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Tom Glaze, Justice.
This malpractice case arises from an automobile accident that resulted in injuries the appellant had treated at the St. Bernard’s Regional Medical Center (St. Bernard’s). During surgery on September 25, 1984, appellant had a cardiac/respiratory arrest, and because of this occurrence, he suffers from serious and permanent brain injury. Appellant gave proper notice of his intent to sue under Ark. Code Ann. § 1 fill 4-204 (1987), which extended his time to bring suit by seventy days. He then filed suit within the required statutory time on December 1, 1986, against the anesthesiologist, Dr. E. Barrett Sparks, the surgeons, Dr. Lynn Wiggins and Dr. Albert Rusher, along with their corporation, Jonesboro Surgical Associates, and St. Paul Fire and Marine Insurance Co. as liability carrier for St. Bernard’s.
Appellant stated that he filed suit to toll the two-year statute of limitations for medical malpractice which was about to expire. Ark. Code Ann. § 16-114-203 (1987). He admitted, however, that, at the time he filed suit, he needed more time to determine if Wiggins and Rusher were the correct doctors to sue. Appellant served his complaint and summons on Dr. Barrett and St. Paul, but made no attempt to serve Wiggins, Rusher or Jonesboro Surgical Associates. On March 15,1988, or about fifteen months after filing his complaint, appellant obtained an order dismissing his suit without prejudice. At this time, the two-year statute of limitations had run.
Appellant refilled suit against Wiggins, Rusher and Jonesboro Surgical on March 8, 1989, and while he made no effort to serve Jonesboro Surgical, he did attempt to serve the two doctors by certified mail, restricted delivery, but his mail was returned marked “unclaimed.” On August 3, 1989, or 148 days after the filing of his second complaint, appellant moved to extend his time to obtain service on the doctors. The trial court denied appellant’s motion finding that (1) the appellant did not serve Wiggins and Rusher within the 120 day period provided by ARCP Rule 4(i), so his complaint filed on December 1,1986 did not toll the statute of limitations; (2) the limitation period in which the appellant could bring suit against Wiggins and Rusher expired prior to the appellant’s voluntary March 8, 1988 order of dismissal without prejudice; and, therefore, any claim appellant had against the two doctors was barred.
The primary issue posed in this appeal is when is an action commenced under the Arkansas Rules of Civil Procedure as it relates to tolling the statute of limitations. Appellant cites ARCP Rule 3 and argues that the mere filing of his complaint on December 1, 1986, commenced the action and tolled the statute of limitations and that his failure to have obtained service on Wiggins and Rusher under ARCP Rule 4(i) had no consequence. We must disagree.
To consider appellant’s argument requires a comparison and analysis of Rule 3 and Rule 4(i) which provide as follows:
Rule 3
A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.
Rule 4(i)
Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. . . .
Arkansas law prior to the above current Rule 3 provided that an action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff. Ark. Stat. Ann. § 27-301 (Repl. 1962). Section 27-301 was subsequently changed by an earlier version of the above ARCP Rule 3 which contained a sentence providing that an action would not be deemed commenced unless service was actually obtained within 60 days of filing the complaint. That sentence, however, was deleted, leaving us with our present Rule 3 as set out above, and at the same time the deletion was made in Rule 3, the time requirement for service was moved to Rule 4(i). The Reporter’s Notes and comments on these changes are most helpful in interpreting and understanding-Rules 3 and 4(i); they read as follows:
1. This rule changes Arkansas law. The statute, Ark. Stat. Ann. § 27-301 (Repl. 1962), which is superseded by this rule provided, in part, that an action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff of the proper County. Under this Rule, an action will commence without regard to receipt by the process server, subject only to the requirement that service be completed within [120] days from the filing of the complaint, unless the time for service has been extended by the Court.
2. This rule will do away with uncertainty in “race to venue” and statute of limitation cases as to where or when the action was first commenced. It will also do away with the need to decide whether the complaint and Summons have been placed in the hands of the sheriff with reasonable expectations of service or whether the Complainant has acted in good faith in trying to effect service. See Williams v. Edmondson and Ward, 257 Ark. 837, 250 S.W.2d 260 (1975). Instead, where service is in issue under the [120] days or extension proviso, actual service will be the standard. If actual service is not made within [120] days, the Court may extend the time for service, thus protecting the plaintiff against the running of the statute where there is good cause to do so. (Emphasis added.)
As is clearly explained in the foregoing Notes, an action is first commenced under Rule 3 by the filing of a complaint with the clerk of the proper court, and the establishment of venue and the tolling of a statute of limitations is based on the date the complaint is filed. However, that commencement date is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under Rule 4(i). As is also duly noted above, a court, where there is good cause to do so, may extend the time for service beyond the 120 day period in order to protect a plaintiff against the running of a statute of limitations. Rule 4(i) requires the plaintiff to file his or her motion to extend within the 120 day period following the filing of the suit.
In the present case, the appellant failed to obtain service of Doctors Wiggins and Rusher within the 120 day period following the filing of either his December 1, 1986 complaint or his substituted complaint on March 8,1989; nor did he file within that period a motion to extend the time for completing service. Because the appellant failed to meet the service requirements contemplated or specifically provided for in Rules 3 and 4(i), he also failed to commence the action so as to effectuate the one-year savings provision provided in Ark. Code Ann. § 16-56-126 (1987). As a consequence, when the appellant voluntarily dismissed his original complaint on March 15, 1988, the statute of limitations had run, barring appellant from filing his second or substituted complaint.
While the appellant acknowledges his failure to comply with the service requirements in Rule 4(i), he points to the language in that Rule which provides that if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice. Based on that proviso, he submits his March 15, 1988 dismissal order was without prejudice and therefore could not be barred from filing his second suit in March 1989.
Of course, appellant’s interpretation of Rule 4(i) is correct insofar as it goes, viz., if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed without prejudice. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); see also Cole v. First Nat’l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). However, that dismissal without prejudice language does not apply if the plaintiffs action is otherwise barred by the running of a statute of limitations. As we discussed earlier, Rule 4(i) provides a procedure in cases where service has not been achieved within the 120 day period whereby the court may, upon motion or its own initiative, extend the time for obtaining service so as to protect the plaintiff from being barred by a statute of limitations. Under appellant’s interpretation of Rules 3 and 4(i), he would need only file his complaint within the period of limitations, never obtain service on the doctors and then dismiss and refile new or substituted complaints indefinitely — or at least until he decides to summon the doctors formally into court. Such an interpretation of Rules 3 and 4(i) is not a reasonable one, plus it totally ignores the purposes and objectives of these rules as we have carefully set out and discussed above.
For the foregoing reasons, we affirm.
In the Reporter’s Notes the time requirement for service is 60 days, but in the current Rule 4(i) the time for service was extended to 120 days.
Among other things, § 16-56-126 provides that if any action is commenced timely and the plaintiff suffers a nonsuit, the plaintiff may commence a new action within one year after the nonsuit. | [
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Otis H. Turner, Justice.
This controversy involves a dispute between Lavaca School District No. 3 and Charleston School District No. 9 over which district is entitled to the tax revenue from 3,386.53 acres of real property formerly located in the now-defunct Mays Chapel School District No. 20 (Mays Chapel) and the Ursula School District No. 31 (Ursula). Though a number of salient facts and records are apparently missing, we find, based upon the record before us, that the decision of the trial court is supported by substantial evidence, and we affirm.
Charleston School District No. 9 (Charleston) encompasses lands located in Franklin County, Logan County, and the Greenwood District of Sebastian County. Lavaca School District No. 3 (Lavaca) is entirely within Sebastian County, and all of the lands at issue in this case are within Sebastian County.
On December 31, 1929, the Sebastian County Board of Education ordered a consolidation of Mays Chapel, Ursula, and Lavaca. Lavaca became the surviving school district. Thereafter, the official Board of Education records are silent, but from 1929 until 1946, taxes on that part of the property located in the Mays Chapel District were paid to Lavaca. Taxes on the property within the Ursula District were likewise paid to Lavaca until 1949, with the possible exception of a part of the taxes for the years 1932, 1937, and 1940.
In 1946, taxes on that portion of the lands in Mays Chapel were diverted to Charleston, and Charleston has continued to receive those payments without apparent complaint until the filing of this suit. Likewise, the taxes on the lands in the Ursula District were diverted to Charleston in 1949. They have continued to be paid to Charleston without exception until this complaint.
No documentation supporting any authority for the diversion of the tax funds is included in the record.
The annual reports of the Franklin County Board of Education indicate that the Ursula District was operated as a part of the Charleston District in the 1940-41 and 1941-42 school years.
The Charleston records also indicate, and the parties stipulated at trial, that for some period of time after the 1929 consolidation order — possibly as early as 1938 — Ursula School was operated as a “ward” or “wing” school by Charleston.
It was further stipulated that a majority of the students living in the area in question attend the Lavaca Schools. However, any student wishing to attend Lavaca must first apply to Charleston for permission to transfer and also apply to Lavaca for acceptance. These transfer requirements have been in existence for a number of years, and Lavaca has recognized and accepted the policy.
Official district maps submitted by the Sebastian County Board of Education to the State Department of Education indicate that, as early as 1936, the disputed area was included in the Charleston District. No such map or record shows any of the involved land to be in the Lavaca District.
The Circuit Court of Sebastian County, Greenwood District, resolved the issues in favor of Charleston. The Lavaca District raises three points for reversal: first, that the 1929 order of the Sebastian County Board is binding and not subject to collateral attack; second, that any subsequent consolidation or substantial change of school district boundaries without County Board action or approval is void; third, that the trial court erred in holding that Lavaca and the Sebastian County Board of Education are estopped from challenging the boundaries asserted by the Charleston District.
With regard to appellant’s first point, the record of the 1929 action of the County Board is not subject to a collateral attack at this late date. As it is the only order appearing of record, it is valid and binding in the absence of an estoppel, if estoppel is available.
Likewise, any substantial change in school district bounda ries without county board approval is not valid unless a substantial factual basis exists to support an estoppel, if the doctrine of estoppel is available.
It is clear that a resolution of the entire dispute between these two parties hinges upon whether or not the doctrine of estoppel is available to Charleston, and, if so, whether the record supports Charleston’s allegation and the trial court’s application of the doctrine. As a general proposition, estoppel is not available against a sovereign. Arkansas State Highway Commission v. Lasley, 239 Ark. 538, 390 S.W.2d 443 (1965). It should be noted at the outset, in answer to the appellants’ argument, that it is clear from the record that the doctrine of estoppel is not asserted by the appellee for the purpose of altering the boundaries of an existing district; instead it is asserted as a defense to a claim by the appellants that the disputed lands are wrongfully included in the Charleston District.
The factual basis for the trial court’s application of the doctrine is abundantly sufficient, again, if the doctrine is available in this instance.
We have said that an estoppel may be supported when one has deliberately done an act or said a thing, and another who had a right to do so has relied on that act or words, shaped his conduct accordingly, and will be injured if the former can repudiate the act or recall the words. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W.2d 995 (1926), citing Trapnall v. Burton, 24 Ark. 371, (1866). For silence alone to constitute an estoppel there must be both the opportunity and the duty to speak. The action of the person asserting the estoppel must be the natural result of the silence, and the silent party must be in a situation to know that someone is relying on the silence to his detriment. Baker-Matthew Lumber Co. v. Bank of Lepanto, supra.
Though the doctrine had its beginnings in equity, we have long held that estoppel in pais may be set up in actions at law as well as in suits in equity. Moorehead v. Universal C.I.T. Credit Corporation, 230 Ark. 896, 327 S.W.2d 385 (1959).
In spite of the general rule that estoppel is not available against a sovereign, we have recognized that in actions between school districts — each being a “sovereign” in the technical sense — estoppel may be available.
In the early case of Cotter Special School District No. 60 v. School District No. 53, 111 Ark. 79, 162 S.W. 59 (1913), the issue before the court was an order void on its face whereby the county court, without authority, changed the boundaries of the complaining district. Though admittedly dicta and unnecessary to the decision in that case, the court observed that neither the school directors nor the people had acquiesced over a long period to the condition created by the void order and thus were not estopped from seeking their remedy. Again, in Carter Special District v. Hollis Special School District, 173 Ark. 781, 293 S.W. 722 (1927), the court, quoting with approval the estoppel language contained in Cotter Special School District No. 60, observed that a delay of ten years, absent any “special circumstances,” was insufficient in that case to create an estoppel.
In Magnolia School District No. 14 v. Rural Special District No. 3, 202 Ark. 49, 149 S.W.2d 579 (1941), the court quoted the language from Cotter and went on to observe that “special circumstances” as referred to in Cotter existed; the court then applied the doctrine of estoppel to avoid an inequitable result.
The lands at issue in this case have been assessed as being in the Charleston District, and the tax revenue received has been paid to that district for over 40 years, without any objection by Lavaca. But the admitted fact that clinches the application of the doctrine is that school-age children living within the disputed area have long been required first to obtain the consent of the Charleston District before Lavaca would consider their admission to the Lavaca Schools.
We choose, in this instance, to follow the exception to the general rule as that exception was applied in Magnolia and permit the application of the doctrine of estoppel to resolve this boundary dispute between school districts — a dispute amounting to a contest between sovereign and sovereign.
Affirmed.
Glaze, J., dissents. | [
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Steele Hays, Justice.
Appellant Carl Prince was charged as a habitual offender with the burglary of the Fort Smith Medi-Sav Pharmacy and with theft of property valued in excess of $200.00. He represented himself at trial and was convicted of all counts and sentenced to fifty-five years. None of the six points for reversal have merit.
I
The Information
Prince contends the information is fatally flawed because it failed to conclude each count with a contra pacem clause (“against the peace and dignity of the State of Arkansas”), as required by Ark. Const, art. 7, § 49. The information was a printed form and the clause was printed on the lower portion of the page as in Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). However, we will not address this allegation because the proper time to object to the sufficiency of an indictment or information is prior to trial, Ark. Code Ann. § 16-85-705 (1987), whereas Prince’s objection was first raised in a post-trial motion. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986).
II.
Discovery
Prince argues the state failed to comply with discovery under Ark. R. Crim. P. Rules 17 and 19. However, with one possible exception, he made no objection at trial to the alleged failures. He did object to the state calling a witness late in the case, but on a basis wholly different from the one now argued. His objection to the trial judge was that he could have obtained a fingerprint expert to challenge the testimony of this witness. His other objections, made for the first time after trial, cannot be considered on appeal. See Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). Moreover, Prince did not explain how he was prejudiced at trial by any of the avowed discovery violations. Without a showing of prejudice, this court will not reverse. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990).
III.
Trial Preparation
Prince alleges that he was deprived of access to law books, evidence and witnesses to prepare for trial which denied him of his “Constitutional right to due process of law in a fair trial.” The state contends Prince is procedurally barred from asserting this issue on appeal because he did not specifically raise it before the trial court. The state is essentially correct, though Prince did request access to law books and the telephone in two letters to the trial judge and in a pretrial hearing. Even so, no reversible error has been shown. Prince waived his right to counsel, but David Dunagin, Deputy Public Defender, was appointed to advise him and obtain legal materials for him. Additionally, the trial court allowed Prince to make telephone calls to witnesses, however, he chose to contact only one witness, his father, whom he also interviewed in person. This satisfies the requirement that the accused have access to adequate libraries or adequate assistance of persons trained in the law. See United States v. West, 557 F.2d 152 (8th Cir. 1977); United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); 2 J. Cook, Constitutional Rights of the Accused § 8.2 n.6 (2d ed. 1986).
IV.
Evidence
Prince claims the trial court erred-in admitting into evidence certain pharmaceutical substances seized by the police in a search of a cabin owned by Mr. Eugene Blackwell, the father of Prince’s girlfriend, Melody Blackwell. According to Prince, it was error to admit the controlled substances because they were found in a shed on the Blackwell property and, hence, beyond the scope of the consent search of the Blackwell cabin. But Prince did not request suppression of the drugs due to an illegal search and seizure, and “[ojnly specific objections made at trial are preserved for appeal.” Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).
Prince also contends the trial court erred in admitting the pharmaceutical substances because they were irrelevant and their prejudicial effect outweighed any probative value under Ark. R. Evid. 403. Jimmy O’Quinn, a Medi-Sav pharmacist, testified that the pharmaceutical substances recovered from the Blackwell property had been stolen from the Medi-Sav Pharmacy on February 7, 1989. Bill Hollihan, a detective with the Fort Smith Police Department, linked the substances to Prince. Hollihan testified that one vial containing drugs was found in the Blackwell residence where numerous items of Prince’s clothing were also found and the remainder of the controlled substances was found in Blackwell’s shed in a cardboard box with Prince’s name and address on it.
The trial court has discretion in the admission of evidence and we do not reverse unless an abuse of discretion has been shown. Hughs v. State, 303 Ark. 340, 797 S.W.2d 419 (1990). No abuse has been shown by the acceptance of this evidence, which had obvious probative value.
V.
Affirmative Defense
Prince contends he should have been allowed to present evidence that he was acquitted of the charge of possession of the drugs in an earlier trial in Crawford County. Hence, he maintains that he had an affirmative defense of collateral estoppel. The argument is based on the premise that Prince was acquitted of the drug possession charge, because a former prosecution is an affirmative defense if it resulted, among other things, in an acquittal. Ark. Code Ann. § 5-1-113 (1987); Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). But during a pretrial hearing Prince repeatedly insisted that the Crawford County trial had ended in a hung jury, which is not the equivalent of acquittal for purposes of establishing a former jeopardy or collateral estoppel to bar retrial. 3 W. LaFave and J. Israel, Criminal Procedure § 24.2(b) (1984); Young v. State, 287 Ark. 361, 699 S.W.2d 398(1985). Moreover, while Prince did argue to the trial court that he had been acquitted, he failed to offer any evidence and his unsupported assertion is the only indication of acquittal in the record. Since a plea of former acquittal or conviction is an affirmative defense, the burden is on the accused to sustain the plea. Richards v. State, 108 Ark. 87, 157 S.W. 141 (1913). The accused “must prove not only the former jeopardy conviction, or acquittal, but also the identity of the offenses and the jurisdiction of the court in the former trial.” 21 Am Jur. 2d Criminal Law § 466 (1981). Since the record does not reflect evidence of Prince’s acquittal beyond his own contention, it was not error to exclude it.
VI.
Motion for a Directed Verdict
Prince submits the trial court erred in refusing to direct a verdict on the burglary and theft of property charges. Motions for directed verdict are challenges to the sufficiency of the evidence and on appellate review we determine whether the verdict is supported by substantial evidence. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Whether direct or circumstantial, substantial evidence must be of sufficient force that it compels a conclusion with reasonable and material certainty. Id. In deciding whether’ there is substantial evidence to support the verdict, the evidence is reviewed in a light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). We need to consider only that evidence which supports the verdict of guilt. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).
Prince argues the state failed to prove the offense of burglary because it did not show that he unlawfully entered the Medi-Sav Pharmacy. A person commits burglary if that person enters or remains unlawfully in an occupiable structure of another person with the purpose of committing any offense punishable by imprisonment while in the structure. Ark. Code Ann. § 5-39-201 (1987). Melody Blackwell testified that in February of 1989 she and Prince went out driving and stopped on a side street behind the Medi-Sav Pharmacy. After they stopped, Prince got out of her truck and was gone for a short time. When he returned he had a gray bag that contained “bottles and some stuff,” and said, “Let’s get outta here. Let’s go.” Blackwell also said she had taken Prince to her father’s cabin in Crawford County in February 1989. Detective Hollihan testified about the search of the Blackwell property, in February of 1989, that produced the Medi-Sav pharmaceutical drugs. Prince’s clothing was found in Blackwell’s cabin where Ms. Blackwell testified he had been staying with her. A cardboard box was found with the drugs on the Blackwell property. The box had Prince’s name and current mailing address on it. Jimmy O’Quinn, the store’s pharmacist, established that the drugs found on the Blackwell property were stolen from the Medi-Sav Pharmacy. This evidence, showing Prince was in possession of recently stolen property coupled with the proof of his proximity to the scene of the crime constitute substantial evidence of burglary of the Medi-Sav Pharmacy. Nee Dawan v. State, 303 Ark. 217, 795 S.W.2d 50 (1990); Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986).
Prince also contends that the state failed to prove the items stolen had a value in excess of $200.00 or that he ever possessed the items taken from the pharmacy. But Jimmy O’Quinn testified to a value of more than $200.00. His testimony satisfied the value element of the theft charge.
As for the allegation that the state failed to show Prince ever possessed the stolen pharmaceuticals, the facts previously noted support a contrary finding. There was no error in the trial court’s failure to direct a verdict in Prince’s favor because there was evidence sufficient to support the verdict of guilty on both the burglary and theft of property charges.
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W. Dent Gitchel, Special Justice.
James Talley was born in Doctors Hospital on September 7, 1982. He appeared to be a normal, healthy baby. Several hours later, shortly after midnight, nurse Frances Tully discovered that James had stopped breathing and had no heartbeat. He was immediately resuscitated, but showed symptoms of brain damage. James’ parents and the guardian of his estate sued HCA Health Services of Midwest, Inc., d/b/a Doctors Hospital (Midwest) and the three nurses who were on duty in the nursery at the time of the incident.
When the case was first tried in 1986, the jury returned a verdict against Midwest, awarding both compensatory and punitive damages. This court reversed and remanded. HCA Health Serv. of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988). The second trial, from which this appeal comes, resulted in a verdict in favor of the defendants. Appellants raise a number of points for reversal. However, we find none of them persuasive and affirm.
1. Absence of the mattress.
Appellants assert that “appellees unwarrantedly failed to produce at the trial the mattress on which James Talley was lying at the time of the occurrence.” The “mattress” in question is a plastic-covered, foam rubber bassinet pad about an inch thick. Appellees had introduced the mattress at the first trial, asserting that it was the actual mattress. Appellants objected to its authenticity, contending that the actual mattress was thicker and fluffier. The mattress was filed with the record on the first appeal to this court and was misplaced by the clerk. While preparing for the second trial, appellees attempted to obtain the mattress from the clerk, but were informed that it was lost. Appellants did not attempt to locate the mattress, but the clerk found it after the second trial. Appellants suffered no prejudice from the absence of the appellees’ exhibit, the admissibility of which they had steadfastly contested.
2. Summary judgment in favor of Hospital Corporation of America.
Midwest is a wholly owned subsidiary of Health Services Acquisition Corp.; Health Services Acquisition Corp. is a wholly owned subsidiary of HCA, Inc.; and HCA, Inc. is a wholly owned subsidiary of Hospital Corporation of America (Hospital Corporation), a publicly owned corporation. Of these corporations, only Midwest was a party at the time of the first trial.
One basis for this court’s reversal on the first appeal was plaintiffs’ counsel’s references to Hospital Corporation, a non-party, when discussing punitive damages during opening statement and closing argument. On remand, the appellants joined Hospital Corporation as a defendant, and the trial court entered summary judgment in favor of Hospital Corporation. The trial court erred, but the jury’s verdict in favor of the appellees rendered the error harmless.
In essence, the appellants’ theory of liability was that James Talley’s injuries were proximately caused by the nurses leaving him unattended, that the inattention resulted from understaffing in the nursery, that hospital personnel had complained to the manager about the understaffing, and that the manager had failed or refused to provide more nurses. Appellants argue that the manager’s allegedly wrongful acts should be imputed not only to Midwest, but also to Hospital Corporation. Appellees argue that no relationship existed between Hospital Corporation and either Midwest or the hospital manager.
Appellants made no allegation, proffered no evidence, and presented no affidavit to the trial court indicating that Hospital Corporation was itself guilty of wrongful conduct. In their briefs and argument the appellants make bare, unsupported statements that Hospital Corporation ordered the manager to cut the nursing staff, but the record contains nothing to support these statements. Although a principal or master may be liable for its own tortious conduct, ice RESTATEMENT (SECOND) OF AGENCY § 212(1958), some factual support for the assertion is necessary. In the absence of any such factual support, summary judgment on the issue of Hospital Corporation’s own conduct was proper.
A principal or master may also be vicariously liable for the tortious acts of its agent or servant within the scope of the agency or employment. See Gleason v. Seaboard Air Line Ry., 278 U.S. 349 (1929); Dillard Dept. Stores, Inc. v. Stuckey, 256 Ark. 881, 511 S.W.2d 154 (1974). The record does contain sufficient evidence to raise a genuine question of fact whether a principal-agent or master-servant relationship existed between Hospital Corporation and the manager of Doctors Flospital. This question of fact should have been left for the jury to decide. See B. J. McAdams, Inc. v. Best Refrigerated Exp., Inc., 265 Ark. 519, 579 S.W.2d 608 (1979); Fireman’s Fund Ins. Co. v. Leftwich, 192 Ark. 159, 90 S.W.2d 497 (1936). However, the court’s error in granting summary judgment was rendered harmless by the jury’s verdict in favor of appellees. Where the issue of liability is decided in favor of the agent or servant and against the plaintiff, as it was here, the principal or master cannot be vicariously liable. See New Orleans & N.E. R.R. v. Jopes, 142 U.S. 18 (1891).
Appellants argue two other theories under which they assert that Hospital Corporation could have been held liable, neither of which has merit. First is joint venture. Joint venturers may be held jointly and severally liable for one another’s wrongful acts, Myers v. Lillard, 215 Ark. 355, 220 S.W.2d 608 (1949), but a joint venture must have the elements of a partnership. State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 1055 S.W.2d 853 (1937). Hospital Corporation and Midwest were not joint venturers because their relationship did not have the elements of a partnership. Even if they had been joint venturers, the jury’s verdict in favor of Midwest also exonerated Hospital Corporation because liability of a joint venturer is vicarious, founded on principles of agency. See Franko v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977); Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564 (1952). Appellants’ other theory is “piercing the corporate veil.” One who seeks to disregard the corporate entity must show that the corporate form has been abused to the injury of a third person. Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W.2d 1 (1949). There is no evidence to support this theory.
3. The trial court’s handling of prospective juror Wheetley.
During voir dire, appellant’s counsel was allowed to ask the following question over objection:
Do any of you have a feeling that you would not be able to award as much as ten million dollars or in that neighborhood under any circumstances, no matter what the proof has shown, no matter what the process of law is, does anybody have any hesitation about awarding as much as ten million dollars if you thought the evidence justified? This may be the most important question that I will ask you and I would like to ask you the question individually. . . .
An objection to individual questioning was overruled, and appellants’ counsel examined each prospective juror. The following transpired:
Q: Mrs. Linda Wheetley, would you have any hesitation in awarding ten million dollars if you felt it was justified under the evidence and the instructions of the court?
A: As I told you previously, I was on the Guthrie-Alcoa case and this one to me is very similar and I still have the opinion and judgment from that case and that was a large sum of money, and I don’t really think I am going into this case with a clear mind.
Appellants’ counsel next attempted to inquire into Mrs. Wheetley’s deliberations in the other case, but an objection was sustained. Then the following transpired:
A: From previous experience I do have feelings that are different now.
Q. Translating that into my question now, and the answer to my question about the ten million dollars, would you have any hesitation about giving as much as ten million dollars if you thought the evidence justified it?
A: I sure would.
Counsel then approached the bench and moved that the juror be struck for cause. The court then asked:
Q: Ms. Wheetley, if you’re chosen as a juror in this case, can you lay aside everything, I’m not talking about laying aside your common sense because you have a right and you should exercise that, but can you lay aside everything besides the case and the exercise of your common sense based on the evidence and based on the law and return the verdict that is appropriate whether it be for the defendant, or whether it be for the plaintiff and if the verdict be for the plaintiff return the amount of compensation that you feel is justified under the evidence and the law that you have heard? Can you do that? Forget about the figure of ten million dollars Mr. Whetstone asked you and I’ll just ask you can you do that?
A: Yes.
The motion to strike for cause was denied, and the appellants used a peremptory challenge to strike Mrs. Wheetley.
Appellants argue that the trial court’s instruction to Mrs. Wheetley to “forget about the figure of ten million dollars Mr. Whetstone asked you. . .” was disparaging, belittling and prejudicial. However, appellants made no objection. It has long been the rule in this state that an objection must be made to the trial judge’s conduct before the issue may be considered on appeal. Life & Cas. Ins. Co. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). See also Smiths. Perkins, 246 Ark. 427, 439 S.W.2d 275 (1969).
Appellants also argue that the trial court erred in refusing to strike Mrs. Wheetley for cause. They contend that they wanted to use their peremptory challenges to strike three other jurors and argue that the necessity of using a peremptory challenge to strike Mrs. Wheetley forced them to leave one objectionable juror on the panel. None of the three other jurors were challenged for cause. We affirm on this point because there is no proof in the record to substantiate the appellants’ assertion of prejudice. In Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974), this court held:
We need not decide whether the circuit judge abused his discretion in this instance. The questioned juror did not sit on the jury. It has been a long-standing rule in this state that a party is not entitled to claim prejudice in such circumstances unless it is shown that he was forced to accept some objectionable or disqualified juror without the privilege of exercising a peremptory challenge. Arkansas State Highway Comm’n v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955. No juror who was challenged for cause served on the jury and it is not shown that appellant would have otherwise struck the name of some juror other than the three actually stricken.
We find Rickett to be determinative in this case.
4. The incident with the jury foreman.
Shortly after the jury retired to deliberate, the jury foreman suddenly walked into the room where the trial judge and counsel for both parties were sitting. The record’s only reference to this incident appears in the trial court’s order denying the appellants’ motion for new trial. According to the order:
4. Within a few minutes after retiring in the present case the jury foreman came to the trial judge, and in the presence of all attorneys, stated some of the jurors wanted a definition of the word “occurrence.” The foreman inquired if it meant only the “seizure or what.”
5. The Court stated no further explanation could be given by the Court; gave the jury foreman the written instructions; and told the foreman that the jury should resolve that question from all evidence received and the law as contained in the instructions.
The word “occurrence” appeared in interrogatories proposed by the appellants and submitted to the jury over the appellees’ objection. No party objected to the court’s manner of handling the incident with the jury foreman.
The procedure to be followed in civil cases when the jury desires further instruction during deliberation is governed by Ark. Code Ann. § 16-64-115 (1987), which states:
After the jury has retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel.
An almost identical statute, Ark. Code Ann. § 16-89-125(e) (1987), governing the procedure in criminal cases, has been construed many times. In every case decided under the criminal statute the court communicated significant information to the jury without complying with the statute. In Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1979), this court held that strict compliance with the criminal statute is mandatory.
In Andrews, this court discussed the dangers inherent in the court’s conversing with one juror after deliberations have begun:
[W]here answers are given to only one member of the jury, and he in turn reports that answer to the other jurors, there is a great opportunity for misconstruction. After all, the juror is not a lawyer and, though honestly and conscientiously endeavoring to convey to the other jurors the answer of the court, will necessarily only give his interpretation of what was said; this interpretation may be erroneous. Of course, it is also possible that the single juror might not hear correctly everything the court said.
These dangers are, of course, equally present in a civil case, and we hold that compliance with the civil statute is also mandatory. Prejudice is presumed from a violation unless we can say with confidence that lack of prejudice is manifest. We find that lack of prejudice is manifest in the present case.
Section 16-64-115 commands that the information required be given to the entire jury in the presence of, or after notice to, the parties or their counsel. The statute prescribes the method of communicating the information required, not necessarily the information requested. Before additional information is given, the trial court must determine whether the information requested is required. The trial court has broad discretion to decide what information should be given to the jury. Dickerson Constr. Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979); Rose v. King, 170 Ark. 209, 279 S.W. 373 (1926); Dodwell v. Mound City Sawmill Co., 90 Ark. 287, 119 S.W. 262 (1909). If the trial court decides that further information is required, Section 16-64-115 governs the method of communicating that information to the jury.
In the present case, the trial court determined that no information was required and so informed the foreman. No information was given. The only violation of the statute was in the foreman’s requesting clarification himself rather than sending the deputy to convey the request. The appellants could have requested that the jury be brought in for further instructions, but did not. The appellants could have objected to the court’s method of handling the incident, but, again, did not.
The statute governing further instructions to the jury in civil cases, Section 16-64-115, was discussed in Dickerson Constr. Co., Inc. v. Dozier, supra. In Dickerson the jury sent the deputy to request that it be furnished a damages chart used by the appellee in closing argument. The chart had not been introduced into evidence. The trial judge and appellant’s counsel were not present. Appellee’s counsel gave the chart to the deputy, who took it to the jury. As soon as he learned of the incident, appellant’s counsel moved for a mistrial. This court reversed because “appellant had no opportunity to object or to ask the court to give the jury a cautionary instruction.” Appellants in the present case had both of those opportunities. Accordingly, in these circumstances, we find that there was no prejudicial error. See also Stull v. Ragsdale, 223 Ark. 277, 620 S.W.2d 264 (1981).
5. Alleged jury confusion.
Appellants allege that the verdict was the obvious result of jury confusion over the meaning of the word “occurrence.” The allegedly confusing word appeared only in interrogatories proposed by the appellants and objected to by the appellees. When the incident with the jury foreman occurred, the appellants did not request that the jury be further instructed. Nor did the appellants ask that the jury be polled after it returned its verdict or question the verdict before the jury was discharged.
The sanctity of jury deliberations is a fundamental precept of our adversary system. The public interest in preserving the confidentiality of jury deliberations is embodied in an evidentiary rule making jurors incompetent to:
testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his or any other juror’s affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received. . . .
A.R.E. 606(b).
The evidence rule includes an exception applicable when a question is raised as to whether extraneous prejudicial information was improperly brought to the jury’s attention or whether outside influence was improperly brought to bear upon any juror, but no such question is raised here.
This court has held that “as a general rule, the failure to object to some irregularity in a verdict prior to the discharge of the jury constitutes a waiver of that irregularity.” Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). Since no timely objection was made by the appellants, we affirm on this point.
6. The quality-care committee privilege.
Arkansas, like virtually every other state, has created a medical quality-care committee privilege. Ark. Code Ann. § 16-46-105 (1987). The statute provides:
(a) The proceedings, minutes, records, or reports of organized committees of hospital medical staffs or medical review committees of local medical societies having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records compiled or accumulated by the administrative staff of such hospitals in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications. Neither shall testimony as to events occurring during the activities of such committees be admissible.
(b) Nothing in this section shall be construed to prevent disclosure of the data mentioned in subsection (a) to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data, nor to prevent discovery and admissibility if the legal action in which such data is sought is brought by a medical practitioner who has been subjected to censure or disciplinary action by such committee.
(c) Nothing in this section. . . shall be construed to apply to original hospital medical records, incident reports, or other records kept with respect to any patient in the course of business of operating a hospital or to affect the discoverability or admissibility of such records.
Appellants allege that the quality-care committee privilege created by Section 16-46- 105(a) was applied too broadly by the trial court and that, as applied by the trial court, the privilege violates Ark. Const, art. II. § 13. We hold that the trial court did not err in its application of the privilege. Therefore, we do not reach the appellants’ constitutional argument.
At the first trial of this case, the appellants were allowed to introduce the records of a post-incident disciplinary proceeding against one of the nurses. Appellants contended that the records were admissible under subsection (c) of the privilege statute. This court reversed, holding that the records were within the privilege described in subsection (a). HCA Health Serv. of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988).
At the trial on remand, the appellees took the position that virtually everything any physician or hospital employee did or said at any time was protected by the privilege. The appellants argue that the trial court agreed with the appellees’ overbroad application of the privilege. However, the record does not support the appellants’ argument. For example, the treating physician, who was a member of the hospital’s pediatric committee, was allowed to testify over the appellees’ objection to his conversations with the manager and other hospital employees about the shortage of nurses.
The appellants also contend that they were not allowed to cross-examine the hospital manager about conversations concerning a nursing shortage. The record reflects that the court overruled the appellees’ objection to that line of cross-examination. Appellants’ counsel then asked a question that confused the witness and when the court instructed counsel to restate the question, counsel instead withdrew the question and proceeded to another line of inquiry.
The appellants further contend that error occurred when they were not allowed to use some blown-up charts during their questioning of one of the nurses. The charts contained prior statements of the witness, some of which the trial court found should be excluded by the privilege. The court required that the charts be redone to omit the privileged statements. No proffer was made and there is nothing in the record to indicate that the court erred. Failure to make an offer of proof precludes review of this issue on appeal. See A.R.E. 103(a)(2).
The appellants also argue that the court erred in directing their hospital safety expert not to base any of his opinions on facts he had learned from examining quality-care committee records. The expert told the court he had no intention of doing so. This was not error.
Additionally, the appellants allege error in the exclusion of the deposition of another physician who had been a member of the pediatric committee. A portion of the deposition had been introduced at the first trial. In the deposition the physician had related his conversations with the hospital manager about the shortage of nurses. The court excluded this deposition in its entirety on the ground that it related almost entirely to committee proceedings. Appellants made no proffer of the deposition. A.R.E. 103 (a) (2) requires an offer of proof before alleged error in excluding evidence may be considered on appeal. Without the deposition, this court cannot question the rectitude of the trial court’s decision.
7. Misconduct of counsel.
Appellants assert that appellees’ counsel was guilty of misconduct. They assert that appellees’ counsel argued during opening statement, made improper closing argument, made frivolous objections, asked leading questions, moved repeatedly for mistrial, asked a question calculated to make a witness break down, improperly referred to the former trial, and used “a tone of voice carrying the clear message that he feels the Deity is on his side. . . .” We agree with the trial court’s finding, in its order denying appellants’ motion for new trial, that “the conduct of the attorneys in this case, while spirited and persistent, did not constitute misconduct.”
In support of their argument, the appellants rely on Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). In Alexander, this court reversed and remanded because that case presented “the unique situation where counsel was repeatedly admonished and the court repeatedly sustained objections to the leading questions, was even presented with a motion to strike the testimony, yet counsel’s conduct was not stopped.” We empha sized that “our decision is necessarily limited to the facts this record presents. . . . The question on appeal is whether the trial court abused its discretion. . . . We do not, as a matter of course, reverse on the basis of such allegations even if they are borne out by the record.”
The record in the present case does not reveal the kind of flagrant violations of the trial court’s rulings that were present in Alexander. We will briefly discuss each of the appellants’ assertions of misconduct.
Both the appellants and the appellees objected during opening statements and closing arguments; the trial court properly instructed the jury that statements and arguments of counsel were not evidence and should be disregarded if not supported by the evidence. Both the appellants and the appellees made frequent objections throughout the trial; their objections were made in good faith and were not frivolous. Counsel for appellees did not engage in excessive leading questions and did not ignore the trial court’s rulings when it sustained the appellants’ occasional objections to leading. Appellants cite six instances where the appellees moved for a mistrial; each motion was made out of the hearing of the jury, and no prejudice resulted.
The witness who broke down was a nurse called as an adverse witness by the appellants. After the appellants’ lengthy examination, the first question asked by appellees’ counsel was: “[Wjhen you and I met the first time, I believe you had returned after some leave [of] absence due to a very tragic loss of your own. Is that correct?” The witness said, “yes.” Appellees’ counsel then began inquiring about the nursery room. After two questions, the witness requested time to compose herself. Nothing in the record supports the argument that the witness’s loss of composure was deliberately caused by appellees’ counsel.
The appellees, of course, wanted to prevent any reference to the first trial because it had resulted in a large verdict for the appellants. The appellants had made a motion in limine for permission to refer to the first trial, with an instruction to the jury that it should not influence their deliberations. The court forbade all reference to the first trial. Appellees’ counsel, while reading into evidence excerpts from the deposition of one of the appellants’ expert witnesses, read an answer that included the lan guage, “I probably billed him around. . .four thousand dollars for everything that I did up to and including the trial in 1986.” No objection was made. After the appellees rested, appellants requested permission to mention the first trial in closing argument because of alleged prejudice aroused by the deposition reference to the first trial. The court denied the request, holding that there was no substantial prejudice to appellants and that further mention would only emphasize the matter. The court did not abuse its discretion.
“A tone of voice carrying the clear message that he feels the Deity is on his side. . .” is a characteristic every trial lawyer seeks to acquire. Whether a lawyer adopts the stentorian manner of Daniel Webster, the quiet reason of Abraham Lincoln, or the bombastic passion of Billy Sunday, the goal is the same: to persuade the jury that his side’s theory of the case enjoys the imprimatur of justice, truth and right. The lawyer who achieves this pinnacle of credibility should be praised, not censured.
8. Costs.
Appellants request that this court award them $3,404.60 costs for additional parts of the record unnecessarily designated by the appellees. The appellants submitted an itemized list of parts of the record for which they assert the appellees should be responsible. Many of these items were pretrial matters and were outside the scope of the appellees’ supplemental designation of record. The remainder consisted of the transcript of testimony of trial witnesses. The appellants raised broad, general issues on appeal, particularly with regard to the alleged misconduct of appellees’ counsel. To effectively respond to such allegations, the appellees reasonably considered it necessary to have the transcript of the testimony of all trial witnesses. We cannot say in hindsight that the additional portions of the record designated by the appellees were unnecessary to the consideration of the issues. Accordingly, the appellants’ motion to retax costs is denied.
Affirmed.
Special Justices Jerry Cavaneau and A. D. McAllister join in this opinion.
Newbern, Turner, and Price, JJ., not participating. | [
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David Newbern, Justice.
The appellants, Douglas W. and Vivian Elaine Rogers, mortgaged their homestead to the appellee, Great American Federal Savings and Loan Association (Great American), to secure a $500,000 note. The Rogerses borrowed the money and executed the note in favor of Great American to finance Mr. Rogers’ home-building business. After default, the Rogerses defended against a foreclosure action on the ground that their homestead was not subject to foreclosure because of the homestead exemption. Ark. Const, art. 9, § 3. They contend the waiver of homestead rights contained in the mortgage instrument they signed is invalid because it violates the Constitution and because of an improper acknowledgement. We affirm the chancellor’s holding th.at the homestead rights were waived.
1. The homestead exemption
The Rogerses have presented research on the history of the homestead exemption in Arkansas, including discussion of the constitutional debates with respect to art. 9, § 3, as it appears today and in the 1868 predecessor to our current document. Article 9, § 3, now reads, in pertinent part, as follows:
The homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’ or mechanics liens for improving the same,
They argue that the exception for “specific liens” is general language limited by the specific succeeding reference to “laborers’ liens or mechanics’ liens.” As the mortgage lien in this case is neither for purchase money nor a laborer’s or mechanic’s lien, they contend it is not excepted from the prohibition. They also argue that the protection they are given by the constitutional provision is not subject to waiver. We need not consider the question presented about the grammatical construction of the constitutional language because we find that, regardless of whether the mortgage was the type of specific lien contemplated, any protection to which the Rogerses might have been entitled was waived by them.
2. Waiver
a. The acknowledgement
The Rogerses argue that the acknowledgment of their signatures required by Ark. Code Ann. § 16-4-101 (1987) for recording purposes was defective. They contend that the waiver of homestead was thus ineffective.
The eligibility of the mortgage for recording is irrelevant to its validity as between the parties to it. Shuffield v. Raney, 226 Ark. 3, 287 S.W.2d 588 (1956); Leonhard v. Flood, 68 Ark. 162, 56 S.W. 781 (1900). See also Cloverleaf Development, Inc. v. Provence, 273 Ark. 12, 616 S.W.2d 16 (1981); Western Tie & Timber Co. v. Campbell, 113 Ark. 570, 169 S.W.2d 235 (1914). Even if we agreed the acknowledgement was defective it would not affect the validity of the mortgage as between the Rogerses and Great American.
b. Constitutionality
The Rogerses argue that because of the mandatory nature of the language in art. 9, § 3, a person entitled to the benefit of a homestead exemption may not waive it. They cite Starr v. City National Bank, 159 Ark. 409, 252 S.W.2d 356 (1923), and Phillips v. Colvin, 114 Ark. 14, 169 S.W. 316 (1914), but neither case supports the argument. Nor do any of several Texas cases cited by the Rogerses go that far in interpreting a similar Texas Constitution provision. See, e.g., Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24 (Tex. App. 5 Dist. 1985); Barnett v. Eureka Paving Co., 234 S.W. 1081 (Tex. App. 1921).
While we are tempted to research and write about the general issue of waiver of constitutional rights, we decline to do so because no argument in that respect has been offered by the parties.
This court has recognized waivers or releases of homestead rights for many years, Mayfield v. Sehon, 205 Ark. 1142, 172 S.W.2d 914 (1943); Free v. Harris, 181 Ark. 644, 275 S.W. 510 (1930); P. Jones, Arkansas Titles, § 889 (1935). Although none of our opinions reveals that an argument was made to the effect that the language of art. 9, § 3, prohibits waiver, we have been presented with no convincing authority that our long standing recognition of waivers or releases of homestead rights has been in error.
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Jack Holt, Jr., Chief Justice.
The appellant, Michael Wayne Williams, was convicted of murder in the first degree, kidnapping, and aggravated assault and was sentenced to prison terms of life, twenty years, and six years, respectively, to run consecutively.
Williams’ sole point of error on appeal is that the trial court erred in not granting his motion for a directed verdict on the charge of murder in the first degree. We disagree and affirm.
Sometime after midnight on August 13, 1989, Williams went to the home of the deceased, Virginia McGee, seeking his ex-girlfriend, Robin Jefferson. Ms. Jefferson had been living with Ms. McGee, who was her aunt.
Testimony at trial revealed that Williams and Ms. Jefferson had been boyfriend and girlfriend for approximately three years and had had a child together. A month before the murder, Ms. Jefferson ended the relationship, stating that Williams had been physically abusive. Ms. Jefferson testified that following their breakup, Williams repeatedly called and threatened her.
On one occasion, Williams fired a gun at Ms. Jefferson from his car and then ran his car into hers, causing her to run into a telephone pole. It was from this incident that Williams was convicted of aggravated assault. On another occasion, for which the jury convicted him of kidnapping, Williams forced Ms. Jefferson to leave her aunt’s house with him at gunpoint. After making her drive around for some time, while he threatened to kill Ms. Jefferson and himself, Williams finally allowed her to return home.
The night Williams came to Ms. McGee’s home, Robin Jefferson was staying with her grandmother. Ms. McGee was at home with her boyfriend, Willis Stewart. Mr. Stewart testified that they had fallen asleep in the back bedroom and awoke to find Williams standing in the doorway, holding a gun. Williams asked, “Where’s she at?” indicating Ms. Jefferson. At that point, Ms. McGee got up and told Williams to leave. She and Williams proceeded down the hall towards the front door, arguing all the while. Mr. Stewart testified that Williams kept asking where Robin was and that “he was just kind of in a rage.” Mr. Stewart heard the screen door slam and Ms. McGee walking back down the hall, at which point he heard gunshots. Williams then ran back down the hallway to the bedroom, again asking “Where’s she at?” Mr. Stewart stated that “at this time I realized that he either shot at her or shot her.” Williams then fled, and Mr. Stewart found Ms. McGee in the front bedroom, huddled beside a dresser. Mr. Stewart attempted to telephone for help but was unable to get a dial tone, whereupon he went to a pay phone and called the police and ambulance.
At trial, Williams’ counsel made timely motions for a directed verdict on the basis that the state had failed to meet “its burden of showing there was any purposeful action or conscious object on Mr. Williams’ part to kill Ms. McGee.”
A motion for a directed verdict is a challenge to the sufficiency of the evidence. On appeal, we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). Evidence is substantial to support a conviction if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).
The jury was properly instructed in accordance with Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989), that to sustain the charge of murder in the first degree, the state must prove, beyond a reasonable doubt, that “with the purpose of causing the death of Virginia McGee, Michael Williams caused the death of Virginia McGee.” A person acts purposely with regard to his conduct or a result thereof when it is his “conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1)(1987).
We hold that there was substantial evidence from which the jury could have concluded that Williams purposely caused the death of Virginia McGee.
In addition to Mr. Stewart’s testimony, recounting the events as he heard them from the bedroom, Captain Randy Johnson, with the North Little Rock Police Department, testified concerning an interview he conducted with Williams. Williams’ account of the incident matched Mr. Stewart’s.
According to Captain Johnson, Williams told him and Sergeant Jim Chapman that he had experienced ongoing problems with the family because of his relationship with Robin Jefferson. He stated that he arrived at Ms. McGee’s home on August 13 looking for Ms. Jefferson armed with a handgun. Upon his arrival, Williams disconnected the telephone wires at the back of the house so that no one could call the police, as had been done upon his previous visits to the home. Sergeant Chapman verified this fact from his inspection of the telephone box at the residence.
After no one responded to the front door bell, Williams went around to the side of the house and gained entry there by forcing the door open. Williams told Captain Johnson he went to the back bedroom where he found Ms. McGee and Mr. Stewart asleep. Williams asked Ms. McGee where Robin was and the two began arguing as she escorted him down the hall, telling him to leave. Williams related that Ms. McGee opened the front door and a shoving match ensued, whereupon Ms. McGee stated something to the effect that “you’re not the only one who’s got a gun,” and started walking across the living room to the hallway. Captain Johnson testified that Williams said when Ms. McGee got across-the living room? he raised the gun and fired two shots, not knowing whether or not he had hit her.
Dr. Fahmy Malak, Chief Medical Examiner with the State Crime Laboratory, testified that an autopsy of the body revealed that Ms. McGee was shot once in the abdomen and once in the lower back. Dr. Malak stated that both wounds contained gunpowder residue, indicating a close shooting range of approximately three feet. Evidence reflects Ms. McGee was shot with a .45 caliber weapon.
Williams argues that the shots were fired in frustration and, while the evidence shows that he intentionally entered the home, it does not show that he intended to kill Ms. McGee since his quarrel was not with her but with her niece, Robin Jefferson.
Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). It is irrelevant that Williams’ initial quarrel was with Ms. Jefferson when he came to the house. The jury could reasonably have found that Williams became so upset with Ms. McGee that he raised his gun and fired, purposely intending to kill her. We have said that even premeditation and deliberation can be formed on the spur of the moment, see Salley v. State, supra, and the same is true of purposeful intent.
Furthermore, the intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Garza v.State, 293 Ark. 175, 735 S.W.2d 702 (1987). It is reasonable to conclude that when the appellant fired shots from a .45 caliber pistol into the victim’s abdomen and back, from a distance of a few feet, he possessed a purposeful intent to kill.
Under Ark. Sup. Ct. R. 11(f), an examination has been made of all other rulings adverse to Williams, and none constitute prejudicial error. For the reasons above, we affirm. | [
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Jack Holt, Jr., Chief Justice.
The United States Tobacco Company (Company), a Delaware corporation with its principal place of business in Connecticut, appeals from the trial court’s decision to uphold assessments by the State of Arkansas for income taxes, interest, and penalties for tax years 1980 through 1985. The Company contends that the trial court erred in characterizing the Company’s activities in Arkansas as beyond the scope of “solicitation” of orders, and thus subject to state tax, and that it rendered findings of fact which were clearly erroneous and unsupported by evidence in the record. We disagree and affirm.
The appellee, Director of the Department of Finance and Administration of the State of Arkansas (Director), conducted a corporate income tax audit of the Company’s sales of tobacco products to wholesalers in Arkansas and determined that the Company owed a tax deficiency, together with interest and penalties, in the amount of $449,729.84. The Director based his assessment on the Company’s business activities within the state and figured the deficiency in accordance with Ark. Code Ann. §§ 26-51-205 and 702 (1987).
The Company protested the assessment, claiming that its instate activities amounted to nothing more than “solicitation” and were therefore immune from taxation under 15 U.S.C. § 381(a) (1982 and Supp. IV 1986).
Following a ruling in favor of the Director by the Administrative Hearing Board, the Company brought suit in the Chancery Court of Pulaski County to overturn the assessment. After trial, and submission of briefs by the parties, the chancellor held that the Company’s activities exceeded the scope of “solicitation” as set forth in section 381(a) and provided a sufficient and requisite nexus for taxation in Arkansas. The court sustained the assessment with additional interest from the date of the assess ment to date of full payment. The Company now appeals.
The “business activities” at issue concern the duties and performances of five full-time consumer marketing representatives (CMRs) employed by the Company, who live and work in Arkansas.
The Company, as we said, is based in Greenwich, Connecticut. It sells its products in Arkansas through wholesalers who place orders by telephone through the Company’s telemarketing department in Greenwich. Upon acceptance, orders are filled at the Company’s warehouse in Greenwich and then shipped, via Nashville, Tennessee, to the wholesalers in Arkansas. The Company does not store any company-owned products in Arkansas, nor does it own or lease any property here.
It is the duty of the CMRs to promote the Company’s products among consumers and retailers, who, it is hoped, will then buy the products from the wholesalers. The CMRs have no authority to accept orders or to conduct credit checks. The five representatives are salaried employees, each of whom is provided a van and approximately four to five cases of smokeless tobacco products.
Fred Dunavant, a Division Manager in the Company who conducts on-site training of the CMRs in Arkansas, testified that the CMRs visit convenience store retail outlets where they organize the display of “point of sale” or advertising materials, discuss pricing setups, and sometimes distribute free samples to patrons of the store.
In addition, the CMRs make inventory checks, both at the wholesale warehouses and at the retail stores. Dunavant testified that the CMRs check for “product movement” and for stale or obsolete products. He stated that the wholesalers normally separate the current from the stale products themselves. The CMRs then pick up the outdated products and the Greenwich office issues credit to the wholesaler.
At the retail store, the CMRs occasionally replace stale products or replenish a retailer’s dwindling supply from the stock in their vans. The CMRs provide the retailer with enough cans to last until the wholesaler is to make a regular visit. Dunavant testified that the wholesale representatives visit the retail stores approximately once or twice a week, while the CMRs visit approximately once every eight to sixteen weeks or maybe only twice a year depending on the account and promotional activities involved.
When the CMRs leave a requested product with the retailer, they usually account for it to the wholesaler through “bill throughs” wherein the retailer signs a document acknowledging receipt of the goods and the CMR delivers it to the wholesaler who bills the retailer for the product. On some occasions, the retailers pay the CMRs in cash for the replacement stock. Dunavant testified that the cash transactions were small and that the bill throughs accounted for only 11/100th of 1 % of the Company’s total sales in Arkansas.
Irvin McClain, former manager of Triangle Warehouse, a wholesaler of the Company’s products, testified that with regard to inventory checks at the wholesaler’s, the CMRs were “real strict on that inventory control.” McClain testified that the CMRs sometimes replenish their van stocks from the wholesalers’ supplies by paying cash or by applying bill throughs from the retailers against the products.
The chancellor, after making specific findings of fact, concluded that the CMRs’ responsibilities “were separate for the most part from solicitation,” in that the solicitation was regularly carried out from the Greenwich office through daily calls to the wholesalers. The chancellor likened the CMRs’ duties to “quality control people.”
SCOPE OF SOLICITATION
Section 381(a), upon which the Company bases its claims of immunity, provides:
(a) Minimum Standards
No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:
(1) the solicitation of orders by such person or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection and, if approved, are filled by shipment or delivery from a point outside the State; and
(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such persons, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).
We last examined this particular section of the United States Code and its effect on corporate income taxation of foreign corporations in Hervey v. AMF Beaird, Inc., 250 Ark. 147, 464 S.W.2d 557 (1971). After contemplating the purpose and language of the act, we concluded that Congress intended a narrow construction of the term “solicitation of orders.” Because the appellee, Beaird, failed to show that its only business activity was the solicitation of orders, we refused to grant summary judgment in favor of tax immunity. Although the pivotal factor behind our decision in Hervey differs from the case at bar, we adhere to our initial, narrow interpretation of “solicitation.”
In Hervey, unlike the present case, we were primarily concerned with the fact that Beaird, a foreign manufacturer of LP storage tanks, maintained consignment arrangements with its customers in Arkansas and therefore its activities did not pertain to solicitation of sales of personal property. We noted, however, that part of the duties of Beaird’s representatives was to make regular checks of customer inventories and that such activity alone extended beyond the scope of solicitation of orders.
We find support for this narrow interpretation of section 381(a) in Clairol, Inc. v. Kingsley, 109 N.J. Super. 22, 262 A.2d 213 (1970). There, the Superior Court of New Jersey found that Clairol’s representatives visited druggists at regular intervals, reviewed and rearranged Clairol displays, and conducted inventory checks. In addition, “detail people” called on beauty salons to instruct in the use of Clairol products. The court refused to extend section 381(a) immunity to any activity beyond mere solicitation.
Granted, other jurisdictions have not taken as narrow a view. Some have extended tax immunity to generally accepted or customary acts in the industry which lead up to the placing of orders, such as promotional activities and the initial organization of displays, yet they refuse to allow tax immunity for activities commonly associated with maintaining a business operation. Such unprotected activities may include maintaining and monitoring displays, replacing damaged or outdated goods, checking product inventory, pricing items for resale by wholesalers to retailers, and handling complaints. See Miles Laboratories, Inc. v. Department of Revenue, 247 Or. 395, 546 P.2d 1081 (1976); National Tires, Inc. v. Lindley, 68 Ohio App. 2d 71, 426 N.E.2d 793 (1980); Drackett Products Co. v. Conrad, 370 N.W.2d 723 (N.D. 1985); William Wrigley, Jr. Co. v. Wisconsin Dept. of Revenue, 153 Wis. 2d 559, 451 N.W.2d 444 (1989).
Still other states have declined to tax many of the activities falling within the “unprotected” category above, holding that such acts are acts of courtesy and are “inextricably related” to the eventual sale of the product. See U.S. Tobacco Co., v. Commonwealth, 478 Pa. 125, 386 A.2d 471 (1978); see also Gillette Co. v. State Tax Comm., 56 A.D. 2d 475, 393 N.Y.S.2d 186 (1977); Indiana Dept. of Revenue v. Kimberly-Clark Corp., 275 Ind. 378, 416 N.E.2d 1264 (1981). For a general discussion see T. Sweeney, State Taxation of Interstate Commerce Under Public Law 86-272: “A Riddle Wrapped in an Enigma Inside a Mystery,” 2 B.Y.U. L. Rev. 169 (1984).
Under our construction of solicitation, however, it is undisputed that the CMRs’ activities of 1) making inventory checks, 2) swapping out products, 3) selling products for cash from stock in their vans, and 4) buying stock from wholesalers exceed the scope of mere solicitation of orders. Even if we chose to follow the rationale of Miles Laboratories, supra, and National Tires, supra, for example, and adopted their more lenient construction of “solicitation,” the CMRs’ activities would still quite arguably fall within the unprotected spectrum of “activities commonly associated with maintaining a business operation.” See Drackett Products, Co. v. Conrad, supra.
The CMRs in Arkansas participated in ongoing display and inventory checks. Although their visits to the retail stores were much more infrequent than the regular visits of the wholesale representatives, they, nonetheless, checked with the retailers and replenished the stock or swapped out stale products at regular intervals. Similar inventory checks were maintained at the wholesale warehouses. This activity, in particular, places the CMRs in the business of maintaining completed sales transactions rather than merely carrying out activities incidental to the solicitation of eventual sales.
On appeal, we review exemption cases de novo and do not set aside the findings of the chancellor unless they are clearly erroneous. Ragland v. General Tire and Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989). There is a presumption in favor of the taxing power of the State and the claimant has the burden of establishing the right to an exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 753 (1976). We cannot say, in light of our holding in Hervey, that the chancellor’s finding that the Company’s activities exceed the scope of solicitation and provide a sufficient nexus for taxation in this state was erroneous. The Company failed to carry its burden beyond a reasonable doubt.
FINDINGS OF FACT
The Company also maintains that the court “misinterpreted some testimony and extrapolated too broadly from the evidence,” thus rendering findings of fact which were clearly erroneous and supported by evidence in the record. This argument, however, is of no moment since we find enough evidence in the record to support our holding, regardless of any possible misinterpretation of the facts by the chancellor.
The Company first objects to the court’s finding that car stock kept by the CMRs was “used on a frequent and usual basis by the CMRs to replenish the stock of retailers which the CMR determined to be outdated or damaged.” The Company argues that the evidence shows the visits were infrequent and that the exchange or sale of products on these visits amounted to a small percentage of the Company’s total sales in the state.
It is not the frequency of the visits or volume of sales however, upon which our decision turns. We are concerned with the nature of the Company’s activities, which, here, clearly exceeds our narrow interpretation of solicitation. The same reasoning applies to the Company’s second objection that the court mistakenly found that a CMR might go for “no more than a day or so without replenishing a retailer’s stock out of his own car stock.”
The Company’s third objection is the chancellor’s finding that “CMRs take business calls at home and keep a stock of company-owned products at home.” We concede that there is thin support in the record for this finding. Our decision, however, stands independent of this finding, and a determination of the correctness of this particular finding is not necessary to our holding.
Lastly, the Company’s contention that the court’s finding that the cases carried by the CMRs in their vans “are purchased from various wholesalers either for cash or for trade on bill throughs” is erroneous is without merit. This fact was established by Irvin McClain, state tax auditor, and although Fred Dunavant provided a different explanation for this transaction, and one the Company contends is correct, the chancellor’s finding, based on the testimony as a whole, was not erroneous. Again, we find other support in the record to justify our holding without the need for reliance on this particular fact.
Based on the above reasons, we conclude that the Company’s business activities in Arkansas, through the work of their representatives, exceeded mere “solicitation” as contemplated by section 381 (a) and that these activities provided a sufficient nexus for taxation in this state.
The chancellor’s ruling is affirmed.
Turner, J., dissents. | [
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David Newbern, Justice.
This is a workers’ compensation case. We review an Arkansas Court of Appeals decision Death and Permanent Total Disability Trust Fund v. Hempstead County, 32 Ark. App. 36, 796 S.W.2d 351 (1990), interpreting Ark. Stat. Ann. § 81 -1310(c) (2) (Repl. 1976) which applied to an injury which occurred in 1977. The statute is as follows:
The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act [§§ 81-1301 - 81-1349]. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund.
Due to a hip injury, the appellee, Public Employee Claims Division, began paying Coy Hutson permanent total disability benefits of $84.00 per week. Hutson died of complications resulting from hip replacement surgery on November 14, 1981. The Public Employee Claims Division thereafter paid Hutson’s widow $47.60 per week in widow’s benefits. The Death and Permanent Total Disability Trust Fund contends its obligation does not commence until the employer or insurance carrier has paid $50,000 in weekly benefits to the widow. The Public Employee Claims Division contends that the Fund’s obligation begins when a total of $50,000 in weekly benefits has been paid, including both the payments to the injured employee and those to the widow.
The Workers’ Compensation Commission held that the Public Employees Claims Division could credit the weekly benefits paid to Hutson as well as the amount paid to his widow against the $50,000 maximum. The court of appeals affirmed, and so do we.
We agree with the Fund’s contention, supported by its citation of Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), that a principal rule used to interpret statutory provisions is that we give the words their ordinary meaning and apply them just as written. That rule does not work, however, when there is ambiguity. The first sentence in the statute presents a little ambiguity. The problem is that it refers to $50,000 only once, and speaks of the “first” $50,000, but is uses the disjunctive “or” between “death” and “permanent total disability.” If the general assembly intended that the employer be required to pay $50,000 in death benefits or $50,000 in permanent total disability benefits before the Fund would pick up the payments, a clearer statement would have been “The first Fifty Thousand Dollars of weekly benefits for death or the first Fifty Thousand Dollars of weekly benefits for permanent total disability shall be paid by the employer. . . .” As it is written, the sentence leaves some doubt.
The ambiguity is heightened when the second sentence is considered with the first. Again, the disjunctive “or” is used, this time between “employee” and “dependent,” but the sentence concludes by again referring to only one $50,000, i.e., “all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Disability Bank Fund.” The latter statement seems to say that the employer is responsible for a total of $50,000 whether it be paid to the employee, his widow or, as in this case, both.
When confronted with language which is ambiguous, we must attempt to ascertain the general assembly’s intent. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). While it is true that the benefits to the employee and the benefits to his survivors are entirely different, originating in different portions of the workers’ compensation laws, that fact is of no consequence in deciding the issue here. The question is the extent of the burden the employer must bear prior to the fund taking over.
We cannot think why the general assembly would require a greater expenditure in weekly benefits if an employee should die, for example, just before the employer paid the last weekly payment. There is no reason we can think of for making that employer pay out another $50,000 to the deceased employee’s dependent before the fund is required to pay. We believe the intent of the legislation was to create a maximum of $50,000 of weekly benefits against any employer of a worker who becomes permanently totally disabled as the result of a compensable injury. By stating that “all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable” by the Fund, both permanent total disability and dependents’ benefits resulting from the workers death are included, and employers of employees who become totally disabled as the result of a compensable injury will have the same maximum liability for weekly payments.
Presumably, the reason for the limit on ■ an employer’s liability is to keep workers’ compensation from being too burdensome on the employers who, through insurance or self-insurance reserves, must pay for it. The fund will undoubtedly have to pay different amounts in various cases where the maximum has been reached, but that would be true regardless of the maximum placed on the employers’ responsibility.
In addition to our conclusion concerning the intent of the general assembly, we find the result we reach here to be compatible with that we reached in Hill v. CGR Medical Corp., 282 Ark. 35, 665 S.W.2d 274 (1984). There the issue was whether an employer had to pay each dependent of a deceased permanently totally disabled worker before the fund was required to pay. Our opinion included the following:
The language and intent of the statute are apparent. Had the General Assembly intended that each dependent must draw $50,000 in the weekly funds before becoming eligible to draw from the bank fund the act would have so stated and would not have provided that the employer or its carrier pay the first $50,000 and would not have provided that all benefits in excess of $50,000 are payable from the bank fund. (Emphasis in original.)
While the issue there was different, as the court was not concerned with the conjunctive “or,” the underlying rationale is one of those we apply here. Had the general assembly intended the employer to be liable for more than $50,000, it would have said so much more clearly.
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John A. Fogleman, Justice.
This is an appeal from an order of the chancery court denying' appellant’s motion to dismiss a divorce action and holding him in contempt of court.
The parties had lived together in Little Rock until early July 1966 when the wife left and went to Faulkner County where she filed the ■ suit on July 12, 1966. She took their children with her and obtained employment in Conway. Appellant was served with summons in Pulaski County and filed an answer and an amended answer. In the latter pleading he admitted appellee’s allegation of residence in Faulkner County, denying only the alleged grounds for divorce. Appellant came to Conway where appellee was living on December 11th and the parties lived together as husband and wife in a house she had rented until December 16th when a hearing on her divorce petition had been scheduled. Appellee says that appellant asked her every night when he came home from work if she had called off the divorce action. On December 16th. at 8:45 A.M. she called her attorney, told him they “had gone back together” and asked that the case be dismissed. She said that appellant had asked her to take him back and that she did on his promise to be a hnsband to her and a father to the children. She asked dismissal of the suit on the basis of this promise. Appellant appeared in court on December 16th and represented that the parties had reconciled and that he had moved to Conway. The court then made a docket entry showing the case dismissed. Appellant testified that he left the courtroom about 11 A.M., went back to the house where he stayed a few minutes, and then went to Little Rock where he called his present attorney about 2 P.M. Thereafter a divorce suit was filed in his behalf in Pulaski County and a summons was served on appellee about 4 P.M. when she returned home from work. Appellant’s only explanation for these actions was: “I just got to thinking about it and decided I wasn’t happy and decided to contact my attorney.”
The chancellor, by order made on December 28th during the same term of court, vacated the December 16th docket entry. He also ordered appellant to show cause on January 6, 1967 why temporary support orders should not be reinstated and why he should not be adjudged in contempt. On that date appellant appeared and filed a motion to vacate the order of December 28th and reinstate that of December 16th, alleging that ap-pellee was not a resident of Faulkner County and that the Pulaski Chancery Court had jurisdiction of the subject matter and the parties. After a hearing on February 10th, the trial court denied the motion to vacate, reduced the amount previously fixed for child support payments, and held appellant in contempt of court. The order provided for a sentence of thirty days in jail and a fine of $100.00, both of which were suspended. Appellant gave notice of appeal from the court’s order and stated alternatively that he would ask this court for a writ of prohibition against the trial court from further proceeding in this matter because of jurisdictional questions. Appellant, however, has proceeded by appeal, seeking reversal of the action of the trial court and dismissal of the action. He has not asked for a writ of prohibition here.
The order of the trial court on appellant’s motion is not a final judgment and not appealable. For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the s in their former condition after the expiration of the term; dismiss the parties from the. court; discharge them from the action; or conclude their rights to the matter in controversy. City of Batesville v. Ball, 100 Ark. 496, 140 S. W. 712; Piercy v. Baldwin, 205 Ark. 413, 168 S. W. 2d 1110. This court has consistently followed this rule. In State to Use of Ashley County v. Riley, 194 Ark. 485, 107 S. W. 2d 548, an order of a trial court requiring a plaintiff to proceed on an amendment to his complaint, rather than on the original complaint, was held not appealable. An order of a circuit court remanding a. case to the Workmen’s Compensation Commission for further development of facts was held not to be a final or appealable order. C. H. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S. W. 2d 937. An a ripea] will not lie from an interlocutory order relating onlv to some question of. law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith. City of Batesville v. Ball, supra.
Even if we treat appellant’s motion as one to dismiss the action for want of bona fide residence of ap-pellee, as the learned trial judge apparently did, the order is not appealable. Wicker v. Wicker, 223 Ark. 219, 265 S. W. 2d 6. Furthermore, appellant’s position would not be helped if we treated his appeal as.a petition for a writ of prohibition. Where there is a dispute as to domicile in a divorce action, prohibition is not the proper remedy to test the correctness of a denial of a motion to dismiss. Clement v. Williams, 227 Ark. 199, 297 S. W. 2d 656. Nor is it appropriate in any case where more than one inference might be, drawn from the testimony. Coley v. Amsler, 226 Ark. 492, 290 S. W. 2d 840.
Appellant has also mistaken his remedy on that part of the order holding him in contempt of court. The proper remedy is by certiorari and not appeal. Ex Parte Butt, 78 Ark. 262; 93 S. W. 992; Whorton v. Hawkins, 135 Ark. 507, 205 S. W. 901; Ex Parte Johnston, 221 Ark. 77, 251 S. W. 2d 1012.
This order fails to state the facts constituting the contempt as it should. Ex Parte Davies, 73 Ark. 358, 84 S. W. 633. This failure does not render the judgment void, but the failure of the alleged contemner to ask that they be recited prevents review on certiorari. Ex Parte Chastain, 94 Ark. 558, 127 S. W. 973. Even if we said that these deficiencies were supplied by reason of the fact that the entire record in the case was designated and brought up, there is no basis for relief to appellant. The order itself discloses that the punishment for contempt was suspended. From the record, it does not appear that the suspension was merely a postponement of sentence so it amounts to complete remission in case of criminal contempt such as this. Stewart v. State, 221 Ark. 496, 254 S. W. 2d 55. Thus, this question is moot.
The appeal is dismissed.
His present attorneys were not representing him in the Faulkner County proceeding at that time. Appellant states that he first tried to contact the attorney who was representing him hut was unsuccessful. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Appellee, Viva Casey, was employed by Ottenheimer Brothers Manufacturing Company, appellant herein, in its plant located in Little Rock. Mrs. Casey’s job was to hand pleat skirts, set collars, run a pinking machine, and put tape on dresses manufactured by the company. Appellee’s wages averaged about $57.90 per week, and her working hours were 7:30 A.M. to 4:00 P.M., five days per week, with morning and afternoon breaks of ten minutes each, and thirty minutes for lunch. On the night of May 6, 1965, Mrs, Casey became ill with what she described as “gas pains,” a hurting in the upper part of her stomach and chest. She stated upon awakening next morning, she did not feel good, but had no pains. She went on to work, but began to feel worse, and about 8:30 or 8:45, after lifting a heavy bundle, she felt a pain in her chest. She endeavored to continue work until about 9:30, when she was forced to stop. Mrs. Casey stated that the pain “left my chest, and went up into my arm and shoulder and it seeemd like it would run down my arm and it was just as if you had cut it off. ’ ’ She went to the first aid room and rested for a while. When th? lunch hour arrived, appellee was unable to eat, and a fellow employee took her home. That afternoon, she went to the office of Dr. E. J. Ritchie, and subsequently (on October 8, 1965) was examined by Dr. Alfred Kahn, Jr.; also, Drs. Ben Price and James Wilson, cardiologists, made an examination on July 12, 1965. In the meantime, on Monday, May 10, Mrs. Casey returned to work, and worked through Thursday, May 13; while at home that night, she suffered another attack, and has-not worked since that time. Another attack was also suffered in June. Appellee filed a claim for compensation benefits, and the matter was heard by a referee. At the conclusion of the hearing, an award was made, but on appeal to the full commission, same was denied. This action of the commission was appealed to the circuit court, which reversed the commission. From the judgment so entered, appellant brings -this appeal.
Here, of course, under our well established rule in compensation cases, we are only concerned with whether there was substantial evidence to support the findings of the commission. Mrs. Casey, in testifying, described her duties,, part of which consisted of holding a dress up while she guided it through the sewing machine. She stated that holding her hand up, during a day’s time, became very tiresome; that she lifted bundles during the day ranging from something less than 20 pounds up to 25 pounds; she had started work for Ottenheimer’s in February, 1963, and had lost weight from 189 pounds to 157 during the period of her employment. Mrs. Casey insisted that the pains that she experienced on the night of May 6 were not similar to the one she experienced at work on May 7, and she also stated that she was not in pain when she went to work on the latter date.
Eldon Casey, husband of appellant, said that his wife would complain of being completely exhausted when she returned from work, and would mention a “heaviness in her chest.” He stated that she mentioned hurting in her chest on the night of May 6, but that she went to work the next day, though complaining.
Dr. Ritchie testified by deposition on January 11, 1966, that he had been treating Mrs. Casey since May X, 1965, and last saw her on December 10 of that year. He stated that on May 7, he found she had an attack of angina pectoris, and he gave her an injection of opiate (Demerol) for relief; subsequently, an electrocardiogram was done, which revealed coronary insufficiency. The doctor testified that Mrs. Casey’s difficulty was due to arteriosclerotic heart disease, which results in coronary insufficiency; that this condition, from time to time, causes angina pectoris; however, he stated that there was no evidence of a thrombosis or infarction. The witness said that arteriosclerosis is a progressive disease, and it was his opinion that the work claimant was doing on May 7, though having nothing to do with the coronary insufficiency, did contribute to the angina attack which occurred on that date, i.e., the work did contribute to the pain that was suffered by appellee on that particular occasion. He stated that she also, on May 21, came into his office complaining of pain, and upon inquiry, Mrs. Oasey said that she had been hurting most of the day, though she had been doing her normal house work on that occasion. The doctor testified that she continued to have anginal pain nearly every day after the 21st. He stated that only the attack of pain which occurred on May 7 could be attributed to the work itself, but that her other attacks of pain were also due to her coronary insufficiency, the pain being occasioned by whatever she happened to be doing at the time. The ■cardiograph done by the doctor revealed no damage to the heart, and Dr. Ritchie sent Mrs. Casey to Drs. Wilson and Price, who examined her for heart trouble. They made a second cardiogram, and this was compared with the one done by Dr. Ritchie. Both were negative, i. e., there was no evidence of heart damage. It was the view of Ritchie that the work contributed to the attack on May 7, but he could not say that the work at the Otten-heimer Brothers plant caused the condition from which he found her suffering on December 10, 1965; he did state that he thought it might have contributed some to the attacks that she had. The testimony of Dr. Ritchie is the only evidence in the record which supports, in any measure, the view taken by claimant.
Dr. Kahn likewise testified that Mrs. Casey’s condition was due to coronary insufficiency, and he explained that this disease is an aging of the arteries. He stated that the aging process does not have any relation to the work the patient might be doing; in fact, the doctor said that physical activity (if controlled) is one of the few things that tend to retard the onset of coronary artery disease. As to the attack on May 7, the witness testified:
“* * * I think the most that one could say is that it’s conceivable that something that she did at work might precipitate the pain, which is just a symptom of the underlying disease, but I don’t think I could prove, if I tried to, that any important damage had been done to her, or in fact any detectable objective damage.”
He said that the pain was only a manifestation of coronary insufficiency and did not represent any physical damage to the heart:
“Well, we ran an electrocardiogram on this patient when she was completely at rest. Then she was given a specified amount of exercise, which was in relationship to her age and build. Then portions of the electrocardio graph were repeated. These tracings did not show evidence of — we call it anoxia, in the electrocardiograph. In other words, they were normal after exercise and before.
Q. Did yon find any evidence of heart disease from the electrocardiograph?
A. No.
Q. All right. Did yon find any evidence of a blood clot or infarction of the heart mnscles?
A. No, sir, I did not.”
In answer to the question as to whether it was at all possible that the exercise which she performed on May 7 had contributed to her present condition, Dr. Kahn replied that there are no “absolutes” in medicine, but that he certainly didn’t think that the 25 pound lifting was related to her present condition; he was rather emphatic in stating that it was his opinion that her activities did not speed up the degenerative disorder in her coronary arteries, and accordingly he did not think that the angina attacks, which Mrs. Casey had after she quit work, had any causal relation with the exertion of May 7. He also said that excessive fatigue is not good for a person, but that it could not relate to a progression of her disease.
Respondent’s Exhibit “A” to the testimony of Dr. Ritchie was a letter from Dr. Wilson lo RitchiexJn the letter, Dr. Wilson states that he is “not absolutely convinced she has arteriosclerotic heart disease with coronary insufficiency, but there are enough predisposing factors and her symptoms suggest angina strongly enough that I think the safest thing is to assume she has coronary disease until we can prove differently.” One item in the letter is of particular interest. After stating that Mrs. Casey came to the office for evaluation of her recent illness, Dr. "Wilson wrote:
“As you know she thought she was in pretty good health until May 6, 1965, when she had a retroeternal chest pain accompanied by aching in her left arm. This occurred about 9:30 at night after she had retired and following a supper which included some fried foods. The pain never did really subside, and after she went to work the next day it became much worse.”
Mrs. Casey denied that she told Dr. Wilson that the pain never did subside. She said she could not understand why Wilson placed that in his report. Of course, since the doctor was not acquainted with appellee until she went to his office, it is difficult to understand how he obtained that information unless she told him, and it would appear that Mrs. Casey has overlooked, or forgotten, that she gave this information. It will be remembered that her husband also stated that she was still complaining on the morning of May 7 when she was getting ready to go to work.
