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Mr. Justice Compton,
delivered the opinion of the court.
This was a proceeding, in the Probate Court, by John Martin, for the allowance and classification of a claim against the estate of Turner W. Goswick, deceased.
From the judgment of the Probate Court allowing the claim, the administrator appealed to the Circuit Court, wher.e on inspection of the record, the allowance was adjudged erroneous, and a trial de novo awarded.
Neither party desiring a jury, the cause was submitted to the court'for trial, and the finding and judgment were for the administrator.
Martin appealed.
The questions discussed by counsel, touching the merits of this controversy, are not before us. There was no motion for a new trial in the court below, nor was exception taken to any ruling or decision of the court, whereby the appellant put his finger upon, or pointed out any alleged error of law. The case therefore, falls clearly within the rule laid down in State Bank vs. Conway, 13 Ark. 344; which has been repeatedly recognized as the settled practice of this court. Lefils Christian vs. Suggs, 15 Ark. 137; Jones vs. Gatlin 16 Ark. 35; Kinny & Goodrich vs. Heald, 17 Ark. 397. So far from observing this rule the appellant did not even except to the decision of the court in rendering final judgment. The record presents nothing for our consideration, and the judgment must be affirmed. . | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Mrs. Trapnall sued Merrick in an action of debt. In the first count in the declaration she alleged that, on the 1st of January, 1855, she gave to Merrick an instrument in writing leasing to him the Byrd ware-house for a term of years not exceeding three, at two hundred dollars a year, payable quarterly, by virtue of which Merrick took possession of the ware-house and used it for the term, and that he has not paid the rent mentioned in the lease or any part thereof.
The second count is like the first, except that it describes the lease as having been executed under the hand and seal of the plaintiff.
The defendant demurred to the declaration because the lease was not charged to have been signed by him, or by any person for him, and because the lease declared upon, would not sustain an action against the defendant. i
There is a special cause of demurrer to the second count, that it does not aver that the defendant entered into possession under the lease. The action was brought-the 9th of January, 1850.
The court sustained the demurrer to the declaration; the plaintiff rested upon the demurrer; judgment was given against her, and she appealed.
The second count is not subject to the objection specially assigned to it in the demurrer. The language of the declaration is, “ by virtue of which lease and demise entered into the said ware-house and premises, on said 1st January, 1855, and was possessed thereof and used and occupied the same from thenceforth continually, until the end of said term.”
The omission of the word “ defendant ” before “ entered,’’ was not a failure to aver that it was the defendant that entered, into possession. It was evidently a mistake of the pleader not to have inserted that word, and no other, and the meaning was as plain without the word as with it, and the Circuit Court ought not to have entertained and probably did not entertain any such objection.
The objection made in the demurrer, that no action upon the lease under seal, or instrument of writing mentioned in the declaration, can be had against the defendant, is not applicable to this case, as this action is not brought upon the lease or writing, but simply for the rent then reserved by the plaintiff, and by the defendant agreed to be paid, as shown by his acceptance of it, and taking possession of the ware-house and occupying it for the term.
The statement of the lease or written instrument was but inducement to the main averments of Merrick having entered into possession of the ware-house, under an agreement to pay a certain rent, and of his violation of his agreement — and the declaration is strictly according to form, and more formal than necessary in making excuse for want of proferí of the lease and instrument in writing.
^ The action of debt was always maintainable for rent, for an agreed certain sum, and whether the demise was by deed, by an unsealed writing, or by word of mouth.
And debt or assumpsit for use and occupation was not needed only where the occupation was'riot at a fixed rent or for a fixed time. >
The law upon this subject is clearly stated, and is declared to be fully settled in a case decided in the King’s Bench, in 1841. Gibson vs. Kirk, 1 Adolph. & Ellis N. S. 850; and the case is quoted and fully endorsed in a recent American, work of high authority. 3 Rob. Pr. 375; see also 1 Ch. Plg. 110, 11th Am. Ed.
And to hold that Merrick, after accepting a written lease from Mrs. Trapnall, in which it was stipulated that he was to have the use of the ware-house for three years, at the yearly rent of six hundred dollars, payable quarterly, and after having it the full term, is protected from payment of the rent, because he did not sign the lease, would be shocking to good sense and morals, and, what is more to the purpose in this suit, illegal. For it cannot be legal for a man, after having had the full benefit of a valid contract, to refuse to pay the promised consideration.
The statute of frauds affords no defence to Merrick. He is not sought to be charged on any contract for leasing the.warehouse, or the ground on which it is, but on a contract to pay rent, and he must pay it, or be declared liable by law to pay, ¡unless he can show reason to the contrary upon a contest of the merits of the case.
Let the judgment be reversed with instructions that the court below require the defendant to plead to’the declaration. | [
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Mr. Chief Justice English,
delivered the opinion of the court.
Bailey, a physician, sued Watkins and wife, before a justice of the peace, upon an account for medical services, etc., rendered to a slave of Mrs. Watkins, whilst she was a feme sole. The justice gave judgment against plaintiff, and he appealed to the Circuit Court, where the cause was tried by the court, sitting as a jury, and judgment rendered in his favor for $31 65, the amount of the account, with interest, etc.
The defendants moved for a new trial, on the ground that the finding and judgment of the court were contrary to law and evidence; the motion was overruled, and they excepted, and appealed to this court.
On the trial it was proven that Mrs. Watkins, when a feme sole, hired a slave to Rogers for the year 1856. That appellee, who was a physician, was called in by Rogers, during the time of the hiring, to attend the slave, and rendered the services specified in the account sued on, and that the charges were reasonable. That the negro, at first, had a chill, but after appellee had attended him for some time, and he got worse, Rogers informed Mrs. Watkins, the owner, of the fact, and she directed Dr. McRae to be employed, and Rogers thereupon dismissed appellee and called in Dr. McRae, who attended the negro and was afterwards paid for his services by Mrs. Watkins.
Rogers testified that the owners of negroes hired by him, in one instance, paid the physician’s bill for attending the negroes during the term of the hiring, without any express contract. That he did not pay Dr. McRae’s bill, but he knew of no custom that owners should do so.
Two other witnesses testified that there was no custom for owners to pay doctor’s bills for attending servants whilst hired out; but mentioned similar instances of the owners paying such bills, and that without express contract for that purpose.
The above was all the evidence introduced upon the trial.
Rogers having hired the slave for a year, was under obligations to supply his necessary wants during the period of the hiring. He was bound as a bailee to use ordinary diligence in regard to the health of the slave — such as a prudent man commonly takes of his own slave. It was his duty, when the slave was taken sick, to furnish him with proper nursing, medicine, and, if necessary, to call in a physician for his relief, at his own cost: for it is a well settled general rule of law in the slave states, that in the absence of an express contract, between the owner and the hirer, to the contrary, the latter is bound to pay the physician’s bill. Latimer vs. Alexander, 14 Geo. 266; Bridges vs. Nicholson, 20 ib. 87; Gibson vs. Andrews, 4 Ala. 66; McGee vs. Currie, 4 Texas, 217; Grundey's heirs vs. Jackson's heirs et al., 1 Littell 11; 1 Bibb, 541; Haywood vs. Long, 5 Iredell 438; Wells vs. Kinnerly, 4 McCord S. C. R. 123.
There is no express evidence in this case, that there was an agreement between Mrs. Watkins and Rogers, that the former should pay the physician’s bill, if the slave was sick during the period of the hiring. It does not appear that Rogers was interrogated as to the terms of the contract. If the fact that Mrs. Watkins, on being informed of the illness of the slave, directed Dr. McRae to be called in, and afterwards paid his bill, conduces to prove that there was a stipulation in the contract of hiring, that she should pay the physician’s bill, still, in this case, no privity of contract is shown to have existed between her and Dr. Bailey, the appellee. He was called in by Rogers, without consulting Mrs. Watkins, and there is no showing that any7 emergency existed which made it necessary for Rogers to employ Dr. Bailey without consulting her wishes. Rogers having called in Dr. Bailey, under such circumstances, was responsible to him for his services. As above observed, there was no privity of contract between Dr. Bailey and the owner of the slave. Whether Rogers had the right to pay the bill, and deduct the amount from the wages, if there was a stipulation, in the contract of hiring, that the owner should be at the expense of medical attendance, is a question not before us. See Meeker vs. Childress, 1 Minor Ala. 109; 4 McCord, 123; 5 Iredell, 438; 14 Geo. 266; 10 John. 249.
The judgment must be reversed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Ejectment, commenced 3d May, 1854, in the Sebastian Circuit Court, by John Carnall, as administrator of John Dillard, deceased, against Thomas E. Wilson, for possession of the S. W. qr. of Sec. 1, and the N. W. qr. of Sec 12, in T. 8 N. li. 32 W.
The cause was submitted to the Court, sitting as a jury, upon issues to the pleas of ne unques administrator, and not guilty.
The plaintiff proved that he was duly appointed administrator of John Dillard, and letters of administration granted to him, by the Probate Court of Crawford county, 10th January, 1848.
It was then admitted by both parties, the bill of exceptions states, that the lands described in the declaration had been sold by the United States, and patents issued therefor, and that •they were not the property of the United States. That the plaintiff’s intestate entered upon the lands in the year 1840, and resided thereon, with his family, until his death, in December, 1845. That the lands were known as, and called his homestead. He had about 40 acres in cultivation, embracing nearly an equal portion of each of the two quarters, and the balance of the lands were wild and unimproved. During the time he resided on the lands, he claimed to be the owner thereof. At the time of his death he left a widow, and several children surviving him, who remained in possession of the lands for about one month after his death.
That in January, 1846, the defendant, who had intermarried with the daughter of plaintiff’s intestate, entered upon the lands, and from thence to the time of the trial, continued in the exclusive possession, alleging himself to be the owner thereof.
The defendant proved, by a witness, that the widow of intestate was still living; and that he was allowed by her, under a part purchase made from her, to enjoy her dower interest in the lands. That none oí the heirs of Dillard had ever set up title to the lands.
The plaintiff objected to the admission of evidence to prove the sale by the widow of her dower interest to the defendant, on the grounds that it was irrelevant’, and if admissible for any purpose, could not be proven by parol. But the court overruled the objection, and permitted the witness to testify that the widow of intestate had made an arrangement with defendant, that he might occupy her dower interest in the lands.
The above being all of the evidence introduced, the plaintiff' moved the Court to declare the law upon the facts in proof, to be as follows:
“ 1st. That the administrator of a deceased person is entitled to the possession of real estate whereof his intestate died seized, and may maintain ejectment against the heirs at law, or any other person holding possession thereof, except the widow of his intestate.
“ 2d. That in ejectment by an administrator, to recover the possession of the lands of his intestate, proof of his intestate having died in possession thereof, is prima facie evidence of seizin in fee of the intestate, and sufficient proof of title against one in possession, who offers no proof to rebut the presumption of seizin of the intestate arising from his prior possession.
“ 3d. That the sale of her right of dower by a widow, before assignment, is inoperative and void.
“ 4. That the right of dower-interest cannot be transferred by parol.
5. That upon the state of facts proven on the trial of this cause, the plaintiff is entitled to judgment.
The Court refused to declare the above propositions, or either of them, to be the law of the case, but held that, upon the facts proven upon the trial, the defendant was entitled to judgment; and accordingly found and rendered judgment in favor of the defendant; and the plaintiff excepted and appealed.
Though upon the death of a land owner the legal title to his lands descends to and vests in his heirs at law (Dig. ch. 56; 5 Arlt. 608,) yet, by statute, the lands are assets in the hands of his executor or admistrator, and are deemed to be in his possession, and subject to his control, in like manner as personal estate. Dig. ch. 4, sec. 67. His right to such possession and control, subject to the widow’s claim to dower, etc., continues until the debts are paid, and the administration closed; and if the possession is unlawfully withheld from him, he may doubtless- maintain ejectment therefor. Dig. ch. 61, sec. 9; Menefee’s ad. vs. Menefee, et al. 3 Eng. 48, overruling Morrill et al. vs. Menefee, 5 Ark. 629.
It is the duty of the heirs at law, however, if of age, and if not, it is the duty of their guardians to assign dower to the widow in the lands, as soon as practicable after the death of her husband; and if dower be not assigned to her within one year after his death, or within three months after demand by her, she may apply to the Probate Court for the appointment of commissioners to lay off her dower. Dig. ch. 60.
Until her dower is assigned to her, she has the right to remain and possess the mansion or chief dwelling house of her late husband, together with the farm thereto attached, free of all rent. Ib. sec. 18.
By the common law the widow had the right to tarry in the mansion for forty days after the death of her husband; which is called her quarantine, but after the expiration of that time the heir could put her out of possession, and drive her to her suit for dower. 4 Kent. 61.
But, under our law, neither the administrator, nor the heirs at law, claiming under the husband, can, by ejectment or otherwise, deprive the widow of possession of the mansion and farm attached, until dower is assigned her. 4 Kent 61, 62; Taylor vs. McCracken, 2 Blackf. 261.
The right of dower, until it is assigned to the widow, is a mere chose in action, and not the subject of execution (Pennington’s Ex. vs. Yell, 6 Eng. 236); and though the widow may relinquish the right to the heirs at law, or to one holding the legal title to the lands under the husband, etc., and such relin quishment will bar her right to recover dower,' yet she cannot alien or transfer her claim to dower so as to vest in any other person the right of action therefor. Jackson vs. Vanderheyden, 19 John. R. 168; 1 Lomax Dig. 92; 4 Kent 61. etc.
And it was held in Croade vs. Ingraham, 13 Pick. 33, that the right of a widow to have dower assigned to her, is not such an estate in land as can be the subject of a lease, not even as between the widow and the owner oí the fee.
The right of the widow to remain in possession of the dwelling of her deceased husband, and the farm attached, free of rent, until dower is assigned to her, is not strictly part of her dower, but-it is a provision made by statute for her benefit, and which she has the right to enjoy, until her dower is laid off to her.
It perhaps may'be regarded as an enlargement of her common law quarantine. It has been well said that the law, in its provident care, has made this provision in consideration of the destitute situation in which the widow is cast upon the death of her husband. (18 Ala. 814.)
But it has been held that this mere right to occupy the dwelling and farm attached until dower is assigned her, gives her no such estate in the lands as may be sold under execution; (Doe ex. Dem Cook et al. vs. Webb 18 Ala. 814; Pennington ex. vs. Yell, sup.;) or as she may sell and convey to one not holding the legal title etc. Wallace vs. Hall’s Heirs, 19 Ala. 372.
She may, however, the better opinion seems to be, occupy and use the dwelling and farm attached personally, or by her tenant; and, until dower is assigned her, neither the heirs at law, nor the administrator, can turn her, or her tenants holding under her, out of possession of the dwelling and farm attached, by ejectment. Stokes vs. McAllister, 2 Mo. 165; Clark et al. vs. Burnside, 15 Ill. 63; Inge vs. Murphy, 14 Ala. 291; Contra, Wallace vs. Doe, ex. dem. Smith’s Heirs, 2 Sm. & M. 224; but see the subsequent case of Doe vs. Bernard et ux., 7 Sm. & M. 319.
In Inge vs. Murphy, it was well remarked, by Mr. Justice Dargan, upon a statute similar to ours, “ that the right secured to the widow by this act, is the right of possession, free from molestation, or rent,'and, by the very terms of the statute, must continue until her dower is assigned. The object of this act must have been to provide support and maintenance for the widow, until her dower should be allotted to her, on which she might enter, and having the right of possession by this statute, she is entitled to recover the rents and profits, and may hold the premises free from molestation or rent. Nor could it have been the object of the statute to coerce her to remain in person on the premises, or rather to make her title dependent on that condition, for it may be that she could only derive support from the premises by renting them, and to hold that the mere removing from the premises defeats this right, might, in many instances, defeat the intent of the statute, which is a provision for the widow until her dower is set apart for her.”
Where the plaintiff in ejectment claims as heir or administrator, the seizin of the ancestor or intestate, may be proved by showing that he was either in the actual possession of the land, at the time of his death, or in the -receipt of rent from the tei’-tenant, for possession is presumptive evidence of seizin in fee until the contrary be shown. Until the presumption of title arising from proof of possession is rebutted by the defendant, the plaintiff is under no necessity of introducing other evidence. Adams on Eject. 281; Smith vs. Lorillard, 10 John. R. 339; 2 Greenleaf Ev., sec. 311.
Having settled the above principles, the correctness of the legal propositions which the appellant asked the Court below to declare to be the law of the case, may be tested by them.
1. The first proposition is substantially aorrect, with the additional exception that the administrator cannot maintain ejectment against one occupying the mansion and farm attached, as tenant of the widow, before assignment of dower.
2. The second proposition is well settled law.
3. The third proposition requires qualification. The widow» as above shown, may relinquish her right of dower, before assignment, to a person holding the legal title, but she cannot transfer it to a stranger so as to confer on him the right of action for the dower, nor so as to enable him to defend against ejectment brought by the administrator or heirs at law.
4. The fourth proposition is correct. Dower being an interest in land for the period of the widow’s life, it can only be released or discharged, under.the statute of frauds, by some instrument in writing. Keeler vs. Tatnell, 3 Zabriskie 62; White vs. White, 1 Harr. 202.
5. The fifth proposition involves the correctness of the judgment of the Court below upon the facts of the case.
The appellant proved that his intestate died in possession of the lands, and that for some five years prior to his death he had been residing thereon, cultivating a portion of them, and claiming to be the owner thereof. That, after his death, the appellee entered upon the lands, and from thence, until after the action was brought, continued in the exclusive possession, alleging himself to be the owner thereof.
This proof of the possession of the intestate was, as above shown, prima facie evidence of title, and, until rebutted, sufficient to entitle appellant to recover.
It seems, from the evidence introduced by the appellee, that he claimed to hold the lands under some right derived from the widow of intestate.
If he had proven that the widow’s dower had been assigned to her, and that, after assignment, she had conveyed or leased her dower interest to him, this would have been sufficient to defeat the recovery of appellant to the extent of the portion of the lands set apart to the widow as her dower.
Or if he had proven that the widow’s dower had not been assigned to her, and that he occupied the mansion or chief dwelling of her late husband, with the farm attached, as her tenant, and for her use and benefit, this would have been sufficient to defeat the recovery of the appellant to that extent.
But neither of these defences was sufficiently made out.
The judgment of the Court below is reversed, and the cause remanded for a new trial.
Absent, Mr. Justice Rector. | [
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Mr. Chief Justice English
delivered the opinion of the court.
This was an action of debt, by petition and summons, brought by John W. Vaughn against Wilson C. Prewett, upon three writings obligatory, for $500 each, made by Samuel 1\. Williams (who was not sued) and Prewett to N. W. Williams, on the 2d March, 1857, payable 1st of July following; and assigned by the obligee to the plaintiff on the day the}! were executed.
Prewett filed eight pleas; the court struck out the 2d and 4th, and sustained a demurrer to the 6th, 7th and 8th, the cause was tried on issues to the 1st, 3rd and 5th {nil debet, payment, and set-off,) and judgment in favor of the plaintiff for $1,111 50 debt, and $20 32 damages. Motions for new trial and in arrest of judgment overruled, and appeal by Prewett.
It is insisted that the court erred in striking out the 2d and 4th pleas, and in sustaining a demurrer to the 6th, 7th and 8th-
The 2d plea was: “That the plaintiff is not, nor ever has been the legal owner of the said writings obligatory in the petition specified,” etc
The bonds sued on, and the assignments by the obligee to the plaintiff, endorsed thereon, were copied in the petition, and-also made part of the record by grant of oyer, craved by the defendant. The effect oí the plea was to deny the, validity or genuineness of the assignments, and not being verified by affidavit was properly stricken out. Sawyer vs. Sumner, 13 Ark. 280; Sumpter vs. Tucker, 14 Ib. 185; 15 Ib. 372.
If the object of the plea was notto put in issue the genuineness of the assignments, but to deny that they were in such form as to transfer the legal title in the obligations to the.plaintiff, the assignments being of record by grant of oyer, this was a ques tion of law, and should have been presented by demurrer to the petition.
The 4th plea was that before the commencement of the suit the defendant paid to the plaintiff upon the obligations sued on $388 50, which is credited on the obligation last named in the petition.”
