but have always interpreted it to promote free access to public records and most favorably to the public.
In Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986), we also stated:
We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.
The FOIA sets forth the specific exemptions allowed under FOIA and, unless specifically excluded, documents covered by the FOIA must be disclosed. Section 25-19-105 addresses the examination and copying of public records and provides in pertinent part as follows:
(a) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(1) State income tax records;
(2) Medical records, scholastic records, and adoption records;
(3) The site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, and the Attorney General;
(8) Documents which are protected from disclosure by order or rule of court;
(9) Files which, if disclosed, would give advantage to competitors or bidders; and
(10) Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.
****
Ragland v. Yeargan, supra, was cited with approval in Arkansas Highway and Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). In Hope Brick Works we affirmed an order directing that working papers of real estate appraisers be disclosed and observed:
Reading the intent as stated by the legislature, considering our declarations in Ragland, and noting that the Act’s exceptions do not include the information requested, we are of the opinion that the order directing disclosure was not contrary to the intent of the Act.
Consequently, we hold that legal memoranda prepared by outside counsel for the City for litigation purposes are public records within the meaning of FOIA.
III. PROTECTIVE ORDER
The appellants contend in Point III that the records are exempt from production pursuant to the protective order issued to the prosecuting attorney. This contention is without merit.
The statutory exemption relied on by the City is Section 25-19-105(b)(8), which exempts documents “. . .which are protected from disclosure by order or rule of court.” The simple answer to this contention is that the protective order relied upon applied only to disclosure by the prosecuting attorney and his employees. The record discloses that appellants’ counsel acknowledged that: “Judge Gibson said that he was not foreclosing the Springdale News from seeking their civil remedy. . . .” Thus, the protective order neither by its terms nor by the judge’s intent protected the memoranda from the FOIA disclosure requirements.
The City was denied protective orders from the Chancery Court in two separate actions. As previously noted, Chancery Judge Oliver Adams, in E-89-1170, denied, the City’s request for a protective order on the grounds that the proper parties were not before the court and, thus, the court lacked jurisdiction. Chancery Judge Thomas F. Butt denied the City’s request for a protective order, via a declaratory judgement action, (E-89-1443), for lack of subject matter jurisdiction. Neither denial was appealed. In the instance case, there was no protective order in place designed to prohibit disclosure to the public of the legal memoranda. The provisions of Section 25-19-105(b)(8) simply do not apply to the factual situation before the court.
The City includes in its argument that the records are protected from disclosure by Section 25-19-105(b)(9) which exempts “[f]iles which, if disclosed, would give advantage to competitors or bidders.” The City recognizes that to gain relief under this contention would require us to overrule Hope Brick Works, supra, which we decline to do. The appellees are not “competitors” of the City within the clear meaning of the statute.
Categorizing members of the public who may wish to learn of, and/or disagree with, actions of public officials, even to the point of litigation, does not make such a person or entity a “competitor” as envisioned by the FOIA. The public, for whose benefit the FOIA was enacted, includes both those who support and those who oppose the actions or inactions of public officials, employees or agencies, as well as those who wish to merely learn of and evaluate the actions of public officials. To interpret “competitors” to include those seeking information, such as the media, or even adverse parties in litigation, would be to create an exemption not provided by the legislature. The definition of “public” is broad and is to be liberally interpreted and means the public at large, i.e., the body politic. As noted in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975):
The only way that electors, citizens, or any other member of the public can receive full reports of what transpires in board or committee meetings is by information obtained from the news media. Without such reports, the Freedom of Information Act is without meaning. . . .
“Statutes enacted for the public benefit should be interpreted most favorably to the public.”
The public has a right to know about public business, even when the disclosure might benefit an adverse litigant. Under the FOIA, the media, as well as adverse litigants, are members of the public and are entitled to publicly funded information. As juries in federal criminal cases are often instructed, “The Government always wins when justice is done.” See E. Devitt & C. Blackmar, Federal Jury Practice and Jury Instructions, § 15.01 (1977). Thus, enhanced risk that the City may lose litigation does not constitute an exemption.
IV. PROTECTIVE ORDER AUTHORITY
In Point IV, appellants contend that the circuit court erred in concluding it lacked authority to enter a protective order in the FOIA action that would be binding upon the chancery court in the incinerator litigation. Judge Adams, in the chancery court incinerator litigation, refused to issue a protective order, and no appeal was taken therefrom.
The circuit court did not have authority in the FOIA action to enter a protective order to be binding upon the chancery court in the incinerator litigation. Appellants rely on Arkansas Newspapers, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). However, that case dealt with a circuit court closing two hearings and sealing a motion in a criminal case. The circuit judge, in an FOIA action, refused to disclose the information and open the hearing. A trial court has the inherent authority to protect the integrity of the court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under Section 25-19-105(b)(8). Such was not the case here.
In Patterson, the protective order had been previously entered, was broad in scope, and was issued by the court with jurisdiction over the underlying litigation. Such an order is within the scope of Section 25-19-105(b)(8) which provides for exemption of “[djocuments which are protected from disclosure by order or rule of court.” We interpret this section as requiring the circuit court to grant exemption if another court has restricted disclosure of documents being sought. The FOIA court must give credit to protective orders previously issued by other courts. The circuit court in an FOIA action may grant exemptions only for the grounds specifically covered by the FOIA itself. See Laman v. McCord, supra.
The trial court in the incinerator litigation did not issue a protective order, although it had the authority to do so. The documents examined in camera in this case, however, would not be appropriate for a protective order. These documents are precisely the type envisioned by the FOIA to be produced to the public. Since there was no general protective order in place by another court to prohibit disclosure of the documents, the trial court was correct in ordering production.
V. FOIA POLICY CONSIDERATIONS
Finally, appellants assert that the trial court failed to recognize the broader consequences of ordering production of legal memoranda under the FOIA. This is a policy argument and is for the legislature. Essentially, appellants assert that the City would be denied a fair trial if it is required to produce its work product. As noted in the 1987 case of Scott v. Smith, supra, there is no attorney-client privilege or attorney work product exemption under the FOIA. In Laman, supra, in 1967, this court ruled there was no attorney-client privilege in FOIA cases.
The FOIA has not been amended to include exemptions for attorney-client privilege or for attorney work product. Such exemptions are policy decisions and are for the legislature to make. In Scott v. Smith, supra, the court unanimously rejected the public policy argument advanced by the agency that attorney-client privileged information and work product information should be exempted. The court stated:
The agency argues that policy considerations favor reversal, but we have already addressed that issue. ‘Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood. Our duty is simply to give effect to its mandate.’ Laman v. McCord, 245 Ark. at 406, 432 S.W.2d at 756. Laman has stood as our interpretation of the act on this subject for nineteen years, and through those years the General Assembly has not exercised its option to amend the act to create a specific exception for the attorney-client privilege. Accordingly, we affirm the decision of the trial court.
The FOIA does exclude “working papers” under limited circumstances. See Section 25-19-105(b)(7), supra. However, trial counsels’ legal memoranda are not excluded by the FOIA and must be produced.
The City asserts production of the memoranda will deny it a fair trial. The City is not being deprived of a fair trial within constitutional standards. Realistically, the City’s position is that it may have a lesser chance of winning a trial if the memoranda are produced. Enhanced risk of losing a trial does not equate to not getting a fair trial, but is a policy decision for the legislature. In Laman v. McCord, supra, the court stated:
On the one hand, to deny to the city council the right to meet in secret with the city attorney might in some instances work to the public disadvantage. But, on the other hand, to allow the council to go into executive session at any time, upon the pretext of consulting the city attorney about legal matters, might readily open the door to repeated and undetectable evasions of the Freedom of Information Act - also to the public disadvantage. Policy decisions such as that are peculiarly within the province of the legislative branch of the government.
The public includes those on both sides of the litigation and, also, those not involved in the case. Citizens wishing to become informed as to the internal events of government are, as a practical matter, limited in their capacity to gain information from media sources. Making public information available to the public does not deprive the City (the public) of a fair trial.
The City is facing a potential liability of at least $7,000,000 as a result of actions and decisions of public officials. Citizens of Fayetteville may wish to become informed as to the contents of the memoranda to enable them to evaluate the performance of public officials. In addition, the public located elsewhere, such as Jonesboro, Little Rock, Pine Bluff, etc., may wish to become informed as to the circumstances of this case to avoid reinventing the liability wheel facing the City.
When the public is involved in litigation, this court has given deference to the public policy decisions of the legislature concerning production of litigation files of attorneys for public officials, employees or agencies. We have steadfastly ordered production of litigation files. See Laman v. McCord, supra; Scott v. Smith, supra; and Hope Brick Works, supra.
[W]e specifically rejected the argument for reversal that the court erred in holding that the Freedom of Information Act applied to litigation files maintained by attorneys representing state agencies. Refusing to create an exemption or exception to the Freedom of Information Act based upon the attorney-client relationship, we pointed out that the attorney-client privilege was not one of the Act’s exceptions.
Hope Brick Works, supra.
Production of litigation files does not equate to denial of a fair trial. The trial court controls the admissibility of evidence and the determination of applicable law and always has the inherent authority to secure the fair trial rights of litigants before it. See, e.g., Patterson, supra.
In McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), this court dealt with the balance between the constitutional right of privacy of a private citizen who attempted to block disclosure of private documents, including attorney-client privileged documents, which fell within the public realm when seized by police at a crime scene. The otherwise private documents were subject to the FOIA and ordered produced. We continued to hold that additional exemptions are subject to creation only by the legislature and said:
First, the Freedom of Information Act should be broadly construed in favor of disclosure, and exceptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. Second, the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. A.R.E. Rule 101. It has no application outside of court proceedings and, therefore, cannot create an exception to a substantive act.
The FOIA is a public policy decision by the legislature that balances the right of the public to information against competing interests. It is up to the legislature to fashion additional exemptions to cover the attorney-client privilege or attorney work product. The rules of evidence and of procedure, in addition to the inherent power of a trial court to control actions pending before it, provide adequate safeguards of the appellants’ right to a fair trial. As stated in McCambridge, supra, the appellants’ arguments “could be well addressed to the General Assembly. We can only interpret the exemption as it is written.”
The trial court rendered an appropriate decision in this FOIA case. The broader consequences of disclosure are for the legislature, not the trial court. Until the legislature changes the exemptions, litigation files, including research and analysis memoranda such as before this court, are not exempt. The order of the trial court directing release of legal memoranda pursuant to the FOIA is affirmed.
Affirmed.
Holt, C. J., and Turner, J., concur in part and dissent in part.
Price, J., not participating. | [
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Robert H. Dudley, Justice.
Woodhaven Homes, Inc., the appellant, is a general contractor which contracted with Proffitt Enterprises to build a Bonanza Restaurant in Bentonville. The appellant general contractor entered into a written sub-contract with Kennedy Sheet Metal Company, Inc., the appellee, to perform the plumbing, heating, air conditioning, and ventilation work and to supply some of the materials used in the building. The consideration for the sub-contract was $67,403.00. The subcontract provided that the general contractor could direct the sub-contractor to change or modify its work and that, in such an event, the sub-contractor would submit in writing claims for adjustments in the contract sum. The appellee sub-contractor was licensed as a heating, air-conditioning, and plumbing contractor, but was not licensed as an electrical contractor.
After the appellee sub-contractor started work, the general contractor changed some of the plans. Further changes occurred throughout the construction period. Appellant general contractor did not draw up change orders for many of the changes it requested, and, in addition, after the construction had started, the parties verbally agreed that the sub-contractor would perform the electrical work for an additional consideration of $35,000.00. A written change order was issued for $6,800.00 worth of electrical work. Near the end of the work the appellee subcontractor submitted to appellant general contractor a bill for “electrical extras” in the amount of $15,535.83. The general contractor refused to pay this amount. The sub-contractor also submitted to the general contractor a bill for “plumbing extras” in the amount of $2,818.70. The general contractor refused to pay for these “extras.” The general contractor paid all other amounts due. The sub-contractor then filed suit in circuit court for the “extra” amounts. Upon the motion of the sub-contractor and over the objection of the general contractor, the circuit court transferred the case to chancery court. The Chancellor held in favor of the appellee sub-contractor. The general contractor appeals. We affirm the ruling of the Chancellor.