Appellee relies someAvhat upon our recent case of Dougan v. Booker, 241 Ark. 224, 407 S. W. 2d 369, but there are some distinctions in that case. There, a worker with a bad heart put forth unusual exertion in his work, collapsed on the job, and died. The family physician, who had known Dougan for a long period of time, testified in the case in support of the widow’s claim, and this doctor was the only doctor who personally had seen and examined Dougan. The other two doctors who testified only reviewed the transcript of the testimony, and from a reading of that testimony, answered a detailed hypothetical question, one of the doctors express ing the opinion that Dougan’s work did not contribute to his death. The claim for compensation benefits was mot allowed, and we reversed on appeal.
In the case before us, no family physician testified, :and no doctor who testified saw Mrs. Casey before the day of the attack complained of. However, all of the doctors mentioned iii this opinion personally observed Mrs. Casey; no one testified simply on the basis of having read the transcript. Of course, in the case cited, Dou-gan suffered his attack, and died before reaching the hospital; here, the weight of the evidence is to the effect that no heart damage was occasioned by the attack suffered on May 7.
As stated at the outset, we are only concerned with whether there was substantial evidence to support the finding of the commission. It is not within our province, irrespective of any sympathy that we might have for Mrs. Casey, to decide questions of fact. That is the function of the commission, and we are unable to say that the finding by the commission was not supported by substantial evidence.
Accordingly, the judgment of the Circuit Court is reversed, with directions to reinstate the order entered "by the Workmen’s Compensation Commission.
It is so ordered.
Ward, J., dissents.
It anight be here stated that the medical evidence in this case points out that angina pectoris is not, in itself, a disease, or condition, but only a symptom of coronary insufficiency. Angina pectoris is sometimes a forerunner of coronary thrombosis.
Dr. Ritchie commented on a Master’s test as one “wheré they put these people through the mill, hops, jumps, up and down stairs, just a terrific amount of severe exercise, * * * then they do a cardiogram.” He was then asked: “Now, if the patient has heart disease, coronary insufficiency or something like that or an infarct or a thrombosis, it will show up on that cardiogram, would it not?” A. “That’s right and they might show up dead too.”
Other cases cited are not applicable to the facts herein. | [
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JohN A. FoglemaN, Justice.
This appeal involves the question whether a lessee in possession of a motor vehicle is liable for damages thereto by reason of a collision not due to fault or carelessness on his part. The trial court rendered judgment in favor of the lessor in the sum of $650.00 for such damages.
Appellee leased a 1957 GrMC truck to appellant by written lease. The lease contains the following’ pertinent sentences:
“Lessee agrees to keep in full force and effect the liability, collision and comprehensive insurance which is now in effect, on said vehicles. Lessee agrees to take good care of the property above described, and to surrender the same at the expiration of the term of this lease in good condition.”
Both parties were engaged in the business of operating riding devices at out-of-doors shows over several states. The truck was returned to appellee at the termination of the lease in its damaged condition. He instituted this action to recover the difference between the value of the truck at the time of the lease and its value when returned.
Appellee had carried comprehensive insurance covering his trucks, but it was automatically terminated when the vehicles were parked for the off season, as this one was when the lease was executed. Appellee admits that there was no insurance on the truck at that time, unless appellant had taken it out. Appellee stated that he was sure that appellant had comprehensive insurance on the truck in force at the time of the collision and claimed to have seen the policy. He did not read the policy, however, and could only say that “it must have been the right kind of policy.”
The trial judge cut off further evidence along this line, stating that he construed the contract to mean that appellant was required by tbe terms of the contract to carry comprehensive insurance of the type appellee had carried in the past, and that the fact that the insurance was not effective during the time the vehicle was stored on the lot during the off season was immaterial.
The court’s ultimate findings were incorporated in its judgment and included the following:
“The defendant breached the terms of the written lease between the parties by his failure to return the 1957 Chevrolet tractor in a good condition and by his failure to carry collision and comprehensive insurance; the plaintiff has suffered damages in the amount of $650.00.”
Appellant relies on three points for reversal. They are:
“I. The court erred as a matter of law in construing the contract to require appellant unequivocably to carry collision and comprehensive insurance on the leased vehicle.
II. Defendant was a bailee for hire and only liable to the plaintiff if his negligence proximately caused the damage to the leased property.
III. Assuming ambiguity in the lease there is no substantial evidence to support the judgment of the court. ’ ’
We treat two of these grounds jointly, after which we will discuss the other.
I. and III.
We agree with appellant that the court’s construction of the contract is erroneous. The contract called on appellant to “keep in full force and effect the liability, collision and comprehensive insurance” which was then “in effect” [Emphasis ours.] We find no evidence that any collision insurance was ever carried on the vehicle. Appellant testified that neither he nor Dyer ever carried any collision insurance. This was the only testimony about collision insurance. Comprehensive insurance affords coverage of all property damage to motor vehicles, exclusive of collision losses. 5 Appleman, Insurance Law & Practice, § 3222, p. 375. This distinction is recognized in the lease contract by the specific reference to both collision and comprehensive insurance. This court has said many times that words in a contract must be given their obvious meaning. Ramsay v. Roberts, 240 Ark. 943, 403 S. W. 2d 57. It has also been said that where parties make a contract in clear and unambiguous language, it is the duty of the courts to construe it according to the plain meaning of the language employed. Roth v. Prewitt, 225 Ark. 466, 283 S. W. 2d 155. When we give the words in the contract their plain and obvious meaning, this clause only required appellant to carry such liability, collision and comprehensive insurance as was then in effect. Appellee argues that the clause is thus deprived of any meaning. The lease covered 18 trucks and 11 trailers, and we do not know what type of insurance covering the other vehicles was in effect at the time of the lease. Appellant testified, however, that fleet liability insurance protecting both parties was in effect at the time of the lease. Consequently, the clause would not necessarily be nullified by our construction. If we should say that these words required appellant to carry collision insurance, regardless of whether such insurance was in effect on the date the lease was executed, then we would necessarily read the words “which is now in effect” out of the contract. In view of the fact that there is no evidence that collision insurance was carried on this vehicle, the trial court was in error on this point.
II.
As a bailee of the truck, appellant was not an insurer, but was held only to ordinary care and diligence in the absence of any contractual liability. Bigger v. Acree, 87 Ark. 318, 112 S. W. 879; Bertig Bros. v. Norman, 101 Ark. 75, 141 S. W. 201; Turner v. Weitzel, 136 Ark. 503, 207 S. W. 39. The court found, however, that defendant breached the contract requirement that appellant surrender the truck at the expiration of the term of the lease in good condition. While appellee does not make any argument or cite any authority supporting the court’s judgment on this basis, we cannot reverse the trial court if its judgment is correct for any reason. Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S. W. 2d 615; Reamey v. Watt, 240 Ark. 893, 403 S. W. 2d 102.
There is no doubt that a bailee’s responsibility may be increased and his liability enlarged by the terms of the contract with the bailor. Scott-Mayer Comm. Co. v. Merchants’ Grocer Co., 147 Ark. 58, 226 S. W. 1060.
Nor can there be any doubt that the majority rule is that an express agreement by bailee to return the bailed property imposes no greater liability upon the bailee than is implied in every bailment. See 8 Am. Jur. 2d 1034, Bailments. § 139; Annot., 150 ALR 271 and cases cited therein. Yet, this court has held that one who hired a slave upon a written contract that, in addition to providing for payment for the slave’s service, required his return at the end of the year, was liable for failure to return him because of the slave’s escape without fault of the hirer. Alston v. Balls, 12 Ark. 664. In that case it was held that the words in the contract constituted an unqualified covenant to return the slave and that it was to be presumed that the parties would have made no covenant on the subject if there had not been an intention to bind the hirer beyond his mere legal liability. Alston v. Balls, supra.
Although there are holdings to the contrary, the great weight of authority supports the rule that an express obligation to return hailed property in good condition does not enlarge the common law liability of a bailee, in the absence of specific terms requiring the bailee to pay for the property in case of non-delivery or imposing some additional obligation relating to the care and maintenance of the property. See 8 Am. Jur. 2d 1034, Bailments, § 139; Annot., 150 ALB 278, et seq.; Perreault v. Circle Club, Inc., 326 Mass. 458, 95 N. E. 2d 204 (1950); First National City Bank v. Frederics-Helton Trav. Serv., 209 NYS 2d 704 (1961), 29 Misc. 2d 1041; Edward Hines Lumber Co. v. Purvine Logging Co., 240 Ore. 60, 399 P. 2d 893 (1965). Yet, we cannot consistently apply one rule to a clause simply stating a requirement for return of the property and another to a clause stating a requirement for its return in good condition. It is a general rule of construction of a contract that we must not regard any language therein as surplusage, unless the clear intention of the parties requires us to do so, if any reasonable purpose thereof can be gathered from the entire instrument. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611; Bailey v. Whorton, 207 Ark. 849, 183 S. W. 2d 52. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. American Ins. Union v. Rowland, 177 Ark. 875, 8 S. W. 2d 452; Fowler v. Unionaid Life Ins. Co., supra.
If we did not apply the rationale of the opinion in the Alston case, we would have to treat the words in the lease requiring the surrender of the truck at the termination of the lease in good condition as surplusage. In so doing, we would disregard our own. well established rules governing construction of contracts set out in that ease and in others cited above. Being unwilling to do so, we hold that this clause in the contract created a liability on the part of appellant for failure to return the truck in good condition.
The judgment is affirmed.
See 150 ALR 280, et seq.; Industron Corp. v. Waltham Door & Window Co., Inc. 346 Mass. 18, 190 N. E. 2d 211 (1963), as well as the Perreault ease later cited in this opinion. | [
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Paul Ward, Justice.
This is a Workmen’s Compensation case, and the essential facts are not in dispute.
On May 9, 1961 Billy Duran (appellee here), while working for Shelby Electric Company (appellant here), suffered an injury to his right foot. A claim was filed for compensation. At a hearing before the referee ap-pellee was adjudged to have suffered a permanent partial disability of fifty percent to his right leg below the knee. The referee allowed money compensation and also héld that appellee was entitled to receive as compensation one pair pf orthopedic shoes. An Order in accord with the above findings was entered by the referee on October 12, 1962 and no appeal was taken. The shoes were furnished, and the last payment to appellee was made on December 7, 1964.
On January 20, 1966 [one year and forty-four days after the last payment and more than four years after the injury] appellee filed a claim with the Commission for another pair of orthopedic shoes, and a hearing was had before the referee. Appellant controverted the claim, claiming it was barred under Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960) which reado:
“In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred' unless filed with the Commission within one year from the date of the last payment of compensation or two years from the date of accident, whichever is greater.”
The referee held the claim was not barred; On appeal to the Commission, it held the claim was barred and, on appeal, the circuit court reversed the Commission, holding the claim was not barred by the above quoted statute —hence the appeal by appellant to this Court.
The only question before this Court is whether appellee’s claim is barred under the statute previously quoted.
It is the contention of appellee here that this claim was not barred, and that his claim was timely filed under the provisions of Ark. Stat. Ann. § 81-1311 (Repl. 1960) which, in pertinent part, reads:
“The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse, and hospital service, medicine, crutches and apparatus as may be necessary during*'the period of six months after injury, or for such time, in excess thereof as the Commission, in its discretion, may require.”
The contention of appellee is refuted, and must be denied, under our holding in the case of Key v. Ark. P. & L. Co., 228 Ark. 585, 309 S. W. 2d 190, where we had under consideration both of the statutes set out above. As stated in the opinion, the only issue before the court was whether the limitations provided by § 18 apply to a claim for medical treatments. We rejected the contention by Key that his claim was not barred by the statute of limitations as set out in § 18 which includes the above quoted § 81-1318 (b) but that it was timely filed under the above quoted § 81-1311. In rejecting Key’s contention we said:
“We readily agree with appellant that the above statute empowers the Commission to require medical and hospital expenses indefinitely provided a claim therefor is filed within one year after the date of the last payment.”
It cannot be reasonably argued that although § 81-1311 applies to medical and hospital treatment it does not apply to crutches and apparatus, since both kinds of relief are included in the same statute and in the same sentence.
It follows therefore that the judgment of the trial court must be, and it is hereby, reversed.
Reversed.
Smith and Fogleman, JJ., concur.
Jones, J., dissents. | [
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Paul Ward, Justice.
This is a suit in ejectment to obtain possession of a part of Lot 1, Block 1, London’s Addition No. 1, to the City of Hope. The litigation arose in the manner presently summarized.
One J. J. Moore acquired title to the said Lot in 1941, and immediately took possession. In 1947 he conveyed the south seventy feet of the Lot to one Mabel Washington. Moore failed to pay taxes on Ms part of the Lot in 1960, and it was conveyed to the iState in November, 1961. On February 11, 1964 the state deeded the forfeited parcel to the Southwest Land and Development Company. (Note that the description in tMs deed reads: “Part of Lot 1 of Block. . .”). On May 12, 1966 the land company (by accurate, description) conveyed the land to Dean E. Browning and wife, who are the appellants here. Appellants never took actual possession of the property on wMch there was a house.
Appellants filed a complaint in circuit court containing, in substance, the following material allegations: (a) The facts set out above; (b) The property is occupied by Sylvester Hicks and bis wife; and his parents, who are appellees herein; (c) Appellees are trespassers, and they have refused-to surrender possession; (d) A search of the records fails to show appellees have any interest in said property, and they have not paid taxes thereon.
The prayer was; for possession of Lot 1, less the south seventy feet; for eviction of appellees, and; to have title quieted in the plaintiffs (appellants).
To the above complaint appellees filed a Demurrer and a Motion for Summary Judgment. The .trial court sustained the Demurrer and also granted the Motion, stating:
“Plaintiffs are basing their claim on a tax forfeiture and deed from the State of Arkansas to Southwestern Land and Development 'Company, which are both void because the lands described by a ‘part’ description . . .. it is undisputed that the plaintiff’s alleged title is based on this void tax forfeiture and sale and that is the only real issue in the case. . .”
It is our conclusion that the trial court was correct in his analysis of the case, and must be áffirmed.
Appellants do not contend that the trial court misstated any material fact or that there are any disputed material facts in this case. Therefore the Motion for a Summary Judgment was proper, there being only a question of law for the trial court to decide. See Ark. Stat. § 29-211 (c) (Repl. 1962) and Trinity Universal Ins. Co. v. Robinson, 227 Ark. 482, 299 S. W. 2d 833.
There are numerous decisions of this Court holding a “part” description or an indefinite description con veys no title. See: Price v. Price, 207 Ark. 804, 182 S. W. 2d 879: Clem v. Missouri Pacific Rd. Co., 223 Ark. 887 (p. 888), 269 S. W. 2d 306; Teer v. Plant, 238 Ark. 92, 378 S. W. 2d 663, and; Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660. In the last cited case we said that an indefinite description would not support an action in ejectment or quiet title.
It is of no avail to appellants to show that the deed they received from the Land Company contained a definite description, since the deed to the Land Company was void by reason of the indefinite description. American Portland Cement Company v. Certain Lands, 179 Ark. 553, 17 S. W. 2d 281.
Affirmed.
Brown, J., not participating. | [
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Paul Ward, Justice.
Involved in this litigation is the use of a trade-name. The issue and the pertinent facts involved are sufficiently stated in the pleading which are now summarized.
The Complaint, filed on September 21,1966, by ap-pellee — Campbell-Bell, Inc. d/b/a University Shop, in essence states:
a. It is a domestic corporation doing business in Fayetteville for the past six years under the name of “University Shop”, situated at 643 Dickson St. — on the University Campus — selling men’s clothes.
b. Appellant — Clyde Campbell University Shop— is a non-resident corporation doing a similar business in Fayetteville under the name of “Clyde Campbell University Shop”, situated at 613 Dickson St. — on the University Campus. It began doing business on August 15, 1966.
c. Appellant adopted and used its name “with the intent and for the purpose of defrauding the plaintiff and appropriating for their own use and benefit the goodwill of plaintiff’s business and to delude and deceive the plaintiff’s customers and the public in general into the belief that the business of the defendants was in fact a new location or extension of plaintiff’s business”. In the alternative, if appellant did not so intend, their actions caused the same result.
d. Because of the manner and length of time in which appellee has conducted and advertised its business under the name of “University Shop” that name has acquired an exclusive identification with appellee’s business, and has acquired a “secondary” name and meaning. As a result of appellant’s actions and the similarity of the two names, the public and customers of appel-lee have been misled to the damage of appellee’s profits and business.
e. Wherefore plaintiff (appellee) prays that appellant be enjoined and restrained from using the name “University Shop” or “Clyde Campbell University Shop”.
Appellants’ answer, filed October 7, 1966, is set out below in material parts.
a. Denies they intended to, or did, infringe on any alleged rights of appellee.
b. Appellant operates nnder its corporate name chosen long before doing business in Fayette-ville; it operates four other shops under said name at different places (in Texas); “University Shop”, as the designation of a store, is prevalent over the country and such use denotes the location of said shop near a university; appellant has scrupulously avoided any advertising or act that might lead to confusion of the public as to the separate identities of appellant and appellee.
After a full hearing, at which several witnesses for both sides gave oral testimony and numerous exhibits pertaining principally to newspaper advertisements were introduced the trial court, on February 1, 1967, entered a decree enjoining appellant “from using the term ‘University Shop’ in their trade-name, advertising, telephone listings, signs or other designations pertaining to ... its place of business located in the City of Fayette-ville ’ ’.
At the close of all the testimony the trial court made exhaustive findings of fact and conclusions of law covering seventeen pages in the transcript. Believing it will tend to abbreviate references to the testimony introduced and the various issues raised, we hereafter refer briefly to portions of said findings.
a. The basic underlying note of the infringement —on trade-name cases — is that it simply is not basically a fair thing; it just isn’t right for a business man to engage in business under a name which is so nearly similar to the name used by another business man that the general public is likely to be confused or misled.
lb. The first question is, does the proof in this case show such a similarity of names as to cause confusion of identities?
e. The next question is whether the name of ap-pellee is of such nature that it should he protected. This calls for a distinction between the theory of secondary meaning and generic terms. Sometimes even generic words may acquire a secondary meaning.
d. Another question then is whether the term “University Shop” or the single word “University” has a secondary meaning under the facts in this case. If the facts so show, “then the right to relief is well established”.
e. After detailing essential parts of the testimony the court states: “I think there is ample evidence to show that defendants were put on notice; that they were knowingly opening up a business which might well lead to this very thing .... The preponderance of evidence shows appellee is entitled to the relief sought.”
f. The defendant is enjoined from the use of the word “University” in any part in any or all parts of its business operation in Fayetteville. This means, as a practical matter, that it may no longer use the total term “University Shop”.
A careful examination of the record leads us to conclude that the findings of the trial court are supported by the weight of the testimony, and that the conclusion reached must be affirmed. The weight of the testimony fully establishes: Appellee began business at its present-location on Dickson Street, under the name “University Shop”, six years before this suit was filed; During this period the name (in Old English) has been used in advertising; Appellant, being aware of the above facts and having been warned by appellee of the similarity of names established its store on. the same street and very close to the location of appellee; Appellant used the same old English style of lettering in-its advertisements ; Because of these similarities there was an actual confusion in the delivery of mail and the- payment of bills; Exhibits of newspaper advertisements show a striking similarity in lettering and form.
Some of the general rules applicable to this situation were quoted in Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S. W. 2d 28, as follows:
“ ‘An infringement on a trade name is such a col-orable imitation of the name that the general public, in the exercise of reasonable care, might think that it is the name of the one first appropriating it. Where such a similarity occurs, it tends to divert trade from a business rival who has previously adopted its name and operates as a fraud which may be restrained by injunction, although the prior user may not have an exclusive right to the use of the name.’ ”
Appellant ably contends that “University” is a word commonly used by the general public and cannot, therefore, be exclusively appropriated by anyone as a trade-name. It must be conceded that, ordinarily, such contention has merit. However, our decisions and others hold that, under some circumstances, such a common word can acquire a “secondary” meaning which entitles it to a protection as a trade name. It was so held in the Adkins case, supra.
In the cited case appellee established retail grocery stores in the vicinity of Little Bock and North Little Bock, under the trade-name “Liberty Home Stores”. —Five years later appellant announced its intention to establish and operate a grocery store on West Capitol Avenue in Little Bock under the trade-name of “Liberty Cash Groceries, Inc.”. Appellee sought to enjoin appellant, and was sustained by the trial court. On appeal, this Court, in affirming the trial court, made certain statements which are copied below:
Appellant’s contention for reversal is that the use by appellant of the word ‘Liberty’ as a part of his trade-name is not descriptively similar to ap-pellee’s trade-name, and that the word ‘Liberty’ is a common word of general use, and appellees have no legal right to its exclusive use. Our case of Fine v. Lockwood, 179 Ark. 222, 14 S. W. (2) 1109, is cited by appellant as decisive of the contention urged. We can not agree that the case cited controls the case under consideration. There appellant had not operated a store under his trade-name prior to the institution of the suit in that trade territory. . .
Here the testimony reflects, and the chancellor so found, that appellees had operated their respective grocery stores in the vicinity of Little Bock and North Little Bock for some five or six years under the trade name of ‘Liberty Home Stores’, and that the trade name of ‘Liberty Home Stores’ had thereby acquired a distinctive secondary meaning in the trade territory in the vicinity of Little Bock and North Little Bock”.
Based on the facts involved, and considering the findings of the trial court, we are unable to distinguish the Adkins case from the one here presented.
Appellant, for a reversal, rely on Fine v. Lockwood, 179 Ark. 222, 14 S. W. 2d 1109, and Save-A-Stop, Inc.; v. Save-A-Stop, Inc., 230 Ark. 319, 322 S. W. 2d 454 The Fine case was distinguished, as above noted, in the Adkins case. The other case is clearly distinguishable on the ground (as noted in the case) that both parties were engaged in the wholesale business as opposed to retail.
Affirmed. | [
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John A. Fogleman, Justice.
Mid-State Construction Company sued McDaniel Brothers to recover $22,900.87 for dirt hauled to three housing project sites in Malvern, alleging that this balance was due on an oral contract. McDaniel Brothers denied owing Mid-State any balance and counterclaimed, seeking damages amounting to $10,-215 for breach of contract. The jury’s verdict on interrogatories resulted in a judgment of $12,500 in favor of Mid-State.
Appellant lists the following points for reversal:
I. The jury’s verdict in the amount of $12,500.00 in favor of the appellee is excessive and there is no substantial evidence on which the amount allowed could have been properly awarded by the jury.
II. The trial court erred in submitting special interrogatories Nos. 1 and 2 to the jury. The interrogatories were misleading in that they did not contain all of the elements of the contract and in addition, included controverted facts, which had the effect of misleading the jury.
III. The trial court erred in submitting plaintiff’s requested instruction No. 4, in that the instruction was misleading and does not conform to the applicable law regarding contracts.
Since Point II requires a discussion of the terms of the contract, we shall consider that contention first.
These are the interrogatories on which appellant’s Point II is based:
Do you find from a preponderance of the evidence that the Plaintiff, Mid-State Construction Company, only agreed or contracted with Defendant, McDaniel Brothers Construction Company, to clear and grub the three sites and to haul in fill dirt, level and compact the same to grade (blue top) on said sites? Answer: yes or no.
Do you find from a preponderance of the evidence that the Plaintiff, Mid-State Construction Company, in addition to its contract to clear and grub the three sites, haul in fill dirt, level and compact the same to grade (blue top); further agreed to haul in top soil, spread and fine grade the same on three sites? Answer: yes or no.
Appellant’s objection to both interrogatories was fundamentally the same, i.e., that both were misleading because neither incorporated all the elements of the contract between the parties. Appellants now argue that these interrogatories are broken down in such a way as to indicate that there were two separate contracts between the parties or, in the alternative, only part of the contract might have been entered into by the parties, so that the jury was misled into giving a negative answer to an interrogatory whether Mid-State abandoned or refused to complete its contract.
The basic issue in the case was the extent of the work contracted. McDaniel Brothers contended that Mid-State contracted to clear and grub the sites where the buildings were being, contructed by Mid-State, bring fill dirt to the sites and compact it to grade, and then haul in and spread a “fine grade” top soil.
The evidence as to the terms of the contract was very conflicting and confusing, to say the least. The original negotiations were conducted between M. B. (Rip) Evans, then a construction superintendent for appellee, and George Anderson, an engineer employed by appellant. Evans also had some conversation about the matter with J. B. Jones, McDaniel’s construction superintendent. At the time of the trial, both Evans and Jones had left these employers. Evans seems to have been operating a separate business of his own throughout, and he testified that he had gone to work for Jones. There was at least an inference that he was or had been working for McDaniel. On cross-examination he said he was trying to be fair about the matter, and wanted to stay neutral.
Sam R. Clark, president of appellee, testified that his company agreed to haul in select material for topsoil at $1.25 per cubic yard if it would meet specifications of appellant, but that McDaniel Brothers’ superintendent stopped appellee from hauling this material because he did not want to use it. The testimony about the superintendent’s stopping the hauling is not denied. Calrk admitted that Evans negotiated the contract with appellant, acting only on Clark’s instructions, and that the contract was oral in its entirety. He stated that Evans had no authority to enter into a contract, and that all contracts of his company had to be approved by him as president.
Doswell McDaniel, a partner in McDaniel Brothers Construction Company, said that Evans’ first offer was made to Anderson and did not include topsoil. He said that he and Evans later agreed orally on a contract for fill dirt at $1.15 per cubic yard and select material at $1.25 per yard. McDaniel claimed that this agreement was confirmed by his letter to appellee addressed to Mid-State Construction Company at Malvern, P. O. Box 104, to the attention of Evans. As abstracted by appellant, Clark’s testimony included these statements:
Our contractor contracted separately with Mid-State on the top soil because he wanted more money for select material and we had to separate it. Mid-State contracted to do the select material and to haul in the top soil. I mailed the letter, * * * I refer to the letter (Defendant’s Exhibit No. 1) and my letter of December 19, 1969, because we considered the earlier letter the contract. * * * We didn’t make any separation between fill dirt and top soil.
The first letter referred to was dated October 21, 1969, and stated the agreement as follows:
* * * we have agreed on the estimated quantities of actual haul in fill.
Yardage of haul in dirt; excluding topsoil to be installed in 6” lifts and compacted in accordance with plans and specifications-47,367 yards at a unit price of One Dollar and Fifteen cents ($1.15) per cubic yard.
Haul in dirt topsoil to be dumped and fine graded-12,271 yards at a unit price of One Dollar and Twenty-Five Cents ($1.25) per cubic yard. * * *
I shall appreciate your beginning this haul in fill as soon as possible, and payments will be made on a percentage completed basis, in accordance with the contract between McDaniel Brothers Construction - Company, and the Owners — the Housing Authority of the City of Malvern, Arkansas, with a ten percent (10%) retainage, until completed.
The unit prices shall include: grading and shaping of all street areas ready to receive base course gravel for the asphalt paving, compaction for fill under all building floor slabs, and line grading of the topsoil.
You mentioned the fact that it was not necessary that a contract be written. However, we are using this letter as a form of agreement and understanding, and thought it best to get this letter written as a matter of record of our agreement for this work.
The letter of December 19, 1969, made no mention of topsoil, but includes the following:
Our check is enclosed for the clearing sub-contract totaling $5,000.00 less 10% retainage, check net in the amount of $4,400.00.
*.v. .1;. ■7T- 'JJ'
Our sub-contract is in the mail to you for the lump sum amount of the haul-in dirt in accordance with your agreement with our Mr. Anderson and the writer.
I will be in Malvern one day next week and if you would like, we will evaluate the amount of dirt in place at that time and will bring the payments up to date for the material in place.
Clark denies having ever seen this first letter before the controversy arose. He testified that all Mid-State’s mail was picked up at the company post office box to which he, a Mr. Cox and a Mr. Gibbs, but not Evans, had keys. On rebuttal, Clark said that when Evans’ employment was terminated, he asked Evans to turn over everything in Evans’ possession. He said that Evans expressed worry because he had nothing in writing from McDaniel.
Evans testified that he assumed that the parties entered into a contract. He believed that his first conversations were with Anderson. Evans acknowledged receipt of the letter of October 1, 1969, and stated that it contained his understanding of the agreement, but said that Mid-State had already started work before the letter came. He said that he picked up company mail a few times, but could only "guess” that someone let him have a key to get it out of the post office. He guessed that he discussed the contents of the letter with Clark. He stated that he did discuss selling topsoil with Clark, who told him to go ahead and make a deal and recalled discussing this item with Jones on several occasions. According to Evans the contract for the topsoil was made while Mid-State was already engaged in "filling the job.” He was not at all clear about the stage the work had reached at that time. Evans reaffirmed his belief that “we” agreed to sell McDaniel Brothers topsoil, and was sure that he "was thinking” that the agreement was to take some strippings from across the river and haul them. He admitted that there was a possibility that Clark asked him during the last week of his employment with Mid-State if he had any papers or had made any contracts or had knowledge about anything of which he had not told Clark. He admitted a further possibility that Clark inquired about anything Evans had in connection with the Malvern Housing Au thority. Evans then stated that he left all company files and he believed he left all letters. He could not recall whether the letter of October 31, 1969, was left.
Jones recalled that Evans told him that Mid-State would put in fill dirt at $1.15 per yard and that if the topsoil on Mid-State’s property was suitable to the Housing Authority, Mid-State would put it in for $1.25 per yard. Jones said that he did not negotiate the agreement on behalf of McDaniel, but that Evans said that the agreement as to topsoil was conditioned upon the suitability of the material to the Housing Authority. He remembered a conversation in the Sands Restaurant when, in the presence of Cox and Gibbs, Evans responded to Jones’ request for a price for the topsoil by saying that he could not quote a price, but would have to talk to Clark about it. McDaniel said that Jones had the authority to buy certain material on a local site, but not fine grading on pads.
For some reason, McDaniel Brothers sent a copy of letter, dated October 21, 1969, which they contended stated the terms of the contract, to Mid-State along with a letter dated June 23, 1970.
We cannot say that there was no substantial evidence to support either party’s contention as to the terms of the contract. Appellee contended and Clark testified that Evans had no authority to enter into contracts on behalf of Mid-State. Appellant argues that appellee ratified the acts of Evans. There seems to have been evidence to support such a theory, but we cannot say that the evidence was so clear as to eliminate any question of fact. We find no indication that this issue was raised by the pleadings or that it was otherwise asserted as an issue in the trial court. No instruction on this point was either given or requested.
We certainly cannot say that appellant would have been entitled to a directed verdict on this issue. Neither. can we say that the two interrogatories did not properly submit the issue or that they misled or tended to mislead the jury.
Passing to Point I, we cannot agree that there was no substantial evidence to support the jury award of $12,500 to appellee. In considering this evidence, we must view it in the light most favorable to appellee. The first work done by appellee was clearing and grubbing of the building sites, which included removing trees and stripping clay from the foundation sites and otherwise leveling them, for which Clark said appellee was to be paid $5,000. Clark estimated that appellee hauled in 58,000 cubic yards of fill dirt and compacted it to grade and specifications. On October 31, 1969, Mid-State billed McDaniel Bros, for 40,00,0 yards of material, without receiving any response. Another bill for $52,327.10 was rendered on December 10,1969, after which appellant sent a check for $29,816.-28. Evans later picked up another check for $12,778, bringing appellant’s total payments to $46,994.28, which included the amount agreed upon for clearing and grubbing less a 10% retainage. Clark said that this payment left appellant some $5,000 short on a $52,377 bill. This shortage apparently represented a 10% retainage. Clark admitted that all billings were based on estimates. Clark testified that on March 11, appellee billed appellant for a balance of $22,251.02, which seems to have been based on Clark’s estimate that Mid-State’s work was 95% complete. This contention was bitterly contested. Evans testified that he and Jones worked up most of the estimates on which Mid-State billed McDaniel. Evans said that he and Jones worked on the bill to McDaniel Brothers for $22,251.02, but that he was not sure that they were in complete agreement. Evans said that he calculated the bill on the basis of 95% completion. Jones admitted that he signed a statement that the contents of a letter from Clark, stating that appellee had hauled and compacted 55,761 cubic yards, were correct except as to an item of equipment rental and repair. On July 26, 1971, McDaniel wrote a letter to Mid-State asking confirmation of their balance with Mid-State at $18,866.50.
Doswell McDaniel estimated total yardage, including cut dirt, at 66,321 yards, which also included an estimated 12,271 cubic yards of topsoil. He admitted that the clearing and grubbing operations were satisfactorily carried out for the most part and that most of the performance by appellee was good up to the point where the bulk of the work had been completed and the need for small quantities was critical. He estimated the overall deficiency at 14% at that time but said that it later got worse. He claimed that appellant had to haul in 17,373 cubic yards to complete the job, only 12,500 of which should have been topsoil. McDaniel said that his company incurred expense amounting to $4,879.50 for equipment rental in completing the dirt haul. He said that they used their own dragline 240 hours which represented a cost of $4,800, a dirt crawler 470 hours, representing a cost of $4,700, and paid landowner royalties of $1,369 making a total of $13,500, from which he deducted $3,334, which he admitted would otherwise be due Mid-State. According to him, this left a balance due appellant by Mid-State of $10,215. Actually, McDaniel said that his company had hauled in an additional 1,906 yards of dirt and gave the contractors $760 for fine grading.
McDaniel calculated that Mid-State had hauled 44,-392 yards by June 23, 1970. He admitted that the ground was irregular, that the best estimate by survey was not accurate, and that more than the original estimated yardage was hauled in before the job was complete. Appellant had tendered appellee a check for the amount eventually deducted from the total that appellant credited against the counterclaim. He excused the use of the street areas for stacking materials by saying that the streets should have been graded before the materials were delivered. He also confessed that he had written a letter to Mid-State in which he stated that he was aware that the work could not have been done due to weather conditions.
Clark admitted that his billings were based upon rough estimates of percentage of completion made by him and Evans. Appellee had employed engineers to estimate the total yardage when the job was commenced, and Clark and Evans kept truckload accounts at first. Clark said that, contrary to appellant’s contention, Mid-State’s forces stood ready to complete the job and all delays were attributable either to weather conditions or interference with street shaping and grading by appellant’s using these areas as a site for unloading building materials.
Donald Brady, an engineer employed by appellee, estimated the total fill dirt to be hauled in to bring the sites to finished grade, including topsoil, was 58,700 yards. Brady said that his estimate was somewhat lower than McDaniel’s which was 67,000 yards but did not take into consideration a 3,000-yard cut on one site. He seemed to think that this might account for a part of the difference in the two estimates.
Appellant argues that the only basis for arriving at a verdict would be as follows:
Brady’s estimated yardage 58,700
Less McDaniel’s record of yardage hauled by appellant 17,400
41,300
41,300 yards at $1.15 $ 47,495.00
Less payments made 46.994.28
$ 501.62
Even if the $5,000 for clearing and grubbing were added and nothing was allowed on the counterclaim, the verdict would obviously be excessive if the jury had no other basis for its verdict.
On the other hand, the jury might have taken a different approach. It might have felt that Clark’s estimate of 58,000 yards was supported by other testimony, such as: McDaniel’s estimate of total yardage of 66,321, less 12,271 yards of topsoil, leaving a possible 54,050 yards, which was subject to adjustment because the irregular terrain made accurate estimation difficult; and Jones’ confirmation of an estimate of 55,761 yards placed on the job sites. This could have resulted in the following verdict:
58,000 yards at $1.15 66.700.00
Clearing and grubbing 5.000.00
Total 71.700.00
Payments made 46.994.28
Balance due $ 28,705.72
If the jury did so view the matter, there was considerable latitude for allowance of expenditures by appellant in completing the contract, without reducing the balance below $12,500. There was also considerable dispute about whether Mid-State owed McDaniel for rental on a piece of equipment.
Of course, the jury was not required to fully accept the testimony of either Clark or McDaniel on any feature of the case, or to credit Brady’s testimony to the exclusion of other evidence. Since there was substantial evidence to support a larger verdict, we cannot say that there was no substantial support for this verdict. See Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49.
Appellant’s Point III related to appellee’s requested instruction No. 4 to the effect that an offer, which introduces a new term into a transaction, constitutes either a counter-proposal or an offer to treat but not an agreement. The objection made in the trial court was that the ins truc don was immaterial because there was no evidence that there was any counter-proposal subsequent to the formation of the contract. Even if it be said that Evans had authority to contract on behalf of appellee or that his unauthorized acts were ratified by his employer, still there was evidence that the discussions about topsoil did not arise until after appellee’s work on the job had commenced, that it was, at best, a conditional agreement or offer, and that appellant decided it did not want to use appellee’s material after three or four loads were hauled. We cannot say that the instruction was erroneous for the reason assigned.
On cross-appeal, Mid State asserts two alleged errors. One of them is that the jury was confused by the court’s interrogatory No. 8, which read:
On the basis of your answer to the above interrogatories what is the amount of damages the plaintiff is entitled to?
Appellee argues that the word “damages” was misleading to the jury because it sought recovery on a quantum meruit basis. Although the wording may not have been technically correct, after reviewing the instructions given and the other interrogatories, we do not see how the jury could have been misled.
The other point on cross-appeal has to do with the court’s failure to give AMI 101 after having indicated to the attorneys for the parties that it would do so. We have previously said that it is the better practice for the court to give this instruction when requested or recite into the record the reasons for not giving it in the unusually exceptional cases when a refusal to give it is justified. Smith v. Alexander, 245 Ark. 567, 433 S. W. 2d 157. The circuit judge’s comments were that the instruction was a long one, relating to the duties of the court, the jury and the attorneys, that he had read it to them many times, that he didn’t think it necessary that he read it again, unless the jurors wanted him to. Of course, if the instruction had been read to all the jurors on numerous occasions, the failure to repeat it might be justified. Appellee says, however, that only two other cases had been tried while the particular jury panel was serving, that three members of the jury had been members of the jury in only one case, and that six members had not been jurors in cither. Appellee admits that we cannot act on this information from outside the record. For that reason and because the objection of appellee to the failure to give the instruction was not on this basis, and could not have been a ground of a motion for new trial on which these matters could have been brought into the record, we are unable to say that there was reversible error in this case, just as we were in Smith v. Alexander, supra.
The judgment is affirmed. ,
While McDaniel Brothers Construction Company is a partnership, we will refer to the McDaniels as "appellant.” | [
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J. Fred Jones, Justice.
Robert Puckett and Virgil Garrett were driving their respective pickup trucks in the same direction and in the same traffic lane on Asher Avenue in the City of Little Rock. Garrett was behind Puckett and when Puckett stopped to permit a vehicle to turn from the street in front of him, Garrett’s vehicle collided with the rear of Puckett’s vehicle.
Puckett sued Garrett in the Pulaski County Circuit Court for personal injury and property damage, and Garrett answered with a general denial and a counterclaim for damage to his pickup truck. Both parties alleged the usual acts of negligence on the part of the other and a jury trial resulted in a verdict for Garrett on Puckett’s complaint, and for Puckett on Garrett’s counterclaim and a judgment was entered on the verdict. Pucket filed a motion to set aside the judgment and for a new trial and the motion was granted by the trial court. Garrett has appealed to this court contending that,
“the trial court erred in setting aside the jury verdict and ordering a new trial.”
At the trial, the parties offered conflicting evidence as to the cause of the collision; Puckett’s evidence tending to prove that Garrett was following too close and too fast without paying attention to what he was doing, and Garrett’s evidence tending to prove that Puckett stopped with out signal or warning in violation of law. In setting aside the verdict of the jury and the judgment thereof the trial court found that the verdict of the jury was contrary to the evidence and without substantial evidence to support it.
The statute provides for the granting of a new trial when the verdict or decision is not sustained by sufficient evidence, Ark. Stat. Ann. § 27-1901 (Repl. 1962). Upon motion for a new trial, the trial court has a duty to review the verdict of the jury rendered on conflicting evidence (Texas & Pacific Ry. Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978), and the trial judge has a duty to set aside a jury verdict when he finds it to be against the preponderance of the evidence. Stanley v. Calico Rock Ice & Electric Co., 212 Ark. 385, 205 S.W. 2d 841; Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872. It is equally well settled that we only reverse the ruling of the trial judge in setting aside a verdict he finds to be against the preponderance of the evidence when we find that the trial judge has abused his discretion. Houston v. Adams, supra; Farmer v. Smith, 227 Ark. 638, 300 S.W. 2d 937; Worth James Construction Co. v. Fulk, 241 Ark. 444, 409 S.W. 2d 320; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898; U.S.F. & G. Co. v. Hagan, 246 Ark. 629, 439 S.W. 2d 915.
A trial judge has the advantage of observing the demeanor of witnesses as he hears their testimony before a jury, whereas we must read their testimony from the printed page. Consequently, we do not pass upon the weight of the evidence in determining whether a trial judge has abused his discretion in setting aside a jury verdict and granting a new trial, for we recognize that his opportunity for passing on the weight of the evidence is far superior to ours, and we will not interfere with his judgment unless his discretion has been manifestly abused. Meyer v. Bradley, 245 Ark. 574, 433 S.W. 2d 160, (Bowman v. Gabel, supra).
We have held that the trial court has inherent power during the term to set aside its own judgment and that we will sustain the trial court’s judgment in doing so unless the verdict is so clearly supported' by the preponderance of the evidence as to indicate abuse of discretion on the part of the trial judge. Bobbitt v. Bradford, 241 Ark. 697, 409 S. W. 2d 339.
In Bowman v. Gabel, supra, a jury verdict was set aside and a new trial granted by the trial court. On appeal to this court the appellant contended that the preponderance of the evidence supported the findings of the jury, and that the verdict should not have been set aside and in that case we said:
“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.’ ”
We find no abuse of discretion in the case at bar so the judgment is affirmed.
Affirmed. | [
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George Rose Smith, Justice.
This is an action for malpractice brought by the appellees, Dora H. McDaniel and her husband, against Dr. Ross. In the trial court Dr. Ross moved for a summary judgment, on the ground that the suit is barred by the two-year statute of limitations. Ark. Stat. Ann. § 37-205 (Repl. 1962). The trial judge denied the motion, holding the statute to be unconstitutional insofar as it denied a remedy to the plaintiffs. Counsel for Dr. Ross perfected an appeal as a precautionary measure, to guard against the possibility that the trial court’s order might be held to be appealable under the final paragraph of Ark. Stat. Ann. § 27-2101 (Supp. 1971). That paragraph provides for appeals from orders involving the constitutionality of any statute.
The order is not appealable. We have twice held that the statute in question provides for an appeal only if the order in question is a final judgment. Wright v. City of Little Rock, 245 Ark. 355, 432 S.W. 2d 488 (1968); State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S.W. 555 (1916). Moreover, we have also held that an order denying a motion for a summary judgment is not appealable. Widmer v. Fort Smith Vehicle & Mach. Corp., 244 Ark. 971, 429 S.W. 2d 63 (1968). Upon either ground the appeal must be dismissed, in harmony with our long-standing-policy against the piecemeal consideration of cases.
Appeal dismissed. | [
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Conley Byrd Justice.
In a 1969 divorce decree, custody of the parties’ three children was awarded to appellant Denna Plum. The eldest child, Connie Plum, age 14, elected to remain with her father, appellee James Plum. Thereafter the mother petitioned the court to permit her to remove the two younger children, Ricky, age 854 and Tanya age 314 to Hixson, Tennessee. Appellee resisted the motion and counterclaimed for a change of custody. After a hearing and an interview with the children, the chancellor awarded Ricky’s custody to the father and apparently granted permission to remove Tanya. Denna Plum appeals.
The record shows that following the divorce, appellant and the two younger children lived in Alma until appellant’s father died. Appellant then moved to her mother’s in Fort Smith. In May of 1970, appellant went to a Licensed Practical Nurse’s school and graduated on May 21, 1971. As an LPN in Fort Smith, she earns $2.32 per hour. In Hixson, Tennessee, she has a job paying $2.76 per hour and a place to live within walking distance of a school. On cross-examination it was established that Ricky flunked the second grade after he was moved from Alma to Fort Smith.
James Plum testified that he would be denied visitation rights if appellant were permitted to take the children to Hixson, Tennessee, because of the 700 mile distance. On cross-examination it was established that he did not attend church and would not require his children to attend. On one occasion appellee went to appellant’s home to pick up the children at 5:30 p.m., not knowing that the children had been attending Vacation Bible School. When appellant informed him that he could not take the children until after 10:00 p.m. because of the Bible School’s graduation exercises, appellee inquired of Ricky if he wanted to go or stay and upon being informed that he wanted to go, appellee then took the children over appellant’s protest.
Appellant’s mother testified that she planned to live with appellant in Hixson, Tennessee, and help care for the children. On cross-examination it appeared that the mother had had a stroke from which she had recovered except for some paralysis in her hand.
We pointed out in Johnston v. Johnston, 225 Ark. 453, 283 S.W. 2d 151 (1955), that the party seeking a change of custody must assume the burden of showing such changed conditions as would justify a modification in the min- or’s interest. The burden here was upon appellee, who sought the change in custody, to show such changed conditions as would justify modification of the decree. We can find no evidence to jusitfy the modification.
On the record made, appellant is obviously entitled to take the children with her to Hixson, Tennessee. Of course appellee will be entitled to reasonable visitation rights which must be adjusted to thet the circumstances.
Reversed and remanded.
Fogleman and Jones, JJ., dissent. | [
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George Rose Smith, Justice.
Charged with the unlawful possession of LSD, a hallucinogenic drug, the appellant was found guilty and sentenced to a $250 fine and to 12 months imprisonment. His principal contention for reversal is that the trial court erred in refusing to suppress evidence obtained by means of a search warrant assertedly issued without lawful authority.
That contention must be sustained. The search warrant in question, issued' by a municipal judge, directed officers to search the appellant’s apartment for LSD, marihuana, and other specified drugs. Under the authority of that warrant the police entered the apartment and seized certain drugs, which were received in evidence at the trial. In the recent case of Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217 (1972), which was decided after the present case was tried, we held on rehearing that at the time the search warrant in the Grimmett case was issued, there was neither common law nor statutory authority for the issuance of a search warrant for contraband drugs. The search warrant in that case, as in the case at bar, was issued before the effective date of Act 123 of 1971. Ark. Stat. Ann. § 43-205 (Supp. 1971). Under the Grimmett opinion, which is controlling here, the trial court erred in refusing to suppress the evidence obtained by means of the search warrant.
We find no other reversible error. The defendant’s requested instruction upon the State’s burden of proof was fairly covered by the court’s instruction upon that subject. We need not pass upon the sufficiency of the evidence, for the State’s proof will necessarily be different if the case is retried. There is no reason to think that other asserted errors will recur upon a new trial.
Reversed.
Holt, J., not participating. Special Justice J. S. Brooks joins in the majority opinion.
Harris, C. J., and Fogleman and Jones, JJ., dissent. | [
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Carleton Harris, Chief Justice.
Appellant, Georgia Fay Johnson (Miller) instituted suit for divorce from appellee, Jimmie C. Johnson in February, 1966. Mr. Johnson did not answer the complaint and a decree was granted vesting custody of the minor children, Jimmie Carroll Johnson and Carroll Gene Johnson, in appellant. Mr. Johnson was ordered to pay child support in the amount of $80.00 per month. In March, 1967, Mrs. Johnson filed a petition for citation alleging that Johnson had failed to pay child support, but the record does not reveal that any further action was taken on this petition. The record in this case is rather sparse and successive events were explained by Mr. Johnson in his testimony. According to the witness, appellant, who in June of 1967, was living in Houston, Arkansas, and was married to a man named James Neeley, came to his home and inquired if he desired to keep the boy. Upon his reply that he would not keep one without the other, she turned both children over to him, and he has since had physical custody. Johnson said that she would sometimes keep the children for a week-end, or several hours, and then bring them back. This testimony was given at a hearing held by the Perry County Chancery Court after Johnson, in September, 1971, filed a petition for modification of the decree wherein he asserted that he and his present wife had “with some minor exceptions” the children’s physical custody. The testimony of Johnson reflected that appellant came to the house about two months prior to the hearing (held on November 10, 1971) and asked to see the children. He advised her to come back the next day and she returned with a deputy sheriff. As he was talking with the deputy sheriff, appellant left with the children. Shortly thereafter, Mrs. Miller filed another petition seeking a citation for contempt, and Johnson then filed the above mentioned petition for modification of the decree. Apparently, Mrs. Miller then left the state with the children.
Before the hearing commenced, counsel for Mrs. Miller (who had again remarried) objected to the petition for modification being heard for the reason that Mrs. Miller was married to a man in the armed forces of the United States and presently outside the continental limits of the United States at his post of duty; it was stated that Mrs. Miller was with him. Johnson said he thought that Miller was stationed in Okinawa. The second wife of appellee stated that she would like for her husband to have custody of the children and she said that she was willing to continue to rear them; that her husband was financially able to support them. Two neighbors testified that the children were given good care by Johnson and his second wife. No testimony was offered on behalf of appellant, and at the conclusion of the hearing, the chancellor made the following pertinent findings:
“1. That the parties hereto were divorced in this court on April 7, 1966, and Georgia Faye Johnson was granted the custody of Jimmie Carroll Johnson and Carroll Gene Johnson, the parties’ minor children. That since said decree was made the conditions and circumstances of the parties have changed. That with the exception of a few days at a time, the children’s physical custody has been with Jimmie C. Johnson since the divorce; that the minor children were living with their father up until about two months ago, when said Georgia Fay Johnson (Miller) came to Perry County and took the children away with her.
2. That the said Jimmie C. Johnson and his present wife, Mary Frances Johnson, have cared for said min- or children and have provided a good home for them for the last four years, and are desirous, willing and able to continue to do so.
3. That the best interest and welfare of Jimmie Carroll Johnson and Carroll Gene Johnson will be served by vesting the custody in Jimmie C. Johnson, and his petition to modify the divorce decree as to custody of the children should be granted.”
It was then ordered that permanent custody be placed with appellee, with appellant to have reasonable visitation rights.
For reversal, it is first urged that the chancellor erred in proceeding with a hearing on the merits of the petition to change custody of the two minor children of the par des, when it was impossible for one of the parties to be present, due to that party being outside the continental limits of the United States as the spouse of a service man assigned to duty on Okinawa. It is then urged that the decision of the chancellor was error since there had been no showing that Mrs. Miller was an unfit or improper person to have the custody. We proceed to a discussion of these points.
As to the first point, appellant relies on the Soldiers and Sailors Civil Relief Act, and it is urged that the court was without authority or jurisdiction to proceed with the hearing because of Mrs. Miller’s rights under this act.
We do not agree for it does not appear that Mrs. Miller is entitled to the protection of that act. There is no contention that she is a person in the military service of the United States; rather, she is the wife of a soldier stationed in Okinawa. 50 U:S.C.A. App. § 510, sets forth the purpose of the act, and makes it clear that it applies to “persons in the military service”. Section 511 then defines what is meant by “persons in the military service” as follows:
“The term ‘persons in military service’ and the term ‘persons in the military service of the United States’, as used in this Act (sections 501-548 and 560-590 of this appendix), shall include the following persons and no others-, [our emphasis] All members of the Army of the United States, the United States Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy.”
It will be noted that wives of service men are not included.
Nor do we agree with the second point for reversal. The chancellor apparently, in making the change of custody, gave paramount importance to the fact that Mr. Johnson and his present wife had kept the children for approximately four years, and this is certainly a change of circumstances (since the divorce decree was rendered). The record does not reflect where the children are presently located though counsel states that they are being “ably taken care of” in Okinawa. While normally the court does give preference to the mother, there are numerous instances when custody has been placed in the father, particularly where the father has had actual physical custody for some period of time. Tyler v. Tyler, 241 Ark. 98, 406 S.W. 2d 333; Stephenson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659.
Of course, there is nothing to prevent appellant, when she returns to this country from petitioning the court for a change or modification of its present order. Be that as it may, we are unable to say that the chancellor erred in the conclusions reached.
Affirmed. | [
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J. Fred Jones, Justice.
Julian Leland Rutherford died on March 4, 1971, and this is an appeal by his collateral heirs (cousins) from an order of the Monroe County Probate Court admitting a handwritten instrument to probate as the holographic will of Julian Leland Rutherford. Neither the testamentary capacity of the decedent nor the total disposition of his property under the terms of the instrument is in issue. The sole issue is one of law as to whether the instrument was admissible to probate as a holographic will. The probate judge held the instrument admissible as the last will and testament of Julian Leland Rutherford and the appellant heirs contend on appeal that the trial court erred because the instrument was not properly signed by the decedent as required by law.
The record indicates that in June of 1970, following a medical examination in Little Rock, Mr. Rutherford became rather disturbed over the state of his health and consulted his attorney, Fred MacDonald, relative to a will. He did not want his attorney to prepare a will for him but did request and receive from the attorney two forms for a will after the attorney advised him that he could execute a valid will in his own handwriting. Mr. Rutherford showed the will forms to different witnesses and told them he was going to prepare his will. The will forms prepared by Mr. MacDonald were placed in one of Mr. MacDonald’s white professional envelopes and delivered unsealed to Mr. Rutherford by Mr. MacDonald. Some days later Mr. Rutherford delivered to attorney MacDonald the envelope in which the will forms had been delivered to Rutherford. The envelope was sealed when Mr. Rutherford delivered it back to Mr. MacDonald and Mr. Rutherford advised Mr. MacDonald that the sealed envelope contained his will and he requested Mr. MacDonald to safely keep the instrument. The sealed envelope when delivered to Mr. MacDonald, bore the notation on the outside of the envelope in Mr. Rutherford’s handwriting, “Bill Rutherford — Will.” Mr. MacDonald placed the sealed envelope with contents in his safe where it remained until after Mr. Rutherford’s death on March 4, 1971, in the Forrest Memorial Hospital in Forrest City, Arkansas. The will forms which Mr. MacDonald had prepared for Mr. Rutherford were found in Mr. Rutherford’s wallet following his death and when the envelope was opened in Mr. MacDonald’s office, it contained the instrument which is the subject of this controversy. The above factual background only goes to the proof that Mr. Rutherford intended to make a will and thought he had done so. No one questions Mr. Rutherford’s intentions, the question is whether the instrument he prepared in his own handwriting met the statutory requirements for admission to probate as a holographic will. The pertinent part of the instrument admitted to probate appears as follows:
“Page 1
Will of Julian Leland Rutherford
I Julian Leland Rutherford of Monroe County, Arkansas, being over the age of twenty one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills here-to-fore made by me at any time.
1. I direct that all my just debts be paid as soon after my death as may be practicable.
2. I hereby nominate, constitute and appoint as Executor of my estate to serve without bonds Fred MacDoanld.
3. I make the following specific bequests. . .”
The instrument then sets out under alphabetically arranged paragraphs, separate bequests not germane to the issues before us, and after the last bequest the instrument ends in the decedents handwriting as follows: “Witness my hand and seal this 11 day of July 1970.”
The appellants argue that the trial court erred in admitting the will to probate and argue that the instrument is not a legal testamentary instrument because it is not signed by the testator. The appellants further argue that a . holographic will must be signed by the testator at the end of the instrument notwithstanding the dicta expressed to the contrary in Weems v. Smith, 218 Ark. 554, 237 S.W. 2d 880.
The appellees point out that the decedent’s signature clearly appears in his own handwriting in two places on the face of the instrument and also on the envelope in which the instrument was sealed. The appellees also argue that either of these signatures, but in any event the three of them combined, completely satisfy the statute as to signature under Ark. Stat. Ann. § 60-404 (Repl. 1971). The probate judge agreed with the appellees and we agree with the probate judge in this particular case.
Prior to the enactment of our present probate code, by Act 140 of 1949, the legal requirements for the mode in the execution of all valid wills were set forth in five separate paragraphs under § 14512 of Pope’s Digest, vol II, as follows:
“Mode. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner,
First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.
Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his will and testament.
Fourth. There shall be át least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no. attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.”
It will be noted that this statute specifically refers to “every last will and testament” and specifically requires as the first requirement, that it must be subscribed by the testator at the end of the will or by some person for him at his request. Then requirement No. 5, as above set out, was the only provision pertaining to the holographic will and only had to do with the proof of the will where the entire body, as well as the signature thereto, was in the handwriting of the testator or testatrix. By Act 140 of 1949, Ark. Stat. Ann. §§ 60-403-60-404 (Repl. 1971) holographic wills were excepted from the section pertaining to other wills, and holographic wills were given a separate section in the Digest. Under § 60-404 the requirements pertaining to holographic wills were completely removed from the requirements in the execution of other wills as provided in § 60-403. These two sections of the present probate code are as follows:
“60-403. Execution. The execution of a will, other than holographic, must be by the signature of the testator and of at least two [2] witnesses as follows:
a. Testator. The testator shall declare to the attesting witnesses that the instrument is his will and either
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
• (4) At his discretion and in his presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
(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.
b. Witnesses. The attesting witnesses must sign at the request and in the presence of the testator.
60-404. Holographic will. — Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three [3] credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will.” (Emphasis added).
Thus, it is seen that the 1949 statute still retains the original primary requirements as to wills other than holographic and subsection 5 of § 60-403, supra, requires that in the execution of wills (other than holographic) the instrument must still be signed by the testator or acknowledged by him in the manner set out in the statute and “the signature must be at the end of the instrument.”
Turning now to the requirements for holographic wills under § 60-404; it is clear, as we have already said, this section does not require a signature of the testator at the end of the instrument. Weems v. Smith, supra. In comparing § 14512 of Pope’s Digest, supra, with the two sections, §§ 60-403 — 60-404 of the present code, there is considerable room for speculation as to the legislative intent in completely removing holographic wills from the requirements as applied to other wills and leaving other wills (other than holographic) to be executed “by the signature of the testator. . .at the end of the instrument. . .”
We shall not indulge in surmising as to the legislative intent in separating holographic wills from the requirements pertaining to other wills, for regardless of legislative intent, there is no question that Act 140 of 1949 separated holographic wills from the strict requirements as to manner and place of signature required in the execution of wills other than holographic under § 60-403, supra. Such relaxation as to holographic wills does not appear illogical when we consider that the purpose of a will is to make disposition of property to take effect upon death, and the purpose of the statute relative to signature, is to protect against.fraud. Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W. 2d 321.
The appellants recognize the question involved in this case as one of first impression in Arkansas, and they urge us to follow the decisions of the California courts where similar cases have been decided under a statute similar to our own. The appellants quote extensively from the 1917 California case of In re Manchester’s Estate, 174 Cal. 417, 163 P. 358, and. point out that the facts in Manchester were almost on all fours with those in the case at bar and they urge us to adopt the rule laid down in Manchester and reach the same conclusion the California court reached in that case. We find no fault with the reasoning expressed by the California court in announcing its “true rule” in Manchester, but we are of the opinion that the Califormia courts made better application of the rule in the cases following the Manchester decision. A review of these decisions points to a trend toward logic in determining the intention of the testator in placing his signature at a particular place on his will even under the “true rule” announced in Manchester.
The Civil Code of California under which the Manchester will was written, then as now, provided as follows:
“A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and need not be witnessed.”
The pertinent portion of the will in Manchester recited as follows:
“January 14th, 1914
I, Matilda Manchester, leave and bequeath all my estate & effects, after payment of legal, funeral & certain foreign shipment expenses (as directed) to the following legatees, viz.”
The instrument ended as follows:
“Whereunto I hereby set my hand this fourteenth day of January, 1914.”
The name of the decedent did not appear on the paper anywhere except in the opening clause as above shown. The document was folded by the decedent and placed in an envelope, which was then sealed and indorsed by the decedent in her own handwriting with the words, “My will, Ida Matilda Manchester.” At her direction the instrument was placed in her safety deposit box where it was found after her death. The instrument was admitted to probate by the trial court but the Supreme Court of California reversed, holding that under the California Code and Webster’s Dictionary, the required signature under the code.
“means the signature of the testator in his own handwriting written somewhere in or upon the document, with the intention by so writing it to authenticate the document. The name written at another place than the end of the document, and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, cannot be deemed to be a name ‘signed’ to the document, unless that word is given a meaning entirely different from that which it is generally understood to have.”
The court then pointed out that the closing words, “Whereunto I hereby set my hand this. . .” were apt words to a signature in attestation of a will or deed and intended to show that the decedent intended to sign immediately below but failed to carry out that intention. The court then distinguished the cases wherein different pages of holographic wills were written at different times, some of which were signed and some not, but properly admitted to probate under the theory of integration.
The court in Manchester also distinguished a will in the Estate of Camp (66 P. 227) where the final clause and signature of a holographic will was torn off and destroyed after the death of the testator and proof was made by two credible witnesses under the provision of the Code of Civil Procedure. The court in Manchester points out that the initial clause of the will in Camp also contained the name of the testator, and the court in Camp said that this also established the fact that the document was intended by the decedent to be his last will, and that “the writing by him of his name in that clause was itself a sufficient signature.” The court in Manchester then announced the rule above referred to as follows:
“The true rule, as we conceive it to be, is that, where-ever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature.”
The court in Manchester concluded that:
“[T]he document in question was not signed by the testator, as required by section 1277, and that it is not entitled to probate.”
In the later 1927 California case of In re Morgan’s Estate, 253 P. 702, the proffered instrument recited as follows:
“Last will and testament of Ynez Morgan February 21, 1925
I, Ynez Morgan, hereby will and bequeath all that I possess in real and personal property to my cousins, Kenneth and Alma Prior.
It is my wish that my aunt, Mrs. A. G. Prior, be executrix without bond.”
This instrument was found among the effects of Ynez Morgan after, her death and after contest the probate court found it to be a valid holographic will, entirely written, dated and signed by the testatrix, and the instrument was admitted to probate as the last will and testament of the decedent. In affirming the probate court the Supreme Court of California said:
“The name, Ynez Morgan, appears twice in the instrument, and the only question before the court on this appeal is whether or not the decedent, by writing her name in either, or both, of said places, thereby ‘signed’ the will.”
The court then quoted and adhered to the “true rule” as laid down in Manchester, supra, and then said:
“The will here in question makes complete disposition of the property of the decedent and designates the person who shall have charge of the administration of her estate. It in all respects appears to be a completed document. . .If the words, ‘Last will and testamarie of Ynez Morgan,’ appeared at the end of ,.the will, all doubt that the signature was intended to be and was aclopted as the final executing signature in authentication of and in execution of the document as a completed testamentary act would be removed. Looking at the instrument as a whole, we are of' the view that, by the use of those words in the beginning of the instrument, it was the intention of the testatrix to thereby execute the document as a . will..
So recently has this court discussed this question and reviewed the authorities that nothing further need be added. We are satisfied that the finding of the probate court to the effect that the testatrix duly authenticated and executed the instrument as her last will and testament is sustained by the inferences arising from an inspection of the document itself.
The order appealed from is affirmed.”
In the still later 1964 case of In re Rowe’s Estate, 41 Cal. Rptr. 52, the holographic will of Ethel C. Rowe was admitted to probate. The will simply recited as follows:
“Will of Mrs. Ethel C. Rowe Jan. 16th 1962
I appoint Mr. Emil R. Walter and Atty James Abercrombie as administrators without Bond.
I bequeath my orange and olive groves to Emil R. Walter.
I bequeath all other real estate to my sister Mrs. Edith Cairns Russell if she survives me. Any bank deposits I have on my death can be used by Emil R. Walter to pay taxes.
I consider all other relatives financially able to take of themselves. If any one/
other than those named in this will claims any part of my possessions they are to receive one dollar.
Signed this day Jan 16th 1962”
This document was found in a desk drawer in the decedent’s home after her death. A sister of the decedent filed a petition for revocation of the probate order admitting the will to probate. She contended that the decedent failed to dispose of all of her property under the instrument and relying on Manchester, supra, she argued that the instrument was not subject to probate because if was not signed by the author. She contended that the failure of the decedent to dispose of all of her property indicated a lack of intention to execute the instrument as a will. The petition was denied by the probate court and the sister appealed to the District Court of Appeals for the Fifth District of California. In sustaining the probate court in admitting the instrument to probate as the last will and testament of the decedent, the appellate court recited the "true rule” as laid down in Manchester, supra,,and distinguished the two cases by pointing out that in Manchester the recitation “Whereunto I hereby sign my hand this fourteenth day of January 1914” was in the present tense and indicative of intention to sign. Whereas the instrument in Rowe appeared to be a completed will; that the last sentence fixed the date of execution and used the past tense of the word “sign,” i.e. “signed,” to indicate that the instrument had already been signed. The court in Rowe then cited a number of California cases since Manchester including the very interesting 1952 case of In re Bloch’s estate, 248 P. 2d 21, in which the California Supreme Court upheld the probation of an instrument in the handwriting of Helene I. Bloch. The instrument was found in the lock box of Helene I. Bloch after her death and consisted of an envelope with writing on both sides. It named an executor, disposed of the property belonging to Helene I. Bloch and the only place where the decedent’s name appeared on the instrument was in reference to a part of her property as follows:
“Bonds belonging solely to Helene I Bloch 8000.00”
The Supreme Court in that case said:
“The language of the document involved here is plainly dispositive in character, and the document was dated and was admittedly written by the hand of the decedent. The sole question is whether the decedent’s name, which appears only in the body of the instrument, constitutes a signature within the meaning of the statute.
It is settled in California that the signature need not be located at the end but may appear in another part of the document, provided the testator wrote his name there with the intention of authenticating or executing the instrument as his will.”
After citing a number of California decisions, the Supreme Court then continues:
“The instrument involved in the present case, as we have seen, discloses a testamentary intent, and, in our opinion, constitutes a complete testamentary document under the foregoing decisions. The writing, on its face, indicates that the testatrix did everything that she intended to do: She specified that the bonds which belonged solely to her were to be distributed equally among seven named individuals; she excluded her husband from sharing in this bequest, giving reasons for doing so; and she appointed her sister executrix and directed her to resist any action which might be taken by the husband. The document, after giving the reasons of the testatrix for exclusion of her husband, ends, in a natural manner by stating: ‘Therefore I feel he does not participate.’ * * *
Since it appears that the holographic document written by Mrs. Bloch is a complete testamentary instrument, it follows, under the decision in Estate of Kinney, supra, 16 Cal. 2d 50, 56, 104 P. 2d 782, that her name is to be regarded as having been written in the body of the instrument with authenticating intent. The order is affirmed.”
Justice Traynor wrote a dissenting opinion in Bloch, supra, reciting his view that the mere name of the decedent used in describing her property did not fulfill the statutory requirement. Justice Traynor’s minority opinion is of value in that it points out the following distinctions:
“Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a reasonable inference that it was so intended. When the name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d 782 (‘I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters’) or to identify the instrument as decedent’s will as in Estate of Brooks, 214 Cal. 138, 4 P. 2d 148 (‘This is my will — Elizabeth Ryan Brooks’), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where it was with the intention of executing the instrument. In such cases the name is linked to the alleged testamentary act and the pro babilities that it was intended as a signature are strong. In the present case, on the contrary, decedent’s name appears only in the description of her property.”
Returning now to the case at bar, there is no question that Mr. Rutherford intended to make a will and there is no question that he attempted to do so. There is no question of fraud involved in this case and there is no question that Mr. Rutherford thought he had executed a valid holographic will. There is no question that Mr. Rutherford completely disposed of all of his property under the instrument offered in probate, even to a provision for taking care of his dogs after his demise. Looking now to the language employed, the first line on page one of the instrument defines the instrument in the handwriting of the decedent as follows: “Will of Julian Leland Rutherford.” The first paragraph then recites: “I Julian Leland Rutherford. . .do hereby make, publish and declare this to be my last will and testament.” The last line of the instrument then recites: “Witness my hand and seal this 11 day of July, 1970.” There is no evidence in the record that Mr. Rutherford did not write “Witness my hand and seal . . .“ on the same day he wrote “I Julian Leland Rutherford. . .do hereby make, publish and declare this to be my last will and testament.” (Emphasis added).
Even if we should adopt and strictly apply the California rule announced in Manchester as urged by the appellants, the instrument signed by Rutherford would qualify as a holographic will subject to probate under the subsequent decisions of the California courts. But in this case Mr. Rutherford delivered the sealed envelope to his attorney and told him that it contained his will. All other evidence clearly indicates that when Mr. Rutherford delivered the instrument to his attorney, he had fully carried out his announced intentions of disposing of his property by will to the exclusion of the appellants.
In Page on Wills, vol. 2, § 20.9, p. 294, is found the following:
“There is a conflict of authority concerning the admissibility of evidence of testator’s declarations and acts, together with surrounding circumstances, to determine whether his name which was written by him in the body of the will was intended as a signature. The weight of authority .permits introduction of such evidence for the purpose of determining the intention with which testator wrote his name.”
We conclude, therefore, that the trial court did' not err in admitting the instrument to probate as the last will and testament of Julian Leland Rutherford, and that the judgment of the probate court should be affirmed.
Affirmed.
Harris, C. J., not participating.
The attorney was named executor without bond. | [
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Lyle Brown, Justice.
This is an action in slander brought by appellee and he recovered judgment for $1,000. For reversal appellant contends that the undisputed facts show the statement charging appellee with theft was justified.
Here is a summary of the testimony given by appellee. At the time of the incident he was a student at the University School of Pharmacy in Little Rock. He was employed on Saturdays and Sundays as a clerk at Markham Inn, a motel. Appellant was president of Markham Inn. It was not unusual for employees to draw against their anticipated salary but not more than they would earn during that pay period. Appellee had many times drawn against his salary — $5.00 or $10.00 — by placing his “IOU” in the cash register. On Friday evening, February 7, 1969, appellee went to Markham Inn and with the consent of the night clerk, withdrew ten dollars from the cash register and placed therein an IOU for that amount after initialing it. Appellee was due to report for work early the next morning but he overslept because the night clerk failed to telephone him. When appellee awoke he telephoned Markham Inn to explain that he would be late and to his surprise a new man was on duty. From the conversation between appellee and the new clerk appellee learned that he had been discharged. Appellee went home to borrow some money and when he returned on Sunday he checked his mail box at the university student housing and found this message addressed to him: “Don McCorkle at the Markham Inn called me about an urgent emergency. ‘You have stole $10.00 from his register.’ He says you are to return it immediately or Monday morning he will contact the Medical Center and the police.”
Miss Campbell, the desk clerk at the student housing complex, testified that she took the message over the telephone from a man who identified himself as Don McCorkle, that she put the message in appellee’s box and notified her superior who approved the action.
Appellant testified in his own behalf. He conceded that the message given appellee was correct. He defended his actions on the ground that he had informed appellee on the Sunday preceding the withdrawal of the ten dollars that he was discharged; that he was therefore not an employee at the time he took the money and consequently had no more right than a stranger to withdraw the money. Appellant denied ever having authorized withdrawals from the register by employees.
Of course under the law we are bound by the verdict of the judge sitting as a jury if there is substantial evidence to support the judgment. The evidence proffered by appellee is substantial and we are not permitted to disturb the finding.
Affirmed.
Byrd, J., not participating. | [
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Carleton Harris, Chief Justice.
Frankie Inklebarger brings this appeal from a conviction of indecent exposure. Several points are alleged for reversal which we proceed to. discuss.
' It is first asserted that the court should have instructed a verdict of not guilty, this contention really being that there was not sufficient evidence to sustain the conviction. We disagree. Vicky Crowley, 14 years of age, testified that as she was fixing to cross a street near the McConnell Funeral Home in Booneville, a yellow and black Dodge passed and stopped. As she proceeded along Main Street on the sidewalk, this man raised up, exhibiting his privates. Vicky, who was riding a bicycle, then went around the car, but he started up and again passed her, stopping the automobile, and apparently waiting on her to come up to where he had stopped. However, she reached her home before arriving at that point, and went into the house and told her mother. The driver of the automobile then drove back in front of the house, and lookéd into it, both the daughter and mother seeing him. Vicky identified Inklebarger as the man who had exposed himself! According to the evidence, the act of exposure occurred around 11:50 a.m. Other evidence reflected' that Inklebarger drove a yellow and black Dodge. As his defense, Inklebarger offered an alibi, i.e., he was taking a nap at a friend’s home from about 11:00 a.m. until approximately 1:00 p.m. on the date of the alleged offense. This alibi was corroborated by three other witnesses. Of course, we have said so many times as to need no citation of authority, that the jury is the fact finder, and we do not disturb their findings on fact issues, unless there is no substantial evidence to support the verdict. The testimony of Vicky was sufficient to sustain the conviction,. and we find no merit in this point.
Complaint is made that the information was deficient in that it failed to disclose certain pertinent facts, viz, the names of the witnesses, the approximate time of the offense, and the date of the offense. The information was amended to supply these defects prior to the jury being sworn and the trial court made a record thereof. If there had been any defect in the information, it was cured by this action. See Murray v. State, 249 Ark. 887, 462 S.W. 2d 438. It is also mentioned that the name of one of the witnesses, an officer, was not furnished. It appears that a mistake was made in giving the name of the officer, but certainly no prejudice resulted for the officer only testified that the man was pointed out to him as having passed the Crowley house. He knew nothing at all about the alleged offense, and he said that Inklebarger was not doing anything out of the ordinary when he observed him; that appellant was driving at a normal rate of speed and did not try to get away from him (the officer) in any way..
It is also contended that reversible error was committed during the cross-examination of Inklebarger’s wife. The record reflects that the prosecuting attorney asked Mrs. Inklebarger the question “You do know that he has a problem, this Inklebarger?” An objection was made by counsel and this objection was sustained by the court. Certainly, under these facts no error was committed. Finally, it is contended that reversible error was committed during cross-examination of the appellant. The prosecuting attorney asked appellant if he had been convicted in April for indecent exposure. Counsel moved for a mistrial which motion was denied. Inklebarger first answered that he was charged with that offense, but when again asked “Were you convicted of it?”, replied, “Yes”. He was also asked if he had not exposed himself to another female member of the community about a year ago. Appellant replied “No, sir.” There was no error in these proceedings. The court, in overruling the objection, stated that the prosecuting attorney had a right to ask appellant about these acts as affecting the credibility of the witness, and we have so held numerous times. It is true that one cannot be asked if he has been charged, or indicted, or accused, of other crimes, but we have upheld the right of the prosecuting attorney, as a matter of going to the credibility of the witness, to ask a defendant if he has been convicted of other acts, or if he committed other acts. See Johnson v. State, 236 Ark. 917, 370 S.W. 2d 610, and cases cited therein.
Finding no reversible error, the judgment is affirmed.
The officer also explained to Mrs. Crowley the procedure to follow in obtaining a warrant.
Actually, the offense being an “unnatural” sex offense, the evidence may well have been admissible during the state's presentation of its case. See Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, and cases cited therein. | [
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Frank Holt, Justice.
This is an action to recover for the alleged negligent disbursement of escrow funds and to establish subrogation rights. Appellants contracted with Jim Hart for the construction of a residence at a total cost of $16,500. To assist in financing, appellants deeded their property to Hart who obtained a temporary loan for construction purposes from the Pine Bluff National Bank. The appellees were not involved in this loan. Subsequently, appellants applied to appellee-Modern American Mortgage Corporation for permanent financing on their residence and secured a $10,000 loan. This amount was paid to appellee-Standard Title Company with the instruction to disburse the funds after completion of the construction and upon a determination that appellants’ mortgage to Modern American would constitute a first lien; and further, that a title insurance policy be issued to Modern American from appellee-Standard Title Insurance Company, which would indemnify it against any loss by virtue of any prior liens. Thereafter, appellee-Standard Title Company as escrow agent, with appellants’ consent, deducted certain expenses from the principal amount and on November 22, 1968, issued a check for the balance of the loan, $9,037.88, to Hart and M. J. Probst, appellee-Standard Title Co.’s attorney. Probst, acting as agent for appellee-Standard Title Co., paid off the temporary loan at the Pine Bluff Bank. After obtaining an affidavit from Hart, the contractor, that he had paid for all materials and labor used in the construction of the house, Probst remitted the balance to Hart.
A month later, appellants received notice from a materialman, O. L. Puryear and Sons, Inc., that a bill for $2,472.06, representing material furnished in construction of appellants’ house, was unpaid by their contractor. Puryear filed a lien and reduced it to a judgment. Thereafter, appellants filed this action to recover for their payment of Puryear’s judgment alleging that appellees, Standard Title Co. and Standard Title Ins. Co., were negligent in paying to the contractor, who absconded, the balance of the permanent loan proceeds without first ascertaining whether the Puryear material used in the construction of the residence was paid; and, further, that appellants were entitled to be subrogated to the rights of the appellee-mortgagee (Modern American Mortgage Corp.) under the terms of the title insurance policy issued to the mortgagee by appellee-Standard Title Ins. Co.
For reversal of an adverse decree, appellants first contend that the Chancellor erred in holding that appelleeStandard Title Co. was not negligent in disbursing the proceeds of the permanent loan; and also, in refusing to subrogate the appellants to the rights of Modern American (mortgagee) under its title insurance policy issued by appellee-Standard Title Ins. Co. since appellants had to pay the Puryear lien.
Appellant, Willie Branch, testified that he agreed to the payment of the money to Hart and Probst after conferring with a lawyer of his own choice on two separate occasions, “the last of August or the first of September” and in November. Appellant talked with this lawyer after receiving a statement from appellee-Standard Title Company listing certain disbursements or deductions. He testified on cross-examination, “I went to him to ask information on whether if there was any liens, and debts was owed on the property by the contractor [Hart], who would be liable and how we would go about seeing it was paid. It was when I carried the papers to show him, after he brought them down. Yes, that was November 22. The same day I signed them.” On that date, appellant and his wife signed a letter addressed to appellee-Standard Title Company authorizing and directing that the net loan proceeds in its possession as escrow agent be paid by check jointly to Hart and M. J. Probst. Accordingly, a check for $9,037.88 was forwarded to them.
Prior to appellants’ (both Branch and his wife) consultations with an attorney, he had been informed by Puryear during August that the cost of materials used in the construction of the residence had not been paid. Appellant testified: “Well, he told me he had furnished some material out there and he had not been paid. Yes sir, and several others had done the same.” Appellant further testified that in October he had personally paid Hart $7,498.25 without first determining whether Puryear had at any time between August and October received payment for the materials used in the construction of the residence.