Conceding the right of the defendant to plead part payment. (Very vs. Watkins, 18 Ark. 546,) yet he was not prejudiced by the striking out of the plea, because his third plea was a plea of full payment of the bonds sued on, under the issue to which he had the right to prove a part payment, and the bill of exceptions taken at the trial shows that a payment of $388 50 was admitted, and credited in rendering the judgment.
The 6th plea avers, in substance, that the obligations sued on were executed by defendant and his co-obligor to Norman W. Williams (the obligee and assignor) upon the following consideration and none other, that is to say, that Williams, on the day the obligations were made, agreed by parol to sell, and by parol did sell to defendant and his co-obligor, the undivided half of a lot of land situated near the town of Madison, (which is described) together with the saw-mill thereon, and the machinery thereto attached, including the engine, boilers, wheels, bands, etc., also the dwelling house and blacksmith shop on the lot, with the tools therein, together with two yoke of oxen, one wagon, one carry-log wagon, the logs on hand, and one old boiler and saw then in Memphis, and six head of stock cattle— that said contract was in parol, and never reduced to writing; and that the obligations sued on were executed for and upon the consideration aforesaid, and none other; and that neither the plaintiff nor his assignor, Williams, or any person for them, ever did, at any time before the commencement of this suit, tender to the defendant and his co-obligor, or either of them, any deed of conveyance for said lot of land so as aforesaid sold by Williams to them, and this the defendant is ready to verily.
Passing over other objections to this plea, there is no allegation in it that Williams agreed to convey the lands to appel lant and his co-obligor at all, much less that he was under a dependent agreement to convey, the performance of which was a condition precedent to his right to sue for the purchase money. This was a fatal defect in the plea. Smith vs. Henry, 2 Eng. 207; Lewis vs. Davis et al., (May term 1860.)
The 7th and 8th pleas, though they contain additional allegations, are subject to the same objection that was fatal to the 6th plea.
The judgment is affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The facts on which the bill in this case was brought, are the following;
Strawn, the appellant, entered at the United States Land Office, for Thomas Norris, a forty acre tract of land. The land being purchased with a land warrant, the entry was necessarily made in Strawn’s name, who thus became vested with the naked legal title.
Norris directed Strawn to convey to his brothers, Andrew T. and Samuel Norris, which Strawn accordingly did, on the 7th July, 185%, by deed of that date, with covenant of warranty. The deed was filed for registration on 7th August, 1852, and was registered without acknowledgment or proof of its execution.
Andrew T. and Samuel Norris applied to Strawn afterward, and requested him to convey the land to Samuel Norris in severalty, stating that the deed, previously executed by him, had not been registered, and should be delivered up and canceled, on the execution of another deed to the same land. The reason for this request, as given by them, was, that Samuel had bought out the interest of Andrew T., and that by the cancellation of the first deed and the execution of another directly to Samuel, the expense of registering two deeds instead of one would be saved.
Strawn, relying on the assurance that the first deed had not been registered, conveyed the land, on the 31st August, 1853, by deed of that date, with like covenants of warranty, to the said Samuel. The first deed was delivered up to Strawn, who afterward ascertained that it had been registered in the manner above stated.
Subsequent to the first, and prior to the second conveyance by Strawn, Andrew T. and Samuel Norris caused a part of said forty acre tract of land to be laid off in town lots, and conveyed two of them to William G. Saunders.
To have the second deed canceled, and the first declared valid, was the prayer of the bill. The Court dismissed the bill, and the cause is here on appeal.
The appellant urges, as grounds for the relief sought, that the surrender and cancellation of the deed of the 7th July, 1852, not having the effect to divest the title of the grantees, and having executed the deed of the 31st August, 1853, to Samuel Norris, he became bound upon two distinct and inconsistent covenants of warranty — all which he did under a misapprehension as to the legal effect of such transactions, and which he was induced to do by the false representations of the appellees.
The decided weight of authority is, that the surrender or destruction of a deed, though not registered, will not operate to revest the grantor with the title. Botsford vs. Morehouse, 4 Conn. 550; Gilbert vs. Buckley, 5 Ib. 262; Rayner vs. Wilson, 6 Hill 469; Jackson vs. Gould, 7 Wend. 364; Graysons vs. Richards, 10 Leigh 57; Morgan vs. Elam, 4 Yerg. 375; Whitton & Halbert vs. Smith, 1 Free. Ch. Rep. 231, Lewis vs. Payne, 8 Cowen 71, 75; 6 East 86; 2 H. Black. 259; 4 Barn. & Ald. 671; 14 East 422.
Cases are to be found, however, in which it has been decided that the destruction of a deed may,under certain circumstances, operate to revest the estate. Thus, where the grantee, whose title deed has not been registered, delivers it back to the grantor to be canceled, and abandons the possession. This, it is held, revests the estate in the grantor; not, however, by way of transfer, nor, strictly speaking, by way of release working upon the estate; but rather as an estoppel arising from the voluntary surrender of the legal evidence by which alone the title originally passed. Trull vs. Skinner, 19 Pick. 213, 215; Holbrook vs. Tirrell, 9 Ib. 105; Commonwealth vs. Dudley, 10 Mass. 403; Tomson vs. Ward, 1 New Hamp. 9; Farrar vs. Farrar, 4 Ib. 91; Barrett vs. Thorndike, 1 Greenl. 73.
This mode of conveyance is confined to the States of Maine, New Hampshire and Massachusetts — has been sanctioned there by repeated adjudications — and though it may seem to stand on the ground of local usage, yet it is professedly maintained by the learned judges on the principles of the common law only. Vide Greenleaf’s Cruise on Real Prop., vol. 2, title 32, sec. 15, and note.
But according to the decisions in those States, this method of conveyance is limited to transactions conducted in perfect fairness and good faith, both as between the parties and as to,the creditors of the grantee, and is not permitted to affect the intervening rights of third persons. Trull vs. Skinner, Farrar vs. Farrar, supra.
It would not be easy to maintain the soundness of these decisions upon principle. But, even according to the doctrine which they announce, the appellant would be liable to Saunders on the covenant of warranty contained in the first deed, so far as regards the town lots purchased by Saunders from the grantees before the deed was canceled; because the covenant of warranty having passed with the land to Saunders, the subsequent cancellation of the deed did not affect his rights.
The appellant being held, then, upon the covenants of warranty in both deeds, it remains to be seen whether the circumstances under which he became so bound, are such as to entitle him to relief in a court of equity.
The first deed, though filed in the office of the recorder, and actually copied on the record, was, nevertheless, in legal contemplation, an unregistered deed; because its execution had not been previously acknowledged or proven. The statement, by Andrew T. and Samuel Norris, at the time the second deed was executed, that the first had not been registered, though true in legal effect, was false in fact, or in the sense in which the parties understood each other; and the proof abundantly shows that but for this misrepresentation, the appellant would not have executed the second deed. Under such circumstances, we are of opinion he is entitled to the relief which he seeks.
Let the decree of the Court below be reversed, and the cause remanded.
Absent, Mr. Justice Rector. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was trespass vi et armis brought by Nevell W. Burnett against John R. Burkhead and Mary Ann, his wife, in the Yell Circuit Court. The declaration alleges that the defendants ' committed an assault and battery upon Harriet Ann, the wife of the plaintiff, and forcibly, and against her will, took and detained her from the plaintiff, whereby he lost her comfort, assistance, etc. The cause was submitted to the jury on the plea of not guilty.
The plaintiff, after proving his marriage with Harriet Ann Burkhead, (daughter of defendants), and that she was his wife, offered to introduce the declarations and • admissions of the defendant Mary Ann, that she had taken plaintiff’s wife away from him by force, and against her will, and declared that shé should never live with him again;
But the Court ruled out her declarations.
Plaintiff then proved that his wife, Harriet Ann, left his house, and separated from him in November, 1855, and within about four weeks after their marriage. That during their intermarriage he remained and lived with his said wife; and that in April, 1856, defendants took plaintiff’s wife with them to California. Such is the substance of the evidence as contained in the bill of exceptions.
Plaintiff moved the Court to charge the jury as follows:
“1. If the jury believe from the evidence that Harriet Ann Burnett and the plaintiff were husband and wife, and defendants took her off to a foreign State, without the consent of the plaintiff, they must find for the plaintiff.
“ 2. If the jury believe from the evidence that defendants induced plaintiff’s wife to leave and separate from him, without his consent, they should find for plaintiff.
“ 3. The jury may infer from the fact of plaintiff’s wife living with defendants, and going away with them, that defendants induced her to separate from her husband, and if they did, they should find for plaintiff.”
The Court refused to give these instructions, but upon the motion of defendants instructed the jury as follows:
“ 1. That if they believe from the testimony that the wife of plaintiff separated from him, and went to live with the defendants, who were her father and mother, the plaintiff cannot recover in this action.
“ 2. That when a man’s daughter separates from her husband,' and goes to her father’s house, he has the legal right to take her in, and to support her.”
The jury returned a verdict in favor of the defendants; the plaintiff moved for a new trial, which the Court refused, and he excepted, and appealed.
In an action against husband and wife for. a trespass, the plaintiff cannot introduce the declarations or admissions of the wife to prove the injury alleged. If her declarations or confessions were admitted, it would be, in effect, making her a witness to charge the husband. Funkhouser et al. vs. Pogue 13 Ark. 295.
It is to be inferred from the evidence, as stated in the bill of exceptions, that the plaintiff’s wife lived with him about a month after their marriage; and then, in November, 1855, separated from him, and returned to her parents (the defendants) and lived with them until the following April, when they removed to California, taking her with them. The action, it appears, was commenced, and the writ served, before they left.
The plaintiff utterly failed to prove that his wife was forcibly taken from him by the defendants, or that they induced her to leave him, or in any manner caused the separation, or force or persuasion, prevented her from returning to him.
Nor is the guilty agency of the defendants to be inferred from the fact that the plaintiff’s wife, on separating from him, went to the house of the defendants, and remained with them. It was her former home — they were her parents. As well remarked by Kent, C. J., in Hutcheson vs. Peck, 5 John. 209, a father’s house is always open to his children; and, whether they be married or unmarried, it is still to them a refuge from evil, and a consolation in distress. Natural affection establishes and consecrates this asylum. Having determined to separate from her husband (whether for or without sufficient cause, does not appear from the evidence,) it was natural for the plaintiff’s wife to return to her father’s house, and it was as natural for her parents to receive her, and afford her shelter and support.
As remarked by Mr. Justice Van Ness, in the case above referred to, the conduct of parents, in such cases, is to be liberally construed, and worthy motives are to be presumed. This is clearly the dictate of reason and nature.
The Court below did not err in refusing a new trial, and the judgment is affirmed.
Absent, Mr. Justice Rector. | [
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John A. Fogleman, Justice.
Appellant Jimmy Lee Dyas was convicted by a jury of capital felony murder for his part in the killing of Curtis Eugene Zachry, husband of.Carolyn Dianne Zachry, who has likewise been convicted of the murder in a separate trial and whose appeal has earlier come e Zachry v. State, 260 Ark. 97, 538 S.W. 2d 25 ceived a sentence of life imprisonment this conviction and sentence Dyas took
Folic court wit! court of Li? The motior supplemental! for reversal, nc sal. They are presented, the venience. We necessary to treat’ the testimony sum| f from this court reinvesting the trial appellant filed a motion in the circuit nty for new trial on 6 January 1976. ed and appellant has brought a 1 told, appellant offers fifteen points [h, we have concluded, merits reverin the order in which they were e being treated together for con[iew testimony except as it becomes points because it is very similar to Ü in Zachry v. State, supra.
1
The Court Erred in Admitting Into Evidence Statements Made By A Witness For The State, Before The Jury, Identifying The Source Of Two Rings Belonging To The Murder Victim, The Court And The State Being Well Aware That The Rings Had Been Turned Over To The Court And Law Enforcement Officials For The State By Appellant’s Defense Attorneys.
2
The Court Erred In Allowing The Prosecuting Attorney For The State To Comment Upon The Source Of The Two Rings Belonging To The Murder Victim In Violation of Appellant’s Attorney-Client Privilege.
3
The Court Erred In Admitting Into Evidence Statements Made By A Witness For The State Concerning The Alleged Source Of Two Rings Belonging To The Murder Victim, Because The Statements Constituted Hearsay.
The testimony upon which all of these points hang was given during the state’s redirect examination of Sgt. Carroll Page, who investigated the murder. However, the first mention of the rings was made by appellant’s principal attorney during his cross-examination of Page. It came about thus:
Q. (Cont’d by Mr. Boyd Tackett, Sr.) Do you know of anything that I have done during your investigation since the 9th day of the month, since the 9th day of January that wasn’t trying to cooperate with you and the other officers. Have I tried to keep anything from you?
A. You furnished some information. Some good and some--
Q. I even brought you the two rings taken off the dead man, didn’t I?
A. Yes, sir.
Q. MR. BOYD TACKETT, SR.: Judge, if this is wrong, you can tell me, and I will stop.
THE COURT: Yes, sir.
He pursued the line of questioning despite the fact the items mentioned were not in evidence and finally drew an objection from the state. The record follows:
Q. (Cont’d by Mr. Boyd Tackett, Sr.) All right, there is evidence here that there was a key ring taken off the dead body and there was two diamond rings taken off the dead body. They’ve been introduced.
MR. GEORGE STEEL, JR.: No, sir, they have not.
MR. BOYD TACKETT, SR.: They have not?
Q. (Cont’d by Mr. Boyd Tackett, Sr.) Well, anyway, before it gets to that, there’s testimony that there was a watch taken off the body. Have you ever, found the watch?
MR. GEORGE STEEL, JR.: Judge, I submit that this is not proper cross examination. We haven’t even gone into that yet,
THE COURT: He is making him his own witness, Mr. Steel. When he does that, he is bound by his answers.
MR. BOYD TACKETT, SR.: That’s right, I am bound by his answers.
THE COURT: All right.
On redirect examination, Sgt. Page testified without objection to an explanation allegedly given him by Tackett about how he came into possession of the rings.
Q, I show you two diamond rings, Officer Page, and I ask you, sir, are those the rings that Mr. Tackett refers to that he gave to you, sir?
A. Yes, sir.
Q. And have you in the course of your investigation determined that those rings belonged to the deceased, Eugene Zachry?
A. I have, sir.
Q. I believe Mr. Tackett has stated that he turned those rings over to you, is that correct, sir?
A. That is true.
Q. When he did that, Officer Page, where did he say he obtained them?
A. From Jimmy Dyas’ wife, Bunkie.
Q. Now, did he go any further than that, Officer Page? Did he say where she got them?
A. From a lock box — safety deposit box in the bank.
Q. Now, Sgt. Page, I ask you, sir, have you since that time attempted to determine of your own knowledge where the rings came from?
A. Yes, sir.
Q. Have you been able to determine anything different than what Mr. Tackett told you on the night he gave them to you?
A. I’ve been told a different story by Mr. Tackett — one or more different stories.
And, on recross-examination, appellant’s attorney sought to elicit a different version of their exchange, as follows:
Q. Now, Carroll, I want you to remember something real close. When you asked me where I got those rings, didn’t I tell you, “Carroll, I can’t tell you that.”
A. You did not, sir.
Q. I told you that I got them from Bunkie?
A. Yes, sir.
Q. Now, Carroll, don’t you know I didn’t tell you that?
A. Yes, you did, sir.
MR. GEORGE STEEL, JR.: Judge, if Mr. Tackett made Sgt. Page his witness for this purpose, I submit that he can’t cross examine him.
MR. BOYD TACKETT, SR.: I submit I am entitled to get on that witness stand and tell the truth.
THE COURT: Not at this time, Mr. Tackett.
MR. BOYD TACKETT, SR.: I know.
Q. (Cont’d by Mr. Boyd Tackett, Sr.) I gave you those rings, and when I handed you those rings, I was in the hall with J. O. Moore present, didn’t you ask me where those rings came from and I said, “Carroll, I can’t tell you, I represent three people.”
A. You told me this at Judge Steel’s house, sir.
Q. Well, I know that, but I didn’t tell you that at Judge Steel’s house. I told you that at the jailhouse, didn’t I?
A. No, sir.
Q. When I handed you those rings after I identified them through Dianne that those were Eugene’s rings, didn’t you turn around and say, “Boyd, where did you get those rings”? And I said, “Carroll, I can’t tell you”?
A. Actually, I received the rings at Judge Steel’s house and had them in my possession, handed them to you when we went into the jail and you showed them to Dianne and then you handed them back to me. I signed a receipt for them at Judge Steel’s house at which time you told me that you got them from Mrs. Dyas.
In support of his first point for reversal appellant seeks to analogize the case of State v. Olwell, 64 Wash. 2d 828, 394 P. 2d 681, 16 ALR 3d 1021 (1964), wherein the court decided that, where an attorney must and does surrender evidence to be used in the prosecution of his client, and the state attempts to introduce such evidence, it should take precautions to make certain the source of the evidence is not disclosed to the jury where it is within the protection of the attorney-client privilege. But, to be protected as a privileged communication, the court concluded, information or objects acquired must have been communicated or delivered to the attorney by his client and not merely obtained by the attorney while acting on behalf of his client, for if the evidence, in Olwell a knife, were obtained from a third person with whom there was no attorney-client relationship, the communication would not be privileged. Thus, according to Olwell, the privilege applies only to evidence if it is received by the attorney from his client and, if this is the case, the concern is that the immediate source of the evidence be held in confidence.
Page’s testimony indicated that Attorney Tackett’s source was not the appellant. Therefore, Olwell is readily distinguishable. But, even if the privilege is stretched to protect evidence given to a defendant’s attorney by defendant’s spouse, Olwell is still inapt. It was appellant’s attorney who opened the door to the examination of the witness about the source of the rings by his questions and disclosures during his cross-examination. See McDonald v. State, 165 Ark. 411, 264 S.W. 961; Smith v. State, 172 Ark. 156, 287 S.W. 1026. If there was any violation of the attorney-client privilege, it was by appellant’s attorney, who disclosed that he was the source of the rings by his questioning of Page, and who revealed to Page how he in turn had acquired them, if he made the statement attributed to him by Page.
Following the prosecutor’s objection that appellant’s attorney was exceeding the limits of cross-examination, appellant’s attorney agreed that he had made Page his own witness and would be bound by his answers. See, St. Louis, I.M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S.W. 665. He did not object at any time during Page’s testimony on redirect examination. Rather, he chose to question the witness about that testimony and sought to elicit a retraction. And, in spite of the fact that Page had become his own witness on the matter of the rings, the court suffered him to attack Page’s redirect testimony, thus, in effect, permitting appellant to confront the witness and seek to undermine his credibility. We emphasize that the record discloses that the rings had not been introduced in evidence and their whereabouts had not been mentioned, prior to the examination of Page on the subject by appellant’s attorney.
Finally, appellant’s attorney expressed a wish to testify on the matter himself and raised an objection based on hearsay only the next day, as part of a motion for mistrial, after nine other witnesses had testified and Sgt. Page had twice been recalled to the witness stand. This was decidedly too late. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W. 299. Denial of a motion to strike testimony of a witness is not an abuse of the trial court’s discretion, if no objection or motion is made until after other witnesses have testified. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874. We find no error in the admission of the testimony of Sgt. Page.
Because it was appellant’s attorney who first mentioned the rings taken from the victim and revealed himself as the source, thus opening the door for testimony about them, it is doubtful that the matter remained in any respect privileged. Furthermore, appellant’s attorneys failed to make timely objection to any of the remarks of the prosecuting attorney they now insist are prejudicial. The issue cannot be raised for the first time on appeal. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462; O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. Therefore, we cannot say that the court erred in permitting, or that prejudice arose from, requests by the prosecution that it be allowed to examine witnesses who could corroborate Sgt. Page’s testimony regarding the conversation he had with appellant’s attorney at the time the rings were turned over. These requests were made in conjunction with the state’s timely objection to appellant’s attorney’s questioning of another witness, the wife of appellant, about the same transaction. At that time, appellant’s attorney expressed his willingness to agree to the examination of such witnesses if he, too, were allowed to testify. The court said that he would be permitted to do so only if he disqualified himself from further participation in the case. He did not disqualify himself. After Mr. Dyas had testified and near the close of defendant’s case, the trial judge advised Tackett that he would be permitted to testify. Thereafter, just before appellant’s case was rested, and before commencing rebuttal, the prosecuting attorney asked if Mr. Tackett was going to testify. Tackett’s partner assisting him in the trial responded, “No, sir, he is not at the request of his client.” The state’s attorney again mentioned its witnesses only after the close of testimony when a juror said he wanted to ask about the rings and appellant’s attorney indicated he didn’t mind if this case were reopened for this purpose. Nothing came of the request.