Prior to 1989 the Contractor’s Licensing Statute provided that no action could be brought by an unlicensed contractor to enforce any construction contract. Ark. Code Ann. § 17-22-103(d) (1987). In 1988, we interpreted the statute to mean that an unlicensed contractor could recover under the theory of quantum meruit, which is a claim for unjust enrichment and does not involve enforcement of a contract. Sission v. Ragland, 294 Ark. 629, 745 S.W.2d 620 (1988). In 1989, after the Sission case had been decided, and after the work in this case had been completed, the General Assembly passed an amended version of the statute which now provides there may not be a recovery under the theory of quantum meruit. Ark. Code Ann. § 17-22-103(d) (Supp. 1989). The Chancellor refused to retroactively apply the 1989 amendment and awarded the appellee sub-contractor a quantum meruit recovery for the “electrical extras.” Appellant contends the 1989 amendment should be retroactively applied.
The general rule is that all legislation is presumed to apply prospectively unless the legislature expressly declares, or necessarily implies by the language used, an intent to give a statute retroactive effect. Arkansas Rural Med. Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Here, there is no declaration in the act, either expressed or implicit, that it is to be applied retroactively. Further, a statute will not be given a retroactive application when it takes away a vested right unless such be the “unequivocal and inflexible import of the terms and the manifest intention of the legislature.” Id. at 292, 729 S.W.2d at 403. Here, under the case of Sission v. Ragland, supra, the appellee sub-contractor had a vested right to file a claim under the theory of quantum meruit. That vested right will not be taken away unless the “unequivocal and inflexible” language of the act requires it. That is not the case here.
The appellant alternatively argues that, even if the subcontractor could lawfully recover for its electrical work on the basis of quantum meruit, the trial court committed reversible error in including overhead in the award for quantum meruit.
Having found that the appellant general contractor received the benefit of appellee sub-contractor’s electrical work, it remained for the Chancellor to find the reasonable value of that work. The measure of quantum meruit recovery in a case where the work is finished is the reasonable value of the goods, services, or product furnished to the party unjustly enriched. City of Damascus v. Bivens, 291 Ark. 600, 726 S.W.2d 677 (1987). In many situations, such as this case, there is no ready market or exchange to set a reasonable value on the completed improvement or product. Thus, here it remained for the Chancellor to find the reasonable value of the electrical work. In doing so, she closely examined the appellee sub-contraetor’s claim and found it asked for the contract price less profit. The Chancellor awarded that amount. The appellant general contractor did not show that the value of the benefit conferred to it was less than that amount.
In a comparable situation we wrote:
The appellant argues that by awarding the balance due on the contract the trial court was enforcing the contract rather than awarding the value of the services. That is not necessarily so. We have held that if the party against whom an unjust enrichment award is levied has not shown that the value of the benefit conferred is less than the payment called for in the contract, it is not error to base the unjust enrichment award on the contract price or that which has already been paid pursuant to the contract. Revis v. Harris, supra; Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732 (1938). The contract price is some evidence of the value of the benefit conferred. See D. Dobbs, Remedies, pp 269, 949 (1973). (Footnote omitted.)
Id. at 603, 726 S.W.2d at 679.
Overhead is customarily included in the contract price. Thus, despite appellant’s request for us to do so, we will not categorically fix a rule that overhead will never be allowed in determining the reasonable value of the improvement. Overhead, in the form of direct costs such as the rental of tools and equipment, the cost of supervision, the costs of bonds, the cost of casualty and workmen’s compensation insurance, and indirect costs such as administrative and office costs, may constitute some evidence of the value of the benefit conferred. McCormick, Handbook on the Law of Damages & 165 (1935). Other jurisdictions agree. Murdock-Bryant Construction, Inc. v. Pearson, 146 Ariz. 69, 703 P.2d 1206 (1984); Najjar Indus., Inc. v. City of New York, 87 A.D.2d 329, 451 N.Y.S.2d 410 (App. Div. 1982); Houma Armature Works & Supply, Inc. v. Landry, 417 So.2d 42 (La. App. 1982); Petropoulos v. Lubienski, 220 Md. 293, 152 A.2d 801 (1959).
Appellant general contractor contends that the Arkansas case law is “crystal clear” that a recovery under quantum meruit is limited to direct costs for labor and materials. For this it cites the cases of Pickens v. Stroud, 9 Ark. App. 96, 653 S.W.2d 146 (1983) and Bell v. Carver, 245 Ark. 31, 431 S.W.2d 452 (1968). Neither case so holds. In the Bell case, this court was dealing with a partially performed contract which could not be completed because the structure was destroyed by a fire. As a result, the contract could not be completed. We said the contractor could not sue for the full profit he would have made if the fire had not occurred, but instead was limited to a quantum meruit recovery for the work he performed. The Pickens case is similar, and the holding was in line with the Bell case. Neither case deals with a completed project, and neither holds that a recovery under quantum meruit is limited to direct costs for labor and materials so that overhead may not be considered as some evidence of the value of the benefit conferred.
As a sub-point under this argument the appellant general contractor argues that the appellee sub-contractor was awarded more money than it would have received under the original written contract. The short answer to the argument is that the Chancellor did not award more than the sub-contractor would have received under either the written contract or the oral “extra” agreement.
Appellant general contractor next argues that the trial court committed reversible error in awarding a judgment for the “plumbing extras” when there was no written change order. The argument will not stand, for a written contract may be orally modified, and we cannot say the Chancellor was clearly erroneous in finding that the parties agreed to orally modify this contract. The credibility of witnesses is a matter within the exclusive province of the Chancellor.
The Chancellor awarded $2,818.70 to the sub-contractor for “plumbing extras” pursuant to the oral contract for those extras and, in addition, awarded $11,424.52 for “electrical extras” under the theory of quantum meruit. She additionally made an award of $3,000.00 as attorney’s fees. The appellant general contractor contends that the Chancellor erred in awarding attorney’s fees to the appellee sub-contractor. We hold there was no reversible error in the Chancellor’s award.
The applicable statute, Ark. Code Ann. § 16-22-308 (Supp. 1989) provides that an attorney’s fee may be awarded in an action to recover for a breach of contract. Without question, under the language of the statue, the Chancellor could make an award of attorney’s fees for the recovery for the breach of the oral contract. The same statute provides that an attorney’s fee may be awarded in an action to recover for “labor or services.” Clearly, a good part, if not most, of the quantum meruit recovery was for the reasonable value of appellee’s labor or services which unjustly enriched the appellant, and an award of attorney’s fees on this amount would be allowable under the language of the statute. The statute does not provide for attorney’s fees in an action to recover for the materials supplied. However, none of the award for attorney’s fees is shown to be based upon materials supplied and, therefore, we cannot say the Chancellor erred in her award of attorney’s fees.
Affirmed. | [
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Robert L. Brown, Justice.
The State of Arkansas files this interlocutory appeal from a decision by the trial court granting appellee James L. Blevins’ motion to suppress evidence seized on May 4, 1990.
The essential facts are not in dispute. During the early morning hours of May 4,1990, Investigator Tim Ryals of the Hot Springs Police Department purchased crack cocaine from an individual at a residence in Hot Springs. Ryals was under surveillance by other police officers during the transaction. Thereafter, the investigator signed an affidavit to support a search warrant authorizing a search of the residence for cocaine, drug paraphernalia, and cocaine money. Ryals and other Hot Springs police officers and detectives then tried to find a judge to issue the warrrant but discovered the regular judges were all unavailable due to attendance at a judicial council meeting out of town.
The officers next made contact with the prosecutor who advised them to go to Special Judge Ronald Naramore, who was serving as Special Circuit-Chancery Judge and who had been elected to that office by special election of local attorneys held on April 30,1990 — four days earlier. Special Judge Naramore was elected under the procedure provided in Section 21 of Article 7 of the Arkansas Constitution. The Special Judge issued the search warrant on the morning of May 4. Pursuant to that search warrant evidence was seized from the residence, including suspected crack cocaine, marijuana, a television set, and a VCR.
As a result of the search and the seizure of evidence, appellee was charged with possession of a controlled substance with intent to sell and theft by receiving, due to the fact that the television set found at his residence had allegedly been stolen.
A motion to suppress all evidence seized was filed by appellee on May 27, 1990, and on July 2, 1990, the motion was heard by Circuit Judge Tom Smitherman. Statements were made by counsel for the parties, and testimony was taken from the officer and detectives who obtained the search warrant and then served it. All three testified that they believed Ronald Naramore to be the acting Special Circuit-Chancery Judge with the authority to execute the search warrant. Judge Smitherman issued a letter opinion on July 24, 1990, granting the motion to suppress and concluding that since the appellee’s case was not pending before Special Judge Naramore at the time of his election on April 30, 1990, the Special Judge did not have the authority under Section 21 of Article 7 to issue the search warrant on May 4, 1990.
In reviewing a trial judge’s ruling on a motion to suppress, we ordinarily make 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. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). Here, the points raised for reversal are more legal than factual in nature.
Appellant makes several arguments on appeal, but the argument we find persuasive is the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984). In Leon, officers had served a search warrant on the good faith belief that it was validly issued by the magistrate. As it happened, the affidavit establishing probable cause was insufficient, and the district court suppressed the resulting evidence. The Court of Appeals affirmed, but the Supreme Court reversed and recognized an exception to the exclusionary rule where the officers, in good faith, rely on the judge’s probable cause decision and the technical sufficiency of the search warrant. The court added that the reliance must be objectively reasonable.
We have specifically recognized the good faith exception in Arkansas and applied it. See Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). Nothing in the record suggests that the officers in this case acted other than in an objectively reasonable manner. And nothing in the record suggests they had any doubts about the technical sufficiency of the search warrant. The procedure the officers followed substantiates this:
1. They conducted a surveillance of the residence and completed an undercover transaction.
2. They sought out a judge for a search warrant immediately following the transaction but found no regular judge available.
3. They contacted the prosecutor who advised them to call Special Judge Naramore for the warrant.
4. They visited Special Judge Naramore in the early morning hours, obtained the search warrant and proceeded to act upon it.
It is obvious from these facts that not only the officer and detectives but also the prosecutor believed Special Judge Naramore had the authority to issue the warrant.
At the hearing to suppress, Officer Michael Smith was questioned about Special Judge Naramore:
Q. All right, did you believe that Ron Naramore at that time was the Special Acting Judge?
A. Yes, sir. I knew him to be acting as a circuit/ chancery judge, so. . . .
Q. And that being: Was it your understanding that Judge Naramore had the authority to execute the warrant?
A. Yes, sir. To sign the warrant, yes sir, it sure was.
The testimony of the two detectives is much the same.
For the foregoing reasons, we believe the trial judge’s decision granting the motion to suppress must be reversed.
Since we reverse on the basis of the good faith efforts of the officers and the objective reasonableness of their belief that the search warrant was valid, we do not reach the issue of the special judge’s authority to issue a search warrant in a case not pending before him.
Reversed.
Holt, C.J., concurs. | [
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Steele Hays, Justice.
This appeal from a conviction for delivery of controlled substances presents two arguments for reversal: violation of speedy trial and erroneous admission of evidence.
Appellant James Daniel Towe was arrested and charged with delivery of controlled substances in Sebastian County, Arkansas, on January 19,1989, in two cases (CR-89-61 and CR-89-62). This appeal deals only with case No. CR-89-61.
While case No. CR-89-61 was awaiting trial, the state and appellant reached a plea agreement conditioned on the appellant giving a truthful statement to the police in connection with an unsolved murder, and on November 17,1989, appellant entered a plea of guilty. The agreement did not materialize, and on November 20,1989, appellant moved to withdraw the guilty plea, and the state did not object. On December 18, 1989, the trial court granted the motion, and appellant was tried on March 21, 1990, found guilty and sentenced as an habitual offender to forty years in the Arkansas Department of Correction.
Appellant first argues the trial court erred in denying his motion to dismiss on the basis of a speedy trial violation, contending that he was not tried within twelve months as required by A.R.Cr.P. Rule 28.1. However, the state correctly points out that Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), disposes of the argument.
In Kennedy, the petitioner argued speedy trial based on a lapse of twenty-four months, but he had pled guilty and even though the plea was later withdrawn, a plea of guilty waives a number of significant rights, including the right to a speedy trial. Hallv. State, 281 Ark. 282, 663 S.W.2d 926 (1984). We looked to A.R.Cr.P. Rule 28.2(c), which defines when time begins to run in an analogous situation:
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial order granting a new trial or remand.
We then said:
We hold that an order allowing the withdrawal of a plea of guilty as analogous to an order granting a new trial, and the time for a trial begins to run anew after an order is entered allowing the withdrawal of a guilty plea. [Therefore, in that case, only eight months had run.]