We prefer to rest out opinion upon appellees’ assertion that appellants are estopped from asserting their claim. In Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443 (1950), we aptly said:
“The doctrine of estoppel in pais was early recognized in decisions of this court and is available as a defense to a claimed right either at law or in equity. See Gambill v. Wilson, 211 Ark. 733, 202 S.W. 2d 185. In the recent case of Williams v. Davis, 211 Ark. 725, at page 731, 202 S.W. 2d 205, 208, we quoted with approval, this statement in Jowers v. Phelphs, 33 Ark. 465: ‘Estoppels in pais depend upon facts, which are rarely in any two cases precisely the same. The principle upon which they are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed, afterwards, to come in and assert his right, to the detriment of the person so misled.’ ”
As we view the evidence, Branch paid $7,498.25 in cash to his contractor (Hart) and a month later authorized and directed appellee-Standard Title Company, the escrow agent, to pay the net proceeds of the $10,000 loan direct to Hart and Probst with the admitted knowledge of the possible outstanding material bill owed to Puryear without apprising them of his knowledge. These acts arid knowledge are inconsistent with the right presently asserted by appellants and are detrimental to appellees.
As to the appellants’ claim for subrogation, we further observe that appellee-Standard Title Ins. Co.’s duty under the insurance policy was contractual in nature and extended only to the mortgagee. Also, the appellants, as owners of the property, had the primary (and not a secondary) responsibility to discharge the Puryear encumbrance or lien upon their property. Ark. Stat. Annot. § 51-601 (Repl. 1971). The doctrine of subrogation cannot be invoked by appellants in the case at bar.
It follows that it is unnecessary to discuss appellants’ contention that they are entitled to recover their expenses which were incurred in defending the Puryear claim for a lien.
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Frank Holt, Justice.
This is an action for wrongful death. The deceased, Chauncy G. Jones, was driving a pick-up truck when a collision occurred between it and a car driven by appellant. Jones sustained three non-displaced broken ribs, contusions, abrasions, and a blow to his head as a result of the accident. He was taken to a hospital where he died 17 days later. Prior to the date of the accident, Jones had regularly worked at his job, and, also, on his farm. However, it is undisputed that on the date of the accident, unbeknownst to the deceased, he had terminal cancer of the lung. The cancerous condition was discovered from the x-rays taken to determine the extent of the injuries to his chest. An autopsy report listed the cancer as the cause of his death. A jury found, as alleged by appellees, that appellant was negligent in causing the accident and that appellant’s negligence was the proximate cause of Jones’ death. The jury awarded $3,867.89 damages to Mrs. Jones as administratrix and $8,000.00 to her individually. Damages were disallowed to appellee, Harold Jones, decedent’s son. From a judgment on that verdict the appellant brings this appeal.
We first consider appellant’s assertion for reversal that the trial court erred in not directing a verdict in his favor as to the wrongful death because the evidence failed to establish that the “accident was the proximate cause of the decedent’s death.” Medical testimony from two physicians was presented to establish that the death was proximately caused by the accident. One of the doctors testified that “the injuries received in the automobile accident hastened his death” and, further, the death was a result of "a combination” of the injuries and the cancer. However, decedent would have eventually died of the cancer had the accident never occurred. The other medical expert testified: “I believe that his injuries hastened his death.” This evidence when viewed most favorably to the appellees, as we must do on appeal, is sufficient to present a question of fact for a jury’s determination as the whether the accident proximately caused Jones’ death. Woodward v. Blythe, 249 Ark. 793, 462 S.W. 2d 205 (1971), Ellsworth Bros. Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724 (1969); see, also, Owen v. Dix, 210 Ark. 562, 196 S.W. 2d 913 (1946).
We next consider appellant’s contention that the jury’s award for wrongful death is based upon speculation in that the record is void of any evidence relating to the “period of time that the accident shortened the life span of the decedent.” Although the evidence as adduced is sufficient to present a jury question as to proximate causation, there is no evidence as to decedent’s normal life span or otherwise from which the jury could determine the relative time span that this accident “shortened” Jones’ life. In the absence of such evidence the jury’s award is without a reasonable basis and is, therefore, speculative. Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5 (1961). However, one expert witness was able to estimate medically the length of time that this cancerous, condition had existed. Therefore, we are of the opinion that upon a retrial it is not impossible that the deficiency of proof as to decedent’s “shortened” life span could be supplied. In such a situation a remand in law cases is proper. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969); St. L. S. W. Ry. Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967); Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W. 2d 784 (1969). Medical science, like the law, is not an exact science. American Life Insurance Co. v. Moore, 216 Ark. 44, 223 S. W. 2d 1019 (1949).
Appellant, also, contends that the testimony was insufficient to allow a recovery for mental anguish. Appellant cites us to Peugh v. Oliger, Admx., 233 Ark. 281, 345 S.W. 2d 610 (1961), where we held that in order to recover for mental anguish something more than normal grief occasioned by the loss of a loved one must be proven. In the case at bar we deem it unnecessary to discuss the sufficiency of the evidence to justify the award of $1,000 inasmuch as the cause is being remanded and because, upon retrial, the proof will likely be more definite as to the asserted deficiency.
Appellant, also, asserts that the court erroneously allowed testimony which was outside the scope of the pleadings. The appellees adduced testimony, in addition to physical injuries, about the latent, existence of decedent’s cancerous condition. The court limited the issue as to the alleged wrongful death to one of causation from the sustained injuries and would not permit the appellees to assert the unalleged aggravation of a preexisting condition. We find, as abstracted, no plea of surprise to this testimony nor a motion for continuance. In the circumstances, we hold there is no prejudicial error in the court’s action.
We have considered and find no merit in appellant’s two other contentions; also, they are not likely to arise upon a retrial.
Inasmuch as the deficiency in the proof, as previously discussed, could possibly be supplied upon a retrial, the judgment is reversed and the cause remanded.
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George Rose Smith, Justice.
This is the third time that some aspect of this litigation has reached this court. The present appeal is from a $10,000 judgment obtained in the court below by the appellee Grover L. Martin un der the uninsured motorist provisions of an insurance policy issued to Martin by the appellant, Granite State Insurance Company. Granite State argues several points for reversal, the principal one stemming from Granite State’s contention that the pendency of another suit in Pulaski county is a bar to the maintenance of this suit in Conway county.
All the litigation derives from a traffic collision in Pulaski county, involving Martin and John L. Romes. Romes sued Martin in Pulaski county. Martin filed a counterclaim. That case was tried and resulted in a partial verdict and judgment, which were set aside on appeal. Martin v. Romes, 249 Ark. 927, 462 S.W. 2d 460 (1971). The case has not been retried and is still pending in Pulaski county.
Several months after the entry of the partial judgment in Pulaski county, Martin brought this action against his own insurance company, Granite State, in Conway county, where Martin lives. Martin alleged that he was injured in the collision, that Romes was an uninsured motorist, and that Martin was entitled to recover $10,000 under the uninsured motorist clause in the policy.
Granite State filed a motion to dismiss the Conway county case, on the ground that another action involving the same subject matter was pending in Pulaski county. Martin resisted the motion to dismiss, pointing out that Granite State was not a party to the Pulaski county suit and also that that suit was a tort action while the one in Conway county was an action in contract. The trial court denied the motion to dismiss. Thereafter we refused to issue a writ of prohibition against the maintenance of the suit in Conway county. Granite State Ins. Co. v. Roberts, 250 Ark. 442, 465 S.W. 2d 332 (1971). The Conway county case was then brought to trial and resulted in the $10,000 judgment now before us.
At the trial in the court below Granite State renewed its contention that the pendency of the suit in Pulaski county is a bar to the maintenance of this suit in Conway county. In that connection Granite State relies upon a provision in its policy to the effect that no judgment in favor of its insured (Martin) against an uninsured motorist (Romes) is conclusive as to Granite State unless the action by Martin is prosecuted with Granite State’s written consent. Granite State sought to prove that Martin’s counterclaim against Romes in Pulaski county had been filed with Granite State’s written consent, but the trial judge refused to allow that proof, holding that the question was not an issue in tíre case.
That ruling was error. In the prohibition case Granite State argued that it had consented in writing to Martin’s counterclaim against Romes; but its proof was deficient. For that reason we denied the application for a writ of prohibition. We quote from that opinion:
There is no evidence in the record before us that Granite State was ever a party to the litigation pending in Pulaski County, and there is no evidence, as the record now stands, that Granite State did or did not consent to the action instituted ... in the Pulaski County Circuit Court. We conclude, therefore, that the petitioner, Granite State Insurance Company, has failed in the discharge of its burden of showing grounds for the invocation of the extraordinary powers of this court to prevent by prohibition the exercise of jurisdiction inherent in the trial court, and of showing that the respondent judge erred in denying Granite State’s motion to dismiss Martin’s complaint in the Conway County Circuit Court. (Italics supplied.)
Thus we held that the Pulaski county case would be a bar to the Conway county case if Granite State either was a party to the Pulaski county suit, which it was not, or had consented in writing to the filing of Martin’s counter-claim, which Granite State failed to prove. That decision is now the law of the case. We must adhere to it upon this appeal and would do so even if we thought it to be erroneous. United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S.W. 392, 1 A.L.R. 1259 (1917). It follows that Granite State was entitled to attempt to prove that it had consented in writing to Martin’s counterclaim in Pulaski county, so that the judgment in that case would be binding upon all concerned. The trial court erred in refusing to allow that issue to be litigated.
Granite State argues several other matters that may arise upon a retrial of the case. In the court below Granite State filed a third-party complaint against Romes, asserting that if Martin recovered judgment against Granite State, then Granite State would be entitled to judgment over against Romes in the same amount. Romes filed a motion to dismiss Granite State’s third party complaint against him. If is now argued that the trial court erred in dismissing Romes from the case.
We think the court was right. Rome had already fixed the venue as between himself and Martin by filing his own suit in Pulaski county. Hence Romes was entitled to insist that his part in the controversy be litigated in his tort action in Pulaski county rather than in a contract case in Conway county involving an insurance policy to which Romes was not a party. Granite State, needless to say, may assert its claim to subrogation by appropriate action in Pulaski county, where Romes resides.
The court erred in allowing Martin to prove by a State policeman that Martin had said at the scene of the accident that his neck and back were hurting. The statement does not appear to have been an involuntary exclamation indicating pain. Rather, it was a narration of what Martin thought his condition to be. As such it was a self-serving declaration and inadmissible. Prescott & N. W.R.R. v. Thomas, 114 Ark. 56, 167 S.W. 486 (1914). It was also error to allow Martin to explain what had happened to a traffic ticket that he received, but that matter was voluntarily injected into the case by Martin himself and should not arise upon a retrial. We express no opinion with respect to the reasonableness of the attorney’s fee allowed to Martin, for the pertinent facts with respect to the fee are certain to be somewhat different if Martin succeeds in obtaining judgment upon a retrial.
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John A.Fogleman, Justice.
The plaintiff-appellant, Farmers Equipment Company, sold a crawler tractor with dozer blade to the defendant-appellees, John Miller, Jr’, and Malcolm Miller, his father, for the sum of $11,000 to be paid in installments, and Farmers retained a security interest in the equipment. Upon default by the Millers, Farmers repossessed the equipment and sold it for $1,800 at public sale. Farmers applied the $1,800 less expenses on the $6,582.77 balance still owed by the Millers and brought suit against the Millers in the Izard County Circuit Court for the deficiency in the amount of $4,782.77.
Appellees defended upon the ground that the disposition of the collateral was not commercially reasonable as required by the Uniform Commercial Code and that appellant did not proceed in good faith.
A jury trial resulted in a judgment in favor of the Millers and on appeal to this court appellant relies on the following points:
The trial court erred in allowing the testimony of Travis Grissom, witness for appellees, as to the market value of appellees’ dozer.
The trial court erred in allowing Harliss Reeves, witness for appellees, to testify as to an alleged conversation with a person in authority at appellant’s place of business.
The trial court erred in failing to direct a verdict in favor of appellant at the close of the evidence and in overruling appellant’s motion for judgment notwithstanding the verdict.
The verdict is not sustained by sufficient evidence, and/or is contrary to law and appellant’s motion for a new trial should have been granted.
We find no reversible error.
Appellees sought to show the value of the bulldozer through the testimony of Travis Grissom. Appellant objected to Grissom’s opinion of the market value of the machine on the basis that the proper foundation was not laid by a showing that Grissom had an adequate knowledge of values. Grissom started working with heavy equipment during his service with the army engineers during the years 1953 to 1955 and had operated this kind of equipment ever since. He was employed by John Miller, Jr., as a bulldozer operator about February 1966. He actually operated the machine involved here until the day it was repossessed, so he was very familiar with it. He stated that it was then in good condition, except for the tracks and sprockets and left side armor. He claimed to have knowledge of the market value of a bulldozer of the type involved on the date of repossession, based upon what was said when he went with others shopping for this kind of machinery and from his own knowledge of what others had to pay for equipment on various jobs. The determination whether a nonexpert witness has sufficient knowledge of the matter in question or has had sufficient opportunity for observation to be qualified to state an opinion lies largely within the sound judicial discretion of the trial judge and is not reviewable on appeal unless so clearly erroneous as to manifest an abuse of discretion, even though we might have decided differently if the question had been presented to us in the first instance. Lee v. Crittenden County, 216 Ark. 480, 226 S.W. 2d 79. Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777. The same principles apply to market value witnesses. Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S.W. 2d 705; Housing Authority of City of Little Rock v. Winston, 226 Ark. 1037, 295 S.W. 2d 621; Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440.
Even though the evidence of qualifications of the witness may now seem meager, we are unable to say that the circuit judge abused his discretion in admitting this testimony. We do not consider Little Rock & Ft. Smith Ry. Co. v. Alister, 62 Ark. 1, 34 S.W. 82, relied upon by appellant to indicate a different result. There it was clearly deminstrated that there was no basis for the opinion of a witness of the estimated cost of certain excavation work. He testified, on cross-examination, that he had never done any such work, either as a laborer or contractor and that what he stated as the price was only guesswork. We cannot say that it was unreasonable for the trial court to accept the statement of one, who had operated equipment of the type involved for over 15 years, that he had been sufficiently exposed to information about the selling price of equipment of that type to possess knowledge of its market value.
We cannot say that there was error in the admission of the testimony of Reeves. Appellant’s objection was that the testimony of Reeves, as to statements made by a person he could not specifically identify, was hearsay, and the appellant was deprived of the opportunity to cross-examine the person making the statements.
Reeves was foreman on the job from which the bulldozer was repossessed and had driven it on occasion. At the time of the trial, he was operating a similar type tract- or he had purchased. He stated that he had shopped around a great deal before making the purchase, and had attempted to buy the Miller "dozer” from appellant at Newport about a week or 10 days after the repossession. Miller had informed him that the unpaid balance Owed was something over $6,000. According to Reeves, he went to appellant’s place of business where he was told by someone whose name he could not remember, but who he thought "was the main guy in the company” at the time, that it would take $8,750 to buy the bulldozer. Reeves said that when he protested that this was too much, this same person said "We will sell it to somebody,” and Reeves then offered to leave his name, address and telephone number so that he could be called whenever the company got ready to sell the equipment, but did not offer a specific sum for the tractor. Reeves testified that this person said, "I don’t give a damn if we don’t get $2,000 on it, we’ll get our money” and that he had “two guys” on the note.
After appellant’s initial objection, Reeves responded in the affirmative to a question whether the person making these statements was in charge of Farmers Equipment Company and was negotiating with Reeves when he was trying to purchase the equipment. Reeves further identified the speaker as "top guy there that day,” "a medium sized guy” with "sort of brown” hair. Reeves claimed that the conversation lasted about five minutes, and that it took place in this man’s office. When asked if the person showed him any papers, he responded "I think he thumbed through some papers and came up with a price, but I am not sure about that.”
We find no real similarity between this testimony and that held inadmissible in Taylor v. Samuel, 238 Ark. 70, 378 S.W. 2d 200, relied upon by appellant. There, an attempt was made to prove the agency of two unidentified individuals making delivery of lumber by the statements of these individuals to the witness at the time of the delivery that they were making delivery for the alleged principal. That testimony was clearly hearsay and inadmissible as evidence of the agency.
The real question involved here is whether the witness sufficiently identified the person with whom he talked about buying the bulldozer to give rise to an inference that that person was an agent of the company with authority to speak upon the subject. Although the details of the actions of this person might have been more thoroughly developed, we do not think it would be unreasonable to draw an inference from Reeves’ testimony that he spoke to a person who occupied an office at appellant’s place of business and who acted as though he were in charge there, that the conversation took place in that person’s office, where there were papers through which this person thumbed while talking about the price for the piece of equipment, and that this person had sufficient knowledge of the transaction to know that there were two signers of the purchase money note who were liable for any deficiency. We feel that this identification is sufficiently definite to permit consideration of the testimony by a jury, which would determine the weight and credit to be given to it. We are strengthened in our belief by reason of the fact that Buddy Black, appellant’s current manager, called in rebuttal, when asked if he could identify the person Reeves was referring to by the description given, answered "average, brown headed fellow — I am sure he just have been talking about Burton Ford.” Black had previously identified Ford as the company’s manager at the time of the alleged conversation and himself as Ford’s assistant. Black also testified that the officers and stockholders took no part in the management of this company until several months after the transaction giving rise to this litigation. It was only necessary that the information as to the identity of the speaker be sufficiently definite that the evidence as to his authority and as to the making of the statements might be rebutted. See Dudding v. Thorpe, 47 F.R.D. 565 (D. C. Pa. 1969). Before Reeves testified, Black stated that he would not doubt Reeves’ testimony if Reeves said that he had offered $6,000 for this piece of equipment. It is true that after Black made the above-quoted statement on rebuttal, he described Ford as a “pretty good sized fellow, blond headed and wears glasses.” As we have said, weight and credibility were in the jury’s province. It is significant that appellees did not seek to prove the truth of the statements allegedly made. They only sought to prove that they were made.
The remaining points argued by appellant really raise the question whether there was any substantial evidence that the sale of the repossessed bulldozer was not made in a commercially reasonable manner as required by Ark. Stat. Ann. § 85-9-504 (3) (Add. 1961) or that appellant did not proceed in good faith as required by § 85-1-203 (Add. 1961). It relies upon our holding in Goodin v. Farmers Tractor & Equipment Co., 249 Ark. 30, 458 S.W. 2d 419, and the provisions of Ark. Stat. Ann. § 85-9-507 (Add. 1961). Particular emphasis is put upon the statement in the statute that the fact that a better price could have been obtained by a sale at a different time or in a different method is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. It is significant, however, that there is evidence on this issue relating to other facts.
The bulldozer was repossessed on October 1, 1969, at a time when the bank to which the contract of sale was assigned by appellant was pressing appellant for money. Although Black testified that the equipment was badly in need of repair at the time of repossession, this testimony was controverted by Reeves, Grissom and Miller. Miller said that the necessary work to put the tractor in excellent condition would have cost only $300. Black testified that appellant attempted to dispose of the machine by private sale for the balance due ($6,582.76) at first and later for three or four thousand dollars and had numerous people look at it but received no offers or bids before an auction sale held on April 4. Black said appellant “waited and waited and waited” until the bank forced it to hold the public auction. He testified that the original asking price scared everyone off to begin with. Although Black testified that a lot of those who viewed the tractor would have liked to have it, none wanted to buy under the circumstances and preferred to await a public auction. He could offer no explanation of appellant’s inability to sell the bulldozer at private sale. The decision to proceed by public auction was made only 10 days before the sale. While Black said that he called local implement dealers and farmers in the area to advise them of the public sale, he only called those he thought would be interested who had not already been by the place while efforts were being made to sell by private sale.
The successful bidder at the auction offered $1,800. Although Black testified that he was familiar with the normal commercial practices of dealers in this type of equipment in the area and practices in selling this type of equipment he did not state what they were. The notice of sale was headed “Sold at Public Auction!” and Black admitted that some who called were confused or misunderstood this heading and questioned him about it.
Black was of the opinion that the bulldozer was worth only $1,800 at the time of the sale, but admitted that his opinion was based on the amount realized at the public sale. He placed the costs of repairs at the time of the sale at $800. While Black stated the opinion that the bulldozer was worth $3,000 to $4,000 at the time of repossession, he estimated that repairs costing $1,200 or $1,300 would have been needed to put the equipment in condition to have this market value. John Miller, Jr., said that the bulldozer was worth from $8,000 to $8,500 when repossessed.
This case may be distinguished from Goodin in several respects. The alleged offeror in that case could not even approximate the date of his offer to a company salesman. The adequacy and propriety of the notice of sale there were not questioned. The published notice in this case may have been quite misleading in that it might have been taken by a casual observer to report a sale that had already been held. In Goodin, testimony that the condition of the equipment was “very poor — close to scrap” was not controverted.
Furthermore, if the jury believed that appellant’s manager made the statements attributed to him by Reeves, it could well have decided that appellant did not act either in good faith or in a commercially reasonable manner in disposing of the security. Appellant had the burden of showing the amount of tbe deficiency it was entitled to recover. Universal C.I.T. v. Rone, 248 Ark. 665, 455 S.W. 2d 37. Since appellees defended upon the ground that appellant did not proceed in accordance with the provisions of the code, appellant had the burden of proving that it proceed in a commercially reasonable manner. Investors Acceptance Co. v. James Talcott, Inc., 454 S.W. 2d 130 (Tenn. Civ. App. 1969, cert. denied 1970.) In view of the question about the notice, the total absence of evidence about normal commercial practices in disposition of this type of collateral, the length of the period of time elapsing between repossession and sale, the possibility that the bulldozer may have abnormally deteriorated during that period, as indicated by the discrepancy in descriptions of its condition and estimated cost of repairs, the failure of appellant to notify Grissom or others who had expressed an interest in purchasing the equipment and the evidence pertaining to remarks made to Grissom by one who may have been taken to be appellant’s manager, we cannot, say that there was not a jury question as to appellant’s good faith and the commercial reasonableness of every aspect of the disposition of this collateral.
Appellant argues that the circuit judge erred in not granting its motion for new trial because the verdict was against the preponderance of the evidence. Since we find substantial evidence to support the verdict, we cannot re verse the denial of this motion. Brady v. City of Springdale, 246 Ark. 1105, 441 S.W. 2d 81.
The judgment is affirmed. | [
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John A. Fogleman, Justice.
Appellants ask us to reverse the decree of the chancery court confirming the validity of a deed from J. Glen Sheffield (now deceased) to his sister Louise Corbin and his wife Imogene Sheffield. Appellants are the surviving daughters and sole heirs at law of Sheffield. They contended in the chancery court that the deed was not supported by valuable consideration and that the grantor was not competent to execute the deed. They contend here that the chancellor’s findings are not supported by the evidence. Appellants do not argue, however, their point as to consideration. It is sufficient to say that, in the absence of fraud or undue influence, a voluntary conveyance which consititutes a present grant is not invalid as between the parties and their privies. McCuiston v. Rollman, 243 Ark. 668, 420 S.W. 2d 925; Cannon v. Owens, 224 Ark. 614, 275 S.W. 2d 445; Ferguson v. Haynes, 224 Ark. 342, 273 S.W. 2d 23; O’Connor v. Patton, 171 Ark. 626, 286 S.W. 822.
Appellants had the burden of showing by clear, cogent and convincing evidence that the grantor in the deed did not have sufficient mental capacity at the time the deed was executed to enable him to exercise reasonable judgment concerning the matter of the execution of the deed in protecting his own interests. Braswell v. Brandon, 208 Ark. 174, 185 S.W. 2d 271; Richard v. Smith, 235 Ark. 752, 361 S.W. 2d 741.
We have consistently followed this oft-reiterated rule stated in Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510:
If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory without prompting the extent and condition of his property and to comprehend how he is disposing of it and to whom and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.
We have carefully reviewed the evidence as abstracted and are unable to say that the chancellor incorrectly held that appellants failed to meet their heavy burden. No useful purpose would be served by a detailed review of the evidence. Appellants relied almost entirely upon the testimony of J. B. Rochelle, III, M. D., who testified regarding medication given Sheffield during his last illness from notes made by nurses at the hospital and who had almost no recollection of the patient’s condition or of any visits to or conversations with him. The treatment began on November 4, 1968, nearly four months before the execution of the deed. This physician entered Sheffield in a hospital on January 3, 1969, for a stay ending January 17, 1969, following diagnosis of a lung cancer which had spread to his esophagus and liver. Sheffield was again admitted to the hospital on February 7, 1969, and remained there until he died on March 2, 1969. Medicines prescribed for him would have had a sedative effect on the usual person and some of them would blunt the memory for near-term effects. The dosage indicated on the date the deed was signed could have affected Sheffield’s judgment and would have caused the doctor to question his ability to reason, and, in the doctor’s opinion, in all reasonable medical probability, Sheffield’s judgment would have been impaired. While notes indicated that Sheffield was in a semistuporous state on February 20, 1969, there were no notes indicating the existence of such a condition on February 25, 1969. The doctor did not advise Sheffield of his condition prior to his entering the hospital and did not think that he did thereafter. He did not know what effect the medication had on Sheffield. When he saw Sheffield on three occasions between hospital stays, he found Sheffield capable of understanding what this doctor talked to him about. While he talked to Sheffield during daily visits to him in the hospital, he could not recall what he talked to Sheffield about, or whether Sheffield talked or not. He found that sedation administered did not affect Sheffield as it would a normal person. He could not say that the medication did blunt Sheffield’s near-term memory. The doctor visited Sheffield on the day the deed was executed, but did not recall any conversation, and could not testify as to his mental condition on that day. Dr. Rochelle could not say that the medication he prescribed was actually administered, except that he would have noticed if less narcotics than he prescribed had been given.
Appellee, the sister of Sheffield, who was a grantee in the deed, testified that he was very alert on the occasions when she visited him.
A secretary for Sheffield’s lawyer related that Sheffield specifically asked the lawyer to omit the property which was the subject of the deed in question from a will prepared for Sheffield and signed by him on January 29, 1969, because he intended to make other disposition of it. The deed was later prepared in this lawyer’s office and taken to the hospital by this secretary, who testified that it was signed in her presence. She took his acknowledgment and said she would not have done so it she had thought he did not know what he was doing. She had known him for 10 years.
Sheffield’s mother stated that one of his daughters, an appellant here, did not invite him to the daughter’s wedding, did not mention his name in connection with it and did not come to his funeral. She said that Sheffield, between hospital stays, had told her that he was going to will his town property to his wife and deed the other property to his wife and his sister Louise Corbin. She said that he had deliberately refrained from taking sedation on this occasion so that his mind would be clear, and had “walked the floor all night” until advising her of his decision about 2:00 a.m.
Richard C. Allen, pastor of St. James Episcopal Church in Texarkana, testified that he had baptized Glen Sheffield two days after the execution of the deed. He had visited Sheffield in the hospital almost daily. On these visits he found Sheffield responsive to him and the subjects of his conversation. He testified that even when heavily sedated Sheffield responded upon being “roused.” He said that he would not have proceeded with the baptism if he had not thought Sheffield knew what he was doing.
Since we cannot say that the evidence of lack of mental capacity is clear, cogent and convincing, the decree is affirmed. | [
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Frank Holt, Justice.
Upon a retrial, following our reversal in Hill v. State, 249 Ark. 42, 458 S.W. 2d 45 (1970), the appellant was convicted by a jury of first degree murder and the penalty assessed at life imprisonment in the state penitentiary. For reversal of that judgment the sole issue on this appeal is appellant’s contention that the court erred in giving the following instruction to the jury over his specific objections and exceptions.
“Certain probate court records, orders and other documents have been introduced into evidence in this case. When insanity is relied on as a defense, an adjudication declaring the defendant to be an incompetent or insane person may go to the jury as evidence on that issue. Such adjudication is not conclusive of the insanity of the defendant, but may be considered by you along with all the other evidence bearing on the question of the defendant’s sanity or insanity.”
Apellant asserts that in this instruction the court erroneously commented upon the conclusive effect or weight to be attached to appellant’s previous adjudication as an incompetent (this adjudication has existed since a 1947 probate court proceeding). Appellant cites to us Article 7, § 25 of the Constitution of Arkansas of 1874 which provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law,
The appellee-state, however, contends that it is a proper instruction, citing Poole v. State, 212 Ark. 746, 207 S.W. 2d 725 (1948) upon which the instruction was based. There we held that a previous adjudication of insanity was admissible in evidence, although not conclusive on that disputed issue. Obviously, in the case at bar, the trial court was giving the jury a guideline as to the law as enunciated in Poole v. State, supra. In doing so, the trial court did not take from the jury its right to consider the previous adjudication in determining the disputed factual issue of insanity; in fact, the trial court told the jury that the previous adjudication could be considered “along with all the other evidence bearing on the question of the appellant’s sanity or insanity.” As we construe this instruction, the court merely told the jury that, as a matter of law, the existing adjudication of insanity was not conclusive or binding upon the jury on that issue. Cf. Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968); McDonald v. State, 165 Ark. 411, 264 S.W. 961 (1924); Hogue v. State, 93 Ark. 316, 130 S.W. 167 (1910).
In the case at bar the jury was not told that it could not give conclusive effect to the prior adjudication of appellant’s incompetency when considered with other evidence bearing on the issue of sanity. In fact, the negative wording of this instruction as to the conclusive effect of the sanity adjudication comports substantially with our Arkansas Model Jury Instructions (Civil) 601 and 903. Those instructions, in part, are negatively worded; each provides that a violation of a statute or ordinance, “although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.” (emphasis added)
Furthermore, by Instruction 18, the court told the jury that: “In the course of this trial the Court has made rulings in the conduct of the trial and on the admission of evidence. In so doing the Court has not expressed or intimáted in any way the weight or credit to be given to evidence or testimony admitted during the trial, nor has the Court indicated in any way the conclusions to be returned by you in this case.” Also, the court told the jury, in the next instruction, that it should consider “these instructions as a whole and not any part to the exclusion of the others.”
Although, in the case at bar, the obvious guideline intended by the instruction in its negative terms, as to the conclusive effect of a previous adjudication of incompetency, could be achieved by less objectionable language, we cannot say that the instruction constituted prejudicial or reversible error.
Affirmed.
Fogleman, J., not participating.
Byrd, J., dissents. | [
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Frank Holt, Justice.
In this eminent domain proceeding, the appellant acquired certain lands from appellees which were necessary in the construction of Interstate 40 and its facilities. A jury awarded $14,500 as just compensation to appellees. For reversal of that judgment, the appellant asserts that the trial court erred in permitting a witness, Roy Jackson, on re-direct examination, to testify regarding a sale he had made to the City of Morrilton, and, also, that the court erred in not striking the before value figure of this witness.
Appellee Jackson was one of the owners of the property acquired by appellant. On direct examination he gave his opinion as to just compensation. On cross-examination, the reasonable basis for his valuation was tested by the appellant. Then on re-direct examination, he was asked if he had recently sold land to the City of Morrilton. He replied that the city had paid him $400 an acre for some land for right-of-way purposes approximate ly 3/4 of a mile from the property in litigation. Also, that “It was a voluntary sale, nothing forced about it[.]” and the transaction was not a condemnation proceeding. Following appellant’s objection to the testimony, the court then questioned the witness with reference to the similarity of the land sold to the City of Morrilton and the land in litigation. Upon re-cross examination, the landowner was asked if the sale to the city entered into his thinking about the value of the land in this present action. “Well, it’s comparable land, and I didn’t set the price. They set the price.” The court overruled the appellant’s objection as to the admissibility of the appellees’ evidence and permitted the testimony to be considered by the jury. We must agree with the appellant that this was prejudicial error.
The rule is firmly established that the price paid by a condemnor is inadmissible in establishing the fair market value of other lands acquired in a condemnation proceeding. Yonts v. Public Service Co. of Ark., 179 Ark. 695, 17 S.W. 2d 886 (1929). There the rationale of this rule is stated:
“. . .Evidence showing what the [condemnor] seeking to condemn has paid for other lands would probably be taken by the jury as indicating the market value, when, as a matter of fact, it does not tend to show the market value of the land. A [condemnor] condemning land might be willing to give more than it was worth and the owner of land might be willing to take less than it is worth, that is, less than its market value, rather than have a lawsuit. Moreover, when a [condemnor] seeks to get land or condemn it for public uses, having the power to condemn, the landowner would probably come to some agreement with him rather than have a lawsuit, and this agreement would show a compromise rather than the market value of the land.”
In other words, this is not a true sale transaction between a willing buyer and a willing seller which is necessary to establish a fair market value of the lands. In the case at bar, the incompetent evidence was not elicited on cross-examination by the condemnor as occurred in Arkansas Power & Light v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970). There we held the condemnor was not in a position to complain about a situation it created. Since the inadmissible evidence in the case at bar was adduced by appellees it was clearly contrary to our well established rule, and we must reverse the judgment and remand the cause.
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J. Fred Jones Justice.
This is an appeal by Continental Insurance Companies from an order of the Jefferson County Probate Court ordering Mrs. Florida Rowan, prior guardian of the estate of Andrew David Rowan, Jr., to account to L. E. Henson, guardian in succession of said estate, for the sum of $2,731.40 received by Mrs. Rowan as guardian, and further ordering Mrs. Rowan to pay over, to said guardian in succession the sum of $2,731.40 belonging to the estate of said minor within a reasonable length of time.
This is a second appeal of this case and the record on this appeal is about as mixed up as in the former appeal. Part of the difficulty stems from the fact that the first appeal by Continental was from á judgment prematurely rendered against it on a guardian’s bond before the liability of the guardian had been determined, and the present appeal by Continental is simply in anticipation that a judgment may be rendered against it on the guardianship bond.
In the first appeal, Continental Insurance Companies v. Estate of Andrew David Rowan, Jr., a Minor, 250 Ark. 724, 466 S. W. 2d 942, Mrs. Rowan had been appointed guardian of the estate of her minor son and had executed a guardian’s bond in the amount of $9,000 with Continental Insurance Companies as surety. Thereafter the probate court on its own motion removed Mrs. Rowan as guardian because of her failure to file an inventory of the assets of the estate, and the court appointed Mr. Henson as guardian in succession, whereupon Mr. Henson filed a motion for judgment against Continental in the amount of whatever funds Mrs. Rowan had received as guardian and failed to report or account for. Continental resisted the motion on the ground that the principal’s liability should first be determined before the entry of any judgment against the surety. We agreed with Continental and remanded the case for further proceedings.
The record now before us leaves much to be desired but it appears from the entire record that Continental is attempting to avoid the possibility of a judgment against it by avoiding a judgment against Mrs. Rowan. The background facts as we gather them from the entire record, indicate that Andrew David Rowan, Sr., the deceased husband of Florida Rowan and the father of Andrew David Rowan, Jr., left some life insurance policies at his death and in at least one of them, in the amount of $2,731.40, Andrew David Rowan, Jr. was the named beneficiary. Mrs. Rowan was appointed personal representative of the decedent as well as guardian of the estate of her minor son who was then 18 years of age. Attorney George Howard, Jr. represented Mrs. Rowan as administratrix of the decedent’s estate as well as guardian of her son’s estate. It appears that an administratrix’s account was opened in a local Pine Bluff bank and that some of decedent’s estate funds were collected and deposited therein with attorney Howard’s co-signature required on checks of withdrawal.
Mrs. Rowan is a professional school teacher and spends most of her summer vacations away from her home in Pine Bluff while attending college refresher courses. It appears that while she was attending college in Russell-ville, Arkansas, she received the proceeds from the above mentioned insurance policy in a check made payable to her as guardian of the estate of young Rowan. Instead of ad vising or counseling with attorney Howard or the court, and instead of opening a guardianship account in a bank and depositing the insurance money therein, both she and young Rowan endorsed the check and she cashed it. She apparently mingled the proceeds from the insurance with her own funds and with young Rowan’s knowledge and consent used most of the money in making a downpayment on the purchase of a home, in which she took title in her own name and subsequently lost through a mortgage foreclosure, and in liquidating some accounts owed by her mother and a cousin.
Apparently when Mrs. Rowan was finally made to realize that she had no personal right to, or interest in, the guardianship funds of her ward, her own financial resources were exhausted and instead of rendering a guardianship report of the exact amount she received as guardian and the exact nature and amounts of the disbursements, she apparently confused her personal rights as mother of her son with her legal responsibilities) as guardian of his estate and she failed and refused to render an accounting at all. Finally, the probate court on its own motion, ordered Mrs. Rowan’s removal as guardian and appointed L. E. Henson as guardian in succession. Mr. Howard continued to serve as attorney for Mr. Henson.
Upon remand to the trial court following the former appeal, Mr. Henson filed his petition for an order requiring Mrs. Rowan to file her settlement or accounting of her administration of her ward’s estate and for an order requiring Mrs. Rowan to pay over and deliver to the guardian in succession the funds or assets found to be due. Continental was given notice of a hearing on this petition and Continental filed its own petition alleging that the ward, Andrew David Rowan, Jr., had become 21 years of age and was a necessary party to the proceedings. By amendment to its petition Continental alleged that since attaining his majority Andrew David Rowan, Jr. had disclaimed any interest in the funds used by his mother and disclaimed any desire to recover judgment against his mother, the former guardian of his estate. But in the alternative, Continental prayed that in the event a judgment should be rendered against it on Mrs. Rowan’s bond, that it have judgment over against Mrs. Rowan in the identical amount. Mrs. Rowan and Andrew David Rowan, Jr. signed this amendment to Continental’s motion under statement as follows:
“Service accepted by us in open court on the 27th day of August, 1971.”
Apparently the trial court accepted the Rowans’ signatures on the amendment to Continental’s motion as their entry of appearance for all purposes and considered them as joining in the amended motion ot Continental while acting as their own attorneys.
Mrs. Rowan as well as Andrew David, Jr. testified at the hearing on the petition and motion, and young Rowan stated on inquiry from the court, that he was appearing as his own counsel. It would serve no useful purpose to set out in detail the conflicting testimony of Mrs. Rowan. While she testified that she actually turned over the sum of $751.40 of the insurance proceeds to her son while he was away in college, we gather from her entire testimony that she simply did not know exactly how much of the insurance proceeds was sent to her son, nor what portion of the funds was used for his direct benefit and what portion was used for other purposes. The record is rather clear that Mrs. Rowan and her son enjoyed a rather close mother and son relationship and that she simply considered the funds collected for her son on the insurance policy as their funds to be used as they saw fit, and considered that it was all used, together with funds of her own, for the use and benefit of her ward. Mrs. Rowan testified that no one ever told her that it was necessary to keep separate the guardianship funds from her own funds and to obtain approval of the court for its disbursement. This testimony is contradicted by statements of the trial judge as to the difficulties encountered in trying to get Mrs. Rowan to render an accounting. The record however, or the lack of it, indicates that Mrs. Rowan collected and used the insurance money before the probate judge or anyone else besides Mrs. Rowan and her ward knew it had been collected from the insurance company.
It is evident from the record in this case that young Rowan is above the average in intelligence and there is no evidence that Mrs. Rowan has not been successful in directing his interests toward a good education. He testified that he is attending the University of Nebraska on a National Merit Scholarship and is a senior in the top quarter of his class. He testified that upon graduation from the University of Nebraska he plans to study in Europe where his further education will be financed by his mother. Young Rowan apparently recognizes and appreciates the difficulties his mother has placed herself in by not seeking the advice of counsel or instructions from the court upon her appointment as guardian; or in not following the advice she did receive from the attorney and instructions from the court in the performance of her duties as guardian.
As the record now stands, it is clear from young Rowan’s testimony that since attaining his majority he accepts the expenditure of his funds by his mother as being made for his use and benefit and has ratified his mother’s action in connection therewith. It is also clear that he does not desire his guardian in succession to pursue the collection from his mother, for his use and benefit, the funds his mother has collected as his guardian.
The record before us is vague as to what claims, if any, have been filed or will be filed against the estate of young Rowan. The record is also void of any indication as to what duties are still required of the guardian in succession except to collect from Mrs. Rowan and pay the court costs, together with the attorney’s fee pertaining to the guardianship, which cost has not been ascertained and which attorney’s fee has not been separated from the fees paid and payable in connection with the administration of the decedent’s estate.
There is some indication in the record, primarily from the statement of the probate judge, that there may be additional insurance policies involved in the guardianship beside the one for $2,731.40 collected by Mrs. Rowan. The judge observed from the bench that from the original petition (which is not before us in this case), young Rowan had $9,000. coming to him from insurance policies and that the court had mentioned the matter to Mr. Howard quite frequently. Mrs. Rowan testified that she delivered all of the insurance policies to the court. The probate judge stated from the bench that he had turned the policies over to attorney Howard with directions to determine whether collections had been made on them.
It may be that the guardian in succession is still attempting to collect oh these insurance policies, but be that as it may, young Rowan testified at length under questioning by the court as well as the attorneys and it was well established by his testimony that he is now 22 yéars of age and does not desire that the guardian in succession continue in his attempts to collect funds for his benefit from Mrs. Rowan. See Dunbar v. Cooke, listed in 201 Ark. 1185, and reported in 147 S. W. 2d 337; Dale v. Dale, 134 Ark. 61, 203 S. W. 258. See also Robinson v. Hammons, 228 Ark. 329, 307 S. W. 2d 857.
Under Ark. Stat. Ann. § 57-643 (Repl. 1971) pertaining to termination of guardianship, subsection b provides:
“A guardianship may be terminated by court order after such notice as the court may require:
(1) If the guardianship was solely because of the ward’s minority, and the ward attains his majority . . .but if the court finds upon a proper showing by substantial competent evidence that it is in the best interest of the. ward that the guardianship be continued after the ward reaches majority, the court may order the guardianship to continue until such time as it may be terminated by order of the court.
# # #
c. ‘ When a guardianship terminates otherwise than by the. death of the ward, the powers of the guardian cease, except that a guardian of the estate may make disbursements for claims that are or may be allowed by the court, for liabilities already properly incurred for the estate or for the ward, and for expenses of administration. ...”
The record before us is void as to any showing that it is in the best interest of young Rowan that the guardianship of his estate be continued or as'to the existence or extent of liabilities of the estate, so we are unable to determine why the probate court did not ascertain from Mr. Rowan, Jr. whether he desired a discharge of the guardian in succession and to take over any remaining assets of his estate, to the end that the guardianship could be terminated and expenses stopped.
It is apparent from the record before us that young Rowan was pushed to the front in this case in a very awkward manner by his mother’s bonding company but nevertheless he testified without contradiction that he has been 21 years of age for almost a year; that he ratifies the acts of his mother in the use of his funds and does not want to pursue the collection of any amount from her. The primary purpose in a guardianship for a minor’s estate is to preserve and protect the assets of his estate during his minority and is not to educate or punish a difficult guardian after the primary purpose of the guardianship ceases.
From the record now before us we are of the opinion that the probate court should have ascertained and approved the legitimate claims, if any, against the guardianship estate of young Rowan, including attorney’s fees and court costs. If there are money assets belonging to young Rowan still in the hands of the guardian in succession in sufficient amount to pay all such claims, they should be paid out of such assets, and any balance should be paid to young Rowan and the guardianship closed. If there is not such amount in the hands of the guardian in succession, then Mrs. Rowan should be ordered to pay such amount by a definite date fixed by the court. If such amount be not paid within such time, then a judgment should be rendered against Mrs. Rowan and her bonding company only for the amount of such claims, including legitimate costs and attorney’s fees incident to the guardianship.
Reversed and remanded with instructions to proceed in a manner not inconsistent with this opinion.
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Carleton Harris, Chief Justice.
Central Business Machines, Inc., hereinafter called CBM, Inc., a domestic corporation with its principal office in Conway, instituted suit in the Faulkner County Chancery Court against LaBerta Gray, one of its officers (controller) seeking an accounting and return of certain records. Mrs. Gray answered the complaint and also cross-complained against Edward J. Quattlebaum, appellant herein, a stockholder and Vice President of CBM, Inc. In this pleading, Mrs. Gray alleged that Quattlebaum was indebted to her for $5,000, evidenced by a certain note. This portion of the litigation was transferred to the Faulkner County Circuit Court, and appellant, after filing a general denial, further pleaded a failure of consideration. On trial, and after taking of evidence, the court instructed the jury to return a verdict for Mrs. Gray against Quattlebaum in the amount of the note, $5,000, plus interest and attorney’s fees, and further directed the jury to return a verdict over for said sum in favor of Quattlebaum against CBM, Inc. From the judgment so entered comes this appeal.
The execution of the note was admitted by Quattlebaum, but he and Mrs. Gray differed as to the purpose for the giving of the note. Mrs. Gray testified that she gave Quattlebaum $5,000 in cash on December 10, 1969, and he executed the note at that time to her. Quattlebaum stated that he signed the note in blank and that Mrs. Gray was to go to Hot Springs to borrow the money from her mother, the money then to be turned over to CBM, Inc. He said that he signed the note because Mrs. Gray said that her mother would not lend the money without his signature. Quattlebaum stated that he did not receive any money personally. Two days after the execution of the note, Mrs. Gray did deposit to the corporation account $5,952.25, which included a $5,000 personal check executed by Mrs. Gray. Quattlebaum admitted that the corporation did receive $5,000 but “I don’t know if it was this”. When asked if the money was made available to the company, he replied “I don’t know if this $5,000 was, but there was a $5,000 deposit”, and he then stated that the company did receive a benefit.
Appellant argues that a jury question was made as to whether he personally received the money. As stated, Quattlebaum had pleaded “failure of consideration” as his defense to the note. This defense is without merit. As early as 1882, in the case of Rockafellow v. Peay, et al, 40 Ark. 69, this court said:
“It was not necessary to the validity of Gordon N. Peay’s note and mortgage that he should have derived any benefit from the transactions out of which they arose. It is sufficient that a valuable consideration moved from the plaintiff to his brother. The consideration for the execution of the first mortgage was a loan of $4,000 to John C. Peay.”
In Hays v. McGuirt, 186 Ark. 702, 55 S.W. 2d 76, we pointed out that consideration does not have to move to the party promising, but may move from a promisor to a third person; that the consideration may consist in a loan to a third person. See also Anthony v. First National Bank of Magnolia, et al, 244 Ark. 1015, 431 S.W. 2d 267. As previously pointed out, Quattlebaum admitted execution of the note and admitted that the corporation received a benefit, and this was the purpose of his signing the note. Accordingly, from a legal standpoint, it makes no difference whether Quattlebaum received the money personally, or whether it was deposited to the account of the corporation — for, in either instance, he was liable.
The court acted erroneously in entering a judgment over and against CBM, Inc. in favor of Quattlebaum, since CBM, Inc. was not a party to this phase of the litigation. However, though CBM, Inc. filed a notice of appeal, it was not entitled to do so since it was not a party to this phase of the litigation. See Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). Though, under the record herein, it is clearly entitled to a reversal, this court cannot act upon an appeal taken by one who was not a party to the action in the trial court. Accordingly, CBM’s relief should be obtained by an attack upon the judgment in the trial court.
Affirmed.
The record does not reflect any order of transfer, but the parties, in their briefs, agree that this was done. | [
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John A. Fogleman, Justice.
Appellant asks that we reverse a decree denying her petition for modification of agreement for the payment of child support entered into in a divorce proceeding she brought against appellee. We find no error in the holding of the chancery court, so we affirm the decree.
Appellant is an anesthesiologist. Her annual income at the time of the divorce was $42,000. Appellee is Chairman of the Radiology Department at the University of Arkansas Medical Center. He was earning between $20,000 and $25,000 annually. The parties had three children, aged 17, 15, and 14. They owned a dwelling house. Appellant testified that she had been contemplating divorce for 10 to 15 years. In 1969, when her husband returned home from a trip on which she did not accompany him, she told him that she had made up her mind to proceed with a divorce suit. She consulted the attorney who later filed the divorce suit in November of that year. After her initial visit to this lawyer, she consulted with him, both with and without her husband being present. It seems to have been agreed between the parties that negotiations would be carried on toward settlement of property rights, alimony and child support without any other attorney’s participation. An agreement was reached and a formal written document executed by the parties on January 29, 1970. On December 29, 1969, appellant, through the attorney consulted, had filed a divorce complaint alleging indignities to the person as grounds. She also alleged that the parties desired a joint custodial arrangement for the children on terms to be mutually agreed upon, giving due considerations to the desires of the children.
A decree of divorce was entered on the day following the execution of the agreement by the parties upon appellee’s default. The decree made no provision for child support or for property division, and did not incorporate the agreement. It did mention that the parties had made a joint child custody arrangement, and the court approved that arrangement.
The preamble to the agreement recites the mutual desire of the parties to reach an accord in order to avoid the expense, inconvenience and embarrassment of litigation. The agreement, in essence, provided:
1. For the present, the children were to reside with the father, with visitation and periodic custody in Fay M. Barnhard at reasonable times and intervals to be determined by the parties, giving due weight and consideration to the preferences expressed by the children.
2. Until there was a change of circumstances, Fay M. Barnhard was to pay her ex-husband $500.00 per month as child support.
3. Appellant was to claim the daughter Ann as a dependent for income tax purposes and appellee was to claim the other two children.
4. Each party was to maintain specific amounts of life insurance.
5. Fay M. Barnhard was to convey her equity in the parties’ residence to her ex-husband which "represents a contribution of Six Thousand and 00/ 100 ($6,000.00) toward the expense of a college education for the children.” Any additional contribution of appellant was specifically made voluntary on her part.
6. Other provisions related to the division of personal property including a $10,000.00 savings account, certain stocks and bonds, automobiles, paintings, library, household effects and furnishings and a stamp collections. (The value of none of the items, except the savings account, was given).
On August 11, 1970, appellant filed her petition for modification of the agreement, seeking relief from the payments for child support and restoration of her one-half interest in the dwelling house. The petition alleged as changed circumstances that appellee had exclusive custody of the children, and had allowed her only limited visitation rights, and that she will incur additional and increased living expenses because she is not living with appellees. She also alleged that appellee had an annual income of $35,000 and the primary obligation for the support of the children, that the agreement was inequitable, unconscionable and contrary to the laws and public policy of the state and that she signed the agreement when she was under great emotional stress and duress due to the divorce.
The chancellor found that the appellant had made the support payments until August 1, 1970, but not after that date, that all other agreements between the parties had been carried out, that there had been no material change in the circumstances to warrant the modification of the agreement, and that no testimony was offered to the effect that appellant was under duress when she executed the agreement. He gave judgment for the amount of the arrearages.
We have carefully reviewed the evidence as abstracted and do not find the chancellor’s findings to be contrary to the preponderance of the evidence, as appellant contends. The evidence shows that appellant’s income has increased to $46,000 per year, that appellee’s net income is $2,062.43 • per month, that appellee had remarried and that his present wife’s income was $10,500 or “take home” pay of $719.19 per month. The apartment now occupied by the appellant is too small to be adequate for her to have the children for extended visits, but it does not appear that financially, or otherwise, she is compelled to occupy an apartment this small, for which she pays only $182.50 rent. Appellant testified that one of the “changes” about which she was complaining was that she was not seeing as much of her children as she thought she would when the decree was entered, all the while admitting that she has never been denied the right to have them with her, that she is very much welcome in their home, that she has been to her former husband’s home for meals and visitation of the children at his invitation, and that she would buy a house only if the children would come live with her. Appellee testified that the title to the dwelling house was placed with him pursuant to an agreement that the parent with whom the children chose to live would have the house. The only real change in circumstances here is appellant’s retrospective disenchantment with the agreement between the parties and her disappointment at limitations on the company of her children for causes more within her control than not.
Appellant’s argument that the agreement was inequitable and contrary to public policy is three-fold, i.e., the primary obligation is upon the father to support the minor children of a marriage if he is financially able to do so, that the agreement results in relieving him of this obligation, and that she was under great emotional stress at the time she entered into the agreement. We find no merit in any facet of the argument. Even though the father may have the primary obligation for the support of his children, the mother is in nowise exempt from any obligation in this regard. A policy determination bearing on parental obligations was made by our General Assembly as early as Act 257 of 1921, whereby the support of unmarried minor children was made chargeable to the property of father and mother, jointly and severally, and the courts empowered to adjudicate the powers, rights and duties of parents living apart with respect to the persons and property of their unmarried minor children. Ark. Stat. Ann. §§ 57-104 — 108 (1947). When the Probate Code was adopted in 1949, the joint obligation of the parents was again recognized. Ark. Stat. Ann. § 57-653 (Repl. 1971). Even if it be said that these statutes simply impose liability in favor of third persons furnishing necessaries to a minor, it cannot be said that they are indicative of a policy that a mother has obligations to her child for his support which only come into existence when the father is impoverished. We think such statutes mean that when parents are divorced the proper contribution of the parents may be determined by the courts on an equitable basis taking into consideration the condition and means of each spouse, a view taken in other jurisdictions. Brooks v. Brooks, 166Tenn. 255, 61 S.W. 2d 654 (1933); Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W. 2d 755, 131 A.L. R. 858 (1940); Pieretti v. Pieretti, 13 N. J. Misc. 98, 176A. 589 (1935); Addy v. Addy, 240 Iowa 255, 36 N.W. 2d 352 (1949); State v. Haworth, 66 Wyo. 238, 208 P. 2d 279 (1949). The fact that the father actually has custody of the children does not relieve the mother of any obligation, and she may even be required to contribute toward a college edu cation for her children. Beasley v. Beasley, 159 N.W. 2d 449 (Iowa 1968).
Our statutes relating to divorce also recognize that the court may make such order touching the care of children of a dissolved marriage as “from the circumstances of the parties and the nature of the case shall be reasonable” and to require the “person ordered to make payments” to furnish security in compliance therewith. Ark. Stat. Ann. § 34-1211 (Repl. 1962). Similar statutes have properly been held to mean that the court shall consider the financial ability of the parties jointly and to apply to whichever party shall be decreed to educate and maintain the children, so that the mother’s financial ability and status is given the same consideration as the father’s. Pieretti v. Pieretti, supra; Beasley v. Beasley, supra.
In considering amounts to be contributed for child support, the court should consider the needs of the children, the assets of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects and any other factors which will aid the court in reaching a just and equitable result. Stillmunkes v. Stillmunkes, 245 Iowa 1082, 65 N.W. 2d 366 (1954). While we would not go so far as to say that a mother could not recover from the child’s father contributions for child support furnished by her, as some jurisdictions have said, we find the above constructions of the effect of similar statutes to be sound and in keeping with the policy considerations stated by them. Such constructions are also in keeping with considerations entering into our own treatment of child support cases. We have said that modifications of amounts allowed for child support are to be made according to the necessity of one parent and the ability of the other. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521. See also, Dixon v. Dixon, 251 Ark. 927, 475 S. W. 2d 695. We have also said that in awarding child support, as well as alimony, the courts should give proper consideration to the financial condition of the parties. Hoyt v. Hoyt, 249 Ark. 266, 459 S.W. 2d 65.
If the courts may require a mother to contribute to her child’s support, there is no sound policy reason why she may not enter into a contract with her husband governing such contributions, just as he may enter into such a contract with her under the same conditions, so long as the agreement is not adverse to the welfare of the child, subject, of course, to the same limitations as to enforcement by the courts because of changed conditions.
When we consider the appropriate factors, we find no basis for holding that the agreement is void. The evidence clearly shows that appellant’s decision to sue for divorce was not a hasty one, that she was the first to consult the attorney who drafted the agreement, that she had moved out of the home shared by the parties before the divorce suit was filed, that she felt a responsibility for the support of the children, that, as appellant’s contribution to their college education, appellee received the equity in the house because the children, all over 14 years of age, chose to live with him, that appellant consulted with the attorney on several occasions, some with appellee and some without him, that a change as to dependents to be claimed for income tax purposes was made for her benefit upon the suggestion of this attorney, that appellant read the agreement several times before it was executed, and was aware of, and understood, all its contents when she signed it. We can accord little weight to her present lament that the agreement is grossly unfair, based principally upon her giving up a $6,000 equity in the house, in view of the testimony heretofore outlined. Even though appellant says that she was under great emotional stress at the time and that she would probably still be negotiating had she not accepted the agreement made, there is no evidence of duress or overreaching. Appellee testified, without being contradicted, that appellant herself suggested the amount of $500 as a monthly child support contribution. It should be noted that appellee testified that he was paying $257.44 monthly on house mortgage installments, total house costs of $327.29 per month, and utility bills of $96.50. He testified that his monthly expenses for himself and the three children before his remarriage, including expenses» for the child in college, were $2,321.45.
We find no justification for reduction of the child support payments sought by appellant. If she were otherwise entitled to such a modification, her failure to show a sufficient change of circumstances subsequent to the execution of the agreement and entry of the divorce decree would bar this relief.
What we have already said disposes of appellant’s argument that there was error in decreeing a judgment for arrearages on appellant’s child support payments.
The decree is affirmed.
While these Tennessee cases recognize and apply the principle, a Tennessee Court of Appeals has held that a mother cannot be required to make payments for future support, because the Tennessee divorce statutes, unlike ours, only authorize allowances for future support to be paid by the father. Full recognition is accorded the doctrine of the cases cited. Hilton v. Hilton, 463 S.W. 2d 955 (1970). | [
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John A. Fogleman, Justice.
Appellant contends that the circuit court erred in directing a verdict against him in his suit, individually and as administrator of his wife’s estate, against the appellee as liability insurance carrier for St. Vincent’s Infirmary in Little Rock. Appellant’s complaint sought recovery for damages sustained by appellant’s wife, Bertie'Evelyn Dollins, as the result of a fall while she was a patient in the hospital. Mrs. Dollins was originally a plaintiff in the action, but she died before the trial from causes unrelated to her fall.
On August 13, 1970, Mrs. Dollins suffered a stroke. She was taken to St. Vincent’s Infirmary for treatment, where she was kept in the intensive care unit for 14 days. On August 27, 1970, she was placed in a semiprivate room. Medication was being given her for the prevention and control of seizures and the four side rails on her bed were raised. No rails or other restraints were provided across the foot of the bed. On August 28, at 11:00 p.m., Mrs. Sandra DeLeuil, a registered nurse employed by the hospital, came on duty as the nurse in charge of the unit in which Mrs. Dollins was a patient. After a routine check of Mrs. Dollins’ room at 2:00 a.m. on August 29, this nurse noted on the patient’s chart: “Awake for medication. Appears confused. All four side rails up.” The nurse gave the patient the anti-convulsant medication which had been prescribed and left the room. At 3:35 a.m. Mrs. Dollins was found on the floor at the foot of her bed, with blood on her face, hands and gown and cuts about her face. Among her injuries were cuts in her gums from her dentures which had not been removed from her mouth. The dentures were broken in the fall.
This nurse knew that the patient had undergone seizures and that she had been restrained during the period she was confined in the intensive care unit. For the purpose of making chart entries, the nurse used three classifications for patients whom she found confused. They were: confused, slightly confused and very confused. She described the stage noted as “confused” to be a degree more than slightly confused and different from “disoriented.” She did not have an independent recollection whether the patient was disoriented, but relied entirely upon the chart notation she made. To have used the word “disoriented” would have meant to her that the patient did not know who she was, where she was or what was going on about her.
The patient’s physician had not ordered any restraints on her except for the four side rails which were raised. The matter of other restraints at the time rested in the discretion of the nurse in charge. She did not have to have the permission of a doctor before using a safety belt on a patient. Mrs. DeLeuil had on some occasions applied belts or other such restraints on patients. One of the devices she had used and which was available in the hospital was a posey belt. This was described by her as a strap which goes around a patient’s waist to be fastened under the bed or to its sides in a manner which permits the patient to turn from side to side, but prevents him from getting out of the bed. The belt can be applied in five minutes. It was the nurse’s opinion that when she observed the patient at 2:00 a.m. there was no need for the use of such a belt, but one was applied by direction of the attending intern after the patient’s facial wounds had been treated.
Mrs. DeLeuil was the first person to reach Mrs. Dollins after the fall. The patient told the nurse that she was going to the bathroom when she fell. According to the nurse, the use of four side rails was a normal precaution for a patient Who was subject to seizures. The room was equipped with a call light by which the nurse could be summoned. The nurse did not recall having received any call from the patient on the night in question. Mrs. DeLeuil knew that Mrs. Dollins was physically able to get out of bed. In this nurse’s judgment, based upon her experience, additional restraints are not necessary for a “confused” patient, unless he had previously been trying to get out of bed or there were other factors indicating the likelihood of some unusual hazard to the patient’s safety. She considered that restraints tended to disturb a patient so that he could not get needed rest. Mrs. DeLeuil said that in four years’ experience in the capacity in which she was acting on the night of Mrs. Dollins’ injury, she had never had a patient subject to seizures who had not been successfully prevented by the side rails from falling out of bed. She testified that in the case of most seizures there would be a jerking movement or thrashing around of the patient’s body, but that she had never seen such an active seizure that a patient could get up and jump out of bed. In her opinion, there was no need for restraints on Mrs. Dollins other than the four bed rails.
Dr. Henry Johnson had admitted Mrs. Dollins to the hospital because of his diagnosis of possible stroke. He testified that she had seizures on admission. He did not remember whether she had undergone others while in intensive care. Her removal to the semiprivate room was an exercise of his discretion. In his opinion, restraints other than the bed rails were not indicated prior to Mrs. Dollins’ fall. He testified that restraints are ordered when a patient is extremely agitated or combative, and he felt that restraints often increased a patient’s agitation. Although Dr. Johnson described the patient as being somewhat confused throughout her hospital stay and recalled no dramatic change, he felt that she was continuously improving mentally after she was released from intensive care.
Appellant contends that he had met his burden of proof under the doctrine of res ipsa loquitur, if not otherwise, making the directed verdict erroneous. He argues that the patient, the safety restraints and the nurse were all instrumentalities under the control of the hos pital. He relies upon our decision in Martin v. Aetna Casualty & Surety Co., 239 Ark. 95, 387 S. W. 2d 334, where we said that when a patient was injured as a result of the collapse of a leg rest on a wheel chair furnished by a hospital, the doctrine applied as a rule of evidence. We do not agree that the rule applies in this case, however. We stated the conditions under which res ipsa loquitur comes into play in Southwestern Bell Tel. & Tel. v. Bruce, 89 Ark. 581, 117 S. W. 564, and followed that formula in Martin and other cases. We require, in addition to the duty of the defendant to plaintiff, to use due care, that (1) the injury be caused by an instrumentality under the control of the defendant, (2) the accident which caused the injury be one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality use proper care and (3) there be absence of evidence to the contrary. We are unable to say from the evidence adduced that the accident that befell Mrs. Dollins was one that, in the ordinary course of things, would not have occurred if those having control and management had used proper care. Dean Prosser teaches that before res ipsa loquitur can be applied, there must first be an inference that someone must have been negligent and then the burden of proof is upon the plaintiff to show that the negligence was that of the defendant and to trace the injury to a cause or specific instrumentality for which the defendant was responsible or show that he was responsible for all reasonably probable causes. He also says that there must be an absence of any action on the part of the injured party contributing to the accident, and that the doctrine will not apply until the plaintiff has satisfactorily accounted for the conduct of the injured party. Prosser, Law of Torts, Fourth Edition (1971), pp. 214-225.
It is, of course, common knowledge that many falls occur when there is no negligence or fault on the part of anyone. Furthermore, it does not seem to us that a patient who could .tell the nurse what she was doing and where she was going was in such a mental state that her efforts to go over the foot of the bed in order to go to the bathroom were involuntary, or that she became so completely under the control of hospital personnel as to make her an “instrumentality” under the hospital’s exclusive control contributing to her own injury, or make the hospital responsible for all reasonably probable causes of the injury. Her state of confusion, as designated by the nurse, did not sufficiently explain the patient’s own conduct contributing to the injury. In addition, it is important to remember that the doctrine of res ipsa loquitur is founded upon the availability of evidence of the true cause to a defendant but not to the plaintiff. Sauter v. Atchinson, 250 Ark. 697 (1971), 466 S.W. 2d 475. While this foundation is not the ultimate test of the doctrine’s application, nevertheless we cannot say that the evidence of the cause of Mrs. Dollins’ fall was not fully available to her or to her husband. Her death did not bring the doctrine into play.
Fundamental to the application of the doctrine is the necessity that there must have been an inference of negligence on the part of the defendant as a proximate cause of the injury. Appellee certainly owed a duty to Mrs. Dollins. It was best defined in Durfee v. Dorr, 123 Ark. 542, 186 S. W. 62. It was the duty of the hospital to give her reasonable care and attention and to have that knowledge of the necessities of her case which would result from such care and attention and from the possession of ordinary skill in her treatment. In other words, it was the duty of the hospital to see that the patient had such attention as her condition apparently made necessary. St. Vincent’s Infirmary was bound only to the degree of care proportionate to the danger to be apprehended, judged by the condition of affairs before the accident occurred.
When we apply this standard to the facts in this case, it is clear to us that the directed verdict was properly granted, because of appellant’s failure to show that there was negligence, or an inference of negligence, on the part of the hospital. Foreseeability is an essential ingredient of negligence, as recognized in Durfee. Conduct becomes negligent only as it gives rise to appreciable risk of injury to others, and there is no negligence in not guarding against a danger which there is no reason to anticipate. North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S. W. 2d 874.
The evidence presented by appellant was not sufficient to show that there was any reason for the nurse or any of the hospital personnel to anticipate that Mrs. Dollins would, either in the throes of a seizure, or in an effort to go to the bathroom, fall from the foot of her bed. There was no evidence showing any reason to even anticipate that she would make an effort to get out of the bed in spite of the side rails.
This test of foreseeability has been recognized and applied in a like manner in similar actions against hospitals in other jurisdictions. See Davis v. Springfield Hospital, 204 Mo. App. 626, 218 S. W. 696 (1926); Breeze v. St. Louis, S. F. Ry. Co., 264 Mo. 258, 174 S. W. 409 (1915); Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 211 S. W. 2d 450 (1947), cert. denied by Tennessee Supreme Court, March 5, 1948, reh. denied, May 3, 1948; McElroy v. Employers’ Liability Assurance Corp., 163 F. Supp. 193 (D. C. Ark. 1958).
This case is distinguishable from Durfee in that the injured patient there found outdoors on the ground just below an upstairs hall door was known to have been very desperately ill, the building was in darkness, all hospital doors were unlocked, the patients could go about as they pleased and the jury \yas justified in believing that the attending nurse had been asleep. There was no evidence to warrant an inference of negligence here.
Appellant also argues that the hospital owed the patient that degree of care which would have prevented the fall. This would not only improperly make the test for negligence restrospective, but would make the hospital an insurer of the patient’s safety, inconsistent with our holding in Durfee and contrary to well established and widely recognized legal principles. See 40 Am. Jur. 2d 869, Hospitals, § 27; 41 C. J. S. 350, Hospitals, § 8c(3).
We affirm the judgment of the circuit court. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case in which Service Pharmacy and its compensation insurance carrier appeal from a judgment of the Craighead County Circuit Court affirming an award for total disability made by the Workmen’s Compensation Commission to Leora Cox because of an aggravation of pre-existing varicosities in her legs while employed as as waitress by the appellant, Service Pharmacy, in Jonesboro, Arkansas. The appellants contend that there is no substantial evidence in the record to sustain the award of the Commission, so that is the only question before us on this appeal. Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S. W. 2d 413 (1970).
The record reveals that in 1963 Mrs. Cox underwent surgery for the relief of varicosities in her right leg and was advised by the doctor that she needed similar surgery on the left leg. Mrs. Cox testified that after staying off her feet for approximately six weeks following the surgery in 1963, she got along fine and encountered no further difficulty with her legs until 1968. She testified that about September 1, 1966, she went to work for the appellant-employer as a waitress, and that her duties consisted of waiting tables and helping with the preparation and serving of meals, sandwiches and drinks at the appellant’s drugstore. Mrs. Cqx testified that in March, 1968, her legs began swelling and became painful and that her family physician, Dr. Poole, referred her to Dr. Bascom Raney who gave her some “fluid tablets” for the swelling in her legs. She said that by taking the tablets she was able to continue her work at the drugstore until in September, 1969, when the swelling became more pronounced and the pain so severe, she was forced to return to Dr. Poole for treatment. She said that Dr. Poole advised her to stay off of her feet, which she did for a period of two weeks during which time her condition improved. She testified that she returned to work on October 13, 1969, and worked until October 24 when she was forced to quit under Dr. Poole’s advice and seek surgical intervention for the condition she then had. The evidence is to the effect that Mrs. Cox worked at the drugstore six days a week alternating a nine and one-half hour day with a six hour day and that the cafe portion where Mrs. Cox worked, had a concrete floor covered with linoleum tile. The evidence is to the effect that the cafe business in the drugstore gradually increased with the passage of time and that the necessity for Mrs. Cox to be constantly on her feet in the performance of her duties increased along with the cafe business.
In support of the appellants’ argument that there is no substantial evidence that Mrs. Cox suffered an accidental injury growing out of or occurring within the course of her employment, they cite Larson on Work-
eyes of little needles, it would seem manifest that our Act did not undertake to limit compensation to cases where the injury was begun and completed within narrow limits of time, but that it used the expression ‘injury by accident’ in its common-sense everyday conception as referring to an injury produced without the design or expectation of the workman.’”
In Batesville White Lime we further said:
“We conclude that, even though the evidence did not show the exact instant at which the disability of appellee could be said to have occurred by reason of breathing the dust, nevertheless, as shown by the proof, the inhalation of this dust did aggravate appellee’s heart ailment to the point of totally disabling him, and therefore the finding of the referee that appellee suffered an accidental injury in the course of his employment was correct.”
See also W. Shanhouse & Sons, Inc. v. Sims, 224 Ark. 86, 272 S. W. 2d 68, where an award for disability caused by empyema was affirmed under medical evidence to the effect that the empyema attended by pleural adhesions was not caused by the claimant’s work, but that it was aggravated by her work in lifting and pulling, thereby irritating the pleural adhesions causing them to weep and develop a fluid which created a basis for the empyema.
The appellants do not question that compensation is payable under the Arkansas law for the aggravation of a pre-existing condition, Hamilton v. Kelly Construction Co., 228 Ark. 612, 309 S. W. 2d 323, but the appellants argue that Mrs. Cox failed to prove by any substantial evidence that her pre-existing condition was aggravated to the point of disability by accidental injury arising out of and in the course of her employment. We now examine the evidence on this point.
Dr. Grover Duckett Poole testified that he first saw Mrs. Cox, in connection with the vascular problems in her legs, on September 25, 1969, and that he diagnosed her men’s Compensation Law, and also 99 C.J.S. on Workmen’s Compensation, as well as court decisions defining “accidental injury” as requiring the elements of “unexpectedness of cause or result and a definite time the injury occurred.”
Ever since our own 1956 opinion in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, we have been committed to the proposition that,
“. . .an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary.”
In Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961, we quoted from 18 Schneider on Workmen’s Compensation Text, Vol. 4, § 1328, p. 543, in part, as follows:
“‘It may be stated generally that if the conditions of the employment, whether due to over-exertion, excessive heat, excessive inhalation of dust and fumes, shock, excitement, nervous strain or trauma, tend to increase an employee’s blood pressure sufficiently to cause a cerebral hemorrhage, such result constitutes a compensable accident within the intent of most compensation acts, though the employee may have been suffering from a pre-existing diseased condition which predisposed him to such result, or where such result would have occurred in time due to the natural progress of such pre-existing condi-
In Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31, the claim involved the aggravation of a heart condition brought about by the inhalation of dust over a considerable period of time. Compensation was awarded and in affirming the award, we quoted with approval from the North Carolina case of McNeely v. Carolina Asbestos Co., 206 N. C. 568, 174 S. E. 509, as follows:
“‘Unless we attempt to whittle down or enlarge words or undertake to put big threads through the condition as “bilateral varicose veins - thrombophlebitis of left leg.” He testified that the thrombophlebitis consisted of blood clots in the deep veins of the leg and that he treated Mrs. Cox by hospitalization in bed with elevation of the left leg. The overall substance of Dr. Poole’s testimony was to the effect that Mrs. Cox had diseased blood veins in her legs; that standing will slow the blood flow through diseased veins and cause blood clots to more likely occur. Dr. Poole testified that following Mrs. Cox’s release from the hospital on October 16, 1969, she had had considerable bed rest and light work around the house and her condition was greatly improved. He then testified as follows:
“[T]hen on the 23rd when I saw her she had had one period of a week of working again and was then showing swelling of her feet which would indicate circulation was definitely impaired and that is when I told her I didn’t think she could continue working without going into another blood clot or some other serious disturbance.”
Dr. Poole was then asked and answered questions as follows:
“Q. Now knowing Mrs. Cox and knowing that she worked as a waitress at Service Pharmacy and, of course, aware that the long hours that she worked, would you say that the long hours she stood as a waitress and other duties that she had out there aggravated her pre-existing condition of varicose veins?
A. Yes.
* * *
Q. Doctor, you saying however though it is caused by prolonged standing or prolonged walking — anything that would — any occupation that Mr. Landis said that would require prolonged standing or slowing of the blood flow?
A. Would aggravate this condition, yes — I believe we have been over that before.”
Dr. Poole referred Mrs. Cox to Dr. William Floyd Hayden, a general surgeon in Little Rock who performed additional surgery. Dr. Hayden testified that he first saw Mrs. Cox on April 7, 1970, at which time she had marked varicosities of both lower extremities, most marked on the left and that she also had secondary bilateral pedal edema. He testified that Mrs. Cox was not suffering from thrombophlebitis at that time and that he stripped the offending vein from the left lower extremity. He said that she was admitted to the hospital for that purpose on May 7 and discharged on May 13. Dr. Hayden then was asked and answered the following questions:
“Q. Doctor Hayden, knowing Mrs. Cox’s present condition and assuming that for approximately three years prior to 1969, she worked as a waitress at a pharmacy on an average of approximately eight hours a day and her work required her to be on her feet for prolonged periods of time on a concrete floor. Would you have an opinion as to whether or not this work would tend to aggravate a pre-existing condition of varicose veins?
A. Yes, it would have a tendency to aggravate an existing condition. Occupational influence is one of the major three predisposing factors toward formation or aggravation of varicosities.
Q. All right, sir. Let me ask you this question next. In your opinion, did this work aggravate Mrs. Cox’s condition of varicose veins?
A. Yes.
Q. All right, sir. In your opinion, is Mrs. Cox able to work now?
A. Not at a full-time standing-up on her feet all the time type job. She may - surgery didn’t cure Mrs. Cox’s legs or didn’t make them new legs. In the future why she will have to take care of her legs and she will have to wear support hose for an indefinite period of time and learn to elevate them when she sits down and in general just take care of her legs. She should, if she could find employment that didn’t require her, you know, to stand up, you know, several hours a day, why I don’t think she would be able to stand up several hours a day month after month without winding up, breaking down her skin or having some more double from her legs, probably developing some stasis ulcers, but if she could find employment that didn’t require all this prolonged standing I don’t know why she wouldn’t be able to do it.”
Two of Mrs. Cox’s fellow-employees were called as witnesses by the appellant-employer. Mrs. Julia Hollingworth testified that she was 74 years of age and had been employed as a waitress at the Service Pharmacy since 1965. Mrs. Bernice Lincoln testified that she'is fountain manager and cook at the Service Pharmacy and had been so employed for 14 years, and was Mrs. Cox’s immediate supervisor. Both of these ladies testified that-they worked with Mrs. Cox doing the same type of work she was doing. They both testified that the work- in the cafe required long periods of standing on their feet, and they both testified that their own feet and legs swollen arid painful from prolonged standing on the concrete floor where they worked.
We are of the opinion that there was some substantial evidence to sustain the Commission’s finding, so we conclude that the judgment of the circuit court must be affirmed.
Judgment affirmed. | [
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John A. Fogleman Justice.
Appellee McCluskey was injured by reason of the breaking of a wrench he was using on a construction job at Reynolds Metals Company plant at Patterson as an employee of Erection Service Company for which Travelers Insurance Company was the workmen’s compensation insurer. Travelers paid workmen’s compensation benefits to McCluskey, who later filed suit against Reynolds, Clarence Weiman, the job superintendent who furnished the wrench, and Proto Tool Company, the manufacturer of the wrench, as third-party tortfeasors. He was represented in this suit by Judge Sam Robinson, who associated the firm of McMath, Leather-man, Woods and Youngdahl. The firm of Terral, Rawlings, Matthews and Purtle represented Travelers in connection with its subrogation claim against the third-party tortfeasors. Mr. Gail O. Matthews of the Terral firm had a telephone conversation with Mr. Henry Woods of the McMath firm about Travelers’ subrogation claim. Matthews followed up the conversation with a letter dated May 30, 1968, which read as follows:
This will confirm our telephone conversation of May 28, 1968, wherein I advised you that I represent Travelers, the Workmen’s Compensation carrier for your client, and further confirm that you would honor our subrogation rights.
To date, Travelers had paid the sum of $1,870.00 temporary total and temporary partial and $3,469.00 medical. It looks like we will be paying for a long time to come.
Please call me prior to settlement or trial so I can advise you of our exact amount of interest in the case.
There was no response to this letter, but there was further correspondence between the law firms, to some of which we will later make reference.
Eventually the case came to trial in the United States District Court in Little Rock. McCluskey and his attorneys encountered unforeseen difficulties in the trial, and a verdict in favor of Proto Tool Company was directed. When this occurred the liability insurance carrier for Reynolds made an offer of $23,000 to settle the claim of McCluskey. The offer was accepted by appellee 'upon the condition that none of it would have to be paid to Travelers, and specified that payment be made under circumstances that would protect Travelers’ interest by permitting it to proceed with the lawsuit. Travelers had not filed any intervention in the suit and no notice of the offer or the settlement was given to it or its attorneys, either before or after it was effectuated. The release of Weimán and Reynolds Metals executed by McCluskey and his wife contained a reservation of McCluskey’s rights to workmen’s compensation benefits and a recognition by the parties that all rights of the employer and Travelers by way of subrogation or otherwise against any party except George McCluskey and wife remained unimpaired and unaffected by the release and settlement.
After the settlement was made, McCluskey filed a claim for additional workmen’s compensation benefits with the Workmen’s Compensation Commission, but it was resisted by appellant, which claimed a lien upon the net proceeds of the settlement made by McCluskey. The Workmen’s Compensation referee held for appellant on the basis of estoppel and by holding that there had been a “recovery” by McCluskey under Ark. Stat. Ann. § 81-1340 (Repl. 1960). The Workmen’s Compensation Commission reversed the referee’s decision, holding that appellant had no lien, because it did not intervene, and that the agreement between the attorneys was carried out. The circuit court affirmed the commission.
Appellant relies upon three points for reversal. They are:
I. That appellee is estopped to deny that appellant is entitled to a two-thirds lien upon appellee’s net recovery.
II. This case is not controlled by Si. Paul vs. Wood.
III. The court should overrule or modify St. Paul vs. Wood.
For these reasons hereinafter stated we affirm the judgment.
We shall first treat appellant’s second and third points before considering its first point.
Points II. and III.