Appellant’s first, second and third points for reversal are without merit.
4
There Was Insufficient Evidence Upon Which To Base A Jury Verdict And Court Judgment Finding Appellant Guilty Of Capital Felony Murder.
Charles Bean’s testimony placed Dyas at negotiations regarding the murder at the Zachry home when the first attempt was made to lure Mr. Zachry out and murder him, at the scene of the crime, and in possession of a portion of a sum of money given to Bean by Mrs. Bessie Tolleson, mother of Carolyn Diane Zachry, as payment for the killing.
In his testimony about the actual killing, Charles Bean specifically mentioned that either he or appellant ordered Eugene Zachry to “turn out his pockets” as they intended to rob him. He also explained that he had Zachry remove his shoes and that appellant, as they returned from the scene of the crime, threw them into the creek from which they were later recovered. He also said that they robbed Zachry of all valuables and split the contents of his wallet. According to Albert C. Moore, who found Zachry’s body, Zachry’s pockets were turned out and his shoes were gone. Sheriff Surber and Sgt. Page both testified that there were no jewelry or valuables on the body when found, indicating that Zachry had been robbed. All of this enhanced the credibility of Bean’s testimony, since, if an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462.
Of course, the testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense in order to support a capital felony murder conviction. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The requisite corroborating evidence must be of a substantial character and, of itself and independently of the statement of the accomplice, tend to connect the defendant with the commission of the crime but it need not in itself be sufficient to support a conviction. Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361.
Appellant admitted in his testimony that he accompanied Charles Bean during the murder. He said that he drove Bean to Zachry’s house and then drove them to the scene of the murder, which he witnessed. He acknowledged that a .38 caliber pistol which he was carrying in his car was used by Bean to administer the coup de grace to Zachry, after Bean had emptied his own gun. He vowed that he was unaware of Bean’s intentions, that he was an unwilling and unwitting companion, and that Bean threatened him in order to get him to cooperate. Yet, he admitted meeting Bean two days after the murder and giving him the .38 caliber pistol for disposal and later accepting two one hundred dollar bills from him, money which Bean had testified he received from Dianne Zachry’s mother in payment for the killing.
We have held in a somewhat similar case in which the defendant was accused of murder during the commission of a robbery that the testimony of the defendant in which he admitted that he was present at the crime, but denied participation in the homicide, was itself sufficient corroboration to satisfy the statute and support a conviction. Ark. Stat. Ann. § 43-2116. Ford v. State, 205 Ark. 706, 170 S.W. 2d 671. While corroborating evidence must do more than raise a suspicion of defendant’s guilt, it need not be direct, but may be circumstantial so long as it is substantial and tends to connect the defendant with commission of the offense. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation and possession of instruments used in the commission of the offense are relevant factors in determining the sufficiency of corroboration by circumstantial evidence. Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. A witness, Raymond Cole, identified appellant as the person who accompanied Charles Bean and the driver of the car in which Bean arrived when, on the day of the murder, Bean borrowed the .22 caliber pistol used in the killing from George McClure. He also testified that Dyas was with Bean at the place and time McClure testified the pistol was returned. As noted already, appellant admitted that he had a .38 caliber pistol in his car on the night of the murder and that Bean had used it to make sure Zachry was dispatched. Dr. Rodney Carlton, the State Medical Examiner, testified at the trial that he found a .38 caliber bullet in the victim’s head. Loyse Zachry, the victim’s father, testified that he saw appellant and Bean at the Zachry residence on the afternoon preceding the murder. William Lumpkin testified that on the night appellant was arrested and placed in a cell with him, appellant had asked him to provide him with an alibi for the night of the murder. Lumpkin also told of an earlier trip with Bean and Dyas to look the Zachry house over, during which he said the conversation related its purpose to the killing of Zachry.
There was sufficient evidence and sufficient independent corroboration of the testimony of Charles Bean to support the conviction of appellant.
5
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By One Alleged Co-conspirator, Charles Watson Bean, To Another Alleged Co-conspirator, Carolyn Dianne Zachry, And The Substance Of Statements Made By Carolyn Dianne Zachry To Charles Watson Bean, All In The Absence Of Appellant.
In his testimony, Charles Bean related that he had spoken by telephone with Carolyn Zachry in early December, 1974 to arrange a meeting, and that they later met and Bean offered to kill Eugene Zachry. Upon appellant’s objection, the trial court directed that Bean’s testimony be limited to what he had said in the conversation and not relate what Mrs. Zachry may have said to him. In testifying about his meeting with Mrs. Zachry, Bean said that she had indicated that she was in a hurry and wanted him to “do it” as soon as possible. Appellant’s attorney again objected to the admission of that which was said in the absence of the appellant. The objection was sustained and the court instructed the jury to disregard the information obtained by Bean from Mrs. Zachry.
Appellant argues that the conversation was inadmissible hearsay. We agree that anything said by Mrs. Zachry was, but Charles Bean’s own words were not, hearsay. The court limited his testimony in advance to this part of the conversation and properly admonished the jury to disregard the testimony about what Mrs. Zachry indicated. Any error was cured by prompt action and appellant was not manifestly prejudiced. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940. Appellant did not move for a mistrial.
Appellant also suggests that the testimony was improper because appellant had not yet become involved in the conspiracy and the state had not yet established a prima facie case of conspiracy against appellant. He concedes, however, that evidence of previous acts of co-conspirators may be admissible against a defendant once a prima facie case of conspiracy has been proved and the nature and objectives of the conspiracy shown by the state. Willis v. State, 67 Ark. 234, 54 S.W. 211. We have held that it is within the discretion of the trial court to permit the statement of an alleged conspirator to be introduced in a prosecution of a fellow conspirator before evidence tending to prove the conspiracy has been introduced. Easter v. State, 96 Ark. 629, 132 S.W. 924. Here, as in Easter, it was later in the testimony of the same witness that the evidence tending to establish the conspiracy was introduced and it was a matter within the sound judicial discretion of the court to control the order in which the testimony should be adduced. Easter v. State, supra. After the trial judge had permitted Bean to state what he had said to Mrs. Zachry, over appellant’s objection that Mrs. Zachry was not on trial, Bean testified that he had met with Mrs. Zachry immediately after the telephone call, told her that he had been told that she wanted her husband done away with, thought he could arrange it if they could get together on the price, that they did agree on it, and he told her that he was relatively sure Monroe Lindsey would not do the job, and that he was alone that day, but did not intend to do the job alone. No objection was made to any of this testimony. It was when appellant testified that he told Mrs. Zachry that he would have to have a few days to get things lined up and that she was in a hurry to get it done and wanted him to do it as soon as possible, that appellant first objected to what was said in his absence. The trial court then admonished the jury to completely disregard information Bean obtained from Mrs. Zachry. Appellant made no further objection, asked no further admonition and did not move for a mistrial. Bean then proceeded, without any objection being made, to relate that he made several trips to Ashdown to meet with Mrs. Zachry and that Dyas was present on some of the occasions. No objection was made to this testimony. We find no error in the admission of Bean’s testimony, insofar as objections made are concerned.
6
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By Witnesses For The State, Concerning Financial Arrangements Made By Alleged Co-conspirator, Carolyn Dianne Zachry, In The Absence Of Appellant.
The state called and examined two witnesses who testified about financial transactions carried out by Carolyn Dianne Zachry. In response to appellant’s first objection that he had not been present when these transactions took place, the state answered that the testimony was offered to establish the motive and the court permitted the testimony. Mr. Bill Brown, president of the Bank of Ashdown, said that Carolyn Dianne Zachry had executed two promissory notes, and that he had made two loans to her before and after the killing. The first was in the amount of $2,000 on 29 October 1974. Admittedly the transaction predated appellant’s involvement in the conspiracy under any view of the evidence. Bean testified that it was in December that he proposed that Dyas join him in the murder scheme and Dyas agreed to participate. However, it is significant that Bean made a promise of money to interest Dyas in the scheme.
Bean said he approached Dyas by inquiring whether Dyas would be interested in helping Bean do something in which quite a bit of money, approximately $5,000, was involved, on a fifty-fifty basis, and that Dyas agreed that he would. Thereafter, according to Bean, Dyas became involved in negotiations with Mrs. Zachry when she decided that she would not be able to pay until after the commission of the crime, and the price was doubled. Bean said that this agreement was reached in December and that he met and talked with Dyas about the murder of Zachry on other occasions. He said that after he and Dyas had decided to do this together, they came to Ashdown on numerous occasions and, when a money problem arose, Dyas was with him when he met Mrs. Zachry at a carwash on the New Boston road in Texarkana. Bean could not recall whether Dyas had first seen Mrs. Zachry on this occasion or on the occasion of a meeting at a Piggly Wiggly store, but said that he believed that, at the meeting at the carwash, Mrs. Zachry had been unable to come up with the money to pay them $5,000 so it was agreed that they would wait until after the killing for the money, but that the price would be $10,000. He said that Dyas was present when the matter was discussed with Mrs. Zachry.
Mr. Brown testified that the second loan in the amount of $1,500 was made on 16 January 1975, eight days after the killing, and certainly after Dyas is alleged to have joined the conspiracy. There was no error in the admission of this evidence of the latter transaction by him as co-conspirator. Easter v. State, supra.
The second witness, Miss Mary Lou Moore, manager of the Ashdown branch of First Federal Savings and Loan, testified about a certificate of deposit issued to and two withdrawals made by Carolyn Dianne Zachry on 29 October 1974. Like the first transaction testified to by Mr. Brown, this transaction admittedly came before any involvement by appellant in the conspiracy. In light of the fact that money was the only inducement and motive for Bean’s and Dyas’ involvement in the murder, this testimony certainly cannot be said to have been irrelevant as appellant contends, particularly when viewed in the light of other testimony of Bean regarding his receipt of money from Carolyn Dianne Zachry and her mother. Furthermore, previous acts of a co-conspirator may be admissible against a defendant once a prima facie case of conspiracy is proved when such acts show the nature and objectives of the conspiracy. United States v. Morton, 483 F. 2d 573 (8th Cir., 1973). Although we have said that the acts and declarations of any conspirator, in furtherance of a common enterprise, are admissible against any or all of the others, such acts or declarations must be done or said while the conspiracy is in progress and not before it has begun. Willis v. State, supra. Still, we cannot say that the testimony about the transactions was devoid of probative value in the establishment of the state’s case of a contract murder and conspiracy. Bean’s testimony would show that Dyas entered into an ongoing conspiracy and would tend to explain the connection and joint action of the parties in the premises. See, Lesieurs v. State, 170 Ark. 560, 280 S.W. 9. In the light of this testimony and other strong independent evidence of appellant’s guilt, we cannot say that there was reversible error in the admission of any of the testimony to which objection was made.
7
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By Witnesses For The State, Concerning Life Insurance Policies Taken Out By The Murder Victim, In The Absence Of Appellant, And Remote In Time.
Testimony by James E. Cobb and Wetzell Ward showed that Eugene Zachry had in the past purchased three policies of insurance on his life and that these were still in force at the time of his death. Appellant argues that their testimony was irrelevant and constituted hearsay.
Appellant does not demonstrate why the testimony about the issuance of the policies should be regarded as hearsay. In both cases the witnesses themselves had sold the policies about which they testified to Zachry. We find no error in this respect in admitting the testimony.
The testimony was relevant as it related to the motive underlying the conspiracy and murder. It was probative as to the motivation of Carolyn Dianne Zachry, appellant’s co-conspirator. We have already discussed the evidence which showed that Bean originally contracted with Mrs. Zachry to do the killing for $5,000 and that he used a promise of big money to interest appellant in the crime. The testimony objected to was perhaps most relevant to the negotiations that took place between Mrs. Zachry and the killers after Dyas had joined the conspiracy and Mrs. Zachry decided that she was unable to pay in advance. The new agreement called for $10,000 payable after the murder, according to Bean. It might reasonably be inferred that there was a relevant connection between the existence of these policies and Mrs. Zachry’s ability to pay twice as much after the death of her husband than the original contract had stipulated. Appellant’s point is without merit.
8
The Court Erred In Admitting Into Evidence Radio Logs And Statements Concerning Radio Logs Maintained By The City Of Ashdown, Arkansas, Over The Objection Of Appellant That Said Logs And The Testimony Of Witnesses Concerning The Logs Constituted Hearsay.
The logs about which appellant complains were made on the evening of 28 December 1974 by the dispatcher for the Ashdown City Police Department, Betty Davis, on the basis of whose testimony they were admitted into evidence. This was the evening, according to Charles Bean, on which Dyas had accompanied Bean to the Zachry residence and attempted to persuade Eugene Zachry to admit them to the house by telling him that there had been a wreck down the road and asking to use his phone. Bean said that Zachry spoke to them through a window, refused them admittance and said he would phone himself. The telephone log showed that a wreck had been falsely reported at 11:15 p.m. on the evening of the 28th. The log next showed that some thirty-five minutes later Eugene Zachry telephoned and said that he was the one who had made the earlier call reporting the wreck. The log contained a physical description of a man Zachry said had come to his door requesting to use the phone to report the wreck and noted that Zachry had opined that the person had “just wanted to get into the house.” W. D. Webster, Chief of Police for Ashdown, testified that he was the custodian of the records of the police department, including the telephone logs. He identified the logs as official records of the City of Ashdown and stated that they were kept in the due course of business. Upon appellant’s objection, the court held an in-chambers hearing to decide the admissibility of the logs where it was adduced that Webster had kept the logs for four years, that they were always accurate, never altered and checked daily. After the hearing in camera, Webster identified the log. When he was asked to read the item pertaining to Zachry’s call, the circuit judge interjected, and, out of the hearing of the jury,- indicated that it should not be read to the jury until it had been substantiated by the dispatcher who recorded it. The judge then stated in open court that the record would not be read at that time to the jury. The record was then marked for identification and the court and appellant’s attorney agreed that this was done with the limitation that it be substantiated and that it was not for the purpose of establishing the truth of the matter but that it was introduced only for establishing the fact that it was the official record. The prosecuting attorney then stated that he had no further question and that he didn’t suppose there would be any cross-examination of the witness, but appellant’s attorney, Moore, stated that he would like to cross-examine and was permitted to do so. The cross-examiner then proceeded to read the item and Webster confirmed his reading, in spite of the prosecuting attorney’s protest that he didn’t want appellant’s attorney to read the log and then object to it. The cross-examining attorney then established by the testimony of Chief Webster that the description given by Zachry could fit numerous persons, including the attorney himself. He further emphasized through this examination the absence of any limp by the person described. This was pertinent because other testimony had established that one of Dyas’ legs was shorter than the other and indicated that he walked with a decided limp. The logs were thereafter admitted into evidence under the exception to the hearsay rule for records made in the regular course of business, during the testimony of the dispatcher. Ark. Stat. Ann. § 28-928 (Repl. 1962) permits the introduction into evidence of records made in the regular course of business, the entries having been made to record “any act, transaction, occurrence or event, if made in the regular course of business. ” There was sufficient evidence in the record to meet the requirements of the statute to show that the records were regularly kept and made within a reasonable time after the event recorded. Harrison v. State Farm Mutual Ins. Co., 230 Ark. 630, 326 S.W. 2d 803. Therefore, we find no error in the court’s admission of the logs as they reflected that the two calls were received on the evening in question from Zachry, the nature of the report given by Zachry and the fact that the police investigated and found the report to be false. These were the sort of “transactions” the statute contemplates. No objection was made to the reading of the log by the prosecuting attorney after it had been authenticated by the testimony of the dispatcher as to accuracy. The prosecuting attorney then asked permission to pass the log to the jury but, before doing so, remarked that someone had indicated the pertinent part by marking it with blue ink, and inquired whether there were any objections to this mark and received a negative response from appellant’s chief counsel. Thereafter, one of appellant’s attorneys established by cross-examination of the witness that she knew Eugene Zachry and recognized his voice when he called, that Zachry didn’t describe any limp or other physical characteristics of the person who came to the window, that she knew Dyas, and would describe him as walking with a limp.
Appellant is in no position to complain about the admissibility of Zachry’s description of the person who came to the Zachry house and Zachry’s opinion, because appellant’s attorneys brought out the most damaging part of it, insofar as Dyas was concerned, apparently in an effort to emphasize through the state’s witnesses the generality of the description and the lack of mention of what seems to have been Dyas’ most obvious physical characteristic. At any rate, no further objection was made after the cross-examination of Webster and no request was ever made to limit the record evidence to that which was admissible under the Business Records Act.
9
The Court Erred In Admitting Into Evidence A .22 Caliber Revolver Allegedly Belonging To Appellant, Said Revolver Being Immaterial To The Facts And Matters In Issue And Being Inherently Prejudicial To Appellant And In Violation Of His Constitutional Rights. ......
The pistol to which appellant refers was not listed on the search warrant used for a search of appellant’s house during the investigation of the murder. But it was taken from appellant’s automobile at the time of the search. The state points out that appellant’s attorney, J. O. Moore, first elicited testimony about a pistol owned by appellant other than the .38 caliber one used in the crime during his second cross-examination of Charles Bean. Bean was unable to describe the pistol accurately and so on redirect the prosecutor showed the .22 pistol *o Bean who was still unable to identify it as the one he had seen. When the pistol was finally offered into evidence, appellant admittedly interposed no objection. Not having objected during the trial, appellant cannot complain for the first time on appeal.
We do not agree, as appellant has asserted, that this is the sort of plain or fundamental error which renders an objection unnecessary. Furthermore, appellant would be hard pressed to argue that the admission of the pistol prejudiced him in light of his own testimony that he had the pistol with him in the console of his car on the night of the murder and yet did not use it to try and prevent the killing.
10
Appellant Jimmy Lee Dyas Personally Insists That The Court Erred In Trying His Case Because Of The Relationship Between The Trial Judge And The Prosecuting Attorney.
Not only did appellant fail to object to Judge Steel’s hearing of the case or request that he disqualify himself, but his brief reveals that his attorneys declined to accept Judge Steel’s offer to disqualify himself prior to the trial. Appellant argues only that his attorneys should have consulted him before assenting to Judge Steel’s continued handling of the case. The actual record is deficient on this point and appellant’s complaint is too late and cannot be raised for the first time on appeal. We note that the identical surnames of the judge and the prosecuting attorney were obviously known.
11
SUPPLEMENTAL ABSTRACT — CHARLES WATSON BEAN SENTENCING ACTIVITIES: The Court Erred In Refusing To Entertain Appellant’s Motion For A New Trial, In Obedience To A Supreme Court Order; And Misinterpreting The True En titlements Of Appellant To The Sentencing Activities Of Charles Watson Bean.
The majority relies upon its reasoning and maintains the same conclusions it reached on the same issue in Zachry v. State, 260 Ark. 97, 538 S.W. 2d 25 (1976), although the writer adheres to the same views he expressed in his concurrence in Zachry v. State, supra.
12
The Arkansas criminal statutes upon which appellant Jimmie Lee Dyas was convicted and sentenced to life imprisonment Ark. Stat. Ann. § 41-4702 (A) 4711 and 2205 there committing him without the privilege of a parole, are unconstitutional, in that they abridge the constitution of the United States and the state of Arkansas, they violate appellant’s Eighth-amendment assurances — nor shall cruel and unusual punishment be inflicted.
We have already specifically determined that Ark. Stat. Ann. § 41-4702 (Supp. 1975) is not violative of the Arkansas Constitution. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.
Appellant does no more than offer the flat assertion that a sentence of life imprisonment without parole is violative of Amend. VIII of the United States Constitution. We do not consider a life sentence cruel or unusual in the light of pertinent standards. See, Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). If a sentence is, as here, within the limits established by the legislature, it is valid against the insistence that the punishment is unconstitutionally excessive. Rogers v. State, supra; Smith v. U.S., 407 F. 2d 356, cert. den. 395 U.S. 966 (8th Cir., 1968). His contention that his accomplice Bean’s receipt of a lesser sentence somehow entitles him to relief is without merit. See Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852.