Applying of the rule in Kennedy to this case, appellant’s time for trial began anew after his guilty plea was withdrawn so that only four months had elapsed at the time of trial.
Secondly, appellant argues the trial court erred in admitting testimony from a prior trial. In October 1989, appellant was tried and convicted in Crawford County on charges of possession with intent to deliver a controlled substance. At that trial, testimony was given by appellant and by an officer involved in undercover sales. Appellant asserts he elected to testify in that trial because of the officer’s testimony. Towe appealed his Crawford County conviction to the Arkansas Court of Appeals where the case awaits submission. (Towe v. State, No. CACR 90-153). In the trial of the case now before us, in Sebastian County, the state was permitted over appellant’s objections to introduce this testimony from the Crawford County trial.
Appellant maintains it was error to admit certain significant portions of the officer’s testimony on the basis of A.R.E. Rule 403 and 404, dissimilarity of the offenses, and hearsay. Because of these errors, he contends his own testimony in the Crawford County trial court cannot be used in the Sebastian County trial if the Court of Appeals reverses on these evidentiary points. Appellant relies on Harrison v. United States, 392 U.S. 219 (1968), but we do not regard that case as applicable.
In Harrison the introduction of an illegally obtained confession prompted the defendant to testify at trial. On appeal the confession was rejected, but the defendant’s testimony was not. On the second appeal, it was held that the defendant’s testimony from the first trial should not have been admitted in the second trial, not because the defendant’s testimony was the result simply of a trial error, but because it was the result of the illegal confession, and hence, “fruit of the poisonous tree.”
The case at bar is readily distinguishable because the errors were not constitutional in nature, as in Harrison, but were only evidentiary errors. We agree with the analysis of the Court of Appeals in Pool v. State, 29 Ark. App. 234, 780 S.W.2d 350 (1989), where the appellant sought to apply the Harrison rationale to his judicial confession. Pool argued the admission of evidence illegally obtained in violation of the Fourth Amendment was the initial illegality, and his testimony attempting to explain it was “fruit of the poisonous tree.” Assuming the initial illegality arguendo, the Court of Appeals refused to apply Harrison to the facts in Pool. It found the pivotal factor in Harrison was that the evidence impelling the judicial confession was itself a confession and that the Harrison court had “placed great emphasis on the powerful inducement to testify which arises when a defendant’s confession is introduced into evidence.”
In this case we are not dealing in any sense with Fourth Amendment considerations, but simply with conventional evidentiary issues. We conclude, as did the Court of Appeals in Pool, that Harrison is inapplicable to routine evidentiary rulings.
Appellant also argues the admission of this testimony in some manner violates his right against being put twice in jeopardy, prohibited by the Fifth Amendment. It is not clear how appellant’s Fifth Amendment rights were violated, but we decline to address the issue as we can find no objection before the trial court.
The judgment is affirmed.
We dealt separately with case No. CR-89-62 in Towe v. State, 303 Ark. 441, 798 S.W.2d 56 (1990), resulting in the issuance of a writ of prohibition due to the state’s failure to provide a speedy trial.
In Harrison, the question of the illegality of the confession — which was the trigger for excluding the defendant’s testimony — had been decided by the appeals court and the same case was then again being considered by the trial court. Here, there is no decision yet by the Court of Appeals on this matter, nor is it part of the same case. However we need not reach these factors today as the case is distinguishable on other grounds. | [
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J. Feed Jones, Justice.
This appeal questions the jurisdiction of a justice of the peace in the trial of misdemeanors in justice of the peace court in Morgan Township, Lawrence County, Arkansas, and also questions the jurisdiction of the justice of the peace to sit as justice of Mayor’s Court outside of the corporate limits of the town for whose mayor he acts.
Lucian Lee is a justice of the peace of Morgan Township in Lawrence County, and George Glenn is the mayor of the incorporated town of Lynn in said township. Justice of the peace Lee issued a warrant for Thomas D. Watts for reckless driving, a misdemeanor under state law, and fined Watts $50.00 and sentenced him to five days in jail. The jail sentence was suspended. The fine has not been paid and revocation of the suspended sentence is being threatened unless the fine is paid. Mayor Glenn has designated Mr. Lee as justice of the peace to sit in the mayor’s stead as justice of the Mayor’s court under the provisions of Ark. Stat. Ann. § 19-1204 (Eepl. 1956). Thomas D. Watts was arrested by the town marshal of the town of Lynn and charged with a separate misdemeanor under state law but apparently committed inside the corporate limits of the town of Lynn. He was brought before Mr. Lee as justice of the Mayor’s Court for trial at Mr. Lee’s home where he holds justice of the peace court, outside the corporate limits of the town of Lynn hut within Morgan Township.
The record is not entirely clear in this case, but it appears that when the town marshal of Lynn makes an arrest, he takes the defendant before justice of the peace Lee, who holds court as justice of the Mayor’s Court, and when the offense is committed outside the corporate limits of Lynn and the arrest is made by a deputy sheriff, constable, or some other officer, the defendant is taken before Mr. Lee who conducts court as a justice of the peace in the township. The violation of municipal ordinances is not involved here and it would appear that the only real difference in whether Mr. Lee sits as justice of the peace court or Mayor’s Court, has to do with the disposition or division of the fine money between the town of Lynn and Lawrence County. In any event, justice of the peace Lee holds both justice of the peace court and Mayor’s Court at his home outside the corporate limits of the town of Lynn.
William D. Watts, as father and next friend of Thomas D. Watts, filed a petition for prohibition in the Lawrence County Circuit Court prohibiting Mr. Lee from taking further action in the cases against young Watts for lack of jurisdiction in Mr. Lee, either as a justice of the peace of Morgan Township or as justice of the Mayor’s Court, for the reason that there is a duly constituted municipal court of county-wide jurisdiction in Walnut Ridge in Lawrence County. Prohibition was granted by the circuit court and Mr. Lee has appealed designating the following points for reversal:
“The Walnut Ridge Municipal Court never has had any jurisdiction in the former Western District, including Morgan Township.
“There is no Municipal Court in Walnut Ridge.
“Appellant was lawfully designated to act as Justice of the Mayor’s Court of the Town of Lynn.”
We fail to see any connection or conflict between the jurisdiction of the Walnut Ridge Municipal Court and the J. P. Court in Morgan Township or the Mayor’s Court in the town of Lynn. The record does not reveal what township Walnut Ridge is in, but we take judicial notice that it is in Campbell Township and not in Morgan Township. Consequently, the legality of the Walnut Ridge Municipal Court is a side issue not germane to the issues presented on this appeal and we do not pass on that question.
Municipal courts have jurisdiction over misdemeanors committed anywhere in the county, but such jurisdiction is exclusive of justice of the peace courts only in the township where the municipal court sits and not over the entire county.
In the case of Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301, in speaking of the jurisdiction of municipal courts, this court said:
“One of the matters of exclusive jurisdiction over that of Justice of the Peace of the township in which the municipal court is situated is that of misdemeanors committed therein.”
Again in a footnote to Cableton v. State, 243 Ark. 351, 420 S. W. 2d 534, in speaking of justices of the peace, we said:
“All have jurisdiction of misdemeanors except those in townships where Municipal Courts sit. Ark. Stat. Ann. § 22-709 (Repl. 1962) and §§ 43-1405, 43-1408 (Repl. 1964); Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301 (1948).”
Justices of the peace derive their jurisdiction partially from the constitution and partially from legislative enactment. Their original jurisdiction over criminal matters is derived from the Legislature. The Constitu tion of 1836, Article 6, § 15 defined the jurisdiction of justice of the peace and provided:
“Justices of the peace shall in no case have jurisdiction to try and determine any criminal case or penal offense against the State, but may sit as examining courts and commit, discharge or recognize to the court having jurisdiction, for further trial, * * *”
Article 7, § 40 of the present Arkansas State Constitution in setting out, limiting and defining the jurisdiction of the justice of the peace, provides:
“They shall have original jurisdiction in the following matters:
* * * third, such jurisdiction of misdemeanors as is now, or may be, prescribed by law; * * *”
The jurisdiction of municipal courts is provided for in Article 7, § 43 of the Constitution, as follows:
“Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.”
Thus it is seen that justices of the peace are invested with constitutional jurisdiction in certain civil matters and the Legislature is authorized to invest justices of the peace with criminal jurisdiction of misdemeanors. Municipal courts are not vested with constitutional jurisdiction at all, but the Legislature is authorized to invest
municipal courts with jurisdiction concurrent with justices of the peace in civil as well as criminal matters.
Ark. Stat. Ann. § 43-1405 (Repl. 1964), as it relates to jurisdiction over various offenses, provides:
“Fourth. City and police courts shall have exclusive jurisdiction of all prosecutions and actions for infractions of the by-laws or ordinances of the city or town in which they are located; and concurrent jurisdiction with the circuit courts and justices’ courts of prosecutions for misdemeanors committed in the town or city, and also concurrent jurisdiction in the cases provided by the special statutes creating or regulating such courts.
“Fifth. In criminal causes the jurisdiction of justices of the peace shall extend to all matters less than felony for final determination and judgment. Provided, circuit courts shall have jurisdiction concurrent with justices’ courts in all such cases and in all criminal or penal causes except where exclusive jurisdiction is given to city and police courts.”
Ark. Stat. Ann. § 22-701 (Repl. 1962) provides for the establishment of municipal courts in cities of 2,400 or more population. This statute provides as follows:
“All cities having a population of 2,400 or more according to the last official United States census and of cities that may hereafter attain a population á of 2,400 or more, and of counties, judicial districts of counties and townships withm which are situated any of such cities, and county seat towns with population less than 2,400 shall be subject to the provisions of this act; * * *” (Emphasis supplied).
The jurisdiction of municipal courts is set out in Ark. Stat. Ann. § 22-709, the pertinent part, insofar as this case is concerned, being as follows:
“The municipal courts shall have original jurisdiction coextensive with the county wherein the said court is situated over the following matters:
# # #
“Exclusive of justices of the peace in townships subject to this act and concurrent with the circuit court over misdemeanors committed within the county.” (Emphasis supplied).
Thus, in the case at bar, jurisdiction over the misdemeanor alleged against the defendant Watts, was in the justice of the peace of Morgan Township where the misdemeanor was committed and he was charged, and not in the municipal court of Walnut Ridge, which is located in Campbell Township. Had justice of the peace Lee been justice of the peace in Campbell Township where Walnut Ridge is located, or if Walnut Ridge had been located in Morgan Township where Mr. Lee is justice of the peace, then, and only then, would the municipal court of Walnut Ridge have exclusive jurisdiction in this case. Though municipal courts have district and county-wide jurisdiction over misdemeanors, that jurisdiction is only concurrent with that of justices of the peace in all townships in the county except in the township where the municipal court sits, and in that township the jurisdiction of the municipal court is exclusive of the jurisdiction of the justice of the peace in the trial of misdemeanors under the statutory provisions of § 22-709, supra.
By failure to request a change of venue to the nearest municipal court as he might have done under authority of Ark. Stat. Ann. § 22-725 (Repl. 1962), Watts waived any right he might have had to a trial in municipal court and his only remedy was by appeal and not prohibition.
As to the prosecution or trial of appellee by appellant sitting in the mayor’s stead as justice of the May- or’s Court. of the town of Lynn, Ark. Stat. Ann. % 19-1204 (Repl. 1954) provides in part:
‘ ‘ The Mayor of a corporation shall be a conservator of the peace throughout its limits, and shall have within the same all power and jurisdiction of a justice of the peace in all matters, civil or criminal, arising under the laws of the State to all intents and purposes whatever, and for crimes and offenses committed within the limits of the corporation, his jurisdiction shall be coextensive with the county, provided, that any mayor may designate, at such times as he shall choose so to do, any duly elected and qualified justice of the peace in the township to sit in the mayor’s stead as justice of the Mayor’s Court, and all fines and penalties assessed by the said Mayor’s Court in such case shall continue to be paid into the town treasury and the justice sitting in the stead of the Mayor shall charge and collect the same fees as justices of the peace are or may be allowed for similar service; the Mayor shall give bond and security in any amount to be ascertained and approved by the council; and the Mayor shall perform all duties required of him by the laws and ordinances of the corporation, and appeals may be taken in the same manner as from decisions of justices of the peace; he shall keep a docket and shall charge and collect the same fees as justices of the peace are or may be allowed for similar services and in addition therefor for his services as Mayor, the Town Council may by ordinance make proper allowance for and payment of the same. ...”