Appellant argues that our holding in St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W. 2d 322, does not control here because the workmen’s compensation carrier intervened in that action and was present during all negotiations, while no offer was ever made to appellant by the carrier in this case. Our decision in the cited case did not wholly turn upon this consideration. The question there was stated in the first paragraph of the opinion, thus:
This appeal calls for construction of § 40 of the Workmen’s Compensation Act (Ark. Stat. Ann. § 81-1340 Repl. 1960) to determine whether an employee can settle his common law cause of action in negligence against a tortfeasor free of any claims of his employer’s Workmen’s Compensation carrier, where the settlement documents specifically preserve all rights of the carrier.
The workmen’s compensation carrier’s position, on appeal, was thus stated:
For reversal, St. Paul relies on one point — i.e., the court should have denied the action of plaintiff for a declaratory judgment and granted St. Paul’s statutory lien against the settlement proceeds.
Our holding was based largely upon our determination that the word “recovery” in the sense that it and the verb form “recovered” are used in Ark. Stat. Ann. § 81-1340 (a) and (b), relates to restoration or vindication of a right existing in a person by the formal judgment or decree of a competent court, at his instance and suit, unless specifically qualified by accompanying words. We pointed out the distinction made between a recovery under § 81-1340 (a) and (b) and a settlement under § 81-1340 (c) in Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W. 2d 923. We also said that a compro mise settlement that extinguished the rights of the compensation carrier was tantamount to a recovery, under § 81-1340 (a) and (b), citing Maxcy v. John F. Beasley Construction Co., 228 Ark. 306 S.W. 2d 849. Ultimately, in affirming the trial court we said that the compensation carrier in Wood had no lien upon the proceeds of the settlement negotiated, that the workmen’s compensation carrier had all the right of subrogation against the third party that was given it by law and all that it would have had if Wood had taken no action whatsoever. We noted that nothing in Ark. Stat. Ann. § 81-1340 prevented Wood from taking a nonsuit. We also pointed out that to interpret § 81-1340 as the carrier argued would require us to hold that the statute gives the employer or his compensation carrier a first lien upon receipts of any monies received from the third party by suit or otherwise, but that the statute does not so read.
The attorneys representing all the parties who participated in the settlement of the McCluskey suit in Federal court clearly thought that the decision in Wood gave the tortfeasor and the injured employee complete freedom to make any settlement of the case they agreed upon without consulting the employer or workmen’s compensation carrier, so long as recognition was given to the right of the employer or carrier who was paying, or had paid, benefits to the employee to pursue its own statutory cause of action against the third-party tortfeasor. It is also apparent that the Workmen’s Compensation Commission so construed that decision. Even though the circuit judge expressed his personal disagreement with the majority position in Wood, he felt that it was controlling in this case and required an affirmance of the Commission’s holding. The United States District Court for the Eastern District of Arkansas has interpreted our holding in Wood to mean that § 81-1340 (a) and (b) do not apply where the tort claim is settled without litigation or prior to judgment. Boehler v. Insurance Company of North America, 290 F.Supp. 867 (1968). There are members of this court who participated in that decision, both on the majority and minority sides, who also construe the Wood opinion to permit such a settlement between the employee on the one hand, and the employer and carrier on the other. We may be sure that many, many such settlements have been made in complete reliance upon this construction of Wood during the four years intervening between the Wood decision and the circuit court’s affirmance in this case. We cannot say that there was error in the application of Wood made by the attorneys for McCluskey, Weiman and Reynolds and its liability insurance carrier, and by the Workmen’s Compensation Commission and the circuit judge. In reaching this conclusion, however, we point out that appellant does not argue that the requirements of Ark. Stat. Ann. § 81-1340 (c) have any application here or that they díctate a different result. We find no reference to this subsection in the referee’s opinion, the full Commission opinion, in the circuit judge’s opinion, or in appellant’s brief.
Appellant does argue, however, that our holding in Wood should be overruled or modified for the reason that it is manifestly unfair to a workmen’s compensation carrier, because it has a poor chance to recover when a suit is conducted in its name. Our decision in that case involved the construction of a statute which has not been amended in either of two regular sessions of the General Assembly intervening between that decision and this. We have no inclination to overrule it, and have no hesitation in holding that the parties in the suit against the third-party tortfeasors were justified in relying upon their construction of that decision.
In urging modification, appellant suggests that we hold that third-party tortfeasors should not be allowed to settle with an employee, unless and until the same "percentage offer” is made to the workmen’s compensation carrier. Appellant agrees that the principles of St. Paul v. Wood were properly applied in that case because the carrier there was demanding substantially more than the injured employee was willing to accept. Still, says appellant, the employee should not be able to settle and leave the compensation carrier out in the cold. We are unwilling to accept the premise that an insurnace carrier cannot recover in a proper case, even if we should eventually hold, as we have not, that such a carrier must prosecute in its own name its subrogation claim for benefits paid and those ultimately to be paid because of our real party in interest statute [Ark. Stat. Ann. § 27-801 [Repl. 1962).]
Although we do not feel that our holding in Wood should be modified as appellant suggests, we are impressed with appellant’s argument about the fundamental unfairness inherent in permitting an injured employee to make such a settlement as was made here, under the circumstances which existed. In Wood, the carrier had intervened, but the tortfeasor and the compensation carrier were unable to agree upon a settlement of the subrogation rights. While we there emphasized the difference between a recovery under § 81-1340 (a) or (b) and a compromise settlement under § 81-1340 (c), we did point out that (c) was controlling where there is any type of termination of an action against a third-party tortfeasor Drior to the rendition of a judgment against the third-party. We also noted that the trial court had, in the very proceeding we were reviewing, approved the settlement between Wood and the third-party tortfeasor. We did say in Wood that § 81-1340 does not so read as to require a holding that the statute gives the employer or compensation carrier a first lien upon receipts of any monies received from the third-party by suit or otherwise. We also said in Winfrey ir Carlile v. Nickles that the subsection (c) does not apply to a contested suit between the employee and the compensation carrier.
We have held that, where a settlement was made by an injured employee with a third-party tortfeasor be-_ fore the filing of a workmen’s compensation claim, § 81-1340 (c) was not applicable to the third-party tortfeasor. Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W. 2d 918. The application of those cases, should be confined to the particular situations there involved. Fundamental fairness, justice and reason dictate that subsection (c) should apply to any settlement. We have already said in Carter, decided well after the circuit court acted in the case now before us, that St. Paul Fire & Marine Ins. Co. v. Wood involved a compromise having court approval pursuant to subsection (c). We also said that the purpose of this subsection was to permit the adjustment of such controversies between the employee and employer as existed in Wood and to require that settlements as between them have the approval of either the court or the Workmen’s Compensation Commission.
Since the statutory purpose of § 81-1340 is to protect the rights of both the compensation carrier and the employee, we shall hereafter interpret Wood to require that as between the employer (or carrier) and employee, the proceeds of any compromise settlement of a tort claim be subject to the lien of the employer or the compensation carrier unless the settlement has been approved by a court having jurisdiction or by the Workmen’s Compensation Commission, after the compensation carrier has been afforded adequate opportunity to be heard.
Point I.
Appellant argues that appellee is estopped by the conduct of his attorney from denying that Travelers is entitled to a lien upon the net proceeds of the settlement received by him. In making this argument, appellant asserts that: appellee’s attorney was given the choice of "honoring” appellant’s subrogation interest or having appellant intervene in the action, and agreed to “honor” the subrogation as evidenced by the letter of confirmation set out above; appellee’s attorney agreed to handle the interest of appellant in return for appellant’s attorney agreeing not to intervene, in order to enable appellee to prevent any mention of the payment of workmen’s compensation benefits in the presence of the jury at the trial against the third parties; in reliance upon the representation that its subrogation rights would be "honored” appellant did not intervene. In making this argument, appellant’s definition of the verb "honor” differs from ours. It relies upon the definition of the word as a noun, and asserts that implicit in the alleged agreement was an understanding that appellant’s attorney would handle the claim for appellant. We understand the verb “honor” in the context in which it is used to be synonymous with the words esteem, respect and recognize. See Webster’s New International Dictionary, Second and Third Editions. At least, it was not unreasonable for the word to be given such a meaning. Be that as it may, we have held that the doctrine of estoppel cannot be applied when anything is left to inference, argument or itendment. Ford Motor Credit Co. v. Exchange Bank & Trust Co., 251 Ark. 881, 476 S.W. 2d 208. We said that the party setting up an estoppel mu t prove it strictly, that there must be certainty to every intent, that the facts constituting it must not be taken by argument or inference and that nothing can be supplied by intendment.
Even though appellant hinges its argument on this point upon the letter from Matthews to Woods and the subsequent motion of appellee’s counsel to prevent mention of workmen’s compensation payments in the tort action, it has been suggested that estoppel may be based upon subsequent communications between the appellant’s representatives and appellee’s attorney. Yet these subsequent communications seem to be at least as consistent with appellee’s position as with appellant’s. Letters went from Matthews to Woods on March 5, 1969, September 9, 1969, and October 29,1969, the texts of which read:
If you get to the point where it appears that this case may be settled, please call me as Travelers has made additional payments since my letter of January 3, 1969.
Ufe 42. «U, ‘7V TV
Since our letter of May 30, 1969, we have paid numerous bills. Would you please advise us of the status of the third party action and if we may be of help, feel free to call us.
# * #
As you probably know, Travelers has paid a lot of money to Mr. McCluskey under the Workmen’s Compensation coverage since the suit was filed.
Prior to serious settlement negotiations, please call me or Bill Stringfellow so we can give you an up to date figure on the WCC subrogation.
On the eve of trial, the information mentioned in the previous correspondence was furnished by a letter from W. R. Stringfellow, Supervising Adjuster for appellant, a copy of which went to Matthews. Stringfellow admitted that Woods had said that the trial would take place in a day or two when he requested the up-to-date statement of medical expenses. The stated purpose for requests for a call prior to settlement regotiations could well be taken to have been accomplished.
Appellee argues forcefully that his attorney did exactly what he impliedly agreed to do, i.e., “honor” the subrogation rights of appellant by preserving them when confronted with an offer advantageous to appellee, which did specifically exclude any offer to the Workmen’s Compensation carrier. We certainly cannot say that this argument is groundless. Under the principle stated in Ford Motor Credit Co.v Exchange Bank ér Trust Co., supra, we cannot declare an estoppel as a matter of law in this case. Even if the evidence is taken to present a question of fact, we cannot say that the finding of the commission adverse to appellant was without substantial evidentiary support. The commission found that the only agreement between the attorneys in this case was that the subrogation rights of appellant would be protected and that they were protected by providing in the settlement that appellant could file and prosecute any claim it might have, thus clearly rejecting the referee’s finding that there was an estoppel.
We do not consider that appellant’s effort to establish . a custom or course of dealing between appellant and appellee’s attorney in other cases requires us to hold that appellee was estoppel. It is at least doubtful that appellee could be estopped by a course of conduct followed by his attorney in matters wholly apart from the attorney’s employment by the client. There is nothing whatever to show that Mc-Cluskey had any knowlege or notice of this custom or course of dealing. But even if appellee could be bound, appellant did not show such a course of dealing as would enable us to apply the doctrine of estoppel as a matter of law. In an endeavor to establish such a custom, appellant introduced one letter addressed by its attorneys to the McMath firm in December 1967, in which Woods was specifically asked to advise if he wanted the Terral firm to intervene, or if he would protect Travelers’ statutory lien without charge. This is a request far different from any implied from the correspondence relating to this case. Matthews testified that he had the same agreement with Woods in every case in which Travelers had a lien as that evidenced by the letter introduced. The case referred to in this letter resulted in a judgment in favor of the injured employee and a substantial payment was made to Travelers out of that recovery. Stringfellow testified that there had been a number of cases in which Woods had obtained judgments in which Travelers had a subrogation interest. He was unable to recall any where settlement was reached during trial, and particularly when settlements negotiations arose suddenly during trial. We could not say that this evidence established an estoppel as a matter of law
Appellant advocated a theory upon oral argument not theretofore advanced at any stage of the proceeding. It was that appellee was a trustee for appellant in the matter and that this action violated his fiduciary duties to appellant, entitling appellant to a lien on the settlement proceeds. It relies upon McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W. 2d 566. We cannot consider an argument made for the first time on appeal. Rhodes v. Earl Gill Enterprises, 245 Ark. 279, 431 S.W. 2d 846. Furthermore, the authority relied upon was not mentioned in appellant’s brief and not furnished to opposing counsel prior to argument as our rules require. Rule 18 (j), Supreme Court Rules, Supplement 1971, Volume 3A, Arkansas Statutes Annotated. We may say, however, that, in McGeorge, the third-party tortfeasor was seeking to compel the workmen’s compensation carrier to be made a party to an action against the tortfeasor by the injured employee. We held that this was not required by our “real party in interest” statute, based upon the dual bases of the insured’s relation of trustee toward the insurer and the right of the wrongdoer not to have the cause of action against him split. We have specifically approved the splitting of the cause of action by settlement in a case such as this in St. Paul Fire & Marine Ins. v Wood, 242 Ark. 879, 416 S.W. 2d 322. Distinctions made in Wood are also applicable here with reference to the trust relationship, because it was held, in McGeorge, to apply to the proceeds of recovery by judgment. We also said that a settlement which extinguishes the insurer’s rights is tantamount to a recovery by judgment.
While appellant nowhere argues that by the steps taken after appellee’s tort suit was filed it did “join in such action” as it was entitled to do, it has been suggested that this is the case. This court has always referred to this procedure as if the words “join in” meant intervene. See McGeorge Contracting Co. v. Mizell, supra; Winfrey & Carlisle v. Nickles, 223 Ark. 894, 270 S.W. 2d 923. In McGeorge we said: “An insurance company would be a proper party plaintiff should it so request, or intervene, but it would not be a necessary or indispensable party.” After saying in Winfrey that Ark. Stat. Ann. § 81-1340 recognizes separate causes of action in the compensation beneficiary and in the compensation carrier, we added:
By subsection (a) the compensation beneficiary is permitted to institute the action, with notice to the carrier so that it may intervene.
Actually intervention is the only means recognized for one who was not joined as a plaintiff by the party filing an action to “join in such action.” In Gorham v Hall, 172 Ark. 744 290 S.W. 357, We said:
Intervention, in practice, is a proceeding in a suit or action by which a third person is permitted by the Court to make himself a party. In practice an intervention is the admission by leave of court of a person, not an original party to the pending legal proceeding, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceeding. Literally, an intervention means the act of fact of intervening; any interference that may affect the interest of others —interposition. Webster’s International Diet.; 33 C. J. 476. See, also, 20 R. C. L. 682, where “interpleader” and “intervention” are defined and the distinction drawn between them.
The subject is also treated in 59 Am. Jur. 2d, Parties, § § 129, 130, at p. 552, et seq., viz:
Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit.
JL JL jL 'rr TV 17
By the process of “intervention” a person not originally nally made a party may be permitted on his own application to obtain the status of a party to the previously instituted action. The purpose of the procedure is to enable anyone having an interest in a subject of litigation to interject himself into the case in timely season to protect his rights and to obviate delay and multiplicity of actions.
* * #
The term “intervention” with reference to judicial proceedings has a settled meaning, namely, the act by which a third party becomes a party in a suit pending between other persons, or, more specifically, the act by which a person not a party to a pending action voluntarily or by his own application becomes a party thereto.
Literally, an “intervention” means the act or fact of intervening — any interference that may affect the interest of others. In legal terminology, “intervention” is the proceeding by which one not originally a party to an action is permitted, on his own application, to appear therein and join one of the original parties in maintaining the action or defense, or to assert a claim or defense against some or all of the parties to the proceeding as originally instituted. Stated another way, “intervention” is the admission by leave of court of a person not an original party to the pending legal proceeding, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceeding.
It can readily be seen that appellant did not “join in such action.” Actually, appellant’s argument that it was entitled to a lien by estoppel is premised upon the theory that it did not join in the action, in reliance on acts and conduct of appellee’s counsel. The theory that appellant did, in effect, join in th action is inconsistent with its theory of estoppel.
It is indeed regrettable that any misunderstanding should arise between two capable and reputable attorneys. But we cannot compensate for losses sustained as a result of such an unfortunate difference, except as permitted by application of legal principles. Under the governing law in this case, we must affirm the judgment.
George Rose Smith and Brown, JJ., dissent as to Point I. | [
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Frank Holt, Justice.
This is a suit for malicious prosecution. Appellant commenced this action against appellees following the court’s dismissal of a charge of grand larceny pending against appellant. The information filed against appellant resulted from appellee-R. L. Culpepper’s sworn statement that appellant had stolen a pair of cowboy boots from the appellee-Shoe Tree Store. Based upon a directed verdict for Mrs. R. L. Culpepper and a jury verdict for the remaining appellees, a judgment was entered in their favor.
R. L. Culpepper is the co-owner and manager of the appellee-corporation and his wife is a part-time employee. David Culpepper, their 22-year-old son, has no position with the corporation and is unemployed. According to appellees, Mr. and Mrs. Culpepper were working in the rear of the store on the date of the alleged theft. David had been instructed by his father to keep watch on the store and was sitting near the center of the store facing the front. Between 5:30 and 6:00 p.m., two women entered the store, walked to the men’s shoe section, picked up a pair of cowboy boots and each woman placed a boot in her handbag. David immediately informed his father of the incident. When Mr. Culpepper approached the women, he was asked by one of them about a certain type shoe. He did not inquire of them about the boots. While he was checking the shoe boxes in the area to determine if the boots were missing, the women left the store. Before Mr. Culpepper could stop them, they drove off in their car. Mr. Culpepper then called the sheriff’s office and reported the theft by the unidentified individuals. Subsequently, David informed his father that he had seen one of the women at a local bowling business. Two weeks after the alleged theft, the three Culpeppers went separately to the bowling lanes where Mr. Culpepper and David each identified appellant as one of the women involved in the alleged theft. Mr. and Mrs. Culpepper obtained appellant’s name from a bowling customer. Mr. Culpepper phoned the sheriff’s office to register his complaint. Immediately thereafter a deputy sheriff arrived at the bowling lanes and Mr. Culpepper signed an affidavit for the arrest of appellant for shoplifting. The appellant called her son, who came to the bowling lanes and drove her to the sheriff’s office where they posted bond. The following day a local daily newspaper published information concerning appellant’s arrest and the charges against her. Subsequently, appellant appeared in court for arraignment and entered a plea of “not guilty.” The charge remained pending from March 28, 1968, to October 27, 1969, when the charge was dismissed for lack of prosecution.
We first consider appellant’s contention that the court erred in instructing the jury concerning termination of the prosecution in appellant’s favor. The court gave the following instruction (No. 10):
“You are instructed that the fact that a prosecution against the plaintiff terminated in her favor is insufficient, standing alone, to sustain plaintiff’s action for malicious prosecution, in the absence of proof of malice and lack of probable cause on the part of the defendants.”
Appellant does not dispute the fact that termination of the prosecution in her favor is “not conclusive or determinative” on the issue of malice or probable cause. She insists, however, that she is entitled to an instruction stating that it is a fact to be considered along with all the other facts and circumstances in the determination of the alleged malice and want of probable cause. We agree. In McNeal v. Millar, 143 Ark. 253, 220 S.W. 62 (1920), we quoted with approval:
“While the defendant in the former proceeding may have been found innocent and acquitted, yet that does not show a want of probable cause in the prosecution, it being not conclusive of anything against the prosecutor, but a mere circumstance which taken along with others may induce the jury to find there was a want of probable cause and also that there was malice.”
In the case at bar, the instruction as given did not sufficiently comport with the law as set forth in McNeal and is, therefore, prejudicial to appellant.
Appellant further contends that the court erred in instructing the jury as to probable cause. The court gave the following instruction (No. 8):
“You are instructed that the term 'probable cause’ or due cause sometimes called, as used in these instructions in connection with the charge of malicious prosecution, means that state of facts in the mind of the defendant or the defendants, either one or all of them, that would lead a reasonable and prudent person to believe or have an honest and strong suspicion that the accused was guilty of the crime for which she was charged.”
Appellant makes the argument that the instruction is erroneous, inasmuch as it did not provide that the defendant or defendants should have considered both the facts and circumstances known to them. Probable cause to institute criminal proceedings is not necessarily limited to the “facts in the mind of the defendant.” Malvern Brick & Tile v. Hill, 232 Ark. 1000, 342 S.W. 2d 305 (1961). Inasmuch as the giving of this instruction is likely to arise upon a retrial, we observe that it is subject to proper specific objections being made.
Appellant, also, contends that the court erred in refusing to allow appellant’s witness, a school official, to testify about the circumstances and facts concerning David Culpepper’s removal from junior high school several years preceding this incident. Mr. Culpepper’s accusation that appellant took the boot was based somewhat on information told to him by David. Mr. Culpepper testified: “I would be dishonest to say that I saw her put the boot in there, when I didn’t.” Whether or not Mr. Culpepper was entitled to rely on his son’s statement that he saw appellant put a boot in her handbag relates to David’s credibility. In Malvern Brick if Title Co. v. Hill, supra, we said:
“In malicious prosecution cases we have defined the words ‘probable cause,’ as, ‘such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution.’ ” (emphasis added)
In the case at bar, it does not appear that the testimony of the former school principal related to David’s credibility. We observe, however, that any properly adduced testimony which relates to David’s credibility is admissible evidence.
Appellant, also, asserts that the court erred in not allowing her defense counsel to testify concerning a written instrument which her counsel received from the deputy prosecuting attorney during the arraignment proceeding. The proffer of proof reflects that the information contained in this “piece of paper” was to the effect that charges against appellant would be dropped if she would sign a statement agreeing not to sue appellees. The “piece of paper” was not produced as the best evidence. Neither was there any evidence adduced on direct or rebuttal to connect appellees with the contents of this written instrument received from the state’s repre sentative. In the circumstances, we think the trial court properly sustained appellees’ objection to this witness’ testimony. See Edwards v. Epperson, 246 Ark. 194, 437 S.W. 2d 480 (1969); 29 Am. Jur. 2d § 472 Evidence; 32 C.J.S. § 625 Evidence.
Appellant further asserts that the trial court erred by commenting on the evidence in the pressence of the jury. There was no objection made to the court’s comments. Therefore, appellant is in no position to complain of this asserted error for the first time on appeal. Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W. 2d 873 (1968), Baker v. City of Little Rock, 247 Ark. 518, 446 S.W. 2d 253 (1969).
As to appellant’s other contentions for reversal, suffice it to say that we have considered and find them without merit.
Because of the prejudicial errors as previously indicated, the judgment is reversed and the cause remanded except as to the directed verdict in favor of Mrs. Culpepper.
Affirmed in part and reversed in part. | [
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John A. Fogleman, Justice.
Appellant Opal Faye Burt was injured while working for Walmart Company and was paid workmen’s compensation benefits by Hartford Accident & Indemnity Company. Thereafter, she brought an action against D. T. Allen Construction Company, as a third-party tortfeasor, whose liability insu ranee coverage was also furnished by Hartford. Appellant contended that this situation presented a conflict of interest which deprived Hartford of a lien on any recovery she might realize in her action against the alleged tortfeasor. Appellee then employed counsel, who filed an intervention seeking to establish a lien and seeking recovery from D. T. Allen Construction Company based upon allegations of negligence similar to those asserted by appellant. Hartford employed another firm of attorneys to provide a defense for the construction company. Appellant obtained a judgment of $3,000 in her tort acttion. The court recognized appellee’s lien, rendering judgment in its favor for the full amount of the workmen’s compensation benefits paid by it. Appellant contends that appellee was not entitled to any recovery because it was the liability insurance carrier for the tortfeasor. Alternately, appellant contends that the court erred in refusing to deduct a reasonable attorney’s fee from appellee’s recovery as a part of the reasonable costs of collection and that the court erred in allowing the carrier to fully recover its payments to appellant. We find no reversible error.
The record discloses that Hartford Insurance Group filed a petition to intervene, alleging that it had paid appellant $1,752.89 in workmen’s compensation benefits and asserting its right to join in the action and to make claim against any third party in the action who might be held liable for appellant’s injuries to the extent of these payments. The court allowed this intervention and Hartford Accident & Indemnity Company, a subsidiary of the Hartford Group, filed its complaint in intervention. It prayed for judgment against the alleged tortfeasor for the amount of the payments made and for a first lien on any judgment awarded appellant. Appellant filed an answer denying Hartford’s right to a lien and asked dismissal of appellee’s complaint in intervention.
At a pretrial conference, appellant raised her objection to appellee’s intervention. The attorney representing Hartford on the intervention stated that it really had no issue for the jury, that the law was clear as to its re covery and that it would introduce the final settlement receipt. Appellant then called attention to appellee’s allegations of negligence on the part of the Allen Company and the answer on behalf of that company denying negligence and demanded an election on the part of Hartford as to which pleading it withdrew. Appellant’s attorney also urged that the Arkansas statute would not permit Hartford’s claim of subrogation because of the conflict of interest. He did not then insist upon dismissal of appellee as a party to the intervention, but asserted that the grounds he had stated would be urged as a defense at the trial. Counsel representing Allen then moved to suppress any evidence on such a defense. The pretrial order permitted appellee to assert its claim for subrogation, struck appellee’s allegations of negligence and confined the intervention to trial of issues of negligence alleged in appellant’s complaint and its alleged right of subrogation, and directed appellant and her counsel to make no reference in the course of trial to liability insurance carried by the Allen Construction Company.
At the commencement of the trial, the court, on appellant’s motion in limine, prohibited the tortfeasor’s counsel from asking jurors on voir dire about any workmen’s compensation claim, but not from stating that the Hartford Group had intervened seeking part of any recovery of Mrs. Burt and then inquiring about any interest that any juror might have in the Group. At this time, appellee’s counsel on the intervention called attention to the fact that appellant had failed to answer its request for admissions and they were then admitted.
A pretrial discovery deposition of D. T. Allen showed that both appellant’s counsel and appellee’s counsel on the intervention had addressed inquiries to the witness. It is admitted that appellee’s attorney on the intervention did not interfere with appellant and her counsel in the trial of the case or take any step prejudicial to appellant’s rights.
Sustaining appellant’s argument would result in a windfall to her because of the fortuitous circumstance that the same insurance company was appellant’s employer’s workmen’s compensation carrier and the tortfeasor’s liability carrier. We find nothing in the letter or spirit of our Workmen’s- Compensation Act to indicate any such result. Appellant admits inability to furnish statutory or case authority to support her position and we know of none. Appellant directs our attention to a statement at 2 Larson 226.83, § 74.16 (1970), included in a discussion of the problems raised by subrogation statutes and the importance of the statute’s affording both the employee and carrier a fair opportunity to press a damage suit against a third-party tortfeasor, if the other neglects to do so. The statement quoted simply recognized that the problem of providing an opportunity and an incentive to both employee and carrier is aggravated by the increasing prevalence of conflicts of interest when a carrier is the injured claimant’s subrogee and the defendant’s liability insurance carrier. Nowhere do we find a passage where Professor Larson indicates that subrogation should not be allowed under these circumstances.
Appellant argues that dangerous consequences are inherent because cooperation between the claimant and carrier would be virtually impossible, the attorney for the claimant could not represent both parties and the insurance company gains a windfall. We do not understand how a windfall to the insurance company would result. Other fears of appellant can be appropriately alleviated by judicial action. We find the holding in Varney v. Taylor, 71 N.M. 444, 379 P. 2d 84 (1963) pertinent and in harmony with our decisions and the provisions of our workmen’s compensation statute. There the New Mexico Supreme Court reversed a trial court decision to deny the right of intervention under these circumstances, all the while recognizing the employee-plaintiff’s understandable disturbance at the prospect of an unwanted and uninvited guest at the counsel table. That court held that the carrier’s intervention should be permitted but only under such circumstances as would protect the rights of all parties to the litigation. The court felt that the issue had been satisfactorily treated in a previous case by granting a summary judgment in favor of the intervenor which was not to be made a matter of record until the trial was complete. The New Mexico court said that the intervention in these circumstances should not be made final but the carrier should be precluded from participating as a party plaintiff in the interim. The action of the trial court here was substantially in accord with that holding and was appropriate under the circumstances. Of course, if the claimant gives proper recognition to the carrier’s subrogation rights and stipulates its right to a lien, there is no reason why the claimant’s attorney cannot proceed with a trial against a third-party tortfeasor without interference by the carrier or its attorney.
It is conceded that counsel for appellant prepared the case against the tortfeasor, made the opening statement and closing arguments, examined all witnesses and prepared and presented all jury instructions proposed on behalf of appellant. The intervenor’s attorney’s only participation in the actual trial was in the reading of a deposition. When appellee moved for enforcement of its subrogation lien against the proceeds of the judgment, appellant continued to resist. In the alternative, appellant sought to have attorney’s fees amounting to one-third of the total amount of appellee’s workmen’s compensation payments allowed as part of the reasonable costs of collection allowed by statute. Appellant contends that Hartford should bear a part of the attorney’s fees for this recovery because the conflict of interest prevented cooperation between counsel.
We have held that it is proper for the court before which a tort action resulting in a judgment in favor of an injured employee has been tried to determine the reasonable costs of collection to be deducted from the amount to be paid to the intervening carrier which has paid compensation benefits to the employee. Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S.W. 2d 923. In that case, we recognized that in the usual situation the question of allowance of fees to the employee’s attorney as part of the costs of collection would not likely arise, because the intervening carrier would either retain the employee’s counsel for a fee mutually agreed upon or would employ another attorney of its own choice. Thus, we said, the court would simply apportion the recovery, leaving each to pay his own attorney. We added that in the normal situation the carrier would incur liability for an attorney’s fee in the course of pursuing the tortfeasor. We recognized, however, that the normal situation does not prevail when the carrier has a conflicting interest as the tortfeasor’s liability carrier, because there is little likelihood that the carrier will engage the employee’s attorney or that the attorney employed by the carrier will be of assistance to the injured party’s counsel. We found no error in the allowance of attorney’s fees on the carrier’s share of the recovery under the circumstances there.
Quite a different situation prevailed here, however. Appellant took, and still maintains, an adamant position that the carrier had no rights in the matter at all, and no lien on her recovery. This theory does not seem to have even been suggested in Nickles and certainly was not an issue on appeal, as it is here. Appellant concedes that appellee was forced to employ an attorney to assert its rights because of her opposition to its intervention. Even though the actual participation of appellee’s counsel on its intervention after the trial commenced was not substantial and even if it be conceded that there was no cooperation between appellant’s and appellee’s attorneys, appellant’s action certainly jeopardized the appellee’s right to subrogation and necessitated not only the presence of appellee’s attorney, but a zealous attention to the protection of his client’s rights from the filing of the third-party suit until now. This is not a case of the carrier’s accepting the benefits of the services of the employee’s attorney without any necessity for the employment of an attorney by it or its choosing to depend upon the efforts of the employee’s attorney without taking any part in the proceedings whatever. In view of the circuit judge’s superior ability to evaluate the situation (which we emphasized in Nickles), we cannot say that he committed error in regard to the costs of collection allowed.
Appellant also contends that, under Ark. Stat. Ann. § 81-1340 (Repl. 1960), Hartford was not entitled to more than the two-thirds of the amount of benefits paid by it. We cannot so read the statute. Arkansas Statutes Annotated § 81-1340 (a) (1) clearly provides that an intervening employer or carrier shall be entitled to a lien upon two-thirds “of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee. . . ” Arkansas Statutes Annotated § 81-1340 (a) (2) provides that one-third of the remainder of the amount recovered by the employee, after deduction of reasonable costs of collection, shall belong to the injured employee, and the remainder, or so much thereof as is necessary, goes to discharge the actual amount of the liability of the carrier with any excess belonging to the employee. The language of the statute rejects appellant’s argument.
The judgment is affirmed.
Jones J., dissents insofar as the decision relates to the denial of attorney’s fees as part of the cost of collection. | [
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Carleton Harris, Chief Justice.
On April 2, 1971, William Taliaferro and Sara L. Taliaferro were divorced, the court granting a divorce to each from the other. Custody of the three minor children was given to the father with reasonable visitation rights in the mother. It was further ordered that William Taliaferro, appellee herein, pay to Sara Taliaferro, appellant herein, the sum of $10.00 per week to assist her when she had the children for visitation purposes. Both parties were restrained from removing the children from Pulaski County, Arkansas, without first obtaining approval of the court. In addition, the parties were restrained from threatening and harassing each other, and it was further ordered that the property of the parties should remain “as it was prior to the last marriage of the parties and as it was found by this court”. On June 1, 1971, appellant petitioned the court for a change of custody, asserting changed conditions, and it was further alleged that she had reason to believe that appellee was planning to remove the minor children from the state, and she asked that he be enjoined from doing so. Apparently, no hearing was held on this motion, and on June 18, 1971, Mrs. Taliaferro filed a motion asking that Mr. Taliaferro be cited for contempt for removing the children from Pulaski County without the prior approval of the court. On the same day, the chancery court, acting through a special chancellor, entered its order as follows:
“William Taliaferro is hereby directed and ordered to appear in this court on the 24 day of June, 1971, at 9:00 A.M. o’clock, for the purpose of showing cause, if any there be, why he should not be held in contempt of Court for failure to comply with the orders of the Court dated April 2, 1971.”
On June 24, the chancery court (acting through another special chancellor) heard the motion for contempt, Taliaferro not being present but represented by counsel, and found as follows:
“1. That plaintiff was served with notice of the hearing by the U.S. Mail and a copy of the receipt is filed herewith.
2. That the plaintiff is in Contempt of this Court for removal of the parties minor children from the bounds of Pulaski County in violation of the Court Order dated April 2, 1971 and is hereby fined the sum of $250.00; that said fine may be expunged by returning the minor children to Pulaski County within 10 days from the date this Order is entered.”
Appellee was then ordered to immediately return the children to Pulaski County, and appellant’s attorneys were awarded a fee. On July 1, 1971, appellee, through counsel, petitioned the court to set aside the order of June 24, and on September 2, the matter was heard by the court, the regular chancellor presiding. At that time, Mr. Taliaferro did not appear, nor was there any testimony offered on his behalf, but testimony was given by Mrs. Taliaferro, and a witness on her behalf. At the conclusion of the hearing, the court set aside the order of June 24, 1971, and denied the change of custody. From the order setting aside the June 24 order, and the order refusing a change of custody, appellant brings this appeal.
It is asserted that the court erred in not issuing a restraining order when the petition was filed by appellant on June 1 seeking to restrain the appellee from removing the children from the state. As earlier stated, this petition was apparently never heard by the court, and the record does not reflect the reason therefor. It is not suggested just what relief this court could grant under those circumstances.
In its order of September 2, the court held that the June 24 order was “null and void as it is shown that the plaintiff was not properly served with the petition seeking to hold him in contempt.” The meaning of this finding is not entirely clear, but it is established that appellee had notice of the hearing, for a return receipt is exhibited which he apparently signed himself. However, the order directing him to appear, heretofore quoted, does not comply with the holdings of this court. In Ex Parte Coulter, 160 Ark. 550, 255 S.W. 15, mentioned by the trial court, the question at issue was the support of Coulter’s minor children. This court, quoting from an earlier case, said:
“Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts instituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense. There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause.”
The court then cited section 1486, Crawford and Moses Digest, which is identical to the present statute, Ark. Stat. Ann. § 34-905 (Repl. 1962), providing:
“Contempts committed in the immediate view and presence of the court, may be punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”
The original decree now before us contains several provisions which could have been violated, viz, appellee could have failed to pay the $10.00 per week which was to be paid when appellant had physical custody of the children; he could have violated the provision whereby he was restrained from threatening, molesting, or harrassing appellant; he could have attempted to change the status quo as to property rights; and finally, he could have violated the provision prohibiting him from removing the children from the state without permission of the court. This last, of course, was the reason for the show cause order being entered but it will be noted that the order does not state that Taliaferro should show cause why he should not be held in contempt of court for violating that provision; rather, he is only directed to show cause why he should not be held in contempt “for failure to comply with the orders of the court dated April 2,1971”. Since Taliaferro was not informed with reasonable certainty of the facts constituting the offense, it follows that the order was deficient, and the court did not err in setting it aside.
As to the change of custody, we are unable, from the record before us, to say that the court erred. Of course, to justify a change of custody, the petitioner was required to show a change of circumstances which had occurred subsequent to the divorce. Stone v. Stone, 244 Ark. 850, 427 S.W. 2d 538. The testimony offered on behalf of appellant is not at all detailed, and there is nothing in the record to reveal the original circumstances that existed when the court granted custody to appellee. In other words, the record is insufficient for a determination of whether there has been a change in circumstances. It follows that we cannot say that the court’s order, here in question, was erroneous.
Of course, if appellant so desires, there is nothing to prevent the issues from being properly presented to the court.
Affirmed.
This action by the court in granting each party a divorce is not at issue on this appeal, and we express no opinion as to the propriety of such action.
No brief has been filed by appellee.
Carl-Lee v. State, 102 Ark. 122, 143 S.W. 909. | [
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John A. Fogleman, Justice.
Laughter Lee Evans asserts three points for reversal of his conviction of possession of stolen property. He contends that errors were committed in allowing testimony relating oral statements attributed to him, in addition to admission of his written statement, in denying his motion for verdict, and in giving an instruction to the jury regarding further consideration of the case after it reported that it had been unable to reach a verdict.
Appellant’s argument on appeal is somewhat different from his objection in the trial court to the testimony about the oral statement. In a hearing on the admissibility of appellant’s statements, the voluntary nature of the statements was conceded, and appellant’s attorney agreed that his client’s constitutional rights were protected, insofar as warnings and coercion were concerned. The objection made, after the court in a Denno hearing held the statements admissible, was that testimony about oral statements made to the officers, in addition to the written statement, should not be admitted. Appellant’s attorney, who is not representing him on appeal, contended that the admission of this testimony would violate appellant’s constitutional rights by attempts to show, by innuendo, appellant’s knowledge that the property involved, a pistol, was stolen. This attempt to engraft a constitutional “parol evidence rule” relating to written statements of accused persons upon the rules of evidence in criminal cases has been appropriately abandoned, and the attorney general was justified in not briefing this objection. In re Briefing of Criminal Cases, 234 Ark. 846, 354 S.W. 2d 740.
The contention first made here that oral statements more comprehensive than the written statement were not shown to be admissible with sufficient clarity cannot be entertained. Nash v. State, 248 Ark. 323, 451 S.W. 2d 869. However, our review of the only testimony on the subject, that of Detective Larry Starks of the Little Rock Police Department, discloses that, upon discovery from a check of police records that the pistol had been stolen, Starks advised appellant of his rights. Thereafter, Evans gave an oral statement, after which, upon the request of the officers that he do so, Evans wrote a statement in his own handwriting. The circuit judge found that appellant had been adequately warned as to his rights, and that the contents of his statements to the officers, both oral and written, were admissible. This finding, based upon uncontradicted testimony, is not erroneous.
Appellant’s second point is based upon his argument that the evidence failed to show the requisite guilty knowledge and intent on his part to constitute a violation of Ark. Stat. Ann. § 41-3938 (Repl. 1964) under which he was charged. Our review of the evidence satis fies us that a jury question was posed. Without detailing all the evidence, the following appears in the testimony:
The retail value of the pistol was $135, the wholesale price, $90. The weapon was in appellant’s possession in a vehicle driven by him on Sixth Street near the freeway in Little Rock, three months after the weapon was stolen from Farrior’s, Inc., in Little Rock, and Evans had some of the bullets for it at his home, although he contended that he took the pistol in pawn from a patron at a club of which he was part owner. In his statements to the officers, Evans said that he knew that the man he gave $40 as a loan on the pistol would never return for it, and that, while the borrower had sought only $20, Evans had told him that was not enough and gave him $40. Starks asked Evans if, by reason of paying so little for the gun, he had any idea that it might have been stolen. Evans replied that he figured it probably was.
If the jury believed that Evans made the reply attributed to him, it was justified in finding that he had guilty knowledge.
After the jury had deliberated for more than two hours, it reported to the court that an eleven to one division had existed for a considerable period of time. The trial judge, upon his own motion, then stated to the jury:
It is important that a jury reach a verdict in the trial of this case. A hung jury means a continuation of the case and a delay in the administration of justice.
Under your oath as jurors you have obligated yourselves to render a verdict in agreement with the law and evidence. In your deliberations you should weigh and discuss the evidence and make every reasonable effort to harmonize your individual views of the merits of the case.
Each of you should give due consideration to the views and opinions of the other jurors who disagree with your opinions and views. No juror should surrender his sincere beliefs in order to reach a verdict; to the contrary, the verdict should be the result of each juror’s free and voluntary opinion.
By what I have said as to the importance of the jury reaching] a verdict, I do not intend to suggest or require that you surrender your conscientious convictions, only that each of you make every sincere effort to reach a proper verdict. Therefore, I request the jury retire for further deliberations.
If there are no questions, you may return to the jury room and resume your deliberations.
The jury then deliberated for about 30 minutes and reported that a verdict had not been reached and asked instructions. Since it was after 5:00 p.m., the court dismissed the jury for the day, but directed it to resume deliberations at 9:30 the following morning. The verdict was returned after nine minutes’ deliberation on that day. Appellant contends that the instruction given amounted to a directed verdict, and was coercive in nature. We do not agree. An admonition to the jury as to its duty to return a verdict, without any expression of the court’s opinion as to the weight of the evidence, or any change in instructions previously given, or suggestion that any juror yield his individual convictions to reach a verdict is not improper. Hardin v. State, 225 Ark. 602, 284 S.W. 2d 111. Here, the circuit court clearly stated that the verdict should be the result of each juror’s free and voluntary opinion and concluded its remarks with emphasis upon the proposition that no juror should surrender his sincere beliefs in order to reach a verdict, and only suggested that each juror make a sincere effort to reach a verdict. Since a hung jury renders no decision at all, and retrials are grievously burdensome to all concerned and since some jury would have had to reach a decision at some future date, the circuit judge should be commended rather than condemned for the action taken here. We have long recognized that it is the duty of a trial judge to make plain the obligation of a jury to arrive at a verdict consistent with the facts and concurring with the individual convictions of each juror. Whitley v. State, 114 Ark. 243, 169 S.W. 952. The court did not advise the jury that there was no conflict in the testimony, or that the law was plain and simple, so that the only thing left to the jurors was embodied in their oath, as was the case in Parker v. State, 130 Ark. 234, 197 S.W. 283, relied upon by appellant. Much stronger admonitions than the one given here have been approved. See McGaha v. State, 216 Ark. 165, 224 S.W. 2d 534; Mynett v. State, 179 Ark. 1199, 18 S.W. 2d 335; Benson v. State, 149 Ark. 633, 233 S.W. 758; Mallory v. State, 141 Ark. 496, 217 S.W. 482.
Since we find no error, the judgment is affirmed. | [
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Lyle Brown, Justice.
This is an appeal under our criminal procedure rule one. Robertson was sentenced to five years in the penitentiary. Thereafter he filed a petition in the sentencing court to have the sentence set aside and requested that he be permitted to be present for a hearing on the petition. The trial court, acting under rule one (C), held that the records in the case showed conclusively that petitioner was entitled to no relief and did not order the presence of the petitioner. The single point urged on appeal is that the court erred in the failure to order appellant’s presence before the sentencing court.
In appellant’s petition to the trial court he alleged (a) that he was not advised of his constitutional rights by the arresting officer, (b) that he did not have effective assistance of counsel, and (c) that all proceedings subsequent to his arrest denied him due process of law. Under pleading (c) he said he was illegally held without bail, that he was not committed by a magistrate, and that he was tricked into entering a plea of nolo contendré when in fact he was not guilty.
Appellant is not entitled to be present when his petition for post-conviction relief can be processed under rule one (C). Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967). Under (C) the trial court examines the motion alongside the records and files in the case and if it is revealed conclusively that the prisoner is entitled to no relief, that ends the matter. In the case at bar the trial court followed that procedure and disposed of the petition under rule one (C).The trial court made extensive findings from the records available and reached these conclusions:
When the plea was entered, appellant was represented by competent, employed counsel; he was fully informed ot all the facts relating to the charges against him; he was informed that he was entitled to a jury trial, which he waived; appellant counseled with his employed attorney and was fully satisfied with all services rendered; appellant replied in the negative when he was asked if he had any questions he desired to ask of court or counsel; and appellant confirmed that “he had not been coerced by anyone and that the plea he desired to enter was a voluntary plea.”
According to the record we have summarized, this appellant was given every opportunity to speak out, either in person or by employed counsel, and to raise any possible defense he had to the charges. If he had any such defenses it was incumbent that he raise them. In the face of the record made by the trial court and here summarized, appellant is not entitled at this late date to collaterally attack his sentence. Since appellant was in no position to attack the judgment, his presence naturally was not needed.
Affirmed.
Fogleman, J., not participating. | [
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Lyle Brown, Justice.
This is a medical malpractice case. Ruby Davis brought suit for personal injuries and her husband sued for loss of services. The trial court directed a verdict for Dr. Kemp after appellants rested their case. Appellants produced no medical testimony, and essentially that was the reason given for the directed verdict. Appellants contend that the alleged negligence was within the comprehension of the average juror and that expert testimony was not needed.
Appellant Ruby Davis suffered an injury to an ankle when a pickle relish jar fell and shattered, lacerating her right ankle. The pickle company sent her to Dr. Kemp for treatment. Her ankle did not respond to the first two treatments. On the third visit the doctor probed the wound and discovered a piece of glass approximately one inch by one-half inches wide at one end and one-fourth of an inch at the other end. Mrs. Davis was the only witness for appellants. The thrust of the issues revealed by her testimony was that on the first visit: (1) the doctor failed to irrigate the wound; (2) he failed to make x-rays; (3) he failed to administer antibiotics; and (4) he failed to find the piece of glass.
The applicable rule is well settled in this State. Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970):
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
In Gray v. McDermott, 188 Ark. 1, 64 S.W. 2d 94 (1933), we held that whether it was proper or improper to open up a wound “or probe into it” on the first visit of the patient requires scientific knowledge to determine. In Walls v. Boyett, 216 Ark. 541, 226 S.W. 2d 552, we applied the same rule as to the making of x-rays. In harmony with the recited views of those two cases we hold that whether it was proper or improper on the first visit to irrigate the wound and to administer antibiotics would fall in the same category. In other words these factors would not be a matter of common knowledge to the jury. The failure to find the piece of glass on the first visit would, insofar as negligence is concérned, hinge upon whether or not good medical practice required the probing of the wound on the first visit.
There is still another reason why the trial court was correct in entering a directed verdict. As we read the abstract we find no evidence which establishes a causation between the alleged negligence of appellee and the damage of which appellants complain. If there were any complications they are not abstracted. In other words, the law requires more than a mere possibility that certain injuries resulted from negligence; a reasonable probability must be established. Appellants have failed to meet that burden. We would have to invade the realm of conjecture to say that any suffering endured by appellant Mrs. Ruby Davis was directly attributable to appellee as opposed to the original injury, even if we were to find that she established a case of negligence.
Affirmed. | [
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Lyle Brown, Justice.
Appellant All-State Supply, Inc., sought to enforce the provisions of an employment contract between it and appellee, Alva Claude Fisher. That contract prohibited Fisher from accepting any employment with any competing firm for a designated period. The trial court denied relief and All-State appeals. The single point for reversal is: “The restrictions imposed in clause twelve of the parties’ contract as to time and space and the sum stated as liquidated damages were reasonable and necessary for the protection of a legitimate business interest of appellant and should be enforced.”
Appellant, headquartered at Little Rock, is engaged in the sale, mostly to schools, of audio-visual equipment, closed circuit television, school supplies, furniture, and other school equipment. It does a statewide business, operating through outside salesmen who make bids on school needs. The 1971 sales were approximately $900,000, most all of which were made inside the State. When appellee was employed, May 1, 1967, a salesman’s contract was executed between the parties. Appellee bound himself not to engage in any business in Arkansas which would be in competition with appellant for a period of two years after termination for any reason. It was.also agreed that in the event of violation of that provision the appellee would pay to All-State $500 per month as liquidated damages. In March 1971 appellee submitted his resignation and went to work for Moser Manufacturing Co., a statewide competitor of appellant. All-State unsuccessfully sought to enforce the provisions of the non-employment agreement. The court held that no trade secrets were involved, that no unusual training was afforded appellee by appellant, and that the contract was against public policy.
Paul H. Power, president of All-State, is chief executive of the corporation and the majority stockholder. Power testified that it takes time — approximately two years for a new salesman to reach his potential; that he must become acquainted with the customers and their method of buying; that it takes approximately the same period of time to really learn the merchandise; and that it takes about two years for the pricing information, which is coded and kept confidential, to become antiquated. Power said the limitation covered the State because that is the territory in which All-State is active. The figure of $500 a month as liquidated damages, for twenty-four months, was the estimated loss that All-State would suffer during that period by the loss of an experienced salesman. He further testified that “Since Mr. Fisher (appellee) has left our employ and gone to work for Moser, Mr. Fisher has pretty well taken all of the jobs and we have not taken any job from .Moser with the exception of the University Medical Center. Prior to Mr. Fisher’s leaving All-State we underbid Moser on approximately fifty per cent of the jobs.”
David Broyles, sales manager for appellant, related the investment made in the salesmen. They are shown the products for sale and are instructed in the demonstration of the equipment. This is done inside the office and takes a matter of days; the profit markup (coded) is explained to the new salesman; then an experienced officer with All-State goes out in the field to guide the new salesman and to introduce him to the customers. He explained the origin of the price lists: “The price lists which are furnished to us by our exclusive manufacturers for whom we are distributors are not known throughout the industry in the State of Arkansas or by our competition. They are price sheets and if our competitors knew what our prices were, they would know what to bid to beat us”. As to appellee’s earning capacity with All-State, the witness said appellee collected over $17,000 in commissions in 1970.
Appellee was his only witness. He conceded that when he went to work for appellant he had no previous sales experience. He also admitted that he had to have some training but insisted that it was not intensive. He was taught by factory representatives on how to operate and demonstrate various pieces of equipment. He was rather indefinite about the extent of his training. He did not deny the extent of the training as related by Paul Power. He conceded that if All-State was receiving set prices from its manufacturers as exclusive distributor and that if All-State’s competitors knew those prices, it would give the competitor a decided advantage. He said that his present employer, Moser, operated throughout the entire State and in competition with All-State. He agreed that Moser keeps their prices confidential. He admitted that when he left All-State he took the knowledge of All-State’s code with him; in fact he said he took the catalog of one of All-State’s exclusive suppliers, General Equipment and Supply Company. He also made this candid admission: “When I submit bids against All-State now I take into consideration to a certain extent the knowledge I learned at All-State as to their exclusive manufacturer’s cost and profit rate.” He also stated that he was selling for Moser in about three-fourths of the State. In his defense he testified that he could not remember all the prices in All-State’s manufacturers’ catalogs. He álso said that periodically the costs of items change but he did not venture to estimate the time involved.
In determining the reasonableness of the restraint in a case of this nature the particular facts of each case must be examined. McLeod v. Meyer, 237 Ark. 173, 372 S.W. 2d 220 (1963). In passing on its reasonableness the most important factors are the time and the area. Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S.W. 2d 185 (1947). Also see Borden, Inc. v. Smith, 252 Ark. 295, 478 S.W. 2d 744, (April 10, 1972).
After carefully analyzing the abstracted testimony, the highlights of which we have recounted, we think the preponderance of the evidence shows the contract to be fair and reasonable from the standpoint of time, area and agreed liquidated damages. That conclusion is based principally upon the recited testimony of witnesses Power and Broyles, a greater portion of which is undisputed. As to the element of time, the evidence was that a salesman reaches his potential after some two years of experience and that it takes about that time for the confidential coding information to become antiquated. As to area, it is undisputed that appellant operates .statewide, and appellee is covering three-fourths of the State with the merchandise of All-State’s competitor. As to liquidated damages, it was testified that the monthly amount represented a fair estimate of the loss to appellant. Then to show the harm that was done appellant, it was undisputed that since appellee joined Moser he had underbid All-State on most of the jobs wherein they competed.
Appellant is entitled to recover from appellee $500 per month, up to twenty-four months, measured by the number of those months appellee is, and was, employed by Moser.
Reversed. | [
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Conley Byrd, Justice.
Albert Rice sustained a broken leg while working for Anchor Construction Company. The healing period was complicated by a fat embolism which resulted in some temporary difficulty in breathing. Admittedly Rice was left with a resulting angulation of his left leg which the only medical witness evaluated as a 15% ^permanent partial disability to the left lower extremity from the hip down. Rice claimed and produced some evidence .to show a wage earning loss. The Workmen’s Compensation Commission awarded a 25% disability to the left lower leg under the scheduled injury section, Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960). Both parties have appealed. Rice contends that there is substantial evidence in the record to support an award of permanent partial disability to the body as a whole, up to 50%. Anchor Construction contends that any award for the scheduled injury in excess of the 15% functional disability to the left, lower extremity is contrary to law.
Rice testified that he was 49, had only a fourth grade education and his job experience was as farm labor, sawmill work, truck driving and some rough carpenter work. He had a lump in his throat where the tracheotomy was performed, his left foot angled out and swelled and hurt when he stood on it for a long period. He could no longer do logging and timber work because of his foot and could not do carpenter work because of his inability to climb ladders. He was making $2.00 per hour and averaging 60 hours per week with a total income of $140.00 per week before the accident. He is now averaging $42.00 per week working at a sawmill where the boss lets him sit down when he is tired. He had worked only one 40 hour week between Christmas and the hearing in April. He testified that his sinus and ulcers were problems of general health. He was making a claim for a loss of hearing because of a buzzing noise.
Dr. Carl M. Kendrick testified that when he first saw Rice on January 29, 1968, his condition was critical. Rice has a broken leg which was complicated by a fat embolism. He did a tracheotomy and Rice had a full and complete recovery from the fat embolism and the tracheotomy. He did not make any tests to determine if Rice had suffered brain damage or hearing loss. The biggest test, however, is conversing and talking with the patient and based upon his observation, Rice had made a. complete recovery. It was also inconceivalbe to him that Rice would have had a hearing loss that would not have healed on its own.
Dr. Kendrick, in rating Rice as having a 15% functional disability to the left lower extremity below the hip, took in consideration the angulation of Rice’s foot, that he could not do everything required of him in his usual line of work, that weight bearing for a long period of time will cause swelling and that at intervals he will have pain and swelling in his leg for the rest of his life.
As we view the record the Commission properly found that there was no permanent disability to any part of the body except the left lower extremity below the hip. Of course this reduces the permanent injuries to a scheduled injury under Ark. Stat. Ann. § 81-1313 (c). In Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971), we held that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. See McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966).
We now come to the issue of whether the Commission in fixing partial loss or partial loss of use of a limb under schedule (c) can consider a wage earning loss in addition to the functional loss. We hold that they cannot. The reason for construing statutes, such as ours, in this manner is set forth in Larson, Workmen’s Compensation § 58.10 in this language:
“Schedule benefits for permanent partial disability are authorized by the statutes of all American jurisdictions, but not under Canadian laws.
“The typical schedule provides that, after the injury has become stabilized and its permanent effects can be appraised, benefits described in terms of regular weekly benefits for specified numbers of weeks shall be paid, ranging, for example, from 312 weeks for an arm, 288 for a leg, and 160 for an eye to 38 for a great toe and TA for one phalange of the little finger. Thses payments are not dependent on actual wage loss. Evidence that claimant has had actual earnings, or has even been regularly employed at greater earnings than before, is completely immaterial.
“This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively, presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience. The effect must necessarily be a presumed one, since it would be obviously unfair to appraise the impact of a permanent injury on earning capacity by looking at claimant’s earning record for some relatively short temporary period preceding the hearing. The alternative is to hold every compensation case involving any degree of permanent impairment open for a lifetime, making specific calculations of the effects of the impairment on claimant’s earnings each time claimant contends that his earnings are being adversely affected. To avoid this protracted administrative task, the apparently cold-blooded system of putting average-price tags on arms, legs, eyes, and fingers has been devised.”
Since the Commission obviously used the wage earning loss to arrive at an award in excess of 15% to the left lower extremity below the hip, it follows that the Commission erred in entering an award in excess of the 15% functional loss.
It has been suggested that perhaps Rice would be entitled to some relief under Ark. Stat. Ann. § 81-1313 (b) (Repl. 1960), which provides:
“In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five per centum [65%] of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.”
However, as we interpret subsection (b) the term “temporary partial disability” refers to the phase of permanent partial disability where the employee, although able to work at some gainful occupation, is still suffering from the effects of the injury, which effects may reasonably be anticipated to disappear within the time fixed for compensation. Here the evidence shows that Rice’s injuries had become fixed by December 5, 1969.
Reversed and remanded.
J. Fred Jones, Justice.
I agree with the majority that this case must be reversed but it is not as obvious to me, as it appears to the majority, that the commission based its award of 25% loss in the use of Rice’s injured leg on a wage earning loss. It is my feeling that in the light of Mr. Rice’s testimony as to what he could and could not do as well after his injury as before, the Commission may well have concluded that Dr. Kendrick was low in his estimate that Rice only had a 15% loss in the use of his leg. Dr. Kendrick testified, however, that he took into consideration the elements testified to by Mr. Rice in arriving at his estimate of 15%. I agree there is no substantial evidence to support an award greater than the 15% testified to by Dr. Kendrick. If the Commission felt that Mr. Rice did suffer a greater loss in the use of his leg than the 15% estimated by Dr. Kendrick, the Commission should have ordered additional medical examinations as it had a right to do under the statute. [Ark. Stat. Ann. §§ 81-1511 and 1319 (i) (Repl. I960)].
We are concerned here with the loss in the use of a body member scheduled under subsection (c) and I agree that the amount payable is fixed by statute. I also agree that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) cannot be apportioned to the body as a whole and that we laid that question to rest in Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971). It is my opinion, however, that the case at bar calls for a clear distinction between permanent disability and just plain disability when both may result from injuries scheduled under subsection (c).
The main purpose, if not the only one, in attempting to predetermine the permanency of disability in terms of percentage of total disability, is for the purpose of lump sum settlements. Such purpose and attempt are entirely legitimate and proper under the statute when, but only when, the disability is definitely permanent, and it is in this difficult area that most of the litigation arises in workmen’s compensation cases. The case at bar presents the interesting question of law as to whether an employee, who sustains a compensable injury scheduled under subsection (c), may receive compensation for wage loss disability in addition to the amount payable for a permanent loss scheduled under subsection (c). In McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966), we said that he can, and in the case at bar, as I interpret the majority opinion, we say that he cannot unless the disability is total.
In McNeely, supra, the claimant sustained a scheduled injury resulting in the total loss of his leg below the knee and was paid the maximum benefits for his permanent disability as fixed by statute under schedule (c) amounting to 125 weeks compensation. After the loss was determined and McNeely was paid the statutory amount under subsection (c), he was still on crutches and unable to work and filed a claim for additional benefits. The Commission found him to be totally disabled but very properly refused to “guess” as to how permanent his total disability would be, and simply awarded compensation for total disability and we affirmed. We have no further record of what happened in McNeely’s case but if he continued to be totally disabled until he was paid the maximum compensation benefits payable for total disability, the duration of his compensable disability and the total amount he received amounted to exactly the same as for permanent total disability, the only difference being in the manner which the payments were made. McNeely could only have been paid in weekly payments during the course of his total disability and could not be paid in one lump sum for permanent disability over and above the 125 weeks for the permanent loss of his leg below the knee under schedule (c).
In the case at bar the claimant-appellee Rice’s injury was under exactly the same schedule as was Mc-Neely’s. The only difference in the two injury losses is that McNeely sustained a total loss of the leg below the knee, and Rice sustained a partial loss of use of the entire leg. As already pointed out, subsection (c) is the only provision for permanent disability in a scheduled injury, and the amount set opposite each scheduled injury in subsection (c) is the maximum amount payable for permanent disability as a result of such injury; a maximum of 175 weeks in the case at bar and 125 weeks in McNeely.
Now if Rice’s partial loss of use of his leg had rendered him totally unable to work at gainful employment, he would be entitled to continued total disability benefits under our decision in McNeely. But what of Rice’s situation if because of his scheduled injury, he had only been able to earn one-fourth the wages he earned prior to his injury? Under the majority opinion as I interpret it, he could receive nothing in addition to 15% of 175 weeks for the loss in the use of his leg. What of McNeely had he not been totally disabled from gainful employment but only 75 or 80% disabled? Under the majority opinion as I interpret it, he could receive nothing in addition to the 125 weeks he received under schedule (c).
McNeely was awarded total disability under the first sentence of § 81-1313 (a) which is as follows:
“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. . .”
I agree that in the case at bar, Rice did not prove a loss in earnings caused by his injury but had he done so, or if McNeely had proven a partial wage loss because of the injury in his case, it is my opinion that both should have been compensated under § 81-1313 (b) which is as follows:
“In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five per centum [65%] of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.”
In Moyer Brothers v. Poe, supra, we said:
“If the employee’s earning capacity has been diminished or destroyed by such permanent partial disability [from a scheduled injury under (c)], he may be entitled to workmen’s compensation benefits even to the extent of permanent total disability.” (Emphasis and bracketed portions added).
Thus, subsection (a) is the only section of the statute under which compensation may be awarded for just total disability and subsection (b) is the only provision of the statute under which compensation may be awarded for just partial disability. Subsection (b) is as valid as subsection (a) and I am unable to see how an injured employee, who has suffered a permanent injury under subsection (c), can be entitled to total disability benefits under subsection (a) and not be entitled to partial disability benefits under subsection (b), if and when the factual evidence in a given case would justify an award of such benefits. Under the facts as presented by the evidence in this case, I concur in the reversal.
This section as originally enacted in 1939 and adopted under referendum in 1940, limited temporary partial disability benefits to 350 weeks or $7,000.00. This limitation was eliminated when the section was amended in 1949 to its present form by initiated Act No. 4 of 1949. | [
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George Rose Smith, Justice.
In 1968 the appellees, A. F. Madeira and his wife, who were then living in Florida, bought a fairly old house in Eureka Springs, Arkansas They employed one of the appellants, Maruitz E. Friberg, an architect, to prepare plans and specifications for exten sively remodeling the house and to supervise the actual remodeling job. The Madeiras employed the other appellant, Mack Clark, as the principal' contractor for the project. The architect, for his services, was to receive 6% of the total cost of the work. The contractor was to receive his actual expense for labor and material, plus 10%.
Written contracts were drawn by Friberg and were executed by the Madeiras with Clark and with three subcontractors. The contracts contemplated that the entire job would cost about $23,000 and would be completed in 90 days. The job eventually cost about $43,000 and was completed in about 15 months. The Madeiras brought this action for damages for breach of contract, asserting negligence, incompetence, poor workmanship, and unnecessary delay in the completion of the project. The jury returned a verdict for $5,000 against Friberg, the architect. The verdict against Clark, the contractor, was for $2,344.01, which was the same amount that the jury found to be still owed by the Madeiras to Clark upon his contract.
The parties have not brought up the complete record, but apparently the issues were submitted to the jury upon ten special interrogatories. For reversal Friberg first contends that the court erred in not submitting to the jury an interrogatory to determine the amount still due to Friberg upon his 6% fee. No error is shown, for the record before us does not indicate that there was any request for the court to submit such an interrogatory. Christensen v. Dady, 238 Ark. 577, 383 S.W. 2d 283 (1964); Mizell v. West, 299 Ark. 224, 314 S.W. 2d 216 (1958).
Alternatively, Friberg argues that the court should have granted his motion for judgment notwithstanding the verdict. Such a motion would have been proper if the undisputed testimony had established Friberg’s right to recover. Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962). Friberg is mistaken, however, in arguing that he was in any event entitled to a 6% fee upon the total cost of the project. One cannot profit by his own wrong. Consequently an architect whose cost estimate is culpably below the actual cost of the job is not entitled to a commission upon the excess. Miller v. San Francisco Church Ext. Soc., 125 Cal. App. 85, 13 P. 2d 824 (1932); Edwards v. Hall, 293 Pa. 97, 141 A. 638 (1928); Headlund v. Daniels, 50 Utah 381, 167 P. 1170 (1917). Our decision in Almand v. Alexander, 180 Ark. 947, 23 S.W. 2d 611 (1930), is essentially to the same effect. We must conclude that the motion for judgment notwithstanding the verdict was correctly denied.
Clark, the contractor, insists that the jury’s verdict against him for $2,344.01 is not fully supported by the evidence. With that contention we agree. The Madeiras asserted causes of action against Clark both for his failure to perform the work according to the plans and specifications and for his failure to complete the work within the time fixed by the contract. Both issues were submitted to the jury by special interrogatories. In response to Interrogatory 6 the jury found that Clark had performed the work and furnished the materials, in compliance with the contract. Pursuant to that finding the jury further determined that the Madeiras still owed Clark $2,344.01 on the contract. By Interrogatory 10 the jury found that Clark did not perform the contract (as modified by the parties) within the time specified. Damages caused by that delay were fixed by the jury at $2,344.01.
We do not agree with the appellees’ argument that in response to Interrogatory 10 the jury could have awarded damages for breach of contract in addition to damages for delay. The jury had already determined, in response to Interrogatory 6, that Clark performed the contract according to the plans and specifications. That finding left in issue, under the interrogatories, only the possibility of damages for delay. Upon that question the proof as abstracted sustains only an award of $342.16 for the rental of accommodations occupied by the Madeiras while they were forced to wait for the completion of the remodeling project. No other compensable pecuniary loss is shown. Although there is proof that Clark was unnecessarily slow in completing the work, the jury apparently was not furnished with sufficient facts to support a determination of the pecuniary loss that resulted from Clark’s slowness. The judgment against Clark must therefore be reduced to $324.-16, which leaves a net award of $2,019.85 in Clarks favor.
In considering the case we have been handicapped by the fact that the parties have included in the record only the testimony adduced by the Madeiras. We have considered in conference the possibility of asking the Madeiras to supply the rest ot the testimony, but such a request would not be justified in the situation before us. The appellants at first designated for inclusion in the record only the Madeiras’ testimony on chief. The appellees then designated the rest of the testimony, but the appellants failed to comply with that designation when they lodged the record here. In that situation the appellees could have moved for a dismissal of the appeal, if the appellants refused to supply the deficiency. Ark. Farmers Assn. v. Towns, 232 Ark. 997, 342 S.W. 2d 83 (1961). Instead, the appellees aquiesced in the appellants’ failure to bring up the complete record, doubtless because the missing testimony would not have been beneficial to the appellees. Hence we must treat the record as having been abbreviated without objection, which precludes us from assuming that the jury’s verdict is supported by matter omitted from the record. Ark. Stat. Ann. § 27-2127.6 (Repl, 1962); Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962).
Modified and affirmed.
Byrd, J., dissents. | [
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Lyle Brown, Justice.
Petitioner was charged in the Newport Municipal Court with the offense of disturbing the peace. She filed a motion to quash the affidavit for warrant of arrest and the warrant itself. The motions were overruled and she was convicted. She appealed to the Jackson County Circuit Court where she renewed her motions to quash. When they were overruled she filed in this court her petition for a writ of prohibition. Prohibition does not lie unless the court is wholly without jurisdiction of the subject matter, or where there is no adequate remedy by appeal or otherwise. State ex rel Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33 (1969).
The jurisdiction of the respondent to try the accused was not affected by any deficiency in the affidavit for warrant or the warrant itself. Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96 (1971); Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221 (1969); Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859 (1960). Finally, it cannot be questioned that petitioner, had she been convicted in circuit court, would have had a right to appeal.
We have not overlooked the citations of authority from federal jurisdictions. They deal mostly with search warrants. Others interpret the federal rules of. criminal procedure. We are convinced that our cited holdings are not repugnant to any decision of the United States Supreme Court.
Petition denied. | [
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George F. Hartje, Special Justice.
This action was brought against Kelly Bryant, as Secretary of the State of Arkansas, to require him, under a mandamus proceeding, to approve and accept several bids submitted by appellant, International Graphics, Inc., on state printing contracts. Appellant had submitted its bid in response to a Notice to Bidders on the appointed day and prior to the 10:00 a.m. deadline. The testimony is not in conflict as to what followed. About 11:30 a.m. while bids were being opened and read, but prior to any of appellant’s bids being opened and read, appellant notified the Secretary of State that it had not executed the general provisions included with the bids as required by the Official Instructions to Bidders Upon State Printing Contracts and offered to substitute signed copies of the general provisions at that time and was refused by the appellee. Later, when its bids were opened, appellant was the apparent low bidder on several contracts to be awarded, but the contracts were awarded to other bidders upon the grounds that the appellant had failed to meet all of the requirements for a qualified bidder, and that its bid was not acceptable.
The lower court dismissed the petition for Writ of Mandamus but found by way of declaratory judgment that appellant was the lowest responsible bidder and should have been awarded the contracts. Appellant appealed from the dismissal of its mandamus action, and appellee cross appealed from the finding that appellant was the lowest responsible bidder.
The Official Instructions to Bidders Upon State Printing Contracts provided in paragraph 4:
“A properly executed copy of the form entitled ‘General Provisions Applying to all State Printing Contracts’ must be attached to each bid upon each contract.”
These general provisions are a very important part of any state printing contract. They, specifically set forth the answers to various questions and requirements of the contract as to the quality of workmanship acceptable, the procedures to be followed, questions regarding overruns and underruns, delivery methods and charges, quality of products to be used, items which become the property of the State of Arkansas, etc. Without the general provisions a printing contract is incomplete. The general provisions are, in effect, the “fine print” of the contract and official, requirements and instructions to each bidder are that they will be properly executed. In this instance a proper execution would require the signature of the bidder or its representative. The appellant argues, however, that the bid as executed by it contained wording
“(that the work will be done) in compliance with the attached general provisions for the state printing contracts as fixed by law,”
and that although it did not execute the general provisions, they were incorporated by reference in its signed bid, and thus their execution was not required. Where a written contract refers to another instrument and makes the terms and conditions of such instrument a part of it, the two will be construed together as the agreement of the parties. See Am. Jur. 2d Vol. 17, Sec. 263, page 666.
Here there was no contract, only an offer to contract which sought to incorporate by reference the general provisions which specifically provided:
“A copy of these provisions is to be signed, attached to and made an integral part of each contract bid upon.”
The general provisions also contained a prepared place for the signature of the bidder or its representative. This requirement of execution is not a harsh or impossible one and was well known to appellant, who had bid upon state contracts properly in die past and who had at one time, according to the testimony, printed many copies of the Official Instructions to Bidders Upon State Contracts for the appellee. No contract having ever been entered into between the parties to this action, it follows that the general provisions were not incorporated by reference, because it was the clear intention of the appellee that the completed contract include a properly executed agreement to the general provisions.
It is quite possible that should appellant have subsequently determined that the contracts were unfavorable, it might well have taken the position that it was not bound to perform in accordance with the general provisions, it having not executed them specifically as required. Not only that, but if appellant’s bid had been accepted, the other bidders who had executed the general provisions and thus complied with all requirements, could well feel that they had been treated unjustly and unfairly.
The appellant did not submit a proper bid upon the printing contracts sought by it and denied it, and thus it was not the lowest responsible bidder as by law required. The appellee was correct in rejecting the improperly submitted bid.
The judgment is reversed on cross appeal, and thus the questions raised on the direct appeal become moot.
Holt, j., not participating. | [
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Smith, J.
Hall was indicted for carrying a pistol as a weapon; and on his motion the indictment was quashed because, simultaneously with the preferring of this, charge, the grand jury had also indicted him for murder; it being admitted that the two indictments referred to the same transaction. The court seems to have considered that the wearing orarais was the first step in the commission of the homicide and that the misdemeanor was merged m the felony.
It was a rule of the common law, that where the same criminal act fell within the definition of a misdemeanor and likewise of a felony, the less culpable offense was-extinguished in the higher. Thus robbery included an. assault. On an indictment for the felony, there could be no conviction for the constituent misdemeanor; and conversely, if the offense charged was a misdemeanor,. but the proof showed a felony had been committed, the prisoner must be acquitted, but could subsequently be preceeded against for the larger crime. 1 Bishop Cr. Law, sixth Ed. secs. 786-7, 804, et seq; 1 Wharton Cr. Law, 9th Ed. secs. 27 and 27 a; Rex v. Evans, 5 Carr & P. 552, [24 E. C. L. R. 704]; Regina v. Anderson, 2 Moody & Rob 469. For limitations of the doctrine, see Bank Prosecutions, Russell & Ryan, 378; Regena & Button, 3 Cox Cr. Cases, 229.
This rule has been essentially modified, if not overturned by the following provisions of Mansfield’s Digest: l'Sec. 2288. Upon an indictment for an offense consisting of different degrees, the defendant may be' found guilty of any degree not higher than that charged in the indictment and may be found guilty of any offense included in that charged in the indictment.”
Sec. 2291. When the proof shows the defendant to be guilty of a higher degree of the offense than is charged in the indictment, the jury shall find him guilty of the degree charged in the indictment.”
‘ “Sec. 2177. Where an offense consists of different degrees, a conviction or acquittal by judgment upon a verdict shall be a bar to another prosecution for the offense in any of its degrees.” Compare State v. Nichols, 38 Ark. 550; Southworth v. State, 42 Id. 270; Davis v. State, 45 Id. 464.
So that in our law, there is but little room for the operation of the doctrine of merger; but a person may, at the election of the State, be prosecuted for any crime which can be carved out of his act. ‘
. Still it is a fundemental principle, as observed by Cockburn, C. J. in Regina v. Elvington, 9 Cox Cr. Cas. 86, that out of the same facts a series of charges shall not be preferred. "Our bill of. rights declares-that no person, for the same oflense, shall be twice put in jeopardy of life or liberty. And Section 2130 of Mansfield’s Digest provides: “If there shall be at any time, pending against the same defendant two indictments for the same oflense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.”
But neither the offense nor the matter can be said to be the same, when the two indictments are so diverse as to preclude the same evidence from sustaining both and when each indictment sets out an offense differing in all its elements from that in the other, though both relate to one transaction. 1 Bishop Cr. Law, sec. 1051.
Now murder and the carrying of weapons have no necessary relation to each other. They are not parts or degrees of the same offense; nor do the same ingredients enter into both. A person might at same time commit both offenses and be justly punishable for both. The two indictments would be entirely dissimilar; and a conviction or acquittal upon one would have no effect upon the other prosecution.
The judgment of quashal is reversed and cause remanded with directions to require the defendant to plead to the indictment. | [
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-■OPINION.
CocKRiLL, C. J.
In view of the principles announced in Fink v. Ehrman Bros., 44 Ark. 310, and Gauss Sons v. Doyle & Co., 46 Id. 122, we cannot say that the circuit judge who heard the evidence .and tried the issue, was not warranted in sustaining the attachment. The •question was one of fact, and upon the authority of those cases, the courts conclusion may be easily justified.
There is no evidence in the record to sustain the con-, fention that the plaintiffs in the attachment induced Ward to execute the mortgage .. . ,,. . ,
Hicks appears clearly and unequivocally as plaintiff; in. the body or the complaint. It isimmaterial that his name,, •does not appear in the caption. If others, who were sup posed to be interested in tbe notes sued on with him, were improperly joined" as plaintiffs, the objection should have been made in proper time in the trial court.. In no event did it concern the interpleader, Collins. Sannoner v. Jacobson, 47 Ark., 31.
Affirm. | [
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Cockbill, C. J.
The county clerk and the collector-of taxes of Mississippi county are the appellants in this-cause. The appellees, whose lands had been sold for the non-payment of taxes, filed their complaint against the officers named and some of the purchasers at the tax sale to restrain the execution of tax deed», conveying their lands to said purchasers. A temporary restraining order was issued,. No defence was made by any of the defendants. The complaint, which alleged irregularities in the assessment and notice and time of sale — any of which would have .avoided it — was taken as confessed. The court made a ■special finding of facts, presumably upon sufficient evidence, though the record does not contain it, to the effect not only that the irregularities mentioned ^existed, but also that, pending the suit, the appellees “paid the several amounts of taxes, penalty and costs that appear above herein opposite each tract of said land, and that the same were paid under protest, reserving their respective rights to test the legality of said penalty and costs.-”.
Whereupon the forfeitures and sales were declared illegal, the order restraining the execution of deeds was made perpetual, and it was decreed that the “ appellees recover back the penalties by them paid, and that each of them should be entitled to set off the several amounts of penalties paid against any future taxes that might be imposed or assessed upon their respective lands,”
It is the latter feature of the decree that the officers, who alone have appealed, complain of.
To whom the taxes and penalty were paid by the ap-pellees, and what became of the fund, is not made clear hy the record. The two years allowed for redemption had expired when the complaint was filed, and the money was paid thereafter. As no effort was made by any one to sustain the sale, and the purchasers, who were made parties, have not appealed, we presume the appellees followed the statutory method to redeem by paying the funds into the county treasury as though- the statutory period had not expired. Their proper course would have been to tender the amount for which their lands were'liable with their com plaint, and if they were not in fault in the non-payment of their taxes, the court could have granted them relief without exacting the payment of the penalty or by returning it to them if it was under- the control of the court. Hickman v. Hempner, 35 Ark., 505; Railway v. Alexander, 49 Id., 194. But the money was not brought into court or placed subject to its order. If it be conceded that the appellees are entitled to the return of the penalties paid by them it does not follow that the decree which awards the return is right. Against whom should it be rendered ? Not against the clerk or collecter, who were the appellants, because the fund has never been subject to the ccntrol of cither.' But the decree does not seem to contemplate a recovery from any one. The effort to make the excess thus paid a set-off in favor of the land-owner against taxes thereafter to be assessed against the land, cannot be sustained upon any theory.
It is an attempt to adjudicate the rights of the state, county and other beneficiaries of the taxes thereafter to be raised, and to declare them satisfied in advance, with.out having any of the parties before the court. Besides, taxes are not the subject of set-off. “The nature and use of these contributions is such that nothing can retard the payment of them.” Domat, sec. 2299. No one can read the provisions of our statutes and come to a different conclusion.
If the appellees have a legal claim for overpayment against the state, county, or other party, they occupy .the position of creditors .only, and must avail themselves of whatever remedy the law affords for their relief.
They cannot set off the amount thus due against taxes to b.e paid on the lands. ,.
That part of the decree .granting such relief will be vacated ; otherwise the decree is not disturbed.' | [
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C. B. Moore, 'Special Judge.
This case is no stranger ■here. This court has met it, and has introduced it to the public on two former occasions, once as reported in 38th Ark., page 557, and again as reported in 48th Ark., page 515.