Appellant does not show how he was denied assistance of counsel. He seems to weave into his argument on this point, the same argument made about a recording device in Zachry v. State, supra. The record here gives less support to the argument than it did in Zachry. His suggestion that he was denied assistance of counsel is without merit.
13
The court erred when failing to bring the charges before a grand jury the state failed to provide equal protection by such failure in that the state had no proof that would cause the jury to return an indictment and didn’t have until co-defendant Charles Watson Bean was Bribed thus there was a definite of probable cause initially.
We have long recognized that a criminal defendant may be properly charged either by indictment or information. Ark. Stat. Ann. Const. Amend. 21; Ark. Stat. Ann. § 43-806 (Repl. 1964); Davis v. State, 246 Ark. 838, 440 S.W. 2d 244, cert. den. 403 U.S. 954 (1971); Ellingberg v. State, 254 Ark. 199, 492 S.W. 2d 904.
14
The State failed to provide equal protection when making a show of the trial a sham by not moving the trial to another county the court erred in permitting a public expose of economical and political enhancement to the prosecuting attorney.
Appellant neither moved for a change of venue nor raised any timely objection based on the assertions he makes in this point. His attempt to raise these issues on appeal is too late and cannot be considered.
15
The Court erred and the state failed to provide appellant Jimmie Lee Dyas equal protection when allowing evidence obtained by illegal search and seizure to be introduced.
No objection was raised in the trial court either as to the validity of the search of appellant’s automobile or the introduction of a .25 caliber pistol which was found in a pawn shop. The .38 caliber pistol listed in the search warrant was never recovered or introduced into evidence. We will not consider appellant’s objections for the first time on appeal.
We have examined the record and have considered all other objections raised therein and found none that merit consideration.
The judgment is affirmed.
Appellant’s wife later took the witness stand as a witness for appellant and, without any claim of privilege, testified that she had never seen the rings until Tackett showed them to her when she was in the automobile with the Tackett law firm on the way to Judge Steel’s residence where the rings were surrendered by Tackett. | [
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Frank Holt, Justice.
In a suit on an insurance contract brought by appellee, the trial court, sitting as a jury, awarded appellee a judgment for $3,450, plus 6% interest, 12% penalty and $1,000 attorney’s fee. The insured (not a party here) had purchased an automobile with a loan from appellee bank which was named as loss payee on the policy. The purchaser made no payments and the appellee bank took possession after the automobile was damaged by fire. Appellant tendered payment for the damages based on the cost of repairs. Appellee refused and filed suit alleging it was entitled to recover the difference in the market value of the automobile before and after the fire since the car was “almost totally destroyed by fire.” For reversal of the judgment for appellee, the appellant asserts the trial court erred in applying the “before and after values” method in determining the measure of damages in this contract action.
The contract of insurance contains a provision which states:
10. Limits of Liability - **** the limit of the Company’s liability shall not exceed the actual cash value of the automobile, or if the loss is of a part thereof, the actual cash value of such part at the time of the loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, less depreciation .... (Italics supplied.)
Appellant argues that its liability is limited to the cost of repairing the automobile. Appellant relies upon Unigard Insurance Co. v. Wish, 254 Ark. 832, 496 S.W. 2d 392 (1973), and Tri-State Ins. v. McCraw, 252 Ark. 1259, 483 S.W. 2d 212 (1972), as typical cases in support of its argument. It is true that these cases hold that a limitation of liability as to property damage in an insurance contract is valid. The appellee acknowledges the validity of these provisions. However, it cites our cases as holding that the measure of damages is the difference in the market value of the vehicle immediately before and after the alleged damages. Home Insurance Co. v. Springdale Motor Co., 200 Ark. 893, 141 S.W. 2d 522 (1940); The Home Insurance Company of New York v. Williams, 201 Ark. 460, 145 S.W. 2d 743 (1940); Service Fire Ins. Co. v. Horn, 202 Ark. 300, 150 S.W. 2d 53 (1941); Motors Insurance Corp. v. Lopez, 217 Ark. 203, 229 S.W. 2d 228 (1950); Southern Farm Bureau Cas. Ins. Co. v. Gaither, 238 Ark. 50, 378 S.W. 2d 211 (1964); and Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W. 2d 164 (1968). Suffice it to say that we do not deem Unigard and Tri-State controlling here. In these cases the issue was not presented, as here, whether the repairs to a fire damaged vehicle with parts of like kind and quality would restore the car to its former condition.
Here the appellee adduced evidence that the cost of repairs with parts of other like kind and quality would not restore the vehicle to its former market value. Therefore, a fact question existed as to the proper measure of damages. In our view this is the better rule and seems to have general approval by the text writers.
In Couch on Insurance 2d, Vol. 15, § 54:240, it is stated:
Where the repairs by the insurer under a collision policy did not substantially restore the automobile to its former condition and value, the proper measure of damages was the difference in the value before it was wrecked and the value after it was wrecked, repaired, and tendered to the insured.
In 7 Am. Jur. 2d, Automobile Insurance, § 192, p. 532, it reads:
Generally, the proper measure of recovery under an automobile collision insurance policy is the difference in value of the vehicle before and after the accident, at least if it is not practicable to repair the vehicle, less any amount stipulated in a deductible clause. **** In other cases, though, where the motor vehicle could be repaired, it has been held or recognized that, subject to the operation of the deductible clause, the measure of recovery is the cost of repairs, not in excess of the value of the vehicle before the accident and providing the repairs restore the vehicle to its former market value. (Italics supplied.)
The testimony of appellee’s two expert witnesses was that, even with repairs, the vehicle would not have the same market value ($5,000) as it did prior to the fire. Although appellant’s own expert witness testified that the cost of repairs would be $1,370, he acknowledged that the loss in the market value of the vehicle was $2,200. Clearly, a fact question was made as to whether the repairs with parts of other kind and quality would or could not restore the vehicle to its prior value. There was substantial evidence supporting the trial court’s finding that repairs would not restore the car to its previous market value.
Affirmed.
We agree: Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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J. Fred Jones, Justice.
This is an appeal by State Farm General Insurance Company of Bloomington, Illinois, from an adverse decision of the Johnson County Circuit Court in a suit brought by the appellee Zeefer Chambers, now Zeefer Smith, to recover on a Fire insurance policy covering a house trailer.
The facts appear as follows: In October, 1972, the appellee purchased a house trailer in Oklahoma and in March, 1973, she insured same against loss by fire with the appellant insurance company. In February, 1973, the appellee moved the house trailer to a trailer court at Lowell, Arkansas, where she occupied it with her two sons. In December, 1973, the appellee married Mr. Clyde Smith who lived in Johnson County, Arkansas. Upon her marriage to Smith she vacated the house trailer and moved to Johnson County with Mr. Smith. On March 22, 1974, she paid a renewal premium on the insurance.
A Mrs. Lois Donovan managed the trailer court at Lowell where the appellee’s trailer was set up, and in January, 1974, as an accommodation to Mrs. Smith, she rented the trailer to a Mrs. Phillips. Mrs. Donovan collected the rent payments and remitted to the appellee. Mrs. Phillips lived in the trailer until March 25, 1974, when it was destroyed by Fire. The appellee made claim against the appellant for payment under the policy and the claim was denied because of a provision in the policy which, in pertinent part, reads as follows:
This Company shall not be liable under Section 1 of this policy:
* * *
3. While the mobile home is rented to others for a period in excess of 60 days, except that it is permissible to rent a portion of the mobile home which is occupied by an insured to not more than two roomers or boarders.
It is clear from the evidence in this case that the trailer was rented to Mrs. Phillips on January 19, 1974, and that she continuously occupied it as a tenant until March 25, 1974, when the fire loss occurred. It is, therefore, clear from the evidence that the loss here involved occurred while the mobile home was rented to others for a period in excess of 60 days and clearly fell within the exclusionary provision as above set out.
The trial court, however, over the objections of the appellant, gave appellee’s instruction No. 3 as amended. The appellee requested instruction No. 3 as follows:
You are instructed that the renewal of the insurance contract on March 24, 1974, was a separate and distinct contract between Mrs. Smith and State Farm Insurance Company.
The court gave the instruction as follows:
You are instructed that the renewal of the insurance contract on March 24, 1974, if you so find, was a separate and distinct contract between Mrs. Smith and State Farm Insurance Company.
We are of the opinion that the trial court erred in giving this instruction.
The insurance policy here involved was dated April 25, 1973, and was for a 12-month period from March 24, 1973, to March 24, 1974. The policy contained a provision as follows:
This policy will be renewed automatically subject to provisions of the forms then current, for each succeeding policy period thereafter and is subject to termination by this company only after ten (10) days’ written notice to insured and lienholder the premium for succeeding policy periods will be computed at this company’s rates then current.
The appellee’s attorney took full advantage of the court’s instruction in his closing argument to the jury as follows:
The Court has instructed you and I will read what he said:
“You are instructed that the renewal of the insurance contract on March 24, 1974, if you so find, was a separate and distinct contract between Mrs. Smith and State Farm General Insurance Company.
Now, Your Honor has told you that that’s the law. That that’s a separate contract. Therefore, I submit to you that when she renewed this policy that she gets another 60 days, just like she got when she first took this policy out.
It was entirely proper for the appellee’s attorney to argue as above set out under the instruction given, but the trial court erred in giving the instruction under the uncontroverted evidence in this case. The contract here involved was not a new and separate contract. No new policy was issued and no new contract was entered into or involved. The old and only insurance contract was simply extended for an additional year by the payment of the premium for the ensuing year as plainly provided in the face of the policy. The original policy was kept in force by automatic renewal upon the payment of premium for the ensuing year; it had not lapsed nor was it subject to cancellation until after ten days’ written notice as provided in the very first provision of the policy, supra.
The appellee relies heavily on our decision in Home Mut. Fire Ins. Co. v. Pierce, 240 Ark. 865, 402 S.W. 2d 672, but the case at bar is clearly distinguishable from the Pierce case on the facts. In Pierce the insured was engaged in livestock and poultry production conducted on four separate farms. Prior to December 23, 1964, the appellant insurance company had issued a separate policy of insurance on dwellings and other named structures on each of the four farms. In December, 1964, a new five-year policy was written consolidating the coverage as to the four farms and on December 31, 1964, an endorsement was placed on the new policy increasing some of the coverage. The coverage on the equipment in the brooder house was increased from $5,000 to $6,000. Under the new policy a brooder house on one of the farms was insured for $10,000 against loss by fire and, as above stated, the equipment and supplies therein were insured for $6,000. A dwelling house on the same farm was occupied by a tenant who, well-known to the agent writing the insurance, attended to swine production on the farm and had nothing whatever to do with the brooder house operation. Prior to issuing the new policy, the tenant moved from the dwelling house and it remained vacant for more than 30 days before the brooder house and equipment were destroyed by fire on January 12, 1965. The new policy contained a provision reading as follows:
Unless otherwise provided by agreement in writing added hereto, this Company shall not be liable for loss or damage occurring. . . . (f) while a described building whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of thirty days.
And the endorsement thereon contained an “otherwise provision” reading as follows:
In consideration of the waiver of additional premium for increased hazard by reason of vacancy or unoccupancy, permission is hereby given for dwelling insured under this policy to become or remain vacant or unoccupied for periods in excess of thirty days, provided that in case any dwelling is damaged or destroyed by fire during such vacancy or unoccupancy in excess of thirty days this company shall not be liable to pay or make good to the insured in excess of two-thirds of the amount of insurance covering such dwelling.
When claim was made for the full loss coverage on the brooder house and equipment, the insurance company contended that it was. not liable under the policy for more than two-thirds of the amount of coverage on the brooder house under the above endorsement. The trial court rendered judg ment for the full amount of coverage and we affirmed-
The question in Pierce, supra, was whether the vacancy endorsement on the separately insured dwelling house extended to coverage on the separately insured brooder house and we agreed with the trial court that it did not. We agree with the appellant in the case at bar, that the sole question before the trial court and before this court on appeal is whether the premium payment of March 24, 1974, constituted a new and separate contract which prevented the application of the 60-day rental period from running under the exclusionary provision. Upon the payment of the renewal premium in the case at bar the policy was automatically renewed under its terms and nothing was added to or taken from the terms of the policy. In other words, it remained the same identical contract without alteration.
The case of Aetna Ins. Co. v. Short, 124 Ark. 505, 187 S.W. 657 (1916), involved an oral renewal of a fire insurance policy and in that case we said:
The terms of the policy are neither enlarged, restricted or changed by the renewal but the rights of both parties, no matter how often a policy of insurance may have been renewed, are still bound by the provisions of the policy as originally issued. Witherell v. Maine Insurance Company, 49 Maine 200; Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164. Therefore, the court did not err in refusing to instruct the jury that the renewal contract must be established by clear and convincing testimony and that the burden was upon the plaintiff to establish that fact by clear preponderance of the evidence.
In Couch on Insurance 2d, vol. 17, § 68:42, is found the following statement:
The rule has thus been declared that a renewal of a fire policy by the payment of a new premium and the issuance of a receipt therefor, where there is no provision in the policy for its renewal, is a new contract on the same terms as the old, but that where the renewal is in pursuance of a provision to that effeci it is not a new contract but an extension of the old. (Italics supplied.)
Citing Lewis v. Western Assur. Co., 175 Tenn. 37, 130 S.W. 2d 982.
The Lewis case, thus cited, involved Fire loss insurance on a dwelling house. Under a Tennessee statute, recovery on a Fire insurance policy was limited to the actual value of the loss where inspection of the property was made within 90 days after issuance of the policy. Where such inspection was not made, the policy became a valued policy for the face amount recited in the policy. A dwelling house was involved in Lewis and it was insured for a period of one year for $1,000 and no inspection was made. The policy was renewed at the end of the year by the issuance of a new and separate policy containing the same provisions as the First policy. The house was totally destroyed by lire less than two months after the issuance of the renewal policy. The insured claimed the face value of $1,000 and the insurance company resisted because the property had not been inspected and the 90-day period for such inspection had not expired under the renewal policy. The trial court held that the new policy was an extension of the old policy and that the 90-day inspection period ran from the issuance of the first policy. In affirming the trial court the Supreme Court of Tennessee said:
The renewal a year later, under the express terms of the original policy, had the effect of extending the original contract for another year. The situation was the same as though the policy had been issued originally for two years, in which event defendant, so far as value was concerned, had ninety days from the date of issuance to inspect.
The court then quoted from 27 C.J., page 111, as follows:
“The renewal receipt is more than a mere receipt for money; it is evidence of a contract. But it is an extension of the original policy, and not a substitute therefor.”
The Tennessee Court further quoted from 14 R.C.L., pages 889-890, as follows:
“A renewal of insurance by the payment of a new premium and the issuance of a receipt therefor, there being no provision in the policy for its renewal, is a new contract on the same terms as the old, but where the renewal is in pursuance of a provision to that effect it is not a new contract but an extension of the old.”
In 44 C.J.S., Insurance, § 285, is found the following:
Where the renewal agreement so recites, or unless it provides otherwise, the terms and conditions of the existing policy are not changed, enlarged, or restricted by a renewal but are merely continued in force as binding on the parties; and an agreement to renew, in the absence of expressions to the contrary, is presumed to contemplate the same terms and conditions as the existing insurance, the only change being the time of its expiration.
In the case of New York Life Ins. Co. v. Campbell, 191 Ark. 54, 83 S.W. 2d 542, a lapsed policy was reinstated under provision in the policy providing:
This policy may be reinstated at any time within five years after default upon written application by the insured and presentation at the home office of evidence of insurability acceptable to the company, and upon payment of overdue premiums, with six per cent interest thereon from their due date.
The policy involved was issued in 1928; it was reissued with a change of beneficiary on February 4, 1932, and expressly provided that it would take effect as of the 19th day of November, 1928 (the anniversary date of the policy). The policy lapsed for nonpayment of premium on March 19, 1932, and on March 29, 1932, the insured made written application for reinstatement which was granted on March 30, 1932, and the policy was reinstated. The policy contained a two-year incontestable clause. About. September 10, 1933, the insured suffered a stroke and so advised the insurance company, who filed a petition in chancery to cancel the policy because its reinstatement was produced by fraud. The insured stated in his application for reinstatement that his health and physical condition were in the same state as they were when the original policy was issued in 1928, and that he had had no past illness, injury or disease, nor had he been treated by or consulted a physician within two years last past. A doctor testified that he had treated the insured from October 2, 1931, until February 1, 1932, and had diagnosed the appellee’s condition as chronic nephritis. In upholding the chancellor’s denial of the petition for cancellation, this court said:
It necessarily follows from what we have said, and the cases cited in support thereof that the reinstatement of the insured by appellant created no new contract between them, but simply revives and reinstates the original contract and all provisions thereof, and subsequently the rights and obligations of the respective parties thereto must be measured thereby.
See: Munn v. Robinson, 92 F. Supp. 60, affirmed in John Hancock Mul. Life Ins. Co. of Mass. v. Munn, 188 F. 2d 1; see also New York Life Ins. Co. v. Dandridge, 202 Ark. 112, 149 S.W. 2d 45, 134 A.L.R. 1519.
In Life & Cas. Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S.W. 2d 199, a life insurance policy was involved which contained a provision against suicide as follows:
If, within one year from the date of issue of this policy, the insured shall, whether sane or insane, die by his own hand, the liability of the company shall be limited to the amount of the premiums paid hereon.
The policy also contained a provision for reinstatement after lapse by the payment of premiums and production of evidence of insurability satisfactory to the company. The premium on May 1, 1931, was not paid when due nor within the period of grace, but on August 1, 1931, the policy was reinstated. Thereafter, on May 10, 1932, more than one year from the date of the policy, but less than one year from the date of reinstatement, the insured committed suicide. In the suit on the policy the insurance company contended that the one year suicide clause ran from the date of the reinstatement of the policy and not from the date of the policy itself. In affir ming the trial court this court said:
We do not understand there was ever but one policy, and it bore date of November 3, 1930. Certainly there was never but one policy issued by appellant to insured. It lapsed and became void after 30 days, from May 1, 1931, until August 1, 1931, during which time there was no insurance, but on the latter date the very same policy, not a new or different one, was reinstated by the payment of all delinquent premiums and furnishing evidence of insurability satisfactory to appellant. There is no room for the contention that any new or different contract or policy was in force after reinstatement.
The policy involved in the case at bar, by its plain and unambiguous terms, provided for automatic renewal for an additional year upon payment of the premium for the ensuing year. We are forced to the conclusion that the renewal here involved was not a new contract and the trial court erred in instruction to the jury that it was.
The judgment is reversed and the cause dismissed.
We agree: Harris, C.J., and George Rose Smith and Fog LEM an, JJ. | [
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George Rose Smith, Justice.
This is an attempt by the city of Hot Springs and its airport commission to appeal from an order of dismissal entered on June 14, 1976. Our clerk refused to file the record, because the notice of appeal was not filed until July 15 — the 31st day after the entry of the order. The appellants argue that the belated filing was excusable, because the order was signed and filed without notice to counsel, and the clerk of the trial court failed to mail a copy to the appellants’ attorney, as is the custom of that office.
We cannot grant the relief sought, because the timely filing of a notice of appeal is essential to our jurisdiction. Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 307 S.W. 2d 73 (1957); General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W. 2d 40 (1954). We must therefore deny the appellants’ motion, without prejudice, however, to an application to the trial court for relief. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W. 2d 797 (1976). | [
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Conley Byrd, Justice.
From a directed verdict in favor of appellees Norman Satterfield and his wife, the appellants Glen R. Vaught and his wife appeal contending that the failure of appellees to disclose a defect while selling their house to appellants constituted fraud upon which appellants were entitled to damages.