Ark. Stat. Ann. § 19-1201 (Supp. 1965) requires the mayor to reside within the limits of the corporation.
The territorial jurisdiction of a Mayor’s Court is limited to offenses committed within the limits of the jurisdiction of such courts, as prescribed by the statutes creating or regulating them. Ark. Stat. Ann. § 43-1409 (Repl. 1964). Ark. Stat. Ann. § 19-1204 (Repl. 1956) provides that “the Mayor of a corporation shall be a conservator of the peace throughout its limits, and shall have within the same all power and jurisdiction of a justice of the peace in all matters, civil or criminal, arising under the law of the state, . . . and for crimes and offenses committed within the limits of the corporation his jurisdiction shall he coextensive with the county... (Emphasis supplied). We interpret this statute to mean that the Mayor’s Court can sit only inside the city limits hut has powers of process extending throughout the county.
We find no statutory requirements designating any particular place for holding justice or Mayor’s Court, hut in connection with this point, 21 C. J. S., Courts, § 164 at p. 253-4 states:
‘ ‘ Constitutional and valid statutory provisions designating the place for holding court or terms or sessions thereof will he accorded effect, they being mandatory and exclusive of other places; and where the place is so fixed the court cannot lawfully be held at any other place.
# * *
“Where no place for the holding of a session is prescribed by statute or otherwise, it may he held, at the discretion of the judge or judges authorized to hold it, anywhere within his or their territorial jurisdiction. ’ ’
In 62 C. J. S., Municipal Corporations, § 322 at p. 671, it is stated:
“Since the authority of the municipality and the binding effect of its police regulations are merely coextensive with the city limits, as discussed supra § 141, an action or proceeding instituted for the enforcement or punishment of a violation of cm ordinance must he brought before a properly authorized and constituted tribunal sitting within the territorial limits of the municipality.” (Emphasis supplied).
We conclude from the wording of statutes and authorities, supra, that a mayor, sitting in a Mayor’s Court, must sit inside the city limits, but has powers of process throughout the county. It follows, therefore, that a justice of the peace legally sitting in the mayor’s stead, would have no greater authority or broader venue for holding Mayor’s Court than the mayor himself would have. If the law were otherwise, there would be no reason for the mayor to designate a justice of the peace to hold Mayor’s Court except for infractions of municipal ordinances, since the mayor and the justice of the peace have concurrent jurisdictions over misdemeanors in violation of a state law committed in the town. Both the justice of the peace and the mayor are limited to the territorial boundaries of their jurisdictions in holding their separate courts.
The trial court erred in granting the writ of prohibition as to the judgment of $50.00 fine and suspended jail sentence entered by the justice of the peace of Morgan Township, and in this the circuit court judgment is reversed.
The trial court did not err in prohibiting the justice of the peace from holding justice of the Mayor’s Court of the town of Lynn outside the corporate limits of the town of Lynn, and on this point the judgment of the circuit court is affirmed.
Affirmed in part, reversed in part. | [
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Steele Hays, Justice.
Mitchell Ray Henderson petitioned the Boone Chancery Court to determine that he was the natural father of Cody Charles McCullough, born to Joani McCullough on September 22, 1989. The chancellor held accordingly and ordered visitation, child support, and payment of hospital and medical expenses. Some months later Mitchell Ray Henderson petitioned for a change in the child’s surname from McCullough to Henderson, which Joani McCullough controverted on the premise that it would not be in the best interests of the child. Relying on Ark. Code Ann. § 20-18-401 (1987), the chancellor held he was without discretion in the matter and ordered the name change. Ms. McCullough has appealed. We reverse and remand for a ruling consistent with the best interests of the child.
It appears from the record that at the initial hearing the chancellor indicated a tentative view that the law gave him no latitude, but no definite ruling was made. At a later hearing, some months thereafter, the chancellor announced his ruling:
The Court is sympathetic with the wishes of the mother and for the record I am stating that except for the fact that I think that the law requires me to do so, I probably would not make the name change, but I think under the statute . . . when a Court makes a determination of paternity on the part of the father, the statute says that, or I interpret the statute to say that I shall change the surname to that of the father, the surname of the child, so, I am basing my ruling on that statute and if the Court of Appeals says that is not what it means then that is not what it means .... The statute says shall. When the statute says the Court shall do something the Court has no discretion.
The statute referred to, Ark. Code Ann. § 20-18-401(e) (3) (Supp. 1989), reads:
In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.
While we agree with the chancellor that the word “shall” renders the provision mandatory, we do not read the statute as directing that the surname of the child should necessarily become that of the father. We think the statute merely states that the full name of the father and the surname of the child shall be entered on the birth certificate “in accordance with the finding and order of the court.” Nothing in the language suggests the two must be the same. In some cases the father may not even want the two names to agree. While we can conceive of instances where the child should bear the father’s name, we can conceive of as many others wherein the welfare of the child, particularly one of more advanced years, would not be well served. We believe a rule which makes the result automatic would be neither prudent nor consistent with the established traditions of the law, hence, we are unwilling to adopt a construction of the statute which produces rigidity, where such an interpretation is decidedly less than self-evident.
In Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), we addressed the power of chancery courts to change the names of children in the context of other provisions of our code:
Next, appellant argues that the name change was not in compliance with Ark. Code Ann. § 9-2-101 (1987), the statute setting out the formal procedure for a name change. It is true that the name change was not in compliance with the statute, but it was still a perfectly valid procedure. As we explained in Clinton v. Morrow, 220 Ark. 337, 247 S.W.2d 1015 (1952), and Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), this statute does not repeal the common law power of a chancery court to change a minor’s name when it is in the best interest of the minor to do so. The statute simply affords an additional method of effecting a name change and is supplementary to the common law. Further, this is a matter in which the chancellor has broad discretion. Clinton v. Morrow, supra.
Here, we have no record of factors which inveigh for or against either surname. But we believe that judgment must be the product of the chancellor’s informed discretion, exercised in response to what is deemed to be in the best interests of the child.
Reversed and remanded for further proceedings consistent with this opinion. | [
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David Newbern, Justice.
The appellant, James Dominic Leshe, was charged with two counts of rape, one by deviate sexual act and the other by sexual intercourse, of his 10-year-old stepdaughter. He was acquitted of the sexual intercourse count and convicted of rape by deviate sexual act. He has stated seven points of appeal. Reversible error occurred when a social worker was allowed to give hearsay evidence of the victim’s statement to her. The judgment is reversed, and the case is remanded. We will discuss other points as necessary for guidance in the event of retrial.
1. Sufficiency of the evidence
The state produced sufficient evidence to take the question of Leshe’s guilt to the jury. There was testimony of Ms. Weindorf, an Ashley County social worker, relating a statement of the victim to her that Leshe had engaged the victim in oral intercourse. There was also Ms. Weindorf s testimony and that of Deputy Sheriff Harris that Leshe, when confronted with Ms. Weindorf s statement of what the child had said, made a statement which could have been considered inculpatory. The problems here are with the admissibility of that evidence, but we do not consider trial errors until after we have determined sufficiency of the evidence, including that which perhaps should not have been before the jury. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
2. Hearsay testimony of victim’s statement
The trial occurred on March 21,1990. On the previous day, the prosecution notified Leshe’s counsel that the victim might not be present to testify and thus the state would rely on the testimony of Ms. Weindorf. When the trial began, Leshe’s lawyer moved in limine to disallow Ms. Weindorf s testimony on the ground that it was hearsay. He asserted that the state could not show that the witness was unavailable and claimed that Leshe’s right to confront the witness was at stake.
At a hearing on the motion, Ms. Weindorf stated she knew the victim and her mother had moved from Ashley County, where the offense allegedly occurred, to Desha County, where the victim’s mother had married a man named Streeter, and then to the State of Mississippi. She had this information a month before the trial date. Ms. Campbell, a Desha County social worker to whom the case file had been transferred, testified that she obtained the address of the victim and her mother in Leland, Mississippi, and had a Mississippi social worker check on the family. She said the Mississippi social worker said she went to the address where she found the victim, her mother, and Leshe. Ms. Campbell’s information was, however, that Leshe was living in Greenville, Mississippi. Ms. Campbell notified the prosecutor of the victim’s Mississippi address around February 12, 1990.
The case had been set for trial in mid-February but was continued at the defendant’s request. An employee of the prosecutor testified that in February the victim’s mother called the office to say she wanted to drop the charges. At a hearing in connection with the first trial setting, the prosecution asked the court to require Leshe’s counsel to assure the presence of the victim when the trial was reset. The request was refused.
It was clear that the prosecutor knew more than a month before the second trial date that his witness had moved out of the state and he might have a problem getting her to appear.
A Deputy Circuit Clerk for Ashley County testified that the prosecutor’s office requested that a subpoena for the victim and her mother be mailed to a middle school in Mississippi. It was placed in the U.S. mail, without a request for a receipt upon delivery, on March 16, 1990. The prosecutor stated that the school principal had agreed to deliver the subpoena but it was not received by him. The prosecutor also stated that he knew from talking to Mississippi officials that Leshe was living with the victim and her mother and would show that Leshe’s influence was the reason the victim was not present to testify.
A deputy sheriff from Mississippi testified that he was told by the victim’s mother that Leshe was living with her in Mississippi.
The court found that the victim was living in a household with her mother and Leshe and was thus not in a position to exercise her desire to testify. He also stated the Confrontation Clause was not a problem because the victim had made statements to different persons, and “that to me, constitutes reliability.”
a. Rule 804(b)(5)
i. Unavailability
The argument of the state at the trial and here is that the witness was unavailable and thus Ms. Weindorf s hearsay testimony could be admitted under ARE 804(b)(5) which makes an exception if the declarant is unavailable as a witness and there are circumstantial guarantees of trustworthiness equivalent to those stated for other exceptions.
In Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980), this court stated it was error to permit introduction of testimony from a prior trial because the state had dallied too long in its pursuit of the witness for the second trial to use the uniform act by which witnesses are obtained from other states for criminal trials. Ark. Code Ann. § 16-43-403 (1987). The state’s failure to utilize the uniform act procedure when it could have done so was also held fatal to an attempt to substitute hearsay evidence in Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982).
While a trial court has discretion in determining whether a witness is “unavailable,” that discretion is not unlimited. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In this case no effort whatever was made to serve a subpoena on the state’s key witness at her Mississippi address which was readily available. There was no “good faith effort” of which the Supreme Court wrote in Barber v. Page, 390 U.S. 719 (1968), and of which we wrote in Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970). The trial court erred in finding the victim was unavailable in these circumstances.
if. Reliability
The state argues that the hearsay evidence was admissible under Rule 803(24) if not under Rule 804(b)(5). The former rule is identical to the latter with the exception that the latter contains the unavailability requirement. Both require “equivalent circumstantial guarantees of trustworthiness.”
It was error to conclude that because the child allegedly had made statements about being abused to “others” that the narrative read to the court by Ms. Weindorf was reliable evidence of what the child had said. The court’s remark about the child having made the accusation to others than Ms. Weindorf related to the general reliability of the child. The court’s concern, however, must be with respect to the reliability of the statement reported by Ms. Weindorf. As we pointed out in Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989), the reliability of the declarant is a question for the jury to determine; the reliability of a hearsay report of what the declarant said is to be the focus of the court in determining admissibility.
To perform that task, the court looks to the indicia of reliability found in the first four exceptions to the hearsay rule, Rule 804. While these are not exclusive indicators of the reliability of hearsay evidence, some “circumstantial guarantees of trustworthiness” are required.
The court asked no questions of Ms. Weindorf about the conditions under which the statement was taken or her manner of taking it, but her testimony revealed some of the details. She stated the child did not volunteer information but responded to her questions. Ms. Weindorf did not have the original notes she made of the conversation, but read from a narrative prepared from those notes on the day of the interview. The state points to the use of explicit sexual terminology by the child as evidence that the statement was reliable because the child was likely to have gained that knowledge as a result of being a victim of rape. It is pretty clear, however, that at least some the terminology was that of the interviewer rather than the child. We know the child responded to questions, but we do not know the questions asked or precisely what the responses were.
The testimony of Ms. Weindorf in which she read her narrative of the victim’s statement to her was not admissible under Rule 804(b)(5) because the witness was not “unavailable,” and it was not admissible under Rule 803(24) because there were no “circumstancial guarantees of trustworthiness.”