In 1878, appellant instituted suit, at law, against the appellees, in the circuit court of Hempstead county, where they resided, on a bond executed by appellees in a contract for building a bridge. Appellees answered, denying the forfeiture of the bond, and claiming pay tor the bridge.
The cause was transferred to the equity docket, and resulted in a decree in favor of appellees for $1300, the value of the bridge, and $318.50 for interest that had accrued, making total amount of the decree $1618.50. This decree was rendered February 3d, 1880. On appeal, the decree was, in all things, affirmed by this, court. See Nevada county v. Hicks, et al., 38 Ark., 557.
After the mandate of the supreme court had been filed and recorded, the appellees made out their account against Nevada county and presented it for allowance to the county court. Pending action of the Nevada county court upon said claim, appellant, to avoid the decree of the court in Nevada couuty v. Hicks, et al., supra, filed her bill in the Hempstead circuit court in chancery, praying for a review of said decree and pleading the act of the general assembly of 27th of February, 1879; which bill was dismissed by said circuit court, on demurrer, and the decree of the Hempstead' circuit court in chancery, dismissing said bill, was affirmed,, on appeal, by this court, in State ex el. Nevada county v. Hicks, 48 Ark., 515.
After .this decree Nyas affirmed, appellees pressed their-claim to a determination in the circuit court of Nevada, county.
One of the items in the account presented is for $307.51,. being interest upon said original'decree, from the date of its rendition in the Hempstead circuit court, until the presentation of said account to .the Nevada county court, on the-2d day of April, 1883: The' allowance of the'account was-resisted in the couuty court, principally on the ground of said item of interest, and the whole aécount was, by the county court, disallowed, and the order disallowing it was. appealed to the Nevada circúit court.
The case was heard by the Nevada circuit court, which among other things, adjudged that the appellees should recover from the appellant the sum of $704.05 for their interest on said claim, from the date of the rendition of the decree in the Hempstead circuit court on February 3d, 1880, until the.date of the judgment here appealed from by the Nevada circuit court, being interest at six per cent, on said decree-in the Hempstead circuit court from the time of its rendition, until the time of the judgment here appealed from.
The appellant excepted to so much of thejudgment as allowed said interest aiid appealed to this court.
The issue made, and the only question here presented is as-to the correctness of the court below in rendering judgment against Nevada county for interest, upon the amount of the áecree rendered by the Hempstead circuit court ou February 3d, 1880.
The learned counsel for appellant earnestly argue insist that the allowance-of interest on any claim, or decree, against a county contravenes the provision of tion 1, Article XVT of the constitution, which counties to issue any interest-bearing evidences of indebtedness. This position is not tenable.
The interest allowed in a judgment, where interest is not stipulated for in the contract sued on, is not by virtue of the contract between the parties to the suit, but is by operation of law, and is in the nature of a penalty provided by the law for delay in payment of the principal sum, after it becomes due.
In the case of a judgment rendered against a county,, by a court of competent jurisdiction, the rendering of' the judgment cannot, in any just or reasonable sense, be regarded as a contract by the county. The judgment, is the decision or sentence of the law fixing the amount due, and we fail to see how the allowance of interest in a judgment on a claim due by a county can be construed as the contract of a county to pay interest — or as the issuing by the county- of interest-bearing evidences of indebtedness.
The interest on every judgment, of course, ceases to run when the judgment is paid. The usual mode of discharging a judgment or any claim against a county is by the issue of county warrants. Such warrants do not and cannot be made to bear interest — this being prohibited by the above cited article of the constitution — and as construed and decided in the case of Jacks & Co. v. Turner, Sheriff, etc., 36 Ark., p. 89. This is all that is decided in Jacks v. Turner.
Appellant constructs an ingenious argument, based on the act of February 27th, 1879, forbidding the suing of counties, and concludes that, as no suit can be brought against a county and prosecuted to judgment, and no effects or property óf a county can be sold to satisfy a judgment — sections 4740 and 4741 of Mansfield’s Digest contain no authority for tbe allowance of interest against a county,
It seems hardly necessary to pass upon the point raised in this part of the argument of appellant — in view of the decision in State ex rel. Nevada County v. Hicks et al., in 48th Ark., 515.
However, we proceed to remark, that the sections of the statute above mentioned provide that all judgments, where there is no contract for more than six per cent, ■shall bear that rate of interest, “ until the effects are sold or satisfaction be made.”
There is no exception here in favor of counties or any other judgment debtor. In the case of a county, the “ satisfaction made ” would be by paying money, or by issuing county warrants, as its effects cannot be sold. The argument of appellant would have applied with equal force before the passage of the act of February 27th, 1879 — and, if sound, no interest ever was legally collectable on a judgment against a county.
Whilst it is true that by the act of February 27th, ' 1879 eounties cannot be sued, m the ordinary way of bringing suits, still, judgments may be, and are, rendered against them. Every allowance of a claim by the county court is a judgment; and, unquestionably, when an appeal is prosecuted from the action of the county court in allowing or rejecting a claim, the decision of the appellate court is a judgment — and when the judgment of the county court is reversed the j udgmént of reversal, when certified to the county court, is required to be entered as “the judgment of the county court.” [See section 2, Act of Feb. 27th, 1879.] Since all judgments, without exception, by sections 4740, 4741 of Mansfield’s Digest, bear interest, the conclusion cannot be escaped that the judgment or decree of the Hempstead circuit court, on which the judgment under consideration is based, should bear interest.
Appellant also calls attention to the fact that the decree of the Hempstead circuit court of February 3d, 1880, did not provide for interest in the decree.
The statute provides that judgments shall bear interest —[and decrees are judgments] — and whilst it is proper to mention the interest that a judgment should bear — and semble — necessary where the rate is to be more than six per cent — the judgment or decree will bear interest whether noted in the recoi’d entry of the decree or not,
“ Interest upon a judgment which is. secured by positive law is as much a part of the judgment as if expressed in it,” says the supreme court of the U. S. in Amis v. Smith, 16 Peters, 303. See also Jerome v. Com’rs., 18 Fed. Rep., 873.
An argument is further made by appellant to show that counties should be classed as sovereign governments, equally with the state or United States, and, therefore, never liable to pay interest, because (theoretically) governments are supposed to be always ready to pay their just debts.
Counties never were sovereign — and they partake less of sovereignty now, perhaps, than before their disincor-poration by the act'of February 27th, 1879.
This claim has been in the courts till it has grown into large proportions. By a mistaken zeal and jealousy of the supposed rights oí the appellant, her county court has delayed and hindered appellees from collecting their claim for many years, and it would be unconscionable, if it were legal, to confine them to the recovery only of the amount of the original decree, rendered in 1880, — and that to be paid in county warrants — perhaps ot depreciated value. But the law does not require nor warrant this, at the hands of the court.
Let the judgment of the Nevada circuit court be, in .all things, affirmed,
Battle, J., did not sit in this case. | [
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OPINION.
Cockrill, C. J.
The doctrine announced in Ryan Boyd, 33 Ark., 778, that an officer’s false return of service of process, shall not preclude the defendant from the truth in a proper proceeding to be relieved from the burden of a judgment based thereon, is, we think, sustained by reason and the weight of authority. Gregory v. Ford, 14 Cal., 138; S. C. 73 Am. Dec., 639 and note; 19 Am. Dec. Note, p. 137; 2 Lead. Cases in Equity, Part 2, p. 370; Duncan v. Gerdine, 59 Miss., 550; Owen v. Ranstead, 22 Ill., 161; Colson v. Leach, 110 Ib., 504; Chambers v. Co., 16 Kans., 270; Blakely v. Murphy, 44 Conn., 188.
The consideration of public policy which requires that a record shall be taken as bearing incontrovertible truth upon its face, [Boyd v. Roane, 49 Ark., 397; Newton v. State Bank, 14 Ark., 12,] yields to the equitable principle that one who .is guilty of no laches shall not be held to pay the penalty of another’s fraud or mistake, if he takes prompt and proper steps to be relieved from the danger of impending injury.
Evidence tending to contradict the record is heard in such cases not for the purpose of nullifying the officer’s return, but to show that by the judgment the defendant has been deprived of the opportunity of asserting his legal rights without fault of his, and that it would be unfair to allow the judgment to stand without affording him the chance to do so. The principle that affords relief to one who has been actually summoned but has been prevented through unavoidable casualty from attending the trial, governs.
Relief is not granted merely because the court assumed jurisdiction of the defendant’s person upon a falsa return of service of process. 2 Story Eq., sec. 898 and n. To warrant interference the false return must have resulted in an injury to the defendant under such circumstances as would reader it unconscionable to permit the judgment to be executed. Gibson v. Armstrong, 32 Ark., 438; Secor v. Wood, 8 Ala., 500; Fowler v. Lee, 10 G. & J., 358; Johnson v. Branch, 48 Ark, 535.
One who is agrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make defense, in order to get relief in equity. Lead. Cases in Eq. Sup. Bently v. Dillard, 6 Ark., 79; Conway v. Ellison, 14 Ib., 360.
The principle, which lets the defendant show the truth against the return of service is not in conflict with the rule which precludes him from traversing the truth of the officer’s return in the cause in which it is made before judgment, [See St. Louis, Iron Mountain & Southern Railway, Ex. parte, 40 Ark, 149; Herman on Estop., sec. 452, p. 540] because he is then put upon his guard in time to prevent an unjust judgment by making his defense to the action; and if he fails to do so, he will be taken as making his election to look to the officer who made the false return for indemnity.
We reaffirm the principle of Ryan v.. Boyd to the extent above stated. But we cannot accede to the doc-tine there announced that a judgment at law will be vacated-in equity where the judgment defendant has no meritorious defence to the action in which the judgment was rendered. Such a rule is contrary to the principle upon which equity interferes in such cases-that is to prevent an unconscionable advantage. If the court ought to have compelled the payment of the demand upon which suit was brought, only a technical and' not a real wrong is done the defendant in entering the judgment against him ; and by affording him the opportunity of offering his defense before the judgment can be enforced, he is not deprived of any constitutional or other right. The rule requiring a showing of merits before relieving against a judgment obtained through unavoidable casualty or misfortune, has always been enforced by this court, both before and since the decision in the case of Ryan v. Boyd. It holds good, it seems, even in cases where the judgment is obtained through fraud. White v. Crow, 110 U. S., 183; Lawson v. Bettison, 12 Ark., 401.
When equity ventures to interfere with a judgment at law because of an officer’s false return of service of process, it is upon one of these well established heads of equity jurisdiction; and the reason which demands the application of the rule in one instance applies also in the other. “ In analogy to its usual course of procedure,” say the supreme court of California in Gregory v. Ford, sup., “it would seem that the judgment plaintiff having acquired without any fraud on his part, a legal advantage, would be permitted to retain it as a means of securing a just debt; and that a court of equity would not take it away in favor of a party who comes into equity acknowledging that he owes the money, and claims only the barren right of being permitted to defend against a claim to which he had no defense. It would certainly seem that it would be quite as equitable to turn the defendant in execution over to his remedy against the sheriff for a false return under such circumstances, as to relieve him from the judgment and turn the plaintiff for redress to the sheriff. For the effect of vacating the judgment now would be to release the defendant from the debt as the statute of limitations has intervened.”
The better established rule unquestionably is, that before a court of equity will relieve against a judgment for want of service on the defendant, the latter must aver and prove that if the relief is granted a result will be attained different from that reached by the judgment complained of. Freeman on Judgments, sec. 498; 3 Pomeroy's Eq., sec. 1364 n. 1; Colson v. Leitch, 110 Ill., sup.; Gregory v. Ford, 14 Cal., sup.; S. C. 73 Am. Dec., n. 644; Taggart v. Wood, 20 Iowa, 236; Secor v. Wood, 8 Ala., sup.; Sanders v. Albritton, 37 Ib., 716; Fowler v. Lee, 10 G. & J., sup.
The statute expressly requires a defense to be shown in all cases in which the proceeding to vacate may be had in the court which rendered the judgment. Mansf. Dig., 3912; Boyd v. Roane, 49 Ark., sup. And whether this case comes within the statute or not, the rule is applicable. Ryan v. Boyd is overruled upon that point.
No question is made on the mode of procedure in this case. The court vacated ’ the judgment which had been rendered against the parties who are plaintiffs here, and counsel present the cause on its merits. We are constrained to reverse the decree. Passing over the requirement of strict proof from the judgment defendant to overcome the effect of the officer’s return of service, sustained as it was by his affirmative testimony that the seivice was had as returned on one of the appellees at least; and conceding that it is proved that the attorney who appeared for the defendants in that action did so without the authority or knowledge of the plaintiffs in this cause, that his appearance therein does not conclude them now, and that they had no knowledge of the suit against them until judgment had been rendered and the term had elapsed, the rule that a defense to the action at law is not satisfactorily showD, is fatal to the decree. If it appeared from the record that the plaintiffs had failed to disclose their defense in this proceeding in reliance upon Ryan v. Boyd, sup,, we would remand the cause to give them the opportunity to do so. But the bill alleges their pretended defence, and they undertook to support it by proof. In both instances they overshot the mark — they alleged and proved too much. An administrator’s bond upon which the names of the plaintiffs in this suit appear as sureties, was the foundation of the action in which the judgment now complained of was rendered. The plaintiffs here say that their defence to the action was that they did not sign the bond or authorize any one to do it for them.
The bond was executed apparently as a sort of family or friendly arrangement, the names .of the plaintiffs being signed in their absence, by one of the sureties at the suggestion of John R. Hill, another surety. John R. afterwardstm' informed the plaintiffs (now the appellees) that they had been made sureties in the bond. According to the testimony of Z. T. Hi-11, one of the appellees, this may have been before the bond was approved by the probate court; according to that of H. L. "W. Hill it was certainly while the administra-trix was acting under the authority of the bond. The allegation of the bill upon this point is that they did not know that they appeared as sureties in the bond until after the same had.been filed and approved in the probate court.
Construing this allegation most strongly against the parties making it,-we cannot say that any considerable time elapsed .between the filing and approval of the bond and the occasion of John R.- HilPs communication to them of the fact that they had been put in as sureties to the bond. They made no protest or objection when informed of the fact or at any other time until their property was seized under the judgment.
The first intimation of disapproval of" the use of their names as bondsmen, was the filing of the complaint in this cause. They knew that the administratrix had qualified and was acting by virtue of the bond upon which they appeared as sureties. They stood by and permitted her to proceed under the bond, thereby. leading the creditors and others in interest to believe that they were sureties for the faithful execution of the trust. After it was believed that the administratrix was guilty of waste, when the liability of the bondsmen was discussed with one of the plaintiffs and in the presence of the other, neither of them intimated that the bond was not his own.
Their silence through all this period indicates acquiescence in the act of their friends in signing their names to the bond, and was an adoption of their acts. “ It is a very clear and salutary rule in relation to agencies that when a principal with the knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterward to impeach them, under the pretence that they were done without authority, or even contrary to instructions. Omnis ratihibitio mandato aequiparatur.” Kelsey v. National Bank, 69 Penn. St., 426; Whart. Agency, sec. 86. If these plaintiffs did not intend to take this liability upon themselves, they should have repudiated the act so that the •creditors might not have been misled to their prejudice. It was too late after the injury was done. The showing made by the plaintiffs induces us to believe that they have no meritorious defence to the demand upon which the judgment was rendered. The decree granting them relief is therefore reversed, and their bill is dismissed. | [
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Battle, J.
This action is on a promissory note made by one Price, as the principal debtor, and by A. B. Hin-son as his surety. The defense of Hinson is, that Grisard & Gist, the payees of the note, received from Price two mortgages on personal property to secure tho payment of the note; and that they negligently'permitted some of the property to be lost afid disposed of,' and thereby lost the right of action against him. On motion-of Hinson this cause was transferred, as to him, from the Eaulkner circuit court, in which it was brought, to the-Eaulkner chancery court. Decree was rendered in favor-of Hinson against G-risard & Gist, and they appealed.
The evidence shows that the two mortgages were executed by Price to secure the note sued on and his account with appellants. One was executed on the 28th of January, 1884, the date of the note, and the other on the 11th of March, 1885. The property embraced in the first was the crops raised by Price in 1884, one mule and some cattle and their increase; and in the second the-crops raised by Price in 1885, and the mule and cattle. Price raised in 1884 three bales of cotton and about sixty bushels of corn. He delivered to appellants two of these bales, which they sold and placed the proceeds,, first to the satisfaction of his account with them for 1884, which was secured by the mortgage, and the overplus to-the part payment of the note. The other bale Price sold and used the proceeds. Price also used the corn. In 1885 he raised one bale of cotton and about one hundred and five bushels of corn. He delivered the bale of cotton to appellants, which they sold and applied the proceeds to the part payment, of his account with them for 1885, which, was secured by the second' mortgage. He sold seven bushels of the corn, dnd used the money and the remainder of the corn of 1885, except ten bushels. Price also sold two of the cows and one yearling described in the mortgage. The remainder of the cattle, except one yearling, and the mule and ten bushels of corn were sold under the mortgages and applied by appellants to the Satisfaction of the account of 1885 and part payment of the note. One yearling still remains-unsold and in the possession of Price.
Appellants at first refused to advance to or credit Price for 1885. Price then procured a writing from Hinson requesting them to advance to Price, on account, such things as he needed for that year, and take a mortgage on his property to secure the note and account, sayiDg that he would still remain liable or bound by the note. At the time he gave this writing he knew that Price had sold the one bale of the crop of 1884. Pursuant to this request the second mortgage was taken.
As to the cattle sold by Price, there is no evidence that they have been lort, ceased to exist, or cannot now be sold to satisfy the mortgages. The fact that they were sold does not release them from the mortgages, or show that Hinson is exonerated from any part of his liability to pay the note.
As to the corn of 1884, Hinson virtually consented that appellants might permit Price to use it when he requested them to let him have such things as he needed in 1885. Price was a farmer and needed the corn. When he gave the writing Hinson knew that Price had used the one bale of the crop of 1884, and waived any advantage he might have had on account of it. Was he entitled to any relief on account of Price using and consuming ninety-five bushels of the corn of 1885 ?
Whenever funds or securities are placed in the hands of a creditor by a principal for the security of a debt, and they are lost through the want of ordiuary diligence of the creditor, the surety bound for the payment of the debt so secured is discharged to the extent of the loss. The creditor, in such a case, assumes the duty of preserving such funds or securities and is bound to be diligent- in the discharge of the duty. If he surrenders or abandons the funds or securities, or fails to perform any act necessary to preserve their validity or legal force and effect, or, in case of the securety consisting of perishable property, he allows it to be taken out of his possession and destroyed, or for the want off ordinary care and attention he allows it to perish and become worthless in his hands, the loss should fall on him and the surety should be exonerated to the extent of the injury. Kemmerer v. Wilson, 81 Penn. St., 110; Pickens v. Yarborough, 26 Ala., 417; Noland v. Clark, 10 B. Mon., 239; Jennison v. Parker, 7 Mich., 355; Sellers v. Jones, 22 Penn. St., 423 ; Slevin v. Morrow, 4 Ind., 425; Lee v. Baldwin, 10 Ga., 208; Shippen v. Clapp, 36 Penn. St., 89; Lumsden v. Leonard, 55 Ga., 371; Baker v. Briggs, 8 Pick., 128; Trotter v. Crockett, 2 Porter, [Ala.], 401.
Where the funds and securities are placed in the hands ■of the creditor there is a duty to preserve the funds and securities assumed by the creditor, and the damages he is liable for are the result of a failure to discharge that duty. But in this case the ninety-five bushels of corn never were in the possession of appellants. They were in the hands of Price, where they were intended to remain until default was made in the condition of the mortgage. Appellants never had assumed to take possession or control of the corn. Under these circumstances are appel-' lants liable for the loss of the corn ?
Hinson is equally bound with his principal to pay the note sued on. Appellants are entitled to proceed against him without resorting in the first instance to their mortgages. They are not deprived of their right to resort to the surety, because a mortgage was executed to them. Hinson was as much in default and guilty of laches in not paying off the note sued on as Price, his principal; and cannot rightfully claim to be damaged by the act of the appellants. For he was entitled to pay the note at any time after it became due, and take control of the mortgages, or, through the aid of a court of equity, upon giving the proper indemnity against costs and delay, to call on appellant's to proceed against his principal and require them to do the most they could for his benefit, or, under our statutes, to compel them to commence suit, and proceed in it with due dilligence, in the ordinary course of law, to judgment and execution. If he was damaged, it was as much by his own neglect and failure to discharge his duty as by any omission of appellants. If he had performed his obligations to appellants, he would have had control of the note and mortgage before any part of the ninety-five bushels of corn was consumed or disposed of. To allow him now to take advantage of the delay of appellants in foreclosing the mortgage, under such circumstances, seems very much like allowing a man to take advantage of his own wrong, if appellants were guilty of negligence, he was guilty of a positive omission of duty. They were under no higher obligation to foreclose the mortgage, than he was to pay the note and forclose the mortgage himself. Under these circumstances it would be contrary to the most obvious principles of justice to inflict upon appellants the loss of their debt. “ The surety,” says Lord Eldon (Eyre v. Everett, 2 Russ., 381), “ has no right to say that he is discharged from the debt which he has engaged to pay, together with the principal, if all that he rests on is the passive conduct of the creditor in not suing. He must himself use dilligence, and take such effective means as-will enable him to call on the creditor either to sue or to give him, the surety, the means of suing.” Hinson used no diligence to give himself the means of suing, or called upon appellants to foreclose, but quietly and passively stood by until the corn was consumed, and then demanded that appellants bear the consequences of his negligence. They are not liable to him tor the loss of the corn, and he is not entitled to exoneration to any extent. Clopton v. Spratt, 52 Miss., 251; Freeman v. Yingling, 37 Md., 491; Schroeppell v. Shaw, 3 Comst., 446 ; 5 Bart., 580; Richardson v. Ins. Co., 27 Grat., 749; Brick adv. Freehold National Banking Co., 8 Vroom, 307; Philbrooks v. McEwan, 29 Ind., 347; Cherry v. Miller, 7 Lea., 305; 1 Story’s Eq. Jur., secs, 336, 501, 502, 639.
The decree of the court below is reversed. A decree will be entered here in favor of the appellants for the amount due on the note. | [
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Battle, J.
Williams was indicted for murder in the first degree, committed by the billing of Beatrice Randolph. He was tried and convicted of murder in the second degree.'
In the trial of the accused, witnesses testified, substantially, as follows: For two and a half years he was in the employ of John J. Sumpter as clerk in the Sumpter House, a hotel in the city of Hot Springs, in this state. During this time a man named Norris and the deceased, Beatrice Randolph, went to the Sumpter House, registered as husband and wife, took a room, and remained there for some time. While there deceased and Williams became criminally intimate. He became fond of her, and told at least two of his friends that they were intimate, and seemed proud of it; told one Spring that she had given him six hundred dollars, telling him he might retain four hundred of it, and return to her two hundred, and had proposed to elope with him to Mexico, and to furnish all the money they would need. About six weeks before her death, he told Sumpter, his employer, that she had made a deposit with him of six hundred ■dollars as her money, and Sumpter directed him to put it in the hotel safe. On the morning of the- 13th of March, 1886, Norris made complaint to the police, charging Williams and the deceased with having stolen six hundred dollars of his money, and had Williams arrested and taken to police headquarters. Sumpter was aroused about three o’clock that morning, and went to the hotel office, and found him under arrest. He went on a bond for his appearance to answer the charge, took him into a room, asked him where the money was, and he answered he had it, but wished to give it to the woman. At Sumpter’s request, he took the money, either from his pocket or shoe, and gave it to him, Sumpter promising to give it to the deceased, which he afterwards did in the presence of Norris. Sumpter retired and arose again about six o’clock in the morning, and found accused still up, and apparently nervous and excited. He upbraided him about the disgrace he had brought upon himself and family, and continued to do so in his subsequent meetings with him. Williams seemed greatly mortified, and had about him a peculiar facial expression. - One witness suspected that he had been drinking, although he had not seen him drink. He had a wild, vacant, unnatural look, and appeared to be in great trouble. Deceased sent for him several times during that forenoon, the last time about half past eleyen, shortly after which he was seen going in the direction of her room. Between that time and twelve o’clock, two reports of a pistol were heard in the room of the deceased, and the chief of police, with policemen, ran to the room whence the report «manated, broke open the door, which was thumb-latched or 'bolted, and found the deceased, Beatrice Randolph, lying ■diagonally across the bed speechless, dying of a gun-shot wound in her body, over the heart, and Williams sitting in a chair at the side of the bed apparently unconscious and bleeding from a gun-shot wound in the head. The chief of police spoke to him, but did not arouse him. He afterwards made some observation or gave some order about a pistol, when Williams suddenly aroused and sprang to a pistol lying on the floor, seized it, and pointed it at his head in an •attempt to shoot himself, and was prevented by the interference of three policemen. He made a desperate effort to kill himself, and in his struggle with the policemen manifested •unnatural strength. He did not appear to realize his situation. . When he was overcome the two following papers in his hand-writing were found in his possession:
First. — “Please send this telegram to Col. S. W. "Williams* Little Rock, Ark.: Your nephew, George Williams, killed himself this a. m.”
Second. — “When you see the result of my rash act, you. will naturally inquire, why did he do it ? It is enough t,o know that since I have lost the respect of all, I have lost all, and hence I end my life with that of the one I love.”
• For three or four days after the killing he seemed dazed and did not appear to realize his situation. One witness said he was delirious from the wound he had inflicted upon himself. After the killing, the accused said he had taken a drink on the morning of the tragedy.
Evidence was also adduced conducing to prove that Williams, prior, to his intimacy with the deceased, was peaceable* quiet, moral, religiously inclined, of an - affectionate nature, and could not tolerate lewd women; that he was nervous and hasty, and sometimes would act strangely and do things without seeming to think about them; that he “was full of nervous peculiarities,” and was wanting in stability; that hé was possessed of personal pride amounting to extreme vanity ; had an inordinate regard for the opinion of others; and seemed to have a high sense of his personal honor and accomplishments.
One witness testified that when he was about four years-old, he received a severe cut on the head from an axe, which was followed by fever of a typhoid, inflammatory nature* that attacked his brain. Medical experts, upon an examination of his head, testified that, in their opinion, this cut depressed the inner table of the skull, and that, if it did, it would render him subject, upon the occurrence of an exciting cause, to an attack of insanity.
Many medical experts were introduced, who testified that assuming that the testimony of witness as stated was true* it was their opinion that Williams was insane, at the time of the killing, incapable of reasoning correctly, and so completely deprived of the control of his mental functions as to be incapable of knowing that what he was doing was wrong.
At the instance of the state the court instructed the jury ns follows:
1. “The court instructs the jury that one, who, in possession of a sound mind, commits a criminal act under the impulse of passion or revenge, which may temporarily dethrone his reason, or for the time being control his will, ■cannot be shielded from the consequences of the act by the plea of insanity.
2. “That insanity will only excuse the commission of a criminal act, when it is made to appear affirmatively by evidence fairly preponderating, that the person committing it was insane.
3. “The court instructs the jury that the law presumes every man to be sane until the contrary is sIiowd; and when insanity is set up as a defense by a person accused of crime, in order that the defense may avail, the jury ought to believe from the evidence that, at the' time of the commission cf the alleged crime, the mind' of the accused was so far affected with insanity as to render him incapable of distinguishing between right ar.d wrong in respect to the act with which he is charged; or, if he was conscious of the act he was doing and knew its consequences, that he was in consequence of his insanity wrought up to a frenzy which rendered him unable to control his actions or direct his movements.
4. “When insanity is • set up as a defense for crime the testimony must, by evidence fairly preponderating, prove that,at the time of the act, the defendant was laboring under such a defect of reason from disease of the mind, as not to knOw the nature of the act he was doing, or if he did know it, that he was ignorant he was doing wrong;
5. “The killing being proved it devolved upon the accused to prove, by testimony fairly preponderating, that he was in such a condition, at the precise time the deed was done, as not to know the consequence of his act, and not to know right from wrong, unless the testimony on the part of the state, shows that he was in such condition.”
It is urged that these instructions are erroneous. In them ;the jury are plainly told that insanity will excuse homicide; and that in order for it to excuse the accused in this case, it must appear he was so affected by it as to be unable to distinguish between right and wrong ip respect to the act with which he was charged, or if he was conscious of the act he was doing and knew its consequences, that he was,in consequence of his insanity, wrought up to a-frenzy, which rendered him unable to control his actions or direct his movements. If the accused was insane, these instructions cover every legal view of his acts which can reasonably be taken. If he was insane he must have been incapable of distinguish--ing between right and wrong in respect to the act with which he was charged; or, in consequence of insanity,rendered unable to control his actions by the great excitement or distress which preyed on his mind at the time the act charged was done. Whatever other views may be taken of insanity, they have no application to the facts in this case.
In order to distinguish insanity from passion it was proper for the court to tell the jury, “that one who, in possession of a sound mind, commits a criminal act under the impulse of passion or revenge, which may temporarily dethrone reason, or for the time being control his will, cannot be shielded from the consequences of the act.” One may be so far overcome by passion, as to yield himself up to its influence, and not know what he does. But such passion is not insanity. The man infuriated by his passion is still responsible for his acts, but the insane man is not.
The fourth and fifth instructions relate to the degree of evidence necessary to prove insanity so as to entitle the accused to an acquittal, if he was so affected thereby as to have been incapable of distinguishing right from wrong in respect to the act with which he was charged, at the time it was done. It is apparent that these instructions were not intended to cover the other symptom of insanity mentioned in the instructions. The court, however, gave another instruction in which it told the jury, “that defendant is presumed to be sane and this presumption continues until overcome by proof in the ease fairly preponderating.” These instructions state the rule laid down by this court in Casat v. State, 40 Ark., 511, and subsequently followed in Coates v. State, ante, 330.
The court refused to instruct the jury, at the instance of the accused, as follows:
5.1 “In the matter of insanity set up in this case, it is your duty, if you believe the testimony upon which the opinions testified by the medical experts are based is true, to weigh and test those opinions by the rule above given ; and if you find that they are learned in their professions and have, in giving their opinions, testified 'candidly, sincerely, honestly and truthfully, you should give their testimony due weight; and, if such testimony is all on one side, you should return your verdict in accordance with it.”
7. “If the jury believe the testimony of physicians and others who testified as to the mental condition of the defendant at the time of the commission of the act complained of to be true, and such testimony is all on one side, then the verdict should be in accordance with such testimony.
8. “If you believe that the medical experts, the physicians who have testified in this case, have testified to the truth, and also believe that the testimony of the witnesses, on which their opinions as testified to, are based, is true, you should acquit the defendant.'”
These instructions were properly refused. The testimony exPel’ts should be received by the jury as other testimony. is given for the purpose of enlightening, and not for'the purpose of controlling their judgments. They are not bound to accept the conclusions of experts instead of their own. Upon them rests the responsibility of returning, a correct verdict. If the opinions of experts are opposed to their convictions they may reject them, “There is no rule of law,” it is said, “that requires jurors to surrender their judgments implicitly to, or even to give a controlling influence to; the opinions of scientific witnesses, however learned or accomplished they may be, and however they may speak with con-eeded intelligence and authority, aided by the accumulated result of a long experience.” Rogers on Expert Testimony, secs. 37-42, and cases cited; 1 Wharton & Stille's Medical Jurisprudence, secs. 194-198.
There was another instruction which the accused asked and the court refused, which we think was sufficiently covered by the instructions given. Construing the instructions given as a whole we think there is no error in them prejudicial to the plaintiff in error.
Dr. A. N. Williams, who testified in the tria', was asked by the prosecuting attorney, after stating the position in which the accused and the deceased were found, and the nature of the wound and its position, to give his opinion as to what her position was when she received the wound, if the accused, at the time of firing the shot, was sitting on the same chair that he occupied when he, witness, entered the room. The accused objected to the question, but the court allowed it to be answered. He now insists this was error. Admit it, and it does not apper he was prejudiced by it. The object of the question was to ascertain the opinion of the witness as to the position of the deceased at the time the fatal shot was fired. We cannot see how this prejudiced the accused.
But plaintiff in error insists that the verdict of the jury4 was contrary to the evidence and the instructions of the1 •court. That he took the life of the deceased there is no room for doubt. Was he insan e, and did he know he was doing wrong, when he did so? There was evidence conducing to prove that he fastened the door when he entered the room of the deceased. His own explanation of his conduct, found upon his person, in his own handwriting, shows his consciousness of the wrong he was about to do. “When you see,” says he, “the result of my rash act, you will naturally inquire why did he do it?” His conduct and mental condition after the killing may be fairly attributed to the wound he had inflicted upon himself. His effort to take his own life does not necesssarily prove or raise the presumption that he was insane. He had been moral and religiously inclined. He was possessed of personal pride amounting to extreme vanity, and seemed to have had a high sense of personal honor. When he was exposed and arrested he believed he was disgraced, and had lost all, and preferred death to life, and attempted suicide. He says, in his own explanation, “it is enough to know that since I have lost the respect of all, I have lost all, and hence I end my life with that of the one I love.”
Griesenger, "in his work on Mental Pathology, says: When a man of very delicate feeling puts an end to his existence, that he may not survive the loss of his honor, or of some other highly valued possession which forms an intimate part of his intellectual being — when a man prefers death to a miserable, contemptible life, full of mental and physical ills — morality, indeed, may call him to account for tbe deed, but there exists no grounds on which we can consider him insane; the abhorrence of life and the idea of self annihilation correspond to the intensity of the painful impressions which bear upon this individual, and it is after deliberate reflection that the act is resolved upon and perpetrated .” 1 Wharton & Stilles Medical Jurisprudence, sec. 637; Buswell on Insanity, sec. 226; Regina v. Burton, 3 Cox Cr. Cas., 275; McAdam v. Walker, 1 Dow, 148; Duffield v. Morris, 2 Harr., 375; Terry v. Ins. Co., 1 Dillon, C, C., 403; Merritt v. The Cotton States Life Ins. Co., 55 Ga., 103.
Why he took the life of the deceased* is difficult to comprehend. It was deliberately done. It is difficult to conceive how any reasonable being can deliberately commit any heinous crime, yet such crimes are deliberately committed by sane men. In* this case the accused felt the sense of his shame so keenly as to seek relief in death. The deceased was the cause of his ruin. She had seduced him from the paths of virtue and led him to his downfall. He was sensible of that fact. When aroused to a conscionsness of his shame no one can tell the change his feelings towards her underwent. They were such as to cause him to attempt the. destruction of his own life. Why should they have led him to pursue a different course towards the deceased ? The fact of killing, unexplained, does not raise the presumption that it was the result of insanity. The burden of proving insanity was upon the accused. The jury were the judges of the weight of evidence and credibility of witnesses. There is room for a difference of opiuion as to the sanity of the accused under the evidence and the instructions of the court. We are not, therefore, authorized to reverse the judgment of the court below, because-the verdict of the jury is not in accord with an opinion we may entertain.
There were exceptions to evidence and to remarks made by the court to counsel while in the midst of his argumeut, which we have not-overlooked, and do not consider necessary to mention here.
Finding no error in the proceedings of the court below prejudicial to the plaintiff in error, its judgment is affirmed. | [
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Smith, J.
Upon the trial of this cause in the court below the following judgment was rendered:
“* ■ * * This cause was submitted to the court sitting as a jury, and the testimony of the witnesses was heard, and the court being ivell and sufficiently advised, it is by the court considered, ordered and adjudged that the plaintiff have and recover of and from defendant the sum of $60.25, principal, and $10.80 interest, being a total of $71.05, and all the costs of this cause; and it is further considered, ordered and adjudged by the court that if the furniture involved in this suit be returned by the defendant within thirty days, that the records of this court shall be endorsed and satisfied in full 'by the plaintiff. ’ ’
A writ of garnishment was issued on this judgment and served upon appellee’s employer, who stated in his answer that he was indebted to appellee in the sum of $8 for wages. ' Appellee filed a schedule of his property and claimed the wages due him as exempt, and his claim was allowed, and this appeal is taken from the judgment allowing the exemption.
It is claimed by appellant that the pleadings in the case will show that this was *an action in replevin brought to recover the possession of certain furniture sold appellee, under a reservation of title in favor of appellant, and that consequently there can be no exemptions claimed against the judgment. Upon the other hand, the appellee insists that the judgment must speak for itself, and that while appellant may have had the right to have demanded that the ordinary judgment in replevin be rendered in its favor, it did not do so, and that the judgment in question is a mere judgment for the recovery of money, with the proviso that it might be satisfied in thirtv days, by appellee by the'return of the property originally sued for.
We think appellee's position is correct and that he, therefore, has the right to claim his, exemptions against the enforcement of this judgment.
Where property is sold with a reservation of title the vendor has the right to elect between the remedies he shall pursue. He may bring replevin and recover the specific article sold by him, or he may affirm the sale and waive the reservation of the title and sue for the purchase money alone, and recover a judgment which entitles him to have process for the collection of the money.
In the case of Spear v. Arkansas National Bank, 111 Ark. 29, it was said: “Replevin is not an action for the collection of debt, but upon the contrary is a possessory action for the recovery of specific personal property. ’ ’
And that case cited the opinion in the case of Hawes v. Robinson, 44 Ark. 308, in which ease it was said: “It is essential to a proper affidavit in replevin that it describe the property sued for in such manner as to afford the means of identifying it. ’ ’
And in the case of Swants v. Pillow, 50 Ark. 300, Chief Justice Cockrill said: “In replevin, the delivery of the property is the primary object of the action. The value is to be recovered in lieu of it, as an alternative only ‘in a case a delivery can not be had’ of the specific property. Man. Dig., § 5181. Whatever purpose beneficial to the defendant the judgment in the alternative may serve, it is not put in that form to give one who has been adjudged to be in the wrong, his election to pay the assessed value and retain the property us his own, against the will of the party to whom the judgment of the court has awarded it.”
The statute prescribes the form of a judgment to be rendered in a replevin suit. Section 6868, Kirby’s Digest. It is provided that the judgment shall be for the return of the property, or for the value thereof in case a delivery can not be had, and damages for the detention, and this is the character of judgment against which one can not claim his exemptions. Smith v. Ragsdale, 36 Ark. 297.
Appellant may have been entitled to a judgment of this sort, but we must determine the election he made of the remedy which he would pursue by the judgment rendered in his favor, and when we have done so, it appears that he has the money judgment to which he was entitled upon affirming the sale and electing to sue for the purchase money. Ordinary process might issue, and did issue, for the enforcement of this judgment, and its nature as a money judgment is not changed by the. fact that appellee within thirty days after its rendition might have satisfied it by the return of the property sold him by appellant. The judgment of the court below is, therefore, affirmed.
Kirby, J., dissents. | [
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Per Curiam:
Appellant instituted this action in the chancery court of Benton 'County to foreclose a mortgagé on certain land, and made appellee a party defendant, alleging that a mortgageheld by -the latter was barred by the statute of limitations. The -suit was to cancel appellee’s mortgage and to establish the priority of appellant’s mortgage and to foreclose it. Appellee answered, claiming that his mortgage was not- barred but was superior to that of appellant’s, and the court sustained that contention. A final decree was rendered foreclosing appellant’s mortgage, subject, however, to that of appellee’s as a superior lien, and the commissioner of the court was directed to sell the land, subject to appellee’s mortgage, to satisfy appellant’s debt. The sale was made by the commissioner, and appellant became the purchaser for the sum of $100, the sale being subsequently confirmed by the chancery court. Appellant then prosecuted an appeal to this court from that part of the decree which declared his mortgage lien to be junior and subject to that of appellee’s.
A motion is now presented by appellee to dismiss the appeal on the ground that .appellant, by accepting the benefits awarded to him under the decree, waived his right of appeal. That contention is sound, for appellant’s purchase under the decree constituted a recognition of the superiority of appellee’s lien, and his attack upon that lien by this appeal puts him in an inconsistent position. He can not accept benefits under such decree and then appeal from it. He purchased the land for a small sum at the sale, which was intended only to dispose of the property subject to appellee’s mortgage lien; and if he should obtain a reversal of the decree, it would result in his getting more than he purchased. His position is therefore inconsistent. A litigant “waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the .appeal.” Bolen v. Cumby, 53 Ark. 514; Albright v. Oyster, 60 Fed. 644; 2 Standard Encyclopedia of Procedure, 213.
The right of appeal having been waived, it can not be prosecuted. The appeal is therefore dismissed. | [
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McCulloch, C. J.
This is an action on a promissory note executed for the price of a monument. Plaintiff Moore is engaged in manufacturing and selling monuments ¡and 'tombstones at Poplar Bluff, Mo., land the defendant Williams, who resides at Walnut Ridge, Ark., entered into a contract with plaintiff for the preparation of a monument to be erected at the grave of defendant’s wife at Walnut Ridge. The order for the monument, and specifications- and details concerning its preparation, were set forth in writing as a part of the promissory note executed for the price. The -order for the monument was made through one Pinohbaek, the agent of the plaintiff at Walnut Ridge, -and was forwarded to plaintiff on January 5,1913, the day it was solicited and received ¡from the defendant. The contract contained ¡a provision that delivery of the monument should be made on February 5,1913, ‘ ‘ or as soon afterward as possible,” and it Was to be shipped to Pinohbaek at Walnut Ridge. There was no specification in the contract that it was to be erected by plaintiff or his agent. The testimony shows that it was customary for .the agent to do. so, and that he offered in this instance to do it.
It was necessary for the plaintiff, according to the testimony, to order the rough material from other places, and that he proceeded to do so as soon as he received the order. On January 7,1913, plaintiff wrote to defendant, acknowledging receipt of the order and promising to proceed with dispatch to fill it and deliver the monument at the earliest possible date, but suggested that it would probably be impossible to fill the order before about March 1. The letter, however, contained 'an unconditional acceptance, and it was a mere ¡suggestion about the time for delivery being postponed beyond the date specified in the order. On January 18, 1913, defendant wrote the plaintiff a letter in which he requested that the order be held up until further notice while he was trying to adjust a complication by reason of having given a previous order for a monument to a Memphis house, .and the letter also said, “Please consider this order countermanded pending my negotiations with Morris Brothers, and if I can adjust the matter with them so as to effectually countermand my order with them, I will notify you so that you can go ahead.” Upon the receipt of this letter, plaintiff promptly wrote to the defendant a letter in which he refused to recognize the countermand, and, after reciting the efforts that plaintiff had made to get the material to complete the order, wound up by expressing the hope that defendant would reconsider the matter, and not attempt to cancel the order. No answer was made to this letter, and the monument was completed and shipped to Pinchback, tiie agent at Walnut Ridge, arriving there about the 1st of February. Pinchback notified defendant of the arrival of the monument, and proposed to take it out and erect it at the proper place in the cemetery. Pinchback testified that defendant repudiated the order at that time and refused to 'allow him to erect the monument. Defendant denied that he made a direct refusal, 'but stated that when Pinchback informed 'him about the monument being there, he (defendant) replied, “All right, I am not ready to take it up now.” The jury returned a verdict in favor of the plaintiff and defendant has appealed.
It is insisted, in the first place, that there was no acceptance of the order, and for that reason there can be no recovery. The evidence, we think, shows that no acceptance was necessary by plaintiff in person for the reason that Pinchback was the agent for the purpose of making sales, and that he had authority to accept the order, and did accept it. But; be that as it may, the letter of plaintiff to defendant was an unconditional acceptance of the order, and, as before stated, the statement about a postponement of the date for delivery was a mere suggestion which did not amount to a proposal of a new contract or placing a condition upon the performance of the old one.
It is next contended that the order was countermanded before complete performance, and the defendant is only liable for the damages which were suffered by plaintiff up to the time of the breach. It is true that, notwithstanding the stipulation against countermand, defendant would only be liable for the damages arising from the breach of the contract, and not necessarily for the full amount stipulated in the contract. In other words, the plaintiff, after notice, would not be permitted to augment his damages by a continuance of the performance of the contract. The correspondence between the parties at that time does not, however, show an unconditional countermand of the order, and when the two letters on the subject are read together, we think that the silence of the defendant justified the plaintiff in continuing in the preparation of the monument. The plea of the defendant was merely for time for further negotiation with the Memphis house, and if he expected to insist upon the countermand, he should have answered the plaintiff’s letter.
The evidence shows that the monument was burned in the warehouse of the railroad company at Walnut Ridge a day or so after it was tendered to defendant, and he had refused to permit it to be erected at the grave of his wife. The testimony is conflicting as to what occurred between Pinchback and defendant concerning the delivery of the monument, but the verdict of the jury settled that issue against defendant. Counsel insist that there can be no recovery for the reason that the monument was not in fact delivered, and that its loss fell upon the plaintiff. That contention is not sound. It was not a contract for the sale and delivery of an article, but was one for labor to be performed in the manufacture of the monument. Moore v. Camden Marble & Granite Works, 80 Ark. 274. When .the plaintiff’s agent tendered the delivery of the monument, it was all he could do, and the loss, resulting from the destruction of it thereafter, fell upon the defendant. The fact, as some of the evidence tended to show, that plaintiff made an ineffectual effort to collect from the railroad company does not bar his recovery. Of course, if he had collected the .amount of his claim from the railroad company, he could not recover from the defendant, but there is no proof that there was a collection of the amount. The only thing shown is that he presented a claim which does not appear to have been acted upon.
We are of the opinion that the plaintiff has fully made out his case by the evidence, and that the verdict in his favor was correct.
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Smith, J.
Tabitha 'Smith, a negro woman, died February 17, 1900, owning the lot situated at the corner of Ninth and Louisiana streets in the city of Little Rock, which constitutes the subject-matter of this lawsuit. There were three houses on the lot at the time of her death; she lived in one of them and rented the other two. She made a will on February 16, under which she gave to a niece certain personal property and devised her real estate, which consisted of the lot in controversy, to her heirs, with directions that the real estate be sold if the heirs did not agree, and that the proceeds of the sale be divided among them.
Tabitha’s companion and close friend, one Evelyn West, was named as executrix, and qualified as such, and collected the rents until June 20,1901, when she resigned, and one Joshua A. Harp, qualified as administrator, and collected the rents. He filed a final settlement April 3, 1902, but collected rents after his discharge as administrator.
Tabitha Smith was born a slave in North Carolina and was brought to Pulaski County two years before the war, and thereafter resided in said county until her death. A niece of Tabitha’s, named Ann Crusoe, was brought to this State at the same time. In 1891, Tabitha returned to North 'Carolina to visit her relatives, and on her return brought back with her a grand-niece named Eosa Williams. Neither Ann Crusoe nor Eosa Williams was living with Tabitha at the time of her death, but they were soon advised of that fact and appeared on the scene as claimants of the entire estate as sole heirs, and as sole devisees under the will. Tabitha’s relatives back in North Carolina were never advised of her death until 1910.
On July 24, 1903, Ann Crusoe conveyed ‘ ‘ all my undivided interest” in the above-mentioned lot for the consideration of a thousand dollars to appellee Storthz, and on July 7, 1903, Storthz obtained a deed from Eosa Williams conveying “all my undivided interest” for the consideration of $300. In the meantime Harp had made final settlement of his administration and had been ordered to pay over, and had paid over, to Ann Crusoe and Eosa Williams the balance of rents in his hands. This payment was made to them upon the supposition that they were the only heirs of Tabitha Smith. Harp continued to collect rents after his discharge as administrator for the account of Ann and Eosa until Storthz’s purchase, at which time he accounted to Storthz for the balance in his hands, and Parker & Ewing, rental agents, were given charge of the property and the tenants in possession were notified to thereafter pay rent to Parker So Ewing, and the rents were so paid.
On December 19, 1903, Ann Crusoe and Rosa Williams filed suits in thé Pulaski chancery court against Storthz for the cancellation of their conveyances, and against Harp for an accounting for the rents. They alleged that Storthz had obtained deeds from them through fraud. On June ■ 15, 1906, Ann Crusoe took a nonsuit, but she refiled the case .and prosecuted it to a final decree. Both suits reached this court, and the result of the litigation -was that Rosa Williams, recovered her interest, while Ann Crusoe was unsuccessful.
The pleadings in those’ cases, together with certain depositions then taken, were offered in evidence in this case, and from them it appears that one of the chief questions of fact involved in that litigation was the adequacy of the consideration paid by ¡Storthz. Storthz testified in that case that he paid less than the property was worth, but as much as he could afford to pay in view of the uncertainty about the title. But there is no intimation- in the record in either case that Storthz ever admitted he had (bought less than the whole title, or that the deeds to him conveyed anything less than the whole title. He appeared to recognize the possibility that he had not acquired the whole title, but his grantors insisted they had conveyed the whole title and this was the interest which he thought he had purchased. The opening sentence in the opinion in the case of Storthz v. Williams, 86 Ark. 460, shows the supposed interest over which the parties were litigating and the construction placed by them upon the will of Tabitba Smith.
Appellee Miles, by mesne conveyances, acquired the interest of Rosa Williams and since August 4, 1908, has been the owner of that entire interest, ¡and has had joint possession of the lot with his cotenant Storthz, since that date.
Justin Matthews, -a real estate dealer in the city of Little Rock, undertook to purchase the lot from appellees, ¡and secured an option from Miles for his undivided half for the consideration of $3,000, but failed to agree on terms with Storthz, because -Storthz would not exe cute a warranty deed for Ms undivided interest for that consideration.
The proof shows the lot to be worth from twelve to twenty thousand dollars. After failing to buy the interest of appellees, Matthews looked up the heirs of Tabitha Smith and located them in North Carolina, and secured deeds from them during the months of March, April and May, 1911. The consideration paid for these deeds aggregated less than $400. These deeds were taken in the name of appellant, who brought this suit in ejectment on August 1, 1911, and, without objection, the cause was transferred to chancery, where the court held that all of appellant’s grantor’s were barred by the adverse possession of appellees, except those under the disability of coverture. The chancellor decreed twenty-nine fortieths to appellees, mad eleven fortieths to appellant, and Ml parties have appealed from that decree.
Proof was offered touching the proper construction to be given Tabitha.'Smith’s will. Evelyn West, who knew more albout Talbitha’s affairs than any other person, testified that it was Tabitha’s intention to give the entire property to Ann Crusoe and Rosa Williams; and she was corroborated by Doctor Bentley, who was the attending physician and who wrote the will. This evidence was, of course, inadmissible' for this purpose. The testator’s intention must be gathered from the will, and while evidence may be received to explain any .ambiguity in the designation of a beneficiary, yet neither the scrivener, nor any one else, can be permitted to testify that the testator meant or intended any disposition of his property not expressed in the will. Longer v. Beakley, 106 Ark. 219. This evidence was .admissible to show, however, the interest claimed by Ann Crusoe and Rosa Williams and the interest wMch they purported to convey to Storthz. Jeffery v. Jeffery, 87 Ark. 496; Seawell v. Young, 77 Ark. 309.
Among other depositions offered in evidence, by agreement; which were taken in the former litigation were those of Ann Crusoe and Rosa Williams, in wMch they each testified, that they were the only heirs of Tabitha Smith. And there were also other depositions in which it was stated that an abstract of title had been prepared and examined by lawyers of reputation and Tabitha’s Smith title was approved, and Storthz received no intimation that Ann Crusoe and Rosa Williams were not the owners of the whole title, and it appears beyond any question, in fact without dispute, that Storthz claimed the entire lot subject only to the possibility that there might be some unknown heir who could claim an interest. After Storthz’s purchase he exercised every act of ownership over the lot of which it was capable. Storthz’s uncertainty about the existence of other heirs is not incompatible with his claim of adverse possession. One need not have a perfect title to set up that defense. Indeed, it may be made by one whose original entry was a trespass, and that is the theory upon which title by adverse possession is acquired. This .adverse entry, or wrongful ouster, gives one a cause of action to dispossess the adverse occupant and if the suit be not commenced within seven years then it can not be maintained at all.
The proof of the proceedings in the probate court shows that all of the assets in the hands of the administrator were distributed to Ann Crusoe and Rosa. Williams as sole heirs and as sole devisees of Tabitha Smith.
The property had gotten in very bad repair and it was found necessary to tear down one of these houses. Storthz "repaired the other two and spent considerable money in having them papered, .and for plumbing and for painting and whitewashing. He made other repairs about the premises, including the cleaning out of the cistern, and he complied with ordinances of the city in building cement sidewalks along both of the streets on which the lot fronted. And he paid all taxes and special assessments in his own name, as sole owner, until Miles acquired his interest, .since which time these charges have been jointly paid by him and Miles.
' The principal question in the case is whether or not, under this evidence, appellees can be heard to say that their possession has been adverse to their cotenants, who were appellant’s grantors. We are referred to the case of Parsons v. Sharpe, 102 Ark. 611, in which case the court said: “ ‘ The conveyance iby one cotenant of the entire estate gives color of title; and, if possession is taken, and the grantee claims title to 'the whole, it amounts to an ouster of the cotenants, and the possession of the grantee is ¡adverse.to them.’ 1 Am. & Eng. Enc. of Law (2 ed.), p. 806, .and numerous authorities there cited.
“That rule was recognized by this court in Brown v. Bocquin, 57 Ark. 97.
‘ ‘ On the other hand, the principle is well settled that where a conveyance is executed to a stranger by one tenant in common, purporting to convey only his undivided interest, he becomes a tenant in common with the other tenant (17 Am. & Eing. Enc. of Law, [2 ed.], p. 661; and, in order to constitute an ouster, ‘the tenant out of possession must have actual notice of the adverse holding, or the hostile character of the possession must be so openly manifest that notice on his part will be presumed. ’ 1 Am. & Eng. Enc. of Law, (2 ed.), p. 805.
“The conveyance to appellant Parsons, being a conveyance only of the undivided interests of some of the tenants in common, falls within the latter rule, and is controlled by the case of Singer v. Naron, 99 Ark. 446, where we declared the law to .be that ‘in order for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly, or by such notorious acts of an unequivocal character that notice may be presumed.’ ”
It is true the deeds to 'Storthz did not recite that the interest conveyed was in each case an undivided half. Had this been done the opinion in the case of Parsons v. Sharpe, supra, would have been conclusive of this litigation. The rule is that one entering upon the possession of land under a deed of conveyance to him is presumed to occupy, and intends to claim only the interest named in his conveyance. But, las the deeds to Storthz did not recite the interest therein conveyed; it became a question, of fact as to what interest the deeds were intended to convey and what interest he secured thereby, and the presumption would be that, as his grantors did not, in fact, own the whole title, and, consequently could not convey the whole title to him, he entered as a cotenant, and that his holding was not adverse to the other eotenants.
There is a vast wealth of authorities on the right of one cotenant to claim adversely to another, and of the •circumstances under which he will be held to have done so. But we need not go beyond the decisions of our own State to find a full discussion of the law on this subject. .The case of Singer v. Naron, 99 Ark. 446, reviews a number of cases on this subject and concludes the dis-' cussion with the statement quoted in the case of Parsons v. Sharpe, supra.
Does the evidence in this case meet the requirements set out in the cases cited? The chancellor found that it did, and we can not say that his finding is contrary . to the preponderance of the evidence. The facts which we have recited show that there was never any question with Storthz about .the interest which he had purchased, nor that his holding was adverse. It is true, his cotenants received no actual notice of this adverse holding, but none could have been given them. Storthz was unaware of their existence. And when all the circumstances of this ease are taken into account there .appears to be such evidence of the adverse holding, as meets the requirements of the above cited cases. It is certain that Matthews knew of it long before he invested a dollar in this property, and while it is true that seven years have not expired since Matthews’ attempt to purchase this lot, this is one of many circumstances' which .advised Matthews, and which in connection with all of the other circumstances, should have advised all others, of the adverse claim which appellees 'were making to the lot.
It is insisted there should be no recovery whatever here, for the alleged reason that the collateral kindred of Tabitha Smith can not inherit from her. It is urged that there were no valid marriages of slaves before the war, and that as slaves could not inherit at common law, no right of inheritance can be derived from one born la slave, except as such rights may have been given by statute. We are cited to the case of Jones v. Jones, 234 U. S. 615. The syllabus in that case is as follows:
“The surviving brothers and sisters of a colored freedman dying intestate, who were the children of a born slave and were themselves born slaves, are not denied the equal protection of the laws, contrary to IT. S. Constitution, Fourteenth Amendment, by a decision of a State court construing Shannon’s Comp. Tenn: Laws, § 4163, preferring the brothers and sisters of an intestate dying without issue over the husband or widow, as applying only to brothers and sisters born free, with the result that the intestate’s real property acquired by him while he was a freedman passed to his widow under section 4165, which provides that if one dies intestate ‘leaving no heirs at law capable of inheriting the real estate, it shall be inherited by the husband or wife in fee simple.’ ”
The decision of that case turned, of course, upon the consideration of the laws of Tennessee, in which State the case originated. That case announced the well known rule that inheritance is governed by the lex rei sitae, and it was there said: “It (inheritance) is not a natural or absolute right, but the creation of statute law. If one claim the right to succeed to the real property of another, as heir, and his right is denied because he must trace his- pedigree or title through an alien, a bastard, or a slave, the question is one to be determined by the local law.”
But we have had legislation on that subject, which Tennessee apparently has not had. ’Section 2638 of Kirby’s Digest, is as follows: “Illegitimate children shall be capable of inheriting and transmitting an in heritance, on the part of their mother, in like manner as if they had been legitimate of their mother.”
The proof is that all the heirs interested in this property trace their descent from Tabitha Smith’s mother, who appears to have been twice married. The section of the Digest quoted was construed in the case of Gregley v. Jackson, 38 Ark. 487, where it was said: “But with regard to children professedly illegitimate, the same act provides that they shall ibe capable of inheriting and transmitting an inheritance on the part of the mother, ‘in like manner as if they had been legitimate of their mother. ’ Legitimate children of the mother may transmit an inheritance to any and .all collateral relations on the mother’s side, who are of her 'blood, and so may her illegitimate children. This construction is too obvious to allow any serious consideration of the suggestion that the statute was meant to confine inheritance of illegitimate children to or from the mother, or through her in the direct ascending or descending line. ' ‘ On the part of the mother,’ means on the mother’s side of the genealogical tree. The effect of the old legislation was meant to be remedied to cure illegitimacy in the innocent. It amounted to this, that if there had been an actual marriage ceremony, the children should be legitimate for all purposes, although the marriage might be null. If it were a case of simple bastardy, the children were to be considered, nevertheless, upon the same ground with regard to heritable blood, as if the father were dead, leaving no blood relations. The father being supposed unknown, was simply ignored with all his blood, but no new laws of inheritance were intended, as to further line or limit. ’ ’
In addition to the section of the Digest above quoted, we have an act, approved February 6, 1867, which is entitled, “An Act to declare the rights of persons of African descent. ’ ’ Section 3 of this act reads as follows:
“That all negroes and mulattoes who are now cohabiting as husband and wife, and recognizing each other as such, shall be deemed lawfully married from the pas sage of this act, and 'Shall be subject to all the obligations, and entitled to all the rights pertaining to the marriage relation; and in all cases, where such persons now are, or have heretofore been so cohabiting, as husband and wife, and may have offspring recognized by them as their own, such offspring shall be deemed in all respects legitimate, as fully as if born in lawful wedlock.” Act No. 35, of Acts of 1866-1867.
This act has never been carried into any Digest, yet it is discussed in the case of Gregley v. Jackson, supra, where it was said:
“Looking to its language, its remedial nature, and the circumstances of which the court can take cognizance, it would be a very narrow, and exceedingly literal, construction of this act to exclude from its scope those children, whose parents, although then dead, had cohabited as husband and wife, and recognized them as their offspring. The act is not in derogation of the common law. It is in aid of it—applying its rules of inheritance to what was really a new people, amongst whom there had been formerly no marriages, no property, nor any rules of inheritance whatever. It had in view the complete homologation of all legal .rights of all classes in the State, as distin'ct from political rights—the latter coming through the Federal ‘Constitution and acts of Congress.
“In any view of the case, whether considered simply as illegitimate children of one mother, or as Africans, the offspring of a former slave marriage, the brothers could inherit from each other, and Marshall Jackson, as held by the circuit court, became the heir of Jacob Keith.”
It.is also insisted that the court erred in holding that Emma Elliott, one of the heirs, inherited a one-eighth interest, when the court should have found that the said Emma Elliott owned a one-sixteenth interest. On the other hand, it is urged that appellant was not allowed to recover a sufficiently large interest, for the reason that certain of appellant’s srantors were under the disability of minority prior to their conveyance. We have con sidered these questions and, without reviewing the evidence in support of the respective contentions, we have concluded that the chancellor’s finding is not contrary to the clear preponderance, of the evidence. The decree of the chancellor is, therefore, affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended that the issuing by appellant order of the benefit certificate was ultra vires and void, there being no one of any of, the classes designated to whom the benefits could be paid without violation of the by-laws of the organization and the statute granting its charter.
“Where the statute under which a benevolent corporation is organized, and its charter adopted in pursuance to such act, designates certain classes of persons as those for whom the benefit fund is to be accumulated, a person not belonging to either or any such class is not entitled to take the fund. A corporation has no authority to create a fund for other persons than the classes specified in the law, nor can the order direct the fund to be paid to a person outside of such class.” 27 Am. & Eng. Ann. Cas. 868.
There was no attempt here to issue a policy with the benefit payable to any person not belonging to one of the classes specified as entitled to receive it, nor 'direction to pay to one outside of such class.
And although the member may have had no family, blood relatives, heirs or persons dependent upon him, or affianced wife, at the time of the issuance of the policy, a fact which the evidence does not show, he had the right, nevertheless, to take out such policy upon the contingency that there might be one of some of the classes designated entitled to receive the benefit at the time the liability to pay it became fixed upon the death of the member, and the order had authority likewise to issue such policy on such contingency .and its action in doing so was not ultra vires.
There was no beneficiary named in this policy, which was made payable to the legal representatives “bearing the relationship to the member of administrator or executor,” and it is not questioned that plaintiff is the duly qualified administratrix of the estate of said deceased member. It is contended, however, that there is no person living bearing the relationship or belonging to any class who was entitled to become a beneficiary, under the rules of the order, and the law creating it, and therefore that the administrator can not recover upon the policy.
The by-laws provide that when the certificate is payable to the legal representatives, as in this case, the benefit shall be payable to the executor or administrator of the deceased member in trust for such member’s heirs.
Appellant having denied that there is in existence any person of any of the classes to whom the benefit under the policy can be paid, the burden to prove such fact devolved upon it. Longer v. Carter, 102 Ark. 73; Carrier v. Comstock, 108 Ark. 521.
We are of opinion that the burden was not discharged by the evidence introduced' in this cause. It is true the administratrix testified that she had heard the deceased say frequently that if he had any relatives living he did not know them, that he was without a family or affianced wife, and that no relatives visited or wrote to him during the 'time .she knew him. The testimpny discloses, however, that he came from Fulton, Mississippi, an adjoining State, in his boyhood, and was illiterate, and could not write, and that no inquiry was made at the place of his birth, :and where he was known to have lived to ascertain whether he had heirs or blood relatives living. The circumstances shown raise an inference that there were no heirs, family,'blood relatives, or other persons belonging to any of the classes entitled to the payment of the benefit under the policy, but 'the place of deceased’s birth being known, and no inquiry made there, the evidence is not prima facie sufficient to show that there are none such. Carrier v. Comstock, 108 Ark, 522.
Conceding the testimony was sufficient to sustain a verdict or finding that there were none living, bearing such relationship to the deceased member as would entitle them to the benefit under the policy, it is not con- elusive of the fact, and a verdict against the proposition could not be set aside for want of evidence to support it. The finding of the court, each party having asked a directed verdict, is as conclusive as the verdict of a-jury would have been, and requires no more evidence to support it. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71.
The administrator of the estate of the deceased member was entitled to recover the amount of the benefit certificate as trustee of course for the benefit of those entitled thereto under the terms of the policy, the laws of the order and the State creating it, and the court did not err in directing a verdict for appellee. The judgment is affirmed. | [
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McCulloch, C. J.
The ¡circuit court sustained a demurrer to an indictment ¡charging appellee with having-violated the election laws of the State while acting as a judge of a primary election by electioneering with a voter. The State has appealed.
The indictment was framed under a section of the general election law of the State which contains the following provisions: “No officer of election shall do any electioneering on election day. No person whomsoever shall do any electioneering in any polling room or within one hundred feet of any polling room on election day.” Kirby’s Digest, § 2823. The election at which appellant is alleged to have served, and during which service he is charged with offending ¡against the statute, was the primary election held by the Democratic, party on March 25, 1914, for the purpose of nominating the candidates of that party for State and' county offices. The trial court held that the statute quoted above was confined in its .operations entirely to general elections, and not to primary elections. We think the court was right in that construction of the statute, for we find no statute of the State which makes electioneering iat the polls of & primary election an offense. The general election law of the State (Ch. 57 of Kirby’s Digest) was made applicable only to the regular biennial elections of the State and special elections held to fill vacancies. It had no application to primary elections, for they were unknown to our statutes at the time our last election law was passed by the General Assembly of 1891.
The first law on the .subject of primary elections was enacted by the General Assembly of 1895. The first section declared that whenever any political party in the State .shall nominate candidates by primary election, “the said primary election shall be and is hereby made a legal election,” but that the act should not apply or be in force unless the county central committee of the party should so declare and file a certificate thereof with the county clerk. Then the statute went on to provide for the selection of judges and clerk's of the election, and prescribed penalties for certain misconduct on the part of those officers. The next primary election .statute was passed 'by the General Assembly of 1909, and it repealed the first section of the Act of 1895, and substituted another section which omitted the provision leaving it optional with the county central committee about making the primary election a legal election and ’declares that whenever any political party .shall nominate candidates by primary election, “the said primary election shall be and is hereby made a legal election. ’ ’ That act provides, however, ’that the judges and clerks of election shall be selected by the county central committee of the party, and provides penalties for certain acts or misconduct of the judges and clerks of election. It contains however no provision against electioneering on the part of the election officers. It can not be successfully urged, we 'think, that the Legislature, in declaring primary elections to be legal elections, intended to bring them within the whole scope and operation of the election laws of the State. Other and more appropriate language would have been used if isuch had been the legislative intent. The mere declaration that a primary election' “■shall be and is hereby made a legal election” is not sufficient to show a legislative intent to bring the subject within the operation of the election laws. The fact that the Legislature went further and provided the method of selection of judges and clerks, their qualifications for office and duties, and named other provisions—some >of them the same as those prescribed by the general election laws and others inconsistent therewith-—shows that the lawmakers intended by that act to lay down all the rules that 'they deemed sufficient to control primary elections. However incomplete the statutes of the State are at this time with respect to the control of primary elections, they represent, at least in concrete form, all that the lawmakers intended to prescribe. _ We are unable to discover any language used which would warrant a .stretch of the general election law of the .State in all of its provisions to primary elections. Criminal statutes are strictly construed, and it would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication.
Counsel for appellee contend that even if the language of the first section justified an inference that the Legislature intended to bring primary elections within, the operation of the general election law, it would be violative of that part of the Constitution which contains an inhibition against extending laws by reference to title only; but we find it unnecessary to pass upon that question, for the reason that we have reached the conclusion, as above announced, that such was not the intention of the Legislature, and that the language was not suffi cient to indicate su-cb a purpose on the part of the lawmakers.
Judgment affirmed.
Kirby and Smith, JJ., dissent. | [
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Wood, J.,
(after stating the facts). The court found the facts, as requested by the appellant, to be “as stated in the deposition of Henry M. Wise.” Therefore, if in any view of the facts as stated in the testimony ef Wise the judgment of the court is correct appellant is in no attitude to complain, and the judgment in favor of the appellee as against appellant must be affirmed.
The testimony of Wise would warrant the court in finding that the hay in controversy was delivered to intervener on consignment; that it had advanced the money to Sharpe, the consignor, on account of these particular cars; that under the contract it was to sell the hay and out of the proceeds, after paying the amount of the advancement and the costs and commissions, the intervener was to account to Sharpe for the balance; that the consignor Sharpe held bills of lading which recited that it was to be delivered to his order, and that before the attachment was issued he had endorsed and mailed these bills of lading to the intervener.
On the facts as thus stated, the court was correct in declaring as a matter of law that the intervener had a factor’s lien on the cars of hay in question. The endorsement and delivery of the bills of lading was sufficient at the common law to transfer the possession of the bay to the intervener. Durr, et al. v. Hervey, 44 Ark. 306; Turner v. Israel, 64 Ark. 244. See also, Puckett v. Reed, 31 Ark. 131.
The facts also, as they may have been found by the court, were sufficient to bring the case within the doctrine of May v. McGaughey, 60 Ark. 357, where we •said: “By the common law, a factor and commission merchant has a lien upon the goods of his principal in his hands as security for all advances made to such principal, in connection with the goods consigned.”
Here the advancement made by the appellee to Sharpe, according to the testimony of Wise was not in the nature of a debt contracted without any reference to the business relations existing between them as principal and factor, but the advancement of $500 was made directly with reference to tibe relation between them as that of principal and factor. At least the testimony of Wise fully warranted the court in so finding. But our statute, Kirby’s Digest, chap. 15, p. 295, still further enlarges the common law rule and makes the one to whom a bill of lading has been transferred by endorsement and delivery “the owner of such goods * * * so far as to give validity to any pledge, lien or transfer given, made or created thereby,” etc. So under the facts of this record at the time of the issuance of the 'attachment there can be no doubt that the appellee had a factor’s lien and title to the cars of hay in controversy and the same therefore were not subject to attachment. See Jennings v. McIlroy, 42 Ark. 236-241; Buck v. Bransford, 58 Ark. 289-291. See, also, United States v. Villalonga, Book 23, p. 64, L. C. P. Co. (ed.) U. S. Sup. Ct. Reports, and case note.
The judgment of the court, therefore, in favor of the intervener, dismissing the attachment, is affirmed.
The intervener was entitled to a judgment against the Bunch Company, plaintiff in 'the attachment, only for costs and the proceeds of the property in its hands as custodian. The property, under the orders of the court had been taken from the sheriff and put in the hands of the Bunch Company as'custodian and the property ordered to be sold. Where attached property has been sold under the orders of the- court and the proceeds are in the hands of the sheriff or the custodian, in whose hands it was placed by the court’s order, a. judgment can not be rendered in favor of an' interpleader against plaintiff in the attachment for the value of the property. “A judgment for an intervener in .an attachment suit should be for costs and the proceeds of the property in the sheriff’s hands, and not for the property or its value, where the attached property has been sold and the proceeds delivered to the sheriff.” Fly v. Grieb’s Administrator, 62 Ark. 209. See also, Smith v. Lee, 73 Ark. 451.
The court erred in rendering judgment against the appellant for the value of the property, but there is no evidence that the value of the property exceeded the proceeds of the sale. No evidence as to what the value of the property was, therefore the error in this particular was not prejudicial, and the judgment is affirmed.
But the court erred in rendering judgment against the Casualty 'Company, the surety on the attachment bond of the Bunch Company. That bond bound the Bunch Company and its surety, the Casualty Company, to pay “to said defendant the damages which he may sustain by reason of the attachment in this action if the order therefor is wrongfully obtained.” The order for the attachment was not wrongfully obtained. Moreover, the express language of the bond was to pay the damages which the defendant in the attachment might sustain. The object of the bond was to protect the defendant and not the intervener. The law is correctly stated in 4 Cyc. 765, as follows: “It seems that a surety on an attachment bond who undertakes to pay all damages which may be sustained by defendant is not liable for a trespass committed to the property of a third party.”
There was no breach of the bond as the attachment was not wrongfully obtained, and no damages to t'he defendant in the attachment. See Rodde v. Hollweg, 19 Ind. App. 222, 49 N. E. 282; Martin v. Turpin, 57 S. W. 459.
. The court therefore erred in rendering judgment against the Casualty Company, and the judgment as to it is reversed and the cause dismissed. | [
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Wood, J.,
(after stating the facts). The testimony of the engineer and fireman, employees in charge of appellant’s train, upon whose alleged negligence the liability of appellant to appellee was predicated, is perfectly reasonable and consistent. Their testimony was uncontradicted, and the jury had no right to arbitrarily disregard the same. St. Louis, I. M. & S. Ry. Co. v. Humbert, 101 Ark. 532, and eases there oited.
The undisputed testimony shows that appellee was a trespasser, and that the engineer and fireman, at the time of his injury, were keeping the lookout required by the statute, and that they did not discover the perilous situation of appellee, and could not have discovered the same in time to have avoided the injury for which he sues. The night was dark, and the position that appellee assumed in lying down upon the cross-ties at the cattle guard was such that the engineer and fireman did not and could not have discovered him in time to have prevented injuring him.
Witnesses who made the test as to the ability of one to see a person lying upon or by the' track from the engine corroborated the testimony of the engineer and fireman. The case is wholly unlike the oases of St. Louis, I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, and St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, infra, recently decided by this court. There the injury occurred in daylight, and .there was a .conflict in the evidence as to whether the employees had kept the lookout required by the statute.
While one of the witnesses says that he could see the gravel a distance of a quarter of a mile and could •see the cross-ties, the cattle guard and the “thing up by the side of it,” he testified that he could not and did not see the man until he was within fifteen or twenty feet of him. And the other witness testified that he could see a man on the' cattle guard as easily as he could see the .cattle guard; that he could see the side fenders on the cattle guard, and that if there had been a man on his side he could have seen him because the light was bright; but he does not say at what distance he could have seen him. There was no man on his .side, and he therefore did not see the man who was placed in the position that appellee was in when his injury occurred.
There is no testimony to sustain the verdict. The judgment will therefore be reversed, and as the case has been fully developed the cause will be dismissed. | [
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WAod, J.
The question presented by -this appeal is Whether or not a verdict finding appellant to- be the father of a child in bastardy proceedings- is sustained by the testimony alone of the mother of the -child, to the effect that the appellant had s-exnal intercourse with her on the 10th of -September; that she discovered that she w-as pregnant -about the middle of October, -and that appellant was the father of the chil-d, the witness stating also that -at that time she had a living husband.
Under our statute the another is a competent witness in all cases of 'bastardy unless she be legally incompetent in any case. Kirby’s Digest, § 492; Barnett v. State, 16 Ark. 530. It is not necessary that her testimony be corroborated. Qualls v. State, 92 Ark. 200. She may testify to any fact tending to prove the illegitimacy of the child except the .single fact of nonaoeess of her husband.
In 1734 Lord Hardwicke, in R. v. Reading, Lee, T. Hardwicke, 79, announced the rule that in affiliation proceedings the bastardy of a child could not be established upon the sole and uncorroborated testimony of the mother of such child as to nonaccess of her husband. This rule prevailed in England down to 1777, when Lord Mansfield, in Goodright v. Moss, 2 Cowp. 591, declared as follows: “It is a rule founded in decency, morality .and policy that they” (huslband -and wife) “.shall not be permitted to say, after marriage, that they have had no connection and that therefore the offspring is spurious. ’ ’
The weight of authority in this country at the present time is in favor of the doctrine announced by Lord Mansfield, -and it is now generally held that, in the absence of a statute authorizing a married woman to testify as to the fact of nonaccess of her -husband, she is incompetent to testify -to that single fact in -an affiliation or bastardy proceeding. 3 Ruling C-a.se Law, § 11, p. 731; 6 Am. & Eng. Ann. Cas. 816, note.
In Tioga County v. South Creek Township, 75 Pa. St. 433, the court said: “Many reasons have been given for this rule, prominent among them is the idea that the admission o.f such testimony would be unseemly -and scandalous, -and this is not so much that it reveals immoral conduct upon the part of the parents, as because of the effect it may have upon the child who is in no fault but who must nevertheless be the chief -sufferer thereby. * * * That the parents .should be permitted to bastardize 'the child is a proposition which shocks our sense -of right and decency, and hence the rule which forbids it.”
There are respectable authorities holding that under statutes making the mother a competent witness in bastardy proceedings, she may testify to the nonaeoess of her husband. See Pleasant Evans v. State ex rel. Irene Freeman, 165 Ind. 369; also, State v. McDowell, 101 N. C. 734. But we are in full accord with the doctrine that, on the ground of decency and morality and as a matter of public policy, a husband -and wife should not be permitted to testify to nonaccess in affiliation proceedings. For when they so testify they proclaim their own lechery and their infidelity to each other and reveal secrets that are so purely delicate and personal as to make it grossly indecent to advertise them to the world. By so doing they not only scandalize the sacred marital relation, but they cast a cloud upon the life of the unoffending (child, .and subject it to handicaps land embarrassments that are always most hurtful and most difficult to overcome. In the interest of society (and for the benefit of the innocent offspring, this should never he permitted.
These are doubtless the reasons, out of which grew the presumption that a child bom in wedlock is legitimate. This presumption had its origin in remote •times and for ages was deemed conclusive.
“It was a maxim of the Roman law, and one which the (Common laiw copied, that the presumption is that he is the father whom the marriage indicates, and Montie,squie, alluding to it, observed that ‘the wickedness of mankiod makes it necessary for the law to suppose them better than they really are. Thus wé judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if .she.were chastity itself.’ * * * The early common law in England was that if the wife had isisue while her husband was within the four seas, that is, within the jurisdiction of the Kang of England, ■such issue was conclusively presumed to be legitimate, except upon proof of the husband’s imrpoitenoy; and 'even if he was beyond the four seas, he must have been away for so long a period before the birth of the child as to make it a natural impossibility that he could be the father.” 3 R. C. L., § 6, p. 726.
This rule, however, was gradually relaxed in England, .and now the rule there, as well as in this country, is that the presumption of legitimacy “may be wholly removed by proper and sufficient evidence showing that the husband was impotent, entirely absent so as to have had no intercourse or connection of any hind with the mother, entirely absent at the period in which the child must, in the course of nature, have been begotten, or present only under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse.” 3 R. C. L., § 7, p. 727.
In the absence of a statute in express words making the mother competent to testify to the nonaccess of her husband, we hold that ishe can not do so. Under ■our statute, as we have seen, the mother is a .competent witness. She may testify to facts which tend to prove that access on the part of her husband within the period of gestation was impossible, and if she testified to facts of that character there would be a question for the court or jury trying the issue to determine as to whether or not the presumption of legitimacy had been overcome. But, in this ease; there is no such testimony. She does not testify to .any fact that would warrant the conclusion that her husband did not have access within the period of gestation.