The record shows that in the early spring of 1971, the Satterfields owned a house at 810 “F” Street in North Little Rock. The house was constructed on a hillside lot that had been excavated in such manner that there was a steep incline sloping from the rear of the house up to the rear property line. About three feet behind the house was a retaining wall. In the early spring the Satterfields contracted with H. W. Tucker Company to construct a concrete swale immediately behind the house. When the Satterfields found out that the concrete swale did not cure the water seepage problem in the house, they listed the house with National Realty Company. Appellant, Glen R. Vaught, who had been issued a real estate license as a salesman with National Realty Company went with Paul Harris, an agent of National Realty Company, to look at the house about August 1, 1971. Appellant Vaught also looked at the house some three days to a week later. As a result of what he saw during those visits the Vaughts, without ever seeing or talking to the Satterfields, purchased the house for $4,000 down and assumed an outstanding mortgage in the approximate amount of $12,000. The purchase price of the house was discounted $600 through an arrangement between Paul Harris and appellant Vaught because of the latter’s real estate salesman’s license. During the Arkansas-Texas football game in October, 1971, water started seeping into the house. The Vaughts have now corrected the problem through the expenditure of $5,286 over a period of about three years. There is proof in the record that the fair market value of the house in 1971, without the water seepage problem would have been only $15,900 and that with the water seepage problem the value would not have exceeded the $12,000 outstanding mortgage. Appellant Vaught’s testimony as to what he observed upon his first visit is as follows:
“Q. All right, did you ever ask Mr. Harris in regard to any kind of water problems? Did you ever inquire in that regard?
A. The first time I looked at the house, Mr. Harris and I went up there by ourselves. We walked through the house, I believe one of Mr. Satterfield’s children was at home that day and we went in the house, walked through the rooms and briefly looked at it, walked out the back door, the kitchen or dining door onto the little porch in the back and at that time we walked up the steps in the area where this patio was, along in that area and I believe Mr. Harris was standing down below the steps and I was maybe standing on the steps at the time and I asked Mr. Harris, I said, do you know if there is any water problems here and Mr. Harris said he did not.
Q. And that was the only conversation that took place?
A. And I said well, looked like for some reason they’ve painted and fixed this up, awful nice here.
Q. You talking about that swale?
A. The swale had been painted green, the wall had been painted green and the swale had been painted green so you couldn’t tell whether there was anything new or old or what there. It had just recently been painted and I didn’t know whether the swale had been there ten years or two months or the wall either one.
Q. So then that was the only conversation you ever had on it?
A. Right.”
To support their position the appellants rely upon Weikel v. Sterns, 142 Ky. 513, 134 S.W. 908 (1911), and Lingsch v. Savage, 213 Cal. App. 2d 729, 29 Cal. Rptr. 201, 8 A.L.R. 3rd 537 (1963). In the Kentucky case the appellant had erected a residence over a cesspool into which he was still pumping sewage. The court in that case had no trouble in finding a duty of disclosure and that the vendor’s silence on the subject amounted to fraud.
In the California case the allegation was that the vendors knew the building was illegal and had been placed for condemnation by the city; that the appellants had no knowledge thereof; and that in purchasing the property, they did so in justifiable reliance upon the vendor’s nondisclosure and in the belief that said property was legally tenantable. In holding that the complaint stated a cause of action as against a demurrer, the Court stated:
“It is now settled in California that where the seller knows of facts materially affecting the value ;.or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. . . .”
Under the facts in the record before us, appellants cannot bring themselves within the results of either the Kentucky or California ruling. The record shows from appellant Vaught’s own testimony that his observance of the premises on his first visit was such as to cause him to inquire of Paul Harris as to his knowledge of a water problem. When Paul Harris truthfully answered that he did not know, appellant Vaught dropped the subject and made no further inquiry. As we read the authorities upon which appellants rely, the burden of proof to show the fraud alleged required not only a showing that appellants did not know the facts but also that the ascertainment of the undisclosed fact was not within the reach of their diligent attention or observance. Since appellants failed to show that the facts were not within the reach of their diligent attention or observation, it follows that the trial court correctly directed a verdict against them.
Affirmed.
We agree: Harris, C.J., and Holt and Roy, JJ. | [
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Conley Byrd, Justice.
This application for a savings and loan charter by appellee, Central Arkansas Savings & Loan Association, was before us in Ark. S&L Bd. v. Central Ark. S&L, 256 Ark. 846, 510 S.W. 2d 872 (1974) and in Security S&L v. Central Ark. S&L, 257 Ark. 1014, 521 S.W. 2d 220 (1975). On the first appeal we remanded the case to the Arkansas Savings and Loan Association Board because, in denying appellee’s application, the Board had only stated conclusions and had failed to give findings of fact. On the second appeal appellant Security Savings and Loan Association, whose protest had been sustained by the Board, complained that its appeal to the Pulaski Circuit Court was erroneously transferred to the Faulkner Circuit Court. Following those decisions, on this appeal the Faulkner Circuit Court again reversed the action of the Board in denying appellee’s application for a charter. For reversal, appellants, Arkansas Savings & Loan Association Board, hereinafter referred to as the Board, and Security Savings & Loan Association, hereinafter referred to as Security, contend that the findings of the Board are sustained by substantial evidence.
In making their contention, appellants take the position that, for purposes of determining whether the Board’s administrative findings are supported by substantial evidence, we should be governed by the same rule of review as in cases involving jury verdicts. In this connection appellants state:
“Because of this holding the evidence which tended to support a finding that a public need and probability of success did exist is irrelevant and was not included in the abstract.”
With respect to judicial review of administrative findings our Administrative Procedure Act, Ark. Stat. Ann. § 5-713 (Supp. 1973), provides:
(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not supported by substantial evidence of record; or
(6) arbitrary, capricious, or characterized by abuse of discretion.”
The provisions of the federal Administrative Procedure Act were discussed in Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950), with reference to whether a review of an administrative decision based upon the substantial evidence rule could be predicated upon only the evidence supporting the administrative finding when viewed by itself. In holding that such a review should be on the record as a whole, the court said:
“Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitely precludes such a theory or review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. ...”
Under the language of the Administrative Procedure Act, supra, we construe the language thereof to give to the courts the same type of review that is applied by the federal courts to the federal Administrative Procedure Act.
The order entered by the Board following the remand of the first appeal is as follows:
“The Board, upon review of the record, finds that the application should be denied for the following reasons:
3. There is not a public need at the present time for the proposed association and the volume of business in the areas in which the association would conduct its business is not sufficient to indicate a successful operation.
The Board hereby makes the following findings of underlying facts upon which this finding is based:
(a) Conway and Faulkner County are within the metropolitan Little Rock trade and market area and a substantial number of Faulkner County residents commute to work in Little Rock and Pulaski County.
(b) There is keen competition for home loans in Conway and Faulkner County by Security Savings & Loan Association of Conway (‘Security’), Morrilton Federal Savings & Loan Association (‘Morrilton Federal’), the two banks in Cohway, savings and loan associations from the Little Rock area, and other institutions from the Little Rock area. The approval by the Federal Home Loan Bank Board of the branch office of Morrilton Federal will increase this competition. There is no need for additional competition for home loans and the volume of home loans is not sufficient to support additional competition.
(c) There is keen competition for savings deposits from Conway and Faulkner County residents by Security, the two banks in Conway, and thrift institutions in Pulaski County. Morrilton Federal has competed for savings deposits from Conway and Faulkner County residents to some extent in the past and will compete for such savings deposits to a much greater extent with the establishment of its branch office in Conway. Thrift institutions in Pulaski County obtain significant amounts of savings from residents of Faulkner County who commute to work in Pulaski County during the normal operating hours for financial institutions. There is no need for additional competition for savings and the volume of savings is not sufficient to support additional competition.
(d) From the standpoint of the services offered to Faulkner County residents, and in light of the services provided to Faulkner County residents in the past, and in view of the relative geographic locations of Morrilton and Conway, the establishment of Morrilton Federal’s branch office in Conway will be comparable to the establishment of a second association in Conway.
(e) The populations of Conway and Faulkner County are not large enough to support an additional association.
(f) With the establishment of an additional association the population per savings and loan association office in Faulkner County would be 10,524 compared to a range from a low of 12,180 to a high of 33,256 for the eight market areas covering the state as defined by Dr. Gene C. Lynch. Without the establishment of an additional association the population per savings and loan association office in Faulkner County will remain at 15,786, which figure falls within the existing range for the above market areas. (All population figures used in these findings are based on the 1970 census).
(g) With the establishment of an additional association the population per savings and loan association in Faulkner County would be 15,786, compared to a range from a low of 17,826 to a high of 39,908 for the above market areas. Without the-establishment of an additional association the population per savings and loan association in Faulkner County will remain at 31,572, which figure falls within the existing range for the above market areas. The figures for population per savings and loan association are inflated because they do not take into account the fact the Morrilton Federal’s Conway Branch is comparable to a local association under the peculiar circumstances recited in finding D.
(h) The age group 15 to 24 makes up 24.9% of the population of Faulkner County and approximately one-third of the population of Conway while the corresponding figure for the state as a whole is 16.9%. The difference in these two figures is the result of the presence of three colleges in Conway. Persons in this age group do not, in general, utilize the services of savings and loan associations. For purposes of comparing population per office and per association in Faulkner County and in the above market areas the population figure for Faulkner is inflated by 8%.
(i) Security was formed and commenced business in 1961. Security’s performance in attracting savings-since its formation has been excellent. During the period 1965-1970 Security obtained savings deposits at a rate of 128% of the national average (based on the comparison of the amount of increased personal income that went into savings deposits in savings and loan associations for the nation as a whole and for Faulkner County). During the period 1966-1970 all savings and loan associations in Arkansas as a whole obtained savings at a rate equal to 124% of the national rate.
(k) In 1971 and 1972 the increase in Security’s deposits was significantly more each year than it had been in any previous year. While the rate at which Security’s deposits increased during .these two years fell below the national average this can be attributed to a reduction in Security’s advertising budget which has since been restored and the impossibility of accounting for deposits of local income in Pulaski County savings and loan associations and Morrilton Federal. Each dollar of local income in these institutions has the same significance as a dollar deposited in Security in making the local to national comparison.
(l) The establishment of Morrilton Federal’s branch office in Conway will place Morrilton Federal in a position to attract significant amounts of savings deposits from Faulkner County residents that it would otherwise be unable to attract.
(m) Per capita income for Faulkner County is $2,602 and for the state as a whole is $2,791.
(n) The performance of Security and Morrilton Federal in meeting home loan needs in Faulkner County has been excellent. Faulkner County residents who finance homes through institutions in Little Rock generally do so for personal reasons having nothing to do with the adequacy of services or amount of financing available locally.
(o) During the period 1968-1972 Security financed over 93% of the value of new residential construction in Conway, while savings and loan associations nationally financed 81% of the value of new residential construction.
(p) The two Conway banks actively seek home loans, primarily on a short term basis of five years or less. Persons obtaining home loans from the banks on these terms generally do so because they prefer such terms or for other personal reasons having nothing to do with the adequacy of services or amount of financing available from the savings and loan associations.
(q) Security’s services regarding home loans are speedy and adequate and, except for an unusual period during which adequate amounts of money for home loans were unavailable on a national basis, Security has always had money available to lend to qualified borrowers.
(r) Interest rates charged by Security for home loans are competitive with other financial institutions which make home loans in Faulkner County.
(s) Morrilton Federal has filled a major portion of the loan needs of Conway and Faulkner County residents for many years, commencing a number of years prior to the formation of Security in 1961. The establishment of Morrilton Federal’s branch office in Conway will enable it to service a larger number and amount of loans.
(t) General economic conditions are highly unfavorable to the establishment of a new savings and loan association at this time. Conditions regarding interest rates are highly unfavorable to the inflow of deposits to savings and loan associations and conditions in the home construction industry are highly unfavorable to prospects for future building activity.
(u) The economic data presented by the applicant did not take into account the impact that Morrilton Federal’s branch office in Conway will have on the Faulkner County economy, the extent to which the branch will fill the need for the services offered by savings and loan associations or the extent to which it will affect the applicant’s chances for a successful operation. The economic data and statistics also inaccurately classify Morrilton Federal as an outside institution when it will provide the same services to Faulkner County residents as a local institution and has to some extent done so in the past.
(v) The economic data presented by the applicant contain a number of errors that make portions of it unreliable and raise doubts as to the other portions. The economic data presented by Security does not contain such errors and is entitled to greater weight.
(w) The opinions given by Dr. Lewis Amis on behalf of the applicant were not supported by a satisfactory explanation of the underlying facts and should not be given substantial weight. Dr. Amis established that he was not familiar with economic conditions in Faulkner County and his cross-examination raised serious doubts as to the validity of the economic data presented by the applicant, especially the statistics relating to mortgage loans.
(x) A sufficient basis for comparing the present application with applications for charters previously granted was not established.
4. The operation of a new association in Conway, Arkansas, will not unduly harm any other existing association or federal savings and loan association or any other financial institution.
The Board hereby makes the following findings of underlying facts upon which this finding is based:
(a) The two banks in Conway did not contend that they would be unduly harmed by the establishment of the proposed association.
(b) The operation of a new association in Conway would result in existing and future deposits and future loans being spread among a larger number of financial institutions, but the operation of a new association in Conway would not result in undue harm to the service area in that the harm would not be severe enough to render the existing institutions incapable of functionally continuing operation.
IT IS THEREFORE ORDERED that the Application for Charter by Central Arkansas Savings and Loan Association be and it is hereby denied.”
The record shows that a total of 59 stockholders subscribed and paid $231,150.00 in cash for 13,400 shares of stock in appellee. The subscribed savings accounts had increased to $1,120,345.00 at the date of the hearing of the application. Ten new industries and 14 new commercial establishments were opened for business in 1972. The 1960 census of Faulkner County showed a population of 24,303 while the 1970 census showed a population of 31,472, representing a 29.9% increase in the population of the county compared to a state-wide increase of 7.7%. Between 1960 and 1970 the personal income of the county increased from $30.3 million to $82.1 million. The total payroll for the same period for covered employment increased 94.3% or from $8.8 million to $25.1 million. Concurrently, the average covered payrolls for the manufacturing industry increased from $4.3 million to $13.2 million, a 205.2% gain. For the same ten year period, retail sales increased from $18.3 million to $46.0 million. Income from governmental employment increased from $3.3 million to $11.8 million. In 1970 the total deposits in banks in the county were $40.9 million, and of those deposits, $22.6 million were in savings and time deposits. Total deposits in the banks had increased to $68,964,000 by December 31, 1972. The savings capital of Security increased from $5,759,-854 in 1967 to $12,045,000 by June 30, 1972. The number of persons on institutional and industrial payrolls increased from 1,709 in 1960 to 6,245 in 1971. The electrical connections inside the city of Conway increased by 190 in 1971 and by 100 in 1972. In Faulkner County, outside the city of Conway, there was an increase of 274 electrical connections in 1971 and of 393 in 1972.
Security is the only chartered savings and loan association in Faulkner County. Security’s deposits were increased by $1,638,000 in 1971, and $2,801,000 in 1972. Dr. John Kane, professor of Economics at the University of Arkansas and former executive vice president of the McElroy Bank in Fayetteville, testified that in Boone County in 1972, the Harrison Savings and Loan Association increased its deposits by $5,346,000 and a second association in Harrison increased its deposits by $2,612,000. The First Federal Savings and Loan Association of Magnolia in 1972 increased its deposits by $3.75 million. The First State Savings and Loan Association of Mountain Home in 1972 increased its deposits $7,-671,000. First Federal Savings and Loan Association of Rogers in 1972 had an increase of $6,999,000. The deposits in First Federal Savings and Loan Association of Russellville did not quite increase $3 million in 1972, but a second association in Russellville had an increase of $1,564,000 for a total county increase of $4,765,000 in savings and loan deposits. The two associations in Searcy had an increase of $3,860,000 for the same year.
Table 13, 13A, 13B and 13C, attached as an appendix to this opinion, were introduced by Dr. Gene Lynch, who testified for Security. Table 15, shown in the appendix to this opinion, was introduced by Dr. Louis Amis who testified for appellee.
Security was chartered in 1961 with a capital of $250,-000. After six months operation it had assets of $645,000, savings of $465,000 and first mortgage loans of $423,000. At the end of 1972 Security had total assets of $14,173,298, savings of $13,269,691 and first mortgage loans of $11,847,-387. Security’s undivided profits in 1972 were $129,000 after taxes.
George Shaw, Jr., testified that he was a director of Security. He owns 10% of the stock in the association, and his family owns another 10%. He testified that when Security started Morrilton Federal Savings and Loan Association conducted the principal savings and loan activity in Conway. That of Morrilton Federal’s 100% of the market he would now say that Security has 70% and Morrilton Federal has 30%.
Arch Ford, a director and founder of Security, estimated that in 1972 Morrilton Federal made loans of about $1,600,-000 to $1,800,000 in Faulkner County while Security made loans of about $2,500,000.
Between the date of the application for appellee’s charter and the hearing date, Morrilton Federal obtained a federal charter for a branch bank in Conway. Security elected not to protest the application of Morrilton Federal for the branch bank.
In the first appeal we remanded this case to the Board because the findings of fact did not comply with the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-710 (Supp. 1973). In so far as here pertinent, that statute provides:
“(b) In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. ...”
In stating our reasons for remanding to the Board, we pointed out that the record contained “not only what appears to be basically factual testimony but also what appear to be conclusions on the part of witnesses.” A clear example of what happens when the Board does not analyze the testimony in connection with its fact findings can be demonstrated by the conclusions set forth in subsections (o) and (r), supra.
In subsection (o) the Board states that “Security financed over 93% of the value of new residential construction in Conway, while savings and loan associations nationally financed 81% of the value of new residential construction.” This information could only come from the testimony of Dr. Lynch, who relied upon Tables 13, 13A, 13B and 13C. (See appendix). Since Table 13 represents only the residential construction done inside the city and since Table 13A represents the total loans made by Security both inside the city of Conway and outside of the city in Faulkner County, the 93% figure can only be computed by presuming that the total loans by Security from 1968 through 1972 were made only inside the city of Conway. Needless to say, the statement in subsection (o) of the Board’s order is so erroneous that its error was admitted during oral argument.
In subsection (r) the Board states that “interest rates charged by Security for home loans are competitive with other financial institutions which make home loans in Faulkner County.” In this connection George Shaw, Jr., a director of Security, after stating that Security’s rates were competitive, stated:
“I’m basing my statement that our rate was competitive with Morrilton Federal and the associations in Little Rock on the results of our loans here.”
However, John Shock, a certified public accountant, testified that the loan on his home was not with Security because he was told that Security’s interest rate was “8%, take it or leave it.” Shock financed his home with Morrilton Federal at a lower rate. The testimony of John Shock is corroborated by that of Security’s manager, who admitted that in a new subdivision containing 50 or 60 homes, Security only made loans on 10 homes in that sub-division. He stated that one reason for Security’s not having more loans in the subdivision was its interest rate.
Security suggests that the granting of Morrilton Federal’s branch-charter should be considered as, in effect, creating another savings institution. However, Security’s failure to protest Morrilton Federal’s branch charter while protesting appellee’s application places Security in the position of admitting that there is room for additional competition in the area but leaves it in the position of selecting its own competition. That the actions of Security speak louder than words on that issue can be seen from the testimony of its manager, Mr. Sly, as follows:
“Q. Do you not believe that this will add to the competitiveness of Morrilton Federal?
A. I don’t think there’s any question about it. I don’t think it will hurt our savings. And this is — I don’t know how to word it exactly. I worry more about our lack of savings than I do our availability of loans. I don’t think Morrilton will hurt us on savings as much as maybe the banks would or another local savings and loan. But I think loans, they’re going to get those anyway. I don’t think there’s going to be that much difference in what they have been doing just by opening an office here.”
Needless to say, the statements of the Board, when viewed from the whole record as distinguished from the conclusions of certain witnesses, are such that they show an abuse of discretion in the consideration of the evidence before the Board.
To take each subsection of the Board’s order and demonstrate how the Board has abused its discretion, including such things as comparing the population of Faulkner County to a market area covering some five counties, including Pulaski County — which is like comparing apples to oranges — would make this opinion longer than appellant’s brief, which consists of 280 pages. What we have set forth demonstrates that the Board abused its discretion and also violated its statutory duty to make “a concise and explicit statement of the underlying facts supporting the findings.” For the violation of the Board’s statutory duty, we remanded this case on the first appeal. However, to remand again would but reward the Board and Security by giving them another two years in which to delay the appellee’s application for a charter. As pointed out by Mr. Justice Frankfurter, in Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950), “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.”