3. Carnal abuse and rape overlap
a. Dismissal
The trial court correctly overruled Leshe’s motion to dismiss. Leshe contended that his right to equal protection of the laws was violated because the prosecution could have charged him with either carnal abuse or rape because they are the same, and carnal abuse carries a lesser sentence. He recognizes that carnal abuse and rape are both defined as sexual intercourse or deviate sexual activity with a person under the age of 14, but that carnal abuse may be committed only by a person over the age of 18. He contends there is no rational basis for the distinction.
In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), this court recognized the overlapping definitions in the rape statute, Ark. Code Ann. § 5-14-103(a) (3) (1987), and the statute defining first degree carnal abuse. Ark. Code Ann. §4-14-104 (1987). The United States Constitution is not violated by such overlapping provisions unless it would constitute discrimination against a class of persons. See United States v. Batchelder, 442 U. S. 114 (1979). Leshe contends the statutes in question here discriminate against juveniles who may be charged with rape but not with carnal abuse. He does not, however, contend that he falls within that class and stipulated he was over 18. As he is not a member of the class he claims is affected, he has no standing to complain. Thompson v. Ark. Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984).
b. Lesser included offense instruction
The trial court correctly refused to give an instruction on carnal abuse as a lesser included offense. That was the issue we decided in the Sullivan case. Leshe argues that even if we find no constitutional infirmity resulting from the overlapping statutes, we must hold carnal abuse to be a lesser offense included in rape because the statute defines a lesser included offense as one which differs from the offense charged “only in the respect that a less serious injury or risk of injury to the same person . . . suffices to establish the commission.” Ark. Code Ann. § 5-1-110(b)(2) (1987). The argument is that the general assembly must have thought carnal abuse poses a less serious threat to the victim because they gave it a lesser sentence range.
We cannot agree with such an argument. The only difference between the two definitions, one of rape and one of carnal abuse, is the requirement that the perpetrator be over 18 to commit carnal abuse. That has nothing to do with the risk to the victim. The other elements are the same. As can be determined from our explanation in the Sullivan case, the anomaly created by the two statutes came about as a result of the process of amending the carnal abuse law apparently without consideration of the rape statute. We cannot think that the general assembly intended the difference at all, much less that it thought the same act might result in a greater risk of harm to a victim because it was given a different name or might be committed by an older person.
4. Instruction on corroboration of confession
“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Ark. Code Ann. § 16-89-111 (d) (1987).
Ms. Weindorf testified that when Leshe was confronted with her revelation of what the victim had told her he stated “he guessed he was sicker than he thought he was.” Counsel for Leshe asked that the jury be instructed as follows:
You are instructed that a conviction may not be sustained on the evidence of a confession alone but that evidence corroborating each element of the offense is required in addition to any evidence of a confession. It is for you to determine whether or not there exists sufficient evidence of corroboration.
We disagree with the state’s contention that the court properly refused this instruction on the ground that it did not contain a reference to a confession “made in open court.” There was no open court confession here, and to have included those words just because they are in the statute would have been surplusage. The proposed instruction was relevant. We agree with Leshe’s contention that, despite the fact that no such instruction appears in the Arkansas Model Criminal Instructions approved by this court, it should have been given if it correctly instructed the jury on the law contained in the statute. We find no error, however, in the trial court’s refusal to give the instruction proffered.
The statute only requires proof that the offense was committed by someone in order to corroborate a confession. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). By stating that “evidence corroborating each element of the offense is required,” the instruction might have been taken by the jury to mean that there must be proof that Leshe committed each element of the offense to corroborate the confession. If a proper instruction on corroboration of a confession had been proffered, simply requiring the jury to find that the offense had been “committed,” it would have been error to refuse it. Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914).
5. Confession suppression
The inculpatory statement alluded to above was allegedly made in the presence of Deputy Sheriff Harris as well as Ms. Weindorf. Harris testified that he had read to Leshe a standard rights form, and Leshe had placed his initials beside each rights statement on the form and signed his name at the bottom. Like the form we criticised in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the one used here contained no express waiver provision. Leshe moved to suppress on the ground that he had not waived his rights.
In North Carolina v. Butler, 441 U.S. 469, 471 U.S. 369 (1979), the Supreme Court stated that the mere fact that a confession is eventually obtained from an incarcerated person does not conclusively show that he waived his right not to make it. The test remains, however, whether the evidence showed waiver under the totality of the circumstances, and we do not reverse unless the trial court’s conclusion is clearly against the preponderance of the evidence. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989).
The circumstances here suggest that the statement was made very shortly after Leshe was informed of his rights. Ms. Weindorf testified that Leshe was sober. There was no evidence of any sort of duress. We cannot say the trial court was wrong to refuse to suppress the statement.
Reversed and remanded.
Brown, J., concurs. | [
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Jack Holt, Jr., Chief Justice.
This appeal comes from an order of the Probate Court of Jefferson County, admitting to probate the will of Ms. Nell N. Willey upon the petition of appellees, National Bank of Commerce and William Edward Pratt. The will is being contested by appellants, Raymond Dykes Clark and Florence Elizabeth Sherman, Ms. Willey’s nephew and niece.
The appellants contend that the will should be invalidated and that the estate should pass through intestate succession as the trial court erred in finding (1) that certain language written beneath the attestation clause was not dispositive in nature and that the will was thus signed at the end, as required by Ark. Code Ann. § 28-25-103(b)(5) (1987), and (2) the will admitted tó probate was the last will of the testatrix. We find no error and affirm.
On approximately June 14, 1988, Iris Rushing, a trust operations officer employed by the National Bank of Commerce of Pine Bluff, Arkansas, was summoned by Ms. Willey to her condominium in order to discuss Ms. Willey’s wishes for drafting her last will and testament. Ms. Rushing was to relay these wishes to Ms. Willey’s attorney, Louis Ramsay. Mr. Ramsay then drafted a will from Ms. Rushing’s notes of the meeting and from a telephone conference he had with Ms. Willey, Mr. Ramsay gave two identical copies of the proposed will to Ms. Rushing to deliver to Ms. Willey, along with a memorandum indicating that the will was a “rough draft” and suggesting that Ms. Willey make any changes or clarifications she felt necessary for a final draft.
On Friday, June 17,1988, Ms. Rushing took the documents to Ms. Willey’s home where she was joined by Marilyn Ilg, a friend of Ms> Willey’s. Ms. Willey indicated that she wished to make some additions to the will and, at Ms. Willey’s direction and in the presence of Marilyn Ilg, Ms. Rushing made handwritten additions to one of the two copies, which is now considered to be the will in probate. The only addition now being challenged on appeal appears below Ms. Willey’s signature and the attestation clause to the will. Ms. Rushing testified that she wrote the clause there in order to have more room to write and that it was added before the will was executed. The clause reads as follows:
I designate my cousins Linda Pratt and Nancy Harkness to dispense with my personal things such as and including furnishings, bric-a-brac, silver, china, crystal and objects of art after bequests and their choices have been made.
Ms. Willey signed both copies which were witnessed and attested to by Ms. Rushing and Ms. Ilg. On Monday, June 20, 1988, Ms. Rushing delivered both documents to Mr. Ramsay with directions to make the additions. Before Mr. Ramsay was able to accomplish a new writing of the will, Ms. Willey died.
The will containing Ms. Willey’s additions was offered and admitted to probate, with the exception that the provision written below her signature would be disregarded and stricken, along with a handwritten bequest not at issue on this appeal. From this ruling, appellants take exception.
While we review probate cases de novo on appeal, we will not reverse the findings of the probate judge unless such findings are clearly erroneous. Magnum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).
The appellants first claim that the language we quote, written beneath the signatures of the testatrix and the attesting witnesses, was dispositive in nature and that Ms. Willey “clearly intended to make specific bequests to Linda Pratt and Nancy Harkness . . . while empowering them to distribute any items they did not want.. . .” This being so, appellants claim the will is not signed at “the end” and thus violates Ark. Code Ann. § 28-25-103(b)(5) (1987) which, in turn, invalidates the will. This section provides as follows:
(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
* * * *
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
We have held, and it appears to be the general rule, that non-testamentary, no«dispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. See Owens v. Douglas, 121 Ark. 448, 181 S.W. 896 (1915); Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922); Weems, Adm’r v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951); 94 C.J.S. Wills, 177(3)(c) (1957).
In Owens v. Douglas, supra, we disagreed with the appellants’ contention that the will was not signed at the end because the signature did not directly follow the testamentary or dispositive clauses, but was placed at the very end of the document. We stated that “[t]here were no testamentary clauses following the signature of the testator, and it is certain that it was his intention, by his signature, to authenticate and make his own the testamentary clauses that preceded it.” 121 Ark. at 452, 181 S.W. at 899.
Likewise, in Musgrove v. Holt, supra, involving a holographic will, this court noted that there was “no testamentary disposition after the signature of Mrs. Porter” (the testatrix) and refused to invalidate the will on the basis of the appellants’ contentions that there were blank spaces between paragraphs and that the signature did not follow immediately after the dispositive clauses.
We stated in Weems, Adm’r v. Smith, supra, again involving a holographic will, that “the purpose of the statute in requiring wills to be signed at the end is to prevent fraud” and that where no fraud was indicated, the will would not be invalidated. In Weems, the last three words (“everything in it”) of a sentence beginning above the signature were written below the signature, in addition to the words, “Dear Sallie you was so sweet and good to me.” We held that the words appearing below the signature were clearly intended to complete the sentence above, and that since the writing was not dispositive, it would not affect the will one way or another.
Similarly, we agree with the trial court, here, that the language was nondispositive and there was, therefore, no violation of section 28-25-103(b)(5). The decedent instructed Linda Pratt and Nancy Harkness to “dispense” with the personal property described. This language indicates that the decedent had in mind the administration of her property, rather than the wish to make a bequest.
At most, because the clause tells Linda Pratt and Nancy Harkness to dispense with the items “after bequests and their choices have been made”, (emphasis added), the paragraph could be labeled partially ambiguous. “Their” could refer to Ms. Pratt and Ms. Harkness or “their” could refer to the legatees. However, when a will is subject to a two-fold construction, it is the duty of the court to consider the will as a whole and to reach the real purpose and intention of the testator. Angel v. Angel, 280 Ark. 21, 655 S.W.2d 373 (1983). Also, as stated in Carroll v. Robinson, Ex’r, 248 Ark. 904, 454 S.W.2d 329 (1970), when the expression a testator uses is really ambiguous and is fairly capable of two [2] constructions, only one of which would produce a legal result, it is a fair presumption that the testator meant to create a legal, rather than an illegal, interest.
Oral testimony is admissible for the purpose of showing the meaning of words when they are ambiguous (see Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977)), and the testimony at trial supports our interpretation that the clause was not dispositive.
Marilyn Ilg testified that Ms. Willey added the language in question because “she was very concerned about people going through her belongings, and she wanted to be sure it wouldn’t be like an open estate sale where just strangers would be going through her things.”
Louis Ramsay testified that he considered the language to be surplusage since most of the decedent’s property would be disposed of by bequests and that the disposition of the items in question “could be done by the executrix, but if they had wanted it in there, if she’s insisted, the next time I would have put it in.. . .”
Furthermore, as Mr. Ramsay testified, it appears that no estate assets would have remained to be dispensed with or divided since the will contained a residuary bequest section, followed by a contingent residuary bequest to the Salvation Army.
We have stated that the paramount principle in the interpretation of wills is that the intention of the testator will govern. Motes/Henes Trust v. Motes, 297 Ark. 380, 761 S.W.2d 938 (1988). Also, in the absence of fraud or deception in the execution of a will, we will avoid strict technical construction of statutory requirements in order to give effect to the testator’s mshes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985). See also Hanel v. Springle, Adm’r, 237 Ark. 356, 372 S.W.2d 822 (1963).
Under the circumstances, we hold that the language of the disputed provision, in addition to evidence presented at trial, reflects that the addition was not dispositive but, rather, administrative in nature. To require strict compliance with the statute would, in this instance, defeat Ms. Willey’s will and her apparent intentions with regard to the disposition of her property.
As a final point, appellants contend that the proof at trial failed to establish which copy of the will was last executed by Ms. Willey and, thus, the requirements for the admission of a will to probate under Ark. Code Ann. § 28-40-119(a) (1987) were not met.
Section 28-40-119(a) requires, among other things, that the court find that the instrument is the testator’s last will. Appellants further argue that since the order of execution cannot be determined, neither will can be probated and that each will revokes the other.