Mr. Chamberlayne, in his work on Evidence, in speaking of. the matters by which the presumption of legitimacy may be rebutted, says.: “Impossibility of procreation must, however, be established, in order to justify the affirmative action of the court.- Even a high degree of improbability is not sufficient for the purpose of bastardizing the offspring. * * * The question in each case is, of course, as to 'actual access on the part of the husband. That fact being proved or disproved, the judicial inquiry, as a rule, ceases. 2 Modem Law of Evidence, p. 1340, § 1089.
In this ease the mother testified that appellant had sexual intercourse with her and was the father of the child; but she also .states that her husband was living, and does not testify to any fact that would tend to prove nonaeeess on his part within the period of gestation, and there is no other evidence tending to prove nonaeeess of the husband. Therefore, the presumption of legitimacy has not been overcome, and the evidence is not legally sufficient to sustain the verdict. The judgment is therefore reversed and the cause remanded for a new trial. | [
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Smith, J.
Appellant was convicted of the crime of rape under the following indictment (omitting formal' parts) :
“The said Neal McLaughlin, on the 14th day of June, 1914, in the county and district aforesaid, in and upon one Martha Byford, a female person, forcibly, violently, and feloniously did rape and assault her, the said Martha Byford, then and there violently, forcibly and against her will and consent feloniously did ravish-and carnally know, against the peace and dignity of the State of Arkansas.”
It is insisted that the indictment is bad, and does not charge a crime, in that the “assault” is not charged to have been made until after the alleged ‘ ‘ rape, ’ and that the indictment is multifarious in alleging that the appellant “violently, forcibly and against her will and consent feloniously did ravish and carnally know. ’ ’
We think the indictment in this case is sufficient. It follows very closely the indictment set out in the case of Downs v. State, 60 Ark. 521, which was there held sufficient. This indictment meets all the requirements of the law. Beard v. State, 79 Ark. 293.
It is further insisted that the evidence is insufficient to support the charge, and that error was committed in the instructions given.
These questions are not before us for review. Such questions can only be presented by a bill of exceptions filed within the time allowed by law and fixed by the court. The record shows that the bill -of exceptions in this case was not filed for more than .a month 'after the expiration of the time allowed for that purpose. Appellant filed his motion for a new trial on the 2d of October, and was given thirty days within which to file his bill of exceptions, but no bill of exceptions was tendered to and signed by the judge until the 26th day of December, 1914,' and it was not filed in the office of the clerk until the 28th day of December, 1914. There is, therefore, no bill of exceptions in this case, and we can not consider either the sufficiency of the evidence or the correctness of the instructions. Green v. State, 96 Ark. 175.
The judgment of the court below is, therefore, affirmed. | [
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Hart, J.
App Davis sued the receivers of the St. Louis & San Francisco Railroad Company to recover the penalty provided in section 6620 of Kirby’s Digest, for charging a greater compensation for his transportation as a passenger than is allowed and prescribed by the act. The defendant company demurred to the complaint and the court sustained its demurrer. No judgment was rendered dismissing the complaint of the plaintiff and not even a judgment for costs was rendered.
• When the 'court sustained the demurrer the plaintiff had his election to amend his complaint, or, to rest and permit final judgment to be rendered dismissing his complaint and then appeal.
It is well settled in this State that no appeal lies where there is no final judgment. The order of the court sustaining the demurrer was not a final judgment but was interlocutory, merely.
It follows that the appeal must be dismissed for want of jurisdiction. See Benton County v. Rutherford, 30 Ark. 665; Radford v. Samstag, 113 Ark. 185, 167 S. W. 491, and cases cited; Harlow v. Mason, 117 Ark. 360.
It is so ordered. | [
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Wood, J.,
(after stating the facts). 1. The first question is, did the General Assembly have power, by concurrent resolution, to continue its committees for the purposes expressed in the resolutions after the adjournment sine die ¶
For the purpose of obtaining information looking to the enactment of laws to meet the requirements of Government, the appointment of committees by either branch of the Legislature, or by the concurrent action of both branches, is absolutely necessary for the efficient discharge of legislative functions, and is recognized under our systems of Government, both State and National. Ordronaux Constitutional Legislation, p. 373.
When such resolutions are constitutionally adopted concerning a subject-matter within the proper sphere for such resolutions they may have the force and effect of a law. Our own Constitution has recognized concurrent resolutions as one form in which the Legislature may express its will, and when it is expressed in the manner prescribed, and concerning those matters within the legitimate scope of concurrent resolutions, such resolutions may have the force and effect of law. Yet they were not regarded by the framers of our Constitution as of the same dignity and importance as a bill. The same solemnity and strictness is not required for the adoption of resolutions, as is to be observed in the passage of bills, except when the resolutions are disapproved by the Governor. Const, of Ark., art. 6, sec. 16. Concurrent resolutions are necessary, but have the force and effect of law only within the limited sphere incident to the work or legislation which the Legislature may complete before its final adjournment.
In Congress a joint resolution is regarded as a bill. See Cushing’s Law and Practice of Legislative Assem blies, p. 93. And in many of the States joint resolutions are recognized as equivalent to laws enacted by bill. See State ex rel. Peyton v. Cunningham, 18 Am. & E. Ann. Cas., p. 707, case note.
But such is not the case under our Constitution. Article 5, section 19, provides: ‘‘ The style of the laws of the State of Arkansas shall be: ‘ Be it enacted by the General Assembly of the State of Arkansas.’ ”
Section 21 provides: “No law shall be passed except by bill. ’ ’ And section 22 provides: ‘ ‘ Every bill shall be read at length on three different days in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day; and no bill shall become a law unless on its final passage the vote be taken by yeas 'and nays, the names of the persons voting for and against the same be entered on the journal and a majority of each house be recorded thereon as voting in its favor. ’ ’
Thus a clear distinction is made between bills and concurrent resolutions. The one can not take the place of the other. All laws must be passed by bill. Concurrent resolutions can not be used to enact laws.
Now, an investigation into the management of the various institutions of the State 'and the departments of the State Government is at all times a legitimate function of the Legislature. When the Legislature of 1915 assembled, it was a matter of common knowledge that the State treasury was depleted, the State heavily indebted, and 'there were charges of mismanagement on the part of those having control of the State charitable institutions. Under these .circumstances, it was peculiarly appropriate ■that the Legislature, in the interest of economy and honesty in all the departments of Government and the management of its State .charitable institutions, should institute an investigation to ascertain the facts as a basis for any remedial legislation that it might deem necessary.
As the only efficient method of making the investigation and' procuring the information desired, the General Assembly, by concurrent resolution, appointed its committees, and these 'Committees reported that they were not able to complete their work and make report before the time for the expiration of the session under the Constitution. The committees were the agencies of the General Assembly which created them, and so long as the Legislature was in session, it had full control over them. When it became apparent near the close of the session that the committees would not have time to make the investigation and procure the information contemplated for the purposes of any present legislation it was not only within the power of the Legislature, but was a proper exercise of that power, for it to continue the work of the investigation for the information of the Governor and the people generally, and as a guide for any future legislation that might be necessary. But this continuation or reappointment of the committees for the important work outlined for them after the adjournment of the Legislature was not a proper subject-matter for concurrent resolution. It could only be done by a bill enacting a law to that effect.
Under our Constitution, the Legislature has no power, by concurrent resolution, to appoint committees or to continue committees already appointed for the purpose of making investigations after the Legislature has adjourned. The principle controlling this question was announced by this court in Tipton v. Parker, 71 Ark. 193-196. There the question was as to whether the Senate had authority to direct a committee to make certain investigations after the adjournment of the Legislature and report its findings to the Governor. In that case we said: ‘ ‘ The committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law; and it is not within the power of either house of the General Assembly to separately enact a law, or pass a resolution having the force and effect of a law. To do this requires a majority of each house voting in its favor. Const. 1874, art. 5, sec. 23. '
“The only legitimate office, power or duty of a committee of the Senate, in the absence of a law, prescribing other functions and duties, is to furnish the .Senate which appointed it with information, and to .aid it in the discharge of its duties. ’ ’
It was there distinctly ruled that the committee dies when the body creating it dies, unless the committee is continued by law. The court, by the language used in that case, did not mean to hold or indicate, even by indirection, that a committee of the Legislature could be- continued by a concurrent resolution ¡beyond the .adjournment (sine die) of the Legislature. While the writer is the only member of the present court who participated in that decision, yet the majority of us concur in the view therein expressed, that to .continue or appoint a committee whose work of investigation is to go on beyond the session of the body which created it, requires the enactment of a law by bill, passed in the manner prescribed by the Constitution.
The principle .announced in Tipton v. Parker, supra, and here reiterated, is not only .sound, 'but if is .supported by the weight of authority in this country having Constitutions similar to our own. See State ex rel. Peyton v. Cunningham, 18 A. & E. Ann. Cas. 705, and authorities cited in note.
In jurisdictions where the Constitution expressly recognizes joint resolutions as equivalent to laws enacted by bill, such resolutions, when duly passed under the Constitution, are given 'the force and effect of laws. Such is the case under the Constitution of the United States and some of the States. As a fair illustration of this may be mentioned Olds v. State Land Commissioner, 134 Mich. 442, 86 N. W. 956. There the Constitution provides: “Every bill and joint resolution shall be read three times in each house before final passage thereof. No bill or joint resolution shall become a law without the Concurrence of a majority of all the members elected to each house.” Of course, under such constitutional provision a concurrent resolution, when 'Constitutionally passed, becomes a law the same as a law enacted by bill. But, as we have already observed, under a Constitution like ouns, a concurrent resolution duly passed is not a law, and can' not be used as a substitute for a bill. Mullan v. State, 114 Cal. 578-587; Lithographing Co. v. Henderson, 18 Col. 259; Boyers v. Crane, Auditor, 1 W. Va. 176; May v. Rice, 91 Ind. 546. See, also, Hiram B. Burritt v. Commissioners of State Contracts, 120 Ill. 322.
Counsel for appellants rely upon the case of In re Davis, 49 Pac. 160 (Kans.) There a committee was appointed under a concurrent resolution to investigate certain charges of bribery. The resolution itself did not expressly provide for the committee to continue its investigation after the adjournment of the Legislature creating it. The Supreme Court said: “ The concurrent resolution under which the committee claims the right to act contains no directions on the subject, and if the question • were to be determined solely on the resolution itself, it would follow that the committee is without power to proceed. But in the act making appropriations for miscel- ■ laneons purposes the ninety-fifth paragraph reads as follows : ‘ ‘ There is hereby appropriated $3,000 to pay expenses of committee officers, clerks, stenographers, witnesses and other necessary expenses incurred in an investigation for bribery,.as recited in Senate resolution No. 26, or so much thereof as may be necessary. ’ ’ Then, after reciting other provisions of the act, the .Supreme Court continues : “This act was approved March 15, and appears as chapter 11 of the Laws of 1897. The clause quoted lacks much of being clear or explicit, but it seems to contemplate a session of the 'committee 'after the 15th of May, rather than before, .and evidences an intent on the part of the two houses that the committee should sit after final adjournment. ’ ’
Thus it appears that the Supreme Court of Kansas upheld the right of the committee to proceed with the investigation 'after adjournment of the Legislature, not on any authority contained in the concurrent resolution, but on the authority of an act in which the Legislature manifested its intention to have the investigation continued after final adjournment of the Legislature.
In the instant ease the Legislature attempted to do ■by concurrent resolution that which they had no power to do, but which they did have the power to do by an act, as was done In re Davis, supra.
II. Our conclusion on the first proposition makes it unnecessary for us to discuss the question as to whether the expenses incurred by the committees could be paid out of the contingent expenses of the Legislature. But on account of the importance of the question, we will consider this, as it affords an additional reason for affirming the decree of the chancery court.
This question is likewise ruled by Tipton v. Parker, supra, where we .said: “The expenses of this Senate committee were not incident to .any legislation originating in the Senate, and could not properly be classed as contingent expenses of that body. ’ ’ The same doctrine applies here to the expenses of these committees. They were not incident to any legislation originating in the General Assembly of 1915, and could not be classed as contingent expenses of that body. When the Legislature of 1915 adjourned sine die, there could be no future contingent expenses of that Legislature except .those that were necessary to enroll and put in shape for publication the laws that had been already enacted. It would be •a contradiction in terms to say that there could be contingent expenses of a Legislature after that Legislature had ceased to exist.
' The act making appropriations for contingent expenses of the Legislature nowhere makes appropriation, as was said In re Davis, supra, for'the payment of expenses of committees that had been continued for the purpose of making certain investigations. Article 5, section 29, of the Constitution, provides: “No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which ■shall be distinctly stated in the bill. ’ ’
Even if the Legislature, by concurrent resolution, could have continued its committees after final adjournment, it could not by resolution under the above provision of the Constitution, appropriate the money necessary for the payment of the expenses of such committees out of the funds appropriated to pay the contingent expenses of the Legislature. To do this would have required a bill making the speoific appropriation. May v. Rice, Auditor, 91 Ind. 546. See, also, Reynolds v. Blue, 47 Ala. 711.
It follows that the decree of the Pulaski Chancery Court is correct, and it is therefore affirmed.
Kirby, J., dissenting. Smith, J., concurs in the judgment. | [
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■Smith, J.
Appellant, L. F. Maynard, sued as next friend for his infant .son, and stated the following facts ■ as constituting his cause of action. That on July 19, 1897, one Eli Abbott conveyed to his daughter, Nevada P. Maynard, a tract of land situated in Randolph County, Arkansas, comprising 440 acres. That said lands were granted to said Nevada P. Maynard .and “to her natura! heirs,” and the consideration therefor was the love .and affection of the father for his daughter. That on December 1, 1897, the said Nevada P. Maynard died intestate, leaving her surviving her husband and the said Victor P. Maynard, her only child and natural heir. That while the deed recited a consideration of $5,000, there was in fact no consideration, except love ¡and affection, and that the term, “natural heirs, ’ ’ used in said deed was intended and understood by both grantor and grantee to mean heirs of her. body, and was so expressed at and before the time of the execution of said deed by said grantor. That on July 22, 1913, judgments were rendered in the Randolph circuit court against L. F. Maynard in his individual capacity, and an execution later issued against him, and was levied upon his curtesy interest in the lands above referred to, and on April 4,1914, the sheriff of that county sold said interest to appellees and executed a cer • tifioate of purchase, and, upon the expiration of the period of redemption, will make a deed therefor, which will Constitute a cloud on the title of said infant. A demurrer to this complaint was sustained, and, appellant declining to amend, the complaint was dismissed, and this appeal has been duly prosecuted.
The question in the case is whether L. F. Maynard had curtesy in these lands, and that question is decided by a determination of the construction to be given the deed to Nevada P. Maynard.
(1) Equity will interpose to prevent the execution of a deed, which it would cancel as a cloud, if it were executed. 5 R. C. L. 663. Talieferro v. Barnett, 37 Ark. 517. And the execution of a deed by the sheriff would constitute a cloud on the infant’s title. White Sewing Machine Co. v. Wooster, 66 Ark. 382.
This sheriff’s deed will not only purport to convey an interest in these lands, but will actually convey an interest, if the term, “natural heirs,” is to be given the meaning contended for by .appellee.
In the case of Johnson v. Knights of Honor, 53 Ark. 259, it was held that the word “heirs,” when used in any legal instrument, with no context to explain it, should be understood in its legal and technical sense. There is nothing in the context of the deed under consideration to indicate the term, “natural heirs,” was not used in its legal and technical .sense. This conveyance was not to the daughter and her heirs general, but to her and her “natural heirs,” and as we can not assume this word “natural” wias surplusage, we must give it its technical meaning, whatever that may be, when thus used.
Bouvier’s Dictionary gives the following definition of natural heirs: “As used in a will and by way of ex-ecutory devise, .they are considered as of the same legal import as ‘heirs of the body.’ ”
The definition given in Anderson’s Dictionary is “Heir of the body or natural heir. An heir begotten of the body, a lineal descendant.”
Black’s Law Dictionary, however, defines the term as follows: “Heirs by consanguinity as distinguished from heirs by adoption, and also as distinguished from collateral heirs.”
Four cases are cited in support of the definition given in Black’s Law Dictionary as follows: Smith v. Pendell, 19 Conn. 107; Markover v. Krauss, 31 N. E. 1047; Miller v. Churchill, 78 N. C. 372; Ludlum v. Otis, 15 Hun 410.
The case of Ludlum v. Otis, involved the construction of the will of a testator who left no descendants. The syllabus in that case is as follows: ‘ ‘ The testator left him surviving a mother, a sister and cousins, but no widow or children. Held, that by the term, his ‘natural heirs,’ the testator meant his mother and sister.”
We quote the following language from the opinion in that case: “Who were his natural heiris? We should say to a man reared and educated in New York the term, ‘natural heirs,’ would be understood .and regarded as a mother and sister, rather than cousins in any degree. * # * It results from these views that the devise of New York property is to his mother and sister as his natural heirs, or that the devises are so indefinite as to invalidate it as a devise to any one, and in that case the property descends to the mother and sister, and, after the death of the mother, to the sister alone.”
The North Carolina ease cited above supports the definition given by Bouvier land Anderson. The syllabus in that case is as follows: “Where .a testatrix bequeathed a ¡certain sum to each of two sisters, M. and N., and, ‘in the event of the death of either without natural heirs,’ the .amount I have bequeathed shall go to the survivor.’ Held, that the words, ‘natural heirs,’ mean children or issue, and, upon the death of M., the bequest to ■her goes to N. ’ ’
The ease of Markover v. Krauss involved the construction of ¡a ¡statute of the .State of Indiana relating to the ¡adoption of children.
The New York case ¡and the North Carolina case referred to above construe the wills of testators who used the term, “natural heirs,” but there were no children or descendants of ¡children to whom that term could be ¡applied in either of those cases. The remaining case cited in support ¡of Black’s definition is the case of Smith v. Pendell, 19 Conn. 107, in which case the testator devised his lands to his granddaughter in the following terms: '
“And to my beloved granddaughter, Elizabeth Smith, I do give all the remainder of my lands and estate, hoping that she may live to enjoy the same, but if the said Elizabeth Smith ¡should die leaving no natural heirs, my will is that the ¡same shall go to my said daughter-in-law, Hannah Smith, mother of the said Elizabeth, and to be her own.”
In construing this will that court ¡said: ‘ ‘ The words, ‘natural heirs,’ and ‘heirs ¡of the body,’ in a will and by way of executory devise, are considered as of the same legal import. The cases are very numerous which confirm this construction, many of which are referred to in the case last cited (Hudson v. Wadsworth, 8 Conn. 348.).”
While the subject is not free from doubt, we think the term, “natural heirs,” is not to be construed as meaning heirs general. To so ¡construe the term would be to treat the word “natural” as .surplusage; and we think the definition given in Bouvier’s and Anderson’s dictionaries is to be preferred to -the ene given in Black’s Dictionary, in so far as those definitions differ.
Having reached the conclusion that the term, “natural heirs,” does not mean heirs general, we find the remaining questions involved in this ease have already been decided by this court. By statute, a common law fee tail is turned into a life estate in the first taker, and passes in fee simple to the person to whom the estate would first pass from that person according to the course of the common law. Kirby’s Digest, § 735; Wheelock v. Simons, 75 Ark. 21.
In the case of Wilmans v. Robinson, 67 Ark. 517, it was decided (to quote the syllabus):
“A deed of conveyance to the grantee and her bodily 'heirs creates a fee tail at common law, whereby, under the statute, the grantee takes an estate for her natural life, with remainder in fee in her children. ’ ’
The opinion in that case quoted from Kerr on Beal. Property, section 496, as follows: “The rule in Shelley’s case * * * is a rule of construction, and not of law; simply providing that where an estate of freehold is limited to a person, and the same instrument contains a limitation, either mediate or immediate to his heirs, or the heirs of his body, 'the word ‘heirs’ is a-word of limitation; that is, the ancestor takes the whole estate comprised in the term. If the limitation be to the heirs ‘of his body,’ he takes a fee-tail. If to his heirs generally, he takes a fee simple. ’ ’
It follows, therefore, that Nevada P. Maynard took an estate for life, with remainder in fee to the infant who sues here by his next friend, and, therefore, L. F. Maynard has no curtesy interest in the lands sold under the execution, and the decree of the court below will, therefore, be reversed and the cause will be remanded with directions to overrule the demurrer and for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
The plaintiff instituted this action against defendant railway' company to recover for injuries alleged to have been sustained while she was at tempting to board one of the trains as a passenger. Negligence of the company’s servants is alleged in failing to stop the train a sufficient length of time and at a proper place to enable her to board the train; and that in walking down the platform to get to the coach she stumbled over a rock or other obstruction and sustained severe physical injury. Willful misconduct on the part of the conductor is also alleged in refusing to back the train up to allow plaintiff to get aboard, and that on that account she was denied the privilege of riding to her destination and was forced to walk through the rain and mud a distance of three miles, to her great injury and inconvenience. The plaintiff prayed for .compensatory and also for exemplary damages, and the jury awarded $1,000 for the first named element and $500 for the latter.
The occurrence which is the subject-matter of. this controversy was at a flag station on defendant’s road about three miles east of Argenta. The plaintiff had been working for several weeks at a plant near that station, and relinquished her employment there on the day her injury occurred. It was .Saturday night, and she desired to board the train to come to Argenta. It was a local passenger train and passed this station a little before 8 o’clock, and the weather was bad — it was dark and rainy. There were several other passengers besides plaintiff, one of them a man with a .lantern, who flagged the train as it approached. There was a small gravel platform, according to the evidence, and the front coach, which was the coach for colored .passengers, stopped at this platform. Plaintiff’s brother was with her, and they started to board the train, but the porter directed them to go on down to the last coach, and they started in that direction; and after walking a short distance, but before they reached the last coach, plaintiff stumbled over a log or some other obstruction and fell down, her side striking one of the ties, and severe injury was inflicted. The evidence tends to show, also, that the train moved out from the station before the plaintiff and her brother and the other white passengers could get down to the entrance to the coach where they would be admitted. The train pulled up a short distance — 150 or 200 yards — and the main with the lantern again flagged it, when it was stopped and backed down a .short distance and the man climbed 'aboard from the rear. The conductor was informed that there were other passengers, but he declined .to back the train down again, stating, according’ to the testimony of one of the witnesses, that he had passengers aboard who had paid three or four dollars fare and that he would not back up again for six-cent passengers. Plaintiff and her brother walked to Argenta that night and were exposed to the bad weather. The evidence tends to show that the-injury received by plaintiff from the fall was painful and severe.
The first assignment of error relates to. 'the ruling of the 'Court in giving one of plaintiff’s instructions, which reads as follows:
“If you believe from the evidence that plaintiff, at the regular stopping place prepared for passengers by defendant, offered herself as such passenger and put herself under the control and direction of employees of defendant in charge of its train, then she was a passenger of defendant. The court instructs you further that a carrier of passengers owes its passengers the highest degree of care consistent 'with the reasonable and practicable operation of its train, and is liable for the smallest negligence which results in injury to. its passengers, and if you believe from the evidence that by reason of the failure of the defendant to exercise such high degree of care for protection of plaintiff after .she offered herself as a passenger on defendant’s train, she received the injury alleged, then defendant is liable, and your verdict should be for plaintiff. ’ ’
We are of the opinion that this instruction placed npon defendant too high a .burden oif care, and was erroneous. The injury of plaintiff resulting from the fail, if from 'any negligence at all, was caused by the failure of the defendant to provide a prosper station platform to enable passengers to board the trains, -arid the rule in such oases is, as we have said, that the railroads are re quired only to ‘ ‘ exercise ordinary care in providing station platforms that will secure their passengers insofar as they earn do so, against any injury, that may result from the use of them.” St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255. 'The same rule was announced in the later ease of St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311.
The correct rule is stated toy Mr. Elliott as follows : “A railroad company is under a duty to exercise ordinary .and reasonable ©are to so 'construct and maintain station buildings, or depots and appurtenances, that they ishall toe safe for use toy passengers. The duty respecting the construction and maintenance of station buildings is not so rigorous as that imposed upon railroad carriers in relation to roadbeds, tracks, cars, appliances and the like. Some of the cases seem to lose sight of the difference between ¡the duty respecting station buildings and that respecting means ¡and modes of conveyance, but the well-reasoned cases recognize the distinction and affirm that a railroad company that exercises ordinary care in constructing and maintaining station buildings and appurtenances in a reasonably safe condition for use is not guilty of negligence.” Elliott on Railroads, Yol. 4, § 1590.
The measure of care stated in the instruction which the court gave .applies only to the operation of trains, and not to stational facilities. Counsel for plaintiff rely upon the recent case of Prescott & N. W. Ry. Co. v. Thomas, 114 Ark. 56, 167 S. W. 486, decided toy this court. In that case the plaintiff was injured toy reason of a slippery substance toeing placed on one of the steps of the oar which caused her to slip and fall when sh,e was undertaking to alight from the train. We held that .the higher degree of care applied in that case for the obvious reason that the passenger in ¡stepping down from the coach was still under the immediate care of the .servants of the railroad company, and that they still owed her the high degree of care due while in the operation of trains. The steps of the train constitute a part of the appliances for the ac commoelation of .passengers boarding and debarking and the rule of care is the same as if the train was in actual motion, the reason being that the passenger is at that time within the entire control of those who are responsible for the handling of the train. Such is not the case, however, when a passenger is out on the platform and is merely seeking to board the train, and the rule in those cases is that only ordinary care is required; or, in other words, such ¡care as can be measured ¡by the conduct of a reasonably prudent person under the same circumstances. In the Thomas case, swpra, we called attention to the fact that the language of the instruction in that case only meant ordinary ¡care, for it said that the defendant under the circumstances mentioned owed to the passenger “the highest degree of care which a prudent and cautious man would exercise, reasonably consistent with its mode of ¡conveyance and the practical operation of its trains.” The instruction in the present case, however, goes much further and states the law to be, as applicable to the facts of this case, that “a carrier ¡of passengers owesi its passengers the highest degree off care consistent with the reasonable and practical operation of its trains and is liable for the smallest negligence which results in injury to its passengers.” The instruction says nothing about tibe degree of care which a prudent and cautious man would exercise under like circumstances. Other instructions along the same line were 'given and all of them were erroneous, and we think they were prejudicial.
In view of another trial of the case, we deem it proper to ¡say that the evidence was wholly insufficient to warrant a recovery of punitive damages. According to the evidence adduced by the plaintiff, the train had stopped for a few moments, and after it pulled out and moved away 150 or 200 yards it was stopped in response to the signals from the passenger with a lantern, then backed up and again put in motion, and the only particle of evidence upon which the plaintiff attempts to support a recovery is that the conductor wilfully refused to back up the train for the reason, as has been stated, that he was unwilling to back up for a passenger who was only to pay a fare of six cents. There is no evidence that the conductor knew that any misdirection had been given to the plaintiff or that no time and opportunity had been given her to board the train. All that is shown is that after he had 'stopped the train and backed it up and took on another passenger he refused to back up again. We have said that negligence, however gross, was not sufficient to warrant the infliction of punitive damages. Arkansas & Louisiana Ry. Co. v. Stroude, 77 Ark. 109. The most that the evidence shows in this case is that the conductor refused to back the train up again, and it is not sufficient to warrant the assessment of damages by way of punishment to the railway company.
The judgment is therefore reversed and the cause remanded for a new trial. | [
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Kirby, J.,
(after stating the facts). It is conceded that the testimony is sufficient to support the verdicts of the jury, but insisted that the court erred in summoning a special grand jury, in consolidating the cases for trial over appellant’s objection, and denying his plea of former jeopardy.
The law provides, section 2219, Kirby’s Digest, that the court, after the discharge of the regular grand jury, may in its discretion by an order entered of record, direct the summoning of a special grand jury.
The record shows that an order was made by the court directing the summoning of the special grand jury, and it was a matter within the discretion of the court, and this court will presume in the absence of a showing to the contrary that the condition existed required by the statute authorizing such order, which it was not necessary to specify therein. See Dunn v. State, 2 Ark. 229; Freel v. State, 21 Ark. 212; Edmonds v. State, 34 Ark. 720; Dixon v. State, 29 Ark. 165; Howard v. State, 72 Ark. 586.
It is next urged that the court erred in consolidating the cases for trial over appellant’s objection, and this contention must be sustained. This court, in McClellan v. State, 32 Ark. 609, and Halley v. State, 108 Ark. 224, condemned the practice of consolidating separate cases under different indictments for the purpose of trial, and held that the court was without authority against the objection of the defendant to order the cases to be tried together, and it has also been held that if the record is silent as to whether there was objection by the defendant to the consolidation of the cases, that he is held to have waived the irregularity and can not complain of the error. Silvie v. State, 117 Ark. 108.
The statute provides that an indictment must charge but one offense, except in designated cases where certain offenses not including violations of the liquor laws may be included in one indictment. Kirby’s Digest, § § 2230, 2231. But for this limitation upon the exercise of the trial court’s inherent power as it existed at common law, authorizing the consolidation of misdemeanor cases for trial upon the theory that the different offenses could be charged in one indictment, it could be done, notwithstanding the objection of the defendant. It is true there is much good reason for requiring the consolidation for trial of misdemeanor oases, and especially where the offenses charged are of a like kind or class, and against the same defendant, but it must continue to address itself to the Legislature for effecting improvement in our criminal procedure rather than to the courts, which are bound by existing laws.
It was not the purpose of Act 339 of the Acts of 1905, authorizing the consolidation of “causes of a like nature or relating to the same question,” to give the trial court authority to consolidate different criminal cases over the defendant’s objection for the purpose of a trial, and the court erred in ordering the oases consolidated over appellant’s objection.
We find no error in the denial of the plea of former jeopardy, the court having sustained it as to the charges for violations of the law by sales made at Nos. 122 and 124 South Main Street, and denied it as to all the charges of offenses committed at No. 120; it appearing from the testimony on the trial of the first indictments that .all the sales were made in the room of the building designated as 120 South Main Street, and there being a fatal variance between the offenses charged to have been committed in said indictments, and the proof made, there could have been no former jeopardy since the appellant could not have been convicted of any of the offenses charged under the last indictments upon said first trial. State v. Ward, 48 Ark. 36.
The court having erroneously consolidated the cases over the defendant’s objection, the judgments must be reversed and the cases remanded for a new trial unless the Attorney General elects within fifteen days to take a judgment of conviction in one case only. Since all the offenses were alleged to have been committed at the same place; the place being a necessary allegation in charging such offenses and the testimony introduced in support of all the charges could have been used to secure a, conviction of one which would operate as a bar to any further prosecution for any of such sales, it may be considered a trial for one offense only, if the Attorney General elects to treat it so, otherwise, the judgments are reversed, and the causes remanded for a new trial. | [
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Hart, J.
. On June 28, 1914, about 3 o’clock in the morning, the north-bound passenger train of appellant, consisting of an .engine and five coaches, ran into ;a herd of twelve or fifteen head of horses land mules at a road crossing just north of Tillar. Pour mules and one mare belonging to appellee were killed. This .suit was brought to recover damages therefor. The jury returned a verdict for appellees, and, to reverse the judgment, appellant prosecutes this appeal.
It appears from the record that the railroad was fenced at the crossing where the stock were killed; that the stock had been down in the bottoms and were on their way home; that the tracks at the crossing tended to show that twelve or fifteen head of stock had stopped there on the west side of the railroad and the crossing looked like horses had been stamping around there all night.
Eonr of the animals were thrown over the fence, two of them on each side, about 150 feet from the crossing and about forty feet from the right-of-way. The mare was thrown up against the fence but not over it. The crossing where the stock was killed was thirty or forty feet wide. The mare weighed about 1,100 pounds. Three of the mules weighed about 800 pounds each; the remaining mule about seven hundred pounds. Their value was testified to by the owners.
Both the engineer and the fireman testified for appellant. They said that they whistled for the crossing and that the railroad track curves to the right just before the crossing is reached; that the headlight was burning brightly and that the engineer did not discover the animals on the track until he was in two. or three hundred feet of them; that he was keeping a lookout, and just as soon as he saw them applied the brake in emergency but was unable to stop the train before it reached them. He said that the train never did come to a full stop; that they were going at the rate of between twenty and thirty miles an hour, and that it would have required 650 feet to stop the train after the emergency brake was applied.
At the time the accident happened the fireman was down shoveling coal but raised up as soon as he heard the stock alarm signal sounded.
It is earnestly insisted by counsel for the appellant that the prima facie case of negligence against .appellant was overcome by the testimony of the engineer 'and fireman; but we do not agree with them. The evidence shows 'that there were twelve or fifteen head of stock which had stopped at the crossing and their tracks showed that they were resting there. All except five of them sue ceeded in .getting off the crossing. These were all pretty good .sized stock. The crossing was thirty or forty feet wide and there was la fence on each side of it. The testimony shows that two of the mules were thrown through the fence on one side ¡and two on the other. The mare was also thrown up against the fence. Under these circumstances the jury was justified in finding that the train approached the stock without .any effort being made to check its speed.
The evidence shows that the land west of the crossing was cleared for .a considerable distance and that there was a field there. That there was timber to the east of the crossing; but that for about 100 yards there were but, few trees. When the situation of the stock and the surrounding ■circumstances are considered, the jury was warranted in finding that the engineer and fireman were not keeping the proper lookout, or that when they discovered the stock on the track at the crossing they made no effort to stop the train.
The judgment will be affirmed. | [
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Wood, J.,
(¡after stating the facts). It is unnecessary to set out land discuss in detail the evidence. The findings of fact of the ichancellor 'are in .accord with the preponderance of the evidence.
The appellants contend that the court had no jurisdiction to order a sale of tbe homestead of the minors in a suit for partition, 'and that for that reason the sale wias not voidable but was ¡absolutely void, and therefore one that could not be ratified by any subsequent conduct of the minors after becoming of age.
The contention of the appellants is unsound. The court locked to the 'allegations of the complaint or petition in partition to determine its jurisdiction. In that (complaint it was not ¡revealed that the land sought to be partitioned was the homestead of minors. The chancery court had jurisdiction over the subject-matter, that is, the partition of the lands, .and while it might have been erroneous for the chancery court to have ordered a sale of tbe land that constituted tbe homestead of minors, this error was one that did not render the decree absolutely void, ¡and the .error could have been corrected by ¡appeal in tbe same case.
The ¡court ¡having jurisdiction of the subject-matter, correctly held that Frank and Mamie Becker, the minors of William Becker, whose homestead right was sold under the decree for partition, having reached their majority, and ¡having executed and tendered a deed to the appellants to the land constituting the homestead, could not thereafter 'challenge 'the sale of the land to appellant®, and also 'correctly held that the appellants, by ■the consent of the purchaser, having ‘been substituted in his stead land 'executed a bond for the payment of the punchase money, were in no position to challenge the validity of 'the sale.
Learned counsel for appellants, in their brief, suggest ¡that the Donnelly heirs, who were minors and also heirs of William Becker and interested in his estate, had not ratified the sole, and that the sale should be cancelled because no bond had been executed by the ■guardian of the Donnelly minors for the protection of their shares as required under the provisions of section 5800 of Kirby’s Digest. But the appellants do not abstract .any pleadings, showing ¡that this was 'alleged by the appellants in their complaint as one of the grounds why the judgment should be vacated, and there is no testimony abstracted which 'shows that this was made an issue in the court below. It must be presumed, in the absence of anything appearing to the contrary in this record, that the court made 'all proper orders for the protection of the minors according to law in ordering the sale of the land for partition, and in the absence of proof to the contrary, it must be presumed that the guardians' of the Donnelly ■minors had executed the bond that they were required to give as such guardians before receiving any proceeds that might be coming to their wards as heirs out of the estate of William Beaker, deceased. Moreover, the appellants had been mlade parties to the suit for partition and if the provisions of section 5800 of Kirby’s Digest in regard to the execution of a bond by the guardians of the Donnelly minors ¡had not been complied with doubtless upon ¡the suggestion of this fact to the chancery court it would have made ¡all proper orders in the prem ises before exacting payment of the purchase money by the appellants. If is too late to raise this issue here for the first time, even if it had been sound when properly presented in the court below, which we do not decide.
Appellants allege as one of the grounds for vacating the decree that at the time the decree was rendered the estate of William Becker .was in process of administration by the probate court, and that more than $500 of claims had 'been probated and allowed, but not paid, and that he had no property with which to pay these claims except the lots that the chancery court had ordered sold in partition; that these facts were known to the parties to the partition suit and were knowingly concealed from the court for the-purpose of perpetrating -a fraud on the Court and the appellants; that the appellants at the time they signed the bond of the purchaser at the sale for the purchase money of the lot did not know of the fraud and they still did not know of such fraud at the time they were made parties to the partition suit and were, by order of the court, subrogated to the rights of Otto Holzer, the purchaser.
The court, as already stated, had jurisdiction to partition the land in controversy, and appellants voluntarily were made parties to the suit in partition before the commissioner in said suit was directed to collect the purchase money for which the land wlas sold, and for the payment of which by the purchaser, appellants had executed their bond. The matter of the estate of William Becker being in process of administration and the probation of claims against ithe estate being iall prior to the filing of the suit for partition land the decree of the court ordering the sale of 'the land for partition, these were matters pending before the probate court -and of public record before appellees were made parties to the suit for partition. They could -and should have been set up in that suit by the appellants ¡and if the court had proceeded to distribute the proceeds of the siale in the face of allegations and proof that the estate was indebted and in process of administration 'and 'that these lands were the only assets of the estate out of which the debts could be paid, ¡and had nevertheless .entered .a decree for final distribution of the proceed®., this would have been an error which appellants could have corrected on appeal. Being parties 'to the partition proceedings before the final judgment was rendered confirming ¡the sale and disposing of the proceeds of that sale, they should have presented these matters in that case and corrected ¡any error of the court by direct attack on that judgment on appeal. Their suit here is 'but a collateral ¡attack on the judgment of the chancery court having jurisdiction over the ¡subject-matter .and the parties, and that judgment is conclusive of the matters in regard to the administration pending in the probate court which ¡appellants now seek to have considered as a ¡ground for vacating .the judgment. Moreover appellants', by voluntarily executing the bond for payment of the purchase money by the purchaser and ■by having themselves made parties .and .substituted in his stead; <and, as the .abstract by the appellees shows, having procured a deed from the purchaser and taken possession of the property and held the same out as their own, they are not in a position in this collateral proceeding to repudiate the sale which they had by their voluntary conduct .ratified. Furthermore, the chancery court has directed the proceeds of the purchase money to be paid by the 'appellants .and, when collected 'by the commissioner, to be held to ¡await the further orders of the chancery court. The ¡chancery court ¡thus has it in its power to prevent any irreparable injury ito the appellants before the distribution of the money paid by them has been made.
The court was correct in dismissing the .appellants’ complaint for want of equity, and its decree is in all things affirmed. | [
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Hart, J.,
(.after stating the facts). It is conceded by counsel for the plaintiffs that under the rule announced in the cases of Horsley v. Hilburn, 44 Ark. 458, and Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, that Lucinda Plumlee had a life estate in the lands in question and that plaintiffs only had a contingent remainder therein.
It is ¡contended by ¡counsel for the defendant that under the sixth subdivision of section 3228 of Kirby’s Digest a contingent remainder ¡can be sold under execution.
In 17 Cyc. 951-2, is .said that the doctrine is well established that a vested remainder is ¡subject to sale under execution but that the authorities are divided on the question of whether a contingent interest, such as a contingent remainder, is liable to be sold under execution.
In some of the States, under statutes similar to our own, it is held that all interest in real estate, whether it be regarded .as vested or contingent, is subject to sale under ¡execution. In other States, under similar statutes, it has been held that a contingent interest in land can not be sold under execution. The reason given is that such a ¡policy would encourage gambling and speculation and that the purchasers iat such sales would not put a high estimate on the possibility of the defendant in execution afterward acquiring any interest in the land and that the danger of sacrifice is ia strong reason for not subjecting contingent interests to sale under execution. This court has already taken a position on the question.
In the case of Horsley v. Hilburn, supra, F. M. Hilbum, guardian of certain minors, who owned a contingent interest in land, procured an order for their sale during the lifetime of the wards ’ mother, who owned the life interest in the land. The court 'held that ¡minors had no interest during the lifetime of the life tenant that could he sold with or without the consent of the donor. Mr. Justice Bakin, who delivered the opinion of the court, in reference thereto, said:
“For like reason there was nothing in the ward of F. M. Hilibum which could he sold under order of the probate court during the lifetime of the mother. There was no error in permitting the proof to be made, by parol, of the loss of the records, and of 'the proceedings which had been taken. The sale passed .all that the wards had in the land that was salable, .and which the probate court could .authorize to be sold, but that was nothing. Nor was the sale effective to carry subsequently ¡acquired title. Section 642 of Mansfield’s Digest upon this point, applied only to voluntary sales by the persons to be bound. It is to the effect that ‘if any person shall convey,’ etc., having no title at the time, and shall .afterward acquire title, legal or equitable, it shall pass to the grantee.”
The principles there announced are conclusive of the present case. Lucinda Plumlee, the owner of the life estate, being still alive, the plaintiffs had nothing which could be sold under execution. The sale amounted to nothing and did not even constitute a cloud upon the plaintiffs ’ title.
It follows that the court was right in dismissing the complaint of the plaintiffs, .and the judgment will be affirmed. | [
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George Rose Smith, Justice.
The appellants, Vaughn and Wilkins, were charged with burglary and grand larceny. The State alleged that on the night of January 21, 1971, they broke into a laundry pick-up station in Little Rock and carried away a safe. They appeal from a judgment finding them guilty and sentencing them to the penitentiary. Wilkins questions the sufficiency of the evidence; Vaughn argues other points for reversal.
First: Wilkins’ appeal. A witness who lived near the pick-up station heard a noise at about 11:15 p.m., looked out, and saw two or three persons pushing an object down the street. The witness dressed hurriedly, got in his car, and was able to note the license number of another car as it left the scene. The police were called, who found that the station had been forcibly entered and a safe taken away. The officers ascertained by radio that the suspected car was owned by Bertha Jean Wakefield. They arranged for her house, some miles away, to be watched until the car returned. Within about an hour the arrival of the car was reported.
' A number of officers went to Mrs. Wakefield’s house, entered with her permission, and searched the premises. They found Wilkins under a bed and Vaughn hiding in a closet. The car was searched, but no trace of the missing safe was discovered. Mrs. Wakefield testified that she had lent the vehicle to Vaughn that afternoon. Vaughn, accompanied by Wilkins, brought the car back at about 12:30 that night. The men had whiskey and hot sandwiches with them.
Upon the foregoing proof we cannot sustain Wilkins’ conviction. All that the State proved was that Wilkins was with Vaughn in Mrs. Wakefield’s car more than an hour after the crime and that Wilkins hid himself when the officers came in the house. No witness identified Wilkins as having been at the scene of the burglary. In our opinion the evidence, wholly circumstantial, falls short of establishing anything more than a strong suspicion of Wilkins’ guilt. In Washington v. State, 251 Ark. 487, 473 S.W. 2d 157 (1971), we set aside a conviction based upon somewhat similar evidence, although there the State’s proof was slightly stronger than it is here. Thus Wilkins is entitled to a new trial.
Second: Vaughn’s appeal. Vaughn does not question the sufficiency of the evidence, not only because the suspected car had been in his possession but also because his confession of guilt was received in evidence. Vaughn relies instead upon asserted procedural errors.
He first contends that the trial judge should have sustained the defendants’ request that the prospective witnesses be excluded from the courtroom during trial. A dozén witnesses testified. When the State had concluded its direct examination of its first witness, a defense lawyer asked for the rule of exclusion, explaining that he had not been aware that all the witnesses were in the courtroom. The court denied the request on the ground that it came too late, that it should have been made at the beginning of the trial.
That ruling was error. We have two statutes on the subject. The older one is part of the Civil Code, Ark. Stat. Ann. § 28-702 (Repl. 1962), and provides that the trial judge “may” exclude from the courtroom any witness of the adverse party. That statute was formerly followed in criminal cases, but its application was held to be discretionary with the trial court. Trammell v. State, 193 Ark. 21, 97 S.W. 2d 902 (1936); Mikel v. State, 182 Ark. 924, 33 S.W. 2d 397 (1930).
By Act 243 of 1955, the title of which referred to the civil statute, the legislature provided that if the accused or his attorney requests it, the judge “shall” exclude any witness. Ark. Stat. Ann. § 43-2021 (Repl. 1964). The change from “may” to “shall” indicates a legislative intention to make the rule mandatory in criminal trials. Of course there might be instances in which a denial of the request would not appear to be prejudicial, but that is not the situation here. The State called as witnesses four police officers, who apparently heard one another testify. We must regard the error as having been prejudicial, for we cannot say with confidence that it was not. Connelly v. State, 232 Ark. 297, 335 S.W. 2d 723 (1960).
We find no error in the court’s ruling that Vaughn’s confession was voluntary. No coercion is shown, except that Vaughn was questioned intermittently for about twelve hours, beginning at 8:30 a.m. on the morning after his arrest. We need not set out the evidence in de tail, for the proof upon a retrial may be materially different. Nor do we discern either any want of probable cause for Vaughn’s arrest or any prejudice flowing from the officers’ testimony that he was arrested at Mrs. Wake-field’s house.
Reversed. | [
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Lyle Brown, Justice.
Appellant Thomas Mitchell Hildebrandt entered a plea of guilty to burglary and received a five year sentence. Some two years later he filed his petition under our Rule 1 alleging illegal procedures which denied him his constitutional rights. His petition was denied. On appeal it is contended that the trial court should be reversed because: (1) appellant was coerced by the prosecuting attorney into pleading guilty, and (2) the prosecution held a conference with appellant absent appellant’s attorney, thereby denying him effective assistance of counsel.
Appellant testified that the prosecuting attorney threatened to obtain a twenty-one year sentence if appellant did not plead guilty and take five years. He said the conversation took place in the courtroom and out of the hearing of appellant’s appointed counsel. Appellant said he was guilty and that he believed he would have been given the maximum of twenty-one years had he gone to trial. Roy Reynolds, a convict, testified in behalf of appellant. Reynolds said he heard parts of a conversation between appellant and the prosecutor; that the prosecutor asked appellant if he had agreed to take five years and appellant stated he had so agreed. Reynolds said he heard no threat but did hear twenty-one years mentioned in the conversation.
The state called C. B. Nance, Jr., the attorney who represented appellant at the trial, and Gerald Pearson, prosecuting attorney. Nance testified that he interviewed appellant several days prior to trial date and appellant said he was guilty of the charge. Thereafter, so Nance testified, he conferred with the prosecuting attorney’s office and negotiated a recommendation of five years. Pearson testified that he did not negotiate with appellant and that he always talked to a defendant (on rare occasion when he did talk to them) in the presence of defense counsel. “If I had any conversation with him it would be merely to reaffirm that he wanted to plead guilty, that our recommendation would be five years in the penitentiary.”
There was ample evidence to support the trial court’s judgment.
Affirmed.
Fogleman, J., not participating. | [
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John A. Fogleman, Justice.
Appellant Russell Parker was convicted of manslaughter by a jury following his trial for murder in the first degree. For reversal he alleges that the trial court erred when it denied his motion for a directed verdict and when it refused to call Rosemary Tones as the court’s witness. A review of the proceedings and evidence indicates that there was no error.
A verdict should be directed only when there is no factual issue to go before the jury. Keese v. State, 223 Ark. 261, 265 S.W. 2d 542; Ford v. State, 222 Ark. 16, 257 S.W. 2d 30. On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury’s verdict. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 3021; Stanley v. State, 248 Ark, 454 S.W. 2d 72. A conviction may be had on circumstantial evidence alone if there was substantial evidence to go to the jury because the law makes no distinction between direct evi dence of a fact and evidence of circumstances from which the existence of the fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201. In light of the foregoing rules we state the evidence which we find sufficient to make a jury question.
Richard Sanders had been visiting the appellant, staying in his cabin. All seemed to be going well until the Saturday night before the death of decedent Claude Still. Sanders had gone to sleep at the cabin but was awakened by Parker, who, Sanders said, had returned intoxicated, at about 3:00 a.m., after which the two had “words.” He further testified that Parker threatened to kill him and that he thought it best to leave. Sanders admitted that he was “tight.”
Sanders left without taking all of his clothes and equipment with him. It would have been necessary to have borrowed Parker’s four-wheel drive International Scout to take his belongings from appellant’s cabin to the place where Sanders had parked his vehicle, but Parker refused to lend him the Scout. Sanders met the younger Still and his father, D. C. Still, along the way and told them of his recent problems with Parker. Claude Still agreed to go back with him to appellant’s cabin to help him collect his gear in safety. Claude kne,w Parker and said that he could “cool him down.” Before going to the cabin Still armed himself with a .38-caliber revolver and a .45-caliber semi-automatic carbine. It appears that decedent also had been drinking.
Upon reaching the cabin Sanders hid behind some bushes while Parker and Claude Still talked. He saw them “square off” at each other, but Parker did not pursue the matter. After that it appeared to Sanders that Parker and Still were then “getting along great.”
Meanwhile Melvin Collins and his wife, who were taking a float trip on the Buffalo River, approached. They also had seen Parker and Still involved in menacing gestures. Melvin Collins also heard Parker threaten Sanders. Later though, it appeared to them that Still and Parker were getting along well. They said that there was drinking by all these persons and that they had given some of their beer to them.
Parker, Sanders and the decedent went to the cabin in the Scout and returned with Sanders’ belongings. These were stowed in the Collinses’ boat, and Sanders left with them. Still, left with Parker in the Scout, ostensibly to meet Sanders and the Collinses on the other side of the river. There was evidence that: the .38-caliber pistol was on the seat between the two; the carbine also was carried with them; Parker carried a .22-caliber rifle; Still was driving.
Mrs. Collins testified that Sanders fired a gun into the water. Shortly thereafter she heard some “hollering down the river” from the direction in which Parker and Still had headed. Then she heard three shots which sounded as though they had come from thé same place. Melvin Collins’ testimony was essentially the same. However, he also stated that Parker was “pretty drunk,” drinking heavily, staggering and slurring his words. All three witnesses testified that it had rained that afternoon.
D. C. Still stated that Claude did not come to work on Monday. The elder Still talked with Melvin Collins on Tuesday and was told of the events on Sunday. At this time he was not worried about his son because he had seen Parker recently at “Hall’s place.” However on Thursday he and Collins began a search for Claude. They found him in a “hole” of water away from the river. They also found the carbine lying at the decedent’s feet, but they were unable to find the .38-caliber pistol. They noticed a single set of tire tracks, which looked like those of Parker’s Scout, that crossed the river, came out on the other side and led to appellant’s cabin.
Sonny Wood, Claude’s brother-in-law, also went down to where the body was found. He said that the tracks were deep and appeared to have been made by a “mud or snow type” tire. He said that a check of the tires on Parker’s Scout revealed that they were mud or snow tires.
Fred Bearden, the sheriff of Marion County, testified that he had investigated the matter. He said that, in following the tire tracks, he noticed a place where some vehicle had bumped into a big rock along the side of the road. Part of the rock had been chipped off. Wood said that Parker’s Scout had a “dent and a banged up spot where. . . it looked to me that was the vehicle that had hit the rock.” He also testified that a second inspection of the vehicle revealed three or four spots that looked like drops of blood.
It was stipulated that Claude Still died from multiple gunshot wounds and that all bullets removed from his body were .38-caliber.
In a case strikingly similar to this one, arising out of the Western District of Arkansas, the testimony reflected that the deceased and the accused, one Bood Crumpton, after having spent the night together, rode off to visit some women who lived four miles away. Crumpton was armed with a pistol. About noon of that day shots were heard in the direction of where the body was later found. Toward evening of the same day Crumpton was seen returning to the house at which both had previously stayed. Crumpton told others that the decedent had left with another person in the latter’s buggy and that the decedent asked him to bring his horse back, take charge of all his effects and pay his debts if he did not return by a certain time. The body was not found for more than a month. It was .shown that the accused was familiar with the area where the body was located. The court said, “There is no doubt that this testimony was sufficient to lay before the jury, and it would have been improper to [have] direct [ed] a verdict for the defendant. The weight of the evidence and the extent to which it was contradicted or explained away by witnesses on behalf of the defendant were questions exclusively for the jury. . .” Bood Crumpton v. United States, 138 U.S. 361, 34 L. Ed. 958, 959, 11 S. Ct. 355 (1891).
We are well aware of Johnson v. State, 210 Ark. 881, 197 S.W. 2d 936, where we reversed the judgment of the trial court in which circumstantial evidence was used in convicting the defendant, but it is easily distinguished from the case before us. It is unnecessary to restate the facts in that case because the distinguishing features are clearly stated in that opinion. There we reversed, not because the conviction was based solely on circumstantial evidence, but, because the circumstances were not sufficient in the absence of any evidence of motive or cause for the alleged homicide. We noted that the state made no showing of trouble between the parties, nor ill will on the part of the defendant toward the deceased, nor proof that robbery could have been a motive.
The situation is different here. There was testimony from which it would not have been unreasonable for the jury to have concluded that: appellant was angered by the decedent’s aiding a man he had previously threatened to kill; Parker, surrounded by Still, Sanders and the Collinses, only feigned friendliness in order to get the deceased to leave the others and come with him; the dent found on Parker’s Scout along with the spots of blood sufficiently identified it as the vehicle whose tracks were found at the scene of the crime; the blood on the vehicle originated from Still’s wounds; and Parker used the .38-caliber pistol which was on the seat between them to kill Still. Both of the Collinses and Sanders had testified about hearing shouts and pistol fire coming from the direction toward which appellant and Still had gone. The terrain where the body was found was too rough for the ordinary vehicle to traverse. When we consider all this testimony, we are unable to say that there was not sufficient evidence to present a jury question.
We now consider appellant’s contention that the denial of his request to have Rosemary Jones called as a witness of the court was error. In his opening remarks to the jury the prosecutor indicated that Ms. Jones had talked with appellant and asked him if he had seen Still; Parker said the last time he had seen the decedent he was with Melvin Collins and Dick Sanders; she told Parker his story wasn’t true, and he then told her something else. This witness was not called by the state. Appellant sought to have her called as the court’s witness so that he would be free to impeach her testimony. This was refused.
The calling of a witness as the court’s witness in a criminal case, either for or against the accused, is a matter resting in the sound discretion of the court. Smith v. United States, 331 F. 2d 265 (8th Cir. 1964), cert denied, 379 U. S. 824, 13 L. Ed. 2d 34, 85 S. Ct. 49 (1961); 2 Wharton’s Criminal Evidence § 704 at 171 (12th Ed., 1955); 58 Am. Jur., Witnesses § 4 at 25; 98 C.J.S. Witnesses § 850 at 71; An-not. 67 A.L.R. 2d 588 (1959). In the instant case the trial judge offered to call Ms. Jones as a court’s witness to ask her specifically whether or not the events related in the prosecuting attorney’s opening remarks had in fact occurred. The court also offered to instruct the jury that the prosecuting attorney had failed to call Ms. Jones and that the jury should disregard the statements attributed to her. Both offers were rejected by appellant. However, the instructions read to the jury contained the standard instruction that opening statements were not evidence and should not be considered as such by the jury. Appellant makes no claim, either below or here, that Rosemary Jones was an eyewitness to any of the events forming the basis of appellant’s prosecution nor did he make any showing that he feared to call her because he was unable to vouch for her veracity. See People v. Robinson, 14 Ill. 2d 325, 153 N.E. 2d 65 (1958); People v. Laster, 413 Ill. 224, 108 N.E. 2d 421 (1952); People v. Cardinelli, 297 Ill. 116, 130 N.E. 355, (1921); 67 A.L.R. 2d § 3 at 544, et seq. When we consider all of these factors we find no abuse of discretion.
The judgment is affirmed. | [
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John A. Fogleman, Justice.
This appeal is a sequel to International Harvester Company v. Pike, 249 Ark. 1026, 466 S.W. 2d 901, and Burks Motors, Inc. v. International Harvester Company, 250 Ark. 29, 466 S.W. 2d 907, Supplemental Opinion on Rehearing, 250 Ark. 641, 466 S.W. 2d 943. The factual background is adequately stated in those opinions. In the first opinion, we reversed a judgment for personal injuries and property damage suffered by Earl Pike against International due to the failure of the trial court to grant a mistrial because of prejudicial remarks during closing arguments, and to submit the issue of Pike’s negligence to the jury. It was there recognized that Burks Motors had filed its separate appeal on a single point which was adverse to International; that the question submitted as to Burks’ liability to Pike was based on the issue of negligence only, while International’s liability hinged on either negligence or implied warranty or both; and that, as between International and Burks the total responsibility was fixed at 91% on International and 9% on Burks, and as between negligence in design and negligence in repair, the jury’s allocation was 90% and 10%, respectively.
Burks appealed from the judgment on its prayer for contribution under the Uniform Contribution Among Tortfeasors Act [Ark. Stat. Ann. § 34-1001, et seq. (Repl. 1962)] against International for 91% of the judgment against it, contending that it was entitled to a greater contribution. Burks only sought a modification, not a reversal of that judgment. The judgment was based upon answers to interrogatories by which the jury found both International and Burks guilty of negligence which was a proximate cause of the injuries and damage and allocated the responsibility as above set out. We refused the prayer for modification.
In a petition for rehearing and clarification, Burks asked that we state that its judgment against International for contribution was final and binding between these parties by reason of the judgment itself and International’s failure to seek contribution from Burks or to ask reversal of that judgment on appeal. International filed a petition for amplification of the opinion on Burks’ appeal asking that we declare that the entire judgment against it was reversed and remanded and that as a result the judgment for contribution was nullified. A similar petition was filed in its own appeal, claiming that unless and until there was an adjudication of liability against International on retrial, it could not possibly be a joint tortfeasor from whom contribution could be obtained. Burks also filed a petition for rehearing asking that we state that the judgment against it was reversed and remanded so that Pike would have no judgment against Burks, or, in the alternative, that we state that it was entitled to a 91% contribution from International.'
In our supplemental opinion on rehearing, we unanimously held that the judgment against Burks must be affirmed. By a division of four to three, we held that International had waived the point that there was error in the assessment of the liability between it and Burks. We said that point raised by the post-opinion motions other than that pertaining to finality of the judgment against Burks depended upon future developments and that they must be litigated in the trial court in the light of those developments, pointing out that Burks could not be entitled to a money judgment against International under any circumstances until Burks had either paid the judgment or discharged more than its pro rata share. We denied the petitions for rehearing except as to the finality of the judgment against Burks and as to Burks’ entitlement to a money judgment. Our mandate recited the affirmance of the Burks judgment against International.
Matters decided by us on the Burks appeal and on the petitions for rehearing are the law of the case and govern our action on this appeal to that extent, even if we were now inclined to say that we were wrong in those decisions. Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418. See also, Arkansas State Highway Comm. v. Lemley, 250 Ark. 186, 464 S.W. 2d 605; Wilson v. McDaniel, 250 Ark. 316, 465 S.W. 2d 100; Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W. 2d 673; St. Louis Southwestern Ry. Co. v. Jackson, 246 Ark. 268, 438 S.W. 2d 41. Nothing is before us for adjudication but the proceedings subsequent to our mandate. Fortenberry v. Frazier, 5 Ark. 200, 39 Am. Dec. 373, relied upon in St. Louis Southwestern Ry. Co. v. Jackson, supra.
After the filing of the mandate, the circuit court on July 30, 1971, credited the judgment against Burks with the payment on June 22, 1971, to Pike by National Union Insurance Company, a liability insurance carrier for Burks, of $65,887, consisting of $50,000 for bodily injuries, $10,000 for property damage and $5,887 accrued interest. This judgment allowing the credit contained a recitation that the payment in no way abrogated or interfered with the right of Burks or National Union to recovery over against International Harvester, Hendrickson Mfg. Co., O & S Co. or any other parties'made third party tortfeasors in the actions.
On the same date Burks filed its motion for summary judgment against International asking for a money judgment of $59,957.17, which Burks alleged was 91% of the amount paid Pike. International replied that substantial fact issues existed. It contended that, since there was no judgment against it in favor of Pike, International could not be said to be a joint tortfeasor with Burks, until there is such a judgment or some judgment finding that it is a joint tortfeasor. Subsequently, International filed a cross-complaint against Burks, seeking judgment over against Burks for $20,000 paid by International to Pike as a settlement and compromise of his claim. International denied any liability to Pike and alleged that in consideration of its $20,000 payment, Pike executed a release which extinguished Burks’ liability to him. International also alleged that there was a disproportion of fault between it and Burks and that the release of Burks entitled International to contribution from Burks as a joint tortfeasor under Ark. Stat. Ann. § 34-1001, the amount and proportion of which should be determined in this action. The circuit court granted Burks’ motion and rendered a money judgment in its favor for $57,527.17, on the basis of the original judgment for 91% contribution by International.
International contends that there are material fact issues to be litigated in a new trial and that the question of contribution cannot arise until it has been established in a new trial that International is liable to Pike. Appellant argues that the contribution claimant must first prove that the contribution defendant was originally liable to the injured party before the question of contribution can arise. There are two flaws in this argument. First, appellant overlooks the fact that these very matters were at issue on the first trial, and are settled by the law of the case, if not res judicata. The jury verdict was on interrogatories. The jury found that Burks and International were both negligent and that the negligence was ■ a proximate cause. We stated in the supplemental opinion on rehearing that International had waived its contention in its motion for new trial that the judgment against it in Burks’ favor was erroneous by failure to press the point on appeal. We did not consider International’s contention that Burks’ negligence was an efficient intervening cause, as a matter of law, relieving it of any liability, to be an attack on the apportionment of liability. We rejected that contention on International’s appeal. That is the law of the case and is binding, not only on the parties but on the courts. As a result, as between International and Burks, the two were found to be joint tortfeasors and their contribution determined. We pointed out that a money judgment was not proper until Burks had paid more than its pro rata share. This, it has now done. In Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169, we held that a judgment against the tortfeasor from whom contribution was sought was not essential, where the percentage of negligence between the joint tortfeasors had been established in an action to which both were parties, even though the injured party did not file an action against the tortfeasor from whom contribution was sought, much less obtain a judgment against him. We said that when the tortfeasor seeking contribution paid the judgment against it, and filed motion for contribution the court should allow it for that percentage of the payment the jury had fixed as the percent of negligence attributable to the tortfeasor not sued.
The second fallacy in appellant’s argument arises from another development subsequent to our mandate. International, by its own pleading for contribution by Burks on its $20,000 settlement, alleges that it is entitled to contribution from Burks as a joint tortfeasor under Ark. Stat. Ann. § 34-1001, et seq. But International is not entitled to contribution from Burks unless they are joint tortfeasors. Ark. Stat. Ann. § 34-1001 defines the term as follows:
For the purpose of this act the term “joint tortfeasors” means two [2] or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
Ark. Stat. Ann. § 34-1002 provides for the right of contribution among joint tortfeasors, and specifically prohibits recovery of contribution by one who makes a settlement from one who is not released from liability by the settlement. A party litigant is bound by his pleadings and the allegations therein and cannot maintain a position inconsistent therewith. Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S.W. 2d 866; Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W. 2d 485, cert. denied, 304 U.S. 569, 58 S. Ct. 1038, 82 L. Ed. 1534; Faulkner v. Faulkner, 186 Ark. 1009, 287 S.W. 2d 818. The court had a right to rely upon the statements and allegations in the pleadings before it. Burns v. Meadors, 225 Ark. 1009, 287 S.W. 2d 893. To say the least, the position now argued by appellant is inconsistent with its cross-complaint to recover all or part of its $20,000 payment to Pike from Burks as a joint tortfeasor. A litigant is not permitted to assume wholly inconsistent positions on the same issue in the same case. Rudolph v. Kelly, 44 Ark. 296, 222 S.W. 2d 42.
Appellant also contends that the judgment against it is excessive in that it is not liable for the interest paid by Burks, or its liability insurance carrier, to Pike. Neither party has favored us with any authorities on the subject. We do not agree that International is relieved from the payment of any interest. Burks paid interest accrued to June 22, 1971. We have recognized that the right to contribution among tortfeasors is governed to some extent by equitable principles. Hazelrigg v. Enterprise Box Co., 208 Ark. 124, 185 S.W. 2d 709. Cases touching upon the subject, of which we are aware, all indicate that interest runs on the payment made from the date of payment to which contribution is sought. See Employers Mut. Liability Ins. Co. v. Derfus, 259 Wis. 489, 49 N.W. 2d 400, 27 A.L.R. 2d 1264 (1951), and following annotation; 18 Am. Jur. 2d 151, Contribution § 114. We have recognized this rule and applied it in a case involving indemnity. Kincade v. C. L. Rural Electric Cooperative Corp., 227 Ark. 321, 299 S.W. 2d 67. Yet, the question here is not whether Burks is entitled to interest on the amount paid by it. It is rather whether it is entitled to recover interest paid on the judgment against it. It is not inequitable to require International to contribute to the interest paid in this case, where no interest on Burks’ payment between the date of payment and the date of the money judgment was allowed and where no more than the legal rate of interest [Const. Art. 19, § 13, Ark. Stat. Ann. §§ 29-124, 125 (Repl. 1962)] was paid by Burks. If there were a compounding of interest or interest at a rate higher than 6% per annum had been charged, we might have a different problem. But here International is not called upon to contribute one cent more than it would if Burks had paid the judgment the day it was rendered under the rule above stated and which we have previously recognized. We cannot say, under the circumstances, that the judgment was excessive.
The judgment is affirmed.
Harris, C. J., and Byrd and Holt, JJ., dissent. | [
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Carleton Harris, Chief Justice.
In February 1967, Hyde Vending Company, hereafter called Hyde, appellant herein, and Wayne Poultry Company, a Division of Allied Mills, Inc., appellee herein, entered into a contract by which Hyde agreed to furnish vending machines for the dipensing of cold drinks, soup», pastries, gum, cigarettes, coffee, sandwiches, candy, chips, and other merchandise of a similar nature which might be desired and used by the employees of Wayne. Appellant agreed to purchase, install, service the machines, keeping them in good working order, and maintain the merchandise in good quality. Appellee agreed only to provide pace within its plant of sufficient size to accommodate its employees, Wayne also agreeing to place any necessary tables and chairs within the pace. Hyde agreed to pay to Wayne on the tenth day of each month 15% of the previous month’s gross sales, except cold drinks, for which it would pay 25% of the gross sales. The contract was effective for a period of four years with the right on the part of the appellant to renew for an additional period of four years by first giving Wayne written notice of its intention to renew not less than sixty days prior to the end of the first four year period. As to termination in event of a breach of the contract, the instrument provided that if Hyde failed to furnish quality merchandise at competitive prices, to maintain clean and sanitary conditions, or fail to perform any of the other obligations imposed on it, then Wayne, by giving fifteen days nonce to Hyde to bring the performance up to the standards required, could, in the event of a failure to do so by appellan t, terminate the contract by giving ninety days notice in writing of its intention to do so.
Under this agreement, the parties entered upon performance of their obligations and no complaints were lodged by either party until October of 1970, when Hyde was notified by the manager of Wayne that the machines were not being prcperly serviced and maintained. Specifically, it was asserted that the ice dispenser and the coke machine did not prcperly operate, the coffee machine was inoperative, the machines would frequently fail to dipense merchandise but would not return the coins, and some items of merchandise, principally pastries, were often stale. On January 22, 1971, Wayne notified Hyde by letter that although some improvement had been made, the service still was not satisfactory and appellant should remove its machines by February 28. It was apparently decided that proper notice had not been given, and Hyde mailed another letter on March 29 advising that the time for removing the' machines was being extended to April 30, 1971. In the meantime, just prior to the February expiration date, Hyde had instituted suit in the Yell County Chancery Court contending that it was not in violation of the terms of the agreement, and an injunction was sought restraining appellee from evicting appellant. After the granting of a temporary injunction, the matter was set for hearing on the question of whether a permanent injunction should be granted, and proceeded to trial for the taking of testimony. Subsequent to the conclusion of the evidence, the court rendered its opinion (August 1971) and found as follows:
“The evidence is conflicting as to whether Plaintiff has breached the contract by failing to properly service and maintain the machines, keep them clean and sanitary and furnish good quality merchandise. No doubt some of the machines did not operate properly from time to time. Likewise, on occasion stale pastries were being vended. However, the latter may well have been caused in hot weather by the fact that the lunchroom where the machines were located was not air conditioned. As to the former, it is within the common knowledge of everyone that anything mechanical often fails to operate as designed. Considering the evidence as a whole, including the interest or disinterest of the various witnesses, the court finds that a preponderance of the evidence shows that Plaintiff was not in violation of the agreement and that Plaintiff’s employees exercised ordinary and reasonable care with reject to maintenance and servicing of the machines and the condition and quality of merchandise vended.”
However, the court further stated:
“A decree of specific performance against Defendant would require the court to exercise continuing con trol until the expiration of the contract in 1975 and therefore such decree would not be capable of present performance by ordinary process of the court.”
The court then cited cases to the effect that specific performance will not be decreed “where the order would not be capable of present performance by ordinary process of the court”, and also cited cases to the effect that specific performance will not be decreed if there is an adequate remedy at law. Upon this basis, the court dissolved the temporary injunction and dismissed appellant’s complaint for want of equity. From the decree dismissing the complaint, appellant brings this appeal.
Let is be said at the outset that we completely agree with the trial court’s finding that the preponderance of the evidence established that Hyde was not in violation of the agreement, and that appellant’s employees exercised ordinary and reasonable care with respect to maintenance and servicing of the machines and the condition and quality of merchandise vended. Since we agree that this finding was correct, there is no need to detail the evidence. The most impressive proof offered by either side came from two witnesses who might be termed disinterested. Dr. K. B. Middleton, a veterinarian employed by the United States Department of Agriculture and who was stationed at Wayne Poultry Company (being the inspector charged with the responsibility for the quality of products produced at that plant and the approval of the equipment), testified that he had never eaten doughnuts that were not edible, nor a bad candy bar, had never had difficulty with a cold drink machine, and that he had never heard employees say anything against the quality of the food. He stated that there had been some malfunction of the vending machines, but not often. This testimony was concurred in by Allison Farmer, a Federal Food Injector employed by the Department of Agriculture, who was also assigned to the Wayne Poultry Processing Plant for a part of the time in question. With our finding that the court was correct in ruling that Hyde had not breached the contract, we are faced only with the question of whether appellant was entitled to the relief sought, i.e., a restraining order.
We do not think the cases relied upon by the court are controlling in the case before us. Actually, in the instant litigation, we do not agree that appellant’s complaint, even from a negative standpoint, constitutes a request for specific performance. From an affirmative standpoint, the complaint only asks that appellee be restrained from evicting or requiring appellant to move its vending machines located in the Wayne Poultry Processing Plant. The complaint does not ask that appellee be affirmatively required to do anything. The contract itself contains seven paragraphs relating to the duties of the parties under the agreement. Six of these paragraphs relate to duties imposed upon Hyde, the appellant, and only one imposes any duties upon appellee. This is item four which provides “Sponsor will provide pace with its plants of sufficient size to accommodate its employees and if desirable tables and chairs for the convenience of employees”. Proof upon the part of appellant reflected the figure of $63,627.10 as the gross income from the commencement of the contract to the date of trial, Mr. Hyde stating that he considered that 10% of the gross sales could be applied to the purchase price of the machines ; these cost $11,850.84. Mr. Hyde also testified that it was only very recently that the operation had “started picking up”.
As previously pointed out, the court found that a decree of specific performance would require it to exercise continuing control until the expiration of the contract in 1975 and that the decree would accordingly not be capable of performance by ordinary process of the court. It has already been stated that we do not agree that this complaint sought specific performance, but even so, enforcement of the relief sought would not be difficult. This is not a case wherein the appellee is called upon to comply with various features of a complicated contract, for instance, to maintain a certain number of employees (in order to have a volume to make the business profitable); to the contrary, appellee is only required under the agreement to furnish pace. This certainly would not call for constant supervision from the court for a violation could be punished by contempt proceedings. In Montgomery County Canning Co. v. Bates, 211 Ark. 930, 203 S.W. 2d 195, citizens of Montgomery County who were stockholders in the Montgomery County Canning Company instituted a suit in equity to enjoin appellants from dismantling or removing a canning plant from Montgomery County and asked pecific performance of an agreement by the company to continue operation of a canning plant at Mt. Ida. The conpany filed a motion to dismiss the complaint, alleging that it sought pecific performance of an executory contract, and that the chancery court was without jurisdiction; that the relief sought could not be compelled by the ordinary processes of the court. The trial court held with that contention but this court, discussing some of the cases relied upon by appellee in the case now before us disagreed, stating:
“The rule announced in the Leonard case, supra, was reaffirmed in later decisions. Caldwell v. Donaghey, 108 Ark. 60, 156 S.W. 839, 45 L.R.A., N.S. 721, Ann. Cas. 1915 B, 133; Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S.W. 694. Under this rule appellants could not be required to continue operation of the canning plant at Mt. Ida by a decree of pecific performance, but it does not necessarily follow that appellees would be thereby precluded from injunctive relief to restrain an attempted breach of the contract by the dismantling and removal of the plant. Warmack v. Major Stave Co., 132 Ark. 173, 200 S.W. 799. A contract cannot be rescinded merely because it is of such a character that pecific performance cannot be demanded. 17 C.J.S., Contracts, § 417. In 28 Am. Jur., Injunctions, p. 273, it is said: 'It was formerly thought that an injunction would not be granted to restrain the breach of any contract, unless the contract was of a character that the court could specifically enforce. But the fair result of the authorities may be said to be that where the case is one in which the negative remedy by injunction will do substantial justice between the parties by compelling the defendant to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason or policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce specific performance of it.’ The case of Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88, is cited in support of the textwriter. If the complaint in the case at bar stated a good cause of action for injunctive relief, the chancellor erred in dismissing the suit even though the court was without jurisdiction to grant specific performance of the contract.”
It would thus appear that the chancellor, in the instant litigation, was in error in denying the injunction because he felt that adequate relief could not be afforded. Be that as it may, we reiterate that specific performance was not prayed for in the complaint. That pleading avers that appellant has complied with its agreement, and only asks that appellee be restrained from evicting Hyde from the premises.
Nor do we agree that there was an adequate remedy at law. According to the evidence, these machines were purchased particularly for the Wayne plant. Though he operates in four other processing plants, machines are already in use in those locations according to Mr. Hyde and he stated that he had no other locations in which to place the Wayne machines. Of course, if evicted from the premises, Mr. Hyde still has his machines and he accordingly could not recover damages for them; still, they are of no immediate benefit to him. The witness said that the first several years under the contract were spent in developing this vending business into a profitable operation, and he testified that the operation was just beginning, in January, 1971, to become profitable. It is argued by Hyde that the only way that appellant can recoup its investment and earn profits envisioned at the time the contract was entered into, is by fulfillment of the contractual agreement. One thing is definite, viz, any attempt at establishing damages would have to be speculative, for profits would depend upon a number of factors, for one, the number of people who would be employed at the plant for the next four years, which would certainly vary, depending upon the success of the enterprise, the amount of expenditure that would be necessary to keep the equipment in operating condition for the next several years, the prices that would be charged for the items, and competition from third parties who might locate near the plant. Numerous other situations or conditions could arise which would have a profound effect upon the making of a profit. Our feelings are expressed by the language appearing in Montgomery County Canning Co. v. Bates, supra, where this court, in disposing of the same argument, said:
“It is true that equity will not restrain a breach of contract where the remedy at law is adequate and complete. McDaniel v. Orner, 91 Ark. 171, 120 S.W. 829. It appears from the complaint in the instant case that the parties affected by a breach of the contract are numerous so that redress at law would require a multiplicity of suits. It further appears that it would be difficult to accurately measure pecuniary damages that appellees might suffer as a result of the breach of the contract by appellants. * * * Under these circumstances, we are unwilling to say the remedy of law is adequate.”
Summarizing, on the facts before us, there has been no breach of the contract by appellant, and appellee is not entitled to terminate the agreement. To the contrary, as found by the chancellor, the record supports appellant’s position that it has discharged the obligations incumbent upon it. Appellant has not sought to require appellee to perform affirmative acts necessary to carry out the agreement; it has only said that it has not violated its obligation, and it only asks that appellee be restrained from violating its obligation. It is entitled to that relief. Of course, we are only passing upon the record before us, and there is nothing to prevent appellee from invoking its right to cancellation if, in the future, appellant does not perform as required, and such fact is established.
It follows from what has been said that the decree should be reversed, and the cause remanded for the entry of a decree not inconsistent with this opinion.
It is so ordered.
George Rose Smith and Byrd, JJ., dissent.
Such a notice was timely given.
Orr v. Orr, 206 Ark. 844, 177 S.W. 2d 915; McDaniel v. Orner, 91 Ark. 171, 120 S.W. 829; Hall v. Milham, 225 Ark. 597, 284 S.W. 2d 108; Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, 94 S.W. 922, the first two relating to the fact that specific performance will not be decreed if there is an adequate remedy at law and the last two relating to the fact that specific performance will not be decreed where the order would not be capable of present performance by ordinary process of the court.
It is not entirely clear whether this amount was to be applied to the purchase price of the machines or whether a portion was for maintanance or repair of the machines. | [
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Carleton Harris, Chief Justice.
On December 14, 1970, the City Council of North Little Rock adopted ordinance 3862, such ordinance appropriating $18,600 per year to defray expenses of public relations activities of the mayor and city clerk of that city; $15,000 was appropriated for the use of the mayor and $3,600 for the use of the city clerk, the ordinance providing that the council had determined such amounts to be reasonable and justifiable, and directing the officials named to draw warrants upon the city treasury “in an amount not to exceed one-twelfth of the aforesaid appropriation allocated to each official”. Roland Smith, a resident taxpayer of the city, instituted suit in the Chancery Court of Pulaski County wherein he sought a declaratory judgment that the ordinance violated Article 19, §23 of the Arkansas Constitution, and was thus invalid. After the filing of an answer, a stipulation was entered into between the parties that Smith is a taxpayer of the City of North Little Rock and qualified to bring the action; that the certified copy of the ordinance attached to the complaint is true and correct; and that the present salaries as authorized to the mayor and city clerk are in the sum of $5,000 each per annum. On trial, the court held that the ordinance was null and void and the aforesaid officers and the City of North Little Rock were enjoined from disbursing city funds pursuant to the ordinance. From the decree so entered, appellants bring this appeal.
The court found that ordinance 3862 violated Article 19, §23, of the Arkansas Constitution, which reads as follows:
“No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.”