When we consider that the statistics show a steady and vigorous industrial growth in Faulkner County; that Security, while obtaining loans in new subdivisions at a rate of only one out of every five or six new homes constructed, had been continuously loaned up for the last six or seven years; and that Morrilton Federal was doing less than one-half of the business done by Security, we cannot find enough substantial evidence in the record to support the Board’s finding that there was not a public need for and that the business in the area was not sufficient to support the successful operation of appellee.
Security also contends that the Board erred in finding that the operation of a new savings and loan association will not unduly harm any other existing association or other financial institution. We find no merit to this contention. In fact, there does not seem to be any substantial evidence to the contrary. The evidence of Security shows that it has had a steady increase in income and that its present annual income, after taxes, exceeds 50% of the original investment. Then too, there is the admission that Security only obtained one loan for each five or six homes built in a new subdivision.
Affirmed.
Fogleman, J., dissents.
APPENDIX
Table 13
RESIDENTIAL CONSTRUCTION CONWAY, ARKANSAS 1968-1972
Units Authorized
One family Multi-family Total value
44 units $1,168,000
13 847,000
73 1.204.000
102 2.004.000
107 3.215.000
1968-1972: 412 units $8,438,000
Table 13A
LOANS MADE IN FAULKNER COUNTY (PRIMARILY CONWAY) BY SECURITY SAVINGS AND LOAN
Year
1968~
1969
1970
1971
1972
Total $7,888,675
Table 13B
VALUE OF NEW RESIDENTIAL CONSTRUCTION IN THE UNITED STATES AMOUNTS FINANCED BY SAVINGS AND LOAN ASSOCIATIONS
Value of new Loans closed by Percent residential savings 8s loan financed by Year construction associations (billions) (billions) savings 8s loan associations
1968 $30.6 $21.3 69.6%
1969 33.2 21.8 65.6
1970 31.9 21.4 67.0
1971 43.1 39.5 91.6
1972 53.9 51.4 95.3
Total $192.7 155.4 80.6%
Table 13C
VALUE OF NEW RESIDENTIAL CONSTRUCTION, CONWAY, ARKANSAS (THOUSANDS)
Loans closed by Loans closed by Security Security Savings 8s Loan as a percentage of new Conway resiSavings & Loan dential constr.
$1,449 124.0%
1,103 130.2
763 63.3
2,128 106.1
2,446 76.0
$7,889 93.4%
Table 15
COMPARISON OF LOCAL SAVINGS AND LOAN MORTGAGE LENDING TO OUTSIDE SAVINGS AND LOANS LENDING IN FAULKNER COUNTY, 1967-1971
Local Savings 8s Loan Outside Savings 8s Loans All Savings 8s Loans Local as Percent of
Number Value Number Value Number Value All Savings & Loans
1967 50 $ 687,750 19 $ 301,550 69 $ 989,300 69.5
1968 100 1,518,814 25 1,023,750 125 2,542,564 59.7
1969 75 1,173,300 40 613,861 115 1,787,161 65.7
1970 58 812,730 21 1,994,899 79 2,807,629 28.9
1971 49 934,650 219 6,701,597 268 7,636,247 12.2
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George Rose Smith, Justice.
Upon a charge of selling a controlled substance (methamphetamine) the appellant was found guilty and was sentenced to eight years’ confinement. For reversal she contends that the court should have directed a verdict in her favor and that the prosecuting attorney was permitted to make an improper closing argument to the jury.
Upon the first point the appellant insists that under Section 41-305 of the new Arkansas Criminal Code the person who made the purchase from her was an accomplice, that his testimony about the sale was not corroborated, and that she was therefore entitled to a directed verdict. This language in the new Code is relied upon: .
Unless otherwise provided by the statute defining the offense, a person is not an accomplice in an offense committed by another person if:
* * *
(b) the offense is defined so that the defendant’s conduct is inevitably incident to its commission. [§ 41-305.]
The Code was not yet effective when the present offense was committed, but Section 41-102 provides that with respect to a prior offense a defendant may elect to have “the construction and application of any defense” governed by the Code. Upon that basis the appellant argues that she made such an election in the trial court and is entitled to rely upon the definition of an accomplice set forth in subsection (b) of § 41-305, quoted above.
We cannot sustain that contention. The appellant is correct in arguing that the subsection in question applies to the person who bought the drug from her, even though it refers to the defendant’s conduct. The section is part of Title 41, Chapter 3, entitled “Parties to Offenses.” Section 41-301 provides that a person may commit an offense either by his own conduct or that of another person. The next few sections refer to an accomplice not, as here, with respect to the need for corroboration of his testimony but, instead, with respect to his accountability for the criminal conduct of another person. Hence the subsection in question applies to the appellant’s vendee, although he is not now the defendant.
Even so, the appellant’s reliance upon the subsection is misplaced, for two reasons. First, the Code provides that with regard to an offense committed before the effective date of the Code the defendant may elect to have the construction of “any defense” governed by the provisions of the Code. This appellant’s argument does not involve a “defense,” as defined in Section 41-110 of the Code. Wholly apart from the Code, our law has long required that the testimony of an accomplice be corroborated. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The State’s failure to adduce proof corroborating the testimony of an accomplice is certainly not a new defense created by the Code, no matter how the word “accomplice” is defined.
Secondly, under the quoted subsection of the Code, the purchaser in this case was not an accomplice, because his conduct was “inevitably incident” to the commission of the offense charged. That is, there cannot be an unlawful sale of a controlled substance unless someone buys it. It is immaterial that this purchaser may have solicited the sale, because, except for entrapment (which is not involved here, as the buyer was not a police officer), it makes no difference whether the buyer solicited the sale or the seller solicited the purchase. The offense is committed in either situation.
The appellant is correct, however, in her second point for reversal. The prosecutor, in his closing argument, told the jury what he stated to be a true story, to show the harmful effect of drugs. He said that in his own home town a 16-year-old boy had been so affected by drugs that he had run after a railroad train, barking and flapping his arms, because he thought it was the train to glory; that later in the evening the boy had broken dishes and a window to avoid restraint; that early the next morning he was choking his mother, thinking her to be the devil; and that he engaged in other irrational conduct before being subdued. The prosecutor went on to say that at the time of the trial, a year later, the boy was at the State Hospital in Little Rock where he was known as the Serpent Boy, because “he moves around down there like a snake, on his belly, and darts his tongue daily and constantly, because he now thinks that he is the evil serpent.” Defense counsel’s objection and motion for a mistrial were overruled by the trial judge, with the statement that “it is proper argument.”
We consider the prosecutor’s statement to have been decidedly improper and manifestly prejudicial. As Wigmore points out, counsel’s arguments to the jury may be based upon matters of fact of which evidence has been introduced or which are so well known as to be the subject of judicial notice. But representations of fact must not be made upon counsel’s own credit, for he would then become a witness without being subject to cross-examination. Wigmore on Evidence, § 1806 (Chadbourn Rev., 1976). We have frequently found it necessary to award a new trial because of counsel’s overzealousness in arguing to the jury matters of fact not supported by the proof. Dillaha v. State, 257 Ark. 476, 517 S.W. 2d 513 (1975); Wilson v. State, 253 Ark. 10, 484 S.W. 2d 82 (1972); Simmons & Flippo v. State, 233 Ark. 616, 346 S.W. 2d 197 (1961). Those cases are controlling here. The prosecutor’s detailed narrative about the Serpent Boy was presented to the jury as a true account, but it had no basis in the evidence. Moreover, the trial court emphasized the error by declaring it to be proper argument. We certainly cannot say with confidence that the remarks were not prejudicial. Complaint is also made with respect to another phase of the closing argument, but there is no reason to expect a recurrence upon a new trial.
Reversed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Elsijane T. Roy, Justice.
Appellant James Pickens was charged with the sale and delivery of a controlled substance, which charge arose as a result of his sale of two LSD tablets to Richard Lott, a police undercover agent. Appellant was found guilty and sentenced to 10 years’ imprisonment and fined $5,000.
On appeal, appellant first contends that the trial court erred in not dismissing jurors who sat on previous consecutive cases involving the sale of controlled substances. Richard Lott was the State’s principal witness against appellant in this case, and also was the primary witness in the earlier cases. However, we find no merit in this contention for the reasons set out in Holland v. State, 260 Ark. 617, 542 S.W. 2d 761 (1976), decided this same day. Also we note that in the instant case appellant’s attorney voir dired the jurors extensively and no prejudice or bias was revealed because of having served on the previous trials.
Appellant next asserts the trial court erred in failing to dismiss, for cause, Juror Elmer Cole during voir dire. In examining Cole the following facts were developed:
MR. ROSS: * * * Mr. Cole, do you have any friends or relatives that are employed in connection with the law enforcement agencies?
JUROR COLE: I have a nephew who is a police lieutenant in L.A.
MR. ROSS: Los Angeles?
JUROR COLE: Yes.
MR. ROSS: Is there anything about that relationship that would cause you to have any preconceived notions about the guilt or innocence of an accused?
JUROR COLE: I am afraid so after hearing him talk about it. He is an undercover man in narcotics.
MR. ROSS: Your Honor, we would submit Mr. Cole.
COURT: What was the basis of that?
MR. ROSS: He has formed an opinion, Your Honor, based upon the fact that he has a nephew who is an undercover law enforcement agent in Los Angeles and his conversations with him.
* * *
COURT: * * * Have you talked with your nephew concerning his work in the Los Angeles area?
JUROR COLE: Not any more than his just telling me his experiences with these dope heads.
COURT: Based upon your knowledge which you have gathered through your conversation with your nephew in reference to his work, do you think that you do have an opinion concerning this type of case which would influence your verdict in the matter?
JUROR COLE: I don’t think so.
COURT: Would you be inclined or tend to give more weight or credibility to a drug undercover agent than you would to any other witness merely because of the fact that he was a drug undercover officer?
JUROR COLE: I don’t think that I would. (Italics supplied.)
When asked several more questions Cole’s responses were clearly equivocal, i.e., “I think so” and “I don’t think so.”
In all criminal prosecutions both the Sixth Amendment to the United States Constitution and the Arkansas Constitution, Article 2, § 10 guarantee the accused trial by an impartial jury. In spite of the rehabilitative efforts of the trial court, we cannot say that Cole’s apparent prejudice was satisfactorily expunged. Ark. Stat. Ann. § 39-105(c) and (e) (Supp. 1975) excludes from petit jury service any person who has “ . . . formed or expressed an opinion concerning the matter in controversy which may influence his judgment;” or who is “. . . biased or prejudiced for or against any party to the cause or is prevented by any relationship or circumstance from ac ting impartially;. . . . ’’ Here, even after court interrogation, residual prejudice remained sufficient to invoke the exclusionary provisions of § 39-105. See also, Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970), where standards controlling juror qualification are outlined in detail. In light of Juror Cole’s presumptive bias and the cited authorities it was error for the trial court not to exclude Cole for cause.
It is not necessary to discuss appellant’s remaining contentions since one is not likely to arise on retrial, and the evidence presented upon the other issue on retrial may differ somewhat from that presented in this case.
Reversed and remanded.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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George Rose Smith, Justice.
Upon convictions for burglary and grand larceny the appellant Higginbotham received two five-year sentences, to run consecutively. For reversal he questions the sufficiency of the State’s proof, the admissibility of a statement made by him, and the trial court’s refusal to submit to the jury the lesser offense of petit larceny.
First, the State’s proof is amply sufficient to support the convictions. On the morning of December 19, 1975, the prosecuting witness, Steve Scobbee, discovered that a pistol and a shotgun were missing from a gun rack in his home. A side door was damaged, as if it had been hit or kicked. Scobbee had known Higginbotham at work for about a week and considered him to be a friend. At some time before the burglary Scobbee’s son had shown Scobbee, in Higginbotham’s presence, that the door in question was improperly hung and could be opened simply by means of a blow.
Upon learning that the two guns were missing Scobbee notified the sheriff’s office and then went in search of Higginbotham. When the two men saw each other they stopped their cars and alighted. Higginbotham, after saying, “Steve, I want to give you your guns back,” took the two missing guns from his car and handed them to Scobbee. Higginbotham also said: “You know I just got out of the penitentiary, and I can’t afford any more trouble. Please don’t call the law on me.” A taxi driver testified that at about 1:00 o’clock on the preceding afternoon he had picked up Higginbotham, as a fare, and had driven him to the Scobbee residence, about five miles out from Wynne. The witness said that Higginbotham knocked on the side door. The witness did not know whether anyone answered the knock, but he did see Higginbotham come out of the house with a pistol, which he made no effort to conceal. On the way back to Wynne, Higginbotham introduced himself and mentioned his employer.
In questioning the sufficiency of the evidence counsel argue that the State failed to prove any criminal intent, because Higginbotham entered the house in the daytime, in the presence of the taxi driver, and voluntarily returned the guns the next day. On the other hand, the jury could have found that Higginbotham forcibly entered the house without permission, took the guns without the owner’s consent, and returned them in the hope of avoiding prosecution. Under our decisions the jury could infer criminal intent from proof that the house had been entered, that the guns had been taken, and that they were in Higginbotham’s possession a short time later, without sufficient explanation. Taylor v. State, 254 Ark. 620, 495 S.W. 2d 532 (1973); Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521 (1935). If the State had to offer additional affirmative proof of criminal intent there would seldom be a conviction for burglary or grand larceny.
Secondly, it is argued that Higginbotham’s statement that he had just gotten out of the penitentiary and couldn’t afford any more trouble was inadmissible, because it implied Higginbotham’s commission of some other offense. Even so, the statement was admissible under the rule that proof of another offense is admissible when it tends to show motive. Shuffield v. State, 120 Ark. 458, 179 S.W. 650 (1915). Proof of Higginbotham’s motive for returning the guns tended to rebut his contention that the original taking was without criminal intent.
It is also argued that after Scobbee testified about the statement in question defense counsel should have been allowed to cross-examine him outside the jury’s presence. In his brief counsel argues that a searching cross-examination might have uncovered grounds for exclusion of the statement. We cannot say that the trial judge abused his discretion in refusing to interrupt the trial for such a fishing expedition. Counsel of course had interviewed his own client before the trial, and his cross-examination of Scobbee shows plainly that he had also interviewed Scobbee before the trial. Thus he had had an opportunity to learn all about the dialogue from the two participants.
Thirdly, it is insisted that the court should have submitted the lesser offense of petit larceny to the jury. A theft is petit larceny if the value of the property taken does not exceed $35.00. Ark. Stat. Ann. § 41-3907 (Repl. 1964). The question is whether the proof would have supported such a finding in this case. Hall v. State, 242 Ark. 201, 412 S.W. 2d 603 (1967).
Scobbee was the only witness as to the value of the guns. He said that four months before the trial he had acquired the .22-caliber 9-shot high standard pistol by trading for it a brand-new pistol for which he had paid $109.00. He described the shotgun as an antique Cannon breach gun, more than a hundred years old. “There weren’t too many guns like that made.” He had paid $35.00 for it some two years earlier and had refused an offer of $150 cash for the gun about eight months before the trial. Scobbee owned two other shotguns and said that once in a while he bought, sold, and traded in weapons.
When the evidence shows conclusively that the value of the stolen property exceeds $35, as in the theft of more than that amount in cash or of property worth a great deal more, such as a new automobile, the lesser offense obviously need not be submitted. At the other extreme, when there are conflicting estimates of value both above and below $35, the lesser offense obviously must be submitted. Neither extreme is presented here.
We have not had occasion to consider cases falling between the two extremes, but decisions in other jurisdictions have emphasized various considerations of importance. Of course the fundamental rule is that an instruction on petit larceny need not be given if the jury cannot reasonably find from the evidence that the value of the property is below that fixed for grand larceny. Three enlightening Kentucky cases arose under a statute classifying as grand larceny the theft of chickens worth $2.00 or more. In Bell v. Commonwealth, 222 Ky. 89, 300 S.W. 365 (1927), one witness valued the two stolen chickens at $25.00. The owner valued them at $1.00 apiece. The court held that the refusal of a petit larceny instruction was not error, because there was no testimony to the contrary. In Henson v. Commonwealth, 242 Ky. 90, 45 S.W. 2d 855 (1932), the owner testified that the 13 stolen chickens were worth more than $2.00, and there was no testimony to the contrary. The court held that there was no reasonable room for a difference of opinion; so it was not necessary or proper to instruct on petit larceny.
On the other hand, in Taylor v. Commonwealth, 240 Ky. 286, 42 S.W. 2d 309 (1931), the owner, in fixing the value of a hen and nine chicks at $2.50, relied in part upon the price of chicks at a hatchery — 15 cents each. The court held that evidence to be vague and unsatisfactory, adding that the jury might be familiar with values from personal observation and common knowledge. Hence the lesser offense should have been submitted.
In State v. Enochs, 339 Mo. 953, 98 S.W. 2d 685 (1936), the minimum value for grand larceny was $30.00. The owner of the three stolen items, which included a wrecking bar worth “about 50 cents,” fixed the total value at $30.25. The court found that figure to be so close to the minimum that the issue of petit larceny should have been submitted. The leeway above the minimum was much greater in Gray v. Commonwealth, 288 Ky. 25, 155 S.W. 2d 444 (1941). There the minimum value for grand larceny was $20. The owner of the stolen welding torch and attachments testified that they had cost $140 and were worth more than $20. The court observed that it would have been better if the prosecution had established the value with more certainty. Nevertheless, the court sustained the trial court’s refusal to submit petit larceny, because “we do not think there could be any question” that the stolen property was of a value of $20 or more.
In the case at bar we uphold the trial judge’s refusal to submit the issue of petit larceny. No one contradicted Scobbee’s testimony. He fixed the cost of the two guns at $144.00, far above the minimum of $35.00. He indicated that he considered the shotgun, for which he had paid $35.00, to be worth more than $150.00, increasing the total estimate to $259.00. He had some expertise in the matter, whereas it is doubtful if the average juror would have any basis for estimating the value of an antique shotgun. Finally, the trial judge had the advantage of observing Scobbee as he testified and of seeing the guns as they were introduced in evidence. In denying the requested instruction on petit larceny the judge stated that the jury, to find that the value of the property did not exceed $35.00, “would have to arbitrarily disregard the evidence in the case.” That statement seems to us to be a fair summation of the situation presented by the proof.
Affirmed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Robert Hays Williams, Special Justice.
This Appeal involves the validity of a gift causa mortis.
Briefly, Stanley Claude Fendley owned the Economy Drug Stores in Little Rock and the Appellee, Johnnie Faye Laster, was his trusted employee for many years. On December 23, 1967, Fendley suffered a severe and disabling heart attack from which he remained hospitalized for approximately two months.
On March 1, 1968, after returning home, he wrote and delivered a check to Johnnie Faye Laster for $10,000.00, which is the subject of the purported gift. In the lefthand corner he penned the following words, “Only Good In Case of Death SCF.”
After the heart attack he only returned to the active management of his business affairs on a part time basis for the period of about a year. He died on June 21, 1973 at the age of 71. Prior to his death, on the 16th day of October, 1972, E. B. Fendley and C.B. Fendley were appointed Co-Guardians of the Person and Estate of Stanley Claude Fendley, because of his mental and physical incompetency.
Fendley died testate and Appellants who were appointed Co-Executors of his Estate, disallowed the claim of Johnnie Faye Laster for $10,000.00. Subsequently, the Probate Court of Pulaski County allowed it as a gift causa mortis.
Under these facts, about which there is no dispute, most of them having been stipulated, there is no question but that Stanley Claude Fendley attempted to make a gift to Johnnie Faye Laster of $10,000.00 and effectively delivered the check representing the money to her. Also, in the opinion of the Court, there is no doubt but that he was apprehensive of death at the time he wrote and delivered the check to her. It is not difficult to conceive his state of mind at that time, having just undergone such a serious brush with death.
We reaffirm the rule announced in the case of Smith, Administratrix, v. Clark, 219 Ark. 751, 244 S.W. 2d 776, that a check may be the subject of a gift causa mortis.