The short answer to these arguments is that the evidence presented at trial sufficiently established that the document containing Ms. Rushing’s interlineations was the last will executed and, as such, is Ms. Willey’s last will and testament.
Mr. Ramsay testified, several times, that he understood, from Ms. Rushing, that the will with the interlineations was the second and last will signed. Mr. Ramsay explainéd to the trial court, “we checked that a couple of times because that was essential to the research that we were doing about the will that would be probated. My clear understanding was that that was the second will executed; and the first will, the one that does not have the interlineations, was the first will. . . .” Mr. Ramsay stated that both he and his law partner, Dan Harrelson, checked the sequence of execution with Ms. Rushing when she delivered the will to their office.
The appellants make much of the fact that Ms. Rushing testified that she could not recall exactly which document was signed first. They claim that Mr. Ramsay’s testimony depended entirely on the credibility of Ms. Rushing, who was too unreliable. Although Ms. Rushing could not recall the order in which Ms. Willey signed the documents, she testified, “As I said before, it was her intention that the one I had written on would be her last will and testament.”
As we stated earlier, the purpose of the law relative to the execution of wills is, and should be, to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, Adm’r, supra. We cannot say that the trial court was clearly erroneous in holding that the will was valid or in finding that Ms. Willey intended to bequeath her property by a will instrument which contained additions and interlineations she dictated to Ms. Rushing, and which was executed by the testatrix after those additions and interlineations were made.
Lastly, pending before us is the appellees’ motion to strike certain transcript excerpts from the appellants’ reply brief. These portions of the record were not initially abstracted and since an initial abstracting deficiency cannot be cured in the reply brief, the motion is granted and the reply brief is disregarded in this appeal. See Weston v. Ponder, 263 Ark. 370, 565 S.W.2d 31 (1978).
The holding of the trial court is affirmed. | [
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Donald L. Corbin, Justice.
The Arkansas Department of Human Services (hereinafter referred to as DHS) appeals from a May 1, 1990, Order of the Juvenile Division of the Pulaski County Chancery Court. The May 1 Order directed DHS to take various actions with respect to appellees Dierdre Clark and her two sons. DHS asserts two points of error in the May 1 Order. As we are not persuaded that the juvenile court erred, we affirm.
. The juvenile court took jurisdiction of this case on December 16, 1988, when Dierdre Clark contacted Pulaski County Children and Family Services, a division of DHS, and stated she wanted to place her two children, Jonathan and Joseph, for adoption. At that time Joseph was one month short of his sixth birthday and Jonathan was two weeks away from his third. In an emergency order entered December 16,1988, the court found the boys to be dependent children and removed them from the custody of their mother. The boys were placed in foster care and remained there for the next thirteen months. Subsequent to the December 16 hearing Ms. Clark contacted DHS staff and stated that she changed her mind and wished to work toward stabilizing her life circumstances so as to resume custody of the boys. During the period the boys were in foster care they both attended counseling sessions at the University of Arkansas Medical Center and Ms. Clark received counseling from a certified social worker at the Community Mental Health Center. Ms. Clark was diagnosed as having dysthymia, a chronic mental illness for which the medication Prozac was prescribed.
At a January 11, 1990, hearing Carol Balmaz, the assigned caseworker from Pulaski County Children and Family Services, submitted a report in which she recommended the children be returned to the custody of their mother. The children were returned by an order of the court filed that same day. An order entered February 20, 1990, included the findings and orders of the January 11 hearing. This order directed that a program of counseling be initiated for the children and their mother through Centers for Youth and Families, Elizabeth Mitchell Children’s Center; that Ms. Clark maintain both her prescribed medication therapy and her contact with her community mental health case manager; that DHS staff calculate Ms. Clark’s total present economic need under existing agency policy; and that DHS maintain a services case with the family and provide transportation assistance to the family to facilitate the children’s counseling. The order continued jurisdiction of the cause and scheduled further review for April 5, 1990.
Following a hearing held April 5, the court entered the Order of May 1,1990, from which this appeal is taken. In this order the court left custody of the two juveniles with their mother; noted that although DHS provided reasonable services, the majority of the casework services were provided by the community mental health therapist rather than the assigned caseworker from the division of Children and Family Services; directed DHS to pay for medication which was prescribed for the mother but not included on the Medicaid listings for reimbursement; directed DHS to provide transportation in the form of bus tokens or bus credits each month for each individual family member; directed DHS to transport the mother to community agencies or individuals that provide food; found that continued financial problems existed for the family; ordered DHS to provide the remainder of the full entitlement of preventive funds to the mother; and continued jurisdiction of the cause.
Appellant raises the following points for reversal: 1) the court erred when it specifically found that DHS did not provide transportation as ordered by the court in the previous court order and determined that DHS did not provide reasonable efforts at services; and 2) the court erred when it ordered DHS to make cash disbursements in violation of administrative agency policy and in excess of allocated funding.
In support of its first point appellant argues that the court’s finding regarding transportation and reasonable efforts is a factual finding that is not supported by the evidence. This argument is premised on a finding that simply does not exist. That portion of the order to which appellant refers is as follows:
5. The Court notes from the outset that the Department of Human Services have [sic] provided reasonable services in that the Community Mental Health Therapist, Lynn Pierce, has provided counseling and therapy to the mother, rehabilitation referral, application for SSI benefits, referral for parenting classes, and has transported the mother for purposes of obtaining food, appointments and other necessities. However, the Court further notes that the Department of Human Services did not provide reasonable efforts at services in that the majority of the case work services were provided by Ms. Pierce, rather than the assigned caseworker in this matter, who made referrals for financial services and parenting classes only.
In this finding the juvenile judge merely states that the services were provided by the community mental health therapist rather than the assigned caseworker from Children and Family Services. Both the therapist and the caseworker are employees of divisions of DHS, therefore, a finding that DHS did not provide reasonable efforts or transportation simply was not made. Because there is no such finding, DHS presents no justiciable issue in its first point.
In support of its second point, DHS contends that the May 1, 1990, Order compels it to disburse cash funds from the Income Assistance Program in violation of at least two of its criteria governing disbursement of funds. Appellant also asserts that what effectively has occurred during the course of proceedings conducted pursuant to provisions of the Arkansas Juvenile Code of 1989 is a separate judicial review of an administrative agency where no independent judicial action or review may lie. We disagree.
Following the passage of Amendment 67 to the Arkansas Constitution, the 77th General Assembly in Act 294 of 1989 defined jurisdiction of matters relating to juveniles and conferred such jurisdiction upon a newly created juvenile division of chancery court. DHS, the administrative agency primarily responsible for dealing with children and families, was also created by an act of the General Assembly. There is no clear delineation of the relationship of these two creatures of statute.
The jurisdictions of the juvenile court and DHS overlap in numerous and varied areas. One such area involves family services, which is defined in the Juvenile Code at Ark. Code Ann. § 9-27-303(17) (Supp. 1989) as:
“Family services” means relevant services, including, but not limited to: child care; homemaker services; crisis counseling; cash assistance; transportation; family therapy; physical, psychiatric, or psychological evaluation; counseling; or treatment, provided to a juvenile or his family. Family services are provided in order to:
(A) Prevent a juvenile from being removed from a parent,. . .[.]
Ark. Code Ann. § 9-27-328(a) (Supp. 1989) provides the juvenile court is to order family services to avoid the necessity of removing a juvenile from his home. The Juvenile Code refers to DHS as the administrative agency responsible for providing family services. While DHS promulgates and implements its policies and rules pursuant to the Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -214 (1987 and Supp. 1989), as it states in its brief, the “ [w]ritten criteria have been developed to aid casework staff in requesting income assistance as a preventive service or a reunification service.” The need for such criteria is obvious for use within the department. However, no where in the Juvenile Code is there a provision that even arguably requires the juvenile court to fashion its orders within the policy guidelines of DHS.
The services ordered by the court of which DHS complains, those pertaining to transportation and financial assis tance, are among those included in the definition of family services. Clearly the court’s action here is that which it is permitted to take pursuant to Ark. Code Ann. § 9-27-328(a). Furthermore, we note that the court did not order DHS to disburse a greater amount in funds than the maximum allowable under its policies. We also note that DHS neither claimed that funds were not available, nor offered evidence of such.
As to the contention of DHS that the Juvenile Code in essence establishes a judicial review of an administrative agency where no review lies, we cannot agree. The Juvenile Code sets out affirmative requirements designed to achieve the purposes stated at Ark. Code Ann. § 9-27-302 (1989). Among the requirements imposed on the juvenile court are those to consider what efforts have been made, to determine if those efforts have been sufficient, and to make prospective orders based on its determinations.
Finally, we address appellant’s challenge to the sufficiency of the evidence. Although we review chancery cases de novo, we do not reverse unless the chancellor’s findings are clearly against the preponderance of the evidence. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1990); Ark. R. Civ. P. 52.
DHS presented the following evidence at the April 5,1990, hearing. Carol Balmaz, the assigned caseworker, testified that two months prior to that date she prepared the court report which was submitted for consideration at this hearing and included in it her recommendations (among those recommendations was one that the juvenile court terminate jurisdiction). She stated that DHS had done everything it could in the way of financial assistance, but that she thought she could provide transportation. Ms. Balmaz continued by saying that she had not talked with Ms. Clark in “maybe three weeks or a month and we have not been — she has not requested transportation.” Ms. Balmaz also said that since January Ms. Clark had not requested transportation and that, although she should have been, she was not aware that a need existed.
Ms. Clark also testified at the April 5 hearing. Concerning transportation she stated that there were times when she and her children rode the bus five to seven times a day. She said she rode it four times a day to take her son back and forth to school. As for her financial situation, Ms. Clark stated that she was behind on her rent and was running out of food again. This testimony was not disputed by DHS. In fact, the caseworker, Ms. Balmaz, testified that she did not know what Ms. Clark’s situation was regarding rent and food.
Clearly there is evidence in the record supporting the orders of the juvenile judge concerning the family’s needs. We, therefore, cannot say that the juvenile judge was clearly erroneous.
Affirmed.
Glaze, J., concurs. | [
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Paul Ward, Justice.
Appellant (L. L. Jones) filed a complaint in circuit court against appellees (Fayburn Ferguson and Pat Sherland) to recover damages to his truck, allegedly caused by a fire negligently started by appellees. Appellees answered denying negligence and, by cross-complaint, asked for damages to wheat loaded in the truck.
A jury having been waived, the case was tried by the Judge who refused to find negligence on the part of appellees’ negligence in starting the fire. We do not prosecute bis appeal. Appellees did not perfect an appeal.
Summary of Facts. Ferguson was engaged in raising and harvesting wheat, and was assisted by Shetland. He had an agreement with appellant whereby appellant was to furnish him a truck and tractor to haul the harvested wheat from his farm to the Pioneer Grain Corporation. Pursuant to this agreement appellant was to place the truck on the wheat field to be loaded with wheat and then driven (by his employee) to its destination.
On June 11, 1966, the'truck was placed on the. wheat field about ten a.m. and later filled with wheat. Early that afternoon appellees started a fire to burn off the wheat field, preparatory to planting soybeans. As a result the truck was damaged by the fire.
On appeal it is urged that the trial court erred in failing to find the damage to the truck was caused by appellees’ negligence in starting the fire. We do not agree.
The question of negligence is one of fact to be decided by a jury. In this case the Judge sat as a jury and his findings have the same force and effect of a jury verdict on appeal. Newbern v. Morris, 233 Ark. 938, 349 S. W. 2d 662.
In the case of Valley Lumber Company v. Westmoreland Brothers, 159 Ark. 484, 252 S. W. 609, this Court said:
‘ ‘ The general rule in this country, as well as in England, ■ now is that, in the absence of a statute, a private owner of property on whose premises a fire is accidentally started, or who sets out fire on his premises for a lawful purpose, is not liable for the damages caused thereby to the property of another, unless the fire was started, or allowed to spread, through negligence.”
It is not contended here that any statute is involved or Ferguson did not have a right to start the fire for the purpose stated. The decisive issue here, therefore, is whether Ferguson (or his agent) was negligent in allowing the fire to spread to and damage appellant’s truck. The undisputed evidence in this case, as revealed by the record, is presently summarized.
The truck was parked on the north side of the wheat field on fresh plowed ground and there was a breeze from north to south. Appellees disked the ground around the truck for a width of something like forty feet. Ferguson stated: “There wasn’t much wind blowing at the time but it was out of the north and at times a little gusty. I do not know how it caught fire unless it was a spark from the burning wheat field.” The field was burned off after the wheat was completely combined for the purpose of planting soy beans and, according to the testimony, the time was getting short for this purpose. When smoke was seen coming from the truck Ferguson, who was in the field, “ran to a ditch and got a bucket of water and was pouring water on tires and wheels on the right side. The fire spread to the other wheels and bed. We could not put out the fire”.