Appellants contend that this constitutional provision is not self-executing and thus requires enabling legislation, and that such legislation was never passed, leaving the provision inoperative. In support of this argument, we are cited to the case of Griffin v. Rhoton, 85 Ark. 89, 197 S.W. 2d 380 (1907). The case, which involved the question of the fees and emoluments of the office of prosecuting attorney, is confusing, but a careful reading of same indicates that the court, in saying that enabling legislation was required, was only referring to the effect of the constitutional provision upon the office of prosecuting attorney, and not to other offices, including those of cities or towns. The court recognized that the General Assembly had, in 1875, passed legislation, Act 47 of 1875, in aid of the constitutional provision, carrying out the requirements as to numerous officers, but not including the prosecuting attorney’s office. . This is made clear by the case of White v. Williams. 187 Ark. 113, 59 S.W. 2d 23 (1933), where this court, through Justice Butler, stated flatly that Act 47 was enabling legislation for Article 19, §23 of the Constitution, and discussed a number of the provisions, hereafter mentioned. So, we think it is clear that enabling legislation was passed; and we so hold.
Pertinent portions of § 5 of Act 47, i.e., those relating to the implementation of the constitutional requirements, have never been changed, and Act 47 of 1875 appears in Ark. Stat. Ann. §12-1801 (Repl. 1968) through §12-1811. Section 5 appears as §12-1805 through §12-1807. Section 12-1805 requires an annual report of county, city, and township officers who come within the purview of the Act, and §12-1806 provides for the review of reports. Section 12-1807 reads as follows:
“If the total amount of the receipts of the office shall exceed in par funds, or their equivalent of value the sum of five thousand dollars ($5,000), then the officer shall further report the amount expended by him in the conduct of the business of his office for said year, and voucher for all such expenditures shall be produced by the officer reporting, and examined by such Judge, Mayor or other chief officer, and, if such expenditures be approved, the amount thereof shall be deducted from the gross amount or receipts as estimated as hereinbefore prescribed by the reviewing officer, and in all cases where the balance remaining in the hands of any officer shall exceed the sum of five thousand dollars [$5,000], or its equivalent, the excess shall at once be paid into the treasury of the county, city, town or village to which the said office may be appurtenant.”
There have of course been changes in the law since 1875 which preclude a literal compliance with all provisions of the sections mentioned; for instance, at the time of the passage of Act 47, numerous governmental offi cers, including mayors, received part, or all, of their compensation from fees which were paid to them; in other words, the money was first paid to the officer, who, after making the deductions authorized by §12-1807 (Act 47 of 1875), including his salary, turned the balance over to the county or city treasury, depending on the office held. Today, most mayors are paid their salaries from tax funds taken in by the city and few fees are received by the mayor himself. We think §12-1807 makes clear that it was the intention of the legislature, in passing Act 47, in implementing the provisions of Article 19, §23, to permit the reimbursement of necessary expenditures of the office involved in addition to the $5,000 salary. The City Council of North Little Rock has declared public relations expenses of the mayor and city clerk to be proper expenses for the welfare of the city and we think such expenditures, under §12-1807, to be authorized in addition to the maximum salary of $5,000.
The court erred in declaring the ordinance unconstitutional but this is not to say that one-twelfth of $15,-000 can be paid to the mayor, and one-twelfth of $3,600 paid to the city clerk each month. The ordinance does not so provide; rather, it provides that these officers “are hereby authorized and directed to draw a warrant or warrants on the city treasury in an amount not to exceed [our emphasis] one-twelfth of the aforesaid appropriation allocated to each official”. If the ordinance authorized the flat sum payment of $15,000 for the mayor and $3,-600 for the city clerk, or authorized one-twelfth of that set amount each month, the ordinance would be unconstitutional as being in conflict with Article 19, §23, for in such event the payments would constitute emoluments in addition to the salary. The language of the ordinance itself, by using the italicized words, recognizes that the public relations expenses may not be the same each month, and that the full amount appropriated for the year may not be used. In other words, these officials are entitled to reimbursement for public relations expenditures made up to the maximum amount of the appropriation. This is, of course, entirely different from making a set allowance of funds to a public officer to be used at will.
This is in line with our decision in Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, which involved public relations expenses for certain state officers. There, different constitutional provisions were involved but the principle and law relative to each is the same. In that case, we were construing Act 399 of 1961, which provided public relations expenses for seven state officers, in the amount of $1,800 each per annum. Section 3 of that Act provided as follows:
“On the first day of each calendar month in each of the foregoing fiscal years, the Auditor of State shall issue a warrant drawn in favor of each of the officials named in Section 2 hereof in the amount of one-twelfth of the appropriation allocated to each such official, and the State Treasurer is hereby authorized and directed to pay said warrants from funds herein appropriated.”
It will be noted that that section is different from the city ordinance here under discussion in that §3 of Act 399 provided that each of the officials named should draw one-twelfth of the $1,800 each month, while here, the ordinance provides that the officer may draw not to exceed one-twelfth of the total amount appropriated. There is a vast difference, and in Berry v. Gordon supra, we struck §3 from Act 399 as a violation of our Constitution. This court said:
“Any fair construction of Act 399 of the Legislative Acts of 1961 leads us to the conclusion that the Legislature intended to afford reimbursement of public relations expenditures incurred by certain state officials, as provided in Section 1 of the Act. Section 3 would authorize monthly payments of public relations expenditures by the state officers whether or not they had incurred such expenditures. Therefore, we conclude that Section 3 of Act 399 must be stricken. Otherwise, such reimbursement would violate our Constitution. In view of the expressed intent of the Legislature to provide these state officials with limited public relations expenditures, the officials are not entitled to reimbursement of expenditures not expended. That Section, when severed, does not affect the intent of the Legislature.”
In accordance with what has been said, we hold the ordinance valid, reiterating however that the officers involved in this litigation are not entitled to one-twelfth each month of the total amount appropriated for public relations expenses, but are entitled only to reimbursement up to that amount for public relations expenses actually incurred.
It is so ordered.
Smith also testified that ho was a resident of North Little Rock, was purchasing property, and that he was a registered voter.
See also Williams v. Buchanan, 86 Ark. 259, at 276, 110 S.W. 1024, at 1029, decided by the identical court members who decided Griffin. | [
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Lyle Brown, Justice.
This action was instituted by Tyson’s Foods, Inc., and its wholly owned subsidiary, Tyson’s Feeds, Inc., poultry processors and distributors, to recover gross receipts taxes (sales) and compensating (use) taxes paid under protest. (Throughout the opinion the appellees will be referred to as Tyson.) The audit forming the basis of tax assessments herein treated was for a four-year period. The chancellor held that Tyson was entitled to prevail and recover the full amounts paid under protest. The State Revenue Commissioner appeals.
Item I claimed for exemption is based on Ark. Stat. Ann. § 84-1924 (Repl. 1960), which is a feedstuffs exemption statute. It provides that “all feedstuffs used in grow ing or producing livestock and/or poultry” are exempt from sales tax. Then § 84-1925 (d) defines “feedstuffs” to mean all materials which are commonly known and used as feed for livestock and/or poultry. The items claimed are called “water feed additives,” being fed to the birds through the drinking water rather than mixing with bulk feed, the latter process being ofttimes impracical. Tyson’s total purchases of additives amounted to $706,763.41. There are several such additives. Tyson’s witness described them. Vitamin D3 and Vitamin A are used to obtain maximum growth efficiency. Gallimycin, Terramycin, and Aureomycin belong to the mycin drug family. Funjol is a copper sulfate compound used to prevent mycotic infections. Alpha and Amprol are coccidiostats, added for the prevention of certain infectious diseases. The same is true of Floxaid and Vitalizer. Whit-syn S, S-Q, and S4 are sulpha drugs, used in the treatment of various diseases. Three-Mitro is an inorganic arsenical compound used to promote growth and feed efficiency. Feed efficiency is described as meaning the poultry’s ability to convert feed to body pounds.
We have been referred to only one case which deals with the classification of feed additives. Lipman Poultry Co. v. Johnson, Assessor, 138 Atl. 2d 631 (Me. 1958). There the court was called upon to determine whether certain additives came within a tax exemption statute covering feeds. The components were terramycin oil suspension, terramycin animal formula, terramycin poultry formula, and a hormone preparation called “capette pills.” There it was held that those antibiotics and hormones functioned not as feed but as catalysts to assist in assimilation of food.
According to the description of these drugs and their uses, it is reasonable to say that by their use alone they would not supply sufficient nourishment while, on the other hand, when these ingredients are administered in conjunction with poultry feed, the result is an accelerated growth of the birds.
There seems to be no place in the definition of feed as used in the statute for the inclusion of antibiotics and hormones.
It was also pointed out that the additives were used as catalysts in the body to help other reactions take place; that they never become a part of the body frame; and that when they have served their usefulness they are excreted and another supply is then needed.
In Peterson Produce Co. v. Cheney, 237 Ark. 600, 374 S.W. 2d 809 (1964), we said: “Let it also be remembered that a tax exemption must be strictly construed, ‘and to doubt is to deny exemption.’ ” In Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W. 2d 1007 (1935), we held that the burden is on the claimant “to establish clearly his right to exemption.”
In the first place we have reasonable doubt that these additives are commonly known as feeds tuffs. Secondly, appellee has not met the burden of clearly showing the right to exemption.
Item II claimed as exempt from sales tax is described by appellees as components “consumed as integral part of the production of broilers.” Under that heading they list the specific items of nest pads, feeder lids, filter flats, litter, vaccine and medicine, and spray. The exemption is claimed under Ark. Stat. Ann. § 84-1904 (Repl. 1960): “Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling or preparing for sale, can be classified as having been sold for purposes of resale or the subject matter of resale only in the event such goods, wares, merchandise, or property becomes a recognizable, integral part of the manufactured, compounded, processed, assembled or prepared products.” We do not agree with appellees simply because we are unable to conceive that the items listed become a recognizable, integral part of the finished products.
For the last four months of the audit exemption is claimed for the listed Item II under the Acts of 1967, Act 113. The section does not appear in the annotated statutes because it is no longer the law. There the exemption provision says: “Gross receipts or gross proceeds derived form the sale of. . .tangible personal property used for repair, replacement, or expansion of existing manufacturing or processing facilities ...” Manufacturing and processing have been held not to be two distinct operations. Processing is carried out under the manufacturing process. Pellerin v. Cheney, 237 Ark. 59, 371 S.W. 2d 524 (1963). The taxpayer must first qualify as a manufacturer. Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954). We have specifically held that a processor of chickens is not a manufacturer. Peterson v. Cheney, 237 Ark. 600, 374 S.W. 2d 809 (1964). For an exhaustive treatise on the last subject see Prentice v. City of Richmond, 90 S.E. 2d 839 (Va. 1956).
Item III concerns a claimed exemption from the use tax and is based on a part of Acts 1961, Act 140 (which is no longer the law and is not now incorporated in the annotated statutes.) See footnote to Ark. Stat. Ann. § 84-3106 (Supp. 1971): “Tangible personal property in the form of raw materials or component parts for further processing, manufacturing, or assembling when such goods, wares and merchandise goes into and becomes a recognizable, integral or component part of a manufactured or processed article or end-product for sale either within or without the State of Arkansas.” The items listed for exemption by appellees are egg processing equipment, poultry processing plant equipment, poultry processing plant repairs and replacements, hatchery equipment, feeder lids, trays, pads and cases for baby chicks. For two reasons the claimed exemption is without merit. The claimed items do not become an integral part of the end product. Secondly, as we have heretofore stated, appellees are not manufacturers. For the last four months appellees claim exemption under Act 113 of 1967. What we have said with respect to the exemption claimed during the last four months under Item II applies here.
For the reasons stated we conclude that appellees’ claims for exemptions are not authorized by law.
Reversed.
Byrd and Holt, JJ., dissent.
Fogleman and Jones, JJ., concur. | [
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Conley Byrd, Justice.
This litigation arises out of a three car collision on Highway 59 near its intersection with Interstate 40. Appellant F. J. Griffith was traveling in a southerly direction, followed by appellee Jimmy Rozell driving an automobile owned by his uncle Edgar Rozell. Griffith attempted a left turn into a Gulf service station. While part of his car was in the north bound lane Griffith was struck by a vehicle driven by appellee Carl Richmond, and owned by appellee and cross-appellant Randall Ford, Inc. After striking Griffith, the Richmond vehicle then collided in the south bound lane with the Rozell vehicle. Jimmy Rozell, by his next friend Edgar Rozell, and Edgar Rozell ihdividually brought suit against Griffith. Griffith filed a third party complaint against Richmond and Randall Ford, Inc. The attorney representing Rozell, notwithstanding the apparent conflict, filed an answer and cross-complaint on behalf of Carl Richmond against Griffith. Randall Ford, by other counsel, filed an answer and cross-complaint. Subsequently Randall Ford’s cross-complaint was dismissed with prejudice. Upon trial the jury, in answer to interrogatories, found that Rozell was not negligent, that Griffith was not negligent and that Carl Richmond was negligent and at the time was acting as an agent within the scope of his employment with Randall Ford, Inc. No interrogatories on damages were submitted to the jury. Thereafter, the Rozells, represented by other counsel, filed a motion to set aside the verdict on the ground that the verdict was contrary to an overwhelming preponderance of the evidence. Richmond also filed a motion for a new trial contending that the court erred in instructing and directing his attorney not to mention a settlement between Griffith and Randall Ford, Inc., and also because the verdict was contrary to a preponderance of the evidence. Thereafter, the trial court entered the following order:
“Now on this 23 day of April 1971 comes on for consideration the Motions previously filed by the plaintiff, Edgar Rozell and by the third party defendant, Carl Richmond, asking that this Court set aside the verdict previously received herein and grant to the respective parties a new trial, and from the pleadings, the file, the briefs heretofore filled by the parties hereto, the arguments of counsel and other matters and things the Court has prepared and filed its opinion relative thereto in the form of a letter to the respective counsel, and in accordance therewith:
“IT IS, THEREFORE, Considered and Ordered that the Motion to set Aside Verdict filed herein by the plaintiff, Edgar Rozell, be and the same is hereby, granted, and the Motion to Set Aside Verdict filed by the third party defendant, Carl Richmond, be, and the same is hereby, granted and a new trial is hereby granted.
“IT IS, FURTHER, Considered and Ordered that any of the parties herein shall have the right to file any additional pleadings herein if any of said parties should so desire to do.”
For reversal of the trial court’s order setting aside the jury verdict, Griffith contends that the trial court abused its discretion in granting a new trial against him in order to permit the plaintiffs to seek recovery against a third party defendant. Randall Ford, Inc., also appeals and contends that the trial court abused its discretion in granting a new trial and in the alternative that the evidence was not sufficient to permit a finding that Carl Richmond was acting as an agent of Randall Ford, Inc., in the scope of his employment at the time.
This appeal probably results from some rather inconclusive statements of the trial court in his letter opinion to counsel stating his reasons for granting the motions to set aside the verdict. Appellants point to that portion of the opinion as follows:
“. . . It is recognized that it is sometimes necessary that in order to see that justice is done to one party some injustice might necessarily be done to another party. . .”.
The appellees on the other hand point to the following portions of the opinion:
“. . . It would then only seem to be a matter of a court in its best judgment, doing that which is fair, reasonable, equitable and just under the circumstances and facts of the particular case before the court within the bounds of reasonable use of the court’s discretion. . .”.
“ . . . On the other hand however the court does have the ultimate responsibility to endeavor to see that justice is done in any lawsuit which comes before the court.”
“In view therefore of the applicable law, the pleadings filed herein, the testimony offered at the trial of this case, the interrogatories submitted and answered by the jury it is the Court’s opinion that in order that justice be more properly done the verdict of the jury, as reflected by the answers to the interrogatories submitted by the court, should be set aside and a new trial granted to both the plaintiff and the third party defendant, Carl Richmond. In view of this action by Court any of the parties to this law suit shall be granted the right to file any additional pleadings they might so desire herein.”
That the trial court’s opinion leaves much to be desired in the way of clarity is demonstrated not only from the positions taken by the parties themselves but also by the difference of the opinions on this Court. However, when it is construed in connection with the order actually entered, we feel that it must be interpreted as holding that the jurors’ answers to the interrogatories are contrary to a preponderance of the evidence. That the trial court has discretion to act where he considers the verdict to be contrary to preponderance of the evidence is supported by many decisions of this court. See Koonce v. Owens, 236 Ark. 379, 366 S.W. 2d 196 (1963), Worth James Construction Co. v. Fulk, 241 Ark. 444, 409 S.W. 2d 320 (1968) and Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898 (1967).
The record shows that Jimmy Rozell, age 18, was traveling south behind Griffith, age 21. Some 75 to 100 yards before Griffith made his turn, he gave a left turn signal. In making the turn Griffith made it so slowly that Rozell practically came to a stop. Griffith testified that he saw the Richmond vehicle when he began making his turn and at that time the Richmond vehicle was some 900 or more feet south of him. On cross-examination Griffith admits that some 5Vi or 6 feet of his vehicle was still on the highway when the tail end of the Richmond vehicle struck the right side of Griffith’s vehicle. Richmond testified that he did not see the turning Griffith vehicle until he (Richmond) was between the two entrances to the Gulf service station and that at that time the Griffith vehicle was at an angle. He testified that Griffith hit him and knocked him across the lane into the Rozell vehicle. Billy Howell, a passenger in the Griffith vehicle, testified that they had already given thier left turn signal and started their turn when he first saw the Richmond vehicle. He estimates that the Richmond vehicle was 400 yards or something like that away from them at that time. There was considerable difference between the witnesses as to the speed of the Richmond vehicle. Admittedly, however, the Richmond vehicle laid down approximately 120 feet of skid marks.
Gary Wilkins, an attendant at the service station, testified about the speed of the Richmond vehicle and that he laid down 126 feet of skid marks. He too admits that Griffith’s car was sticking out into the north bound lane some 514 or 6 feet at the time of the collision. Tommy Martin, investigating officer at the scene of the collision, testified that he stepped off some 40 or 50 steps of skid marks which he estimated to be between 120 and 150 feet.
If the trial court had taken the testimony of Griffith and his witnesses at face value, it would have shown that the Richmond vehicle traveled 900 to 1200 feet during the time the Griffith vehicle traveled only 10 to 12 feet across the north bound lane — indicating a speed in excess of 300 miles per hour. Thus we cannot say that the trial court abused its discretion.
We do not reach Randall Ford’s, Inc., alternative argument on appeal because it does not abstract the objections it made. Upon our search of the record we have been unable to find where it had at any time asked the trial court to direct a verdict in its favor. Under the record here there is no verdict against it, no judgment against it and no showing that it ever requested the trial court to rule upon the issue. We will not reach an issue for the first time on appeal. Fine v. City of Van Buren, 237 Ark. 29, 371 S.W. 2d 132 (1963).
Affirmed. | [
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George Rose Smith, Justice.
In 1970 the appellant obtained a divorce from the appellee, who was ordered to pay $25 a week as alimony and $25 a week for the support of the couple’s eight-year-old son. Woodman faithfully made the payments for child support, but he made no payments of alimony.
After about a year the appellant filed the present petition to have the alimony delinquencies reduced to judgment and to have Woodman punished for contempt of court for having failed to pay alimony. The trial court entered judgment for the past-due installments of alimony, but he found that Woodman had been unable to make the payments. The court accordingly refused to hold Woodman in contempt and modified the original decree by relieving Woodman of the duty of making further payments of alimony.
We do not find the decree to be clearly against the preponderance of the evidence. According to Woodman’s testimony, before the divorce decree was entered the federal Government took his home and all his other assets to satisfy a tax assessment of about $30,000. About $4,200 of the assessment is still unpaid. Woodman has been working as a car salesman, earning from $85 to $105 a week. He has remarried. He states that he has been and is now unable to pay the alimony specified in the decree. His testimony is uncontradicted; in fact, Mrs. Woodman did not see fit to testify at the hearing.
We have held that remarriage is a change of circumstances that may be considered as a basis for a reduction in alimony. Barnes v. Barnes, 246 Ark. 624, 439 S.W. 2d 37 (1969); McCutcheon v. McCutcheon, 226 Ark. 276, 289 S. W. 2d 521 (1956). Here there is also Woodman’s testimony that when the divorce decree was entered he hoped to salvage some equity from the property taken by the government, but that expectation has not been realized. The chancellor was justified in concluding that if the decree were left unchanged the delinquencies would simply continue to accumulate, subjecting Woodman to a burden that, as a practical matter, might eventually impair his ability to continue to make even the payments for the support of the child. Upon the record as a whole we are not convinced that the chancellor’s decree is contrary to the weight of the evidence. Our affirmance, however, is without prejudice to the appellant’s right to seek a reinstatement of alimony if conditions should change.
Affirmed.
Byrd, J., concurs. | [
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Conley Byrd, Justice.
For reversal of a judgment upon a jury verdict in this eminent domain action, appellant Arkansas State Highway Commission contends that the trial court erred in refusing to strike veniremen Easterling and Rowe for cause and in refusing to permit dirt sales by appellee Helen B. Dalrymple to a highway construction contractor to be offset as special benefits. We find no error.
Appellant’s challenge to venireman Easterling was made because the voir dire examination showed that he had an opinion of real estate values in the area and because he knew one of the prospective witnesses. The challenge to venireman Rowe was on the basis that he also knew one of the prospective witnesses. After the challenges were overruled the panel was completed and each side, pursuant to Ark. Stat. Ann. Sec. 39-229 (Repl. 1962), struck three names. Appellant struck the names of Easterling, Rowe and one other but made no showing that he would have struck the name of any other juror if he had had a peremptory challenge left. Under such circumstances we hold that appellant has shown no prejudice. See Roark Transportation, Inc. v. West, 188 Ark. 941, 68 S.W. 2d 1000 (1934), and Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912). It has been suggested that perhaps Ark. State Highway Commission v. Young, 241 Ark. 765, 419 S.W. 2d 120 (1967), states a contrary rule. We do not so interpret the decision which cited as authority Collins v. State, supra, where the rule was recognized. As was pointed out in Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888), the right of peremptory challenges is conferred as a means to reject jurors — not to select jurors, and until such timei as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice. Green v. State, 223 Ark. 761, 270 S.W. 2d 895 (1954). Here, as in the Roark Transportation case, appellant does not contend that any of the jurors who served were disqualified. Consequently appellant has shown no prejudicial error.
There is no merit in appellant’s contention that it was entitled to offset fill dirt sales to a highway construction contractor as a special benefit. In Arkansas State Highway Commission v. Davis, 245 Ark. 813, 434 S.W. 2d 605 (1968), we denied a similar contention. In doing so we pointed out that before a benefit could be offset, it must be a benefit accruing to the property from the completed highway, i.e., a benefit from the improvement.
Affirmed. | [
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PER CURIAM
In disposing of this rather complicated case the trial court made seven separate findings, some of law, some of fact, some of mixed law and fact. The decree of the chancellor is not abstracted and therefore we are left without the benefit of those conclusions. The omissioh violates our Rule 9 (d) because an abstract of thé decree in this case is “necessary to an understanding of all questions presented to this court for decision..."Tudor v. Tudor, 247 Ark. 822, 448 S.W. 2d 17 (1969); Weir v. Hill, 237 Ark. 922, 377 S.W. 2d 178 (1964); Pyramid Life Ins. Co. v. Hamilton, 237 Ark. 797, 376 S.W. 2d 555 (1964); Davidson v. Messing, 214 Ark. 227, 215 S.W. 2d 138 (1949); Ransom v. Warner, 193 Ark. 1179, 103 S.W. 2d 629 (1937).
Affirmed under Rule 9 (d). | [
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Conley Byrd, Justice.
Appellee W. T. Langley, an automobile dealer, brought this action against appellants Buford Martin and Lonnie Boydston, co-partners doing business as United Insurance Agency, upon the theory that Lonnie Boydston, appellee’s long time insurance agent, had undertaken to procure a “package” of insurance policies to cover appellee’s automobile business and had failed to do so. Appellee and his secretary both testified that they talked to Boydston and told him to put in force the “package” deal. Boydston denied having talked to appellee but admitted talking to the secretary. He said he told the secretary that he did not know what insurance coverage appellee wanted and that he told the secretary to have appellee call him. Boydston did renew one policy already in effect. The jury found the facts in favor of appellee and fixed the damages resulting from a fire loss at $25,000. For reversal appellants contend:
“I. The trial court erred in admitting into evidence appellee’s exhibit No. 7.
II. The trial court erred in not granting a mistrial as the result of remarks made by one of appellee’s counsel.
III. The trial court erred in deleting from its instruction No. 5 reference that the damage had to be covered by the insurance contract.
IV. The trial court erred in giving its Instruction No. 8.
V. The trial court erred in not granting a mis trial because of improper and prejudicial argument by one of plaintiff’s counsel.
VI. The jury verdict was excessive.”
POINT I. Exhibit No. 7 to which appellant objected is a Chrysler Motors Corporation statement showing a total owing to Chrysler in the amount of “$1742.96 CR”. This exhibit was offered along with a number of other statements to prove the value of parts destroyed in the fire. Appellants objected to the exhibit on the grounds that it showed on its face that it was a credit and that it was confusing because the figure $1742.96 was marked through with a pencil and the figure $1242.96 was written above it. During direct and cross-examination it was determined that the items shown on the statement carried a bookkeeping code and that the code was defined on the back of the statement. Neither the codes nor appellee’s testimony with respect thereto were favorable to him. Thus if there was any error in admitting the exhibit, the record demonstrates that it was not prejudicial to appellant. National Fruit Products Co. v. Garrett, 121 Ark. 570, 181 S.W. 926 (1916); Gerald B. Lambert Co. v. Newton, 174 Ark. 209, 294 S.W. 707 (1927).
POINT II. During cross-examination of appellee concerning submission of duplicate invoices, the following occurred:
“MR. FENDLER: If the Court please, I think he ought to be instructed this line of questioning ought to be discontinued. If there is any error in presenting these invoices, he ought to sue Mr. Partlow and sue me. If we caused any damages here, we ought to be sued, not our client.
MR. BURGE: If the Court please, I object to Mr. Fendler’s speech. This is cross-examination and proper.
MR. FENDLER: If the Court please. It is not proper. This gentleman presents what he thought were his invoices. It is obvious on the face of the invoice it is identical. How could he be trying to mislead the jury? I move this line of questioning be discontinued.
MR. REID: If the Court please, I move for a mistrial again because of statements made by Mr. Fedrt■ler i'rt presence of the jury.
THE COURT: Both objections overruled and motions fór mistráil denied; and you may proceed.”
The record shows that a number of appellee’s records were lost in the fire. Appellee gathered up what he could. Immediately preceding the objection above appellee had stated that he did not review the invoices he found but merely turned them oyer to his lawyer. Admittedly the trial court has wide discretion in determining action appropriate to eliminate prejudicial effects of remarks of counsel and will not be reversed except for a manifest abuse .thereof. Bethel v. State, 180 Ark. 290, 21 S.W. 2d 176 (1929). From the record here presented, we cannot say that the trial court erred in refusing the motion for mistrial.
■ POINT HI. Instruction No: 5 as offered by appellant provided: : ; ¡ . ¡ "y
“W: T. Langley claims damages from Lonnie Boydston and has the burden of proving each' of three essential propositions:
First, that the Defendant entered into a contract with him to issue insurance which would cover the loss claimed;
Second, that the Defendant did not procure the insurance which would cover the loss claimed;
And third, that' the Plaintiff has sustained damages that would be'covered by the contracts of insurance.”
The trial court modified the last paragraph to read:
“And third, that the Plaintiff has sustained damages that would be covered by the contract.”
Appellant here argues that the court’s modificatión left out the essential element that if the appellee were entitled to recover, the damages would have been only elements of damages covered by the policy of , insurance. While it is true that appellee’s damages were limited to only those elements that would have been covered by the insurance policies, any error in amending the instruction was cured by instruction No. 8 given by the court. (Discussed in Point IV).
POINT IV: Instruction No. 8 given by the court was as follows:
“You are further instructed that when an insurance agent undertakes to procure a policy of insurance for another affording protection against a designated risk or designated risks, the law imposes upon the insurance agent the duty, in the exercise of reasonable care, to perform the obligation that the agent has assumed, and within the amount or amounts of the proposed policy or policies, the agent may be held liable for any loss suffered by the applicant attributable to the failure of the agent to provide such insurance. In this case, if you believe from a preponderance of the evidence that the Defendants, Buford Martin and Lonnie Boydston, có-partnérs, doing business as United Insurance Agency, contracted with the. Plaintiff Langley to obtain insurance covering his automobile business including insurance policies to insure against losses on fire and extended coverage on contents and dealer’s open lot, or any one or more of these policies, and that they, the said Defendants, Martin and Boydston, or either of them as partners of United Insurance Agency, failed to exercise reasonable care in their efforts to provide said insurance in accordance with their oral ágreement with the Plaintiff Langley, your verdict will be for the Plaintiff Langley. And it will be your duty to assess as damages whatever sum you may agree upon which will fairly compensate him for his net loss under the contract less the premium therefor.
On the other hand, if you find that there was no contract, your verdict will be for the Defendants.”
Appellant here contends that the foregoing instruction was erroneous because it deals with the appellant’s duties in terms of “reasonable care” and because of the language in the second paragraph which refers to “or any one or more of these policies.”
We find no error in the use of the term “reasonable care” when applied to appellants’ duties. In fact the language is more favorable to appellants than they were entitled to have if they had contracted with appellee to furnish the coverage as alleged.
Neither do we find any error in using the term “or any one or more of these policies” in referring to the coverages on contents and dealer’s open lot. Appellants’ assertion here is that the use of the phrase “or any one or more of these policies” permitted the jury to assess damages under any of the four coverages originally sued upon even though two of the coverages were withdrawn. Since the court enumerated the coverages being submitted to the jury immediately preceding the phrase “or any one or more of these policies”, the term “these policies” could only refer to the coverage just enumerated.
Appellants also objected to this instruction on the basis that it permitted the jury to use conjecture in establishing damages. The instruction, however stated that the agent could be held liable only within the limits of the proposed policies. If appellants wished more definitive instructions on the amount of damages recoverable, they should have requested instructions containing the language desired.
POINT V: With reference to the alleged improper and prejudicial closing argument of appellee’s counsel, the record does not show any of the argument of counsel, only the objection and ruling by the trial court as follows:
“MR. BURGE: We object to his remarks about a ‘monied man.’ We ask for a mistrial in view of his remarks about the money man.
COURT: I don’t believe there is any evidence about any money anybody has got.
MR. FENDLER: I don’t want to argue that, but all the way through—
COURT: The court is going to sustain the objection. The jury it told to disregard the last remark of the attorney.
MR. BURGE: Are you denying my motion for mistrial?
COURT: Yes.”
From this record, we are unable to say that the trial court abused its discretion in refusing a mistrial.
POINT VI. On direct appellee testified to damages totaling over $40,000 that would have been covered by the policies on contents and dealer’s open lot. While it is true that the cross-examination discredited his damages to some extent, we are not able to say that the jury’s verdict in the amount of $25,000 is not sustained by the evidence.
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Lyle Brown, Justice.
This is a dispute over the location of a boundary line between the Masseys, appellants, and Mrs. Floyce Price, appellee (plaintiff below). In addition, appellee contends that she has acquired an easement for ingress and egress to her property over a circular drive the southern tip of which is on appellants’ property. The trial court held for appellee on her two points, both on the theory of adverse possession. Appellants attack the sufficiency of the evidence.
Eight witnesses testified for appellee and nine for appellants. As is usually the situation in this type of case the evidence was in substantial conflict. As to the boundary dispute it is concerned with a tract of land some seventeen feet in width across the south side of appellee’s property and the north side of appellants’ property. We summarize the highlights of appellee’s proffered evidence. In 1946 the Price family repaired the south fence on their property, believing that the fence was on the property line. They followed a line on which an old fence was recognizable; they farmed the area up to the old fence beginning in the late nineteen forties; they ran livestock up to the old south fence line; a logging contractor cut timber for both parties up to the old line fence on both sides; appellee built a small enclosure for a pony and tied into the south line fence; and they made a garden for ten years up to and including the disputed area. Appellee testified that it was not until 1970 when the Masseys, after a survey, first indicated that the fence was not on the true forty line. Events immediately following that revelation culminated in the filing of suit by appellee.
Appellants’ evidence strongly disputed that of appellee. They said the disputed strip was used as a lane by the predecessors in title of the present owners; that the north fence which helped form the lane was at approximately the true boundary line; that in 1932, by mutual agreement, the Price fence was torn down and D. C. Price (appellee’s predecessor in title) joined the Massey’s fence on the south; and that it was agreed that the location of the two fences would not affect the true boundary line.
It would be of no service to the bench and bar generally to summarize the testimony of the seventeen witnesses, all of which we have carefully scrutinized from the abstract of the evidence. Suffice it to say that we conclude that the finding of the chancellor was not contrary to a clear preponderance of the evidence. In order for adverse possession to ripen into title it is axiomatic that the possession must be open, actual, notorious, continuous, hostile, and exclusive under a claim of right. Montgomery v. Wallace, 216 Ark. 525, 226 S. W. 2d 551 (1950). The chancellor determined that appellee had met those requirements and we cannot say he was in error. It is true that appellee bore the burden of establishing title by adverse possession by a greater weight of the evidence. Of course “greater weight” does not mean the greater number of witnesses; just as important is the credibility of the witnesses and the chancellor is in better position to evaluate credibility than is this court. Loftin v. Goza, 244 Ark. 373, 425 S. W. 2d 291 (1968).
This brings us to the claimed easement for a driveway. Appellee’s home is situated in proximity to the road on the west leading to Strong, Arkansas. In 1959 appellee and her husband constructed a driveway roughly in the shape of a half moon. The driveway begins on the north side of appellee’s property and exits some 300 feet on the south side. The extreme south end of the driveway indisputably encroaches on the Massey property. The stated reason for the encroachment was that it was necessary to avoid a ditch alongside the highway. Appellee candidly stated that she was aware that she was going onto the Massey property and “I suppose I just assumed he was my neighbor and didn’t object and assumed I was doing it with his permission, which I suppose I was.” For use by permissiveness to ever ripen into title, the claimant must put the owner on notice that the way is being used under claim of right. Stone v. Halliburton, 244 Ark. 392, 425 S. W. 2d 325 (1968). We think the evidence in this case falls short of establishing a claim of right by appellee and we accordingly reverse the chancellor in his holding with respect to the easement.
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George Rose Smith, Justice.
The ultimate question in this case is whether the two plaintiff-appellees, Johnny Havens and Orby Woodruff, established by clear and convincing evidence the terms of an oral contract by which Woodruff is assertedly entitled to purchase an improved 80-acre tract from the appellant, Mrs. Reynolds, for $21,000. The chancellor, in an opinion holding at least by implication that the clear and convincing rule is inapplicable, upheld the contract of sale and ordered specific performance. In the view we take, the clear and convincing rule is controlling, and the appellees failed to sustain their heavy burden of proof.
The controversy arises from an option to purchase, contained in a two-year lease by which Mrs. Reynolds rented the property to Havens for a term beginning February 1, 1969, and ending January 31, 1971. That lease provided that at any time during the second year of the term the lessee would have the right to purchase the property for $21,000. He was required to give written notice of his intention to purchase, whereupon it became the lessor’s duty to furnish an abstract of title and to do any curative work necessary to render the title marketable. When the title had. been cleared Mrs. Reynolds was to execute a warranty deed to the property, and Havens was to make payment as follows: He was to pay $4,000 in cash and execute a promissory note for the remaining $17,000 (less the amount of any rents paid during the second year of the term), payable in annual installments of $1,000, at 6% interest.
Havens, admittedly unable to raise the money for the $4,000 down payment, decided to sell his interest in the property to someone else. To that end he listed the property with United Farm Agency, a real estate company. In the latter part of August, 1971, Jim Hicks, a United salesman, interested the appellee Woodruff in buying the property for $26,000. There was a complication, however, in that Havens, the lessee, had only an option to buy the property.
Oh September 11, 1971, Woodruff, Hicks, and another United salesman, Joe Castleberry, called on Mrs. Reynolds to arrange for the purchase of the property from her at the option price of $21,000. At the moment it suffices to say that Mrs. Reynolds orally agreed to accept Woodruff as the buyer, in place of the lessee Havens.
It is quite apparent that Mrs. Reynolds, upon learning that Woodruff had agreed to pay Havens $26,000 for the land, decided (upon the advice of her brother and her attorneys) to avoid if possible her obligation to sell the property for $21,000. She accordingly evaded her responsibility to furnish an abstract of title and managed to keep from accepting the September rent from Havens until the agreed 30-day grace period for its payment had expired. She then contended that the lease and the option to purchase were no longer in effect.
Havens and Woodruff at first joined forces, as plaintiffs, in seeking specific performance of the purchase contract. The complaint contained two counts. The plaintiffs asserted in Count 1 that Havens, Woodruff, and Mrs. Reynolds had agreed at the September 11 meeting for Havens to exercise the option and assign it to Wood-ruff, who was to give his own note for the balance of the purchase price. The complaint tendered the $4,000 down payment and attached as an exhibit a note for the balance, executed by Woodruff and his wife. The plaintiffs averred in Count 2 that if the proof failed to sustain the allegations of Count 1, then Havens’ agents (Hicks and Castleberry) had exercised the option on Havens’ behalf at the September 11 meeting. In Count 2 the complaint repeated the tender of the $4,000 down payment and attached as an exhibit an alternative note for the balance, signed by Havens and his wife. Mrs. Reynolds pleaded the statute of frauds and other de fenses.
Before the trial Havens and Woodruff abandoned their unity of position as plaintiffs, employed separate attorneys, and filed counterclaims against each other. In the circumstances it is not surprising that their proof failed to establish either asserted cause of action against the defendant by the required standard of clear and convincing evidence.
The chancellor, who was understandably reluctant to let Mrs. Reynolds evade her moral obligation to sell the land for $21,000, gave an opinion holding that Wood-ruff was entitled to purchase the property and give his note for the unpaid balance of the purchase price. The chancellor reasoned that at the September 11 meeting the parties had not modified the contract but had merely agreed to a substituted method of performance, such as was permitted in Valley Planning Mill Co. v. Lena. Lbr. Co., 168 Ark. 1135, 272 S,W. 860 (1925). The chancellor added that Woodruff’s acts in taking possession of the property, making a payment on the purchase price, and changing his position, were sufficient to take the agreement out of the statute of frauds. In that view of the case the chancellor did not find it necessary to say whether the proof was to be tested by the clear and convincing rule.
We are unable to sustain the chancellor’s decision. To begin with, we do not regard the September 11 negotiations as involving only a substituted method of performance with respect to details not falling within the statute of frauds. The controlling rule was stated as follows in the Valley Planing Mill case, supra:
The general rule is that a material modification of a contract within the statute of frauds must be in writing in order to be valid and binding. Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the statute of frauds. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445. There is a marked difference, however, between a modification of a written contract in the essentials required to meet the statute of frauds and an agreement for a substituted method of performance not within the statute. The former is required to be in writing in order to be enforceable as against a plea of the statute of frauds, whereas the latter is valid if in parol.
In the case at bar the modifications recognized by the trial court’s decree of specific performance went beyond mere substituted methods of performance not within the statute. For instance, Mrs. Reynolds was compelled to convey the property to Woodruff and to accept his promissory note for the unpaid balance of $16,300 (the agreed amount less a $700 credit for rents paid). A memorandum, to satisfy the statute, must state all the essential terms of the agreement. Lindsey v. Hornady, 215 Ark. 797, 223 S.W. 2d 768 (1949; Wyatt v. Yingling, 213 Ark. 160, 210 S.W. 2d 122 (1948). Certainly the identity of the purchaser and of the person whose note must be accepted for 80% of the total purchase price, can only be regarded as essential terms of the agreement. Inasmuch as Mrs. Reynolds signed no writing containing either of those terms, the statute was not complied with.
There remains the chancellor’s finding that Wood-ruff’s acts of part performance took the contract out of the statute. The trouble is that both the making of the contract and its part performance must be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949). We need discuss only the first aspect of the rule, for the record does not contain clear and convincing proof of the terms of the oral contract relied upon by Woodruff.
The complaint, as we have said, contained two inconsistent counts, one asserting that Woodruff was to buy the property from Mrs. Reynolds and the other that Havens was to buy it from her. Similar contradictions appear in the various versions of the September 11 discussion. Castleberry testified that the three men did not offer to exercise the option. Hicks testified that he told Mrs. Reynolds that Havens would exercise the option. Woodruff testified that no one mentioned the option. Hicks said he told Mrs. Reynolds that they would need the abstract. Castleberry was not sure they talked about the abstract. Woodruff said no one mentioned it.
On the day after the September 11 discussion Hicks wrote up an agreement of sale, to be signed by the Havenses and by Woodruff. That instrument, as rewritten a week later to correct an error in the description, adds to the confusion. It designates the Havenses as the sellers and Woodruff as the buyer. It fixes the amount of the note to Mrs. Reynolds at $17,000, though the other proof indicates that it should have been $16,300. The contract makes the note payable in monthly installments of $133.13, which conforms to Hicks’ testimony about the September 11 discussion; but the complaint and the lease both provide for annual installments of $1,000. The decree amends the lessee’s option to purchase to conform to the terms and conditions agreed to by the parties on September 11, and then orders specific performance of both the op don as so modified and the sales agreement between the Havenses and Woodruff, to which Mrs. Reynolds was not a party.
To sum up, the pleadings and proof are directed to two different theories of the case: One, that Mrs. Reynolds orally agreed to sell the land directly to Woodruff; two, that Havens in fact exercised the option and became entitled to specific performance. We might experience some difficulty in deciding whether either theory is supported by a preponderance of the evidence, but we have no hesitancy in saying that neither theory is supported by dear and convincing proof. That being the test applicable to Woodruff’s cause of action, the decree must be reversed and the cause dismissed. We need not consider whether Havens’ right to enforce the option to purchase for his own benefit is supported by the weight of the evidence, for in the absence of a cross appeal we cannot afford affirmative relief to an appellee.
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Carleton Harris, Chief Justice.
Leo Thompson, appellant herein, was convicted by a jury of the crime of burglary and his punishment assessed at two years confinement in the Arkansas Department of Correction. Thompson was also charged as an habitual criminal, it being alleged that there were five prior felony convictions, and the jury, after sitting again, and hearing the evidence of these prior convictions, retired, and fixed his punishment in this second verdict at twenty-five years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brines this appeal. For reversal, five points are listed, though the first three all relate to the contention that there was no substantial evidence to support the conviction.
The proof reflected that Officers Wells and Nelson of the Texarkana, Arkansas, Police Department were on routine patrol on the night of November 7, 1970, when they observed appellant breaking into the Lion Service Station at East and Edwards Street in Texarkana a short time after midnight. Both officers heard glass break, and observed Thompson sticking his hand through the glass of the door to the building. Wells observed Thompson with his right hand inside the front door extended to the lock trying to get the door open. The officers, who were in a patrol car, drove to the next block, turned and came back to the entrance of the Lion Station, at which time appellant started to walk off. According to the officers, Thompson had been drinking, but was not drunk, and had a cut on his right hand. The proof reflected that the door could not be opened from either the inside or outside without a key, and the evidence further reflected that the properties nearest the door, cans of oil, were approximately eight feet back from the door. It is this circumstance that occasions appellant’s principal argument, viz, that he could not have been guilty of burglary, because, since he had no key to open the door, and could not reach the cans of oil, there could have been no burglary, Thompson not being capable, under the circumstances, of committing a folony. Appellant cites Anderson v. State, 84 Ark. 54, 104 S. W. 1096, where this court said:
“The ‘breaking’ disclosed by these facts was not sufficient under our statute to constitute the crime of burglary. * * * The statute does not change the character of the ‘breaking’ that was essential at common law to complete the offense. Such breaking at the common law was “any disrupting or separating of material substances in any enclosing part of a dwelling house, whereby the entry of a person, arm, or any physical thing capable of working a felony therein may be accomplished.’ * * * The essentials of the above definition as to the ‘breaking’ must be met by proof before the crime of burglary by ‘breaking’ is complete. The proof in this case falls short of it. There was no ‘opening or mode of entrance’ here by which a felony could have been committed within the building, [citing case] The only opening into the building was the hole in the door, and it is not shown that it was possible to abstract anything through this opening, or that any latch or fastening could have been reached whereby to effect an entrance. Therefore the judgment has no evidence to support it, and the cause is reversed and remanded for new trial.”
Terry v. State, 238 Ark. 426, 382 S. W. 2d 361, quotes the above language from Anderson, and the case was reversed on the basis that appellant was not guilty of burglary, but in both Anderson and Terry, it is mentioned that there was no entry into the house. In Anderson, the hole in the door was too small to admit a hand, and in Terry, the opinion reflects that all of Terry’s acts occurred on the outside, and no part of his body was ever inside the house. This is quite different from the case at hand where the state’s proof is positive that appellant’s hand was sticking through the glass door, and was thus inside the building.
While we are not convinced by appellant’s argument that there was no breaking, a discussion of that contention is unnecessary since there was substantial evidence that there was an entry, and we have held that both a breaking and entry need not be shown to convict of burglary; either is sufficient to constitute the crime. As early as 1903, this court held that it was not necessary to prove both a breaking and entering to make out a case of burglary. See Minter v. State, 71 Ark. 178, 71 S. W. 944; also Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996. Of course, this is in accord with our statute, Ark. Stat. Ann. § 41-1001 (Repl. 1964) which defines burglary as follows:
“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”
In 2, Anderson, Wharton’s Criminal Law and Procedure, § 421 p. 42, under a discussion of “Entry” we find:
“At common law, burglary requires an entry into the dwelling place. Accordingly, it is not burglary when the defendant merely breaks open the outer shutter, but does not get his hand through the glass pane.
Any penetration, however slight, of the space within the house by the defendant, or by any part of his body or by any instrument inserted for the purpose of perpetrating a felony therein, is a sufficient entry. Accordingly, it is a sufficient entry when the defendant reaches his finger, hand, or arm inside the house, for the purpose of committing the intended felony, such as taking out property.”
It will be noted from our statutory definition of the crime of burglary, and from the authority just cited, that a principal element in breaking or entering is the fact that the act is committed with the intent to commit a felony. Here, certainly the facts testified to by the officers support such a finding, and there is no testimony to the effect that the entry of the hand into the building (which was for the purpose of unlocking the door so that the entire body of appellant could enter) was done with any intent to enter the building for some other purpose than that of committing a felony.
It follows that there is no merit in appellant’s contention that the facts do not support the crime of burglary.
It is next urged that the manner of presenting prior felony convictions constituted error. Ark. Stat. Ann. § 43-2330 (Repl. 1964) reads as follows:
“The duly certified copy of the record of a former conviction and judgment of any court of record for imprisonment in the penitentiary against the person indicated or the certificate of the warden or other chief officer of any penitentiary of this State or any other State in the United States, or the Federal Government or of any foreign country, or of the chief custodian of the records of the United States Department of Justice, containing the name and the fingerprints of the person imprisoned as they appear in the records of his office shall be prima facie evidence on the trial of any person for a second and subsequent offense, of the conviction and judgment of imprisonment in the penitentiary and may be used in evidence against such person.”
In the instant case the Circuit Clerk of Miller County produced the official records involving the prior convictions of appellant; these of course, were originals and not copies. The clerk, and the men who preceded him as clerk, these latter having served as circuit clerk during earlier convictions, identified the records, and in addition, identified appellant as the person convicted in the earlier cases. Of course, in numerous instances, prior convictions occurred in some other state, and the purpose of the statute requiring the certificate is the protection of the defendant, i. e., to prevent incompetent, erroneous, or mistaken evidence relating to prior convictions from being offered. Certainly, the evidence offered in this case was stronger and unquestionably more reliable than certified copies and appellant could not possibly have been prejudiced by the admission of these original records and testimony.
Finally, it is urged that the Arkansas Habitual Criminal Statute is unconstitutional, it being urged that, in this case, the twenty-five years imprisonment constitutes excessive, cruel, unusual, and inhumane punish ment. This same contention was raised in Dolphus v. State, 248 Ark. 799, 454 S. W. 2d 88, and was rejected.
Affirmed.
Brown, J., not participating.
See Ark. Stat. Ann. § 43-2330.1 (Supp. 1971).
See Ark. Star Ann. § 43-2328 sub-section (3) (Supp. 1971).
Thompson told the officers that he received the cut on his hand from a fight at a “drive-in”.
Our emphasis.
The appellant did not testify.
All prior convictions used occurred in Miller County. | [
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Frank Holt, Justice.
Appellee brought this action against appellant to enforce the uninsured motorist provision of appellant’s policy issued to appellee. Appellee alleged that his minor son, Bruce, was crossing a public highway when he was struck by an uninsured automobile owned by Gene Darter and driven by James L. Ward. Appellant answered and denied that the vehicle involved was uninsured within the meaning of the policy and alleged that the accident and injuries resulted from the negligence of appellee’s son. Appellant also secured a court order which required that appellee amend his pleadings to assert his claims against Darter and Ward and Ward’s business partner as third party defendants pursuant to the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1007 (Repl. 1962). In response, the appellee asserted that this joinder statute was inapplicable. Subsequently, appellant agreed that the joinder of the third party defendants under § 34-1007 was incorrect. Appellant asserted, however, that its joinder motion should have been predicated upon § 66-4006 (repl. 1966) which provides for subrogation up to the extent of any amount appellant paid under its uninsured motorist coverage. Upon trial date, the appellee successfully asserted that he was not required to join anyone as a third party defendant pursuant to § 66-4006 because it provides only for subrogation “[i]n the event of payment to any person under the coverage required by this section***.” A jury trial then resulted in a verdict for the appellee under the uninsured motorist provisions of the policy.
For reversal of that judgment appellant contends that it was an error for the trial court to dismiss the actual tortfeasors and to require appellant to defend alone. Appellant argues that under the provisions of the policy and through the dictates of fairness, the third parties allegedly responsible for appellee’s damages should be made co-defendants by the appellee himself in any suit against appellant arising out of the uninsured motorist coverage. We find no merit in this contention. It is true that the policy issued by appellant provided for the “Assistance and Cooperation of the Insured.” This clause states that “in any action against the Company, the Company may require the Insured to join such person or organization as a party defendant.” However, this provision was not specifically pleaded, and it is relied upon for the first time on appeal. In Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294 (1966), we said: “In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must be specially pleaded.” See, also, Stucker v. Hartford Accident & Indemnity Co., 220 Ark. 472, 248 S.W. 2d 383 (1952). In our view, it was necessary for the appellant to specifically invoke the “cooperation” clause in the trial of the case. Instead, appellant sought to compel plaintiff-appellee to join the alleged tortfeasors pursuant to § 34-1007 and § 66-4006 which are inapplicable. Further, in Hartford Accident & Indemnity Co. v. Warren, 246 Ark. 323, 438 S.W. 2d 31 (1969), it was asserted that a judgment against the uninsured motorist was a condition precedent to an action against the insurer under its uninsured motorist clause. In rejecting this argument, there we cited as controlling our decision in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252 (1968) where we held that an insured has the option of suing either his insurer or the uninsured motorist or both; also, that the insurer itself is not prevented from cross-complaining against the uninsured motorist, or proceeding by a separate action against an uninsured motorist after payment of a judgment in favor of its insured. Similarly, in the circumstances here, we deem that decision controlling. In the case at bar, the trial court correctly held that appellant-insurer could not compel the appellee-insured to join the alleged tortfeasors as co-defendants with appellant pursuant to either of the two statutes invoked by appellant.
However, as we have said, the appellant definitely has the right to make the alleged tortfeasors defendants by a cross-complaint. MFA Mutual Ins. Co. v. Bradshaw, supra. We observe that in appellant’s motion to compel the appellee-insured to make the tortfeasors third party defendants appellant, also, alleged entitlement to a judgment over against them in the event a recovery resulted in favor of the appellee-insured against appellant. This motion was granted ex parte and summons was issued against the third party defendants. Each of these alleged tortfeasors responded by filing separate answers or general denials. Each, also, appeared at trial to defend. In appellant’s amended answer, after its joinder motion was granted and the tortfeasors had responded, the appellant reiterated “that if it is held responsible for any sum it is entitled to judgment against third party defendants for such amount. WHEREFORE, Home Insurance Company prays dismissal, or judgment against third-party defendants as an alternative.” The alleged tortfeasors, themselves, never interposed any objection to being made par ties to the lawsuit. In the circumstances, we hold that the pleadings and issues, as joined, after the court’s refusal to compel appellee to continue his litigation by including the tortfeasors as his third party defendants, constituted a cross-complaint by the appellant-insurer. This is in accord with our well established procedure that for the purpose of determining the effects of pleadings the “*** allegations shall be liberally construed.***” Ark. Stat. Ann. (Repl. 1962), § 27-1150. In interpreting this statute, (numerous cases cited there), we have said a liberal construction requires that every reasonable intendment should be indulged in favor of the pleader and effect should be given to substance rather than form regardless of the name of the pleading. It follows that it was error not to treat appellant’s pleadings as a cross-complaint.
Appellant next contends for reversal that the vehicle involved was not uninsured and there was adequate evidence to that effect. We cannot agree. The insurance policy provides, inter alia, that a vehicle is uninsured if “with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder***” The driver of the car and its owner testified that their individual liability insurance carried disclaimed coverage. A copy of a letter from Darter’s insurer to that effect was made an exhibit. In the circumstances, this undisputed evidence was of a substantial nature and adequate.
Appellant next asserts for reversal that certain photographs were erroneously admitted into evidence. Appellant asserts that the photographs were objectionable because they were taken from a point far distant from the scene of the accident. One shows a school crossing sign approximately 1,000 feet from the point where the accident occurred. A marked crossing for the school children was 335 1/2 feet from the accident scene. Appellee’s minor son was injured when he and a companion, following school’s dismissal, crossed the road at another point, unindicated by a marking, often used by school children going to football practice. Each picture also portrays the scene of the accident. The failure to keep a proper lookout was one of the allegations of negligence. There was evidence that the accident occurred at about the time children were leaving school. Where photographs protray a scene, with fairness and accuracy, it is within the sound discretion of the trial judge to determine their admissibility as an aid to the jury. Riggan v. Langley, 238 Ark. 649, 383 S.W. 2d 661 (1964); Arkansas State Highway Comm. v. Webster, 236 Ark. 491, 367 S.W. 2d 233 (1963). In the case at bar we cannot agree with appellant that the trial court abused its discretion in admitting the photographs.
For the error in not treating appellant’s pleadings as constituting a cross-complaint, the judgment is reversed and the cause remanded.
Reversed and remanded. | [
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Lyle Brown, Justice.
This is a contest between two banks to determine which, if either, is entitled to the proceeds of a judgment taken in favor of a creditor who was indebted to both banks. The appeal is taken from a finding by the chancellor that appellee had priority under the Uniform Commercial Code.
In September 1964 Mr. Carney became indebted to Mr. Watson and executed a note for $2,500. Watson delivered the note to appellee, First National Bank, as one of several items of security for a substantial loan. A security agreement and financing statement were executed and the note was listed therein. The note was a negotiable instrument; there was nothing on the face of the note which might give notice to anyone that it was security for a debt owed First National.
In August 1969 First National permitted Watson to withdraw the note from its files, presumably for the purpose of collection. A little over a year later, Watson obtained judgment against Carney on the note. McIlroy Bank learned of the judgment and forthwith initiated garnishment proceedings against the judgment because Watson was delinquent in a large debt to McIlroy. First National intervened in the garnishment proceedings, asserting its secured interest in the note which was the basis of the Carney judgment.
We think that when First National surrendered possession of the note it lost the security interest it previously held.
Ark. Stat. Ann. § 85-9-304 (1) (Add. 1961) provides that “A security interest in chattel paper or negotiable' documents may be perfected by filing. A security interest in instruments (other than instruments which constitute part of chattel paper) can be perfected only by the secured party’s taking possession, except as provided in subsections (4) and (5).” Looking at subsections (4) and (5) to discover what the exceptions to possession would be for perfecting an interest in an instrument we find that those sections only pertain to temporary perfection (21 days). Since Watson had possession of the Carney note for more than a year, those subsections would not apply. In § 85-9-304, comment 1, it is recited: “With respect to instruments subsection (1) provides that, except for the cases of ‘temporary perfection’ covered in subsections (4) and (5), taking possession is the only available method [of perfection].” Then § 85-9-305 provides, “. . . A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this Article (chapter).” Under § 85-9-302, Purpose of Changes 3, the comment is that “under this Article. . . filing is not effective to perfect a security interest in instruments. See Section 9-304 (1).” The term “instrument” is defined, among other things, in § 85-9-105 (1) (g) as a negotiable instrument.
First National next argues that if it did not have a secured interest it did have a valid equitable assignment of the note. Watson, upon transfer of the note back to him, held it for over a year and reduced it to judgment without the knowledge of First National. He therefore retained exclusive control of the note, which action would be contrary to First National’s contention that it had an equitable assignment. Additionally, the UCC does not permit assignments of negotiable instruments. Under §§ 85-3-201 — 208, the note must be transferred or negotiated.
First National next contends that McIlroy cannot reach the judgment by garnishment. We have held in two cases that a judgment debtor (in this case Carney) is not subject to the process of garnishment of the judgment. Trowbridge & Jennings v. Means, 5 Ark. 135; Tunstall v. Means, 5 Ark. 700. In Trowbridge this court said: “But we are clearly of the opinion that, after the rendition of judgment against a debtor, he is not subject to garnishment.” First National’s position is correct. We do not agree with appellant that the cited cases have been limited by St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S.W; 56 (1886). That case was not concerned with a final judgment.
Finally, First National argues that the UCC does not apply to a right represented by a judgment, citing § 85- 9-104 (h). Mcllroy argues, and rightly so, that every incident which would come within the provisions of the Code occurred prior to the judgment. Watson did not obtain the judgment against Carney until January 1971, and thus it would be from that date forward that the Code would not apply.
Succinctly summarizing, First National lost its priority by surrendering possession of the negotiable instrument and, secondly, Mcllroy’s garnishment of the Carney judgment is of no avail.
Reversed.
Fogleman, J., not participating. | [
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George Rose Smith, Justice.
The appellees, Ezra Metz and his wife, owned a 2.3-acre tract of land on which were situated a combined grocery store and service station, their own residence (attached to the store), and another residence occupied by Mrs. Metz’s grandmother. The property is at the intersection of two paved state highways, No. 18 and No. 135.
The highway commission brought this action to condemn .39 of an acre of the tract for highway purposes. The taking does not directly touch the improvements on the land, but it will adversely affect the access to the property and will reduce the parking area available for customers of the store and service station. The jury fixed the landowners’ compensation at $10,000. For reversal the commission argues that certain testimony of Metz and of his expert witness Van Natta should have been stricken.
Metz, the landowner, testified that he had lived on the property and operated the grocery and service station for two years. He said that he was familiar with property values in the area. He explained that before the condemnation three or four customers had been able to park on the property. After the taking only one customer will be able to stop, so that additional customers cannot come in until that one leaves. Metz relied in part upon one other sale of comparable property in the vicinity. That property, comprising a fraction of an acre having a single residence upon it, had sold for $17,000. Metz valued his own property at $50,000 before the taking and at $35,000 after the taking. On cross examination he said that he had considered the property as a whole and was unable to break his figures down as between the value of the property taken and the damage to the remainder.
The court was right in refusing to strike Metz’s value testimony. As Nichols points out, a landowner is generally held to be qualified to express his opinion about the value of his property. “He is deemed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use, to have a reasonably good idea of what it is worth.” Nichols, Eminent Domain, § 18.4 [2] (3d ed., 1969).
Our cases so hold. We stated the basic rule in Jonesboro, L. C. & E. R.R. v. Ashabranner, 117 Ark. 317, 174 S.W. 548 (1915):
The plaintiff also testified, giving her opinion as to the extent of the injury to the land, and there was a motion made to exclude that testimony from the consideration of the jury. Much latitude and discretion is allowed in the trial court in permitting [a] witness to give opinion as to value of land and the extent of the depreciation thereof, for, after all, it is but the opinion of the witness. Plaintiff resided on the land and was familiar with the conditions, and we think the court was justified in allowing her to state her opinion of the extent of the injury to the land and the depreciation in the value thereof.
See also a more extended discussion in Ark. State Highway Commn. v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S.W. 2d 173 (1959).
On the other hand, if the landowner is shown to have no knowledge about the value of the property, his opinion is not competent evidence. Ark. State Highway Commn. v. Darr, 246 Ark. 204, 437 S.W. 463 (1969). That, however, is certainly not the situation here. Metz had lived on the land and run the store and service station for two years. He explained how the loss of the parking area would affect the access of customers to the property. His opinion about the resulting depreciation in value was unquestionably competent.
There being no question of the elimination of an inadmissible element of compensation, we know of no authority holding that a witness must be able to subdivide his opinion into separate elements; Nor would such an allocation of the damages necessarily be of assistance to the jury. Here, for example, the commission’s expert witness Watson testified that the land taken was worth $1,200 and the damage to the remainder was $3,300. When, however, he was pressed on cross examination to explain how he arrived at the $3,500 figure, he said in substance that it was a judgment figure, based upon his experience and knowledge. The jury might readily have concluded that Metz, after two years of experience in operating the business on the property, was in a superior position to assess the depreciation in value resulting from the condemnation.
The appellant also insists that the following excerpts from Metz’s testimony show that he was merely stating the value of the property to him:
A. I just figured my property worth $50,000, as I say, because of my home and store.
Q. That is what it is worth to you?
A. Yes, sir, and I believe $15,000 damage to it, because I don’t believe it would be worth over $35,000 after the taking.
Q. That is your opinion, what it means to you?
A. Yes, sir.
We have held, it is true, that a landowner’s statement of what the property is worth to him is not substantial evidence. Ark. State Highway Commn. v. Perryman, 247 Ark. 120, 444 S.W. 2d 564 (1969). That statement simply means that a landowner who has no knowledge of market values cannot be permitted to say how much the land is worth to him, since that is not the measure of just compensation. In the case at bar Metz had demonstrated an adequate knowledge of market values. His affirmative answer to a loaded question did not cause that knowledge to disappear, nor was it the equivalent of a positive assertion that he knew nothing about the value of the property except what it was worth to him.
We find no merit in the appellant’s contention that the court should have stricken the expert witness Van Natta’s testimony that the value of the property taken was $4,000 an acre. Van Natta had been a real estate appraiser for forty years. He cited as a comparable sale a transaction in which a fractional acre had sold for $17,000. That property, however, had only a single residence upon it, instead of two residences and a commercial building. He also cited sales of purely residential property at from $3,000 to $3,500 an acre. It was evidently not possible to find an exactly comparable sale, involving a small tract with three buildings upon it. In fact, the commission’s own expert, Watson, stated that there were very few sales that were “very comparable.” Watson actually mentioned only two sales, neither of which had much similarity to the Metz land. The court did not abuse its discretion in sustaining the admissibility of Van Natta’s opinion.
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Conley Byrd, Justice.
These personal injury actions grow out of a railroad crossing collision at Blackville, Arkansas. Reverend A. L. Perkins, age 76, a resident of Little Rock, was the pastor of a small church. He drove his car across the tracks in front of a Missouri Pacific Railroad Company train operated by C. Stover, the engineer and A. D. Harper, the fireman. Sam McDaniel, age 74, and Walker Templeton, age 86, were passengers in Reverend Perkins’ automobile. The two passengers were killed in the collision. Because of the injuries received, Reverend Perkins had no recollection of the accident, of having seen the train, or what happened immediately afterwards. The three actions by Reverend Perkins and Ada Perkins, his wife, by John C. McDaniel as Administrator of the estate of Samuel McDaniel, and by Adell Templeton, administratrix of the estate of Walker S. Templeton, deceased, were consolidated for trial. The only issue of negligence submitted to the jury was whether the whistle and bell had been properly sounded. The jury returned verdicts of $10,000 for Reverend Perkins; $25,000 for the widow of Walker Templeton and $5,000 each for the ten Templeton children; and $5,000 each for the eleven children of Sam McDaniel. Funeral expenses were also allowed. For reversal of the judgments, appellants, the Missouri Pacific Railroad Company, A. D. Harper and C. Stover, contend:
"I. The trial court was in error in permitting the attorneys for the plaintiffs to elicit testimony from various witnesses that they were in position to have heard the whistle or the bell if sounded.
II. It was error to give the jury verdict forms which did not permit separate findings for the three separate defendants.
III. The trial court should have granted a mistrial when attorney for the plaintiffs in closing argument asked the jurors if they would take $15,000.00 for their fathers or $75,000.00 for their husbands.
IV. The court erred in striking from the record the testimony of Mrs. Stella Swaim that there had been no accidents at the crossingin 35 years.
V. The court should have permitted counsel for the defendants to ask the driver what he should do as he approaches a railroad crossing.
VI. The verdicts are excessive.”
POINT I. The trial court permitted a number of witnesses, some of whom were as much as a quarter of a mile from the scene, to testify that they did not hear the train whistle and that if the whistle had been blown, they could have heard the whistle. One such witness was Cloudy Knight Williams. He testified that he heard the collision, that no whistle was blown and if it had been, he could have heard it.
As pointed out in Fort Smith & Western Railway Company v. Messek, 96 Ark. 243, 131 S.W. 686, 131 S.W. 966 (1910), such evidence is based upon what may be called negative knowledge. Other courts in admitting the statement that the witness could have heard the whistle if it had been blown have done so on the premise that is is “knowledge at short hand” — i.e., it obviates the necessity of a great many other questions. See Baltimore, C. & A. Ry. Co. v. Turner, 152 Md. 216, 136 A. 609 (1927), and Chicago & A. R. Co. v. Dillon, 123 Ill. 570, 15 N.E. 181 (1888). Since the evidence here shows that the whistle board for the crossing was 1592 feet from the crossing, we cannot say that the trial court abused his discretion in admitting such evidence.
POINT II. The record shows that appellants requested that the issues be submitted to the jury on interrogatories and that appellees wanted the issues submitted on a general verdict. When the trial court decided to submit the matter to the jury upon general verdict form, appellants were requested to submit verdict forms but refused to do so. Under the circumstances, we are at a loss to understand why they are now entitled to complain of the forms of verdict submitted.
POINT III: During closing argument counsel for appellees asked the jury how many of them would take $12,000 or $15,000 for their father’s life or how many of them would take $75,000 for their husband or wife. At this point the record shows the following to have occurred:
“MR. LOVE: Your Honor, I want to object to that argument and ask for a mistrial on the basis that he is putting a question to the jury of what they might take for their husband or their father. It’s highly prejudicial and not in any way—
THE COURT: Ladies and gentlemen of the jury, your motion for a mistrial will be denied. That portion of the argument dealing with what would you take, as the Court has explained- to you before, opening statements and remarks of attorneys during the trial and closing arguments of the attorneys is not evidence, but is only made to help you to consider this particular law suit. Go ahead.”
We have consistently held such arguments to be improper, Lin Mfg. Co. of Ark. v. Coursen, 246 Ark. 5, 436 S.W. 2d 472 (1969). In Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905), the law applicable to the subject was stated in this language:
“When the ruling of the court is presented to the appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review.”
Appellants here only contend that the trial court should have granted them a mistrial. They do not com plain of the trial court’s admonition to the jury. On the record made, we cannot say that the trial court abused its discretion in refusing a mistrial.
POINT IV: Mrs. Stella Swaim testified that the accident in question was the first accident in 35 years. Upon motion the trial court struck the testimony. No error was committed. Appellants had not laid the proper foundation for the testimony by showing that the conditions at the crossing had remained substantially the same for the 35 year period. Furthermore, the issues having to do with a dangerous crossing, were withdrawn.
POINT V: Reverend Perkins testified that he had no recollection of anything that occurred on the day of the collision from the time he saw the tracks until he was talked to in the hospital. On cross-examination, he testified that he had crossed the crossing over a hundred times but he had never stopped for a train at the crossing. Thereafter the following occurred:
“Q. Reverend Perkins, what is a motorist required to do when he approaches the railroad crossing?
“A. He is supposed to—
“MR. GORDON:
Your Honor, I believe the law sets that out.
“THE COURT:
Sustained.
“Q. As I understand it, you don’t have any recollection of seeing or hearing a train, and you don’t recall anything after seeing that first track, so you really can’t tell us whether you looked to the right or left, can you?
“A. I know nothing except I saw that crossing, and the next thing I saw they were talking to me in the hospital.”
Appellees contend that appellants did not properly comply with Ark. Stat. Ann. § 27-1762 (Repl. 1962), in that they neither made an objection to the court’s ruling nor made known to the court the action they desired the court to take. Ark. Stat. Ann. § 27-1762 provides:
“Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”
The foregoing statute is copied from Federal Civil Procedure Rule 46. The federal courts in interpreting that rule have held that the objection must be specific enough to inform the trial court of the point urged by the objector and to show the opposite party the point of the objection, so that he may have an opportunity to obviate the error, if possible. See Barron 8c Holtzoff, Federal Practice and Procedure §1021 and 88 CJS Trial §124. In treating Rule 46, in Fort Worth & Denver Railway Company v. Roach, 219 F. 2d 551 (5th Cir. 1955) it was said:
“The first specification of error relates to the following ruling of the trial judge: 1 will sustain the objection, gentlemen of the jury, to all of the testimony of this witness except formal matters like his training as a doctor and his experience and his interpretation of the X-rays that were identified by Dr. Van Sweringen. That part of the rest of it will be stricken.’ Immediately following this pronouncement and in language which is clearly indicative of assent counsel for the defendant said: ‘Very well, your Honor.’ This being the state of the record it is apparent that no proper objection was taken to the ruling of the court and under Fed. Rules Civ. Proc., Rule 46, 28 U.S.C.A. the court’s action may not be assigned as error on this appeal. We therefore overrule this assignment without inquiring into the question it seeks to raise.”
In Hammond v. Peden, 224 Ark. 1053, 278 S.W. 2d 96 (1955), we said:
“4. Next it is contended that the court erred in refusing to let the wife, Nellie Peden, testify concerning matters that took place or occured prior to August 3, 1954, when the last divorce was obtained. It is not necessary to consider the admissibility of this character of testimony because appellant made no objection to the court’s ruling in excluding it. In proceeding under Act 555 of 1953 it is required under §21 of said Act that the party object to the ruling of the court and make known to the court the action which he desires the court to take or he must state his objections to the action of the court and his grounds therefor. As stated this was not done in this instance by appellant.”
Consequently we conclude that appellants for lack of a proper objection are not in a position to complain of the trial court’s action with reference to the inquiry made.
POINT VI: Appellants contend that the mental anguish awards of $25,000 for Mrs. Templeton and $5,000 for each of the Templeton children are excessive. They make the same contention as to the $5,000 awards for each of the McDaniel children.
The record shows that Mr. Templeton was 86 at the time of his death. He was still supporting his wife to whom he had been married for 55 years. The wife testified that she missed going to social affairs and church affairs with her husband. He worked a truck patch, the garden, mowed the lawn and hoed some beans for their son. The widow had ‘‘nervous breakdowns” and had trouble sleeping at night. Under the circumstances, we cannot say that $25,000 for her mental anguish is exces sive. After 55 years of married life, every horizon and every social stratum would be expected to hold some empty anguish.
The Templeton children fit into a different category. Their ages range from 29 to 51 and of the ten children, nine lived out of the state. When the fact that Mr. Temple-ton was 86 at the time of his death is considered together with the infrequency of the children’s visits, a majority of the court has concluded that anything in excess of $500 for the mental anguish of each adult child is excessive.
Sam McDaniel was 74 at the time of his death. He is survived by eleven children, all adults. The only child living with him was Ladelle McDaniel, age 37, a construction worker. Nine of the children testified at the trial. Of the two who did not appear, one was described as too sick and the other financially unable — having lost his job while attending the funeral. Upon the record made, a majority of the court has concluded that any award for mental anguish in excess of $500 for each child is excessive.
The judgment will be affirmed if within seventeen calendar days a remittitur is entered as indicated. Otherwise the specified judgments will be reversed and the causes remanded for a new trial.
Fogleman, J., dissents to remittitur.
John A. Fogleman Justice.
I do not agree with the remittitur on the judgments for mental anguish. I do not know the basis for it. It should not be based upon lack of evidence. I do not believe that it is based upon the ages of the survivors.
Whatever vices may be inherent in the allowance of recovery for mental anguish cannot be cured by judicial establishment of arbitrary ceilings upon judgments for this element of damages. I feel that jury verdicts awarding such damages should be subjected only to the same review on appeal as verdicts for other elements of damage. I cannot, in good conscience, agree that the evidence to support the awards made is not substantial, at least as to some of the children.
As to Ralph Templeton, 32-year-old son of Walker Templeton, who had lived in Chicago since 1955, there was evidence that he was very close to his father, saw him three or four times a year, wrote and called him at intervals and that after the death this son had nightmares, was unable to sleep and to carry out his normal functions of family life and work.
Other such evidence was, in brief:
Aloria Jennings, 37, a Chicago resident, had a close relationship with her father, visited him on every annual vacation, wrote him and sent birthday and father’s day cards. When told of his death, she became hysterical and started screaming. Subsequently, she has been unable to sleep without medication, which has been prescribed by her doctor.
Wilza Rene Ponds, a 29-year-old Chicago daughter, was very close to her father and stayed in touch with him at all times. Since his death, she is unable to sleep without taking a pill every night before she goes to bed, has lost her appetite and is unable to concentrate on the normal affairs of her daily life.
Ruth Pride, a 51-year-old Chicago daughter, saw her father one to three times per year, communicated with him and has had difficulty eating and sleeping since his death.
Wilbur Ray Templeton, a 35-year-old Chicago son, saw his father three to four times annually, and talked with him by phone or wrote him twice per week. Since the father’s death, this son says that he has lost his appetite, is nervous and has nightmares at night.
When Mrs. Viola Hensley, a 42-year-old Chicago resident, was told of her father’s death, she was unable to speak for 1!4 or 2 hours. She is still under a doctor’s care.
Walker Templeton, a 48-year-old son, lived in the same community with his parents, saw them daily and farmed with his father. He was only one-fourth mile from the scene of the accident. When he arrived there he found his mother screaming and saw his father lying on the ground across the railroad track. He still has sleepless nights.
Mrs. Louise Wesley, 39, of Coffeeville, Kansas, has developed high blood pressure and a heart condition since her father’s death.
Mrs. Rose Bell Mason, 30, of Wichita, Kansas, was very close to her father. Since his death she takes pills twice daily for nervousness.
Mrs. Dorothy Jones, 43, of Chicago, said she was quite close to her father and wrote him twice a week. She is unable to sleep and has required the services of a doctor.
It seems to me that the evidence shows that there was more than normal grief more clearly than it did in St. Louis Southwestern Railway Company v. Farrell, Admrx., 242 Ark. 757, 416 S.W. 2d 334. It is true that a $70,000 jury verdict was reduced to $50,000 in that case, but it seems evident that even a substantial part of the smaller judgment was attributable to mental anguish of a 50-year-old son, a 47-year-old son arid a 44-year-old daughter.
It seems to me that the jury was in a better position to determine the extent of the mental anguish of these children than this court is.
I would affirm the judgment. | [
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Conley Byrd, Justice.
In an action by William C. Jones, Jr., against appellee John D. Herrin for damages to Jones’ car, Herrin admitted liability. The trial court found both the difference between the before and after value of the car and the amount of money Jones has spent in renting a substitute vehicle. However, the trial court denied any recovery to Jones for loss of use of his vehicle for the four weeks period. We agree with the trial court under the law of this state. In Kane v. Carper-Do ver Mercantile Co., 206 Ark. 674, 177 S.W. 2d 41 (1944), we stated:
“. . .In some jurisdictions, loss of use of an automobile pending repair is a recognized item of damages. Annotations on this point may be found in 4 A.L.R. 1350, 32 A.L.R. 706, 32 A.L.R. 711, 78 A.L.R. 910, and 78 A.L.R. 917. But regardless of the holding of other courts we have held that loss of use of an automobile pending repair is not an element of damages. ...”
Mr. Jones here recognizes the foregoing authority but contends that we should overrule it and other like cases, urging that:
“Several legal treatises point out that Arkansas is the only state which denies recovery for loss of use of a vehicle pending repairs or replacement. 7 Ark. L. Rev. 397; 2 Harper & James, Law of Torts, 1315; 3 Personal Injury Actions, Defenses & Damages 237. These treatises are critical of the Arkansas position as being difficult to justify and as being regrettable. Counsel for appellant urges the Court to adopt Restatement of Torts § 928:
‘Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
‘(a) the difference between the value of the chattel before the harm and the value after the harm or at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
‘(b) the loss of use.’ ”
While we recognize that there is some merit in appellant’s position, under our decisions the trial court properly denied the claim for loss of use. This disposition makes it unnecessary for us to rule on appellee’s contention that appellant did not sufficiently prove his delay damages.
Affirmed.
George Rose Smith and Brown, JJ., concurring. | [
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Eugene A. Matthews, Special Justice.
I. Summarization of factual background of case.
This Petition for Writ of Prohibition to the Chancery Court of Desha County, McGehee District, grows out of Motion filed by Petitioners on August 25, 1970, in the case of Pine Bluff Production Credit Association, et al, v. H. G. Lloyd, et al, Chancery Case No. 763 to set aside “summarized findings and conclusions’’ signed by the Respondent on Auguest 12, 1970, and filed with the Clerk of Court on August 13, 1970, such Motion alleging that the entry of the summarized findings and conclusions was prompted by bias and prejudice on the part of the Court towards Petitioners as demonstrated in a telephone conversation between two of Petitioners and the Court on August 12, 1970; and, praying that the Respondent disqualify himself in connection with the determination of the Motion and any further proceedings in the case.
Thereafter, on September 2, 1970, the Respondent signed a final decree in Case No. 763 which was filed with the Clerk of Court in Desha County on September 3, 1970. On September 15, 1970, Petitioners filed an amendment to the Motion which they had filed in the Desha Chancery Court on August 25, 1970, in which they renewed the prior motion, further alleging that the entry of the decree on September 3, 1970 was prompted by bias and prejudice on the part of the Court toward Petitioners and praying that Respondent disqualify himself in connection with any proceedings in the case; that a Special Judge be assigned by the Judicial Department of Arkansas; or, in alternative, order a new trial; and, that the summarized findings and conclusions entered by the Court on August 12, 1970 and the decree entered in Case 763 on September 3, 1970 be set aside. To this amended motion was attached the affidavit of John A. Davis and Bill R. Holland setting out their version of the telephone conversation with the Respondent on August 12, 1970.