There is no difficulty, therefore, in finding that the subject matter of a gift has been delivered by the donor to the donee at a time when the donor was under the apprehension of death from some existing disease, two of the requirements of a valid gift causa mortis.
The difficulty in this case, however, comes with the third requirement, that is, that the donor must die without recovering from the disease (or surviving the peril).
Did Fendley die without recovering from the disease which placed him in a state of apprehension during the last few days of 1967 and the first two months of 1968?
Under the stipulation of facts, Fendley did not return to full time management of his businsss interests but during the period between the heart attack and his death he did actively conduct some of his business affairs on a part time basis for about one year; and ultimately died from the existing heart condition on June 21, 1973. From the stipulation of the parties with reference to the testimony of John W. McCracken it appears that Fendley and McCracken, during this same period of time, went together to the Ochsner Clinic in New Orleans, Louisiana during which trip Fendley discussed the specific question here involved together with other business and personal matters. He also discussed this matter with Reeves Anderson as well as with the witness, Mrs. L. D. Bursott, and also discussed it with Joe Meek, Jr.
The cause of death as reflected on the Death Certificate signed by the attending physician was “acute pulmonary edema, arterioscleriotic heart disease, congestive heart failure chronic”.
In view of the time that Fendley lived after the apprehensive incident, in excess of five years, and of his activities during that period of time, though limited to some extent, we are of the opinion that it is not reasonable to say that he had not recovered from the disease which caused his apprehension and that the effort to establish a gift causa mortis must fail.
The case of Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57, quoted the rule from Pomeroy’s Equity, 4th Ed., P. 2669, with reference to gifts causa mortis as follows:
“When a gift causa mortis is made during sickness, it is essential, in order to perfect it and prevent a revocation, that the donor should die of the very same sickness from which he was then suffering, and there should be no intervening recovery between the illness and his final death; and it seems that the donee must affirmatively show the existence of all these facts.”
The Courts as well as the text writers agree generally on the essentials as above quoted. None give any great amount of guidance as to what “recovery” should be limited or defined. In the case of Smith, Administratrix v. Clark, supra, the Court did say that in many of the reported cases the gift was made weeks, and even months, before the death of the donor. So that time of life subsequent to the incident is not the sole criteria.
That Fendley did leave his hospital bed and the hospital and did show some interest and activity in his business is at least convincing evidence that he “recovered” from the depth of the disease that caused him to be overly concerned about his chances of prolonged life. This, in addition to five years of prolonged life, convinces the Court that there was an intervening recovery between the illness and his final death.
This cause is, therefore, reversed and remanded to the Lower Court with directions to enter its Order consistent herewith.
Special Justice Sam Hilburn joins in this opinion.
Jones, J., dissents.
Holt and Roy, JJ., disqualified and not participating. | [
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Frank Holt, Justice.
This appeal is from a proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), Ark. Stat. Ann. § 34-2401, et seq. (Supp. 1975) in which appellant sought enforcement of a child support order which was rendered in a Tennessee divorce action between herself and appellee. Here, by the provisions of the Act, Tennessee is the initiating state and Arkansas the responding state. Upon trial of the cause, the Arkansas chancellor considered that a change in circumstances had affected appellee’s ability to pay. Therefore, the court reduced his payment from $400 a month to $25 a week for the support and maintenance of his two minor children. The payments, however, were made contingent upon the appellant making their children available to appellee for visitation both in Tennessee and at appellee’s home in Fort Smith, Arkansas. From that portion of the order making the support payments contingent on visitation rights, appellant brings this appeal. Appellant contends that the Arkansas trial court had no jurisdiction to adjudicate the visitation rights of the parties in a proceeding under the URESA and, therefore, it was error to make the child support payments contingent upon visitation rights. We must agree.
§ 34-2401, the first section of the Act, states: “The purposes of this Act are to improve and extend by reciprocal legislation the enforcement of duties of support.” § 34-2423 provides:
If the action is based on a support order issued by another court, a certified copy of the order shall be received as evidence of the duty to support, subject only to any defenses available to an obligor [appellee] with respect to paternity as provided in § 27 hereof or to a defendant in an action or a proceeding to enforce a foreign money judgment.
Further, § 34-2432 states: “Participation in any proceeding under this Act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding. ” Obviously, the Act is intended to facilitate enforcement of support orders rendered in our sister states by way of an exparte proceeding whereby a duly rendered valid support decree is prima facie evidence of the obligor’s duty. The URESA is a uniform law, remedial in nature and purpose, and should be liberally construed in order to effectuate its purpose to accomplish and enforce the duty of a parent to support his children. State of Illinois v. Sterling, 80 N.W. 2d 13 (Minn. 1956). There it was also said that parental visitation rights are governed by the laws of that state, Tennessee here, where the divorce was secured. Consequently, the visitation rights or the enforcement of them should be addressed to the Tennessee court where the appellant mother and children continue to reside following the divorce action there. That is the court which has continuing jurisdiction over the parties as to visitation rights.
Reversed.
We agree: Harris, C.J., and Byrd and Roy, JJ. | [
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John A. Fogleman, Justice.
On December 23, 1974, the Board of Directors of the City of Fort Smith adopted Ordinance 3224 vacating and abandoning a block of Birnie Avenue between Midland Boulevard and North 32nd Street. The city’s action was initiated by the petition of Safeway Stores, Inc., the owner of all the abutting property on both sides of Birnie Avenue between Midland and North 32nd Street. It was filed October 23, 1974, and was followed by a public hearing on December 3, 1974, at which presentations about the closing were made by the city’s Director of Planning and by the attorney for the petitioners. No one spoke in opposition to the proposed action, although notice was published twice in November.
The portion of the street affected was dedicated as Prairie Avenue by the filing of a plat of Kelley’s Addition to Fort Smith in 1906. Birnie ends at Midland on the west and Albert Pike on the east. Pryor Avenue is one block, and Kelley Highway, two blocks, south of Birnie. Wirsing is one block, and Johnson, two blocks, north. The street right-of-way was 50 feet wide but the paved portion was only 20 feet wide. There was a dip in the street between Midland and North 32nd where a branch or drainage ditch crossed it. After heavy rains, Birnie was rendered impassable for a time. Continued washing made maintenance difficult on this part of the street.
Midland Boulevard is one of the main traffic arteries in Fort Smith. It consists of three lanes of traffic in each direction, divided by a median. It carries 16,000 vehicles per day. It runs diagonally in a northeasterly-southwesterly direction. Albert Pike is a heavily travelled street connecting with Midland, north of Birnie. North 32nd Street between Kelley Highway and Spradling are also arterial streets. There are no residential uses of the property abutting the portion of Birnie vacated.
Immediately after the petition was filed, Safeway Stores conveyed the property on both sides of Birnie to Wal-Mart Properties, Inc., who then planned to build a shopping center on it.. The latter corporation promptly conveyed the south one-half of the right-of-way to the City of Fort Smith, and it will be used for utilities. No one questions the fact that the closing of the street was critical to the shopping center plans, as it enables the abutting property owner to build a shopping center on one side and a parking lot on the other without a street intervening.
In the ordinance, the Board of Directors of the city specifically found that the right-of-way was not required for corporate purposes, that no public inconvenience would result from the closing, that the owners (who were the petitioners) had consented to the abandonment, and that the public interest and welfare would not be adversely affected.
On December 22, 1974, appellee Buck Jones, petitioned the Chancery Court of Sebastian County to enjoin the closing of the street, alleging that the ordinance violated Ark. Stat. Ann. § 19-3825 (Repl. 1968) and that Brooksher v. Jones, 238 Ark. 1005, 386 S. W. 2d 253 barred the closing of this portion of the street, as res judicata. Appellee Harvel was added as a plaintiff by an amended petition. Another amendment filed on the day before the trial alleged that the action of the city in adopting the ordinance was arbitrary, capricious, unreasonable, not for any public purpose, and in violation of public safety. The decree from which this appeal was taken declared the ordinance null and void and enjoined the city from carrying it into effect. On trial de novo, we reverse.
We first quickly dispose of appellees’ argument that this case is governed by our decision in Brooksher v. Jones, supra, in which an ordinance closing the same portion of Birnie Avenue was held void. The chancery court correctly rejected appellees’ plea of res judicata, even if the parties are considered as identical. In Brooksher, we expressly disavowed any intention to hold that the city could not vacate the street under Ark. Stat. Ann. § 19-2304 (Repl. 1968) under any circumstances. We restricted the holding to the undisputed facts then before the court. The critical distinction is that as we have twice previously pointed out, there was no finding by the city governing board, or other evidence, that this portion of Birnie Avenue was not required for corporate purposes, as there was here. Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59; City of Little Rock v. Linn, 245 Ark. 260, 432 S.W. 2d 455. Evidence in the present case shows that traffic on Birnie Avenue has declined since the trial in Brooksher. The only evidence on the subject then was that closing of this portion of the street would work a hardship on many people. The preponderance of the evidence is to the contrary here. So Brooksher is not controlling here, either as res judicata or binding precedent.
We just as quickly dispose of appellees’ contention that the power of the city to close the street under Ark. Stat. Ann. § 19-2304 was limited by § 19-3825. The very words of the opinion in Brooksher, supra, relied upon by appelles so strongly as res judicata, clearly indicate the contrary. The same indication is also clearly implicit in our decisions in Stephens v. City of Springdale, 233 Ark. 865, 350 S.W. 2d 182; Roberts v. Pace, 230 Ark. 280, 322 S.W. 2d 75; Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949, cert. den. 350 U.S. 965; and Cernauskas v. Fletcher, 211 Ark. 678, 201 S.W. 2d 999. See also City of Little Rock v. Linn, supra.
The city challenged the standing of appellees to bring the action. Appellee Harvel had resided for 30 years at 2620 North 37th Street in Prairie View Addition, which is at the corner óf North 37th Street and Birnie Avenue. This is five blocks from the strip closed by the ordinance. Appellee Jones’ property is at 4817 South V Street, far removed from Birnie Avenue. Jones also has some interest in a tract at 3620 North 6th Street, which is also quite distant from the strip of street being vacated.
It is well settled that appelles, as citizens and taxpayers did not have standing to challenge the city’s action. City of Little Rock v. Linn, supra. Relief is available to those who suffer special and peculiar injury or damage, but this special injury or damage must be such as is not common to the public in general and not just a matter of general public inconvenience.
No attempt was ever made to show that appellee Jones had suffered special damages which would give him standing to challenge the street closing. Harvel attempted to show special damage by reason of diminished fire protection and inconvenience of travel. He based his contention about fire protection upon the location of fire plugs and additional turns required at square corners. He had been a District Fire Chief in Fort Smith before his retirement. He said that the number one response company for his area would come south on Albert Pike and west on Birnie to his property and not use the closed portion at all. The number two response company is west and south of his property and according to his information would proceed to Kelley Highway, on Kelley to Midland, thence left on Midland, on Midland to Birnie and then left on Birnie. He said that square turns at Kelley and North 32nd and at Pryor and North 32nd would be more difficult for fire equipment than the angle turn to the right at Midland and Birnie. Harvel said that if Birnie were closed, he would have to drive to Kelley Avenue to enter Midland when he travelled downtown. He could also travel north on North 32 nd Street to enter Midland. At each of these alternate intersections there is a traffic light, but there is none at the west end of Birnie. Harvel said he would have to make an extra turn in travelling either alternate route and he objected to having to wait at traffic lights before entering Midland. He also testified that it would be more difficult for ambulances and the police to locate and reach his residence.
Harvel had retired in 1971 and admitted that he did not know the present plans of the fire department for responses to his neighborhood. The Fort Smith Fire Chief said that he had never used Birnie Avenue as a response route and had never heard of its being used as a response route in his 33 years in the department, that there was no need for fire response vehicles to use Birnie between Midland and North 32nd Street, that the equipment approaching Harvel’s property would leave Midland at Kelley Highway and proceed on North 32nd Street to Birnie, and that the square corners could be turned without much difficulty. He had been consulted about the effect of the closing by the Planning Director. Some persons who used streets in the area testified that it was easier to enter Midland at intersections controlled by traffic lights than at Birnie where there was no light, and that many people who travelled Birnie actually entered Midland by first going south to Kelley or north two blocks to Johnson, which intersection with Midland was also light-controlled. There was testimony by the city’s Director of Planning that it is more desirable that traffic be funnelled to an arterial street via a collector street or another arterial street, rather than by way of a local street, such as Birnie. The Director of Planning and Transportation for the Western Arkansas Planning and Development District testified that it was extremely difficult to enter Midland from Birnie because of the heavy Midland traffic and the difficulty of executing a right hand turn from Birnie because of the angle of intersection.
Appellees are in no better position than were the protestants in Linn and Risser. Appellees attempt to distinguish City of Little Rock v. Linn, supra, on the basis that the vacation of the strefet in that case was under an exception to Ark. Stat. Ann. § 19-3825. This is an incorrect reading of Linn. In that case, we held the closing valid under both §§ 19-2304 and 19-3825, the petition for closing having been under both sections.
Assuming that a citizen and taxpayer has standing to at tack an ultra vires act of the city, appellees have failed to show that the ordinance was ultra vires. It is true that the city governing board cannot sell, give away or exchange the streets of a city without the consent of abutting owners or without statutory authority and that any attempt to do so is ultra vires. Beebe v. City of Little Rock, 68 Ark. 39, 56 S.W. 791. But we do not consider that there has been any sale, exchange or gift of the city streets in this case. The abutting owners consented and the city had statutory authority to vacate the street when it was no longer needed for corporate purposes under Ark. Stat. Ann. § 19-2304. In making this determination, the city’s governing board had a very wide latitude of discretion. City of Little Rock v. Linn, supra. We cannot say that this discretion was so abused under the circumstances as to make the ordinance involved ultra vires. While we held in Risser that a contract for the permanent abandonment of city streets would be ultra vires, there is no evidence of any contract in this case. A conveyance to the only abutting owner is not prohibited. Barbee v. Carpenter, 223 Ark. 660, 267 S.W. 2d 768. Nor is a vacation of a street for the benefit of the abutting owner if the street is not needed for corporate purposes. Kansas City Southern Ry. Co. v. City of Ft. Smith, 228 Ark. 625, 309 S.W. 2d 315; City of Little Rock v. Linn, supra.
Appellees, however, attempt to extend the rule of Risser by their contention that, as beneficiaries of the public trust under which the streets were held by the city, they are entitled to attack the action as a gift of trust property without consideration and in violation of Art. 5 § 21 of the Arkansas Constitution. Mr. Harvel testified that he did not see why the city could not take bids on the portion of the street closed and sell it. It is vigorously argued on his behalf that this should be done and, because it was not done, appellees have standing to challenge the city action. It is also argued that the property should have been devoted to other corporate uses.
This argument is based upon a misconception of the character of the title of the city to the street right-of-way and of its corporate powers. Appellees argue that under Ark. Stat. Ann. § 19-2304, the city could use the lands for other public or municipal objects or purposes, or sell it and use the proceeds for such purposes. Appellees rely heavily upon such cases as Goodman v. Powell, 210 Ark. 963, 198 S.W. 2d 199, which only goes to the question of equity jurisdiction in a case involving a public square. It does not support their argument as to standing in this case, however, involving streets dedicated by the filing of a plat and accepted by the city. The property which can be so used or sold is only lands which have been acquired by or donated to the city. The ownership of the fee in the Birnie Avenue right-of-way remained in the abutting owners together with all rights not inconsistent with the public use to which the property was dedicated. Lincoln Hotel Co. v. McGehee, 181 Ark. 1117, 29 S.W. 2d 668. Taylor v. Armstrong, 24 Ark. 102; Town of Hoxie v. Gibson, 150 Ark. 432, 234 S.W. 490. When a city vacates a street in which it has only an easement, it has no further rights in the property. Kansas City Southern Ry. Co. v. City of Ft. Smith, supra. It cannot be sold by the city but passes to the abutting owners. Beebe v. City of Little Rock, supra; Arkansas River Packet Co. v. Sorrels, 50 Ark. 466, 8 S.W. 683; Town of Hoxie v. Gibson, supra. Neither can the city devote the street to another public use even though the legislature may have attempted to authorize such action, because to do so would impose an additional servitude upon the land in violation of the rights of the abutting owner, who would have the right to enjoin such use. Lincoln v. McGehee Hotel Co., supra; Arkansas River Packet Co. v. Sorrels, supra; City of Osceola v. Haynie, 147 Ark. 290, 227 S.W. 407. But a non-abutting owner, such as both appellees, could not enjoin the action, unless he could show special and peculiar injury not suffered in common with the general public. Arkansas River Packet Co. v. Sorrels, supra. See also, State v. City of Marianna, 183 Ark. 927, 39 S.W. 2d 301. Cf. Campbell v. Ford, 244 Ark. 1141, 428 S.W. 2d 262; Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S.W. 2d 35.
Since there is no theory upon which appellees had standing to challenge the ordinance in question, the decree is reversed and the cause dismissed.
In Brooksher, the only finding as to the basis for the action of the City Commission was that it was for the purpose of allowing Safeway Stores, Inc. to erect buildings on the vacated portion of the street. | [
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Elsijane T. Roy, Justice.
Appellees instituted this action to enjoin the Secretary of State from certifying to the appropriate election officials Proposed Constitutional Amendment No. 58. Thereafter the Arkansas Medical Society was granted permission to intervene as party-defendant.
Appellees contend inter alia that House Joint Resolution No. 17 (H.J.R. No. 17) was not passed with the formalities required by Article 19, § 22 of the Arkansas Constitution. The trial court agreed with appellees and held that the House and Senate had adopted different versions of H.J.R. No. 17 and that the popular name and ballot title of the proposed amendment “are not in accordance with existing case law . .. . ” Accordingly, the court enjoined the Secretary of State from taking any further action to place Proposed Constitutional Amendment 58 on the ballot. From said decree this appeal is pursued.
We review the record to see if constitutional requirements have been met. There is no dispute as to what the journals of the House and the Senate reflect. H.J.R. No. 17, in pertinent part, reads as follows:
SECTION 1. Amendment twentysix (26) to the Constitution of the State of Arkansas is hereby amended to read:
The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payments shall be made. It shall also have the power to enact laws prescribing the amount of compensation to be paid to persons for injuries or death caused by malpractice performed by practitioners of the healing arts as classified by Title 72 of the Statutes of the State of Arkansas. It shall have power to provide the means, methods and forum for adjudicating claims arising under said laws and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the general assembly shall prescribe for whose benefits such action shall be prosecuted. (Italics supplied.)
On January 16, 1976, H.J.R. No. 17 was amended (Amendment No. 3) by striking lines 29 and 30 on page 1 and substituting the following:
To persons for injuries or death caused by malpractice performed by hospitals, nursing homes, certified registered nurse anesthetists, and by practitioners of the healing arts as classified by Title 72 of the Statutes.
The House journal shows the amendment was adopted by more than 51 votes, but the yeas and nays were not recorded.
On January 19, 1976, H.J.R. No. 17 was again spread on the record of the House journal as originally introduced but without making the changes indicated in Amendment 3.
Later the resolution was amended (Amendment 4) by deleting the phrase “as classified by Title 72 of the Statutes of the State of Arkansas,” with the yeas and nays being recorded.
On January 26, 1976, the resolution as a whole was read in the House the third time, with the yea and nay vote being recorded, but again the words of Amendment 3 “by hospitals, nursing homes, certified registered nurse anesthetists” were omitted.
The Senate journal indicates that when H.J.R. No. 17 was called up for a third reading and final passage, it was spread upon the journal, in extenso, with the yea and nay vote recorded. The resolution of the Senate included the words “by hospitals, nursing homes, certified registered nurse anesthetists” which did not appear in the H. J.R. No. 17 as finally adopted by the House.
Article 19, § 22 of the Arkansas Constitution in pertinent part reads as follows:
§ 22. Constitutional amendments.-Either branch of the General Assémbly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays.....(Italics supplied.)
In McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925), this Court stated:
We have decided that the provision in § 22, art. 5, requiring the yeas and nays to be entered on the journal on the final passage of a bill, is mandatory, and that the omission renders an enactment void. Smithee v. Garth, 33 Ark. 17; State v. Bowman, 90 Ark. 174; Butler v. Board of Directors, 103 Ark. 109.