AMI 303 defines “ordinary care” as the “care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case”.
Thus, the question presented to the trial Judge (sitting as a jury) was: Did appellees use ordinary care under the circumstances in this case? The Judge found in the affirmative, and we are unable to say, as a matter of law, that he erred in so finding.
Affirmed.
Haréis, C. J. and JoNes, J., dissent. | [
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Paul Ward, Justice.
This litigation grew out of two written lease agreements (covering a period of fourteen years) wherein the (alleged) owners gave W. R. Britt (appellee) the right to use a total of 445 acres of land for farm and ranch purposes. Since the leases and the ensuing legal proceedings are somewhat lengthy and complicated, we summarize .below, for a better understanding of the issues involved, the pertinent and undisputed facts.
(a) The first lease, dated January 6, 1956, was from Julius N. DeLaughter and his wife Lois DeLaughter (appellants) as lessors to appellee as lessee. In paragraph 10 of the lease appellants warranted that they were the absolute owners of all the 445 acres of land and that they would hold appellee harmless ‘ ‘ against the unlawful claims of any and all persons ’ ’. (b) Later, during this litigation, it was revealed that appellants had title to only thirty acres and that the remaining 415 was owned by their minor son Julius N. Jr. who is an In-tervenor herein. By the terms of the first lease it was to terminate on December 31, 1960 but it continued, by oral agreement, until a second lease was executed on April 14, 1964. (c) The second lease was executed by the same parties as the first and contained the same warranty of title, and, with few minor exceptions, the terms of the two leases were the same.
Pleadings and Issue. We deem it sufficient at this point to summarize the twelve separate pleadings filed in the Chancery Court, following an alleged breach of the lease by appellee, (a) On December 18, 1965 appellants asked the conrt to enjoin appellee from interfering with their sale oh gravel located on the land. On January 18, 1966 they amended the pleading, and asked the court to cancel the second lease and give them possession of the property, (b) Appellant answered, denying any breach of the lease contract, asked for peaceful possession of the land, and asked that appellants be enjoined from selling gravel during the term of the lease. Then each party filed another amended pleading relative to the same issues, (c) On February 2, 1966 the minor (by his mother as next of kin) filed an Intervention, alleging that he was sixteen years old, and that he was the owner of all the land except thirty acres belonging to his parents — appellants. His prayer was that the lease be cancelled, that he be given immediate possession, and that he recover from appellee the rental value of his 415 acres of land, (d) In his answer ap-pellee denied Interpleader was the owner of the land. Appellee also filed an amendment to his original answer and a cross-complaint against appellants setting out the warranty clause and alleging payments of rent to them, and asked the court, in event it was decided Intervenor Avas the true owner, that he recover against appellants $1,500 for rents paid and $5,000 for damages suffered for breach of warranty in the leases.
Decree. After a lengthy hearing (during which time the trial court made a personal inspection of the premises) and after the court had made detailed findings of facts, it entered, in substance, the folloAving decree :
(a) Appellee is not to interfere with appellants’ removal of gravel from the thirty acre tract, but they shall not damage the portion maintained by appellee as a meadow.
(b) Intervenor is awarded judgment against ap-pellee in the sum of $6,150 with interest at 6 %from date of decree.
(c) Appellee is awarded judgment against appellants in the sum of $6,150 BUT ONLY after he has fully satisfied the judgment in favor of Intervenor —then the judgment in favor of appellee to bear 6% interest.
Appellants and Intervenor now prosecute this appeal, urging the points hereafter considered.
One. Intervenor urges that the court failed to allow interest on his judgment from January 1, 1956— the date when he was first deprived of the use of his land. For reasons presently stated, we are unable to grant any relief under this point.
The record discloses that on the margin of Intervenor’s recorded judgment there appears this notation: “Judgment in favor of Intervenor, Julius N., DeLaughter, Jr., in the sum of $6,150 paid and satisfied in full this 23rd day of August, 1966. R. D. Rouse, attorney of record for Intervenor. ’ ’ Thus, the Intervenor has already accepted the benefits of the decree and therefore cannot question its validity on appeal. It was so held in Ark. State Highway Comm. v. Marlar, 236 Ark. 385, 366 S. W. 2d 191; Baker v. Adams, 198 Ark. 482, 129 S. W. 2d 597, and; Jones et al v. Rogers, Trustee, et al, 222 Ark. 523, 261 S. W. 2d 649.
Two. We find no merit in appellants’ contention that appellee’s “pleadings do not justify the judgment rendered in his favor against appellants”. As pointed out heretofore, in appellee ?s amended answer [page 26 of the Record], he alleged damages in the amount of $6,500, and prayed judgment against appellants for said amount. Also, if the pleadings were not explicit the trial court had the right, without objection, to treat the pleadings as amended to conform to the proof. Callahan v. Farm Equipment, Inc., 225 Ark. 547, 283 S. W. 2d 692.
Three. Likewise we find no merit in appellants’ argument that appellee was not entitled to damages against them because they and appellee were Pari Delicto, [equally at fault] in dealing with lands which belonged to Intervenor. Conceding for the sake of argument that appellee knew when the leases were signed that most of the land belonged to appellants’ minor son [a fact not clearly shown by the Record], we cannot disregard the fact that paragraph ten of the first lease and paragraph eleven of the second lease contain identical language which reads:
“Lessors warrant that, they have an absolute and indefeasible title to said lands and warrant that they will, during the term hereof, defend the title to said lands and hold harmless said Lessee against the lawful claims of <my and all persons or parties Whomsoever or whatsoever.” [Emphasis added.']
Four. Finally it is contended by appellants that the trial court erred in finding the fair rental value of the thirty acres was $30 per year.
This is a fact question to be decided by the weight of the evidence disclosed by the record. We have read the record relating to this issue and are unwilling to say the finding of the trial court is against the weight of the evidence. We find no convincing testimony as to the rental value, however the value fixed is comparable to the value placed on all the land by the terms of the lease — $500 a year for 445 a'cres. We also take note that the trial court, before fixing this value, made a careful, personal inspection of the lands.
Affirmed.
Smith, Brown & Fogleman, JJ., dissent. | [
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George Rose Smith, Justice.
On February 25, 1964, tlie parties to this suit executed a written contract under which Phillips was to grow broilers for the Co-op during the remainder of the calendar year 1964. Phillips brought this action upon the theory that the Co-op had violated the contract by failing to supply him with a batch of 40,000 baby chicks in early October. Phillips asserted that he was unable to obtain chicks elsewhere until December, so that he lost the profits he would have made upon one batch of chickens. Other facts are stated m our opinion on the first appeal and need not be repeated here. Farmers Cooperative Assn. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939 (1966). The second, trial resulted in a verdict and judgment for Phillips in the sum of $1,442.80.
For reversal the Co-op first argues that it was entitled to a directed verdict, on the twofold ground that there was no substantial evidence that it had breached the contract and that Phillips failed to adduce competent proof of the amount of his damages.
There are two answers to this contention. First, our prior opinion became the law of the case and is controlling upon this appeal even though we should now think it to have been erroneous (which we do not imply). United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1259 (1917). In that opinion we held that the complaint stated a cause of action, which necessarily means that the Co-op was under an implied obligation to furnish chicks in October. Hence the jury could find that its failure to do so was a breach of the agreement. On the matter of damages, Phillips testified that he would have received about $1,- 800 for the missing batch of chickens and that his only expense would have been a monthly electric bill of from $25 to $30. That detailing of his expenses supplies the proof that was absent on the first appeal. Upon the issue of Phillips’ duty to mitigate his damages we need only point out that the burden Of proof was upon the Co-op, whose evidence at most raised a jury question about Phillips’s ability to obtain chicks elsewhere. Williams v. Hildebrand, 220 Ark. 202, 247 S. W. 2d 356 (1952).
Secondly, the Co-op moved for a directed verdict at the close of the plaintiff’s case, but it did not renew the motion when it completed its own proof. In that situation the asserted error was waived. Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306 (1963).
Next, it is argued that the court should have allowed the Co-op to prove that under the custom prevailing in the trade a grower such as Phillips was not bound by a contract like the one in issue. That proof was rightly excluded. A custom may be shown to explain an ambiguity, but it cannot be invoked to defeat the express terms of the contract. Batton v. Jones, 167 Ark. 478, 268 S. W. 857 (1925). Obviously a party to what appears to be a binding contract cannot be permitted to show that by custom other parties to similar contracts have considered them to be of no binding force.
Much the same reasoning applies to the Co-op’s final contention, that the court erred in refusing its offer to prove that it was not uncommon for a supplier of baby chicks to go for as much as twelve weeks without being able to furnish chicks to its growers. That testimony was not relevant. By the law of the case the Co-op was bound to supply Phillips with baby chicks. Proof that other suppliers had at times been unable to perform their contracts would not justify the jury in concluding that in this case the Co-op should be excused from doing what it had agreed to do, to Phillips’s damage.
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Lyle BrowN, Justice.
Carl Widmer brings this appeal from a judgment on a credit card account. The case originated in the Fort Smith Municipal Court. Widmer appealed from judgment there and the circuit court tried the case on stipulated facts. On appeal here Widmer contends (1) that service had upon him was void on its face, and (2) that there was accord and satisfaction.
1. Widmer’s motion to quash service. His right to raise that point here has been waived. Widmer waived a jury, stipulated the facts based on the disagreement over accord and satisfaction, and asked the court to “render a decision without trial or further hearings.” At no stage of the proceedings did he ask the circuit court to rule on his contention that the service of summons was void. He failed to insist on a ruling, he filed answer, and consented to a trial on the merits. By those actions he waived the motion. Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932 (1933); Hill v. McClintock, 175 Ark. 1059, 1 S. W. 2d 564 (1928). Also see 60 CJS Motions, § 42. In the stipulation Widmer “reserves all of his rights and privileges and reasserts that he has never been legally summoned herein.” Evidently the quoted insertion was thought to vest in Widmer the right to raise the question on appeal here. Irrespective of that reservation, he did not ask the trial court to rule on the point before submitting the case on the merits.
2. Appellant’s plea of accord and satisfaction. Price Oil Company alleged Widmer owed a stated amount on account and sued him on November 23, 1966. One week after service of summons, Widmer sent Price a check for approximately one-fifth of the alleged acr count. The notation, “full payment of all accounts to date,” was written on. the face of the check. No controversy between the parties preceded the mailing of the check. Price did not cash the check, nor was it returned to Widmer. However, Price’s course of action conclusively shows that it had no intention of accepting the check as payment. The parties have regularly met in court on the issue of the debt since December 12; that was only 12 days after Widmer mailed the check.
In accord and satisfaction there must be a disputed amount involved and a consent to accept less than the claimed amount in settlement of the whole. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881 (1956); McMillan, Adm’r. v. Palmer, 198 Ark. 805, 131 S. W. 2d 943 (1939); Reynolds v. Reynolds, 55 Ark. 369, 18 S. W. 377 (1892).
In Nordlinger v. Libow, 240 N.Y.S. 193 (1930), the creditor actually cashed a check marked “full settlement of any and all claims.” The check was for an amount smaller than a debt about which there had been no dispute. There the court held the notation to be a mere nullity. “It is elementary,” said the court, “that to establish an accord and satisfaction by the payment of a lesser amount than that claimed to be due there must be a bona fide dispute as to the amount. ’ ’
Did Widmer’s check, amount to his disputing the correctness of the claim, or did he think Price would not go to the expensevof pressing in court a claim for the difference? The fact is that Widmer’s answer does not deny he actually owed the full amount demanded; he merely pleaded accord and satisfaction as a conclusion.
The trial court based its judgment against Widmer on a finding that the creation of the indebtedness claimed by Price was not denied. It was found that the defense was based solely on the formality of sending a check to Price and marking “full payment” thereon. We are unable to say the trial court’s finding was erroneous.
Affirmed. | [
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Conley Byrd, Justice.
Appellant, Sybil L. Sherman, administratrix of the estate of Uriel Lambert Bearden, Jr., deceased, appeals from a jury verdict on interrogatories, finding that appellees, Mountaire Poultry Company, Inc., and William D. Purifoy, its employee, were not negligent in the death of Uriel Lambert Bearden, Jr., a five-year-old child.