Thereafter the case of Pine Bluff Production Credit Association, et al, v. No. 763, H. G. Lloyd, et .al, was appealed from the Chancery Court of Desha County, McGehee District, to this Court, and is now pending in this Court as No. 5598. On June 10, 1971, Petitioners filed in this Court their abstract of pleadings and testimony in Case No. 5598 (Case No. 763 in the lower court) and their brief. In the Abstract of Pleadings the Motion filed in the Chancery Court on August 25, 1970, the amendment to such Motion filed on September 15, 1970, in the Chancery Court, together with the affidavits of John A Davis and Bill R. Holland, all as hereinabove referred to, were set forth, and in Petitioners’ brief the allegations of bias and prejudice on the part of the Respondent were argued as Point One of such brief.
Copies of the Abstract and Brief filed by Petitioners in this Court in Case No. 5598 were received by the Respondent on June 11, 1971.
On June 23, 1971, the Respondent entered an order in Desha Chancery Case No. 874 captioned:
In the matter of the appointment of a committee to investigate John A. Davis, Bill R. Holland, and, the law firm of Bridges, Young, Matthews ¿r Davis for alleged contempt of court and violation of canons of professional ethics.
in which Order a recital was made of the receipt of the aforementioned Abstract and Brief by Respondent on June 11, 1971; reciting that one copy of the Abstract, referred to as Volume One (1), and one copy of the Brief referred to as Volume Two (2), of Appellants (Peti doners) had been filed in Case No. 763 pending in the Desha Chancery Court and were a part of the record. The Order went on to say:
“* * *These two volumes have been read by the Chancellor of this Court and the contents and/or substance thereof made known in open Court on this date. The statements, affirmations, references and charges, along with the referred to record made by John A. Davis, Bill R. Holland, and the law firm of Bridges, Young, Matthews and Davis appearing in said volumes may constitute contempt of Court, violation of the Code of Professional Ethics, perjury and criminal slander.
“The Court on its own motion, finds that a committee should be appointed, composed of solicitors of the Bar of the Second Chancery Circuit, Arkansas, to conduct an investigation of the statements, affirmations, references and charges, along with the referred to record made by John A. Davis, Bill R. Holland, and the law firm of Bridges, Young, Matthews and Davis, found in Volume One (1) and Two (2) aforementioned, and report this to the Court, whether or not in their opinion, based on their investigation, any part or portion of said volumes constitute contempt of court or violation of the Code of Professional Ethics.* * *”
A three-member committee of lawyers practicing in the Second Chancery Circuit were then named to conduct the investigation and report their findings to the Court on or before September 4, 1971. It directed that the Committee should convene within ten (10) days from the receipt of a copy of the Order from the Clerk of the Court and organize by electing one committeeman as Chairman, another as Vice-Chairman and the other as Secretary, and thereafter proceed with the investigation therein ordered by the Court. The Order then stated:
“* * *The said committee or any designated member is authorized to accept, hear and take evidence during said investigation, either by affidavit, statement or oral examination. The Court reporter of this Circuit should serve as reporter for said committee to report any evidence directed to be taken by the committee or other proceedings of the committee, and in the event of his inability to serve, the committee is authorized to employ a reporter for the purpose of the investigation. The Clerk of this Court is authorized to issue subpoena(s) for witnesses upon request of any member of the committee and the Sheriff is authorized to serve said issued writ(s) upon the person therein designated for service.”
The Order then continued that while the authority and powers of the committee were not being circumscribed, and that it was granted full power and authority to conduct the investigation therein ordered to ascertain the true facts and report to the Court, but said Committee should specifically ascertain the following:
“1. Did the law firm of Bridges, Young, Matthews and Davis authorize their name to be printed on volume One (1) and Two (2)? (a) Who are the members of the aforenamed law firm? (b) What member or members wrote the volumes? (c) What members of the firm authorized, knew or had knowledge of the contents of the volumes? (d) Were the statements contained in said volumes written at the request, direction or instance of the appellants? (e) Did the appellants have knowledge of the contents of said volumes and confirm or ratify said statements? (f) Who paid for the printing of said volumes? (g) Have the volumes been filed with the Clerk of the Supreme Court? (h) What distribution has been made of said volumes?
“2. Were the statements, affirmations, references and charges, along with the referred to record made by John A. Davis and Bill R. Holland in the form of an affidavit, made by the law firm of Bridges, Young, Matthews and Davis directed toward the Chancellor of this Court and this Court was it essential, necessary and material to the adjudication of the appeal by the Supreme Court? (a) If not, why were these statements, affirmations, references and charges placed in the volumes?
“3. Does the laws of the State of Arkansas require Courts of Chancery to file or make detailed findings of fact and authorities in the adjudication of actions in said Courts?
“4. Ascertain and determine the true facts surrounding and the events transpiring when John A. Davis attempted to call by telephone the Chancellor of this Court on August 12, 1970? (a) Report this in detail with the words spoken, (b) Was Davis authorized to communicate by this means with the Chancellor? (c) Ascertain and determine if there was any pleadings filed in the office of the Clerk in the case of Pine Bluff Production Credit Association v. Lloyd, No. 763 which would have authorized the Chancery Court to act on the question of the sale of assets of the defendants in said action? (d) Ascertain and determine if Courts of Chancery in this State conduct the proceedings of said courts by conference telephone connection? (e) Ascertain and determine if the Chancery Courts of the Second Chancery Circuit conducts its proceeding by telephone?
“5. Ascertain if the ‘bias and prejudice’ charged against the Chancellor of this Court was sufficient in law to disqualify him in the adjudication of the action? (a) Ascertain if there in fact existed any ‘bias and prejudice’? (b) Ascertain and determine why the motions referred to in said volumes relating to the Chancellor of this Court, and said Court were not presented to the Court when the same was in open session, pursuant to order, on September 5, 1970? (c) Ascertain and determine if the Chancellor of this Court had notice of the filing of said motions?
“6. Ascertain and determine if the Chancellor of this Court is guilty or innocent of the charge of violation of ‘Canon No. 22 of the Canons of Judicial Ethics (p. 7 of vol. 2)?
“7. Ascertain and determine if the statements, affirmations, references and charges in volumes One (1) and Two (2) are ‘false accusations against a Judge (the Chancellor of this Court)?
“8. Ascertain and determine if there exists any constitutional or statutory authority for the Supreme Court of Arkansas to conduct a trial of a Chancellor of a Chancery Circuit of Arkansas, and enter an order disqualifying him from adjudicating an action pending in the Chancery Court, where no showing is made under Section 20 of Article 7 of the Constitution of Arkansas with the proceedings a part of an appeal in a certain action, with the charge being based on the Exparte statements of the appellants lawyers, and the Chancellor not as a party or given an opportunity to be heard on the charge?
“9. Ascertain and determine when the findings in case No. aforenamed was drafted by the Chancellor?
“10. Ascertain and determine if the affidavit appearing on pages 63/64/65/66/67/68 of volume One (1) was filed by the named affiants for the purpose of the record to create an atmosphere in which to try a de novo appeal in the Supreme Court? (a) Ascertain and determine why the ‘Motions’ referred to in volumes One (1) and Two (2) were not presented to this Court on September 5, 1970, when the Court was in regular session pursuant to order entered by direction of Act 11 of 1955, Act 244 of 1957 and Act 358 of 1969, or on the other regular dates when the Court in regular session, or by notice under Section 22-408.2 of the Statutes of Arkansas, or by action under Section 27-2106.4, supra? (b) Ascertain and determine why the statement(s) on page 7 of volume Two (2) were made that ‘no hearing was granted’ if the ‘Motions’ were not presented to the Court?
“11. Ascertain and determine what ‘Correspondence with the Court (p. 7, Vol. Two (2) was had as mentioned by the attorneys for the appellants?
“12. Ascertain and determine if a lawyer is authorized to communicate with a judicial officer by telephone concerning a case under submission when there are no pleadings filed seeking interim relief? (a) Does a judicial officer have a right to allow lawyers to have private interviews with him concerning actions pending in the Court over which the judicial officer presides?
“13. Ascertain and determine if the Chancellor of this Court is ‘temperate, attentive, patient (and) impartial’, (a) What has been his attitude toward counsel, litigants, and especially to ‘young and inexperienced lawyers’?
“14. What has been the policy of the Chancellor in announcing disqualification in actions before the Chancery and Probate Courts?
“That upon the filing of said report by said Committee this Court will take further action in this matter consistent with the facts, and if the report shows any violations, then a committee will be appointed to draft and file charges against the alleged violators in this Court and the Supreme Court of Arkansas.”
Thereafter, Petitioners, on June 25, 1971, filed in this Court — Case No. 5-5715 — their Petition for a Writ of Prohibition to which was attached as Exhibit “A” a copy of the foregoing Order of the Desha County Chancery Court entered on June 23, 1971. Petitioners praying that a Temporary Writ of Prohibition be entered prohibiting any further proceeding in connection with the Order of the Desha Chancery Court of June 23, 1971, in its Case No. 874, and upon final determination of the matter, such Writ of Prohibition be made permanent and the said Desha County Chancery Court Order be cancelled and set aside. On June 28, 1971, a Temporary Writ of Prohibition was granted and the parties directed to file briefs in accordance with Rule 16(c).
II. Rulings on Respondent’s motion to strike, demurrer to petition and motion to dismiss petition.
The Respondent, on June 28, 1971, filed his response to Petition for Writ of Prohibition and included therein a demurer based upon the allegations that the Petition was directed against the Respondent as Chancellor of Desha County, Arkansas, when the Order showed on its face that it was not entered by a Chancellor but by the Chancery Court of Desha County, Arkansas, in open Court, and a Motion to Dismiss on the ground that the action for Writ of Prohibition by Petitioners had been prematurely commenced and that the Petition for Writ of Prohibition did not allege facts to show irreparable injury to the Petitioners.
On August 3, 1971, Petitioners filed their amendment to the Petition and Reply to Response to Petition for Writ of Prohibition to which were attached as exhibits: (a) copy of Motion of Production Credit Corporation et al to set aside summarized findings and conclusions. Exhibit “A”; (b) copy of renewed and supplemental Motion to set aside summarized findings and conclusions and decree. Exhibit “B”; (c) affidavit of John A. Davis and Bill R. Holland in support of renewed and supplemental motion. Exhibit “C”; (d) copy of Points to be relied on in Case 5598. Exhibit “D”; and, (e) copy of argument on Point One in Case 5598. Exhibit “E”.
On August 31, 1971, Respondent filed his reply to amendment to petition and reply to response to petition for Writ of Prohibition and attached thereto his affidavit giving his version of the telephone call from John A. Davis and Bill R. Holland on August 10, 1970, and of the events which transpired later that day. On this same date Respondent filed his Motion to Strike parts (a), (b), (c), (d), (e) of the Amendment to Petition filed by Petitioners on August 3, 1971, and Exhibits “A” through “E”, both inclusive attached to said amendment.
On September 10, 1971, Petitioners filed their response to Motion to Strike. On September 13, 1971, Respondent’s Mo don to Strike was submitted to this Court and by per curiam order entered on September 20, 1971, it was denied. In like manner the Court overrules Respondent’s Demurrer to Petition for Writ of Prohibition filed June 28, 1971, and denies Respondent’s Motion to Dismiss filed on the same date.
III. Issues to be decided.
Respondent, in his brief at Page 2 states, “The issue in this action is the jurisdiction of the Chancery Court of Desha County, Arkansas, to make and enter the order in issue.” (The order of June 23, 1971 entered by the Chancery Court of Desha County, Arkansas in its Case No. 874, which is summarized above.). We agree with that statement of the issues to be determined in this matter.
In his brief, filed in this Court, Respondent further states:
“The Order, the subject of this action, refers to: (A) contempt of Court, (B) violation of the Code of Professional Ethics, (C) perjury, and (D) criminal slander.”
Respondent in his brief recognizes that the Chancery Court of Desha County, Arkansas, is not vested with criminal jurisdiction (State v. Martineau, 149 Ark. 237, 232 S.W. 609, and City of DeQueen v. Fenton, 98 Ark. 521, 136 S.W. 945) but states that facts constituting a criminal offense may constitute contempt of court. Thus, we shall discuss whether the Court exceeded its jurisdiction in appointing the committee to conduct an investigation and report to the Court whether or not in their opinion, based on their investigation, any part of Volumes One (1) and Two (2) constituted contempt of court or violation of the Code of Professional Ethics.
A.
Contempt of Court
The Arkansas State Constitution provides in Article VII, Section 26, as follows:
“Punishment of indirect contempt provided for by law. — The General Assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.”
Section 34-901 of the Arkansas Statutes Ann., 1962 Replacement, provides in part:
“Criminal Contempt — What Constitutes. — Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others.
“First, Disorderly, contemptuous or insolent behaviour, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. * * *”
Section 34-903 of the Arkansas Statutes, Ann., 1962 Replacement, reads as follows:
“Contempts in presence of court — Summary punishment — Notice of charge in other cases. — Contempts committed in the immediate view and presence of the court, may be punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”
In the case of Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977, this Court said:
“Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its or ders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties. * * *”
This Court has recognized two classes of contempt: (a) direct contempt being an act committed within the immediate presence of the Court, and (b) constructive contempt, an act directed against the dignity, integrity, and authority of the Court but not having been committed in its immediate presence. The above cited Statutes recognize these distinctions.
The Respondent, in his response to the petition for a Writ of Prohibition filed in this Court on June 28, 1971, stated: “An examination of the briefs (Vols. One (1) and Two (2) referred to in the above order) caused a conclusion to be drawn that the Petitioners herein might be guilty of constructive contempt of the Chancery Court of Desha County, Arkansas* * *Further, Such Motions Filed in the Chancery Court, the Charges, Statements, Affirmations and References Made by the Petitioners in Said Briefs Might Constitute Criminal Contempt * * *”. In his brief Respondent states: “The alleged contempt of court referred to in the order to issue sounds in constructive, indirect or consequential contempt of court.” While we are not called upon to decide whether the order entered in Case No. 874 in the lower court, as summarized above, referred to a possible charge of direct contempt or one of constructive contempt, it is clear from what has just been said that the Respondent in its pleadings filed in this Court and in its brief filed in this Court, treated the matter as one of constructive contempt.
In the case of Lee v. State, 102 Ark. 122, 143 S.W. 909, this Court, in sustaining a petition for certiorari to quash a judgment of contempt entered against the petitioner in the lower court, said:
“It is contended that the circuit record was without authority to punish the petitioner for a criminal contempt, not committed in its immediate view and presence, without an affidavit or information bring ing the facts to its knowledge first made. Courts of record and general jurisdiction have inherent power to punish for contempts and the conferment of the power by statute upon a superior court of record is deemed no more than declaratory of the common law. Such court may go beyond the powers given by statute in order to preserve and enforce its constitutional powers when acts in contempt invade them. Rapalje on Contempts, Sec. 1; art. 7, Section 26, Constitution; State v. Morrill, 16 Ark. 384. This charge was of criminal contempt, being directed against the dignity, integrity, and authority of the court, and constructive, not having been committed in its immediate presence. In Brown on Jurisdiction, Sec. 116, it is said: ‘In constructive con-tempts, the court can only act upon a showing of the facts invoking jurisdiction and time should be given accused to resist the charge.’ Our statute provides ‘contempts committed in the immediate view and presence of the court may be punished summarily; in other cases, the party charged shall be notified of the accusation and have a reasonable time to make a defense.’ Section 722, Kirby’s Digest.
* * #
“There was no affidavit filed in this cause, setting out the publication and charge against the petitioner before the citation was issued, neither was there any statement of the facts constituting the charge made of record and signed by the judge in vacation, nor any order of the court, while in session, reciting that it had come to its knowledge that such publication had been made, setting it out, and directing a citation to issue against the petitioner to show cause why he should not be punished for contempt for causing the publication, and if any such procedure was necessary, the petitioner did not waive it, having objected to the jurisdiction of the court specifically on that account.
# # #
“Under our system of procedure, the accused is en titled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense. There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order and direct a citation thereon to show cause. * * *”
See also ex parte Coulter, 160 Ark. 550, 255 S.W. 15; Hall v. State, 237 Ark. 293, 372 S.W. 2d 603.
Parenthetically, let it here be said that this opinion should not be construed as in any manner weakening the principle of law enunciated by this Court in the case of State v. Morrill, 16 Ark. 384, and since re-stated in Weldon v. State, 150 Ark. 407, 234 S.W. 466, and many other decisions of this Court. In the Morrill case it was said:
“It was argued by the counsel for the defendant, that the court must look to the statute for its power to punish contempts, and not to any supposed inherent power of its own, springing from its constitutional organization. That it is controlled by the statute, and cannot go beyond its provisions. In other words, that the will of a co-ordinate department of the government is to be the measure of its power, in the matter of contempts, and not the organic law, which carves out the land-marks of the essential powers to be exercised by each of the several departments of the government.
“In response to this position, we say, in the language of Mr. Justice Scott, in Neil v. State, 9 Ark 263, that : ‘The right to punish for contempts, in a summary manner, has been long admitted as inherent in all courts of justice, and in legislative assemblies, founded upon great principles, which are coeval, and must be co-existent with the administration of justice in every country, the power of self-protection. And it is only where this right has been claimed to a greater extent than this, and the foundation sought to be laid for extensive classes of contempts not legitimately and necessarily sustained by these great principles, that it has been contested. It is a branch of the common law, brought from the mother country and sanctioned by our constitution. The discretion involved in the power is necessarily, in a great measure, arbitrary and undefinable, and yet, the experience of ages has demonstrated that it is compatible with civil liberty, and auxiliary to the purest ends of justice, and to the proper exercise of the legislative functions, expecially when these functions are exerted by a legislative assembly.’
“And in the language of Mr. Chief Justice Watkins in Cossart v. The State, 14 Ark. Rep. 541; ‘The power of punishing summarily and upon its own motion, contempts offered to its dignity and lawful authority, is one inherent in every court of judicature. The offense is against the court itself, and if the tribunal have no power to punish in such case, in order to protect itself against insult, it becomes contemptible and powerless, also in fulfillment of its important and responsible duties for the public good. * * *”
In this case, the basis of any alleged charge of contempt of court was a matter within the knowledge of the Chancellor himself inasmuch as the motion filed in the Desha County Court on August 25, 1970 and the renewed and supplemental Motion filed in that case on September 15, 1970, to which were attached the affidavits of Petitioners John A. Davis and Bill R. Holland, all related to a purported telephone conversation between Davis and Holland and the Chancellor on August 12, 1970, and the act of the Chancellor in filing his "summarized findings and conclusions” in Case No. 763 on Ausust 13, 1970, and his entry of decree in the case which was filed with the Clerk on September 3, 1970. These statements were reiterated in Petitioners’ abstract and brief as referred to in the above order.
The Court did not see fit to cite the Petitioners summarily for the alleged contempt nor did it file, or cause to be filed, an accusation against the Petitioners, cause them to be notified of the accusation and give them a reasonable time within which to make their defense.
Instead, the Court, in its order entered June 23, 1971, appointed a committee of three lawyers practicing in the Second Chancery Circuit in Arkansas to conduct an investigation and to report to the Court whether or not, in their opinion, based on their investigation, any part or portion of Volumes One (1) and Two (2), filed with this Court in Case No. 5598 and in the Chancery Court in case No. 763, constituted contempt of court or violation of the Code of Professional Ethics; further stating that upon the filing of said report by the Committee the Court would take further action in the matter consistent with the facts, and if the report showed any violations, then a committee would be appointed to draft and file charges against the alleged violators in the Chancery Court and the Supreme Court of Arkansas.
We find this order exceeded the jurisdiction of the Chancery Court both as to the possible charge of contempt and, as we will hereinafter discuss, the possible charge of violation of the Code of Professional Ethics.
The order, in effect, purported to confer upon the three committee members the right to conduct a preliminary trial of the Petitioners, granting the committee, or any designated member of the committee, the authority to accept, hear and take evidence during said investigation, either by affidavit, statement, or oral examination, without granting to Petitioners the right to present evidence upon the issues involved, nor did it provide any method by which Petitioners could test the truthfulmess of evidence taken by “affidavit”, “statement” or “oral examination”. The order further authorized the Clerk of the Court to issue subpoenas for witnesses upon request of any member of the committee and authorized the Sheriff to serve such issue writs upon the person therein designated for service. Again, no provision was made for subpoenas to be issued at the request of Petitioners and had the investigation proceeded it would have been solely within the discretion of the committee as to the witnesses to be heard.
We are not impressed with Respondent’s argument that the members of the committee were in effect, “Masters in Chancery”, to take the proof and file their report. They were not designated in the order as “Masters” but as a “committee” to investigate the acts of Petitioners; the record of proceedings in Desha Chancery Court in Case No. 874, in which the order was complained of was entered, does not reflect that the members of the committee were sworn in open court as required by Section 27, 1802 of the Arkansas Statutes, Ann., 1962 Replacement, which provides:
“Oath — Every master before entering upon the duties of his appointment, shall be sworn in open court, faithfully and impartially to perform the duties of his appointment, which shall be entered on the minutes.”
The aforementioned record of proceedings does reflect a letter from one member of the committee to the other two members and the Clerk of Court in which it is stated: ‘The only action taken by the committee to date to my knowledge is a meeting on June 50, 1971, wherein Mr. Roberts was elected Chairman, Mr. Barker elected Secretary-Treasurer and I was elected Vice-Chairman. This was done without knowledge of said Writ.” (referring to Temporary Writ of Prohibition issued by this Court.) This action certainly indicates that the members of the committee felt that they were acting as a committee and not as masters in chancery. Further, Section 27-1801 of the Arkansas Statutes, Ann., 1962 Replacement, provides as follows:
“Powers of Masters. — Each master in chancery shall have power to take testimony and to administer oaths and to compel the attendence of witnesses in all matters referred to him, and to do and perform all such other ministerial acts as are commonly performed by a master in chancery.”
The Respondent has been on the bench for many years and had he considered the members of the committee to be masters in chancery, he would not have considered it necessary to confer subpoena powers upon the committee, to authorize the Clerk to issue such subpoenas and the Sheriff to serve them. Nor would he have found it necessaary in such order to appoint the Court Reporter of the Circuit to serve as reporter for said committee to report any evidence directed to be taken by the Committee or other proceedings of the committee. Section 27-1806 of the Arkansas Statutes, Ann., 1962 Replacement, provides that the master shall reduce to writing the testimony of all witnesses examined by him, and shall have power to commit such witnesses as may refuse to testify.
In the case of State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33, this Court said:
“(16 — 29) In his first pretrial order, the chancellor appointed a Special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hearing of evidence and ruling upon all matters of fact and law incident thereto. The master was directed, upon completion of the presentation of evidence, to prepare and file his recommended findings of fact and conclusions of law and a proposed decree. In this respect, the trial court was proceeding illegally. Before a master is appointed, the main issue establishing the rights of the parties should be determined so that definite directions can be given to the master for his guidance. Hicks v. Hogan, 36 Ark. 298; Fullenwider v. Bank of Waldo, 101 Ark. 259, 142 S.W. 149. It was pointed out, in Hicks v. Hogan, that the chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special in quiries or statements of accounts as may aid the court in making a definite decree. The decision in La Buy v. Howes Leather Co., 352 U. S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290 (1957) involved the application of the very same principle to an antitrust case which included charges of monopoly and price fixing under the Sherman Act. In that opinion, the United States Supreme Court stated that the use of masters was to aid judges in the performance of specific judicial duties as they arise and not to displace the court. They held that the appointment of a master and a reference at the inception of the case is to take evidence and to report the same to the court with his findings of fact and conclusions of law was an action beyond the court’s powers. There, as here, an effort was made to support the reference by reason of anticipation of a lengthly trial, complexity of the issues and congestion of the court’s calendar. We agree with the Supreme Court of the United States that these reasons do not constitute sufficient grounds for the virtual displacement of the court by a Special Master. While we can conceive of situations in which a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court’s jurisdiction and in that respect the court proceeded without authority of law. Jones v. Adkins, 170 Ark. 298, 280 S.W. 389, relied upon by appellees, is not contrary to this view. The only issue there was an accounting, for which purpose we have always recognized the power of the court to appoint a master. If this case should reach the point where the only issue remaining is a matter of accounting, the appointment of a master would be appropriate.”
In this case there was no action pending but only an ex parte proceeding appointing a committee to investigate the possible contempt of court or violation of the Code of Professional Ethics on the part of the Petitioners. The record does not show the issuance of summons to be served upon Petitioners, but rather that the matter was, as stated, an ex parte proceeding. Thus, we conclude that the members of the committee were not acting as masters in chancery.
While the committee was not limited in its investigation to the fourteen specific points contained in the Court’s order as set forth above, we have set them forth in detail in order to demonstrate their wide range, there being contained therein many items going both to the possible charge of contempt of court and the possible charge of violation of professional ethics, as well as many questions the answers to which were peculiarly within the knowledge of the chancellor.
Neither in the exercise of the Court’s inherent power to punish for direct contempt nor in the exercise qf its power to file, or cause to be filed, a charge of constructive contempt, do we find any constitutional, statutory, or case law which would justify the entry of the above order. The order did not purport to direct or authorize the committee to file charges against the petitioners in the event their investigation showed probable cause but stated that upon the filing of said report by the committee, the court would take further action in the matter consistent with the facts and if the report showed any violations, then a committee would be appointed to draft and file charges against the alleged violators in the Chancery Court and in the Supreme Court of Arkansas.
B.
Violation of the Code of Professional Ethics.
Clearly, the Chancery Court exceeded its jurisdiction in its order of June 23, 1971, when it directed the committee to conduct an investigation of the statements contained in the abstract and brief (designated as Volumes 1 and 2, respectively in that order) and report to the Court whether or not in their opinion, based on their investigation, any part or portion of said volumes constituted a violation of the Code of Professional Ethics.
In the general election of 1938, Amendment No. 28 to our Constitution was adopted. It reads:
“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” 1 Ark. Stats. Ann., 228.
Rules regulating the professional conduct of attorneys at law were adopted by this Court on April 24, 1939, such rules providing for a Bar Rules Committee to be appointed by the Court. Armitage v. Bar Rules Committee, 223 Ark. 465, 266 S.W. 2d 818. By order dated June 2, 1969, effective June 15, 1969, the rules were amended and the committee is now called Supreme Court Committee on Professional Conduct. Record of Proceedings, Supreme Court, Book C-46, Page 551, et seq.
The exclusive jurisdiction of the Bar Rules Committee, now the Supreme Court Committee on Professional Conduct, is well illustrated in the case of Hurst v. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 S.W. 2d 697 (1941), where we said:
“This court in several cases prior to the adoption of Amendment No. 28, and the promulgation of rules by this court under the authority of this amendment, has sustained the power to disbar an attorney as inherent in all courts to protect the courts and the public, as well as to maintain the honor of the profession, * * *
“Now, since the adoption of the rules by this court, and the appointment of the Bar Rules Committee to act under these rules, it becomes the duty of the Bar Rules Committee 'to make investigation of all complaints of professional misconduct that might be brought to its attention, in the form of an affidavit, or in response to any information, of which any member of the committee may have.’ They are required to give the accused attorney an opportunity to explain or refute the charge, and after a hearing if they think the facts warrant it, it is their duty to cause a complaint to be filed in the court against the attorney, who, after reasonable notice, not less than 20 days, is entitled to a trial before the circuit judge or chancellor. This throws an additional pro tection around the attorney and thus before he is convicted, he has had the opportunity of a hearing before two tribunals.”
In the case of Armitage v. Bar Rules Committee, supra, it was stated:
“* * * The Committe’s creation and existence in this Court’s determination that an impartial tribunal should consider complaints of professional misconduct, sift substantial accusations from charges based upon personal pique, disappointment, or prejudice, and then, in respect of serious implication, permit the attorney to explain the transaction and, when he so desires, bring witnesses before the Committee to substantiate his position.
“By this process minor professional deviations are disposed of justly without public embarrassment. # # *”
In the matter of Supreme Court License Fees, 251 Ark. 800, 485 S.W. 2d 174, this Court stated:
“In 1938 the people of Arkansas adopted Constitutional Amendment 28, consisting of a single sentence: ‘The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.’ The language of the Amendment is mandatory, affirmatively imposing upon this Court the duty of making and enforcing rules governing the practice of law and the conduct of lawyers. The duty necessarily extends to the enforcement of the rules as well as to their promulgation, for without enforcement the purpose of the Amendment would fail.”
Under the rules, attorneys against whom charges are made are given the opportunity to explain or refute such charges during the committee investigation and then, if the committee finds reasonable grounds to believe misconduct exists, it may either caution, reprove or reprimand the attorney or file charges in the Circuit or Chancery Court. Such rules afford both the committee and the attorney the right to subpoena witnesses and provide for an appeal to this court by either party.
We agree with Petitioners’ argument that the June 23rd order entered by the Chancery Court of Desha County, Arkansas, purporting to launch an investigation into the professional conduct of Petitioners, clearly circumvents the procedure established by this Court pursuant to amendment 28 and contravenes the fundamental reasons for the creation of a committee on professional conduct. Again, we agree with Petitioners’ statement that the order of June 23, 1970 entered by the Chancery Court in its Case No. 874, is contrary to this Court’s order establishing the committee on professional conduct and is without constitutional, legislative or judicial basis.
Clearly, the Committee’s investigation, although made in the utmost good faith, could cause irreparable injury to the professional reputations of Petitioners in a manner wholly unauthorized by law.
In view of what we have said, the Temporary Writ of Prohibition entered in this cause on June 28, 1971, is made permanent and the order of June 23, 1971 is hereby quashed and set aside. See Robinson v. Meritt, supra; State ex rel Purcell v. Nelson, supra; Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59, for a full discussion of the function of the Writ of Prohibition as it is applied in this case.
Holt, J., disqualified and not participating. Byrd, J., disqualified and not participating. Special Associate Justice Charles A. Walls, Jr., sitting in his stead. | [
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Lyle Brown, Justice.
This is a suit to determine the disposition of the proceeds of a veteran’s life insurance policy. The real contestants are the surviving parents of the veteran as opposed to the claim of Donya Dee Kilgore on behalf of her illegitimate child, she contending that the veteran was the father of the child. The chancellor held that the proceeds should go to the child and the parents of the veteran appeal.
In February 1968, Donya Dee Kilgore, a single girl, gave birth to a male child. She forthwith filed a complaint and affidavit in the Garland County Court alleging that Jerry Dale Cantrell was the father of the child. She asked for monthly support for the child and for her lying-in expenses. In June 1968 the cause came on for hearing, wherein young Cantrell executed and filed in that court an affidavit that he was the father of the child and was agreeable to paying support money and lying-in expenses. The affidavit was notarized by his attorney. Judgment was accordingly entered.
In January 1969 Jerry Dale Cantrell was inducted into the armed forces. He applied for, and was granted, a serviceman’s life insurance policy in the principal sum of $10,000. He elected not to name a beneficiary but did designate that the proceeds be paid in thirty-six monthly installments. In the absence of a beneficiary, it was provided under the automatic features of the policy that the proceeds would go first, to the widow; second, to the child or children of the serviceman; and third, if no child or children, to the parents of the serviceman. Cantrell died in Vietnam.
The question shortly arose as to the disposition of the funds, the mother on behalf of the child laying claim thereto and the serviceman’s parents claiming the money. Suit was started by The Prudential Insurance Company of America filing a bill of interpleader. They paid into the registry of the court all accrued sums and are so depositing the monthly accruals. Arkansas Bank & Trust Company of Hot Springs was designated as guardian of the child’s estate. All proper parties are before the court.
Appellants, the parents of the veteran, argue under their first point that under our statutes and case law, this illegitimate child cannot inherit from the veteran. We have a descent and distribution statute covering illegitimate children. Ark. Stat. Ann. § 61-141 (Repl. 1971). There having been no marriage between the parties, the child would not, under that statute, inherit from Jerry Dale Cantrell. The same is true under our holdings in Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837 (1971), and Parker v. Hadley, 227 Ark. 161, 296 S.W. 2d 391 (1956). This is not a case calling for the application of our laws of descent and distribution. We are dealing with a federal statute which, under the circumstances in this particular case, says the proceeds shall go to the child of the deceased veteran. 38 USCA § 770. Those jurisdictions of which we are aware which have treated the subject, have given the word “child” its natural meaning to include illegitimate as well as legitimate children. Metropolitan Life Ins. Co. v. Thompson, 368 F. 2d 791 (1966).
A New York statute provides that an illegitimate child inherits from its father if the court enters an order of filiation during the lifetime of the father. 17B McKinney § 4-1.2. In Prudential Insurance Company of America v. Hernandez et al, 314 N.Y.S. 2d 188 (1970), the veteran took out an insurance policy and did not name a beneficiary. Upon his death, a contest arose over the benefits of the policy as between two illegitimate children and the parents of the veteran. There had been no order of filiation entered during the lifetime of the father. The court waived aside the filiation requirement. “However, the better and more modern view is to abolish the unchosen birth given shackles of illegitimacy and to confer filial equality wherever possible.” It was pointed out that in support of the birth registration of the children the veteran executed instruments acknowledging his paternity. The court said: “The application of the statute appears even more irrational when examined under the light of the unrefuted formal acknowledgments of paternity.”
Prudential Insurance Co. v. Jack et al, 325 F. Supp. 1194 (1971), is in point. Like the case before us, this was a contest between the parents of the serviceman and his illegitimate child. It was stipulated that the serviceman informally acknowledged that he was the father of the child. The court reviewed the legislative history of the servicemen’s insurance program and concluded that it was the legislative intent that the term “child” include illegitimate children if the recognition of parenthood was made in writing. Such an acknowledgement was made in a letter to the child’s mother. The state law of descent and distribution of the state of residency was not mentioned in the opinion and we conclude it was not even argued.
Metropolitan Life v. Thompson, supra, is in point. That was a contest over the proceeds of a federal employee’s life insurance policy as between the mother of the deceased and an illegitimate child. The child was illegitimate under New York law. The court held that the meaning of the term “child,” in the absence of provisions to the contrary, was a federal question. It was specifically held that the local laws of inheritance had no application; and it concluded that the word “child” as used in the act and under ordinary connotation, included an illegitimate child.
The other point for reversal is that the trial court erred in permitting the introduction of an affidavit introduced in the bastardy proceedings in the Garland County Court. There is no merit to that contention. When the serviceman was apprised of the instigation of the bastardy proceeding he hired an attorney. That affidavit, to which we have heretofore referred, was made a part of the county court record. The affidavit and the judgment of the county court (which has never been attacked) were introduced in the proceedings in this case. We are cited no reason why those complete proceedings should not have been introduced. The affidavit actually amounted to sworn testimony before the county court and was made a part of the county court record with the full knowledge of the serviceman’s employed counsel. In fact his attorney notarized it.
The decree is affirmed. | [
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Carleton Harris, Chief Justice.
Clemons Johnson, appellant herein, was charged with the crime of murder in the first degree. At the conclusion of the State’s evidence, the Pulaski Circuit Court, on its own motion, reduced the charge to second degree murder. The jury returned a verdict finding appellant guilty of the crime of voluntary manslaughter. Johnson subsequently filed a petition under Criminal Procedure Rule 1, asserting various grounds in contending that he had not received a fair trial. Witnesses were subpoenaed, and the court conducted a hearing on the allegations in the petition. At the conclusion thereof, the court denied the petition and remanded appellant to the Department of Correction. From the judgment entered denying the petition, appellant brings this appeal.
Though, as stated, several different grounds for relief were originally raised, only one point is here relied upon, viz, the trial court erred in refusing to vacate the finding of the jury after it was established that a juror possessed knowledge which could have been prejudicial to the defendant in his original trial.
This contention is based upon the fact that Nace Bradford, a member of the jury which found appellant guilty of manslaughter, did not inform the court that he knew Johnson prior to serving on the jury, and it is apparently appellant’s contention that Bradford knew something about the facts in the case being tried, or that he knew of. Johnston’s prior criminal record. It really is not clear which contention is being relied upon for different witnesses were interrogated with regard to both contentions.
Bradford, 82 years of age, testified that he could not see well enough to recognize appellant when the jury was being selected; that when the clerk read Johnson’s name at the commencement of the trial, it did not “register” with him, and it was only after his selection, that he realized that he knew Johnson. He said that, after realizing that he knew appellant, he did not know the correct thing to do (whether to tell the court or not), and accordingly did nothing. The witness was very emphatic in stating that he knew nothing about the facts in the case, had never heard them discussed, and reached his decision simply on the law and the testimony. Bradford was interrogated at length as to prejudice but he constantly maintained that he had no prejudice, and decided the case simply on the presentation of the evidence. Bradford’s testimony is rather convincing, and, in fact, it does not appear that he had any close connection with Johnson. He said that he was connected with Johnson’s family in a small church for a number of years, although he did not know the appellant during that period of time. Johnson had worked on a bricklaying job, Bradford being the job foreman, which was “quite a period” of time before the trial. Of cotirse, the mere fact that Johnson was known by Bradford, or that they had worked together, would not disqualify the latter; Missouri Pacific Railroad Co., Thompson, Trustee v. Fikes, Admn., 211 Ark. 256, 200 S.W. 2d 97. It definitely is not shown that Bradford knew anything about the case.
Joe Montgomery and Earnest H. Mason, who had worked on the job with Bradford and appellant and who had been subpoenaed at the instance of Johnson, both testified that they knew about Johnson being in some trouble, and Montgomery stated that Johnson mentioned it to him, but both witnesses testified that they never heard the case discussed with Bradford, nor did they hear it discussed in his presence. The attorney who represented Johnson at the original trial testified that he consulted and conferred with his client throughout the trial, and it would certainly appear that Johnson, if he thought Bradford was prejudiced against him, would have called his lawyer’s attention to the fact that this man was on the jury panel, and should be disqualified or excused.
The only other evidence offered on this point was by appellant’s wife, Gladys Johnson, who testified that she called Bradford over the telephone, the record revealing the following:
“Well, I just asked him did he know Clemons before he was a juror, and he said that-wel-1,1 asked him ‘did-n’t you remember Clemons before you went in the jury room?’ and he said no he didn’t remember him until he got in there and then ‘I remembered.’ I said, ‘Mr. Bradford, wasn’t that time enough for you to tell someone you knew him?’ He said, ‘Well, I guess it was.’ He said he did the best he could do on account of he already had a record and everything.”
Johnson did not take the stand in his original trial, and it is thus contended that there was no way the jury could have known about Johnson having a prior record, other than to be informed of it by a juror.
This is all of the evidence relating to a past “record” and we agree with the trial court that it was insufficient to afford the relief sought. With the exception of this last mentioned testimony, there is no evidence at all of any prejudice on the part of the juror, nor is there any indication that he did other than try the case on the evidence presented. Certainly, it does not appear that the jury was swayed by prejudice since they reduced the charge against appellant from second degree murder to manslaughter.
The judgment dismissing appellant’s petition is affirmed.
It is so ordered. | [
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Carleton Harris, Chief Justice.
This litigation relates to the question whether a mortgagee or judgment creditors are entitled to the proceeds of an insurance policy taken out by the mortgagor. In August, 1967, Drew Clark and Doris Clark, appellees herein, loaned their son, B. G. Clark, the sum of $14,615.53, and in addition co-signed a promissory note in favor of the Corning Bank. Young Clark used these funds to purchase an existing furniture store business situated in Corning. In connection with the loan, Clark executed to his parents a promissory note, and a financing statement and security agreement giving to them a first and paramount security interest in the furniture store and inventory assets. Thereafter a financing statement was filed in the county of the debtors’ residence and with the Arkansas Secretary of State as a matter of perfecting the Clarks’ security interest. B. G. Clark operated the store until January 6, 1971, when the building and all contents were destroyed by fire. The destroyed property was covered by insurance in the sum of $25,000 which the insurance company, Maryland Casualty, interpleaded into the registry of the court. The policy contained a loss payable clause in favor of Hupp Credit Company, and this company subsequently received payment of the indebtedness due it under a court decree of July 29, 1971, and is not a party to the present litigation. Appellants, nine judgment creditors of B. G. Clark, received an assignment on January 27, 1971, from B. G. Clark to the insurance proceeds in the total amount of $6,155.22 and Maryland Casualty Company was so notified. Following the filing of the bill of interpleader by Maryland, both appellants and appellees, among others, filed pleadings contending for the balance of the money, $15,798.92. The claim of appellees is based on a provision in the mortgage (security agreement) whereby young Clark agreed as follows:
“7. The Debtor will keep the collateral insured for the benefit of the Secured Party against fire, theft, (including extended coverage), collision, and such other hazards as the Secured Party may from time to time require, in such form and in such companies as the Secured Party shall approve and, if requested, will deliver the insurance policies to the Secured Party. The Debtor appoints the Secured Party the attorney for the Debtor in obtaining, adjusting and cancelling such insurance and endorsing settlement drafts and hereby assigns to the Secured Party all sums which become payable under such insurance, including return premiums and dividends, as additional security hereunder.”
Appellants depend upon the assignment heretofore-mentioned. On trial, the court ordered disposition of the proceeds, and as between mortgagees and judgment creditors, held for appellees Clark, such holding being based on the fact that their security instruments were prior in time to the assignment of appellants. From the decree so entered, appellants bring this appeal.
Let it first be stated that the Uniform Commercial Code does not apply to this litigation, for under specific provisions of Ark. Stat. Ann. § 85-9-104 (Add. 1961) a transfer of an interest or claim in or under any policy of insurance is excluded from the provisions of the code. The priority provisions found in chapter 9 are only applicable to conflicting security interests in collateral. While appellees did have a perfected security interest in the inventory, as collateral for the note, the appellants only had a contractual right by assignment. Since the dispute as to priority is not between conflicting security interests, Ark. Stat. Ann. § 85-9-301 et seq (Add. 1961) do not apply.
Of course as pointed out in 46 C.J.S. Insurance § 1140 p. 19, which deals with insurance proceeds, the general rule is that insurance policies are personal contracts between the insured and the insurer, and not contracts running with the property. This view was expressed by the court in Langford v. Searcy College, 73 Ark. 211, 83 S.W. 994, where we held that a purchaser of realty was not allowed to sue upon an insurance policy issued to the vendor. Accordingly, generally speaking, it may be said that insurance proceeds are payable only to the person whose interest is covered by the policy, provided he has an insurable interest at the time of making the contract and at the time of the loss. However, in 46 C.J.S. § 1147 p. 27, it is stated:
“Where the insurance is taken out by the mortgagor for the benefit of the mortgagee, or is made payable to the mortgagee as his interest may appear, in the absence of a waiver or agreement between the mortgagor and the mortgagee, the mortgagee has a prior or superior right to the proceeds of the policy, to the extent of the mortgage debt. *** Under a standard mortgage clause the rights of the mortgagee are not affected by any act done by insured, and, where such policy is issued in pursuance of a stipulation therefor in the mortgage, the mortgagee is entitled to the proceeds, although he was not informed of the issuance of the policy and had no knowledge thereof until after the fire.”
It is further stated under sub-section b:
“Regardless of whether or not the policy is made payable to the mortgagee, if it is procured by the mortgagor under a covenant or binding agreement to insure for the mortgagee’s benefit, the proceeds recovered by the mortgagor are held in trust for the mortgagee, who is deemed to have an equitable lien on the proceeds of the insurance for the satisfaction of his mortgage.”
The above authority is cited because appellants argue that there was no loss payable clause for the benefit of the mortgagees, but only for Hupp Credit Company, and that the insurance was not obtained by the mortgagor, for their benefit; that in fact, such insurance was not obtained until over three years after the execution of the mortgage. We do not agree with the argument so advanced. In the Iowa case of Winneshiek Mutual Insurance Association v. Roach, 132 N.W. 2d 436, in an opinion by Chief Justice Garfield, the Supreme Court said:
“The rule is that a mere mortgagee has no interest in an insurance policy issued to the mortgagor upon the mortgaged property unless such interest be created by some agreement between mortgagor and mortgagee in relation thereto. In the absence of such an agreement the insurance contract is strictly personal between the insurer and its patron. As a rule, however, the mortgagee has an equitable lien on proceeds of a fire insurance policy procured by the mortgagor pursuant to an agreement to insure for the mortgagee’s benefit, although the policy is not made payable to the mortgagee.”
The court added that it was immaterial whether the policy existed at the time the mortgage was executed, or was subsequently obtained.
In the Texas case of Abilene White Truck Company v. Petrey, 384 S.W. 2d 211, the Court of Civil Appeals of Texas (Fort Worth) held likewise, stating:
“Under the record in this case Petrey was charged with the duty of obtaining a policy of insurance with loss payable to the Abilene White Truck Company. The latter had a prior right to the proceeds of such policy when the property covered was destroyed while the debt was unpaid even though Petrey failed to provide that the loss be payable to it. This right was not affected by Petrey’s subsequent attempt to assign the proceeds of the policy [our emphasis]. Thus the assignees acquired no better right than that of Petrey. The proceeds in question are subject to an equitable lien in favor of the truck company.”
Writ of error was applied for but was denied by the Supreme Court of Texas which found no reversible error.
In the Florida case of Sumlin v. Colonial Fire Underwriters, Etc., 27 So. 2d 730, the Supreme Court stated:
“This court is committed to the doctrine that if a mortgagor covenants to protect his mortgagee the latter thereby is clothed with a lien on the policy to the extent of the mortgagee’s interest, whether the policy carried a loss payable clause or not.”
Appellants argue that paragraph 7 of the mortgage, heretofore quoted in full, does not call for immediate obtainal of the insurance, the agreement stating that such insurance should be obtained as the secured party “may from time to time require” and appellants italicize this phrase. However, it will be noted that this phrase only refers to “such other [our emphasis] hazards as the Secured Party” may require and that the agreement to keep the collateral insured against fire and theft is absolute. Not only does the instrument call for fire coverage on the collateral but the provision further states that the mortgagor “Hereby assigns to the Secured Party all sums which become payable under such insurance [our emphasis].”
It will be remembered that the assignment for the benefit of the judgment creditors, appellants herein, was not executed until three weeks after the fire had destroyed the collateral. We agree with the learned chancellor that the claim of appellees is entitled to priority over the claim of appellants.
Affirmed.
Smith, Brown and Fogleman, JJ., dissent.
Disposition of the proceeds to other parties whom the court found to hold prior rights to proceeds is not questioned, and this appeal relates only to issues between the Clarks and the judgment creditors. The amount of money left for disposition was not sufficient to cover the amount due the Clarks. | [
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Wood, J.,
(after stating the facts). Appellee’s complaint contains the following (allegations as to his injuries : That “on being thrown to the floor as aforesaid, plaintiff sustained serious and painful injuries to his right hip, legs, arms, head, body, spine, -spinal cord and dislocation of one of his vertebra, resulting in a curvature, and as a consequence, the nerves, muscles and tissues in the region of such dislocation are permanently injured.” That “plaintiff also sustained severe and painful injuries to hi-s' kidneys, bladder and entire nervous system, and said injuries are permanent and lasting.” That “during all of this time, plaintiff has suffered great and excruciating pain and will continue to do so throughout his life. ’ ’ Appellee testified that by reason of his injuries he had lost control of his bowels and bladder and was rendered impotent.
Doctor L. L. Marshall, a witness for appellee, testified that he was a physician ¡and surgeon, and had treated the appellee for the injuries he sustained since about the 2d or 3d of June, 1914. He stated that, by reason of the displacement of the nerves caused by the dislocation of one of the vertebra, appellee had lost control of his bladder and bowels and genital organs. He described minutely the human vertebrae, together with the. ligaments and muscles which hold them together, and the effect that the tearing of these muscles and the nerve pressure in a certain region of the back, which he pointed out, would have on the organs lying in the pelvic region, or lower cavity of the body. After minutely describing the anatomy of the human back, his testimony proceeded as follows :
“It would .seem from his general condition that the sacral plexus of nerves is involved directly in front of this backbone or pudio nerve, a great and small sciatic nerve and its branches which control the lower limbs, the perineal nerves. , In each one of these backbones, there is .a hole on each .side where the nerves from the cord come through, and where they come through in this' fifth lumbar vertebra and from the dorsal vertebrae, they go to form a plexus — the nerves coming together form a net-work. Off this network of nerves, come the different nerves that go down to the legs and to the genital organs and into the rectum, and these nerves that come off this plexus subdivide and branch out like the branches of the trees, some governing some certain muscles and others other muscles.”
The cross-examination proceeded as f ollows:
Q. Do the nerves affecting the different parts of the body all come from the same vertebrae ?
A. Oh, no.
Q. Which vertebrae, for instance, would those nerves come from that affect the rectum or bowel movement!
A. This plexus is formed bv the nerves that come out of the dorsal vertebra.
Q. Which one is the dorsal vertebrae ?
A. There are seven cervical and twelve dorsal. The first dorsal would he the eighth vertebra, and they give out nerves which join all the way down — and five of the lumbar vertebra which follow it — and nerves come through each of 'the lumbar vertebra, and these nerves come in together to form a plexus where the nerve fibres all join to form this plexus, and off this plexus come the other nerves.
Q. I want to find from which of the vertebra this nerve eminates that affects the bowel movement?
A. Well, it comes from this plexus of nerves.
At this point, the court remarked: “We are not interested in that matter; it is not material to this case. Let’s stop the discussion of that point.”
The appellant duly excepted to the ruling of the court and its first ground of the motion for a new trial is as follows:
■ “That the court erred in holding of its own motion upon cross-examination of the plaintiff’s witness, Dr. L. L. Marshall, that testimony relative to the emanation of the nerve that affects the bowel movement was immaterial and irrelevant to this case, and in refusing to permit defendant to further interrogate the witness on this point.”
The court did not err in refusing to allow further cross-examination of Doctor Marshall. The last question asked the witness on cross-examination showed that the purpose was to ascertain “from which of the vertebra this nerve emanates that affects the bowel movement,” but the appellant had already ascertained this fact by other questions propounded to the witness. The witness had already been asked which vertebrae the nerves came from that effected the bowel movement, and had answered that they came “out of the dorsal vertebrae.” The witness, with great minuteness and with technical terminology, had described and pointed out the various ligaments, muscles, bones and nerves of the human back, and had pointed out and explained in'detail the region of the back where appellee was injured. The expressions used in his testimony show that he was demonstrating before the jury by pointing out on appellee’s 'back, or the ■back of some one used for the purpose of the demonstration, the particular vertebra or backbone that was dislocated. He showed that this was the 21st vertebra from the top, or what was technically known as the second lumbar vertebra or system of bones constituting the spinal column. He explained that when the ligaments and muscles binding the joints of the backbone together were turned loose, allowing these joints to slip, the entire nervous system of the pelvis, or cavity where the intestines lie, would be affected, and that such was the condition of appellee as the result of the injury he received. The testimony of other physicians on behalf of appellee corroborated the testimony of Doctor Marshall as to the particular vertebra or backbone that was dislocated, andas to the effect such dislocation had upon the nerves controlling the organs in the pelvis. A more extended examination of the witness on cross-examination was not called for, and it was within the discretion of the court to stop the examination at that point. The doctors used such terms as “this vertebra,” “these backbones,” “nerve pressure in this region of the back,” “these nerves-,” etc., showing that they were demonstrating before the jury the particular portions of the body of appellee that were affected by his injury; .and to have continued further interrogatories along this line on the cross-examination would have been useless, -and could have had no other effect than to confuse and mislead the jury by a superabundance of scientific and professional terms, of which the ordinary juror has no knowledge. The only purpose that appellant could have had ift extending the investigation along this liné would have been to show that the appellee’s witnesses were mistaken in their conclusions as to the effect that would be produced by a -dislocation of what they designated as ‘ ‘ the second lumbar vertebra, ’ ’ or mistaken -as to such vertebra being dislocated. The appellant introduced its expert witness, Doctor .Smith, who had examined the appellee when he was brought to the hospital on the sec ond day after lie received his injury, and who described, with the same technical terminology, the nature and character of his injuries, and the results thereof as he ascertained them. The effect of his testimony was to show that if there had been a dislocation of the second lumbar vertebra such as was described by the witnesses for the appellee, iand a consequent pressure on what the doctors call the “inguinal” and the “pudic” nerves, the results would have been not only such as that described by the witnesses to that point for the appellee, but if there had been a complete displacement such as they described, there would have been a total paralysis from that point down. The testimony of the expert witness for appellant was to the effect that there was no such paralysis and loss of sensation as would have been the case had the second lumbar vertebra been dislocated as the r esult of the injury in the manner described by the expert witnesses who testified on behalf of the appellee. Thus, the doctors testifying for the respective parties differed as to the results of the injury which the appellee received, 'and the jury accepted the testimony of the witnesses for the appellee rather than the appellant, which it was their province to do. But the appellant was not prejudiced by the ruling of the court in closing the cross-examination in the manner indicated, because it was evident that nothing further would be elicited that had not already been testified to, and appellant had proceeded far enough to enable it to bring out the points which it might desire to controvert.
The appellant contends that the remarks made by the court “were calculated to prejudice the jury against the defense.” The court in making its ruling should not have stated, “we are not interested in that matter, and it is not material to this case. ’ ’ But no specific objeción was made to these remarks, the appellant only excepted generally to the ruling of the court. As the court’s ruling in stopping the cross-examination was not erroneous, it was the duty of the appellant, if it desired to predicate error upon the particular remarks in which the ruling was couched, to call attention to such remarks by ■specific objection.
The appellee’s injury occurred on March 26, 1914. The trial was had on August 29, 1914. Witness Bankston was permitted to testify, over the objection of appellant, that on the 17th day of August, 1914, he examined the timbers of the bridge with reference to their soundness and “noticed the uprights were rotten where they sat on the mud-sill.” He “picked up a rod, and in one instance shoved it clear through.” Before this testimony was introduced, witnesses had testified on behalf of appellant that after the accident, the bridge was rebuilt of the same timbers with which it was originally constructed, and that these timbers at the time of the rebuilding were ‘ ‘ sound and in first-class shape. ’ ’ The testimony of Bankston was strictly in rebuttal of the above testimony on behalf of appellant, as it tended to show that the timbers were not sound, and in first-class condition at the time the bridge was rebuilt. Moreover, the testimony was competent as tending to prove that timbers in the bridge at the time of the accident were unsound. In St. Louis, I. M. & S. Ry. Co. v. Thurman, 110 Ark. 188-194, a defective track was alleged to be the cause of the accident. In that case we held that ‘ ‘ evidence is admissible of the condition of the track before and at a time five months after the accident, in order to show the condition of the track at the time the accident occurred. ’ ’ See, also, Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460-474; St. Louis, I. M. & S. Ry. Co. v. Freeman, 89 Ark. 331. That principle rules here. We said in Railway Co. v. Thurman, supra, “It would be unreasonable to conclude that railroad ties that were in first-class condition at the time the wreck occurred could deteriorate so rapidly as to be rotten within five months thereafter. It might be said as a matter of common knowledge that such is not the nature of railroad ties. It would take longer than five months for the disintegration of the timber out of which railroad ties are made. ’ ’ The same may be said of the timber con stituting uprights with which railroad bridges are constructed.
Appellant complains because the court refused its eighth prayer for instruction, which told the jury that “it must appear that the rail which was cracked was the same rail that broke,” and, “even if you should find this by a preponderance of the evidence, it must further appear that the defendant knew of the existence of this defect, or, iby the exercise of ordinary diligence, could have known— that is to say, it must appear from a preponderance of evidence that this rail had remained in the track in a defective condition for such a great length of time that the defendant’s servants could not now be heard to say that they did not know it. ’ ’
One of the witnesses for the appellee testified: “I noticed the broken rail; it looked like it had been an old, rusty break along the side and underneath the rail, it did not extend to the top of the rail. ’ ’
It was also shown that the bridge had been constructed only three or four years previous to the accident. While the testimony on behalf of the appellant tended to show that the break in the rail was a fresh one, and the rail was not defective, still, the testimony of appellee, taken in connection with the testimony for appellant on this point, made it an issue for the jury as to whether or not the defect in the mil was a structural one, and therefore such a defect as the master knew, or should have known when the rail was first laid. As was said in Arkadelphia Lumber Co. v. Smith, 78 Ark. 505-511: “The jury might reasonably have inferred from the evidence that the defect in the track was made by the construction of it, and not by usage, and that it was the proximate cause of the accident and injury. In that event, the appellant was chargeable with notice of the defect, and liable to its employees injured on account thereof without any previous notice or knowledge of the same. ’ ’ But even if there were no evidence to warrant a finding that a defect-in the rail was structural, the appellant’s eighth prayer was still calculated to mislead the jury, and therefore erroneous. It is the duty of the master to exercise .ordinary care to provide the servant a .safe place in which, and safe appliances with which, to do 'his work, but where the injury to the servant results from a defect that is not structural, then, in order to render the master liable, it must first appear that he knew, or (by the exercise of ordinary care should have known, of .such defect. See Bauschka v. Western Coal & Mining Co., 95 Ark. 477, and cases cited. St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 437-439; Ry. Co. v. Davis, 54 Ark. 389-393. The above idea was correctly embodied in the prayer, but in explaining its meaning, it erroneously told the jury that “it must appear from ¡a preponderance of the evidence that the rail had remained in the track in a defective condition for such a great length of time that the defendant’s servants could not now be heard to say that they did not know it.” The vice in this part of the instruction is in the use of the words ‘ ‘ such a great length of time. ’ ’ This language was argumentative and misleading. If ordinary diligence could have discovered that the rail was in a defective condition, even though it had been used but a very short time, it would be sufficient to fix liability for negligence in not maintaining the track in a safe condition. The test was whether, by the exercise of ordinary care, the defect could have been discovered, regardless of the length of time that the rail had been used.
The court refused appellant’s prayer No. 9, which is as follows:
“It is immaterial in this case whether the bridge, itself, was properly constructed and maintained, unless it appears from a clear preponderance of the evidence that if it had been constructed with reasonable care, it would not have fallen after the rail broke.”
The court did not err in refusing the above prayer, for the reason that the appellee alleged, and there was testimony tending to prove, that the injury was the result of two concurrent proximate causes; that is, a defective rail and bridge. The case of St. Louis & San Francisco R. R. Co. v. Hill, 79 Ark. 76, relied on by the learned ooun sel for the appellant is not applicable, for the reason that there the evidence tended to show that the sole and independent proximate cause of the injury was the derailment of the train, and that there was no negligence in the construction or maintenance of the bridge which collapsed only .after the derailed train ran upon it.
Appellant’s prayer No. 11 is as follows: “The fact that longitudinal braces were put on this bridge in rebuilding or repairing it can not be considered by you as evidence of its defective condition before, whatever may be your opinion as to the reason why they were put on — that is to say, the only question which you can now consider is whether or not the defendant was in the exercise of ordinary care in maintaining the bridge as it was at the time of the injury. ’ ’
One witness for the appellee testified that “he did not think the bridge would have fallen if there had been enough braces from one bent to another. ’ ’ He was shown a photograph taken after the accident, and after the bridge had been repaired. This photograph showed that the braces were lengthwise from bent to bent. The witness testified, without objection on the part of appellant, that the photograph showed “the way a railroad bridge of this kind should be constructed.”
The appellant contends that, in the absence of the above instruction, the jury might have inferred that, because these braces were put on the bridge .subsequent to the accident, and while the same was being repaired or rebuilt, the appellant was negligent in not using such braces in the original construction of the bridge. But the testimony of all the witnesses concerning this, on behalf of the appellant, showed that the longitudinal braces were used not because they were thought to be necessary in the permanent construction of the bridge in order to make it ’ safe, but they were simply used as a temporary expedient while the bridge was undergoing repairs or rebuilding. ' This testimony on the part of appellant was not controverted by the appellee. This court .has often ruled that it is reversible error to permit testimony to the effect that after the accident happened, there was a change in the appliance or in the ¡manner of construction and operation of the structure or appliance causing the injury. Pekin Starve Co. v. Ramey, 108 Ark. 483, and cases cited. Under the above rule, testimony can never be held prejudicial where it merely shows that the change made after the accident happened was only during the temporary repair or reconstruction of the structure or appliance, and that there was no permanent alteration in the manner of construction or use of the appliance or structure. ' The rationale of the rule is that the master in making the change, does not thereby admit that the use or construction of the appliance or structure at the time the injury occurred was negligent. Since the uncontradicted proof shows that the longitudinal braces were used, not because the master deemed same necessary for the proper permanent construction of the bridge, but were only used for the purpose of repairing or rebuilding the bridge, there could not be any inference of negligence because the longitudinal braces were not in use when the accident happened, and, therefore, no prejudice could have resulted from such testimony and from the refusal of the court to grant appellant’s eleventh prayer.
The latter paragraph of the prayer was also erroneous, because it told the jury that the only question they could consider was whether or not the defendant was in the exercise of ordinary care in maintaining the bridge. This ignored the issue as to the defective rail which appellee alleged was a concurrent proximate cause of his injury.
The court did not err in refusing to tell the jury that they “should not consider the size of the rails as evidence of negligence on the part of the defendant.” The evidence as to the size of the rails was developed incidentally on cross-examination of witnesses for appellant who, on the direct examination, had testified in regard to the broken rail. The rail, its size, weight and strength, were all relevant to the issues, and it was proper to inquire concerning same. And especially was it not prejudicial error'to elicit such facts after appellant’s witness Lad testified on the direct examination as to the “ size and condition of the rails on that bridge.” Such facts were developed by the appellant, itself, on the direct examination and the .appellee had the right to cross-examine on the same line that the appellant had pursued in its direct examination.
In its sixteenth prayer, appellant sought to have the court tell the jury that “unless the breaking of the rail was due to the fault and carelessness of the defendant in failing to discover defects which mused it to break,” it was one of the hazards which the appellee assumed. The court did not err in refusing this prayer, for the reason already shown in connection with the discussion of other instructions, that it limited the inquiry to the defective rail as the sole proximate cause of the injury, and ignored the alleged defective condition of the bridge as a concurrent proximate cause of appellant’s injury. Moreover, the court fully and correctly defined the issue of assumed risk and declared the law applicable thereto in its instruction No. 6.
Appellant contends that the court erred in refusing to tell the jury, in the latter clause of instruction No. 17, that “insofar as the opinion of the doctors in this case is formed from a history of the case as given them by the plaintiff, you should not 'allow it to influence your own judgment in considering the facts as given you by the plaintiff himself. ”
Even if this clause, considered as a separate proposition of law, would have been correct, it was but the concluding portion of >a. long and argumentative instruction on the weight of the evidence which the court very properly refused.
The appellant contends that the evidence is not sufficient to sustain the verdict. The testimony on behalf of appellee, which we have set out, when given its strongest probative force in his favor was sufficient to warrant the jury in finding that the appellant was negligent in that it failed to exercise ordinary care to maintain its track and bridge in á safe condition, which resulted in the injury of which appellee complains.- The evidence likewise was sufficient to sustain the verdict as to the amount of damages. The verdict was not excessive.' See St. Louis, I. M. & S. Ry. Co. v. Webster, 99 Ark. 265-81.
The contention that the act of Congress of April 22, 1908, is applicable here, was not raised in the trial court, and for that reason will not be considered for the first time on this appeal. Neither the pleadings nor the evidence raised this question. Although the complaint does not state facts sufficient to make the Federal Employers ’ Liability Act applicable, we would treat same as applicable if the evidence showed that appellee at the time of his injury was engaged in interstate commerce. See Toledo, etc., Ry. Co. v. Slavin, 236 U. S. Rep. 457. But here the allegations of the complaint and the evidence are only to the effect that appellee was running the train loaded with gravel and ballast from Arkansas City to Halley. These are stations a few miles apart on appellant’s branch line in Arkansas.
After the adjournment of the August term of the court at which the trial was had and the judgment entered, appellant, on the 4th day of December filed its motion to vacate the judgment and grant a new trial, in which it set up that since the trial of the cause: ‘ ‘ Def end-ant has learned that at the time of the trial the plaintiff and his attorneys had in their possession x-ray pictures of plaintiff, taken by Doctor McGill, showing that plaintiff had not been injured as he claimed to be, and that he had-been advised by Doctor McGill that he had suffered no permanent injury, ’ ’ etc.; that the plaintiff positively refused to permit defendant to take x-ray pictures of his person, and that while it had heard that x-ray pictures had been made of the plaintiff, it also understood that they were to have been introduced as evidence in the case, and it expected to have the opportunity of examining them in the case, and that the plaintiff and his attorneys “failed and refused to introduce them in evidence,” etc. The appellee, in response to the motion, denied these allegations, and set up that Dr. W. F. Smith knew of the x-ray pictures taken by Doctor McGill, as shown by his testimony at the trial. He further set up that Doctor McGill made x-ray plates for plaintiff’s own use, but that after appellee received the x-ray pictures, they were so dim he could tell nothing about them; that had the defendant so desired, it could have made plaintiff a witness, and introduced those plates or pictures in evidence, etc.
Evidence was heard on behalf of the appellant and appellee on the trial of this motion, and the court overruled the same, and an appeal has been lodged from such final order. It is sufficient to say, in regard to this appeal from the court’s order, overruling appellant’s motion and refusing to vacate the judgment, that the court did not abuse its discretion. The facts developed on the hearing of the motion were sufficient to justify the court in its ruling.
At the original trial, Dr. W. F. Smith, the chief surgeon for appellant, was a witness, and he testified fully in regard to these x-ray pictures and as to what they showed. His testimony discloses that he saw the pictures on the second day of June, the day after they were taken, that the plaintiff brought them to him in person, 'and told him that Doctor McGill had taken them. One of the attorneys for the appellant, who conducted the trial, states that he found that “there was a reference to the .x-ray pictures taken by Doctor McGill in the investigation, but that it entirely escaped his knowledge until after the trial, and that he understood at the time that the x-ray pictures which had been taken had been taken by either Doctor Marshall or Doctor Austin.
The above facts alone were sufficient to warrant the court in overruling appellant’s motion and entering an order refusing to vacate the judgment, for these facts show appellant did not exercise proper diligence. They show that appellant had discovered, before the trial or by proper care could have discovered the existence of the x-ray pictures, and that by the exercise of reasonable diligence, it could have developed at the trial all that it now claims as newly discovered evidence. The testimony of the appellee on the motion to vacate tended to support the allegations of his response, and it was a matter resting largely within the discretion of the court, and the court, as above stated, did not abuse its discretion, but was fully warranted in its finding.
There is no. reversible error in the record, and the judgment must, therefore, be affirmed.
6. When a man enters the service of another, he is deemed in law to have .assumed all the risks of injury which are ordinarily Incident to the employment in which he is engaged; and if he Is injured by an accident which Is ordinarily incident, and liable .to occur in such service, then the master is not liable. But such servant does not assume the risk of any injury which may .occur from the negligence of the master or of his fellow servants (Reporter).
17. You are instructed that so-called expert or .opinion testimony •is permissible under the .rules of law, but is of the lowest and most uncertain and unsatisfactory character, and should be received and considered by the jury with the highest degree of caution. It is your duty to carefully consider their statements as to the method and means of obtaining the information on which they arrive at their opinion, and you should only give credence to their opinion, if you consider it at a'll, In proportion to the thoroughness or uncertainty of -the information on which they Ibase it. You are further instructed that you are not (bound by their opinions ait all, further than it may coincide with your own judgment of the matters about which they give opinion, and that it would be your duty to reject all such testimony as does not agree with your own judgment, or as may appear to you not to have been formed from correct information of the best character obtainable. You are further instructed that insofar as the opinion of the doctors in this case is formed from a history of the case as given them by plaintiff, you should not allow it to influence your own judgment in considering the facts as given you by the plaintiff himself (Reporter). | [
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McCulloch, C. J.
AppeEant was engaged in operating a sawmill in Poinsett County, Arkansas, and appellee received personal injuries while working at the mill as .an employee of appellant, and this is an action to recover compensation for such injuries. Appellee was engaged in the work of tailing the edger, as it is termed by the witnesses; that is to say, he was receiving the pieces of timber from the edger and forwarding the same on down the roller to be conveyed out to the proper places. He charges negligence on the part of a fellow-servant in reversing the live rollers so as to cause two pieces of timber to be jammed together and .catch his. fingers. One of liis fingers was mashed entirely off, and the end of another finger was mashed or bruised. The jury awarded damages in the sum of $250.
Appellee testified that iat the time he received his injuries, he was endeavoring to get a piece of lumber out ■ from under a cross-tie which was to be passed on down the rollers; that the rollers were standing still qt the time and were not working well that day from some cause; and that one of his fellow-servants, Barker, by name, who was working at .a cut-off saw a few feet distant, negh■gently reversed the rollers so .as to cause another piece of timber to run back up against the cross-tie he was handling, and in that way his fingers were caught between the two pieces of timber. His testimony tends to show that it was his duty to get the piece of lumber out from under the cross-tie so that the tie could be passed on down the rollers, and that Barker was standing in a few feet of him and was looking at him when the rollers were reversed.
The court, in addition to giving several instructions, requested by .appellant, submitted the case upon the following instruction given on the court ’® own motion: “No. 4. If you find from the evidence that the plaintiff, while in the performance of his duty, placed his hand upon a piece of timber, then upon the roller, for the purpose of removing the isame therefrom, and exercising due care for his own safety, and that an employee of the defendant then in charge of the manipulation of the roller, without notice to the plaintiff, suddenly reversed said roller, causing another timber to be jammed against said timber upon which the plaintiff’s hand was resting, thereby causing the injury herein complained of, the plaintiff will be entitled to recover for said injury. ’ ’ That instruction correctly defined the issues to the jury.
It is contended that the court erred in refusing to give instruction No. 4, requested by appellant, which is as follows: “You would not be justified in finding that Barker was negligent unless the preponderance of the evidence shows that Barker actually saw the perilous situation of the plaintiff in time to have averted the injury. It is not enough to render Barker negligent to show that he might have seen plaintiff by the exercise of ordinary care. ’ ’ Barker did not testify in the case, and appellee’s ' testimony was to the effect that Barker was looking at him at the time he pulled the lever. This was not directly contradicted by any other witness, yet the jury were not bound to accept appellee’s statement of the facts. Skillern v. Baker, 82 Ark. 86. The instruction was not, however, a correct statement of the law as applied to the issues in this case, for the evidence tends to show that appellee was engaged in work which fell within the line of Ms duty, and that the act oif Barker in reversing the levers, without looking to see whether or not any injuries would be inflicted upon others working about the live rollers, constituted negligence. There is some dispute about whether or not appellee was in the line of his regular duties in trying to dislodge the piece of lumber under the cross-tie, but there was substantial evidence to the effect that that was his duty, and that he was at ia place where Barker not only could have discovered his perilous situation, but in fact did discover it.
: Counsel for appellant rely upon the case of Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, as sustaining the correctness of this instruction. The facts of that case were, however, different. There the evidence showed that the fellow-servant who committed the alleged act of negligence owed the injured employee no duty except not to injure him after discovering ¡Ms peril. The difference in the two cases is that in the one cited, a servant, without being affirmatively charged with the duty of taMhg any steps to protect his fellow-servants wMle at work, was held not to be chargeable with negligence unless he failed to exercise care after discovering the peril; whereas, in the present case, the fact is that the fellow-servant was manipulating the rollers and was charged with the duty of exercising care to see that his act did not result in injury to another servant. The men were working together in a. few feet of each other, and it was the duty of appellee’s fellow-servant, before reversing the levers, to exercise care to see whether any other servant was in position where he was likely to be injured by this 'act of reversing the levers. It would have been improper, therefore, to tell the jury that appellant would not be responsible for Barker’s act unless the latter had discovered the perilous position of appellee, for it was the duty of Barker, before setting the rollers in motion, to see that other employees working there were not thereby placed in peril.
It is also insisted that the court erred in refusing to give the following instruction: “If the mhoMnery that operated the live rollers at which the plaintiff was working was defective, and plaintiff had knowledge of same, and if Barker was, by means of the levers controlled 'by him, attempting to cause the live rollers to operate notwithstanding the defects, and if the plaintiff knew, or by the exercise of ordinary care should have known that Barker was doing so at the time he, plaintiff, was endeavoring to remove the timber from the rollers, he assumed any and all danger or risk of injury resulting from his so doing, and can not recover.” That instruction was properly refused, for the servant did not assume the risk of danger created ¡by the negligent act of a fellow-servant. The question of Barker’s negligence was correctly submitted to the jury, and the verdict depended upon the finding of the jury ¡on that issue. Of course, appellee assumed the risk if he continued his efforts to dislodge the piece of lumber after having knowledge that Barker was going to reverse the rollers, but it would have been incorrect to declare the law to be that he assumed the risk simply because he could have ascertained that fact by the exercise of ordinary care. The jury might have understood from that that it was his duty to inquire of Barker whether or not he was going to reverse the rollers. The cause of the injury was not the mere moving- of the rollers, but it was the reversal of the rollers which caused the other piece of timber to move back up and strike the one under which appellee had his hand. Therefore, it would have been incorrect, in any view of the case, to tell the jury that appellee assumed the risk simply because he knew, or might by the exercise of ordinary care have known, that Barker was undertaking to operate the live rollers.
We think the instructions were ¡correct, and that no error was committed in refusing those asked by appellant.
There is .another assignment of error in the ruling of the ¡court permitting the plaintiff to testify concerning Barker’s statement to him immediately after the injury occurred. A sufficient answer to that exception is that the objection was not made in apt time, and appellant must be treated as having waived the erroneous admission of the statements. Instead of objecting at the time, appellant’s counsel proceeded to cross-examine appellee on the subject; and after eliciting as much as he could, a motion was made to exclude all that appellee had said on the subject. Appellant speculated on the testimony in that way, and it was too late to raise an objection after the answers elicited were not satisfactory.
There is no error in the record which calls for a reversal of the ease, so the judgment is affirmed. | [
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Smith, J.
Appellees made a demand in writing on appellant on or about September 28, 1912, for a car and stated in the demand that appellees desired to load stave bolts in said oar for shipment. The oar was not delivered until about October 28 thereafter and as a result of this delay the bolts were damaged. Appellees commenced 'suit on May 8, 1914, 'and recovered judgment for the amount of the damage done the bolts and this appeal has been duly prosecuted.
It will be observed the suit was not commenced until more than one year and .seven months after the damage had occurred, and appellees ’ cause of action had accrued, and. the question in the case is whether the cause of action was barred at the time of the institution of the suit. In the absence of legislation limiting the period within which such suits might be brought the period of limitation would be three years. But .the Legislature, by Act No. 193, p. 453, of the Acts of 1907, passed a comprehensive act entitled “An Act to regulate freight transportation by railroad companies doing business in the 'State of Arkansas.” The right of the State to enact 'appropriate legislation regulating the business of common 'Carriers has been often recognized in the decisions of this court, and those of all other States and is a right which exists without question, and is one which has been freely exercised. Some of the legislation is declarative of the common law duties of common carriers, while much of it imposes additional duties, and, when the rights and duties of carriers are defined by statute such statutes must govern not only in ascertaining what the rights and duties of such carriers are, but also in their enforcement, when the legislation undertakes to provide remedies for their enforcement. The act in question defines the rights of shippers and the duties of carriers when cars are required and demanded for the Shipment of freight. After enacting various provisions in 'this behalf section 21 of the act among other things, provides a time within which suit must be brought to recover damages for failure to fi-rmisih cars. It is there provided that no action shall be sustained unless brought within one year after the cause of action accrued, or within one year after the party complaining shall have come to the 'knowledge of Ms or her right of .action, with a proviso that no action shall be brought after two years from the time the right of action accrues. The two year proviso can have no 'application to the facts of this case, if the act applies at all.
We tMhk the act should be held .applicable to suits growing out of a railroad’s failure to furnish cars. The Legislature has toy tMs act imposed several additional burdens on railroads and. having done so has seen fit to limit the time witMn which suits may he instituted to recover damages for failure to perform these duties. A study of the act gives no support to the position that the Legislature intended there should be a difference between the time witMn which smt should he instituted when the failure to furnish cars was such that a common law action would lie therefor, and the case where the cause of action was a failure to comply with the statute requiring cars to be furnished shippers. There are cogent reasons why the Legislature should limit to the period of a year the time within which suits may be instituted for failure to furnish cars, and we think the act in question accomplished that result. ~
The judgment of the court below is therefore reversed and the cause dismissed. | [
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Conley Byrd, Justice.
Appellant A. B. Hervey Jr., Commissioner of Revenues, brought this action against appellee Construction Helicopters, Inc., a nonresident contractor, to recover $23,100 in use taxes and penalties pursuant to Ark. Stat. Ann. § 84-3129 et seq. (Supp. 1971), for the use of a $700,000 helicopter in the performance of a contract in this State. The trial court dismissed the complaint because it did not allege that the helicopter was procured for use in this State.
We affirm the trial court for the reasons stated in Larey, Commissioner of Revenue v. Wolfe 242 Ark. 715, 416 S. W. 2d 266 (1967). Appellant readily recognizes the Larey case as being contrary to the position he is now arguing but suggests that the interpretation there given is contrary to the legislative intent as revealed in the words of the statute. He also suggests that the Larey interpretation is contrary to the philosophy of the sales and use tax laws. In making these assertions, appellant overlooks our many cases to the effect that any ambiguity or doubt in a tax act is to be resolved in favor of the taxpayer. See Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81 (1936) and Thompson v. Chadwick, 221 Ark. 720, 255 S.W. 2d 687 (1953). His position also ignores the constitutional quagmires that would develop in assessing a $21,000 use tax against a nonresident contractor having only a $10,000 contract.
Affirmed. | [
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-4,
12,
49,
-54,
85,
66,
66,
5,
-40,
14,
8,
-117,
77,
-8,
68,
52,
10,
26,
11,
65,
-113,
-21,
40,
26,
-53,
44,
46,
73,
57,
-63,
-15,
58,
13,
79,
7,
19,
4,
-40,
67,
120,
14,
-104,
57,
0,
-4,
115,
-90,
-62,
116,
9,
-119,
8,
32,
102,
2,
13,
-1,
-20,
-104,
14,
-34,
-99,
-91,
-48,
24,
34,
-51,
-97,
21,
124,
18,
5,
118,
-28,
84,
-33,
108,
59,
-50,
-42,
-95,
47,
100,
-106,
66,
-17,
67,
18,
68,
-50,
-30,
93,
71,
50,
-97,
-122,
-108
] |
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