The facts show that on January 14, 1966, Purifoy delivered a load of chicken feed to two poultry houses, the first one being south of and across the county road running by the Bearden home, and the other being to the north and somewhat behind the Bearden home. The decedent was in the Bearden home yard near a tree when Purifoy passed the home on his way to the second poultry house. As he passed, the boy waved to him. After backing the truck up to the poultry house, Purifoy found that the snorkel on his truck did not quiet reach the feed bin. Purifoy then crawled down from the top of the truck, drove the truck forward a short distance, cut the wheels to the left and backed the truck up s.o that its left side would be closer to the feed bin. While Purifoy was standing on the fender of his truck to turn on the bottom auger, he observed the decedent lying where a wheel of the truck had run over him. He ran to the house to notify the child’s parents and to use the telephone. Later, at the home of Mrs. Denton McKamie, in front of Mrs. McKamie and Purifoy’s boss, Robert Moeller, the child’s mother told Mr. Purifoy, “I don’t blame you, son, I know it was an accident.” “It was just an unavoidable accident, a terrible thing, but an unavoidable accident.”
This was Purifoy’s first trip to the poultry house where the accident occurred. There was testimony on behalf of appellant that it was the boy’s custom to get the feed tickets from the truck drivers.-The boy’s father testified that on this occasion, after the truck was first backed up to the poultry house, the hoy rode his tricycle down a path toward the truck; that after the truck started up the second time he saw his son ride his tricycle in front of the truck in an attempt to return to the house; and that a pile of dirt obscured his view thereafter. Purifoy testified that he did not observe the boy at .any time after he waved to him at the house, some 196 feet from the place where the boy was subsequently found. The record reflects that a three-foot high object within ten feet of the truck would not be visible to the driver.
After review of the record, we are unwilling to say that there is no substantial evidence to support the jury’s verdict.
Appellant contends that it was error to permit Mrs. McKamie and Mr. Moeller to testify that Mrs. Bearden told Purifoy it was an unavoidable accident. We have consistently held that statements in the nature of an admission by a party are admissible as original evidence. Bullington v. Farmers’ Tractor & Implement Co., Inc., 230 Ark. 783, 324 S. W. 2d 517 (1959). The authorities have extended this to admissions or declarations against interest made by a person who is not a party of record but who is a real party in interest, such as Mrs. Bearden in the instant case. Isley v. McClandish, 299 Ill. App. 564, 20 N. E. 2d 890 (1939), 31A C. J. S. Evidence § 320. Appellant relies on Coca-Cola Bottling Co. of Southwest Ark. v. Carter, 202 Ark. 1026, 154 S. W. 2d 824 (1941), as holding that such testimony is not admissible, hut we point out that in that case the truck driver whose admission was put in evidence was not a party of record, nor did he hold a pecuniary interest such as that of Mrs. Bearden in this case.
Error is also assigned by appellant to the trial court’s failure to give appellant’s instruction on res ipsa loquitur. As we pointed out in Chiles v. Fort Smith Commission Co., 139 Ark. 489, 216 S. W. 11 (1919), the presumption — i. e. res ipsa loquitur — arises from the inherent nature and character of the act causing the injury. Presumptions arise from the doctrine of probabilities. The future is measured and weighed by the past and presumptions are created from the experiences of the past. Thus when a thing that causes injury is shown to be under the management of the defendant and the accident is one which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from a want of care.
While a claim for injuries to a small child arising from the use of a vehicle is always complicated by the rule that a child of tender years can not be guilty of negligence, we can not say that every accident such as that involved here is one which experience teaches us will arise from a want of care on the part of the driver. This is a much different situation from that involving a vehicle leaving a roadway generálly traveled by vehicles and injuring a pedestrian, or that in which a vehicle runs through a board fence and injures an unsuspecting pedestrian on the other side of the fence. Consequently, we hold that the trial court properly refused appellant’s res ipsa loquitur instruction.
Appellant argues a number of other points on appeal, but from the record we find that either she did not object at the time the matter transpired in the trial court, as required by Ark. Stat. Ann. § 27-1762 (Repl. 1962), or they were matters dealing with damages, making such errors harmless in view of the jury’s finding of no negligence.
One such point has to do with the courtroom behavior of a beautiful, mature young woman, apparentiv Purifoy’s wife; but the record is absolutely silent as to any such conduct and we have only appellant’s statement in the brief.
We readily admit that this case presents one of those close factual situations in which we are permitted only to ascertain whether there is substantial evidence to support the jury verdict, and are not at liberty to determine where the preponderance of the evidence might. lie. Consequently, upon the whole case and after a thorough search of the record, we find that the judgment must be affirmed.
Brown, J., disqualified. | [
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CakLetoN Harris, Chief Justice.
An automobile collision occurred in Fayetteville on September 9, 1965, about 6:30 P.M., in the intersection of Vandeventer Street, running north and south, and Adams Street, running east and west. There were no traffic controls or signs at the intersection. A 1962 Chevrolet sedan was being driven south on Vandeventer by James E. Gabel, and Diane Bowman was driving a 1965 Pontiac sedan east on Adams.. The Chevrolet was owned by J.,W. Gabel, father of. the driver, and the Pontiac was owned by the operator and her father, J. A. Bowman. The Bowmans, appellants herein, instituted suit for damages to the Pontiac, and,the Gabels, appellees herein, counterclaimed for damages to the Chevrolet, and for personál injuries. Each side contended that the other driver was guilty of negligence which was the proximate cause of the .collision. On trial, specific interrogatories were given to the^ jury, and it returned its verdict, finding that Diane Bowman Bassett was not guilty of any negligence, and that James Gabel was guilty of negligence which.projximately caused the collision; a verdict was rendered for the Bowmans in the sum of $1,250.00. Approximately a week later, appellees filed a motion for new trial, and thereafter, the court entered its order finding that the verdict of the jury “is not sustained by a preponderance of the evidence, that the answer, ‘Ño,’ of the jury to special interrogatory No. 1 [which referred to whether there was any negligence on the part of Diane Bowman] was against the preponderance of the evidence in this cause; and that by reason thereof the Motion for New Trial herein should be sustained.’’.The verdict of the jury, and the judgment of the court, in accordance therewith, were set aside, and a hew trial was granted. From this judgment, ap pellants bring this appeal. For reversal, it is urged that the court applied -the wrong rule of law in measuring the adequacy of the jury’s verdict, and that, at any rate, the court clearly abused its discretion in granting the new trial for the reason that the evidence clearly preponderated in favor of the appellants.
Appellants first argue that the trial judge invaded the province of the jury, which was charged with passing upon all fact questions, and that, there being substantial evidence to support the verdict, the court was in error in setting same aside. It is further contended that the preponderance of the evidence supports the finding by the jury. Of course, we will not disturb a judgment based upon a jury verdict if there is any substantial evidence to support it (unless the court erred in giving the law). But whether there was any substantial evidence, or even a preponderance of the evidence, is not the test where the court has already set aside a verdict, and that action is appealed to this court. The proper test is stated in the recent case of Worth James Construction Company v. Fulk, 241 Ark. 444, 409 S. W. 2d 320. There, we said:
“In seeking a reversal counsel for the appellant rely upon our familiar rule that a verdict supported by any substantial evidence will be upheld in this court. That rule does not apply to a case such as this one, where the trial court has set aside the verdict as being against the weight of the testimony. Here the issue, as we have said, is whether the trial judge abused his discretion. ’ ’
Appellants say:
“In examining the multitude of decisions handed down by the Supreme 'Court over the years, it is clear that the Court has analyzed the factual situation and that whatever the language used in the particular decision, it has determined whether or not there was any substantial evidence to support the jury verdict; and if there was any substantial evidence to support the jury verdict, it has left the verdict intact and reversed those trial judges who have tampered with those verdicts.”
Several cases are cited, but none relate to our reversing the trial court for setting aside a jury verdict. Our rule, enunciated in James, is more fully set out;, and explained in a case decided in 1916, Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. There, after stating that the court had properly instructed the jury, and that there had been evidence to sustain the verdict of the jury, this court, in an opinion by Mr. Justice Wood, proceeded to discuss the question which is at issue in the present litigation, as follows:
“The rule setting forth the respective functions of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: ‘But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the quesiton is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth or falsity of a witness, is to substitute our discretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.’
“And again in Blackwood v. Eads, 98 Ark. 304-310, where we quoted from Taylor v. Grant Lumber Co., 94 Ark. 566, as follows: ‘The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in'the weighing of testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instructions of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors.’
“In Blackwood v. Eads, supra, we said further: ‘Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for a new trial or overruling same. * * #
“ ‘The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weig’ht of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not he interfered with unless his discretion has been manifestly abused.’ * * *
“* * * We cannot approve the doctrine that it is an invasion of province of the jury for the trial court to set aside a verdict which he finds to be against the preponderance of the evidence. On the contrary if he fails to do so, he surrenders his own province, ignores his duty, and by so doing destroys the integrity of the best system that thus far has been devised in this country for the administration of justice. * * *
“* * * Having presided at the trial, and having seen and heard the witnesses testify, they have had the same opportunities as the jury, and hence are vested with the authority to ascertain whether or not the jury’s verdict is in accordance with the preponderance of the evidence, and when they have found upon conflicting evidence that such verdict is, or is not, against the weight of the evidence, such finding will not be set aside unless it is manifest that the court abused its discretion, that is, acted improvidently, arbitrarily, or capriciously in making-such finding. ’ ’
The trial court, in setting aside the present judgment, apparently was greatly influenced by the fact that the jury found appellant, Diane Bowman (Bassett), not guilty of any negligence. This appellant testified that she stopped at the intersection before entering; that a hedge was located on her left, which somewhat obstructed the view, so she “eased out a little bit and I still couldn’t see, so I eased out a little bit more and I could see a car about half way down the block.” She stated that she was about a foot from the middle of the intersection when she saw the automobile approaching. She continued, “I was just creeping, so it would be just a mile or two an hour, something like that * * * I thought, do I have time enough to go across and I decided, no, so I put my hand on the gear shift to put it in reverse.” She said that before she was able to do that, the car, which was traveling 30 or 35 miles an hour, hit her automobile. A young lady in the car with her agreed that she was traveling about “one mile per hour,” and this witness testified that the Gabel car was traveling 25 or 30 miles per hour. Gabel testified that as he approached the intersection, he looked to the left and found it clear, looked to the right, but there were shrubs that obstructed the view; however, he did not see any automobile; he then looked back to his left when entering the intersection, and he was hit by the Bowman vehicle. His sister, riding in the car with him, testified that appellant was driving at a “pretty rapid” speed. Photographs taken of the two vehicles reflect that the front end of the Pontiac (Bowman car) was pretty well smashed, and the right hand side of the Chevrolet (Gabel car) was crushed from a point just behind the right head light, the damage extending almost through the back door. A photograph of the front of the Chevrolet reveals no.damage to that portion of appellee’s ear. This evidence indicates that Mrs. Bassett was mistaken when she said that the Gabel car struck her; rather, it would appear that her automobile did the striking. Of course, even though this' be true, the mere fact that one car struck another does not necessarily mean that the driver of the first vehicle was guilty of negligence which was the proximate cause of the collision. It is however a circumstance to be considered. Likewise, the court may have found it difficult to believe that the Gabel car traveled half a block at the speed mentioned by Mrs. Bassett and the witness on her behalf, while appellant’s car was traveling only a few feet. Also, he may have considered that she was negligent in attempting to back up, rather than to proceed across the street. Still again, he simply may not have believed appellant’s evidence about her speed, which was not uncontradicted. In fact, the Gabel girl testified that Mrs. Bassett was driving at a “pretty rapid speed.”
At any rate, as pointed out in Twist-.
“‘The witnesses give their testimony under the eye and within the;, hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.’ ”
In fact, this abuse of discretion is likewise characterized in the same opinion (as heretofore quoted) as acting improvidently, arbitrarily or capriciously. Among other definitions, one’s actions are said to be arbitrary if they are unreasonable, determined by no principle, or based upon random or convenient selection or choice, rather than on reason. The word capricious, inter alia, means irresponsible and impulsive, or refers to acts committed according to whim or passing fancy. Certainly, we cannot find that the action of the trial court came within any of these definitions, and it is just as certain that it is not manifest that the court acted arbitrarily in setting aside the verdict.
Affirmed.
Miss Bowman was married to Mr. Bassett sometime subsequent to the' automobile collision. | [
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