In Bryant v. Rinke, 252 Ark. 1043, 482 S.W. 2d 116 (1972), we reaffirmed that where the journal, after attempted corrections, did not reflect the yea and nay votes on two resolutions after amendment, as required by Article 19, § 22 of the Arkansas Constitution, these defects were fatal to the resolution.
In Coulter v. Dodge, 197 Ark. 812, 125 S.W. 2d 115 (1939), we stated:
* * * In other words, it was essential that the journals of both the House and Senate show definitely and certainly what amendment had been approved for submission, and that both the House and the Senate had concurred in the submission of the same amendment, and that the journals of the two Houses, when read together, make this fact definite and certain.
In distinguishing the case from McAdams, supra, the Court said:
* * * Had the House amended the Senate resolution, as was done in the case of McAdams v. Henley, supra, then it would have been necessary for the House to enter the resolution as amended, in extenso, upon the journal of the House, and if the Senate concurred in the amendment made by the House, it would also have been necessary for the Senate to again enter upon its journal the amended resolution, thus showing its concurrence therein. * * * (Italics supplied.)
The entries here do not reflect that the same proposal to amend the Constitution was entered upon the House journal and the Senate journal. Amendment 3 was adopted by viva voce vote, the yea and nay vote not recorded in the House journal, and, furthermore, this amendment was not spread upon the record in the final passage of H.J.R. No. 17 by the House. Thus the House and Senate versions of the proposed amendment clearly differ.
Appellants contend, citing the Coulter, supra and McAdams, supra, cases, that if the Court looks at the “complete record of the passage of this resolution it can come to no other conclusion but that the House and the Senate passed the same versión of this resolution.” We cannot agree for to reach this conclusion we would have to assume or presume that the final vote of the House was a mistake and that the House did not intend to vote on H.J.R. No. 17 as it is reflected in the journal. We cannot make this assumption or rewrite the journals, but must scrutinize them as recorded.
In Rice v. Palmer, 78 Ark. 432, 96 S.W. 396 (1906), this Court quoted with approval from Collier v. Frierson, 24 Ala. 100 (1854), stating:
The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required or the requisitions enjoined, if the Legislature or any other department of the government can dispense with them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.
We are compelled by the record before us to find that constitutional procedures were not followed when the General Assembly adopted Proposed Constitutional Amendment 58.
Appellees also contend, and the trial court found, that the ballot title and popular name failed to meet the requirements of the law. In view of our decision on the first point it is unnecessary to discuss this issue.
For the foregoing reasons, we affirm the decree of the chancellor holding that Proposed Constitutional Amendment 58 should not be placed on the election ballot, and the injunction previously entered is made permanent.
Affirmed. | [
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John A. Fogleman, Justice.
Otis Hinton was found guilty, by a jury, of the crimes of robbery by use of a firearm, kidnapping and assault with intent to rape. He seeks reversal alleging that the court erred in permitting Mrs. Georgia Ruff, the alleged victim, to identify him, that the evidence was insufficient to prove assault with intent to rape and that his sentence was excessive and constituted cruel and unusual punishment.
The robbery was committed on December 17, 1974, at approximately 7:00 p.m. The robbers took Mrs. Ruff away from her grocery store in Round Pond after one of them had struck her on the head with a pistol. She was forced into the back seat of an automobile which was driven from the scene by one of the robbers to a point on a rural road near Widener. During the trip one of the robbers got into the back seat with Mrs. Ruff. She testified that it was appellant. She said appellant tried to put his hands “up her dress” and when she fought him, he told her to move her hands or he would beat her brains out. She added that when she continued to fight appellant, he hit her three times with a pistol and then returned to the front seat of the car, which was shortly thereafter stopped along the road. Then, according to her, she was directed by appellant to get out of the car and, when she did, both of the robbers started trying to remove her underclothes. She stated that shortly thereafter the two fled when one of them detected the approach of another automobile.
The police investigating the crime, in checking the area where the robbers had stopped their automobile, found a pistol which they traced into appellant’s possession a short time before the robbery. Appellant was taken into custody on December 19 and placed in the St. Francis County jail. He was advised of his constitutional rights. He refused to sign a waiver of his rights and advised the officers that he had an attorney. A “lineup” was conducted on Friday, December 20 at which appellant was identified by Mrs. Ruff as one of the robbers. At the trial she testified that appellant was the one who held a gun on her at the store, struck her in the face with the pistol in her living quarters, got in the back seat of the car with her and tried to put his hand under her dress, and with his companion tried to remove her clothing after they stopped the car. Appellant was charged with the crimes of which he was found guilty by information filed on January 29, 1975.
Appellant’s motion to suppress the lineup identification was heard and denied on August 19, 1975, before the trial commenced. In his motion, appellant alleged that the identification should be suppressed because he was forced to participate in the lineup without the benefit of counsel, and that he was forced to confront the victim in a small hallway with several other prisoners, at which time he was called by name and asked to stand directly under a light in the room. He asserted that the procedure was impermissibly suggestive and gave rise to a substantial likelihood of irreparably mistaken identification.
One facet of appellant’s argument on this point is the fact that the lineup was held without his attorney being present, and, as a matter of fact, without any effort being made to notify the attorney or even ascertain his identity. It is sufficient to say that appellant was not entitled to the assistance of counsel at the lineup conducted before the commencement of prosecutorial proceedings by the filing of an information against him. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); Pollard v. State, 258 Ark. 512, 527 S.W. 2d 627; King v. State, 253 Ark. 614, 487 S.W. 2d 596.
We cannot say that there was error in the denial of appellant’s motion to suppress or the circuit judge’s finding that the pretrial identification proceedings were not so impermissibly suggestive as to give rise to any substantial likelihood of irreparable misidentification. There were five persons in the lineup. The victim had viewed an earlier one in which appellant was not a participant and did not identify anyone. She said that she had not looked at a group of pictures shown her by Deputy Sheriff Irwin between the time she reported the incident and the lineup. Appellant contends the group included pictures of him and his brother that were newer and different in characteristics from the others, most of which were “penitentiary pictures.” There was testimony that an officer, by calling appellant by name and directing him to stand under a light, directed attention to him so that Mrs. Ruff immediately connected him with the crime. The evidence on this point is in considerable conflict and we must defer to the judgment of the trial judge on credibility of the witnesses. Anthony King, a jail inmate who was a participant in the lineup said that, after viewing the lineup for four or five minutes, Mrs. Ruff had not identified anyone until the jailer (Buford Hopkins, called “Jackie”) told Otis Hinton to move under the light, calling him by name. Charles Pruitt said “they” told Otis to move under the light, but said that the lineup participants were told to move under the lights “before the people came in.” Appellant said that it was Irwin who directed him, by name, to stand under the light, and that Irwin made a gesture with his hand at the time, and all but put his hand on appellant’s shoulder. He said that he was the first to be directed to move under the light. Appellant denied that he and the others were told to move under the light before Mrs. Ruff came in. Mrs. Ruff testified that nothing was said during the lineup. The jailer testified that he did not say anything to anyone during the course of the lineup.
On the other hand, Mrs. Ruff stated positively that her identification was based upon her observation of appellant on the evening of the crime. She said she was only three feet from him in the store when she first saw him and had opportunities to see his face as the robbers’ automobile passed under lights while she was lying in the floor of the back seat. She said that he was the one who got into the back seat and was trying to put his hand up under her dress and that she was fighting with him.
The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, even if we should find that the lineup was impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). When we consider the opportunity the witness had to view her assailant during the progress of the crimes committed against her, her attention to her assailant, her certainty of identification at the lineup, at the suppression hearing and in the courtroom, after she had failed to identify anyone in a previous lineup, and the short period of time elapsing between the crime and the lineup, and when we resolve the questions of credibility as to suggestive procedures at the lineup as the trial judge did, we cannot say that the trial court’s finding that there was no substantial likelihood of irreparable misidentification was erroneous.
We find sufficient evidence to raise a question for the jury as to appellant’s intent to rape Mrs. Ruff. We recognize that this intent must be evidenced by some overt act which constitutes the beginning of, or a part of the perpetration of the offense and not merely a preparation therefor. But the intention to have sexual intercourse with the victim by force may be ascertained from acts or words connected with an assault and any overt act toward accomplishment of the purpose. It may be inferred from the circumstances surrounding the assault. See Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362. Appellant argues that, because it was not shown that he ever attempted to remove his clothes, or that he put his person in condition or position to perform the act of sexual intercourse, there was not sufficient evidence of intent. We cannot accept that argument, when all the circumstances are considered. In addition to the testimony about appellant’s conduct in the back seat of the car, Mrs. Ruff said that immediately upon stopping the car and ordering her out of it, the two robbers commenced trying to undress her, removed her underclothing, and when she vigorously resisted them, one of them said to the other “can you get to her” and, when he received the response “not yet,” “throw her over the car,” but both fled soon after they had thrown her over the car when one of the assailants thought he saw another automobile approaching. This evidence was sufficient to support the jury verdict. See McGee v. State, 215 Ark. 795, 223 S.W. 2d 603.
Appellant was sentenced to consecutive sentences of 21 years for robbery, 15 years for use of a firearm, 3 years for kidnapping and 21 years for assault with intent to commit rape, all of which were maximum sentences. He admits that the trial judge has the discretion to make the sentences run consecutively, but argues that for the court to do so when all of the crimes were in one course of events and all were maximum sentences was such an abuse of discretion as to constitute cruel and unusual punishment. First we should say that the court’s discretion includes the discretion to make maximum sentences run consecutively. Actually the sentences would run consecutively unless the trial court deemed a concurrent sentence or sentences best for society and the person convicted. Ark. Stat. Ann. § 43-2312 (Supp. 1975). We cannot say, on the record before us that the trial judge did not act for the best interest of both society and the appellant, whose interests must be balanced.
The constitutional prohibition is directed toward the kind of punishment imposed, not its duration. Williams v. State, 125 Ark. 287, 188 S.W. 826. The fact that punishment is severe does not make it cruel or unusual. Thom v. State, 248 Ark. 180, 450 S.W. 2d 550. We have held that the imposition of a maximum sentence for an offense is not cruel or unusual punishment. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687. See also Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. We have rejected the argument that the cumulative effect of consecutive sentences makes punishment cruel and unusual. Blake v. State, 244 Ark. 37, 423 S.W. 2d 544. We have also held that making sentences consecutive is not cruel or unusual. Holmes v. State, 257 Ark. 871, 520 S.W. 2d 715; Thom v. State, supra.
The constitutional prohibitions against cruel and unusual punishment are primarily addressed to the legislative branch. Blue v. State, 224 Ind. 394, 67 N.E. 2d 377, cert. den. 330 U.S. 840, 67 S. Ct. 976, 91 L. Ed. 1286 (1946); Brown v. State, 157 Fla. 853, 13 S. 2d 458 (1943). Appellant does not contend that the maximum sentence for any of the offenses of which he was found guilty is cruel and unusual punishment. In order to be judicially held to be so, the statute must provide punishment so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstance. Ex parte Brady, 70 Ark. 376, 68 S.W. 34. In that case, it was said that punishment is not cruel and unusual where the reason for the severity of the punishment is found in the number of offenses committed by the defendant and not in the undue severity and cruelty of the statute. Punishment authorized by statute is never held cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, supra; Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719.
The cumulative effect of our decisions is that the exercise of the court’s discretion to make maximum sentences on each one of multiple offenses consecutive does not in and of itself constitute cruel and unusual punishment. This was the effect of our decision in Thom v. State, supra, where a total sentence of 63 years was imposed, even though it may not have been apparent from reading the opinion without reference to the permissible punishment under the applicable statute for the offense there charged. It is not for us to say that the punishment here is cruel and unusual, unless we could say that it was so disporportionate to the nature of the offenses involved as to shock the moral sense of the community. We cannot. Nor can we say that the punishment is excessive. See Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.
The judgment is affirmed. | [
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Conley Byrd, Justice.
This petition for writ of prohibition arises out of an action filed by Southern Equipment & Tractor Co., Inc. of Little Rock against Petitioner Jimmie Lee Jones following the repossession and sale of two pieces of heavy earth moving equipment. On November 25, 1975, a jury found that Southern Equipment was not entitled to its claimed deficiency in the amount of $26,241.26. Immediately following the jury’s verdict, Southern Equipment orally moved for judgment notwithstanding the verdict which the court requested be filed in writing with brief pursuant to court rules. Southern Equipment filed its motion and brief on December 8, 1975. Responding and reply briefs were then filed with the last brief being filed on January 6, 1976. That term of court expired on the third Monday in March, 1976. However, on April 21, 1976, the trial court notified the attorneys that the motion for judgment N.O.V. was being denied but that he was treating the motion as a motion for new trial and was granting a new trial because he was of the opinion that the verdict of the jury was contrary to the evidence. Petitioner by written motion immediately objected to the jurisdiction of the court after term time to grant a new trial upon a nonverified motion. That motion and Southern Equipment’s response were submitted to the trial court and in denying the Petitioner’s objection to the granting of the new trial, the trial court wrote the parties as follows:
“I have considered your Petition for Writ of Error Coram Nobis, and find that it should be denied for the following reasons:
On November 25, 1975, this cause was tried by a jury, and a verdict rendered. On that day, the attorney for the Plaintiff orally moved for a Judgment N.O.V. and I directed him to prepare and file a written motion with brief, which he subsequently did on December 8, 1975. This was well within the 30-day period set by the statute referred to in both briefs.
Due to the press of business of the Court, including a number of items assigned to the Court by the Arkansas Supreme Court in other parts of the state, it was impossible for the Court to conclude this matter until on April 21, 1976, the Court’s order was entered treating the Motion as a motion for new trial and granting it. The term in which the case was tried was the September 1975 term of this court, and that term had expired on the day before the third Monday in March, 1976.
Your Petition raises the question of whether the expira tion of the term, in and of itself, divested this Court of jurisdiction to enter an order granting a motion for new trial. The Court finds that such jurisdiction remained, and that the order was proper under the circumstances.”
To avoid the fact that a trial court’s discretionary jurisdiction to grant a new trial generally lapses with the term of court, Reasor-Hill Corporation v. Golden, Judge, 220 Ark. 100, 247 S.W. 2d 9 (1952), Southern Equipment relies upon Ark. Stat. Ann. § 27-2106.4 (Supp. 1975), which provides:
“. . . It shall be the duty of the party filing any motion provided for in the preceding section to present the same to the trial court within thirty [30] days from the date of filing and if the matter cannot be heard by the trial court within thirty [30] days, or for any good cause either party shall not be ready for final hearing within thirty [30] days, the moving party shall, within said period of thirty [30] days, request the trial court to set a definite date certain for hearing of such motion. Unless the motion shall have been presented to the trial, court and taken under advisement within thirty [30] days from the date of its filing, or the trial court shall have set a date certain thereafter for hearing on the motion, it shall be deemed, for purposes of this act [§§ 27-2106.3 —27-2106.6], that the motion has been finally disposed of at the expiration of thirty [30] days from its filing, and time for filing of notice of appeal shall commence to run at the expiration of thirty [30] days from the filing of such motion. If the said motion shall have been presented to the trial court and taken under advisement, or the trial court shall have fixed a date certain for hearing thereof within thirty [30] days from its filing, said motion shall not be deemed to have been disposed of until the trial court shall enter its order granting or denying the motion. The expiration or lapse of a term of court or commencement of a subsequent term shall not affect the power of the court to take any action herein provided, or the time for filing notice of appeal. ” (Emphasis supplied). [Acts 1963, No. 123, § 2 p. 345.]
Assuming that the motion for judgment N.O.V. could be treated by the trial court as a motion for new trial, we are un able to find any evidence in the record either written or oral that the motion was either presented to the trial court or that the matter was taken under advisement by the trial court within the time required by Ark. Stat. Ann. § 27-2106.4 supra. Because the statute places the duty of presenting the motion to the trial court upon the moving party and because we recognized in St. Louis S.W. Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966), that situations such as has occurred here might arise, we there stated:
“On May 25, still within thirty days after the filing of the motion, the appellant’s attorney took the precaution of asking Judge Light to send him a letter stating that he had taken the matter under advisement. This request was wise; for, to avoid the uncertainties of oral testimony, it is evidently desirable that a docket entry, order, or other written, dated record be made at this point. On May 27 Judge Light wrote counsel that he had taken the motion under advisement.”
Since the record does not show that the motion was presented to the trial court and taken under advisement within the time required by Ark. Stat. Ann. § 27-2106.4, supra, it follows that the trial court’s jurisdiction to grant the motion for new trial expired with the lapse of the term of court.
Furthermore, we agree with petitioner that the trial court was without jurisdiction to treat the motion for judgment notwithstanding the verdict as a motion for new trial after the lapse of the term of court. The rule with respect to amendment of pleadings after the running of the statute of limitations was set forth in Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951), in this language:
“Our cases hold that where there is an amendment to a complaint stating a new cause of action or bringing in new part'es interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired. In other words, if the plaintiff amends his complaint after commencement of the suit bv introducing a new cause of action, the statute con tinues to run until the filing of the amendment which does not relate back to the commencement of the suit. Wood v. Wood, 59 Ark. 441, 27 S.W. 641, 28 L.R.A. 157; Buck v. Davis, 64 Ark. 345, 42 S.W. 534; Love v. Couch, 181 Ark. 994, 28 S.W. 2d 1067. If, however, the amendment to the complaint does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, then the amendment relates back and takes effect as of the date of the commencement of the original action. Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkville, 96 Ark. 387, 131 S.W. 963.”
The motion for judgment notwithstanding the verdict definitely stated that it was a motion for judgment in favor of Southern Equipment. Consequently, Southern Equipment could not after the lapse of the term file an amendment to the motion requesting a new trial because it would be impossible to say that such a motion was an amplification of the motion for judgment N.O.V. Since the running of the term would have prevented such an amendment by Southern Equipment, we can think of no reason to permit the trial court, after the lapse of the term, to do the same thing for any discretion which the trial court may have had at the time of trial would also have lapsed with the expiration of the term of court.
Writ granted.
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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HART, J.,
(after stating the facts). In Fort Smith v. Hunt, 72 Ark. 556, the court held that a tax on an electric company for the use of its streets is valid so long as the amount exacted therefor is reasonable.
In Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160, it was held that where telegraph companies engaged in interstate commerce, carry on their business so as to justify police supervision,' the municipality is not obliged to furnish such supervision for nothing, but it may in addition to ordinary property taxation, subject the corporations to reasonable charges’ for the expenses thereof.
Numerous cases from the Supreme Court of the United States and from the courts of last resort of several of the states sustaining the validity of ordinances imposing taxes on telegraph and telephone companies for the use of the street where the amounts charged are reasonable, may be found in a case note to 16 A. & E. Ann Cas., pp. 343 and 344.
It is not contended that tbe amount fixed in tbe ordinance is unreasonable and such could not be logically .made when we consider the object sought to be accomplished by the ordinances, and the necessity which existed for local governmental supervision as well as the conditions which existed in the City of Little Bock and those which might reasonably be anticipated would exist in the future.
We may first consider whether or not the language of the ordinance granting the franqhise to the defendant is broad enough to include a license tax upon the poles on the right-of-way of the railroad company. We are of the opinion that when the language of the section is considered together, that it is susceptible of the construction that it was the intention of the parties that the poles to be erected upon the railroad right-of-way should be included in the license fee mentioned in section 3 of the ordinance. Otherwise there would seem to have been but little use in designating that the pole line should follow on and 'along the right-of-way of the railroad to the south city limits. Little Bock is a large and growing city. The record shows that the line of the company as it was to be. laid along the right-of-way of the railroad company would cross a street car line and several turnpikes coming into the city. It was highly necessary that there should be local governmental supervision of the lines across these highways for the necessary protection of the travelers along them. It was no doubt in contemplation of the parties that in a growing city like Little Bock, its streets and highways would at some time be laid out across the right-of-way of the railroad company and it would become necessary to enforce local governmental supervision over them. Hence we are of the opinion that from the language of the ordinance itself it was in contemplation of the parties that the defendant company should pay a license tax of fifty cents for each pole erected within the corporate limits of the city.
The defendant’s franchise ordinance took effect on the 18th day of March, 1912. The order extending the city limits was made on. the 20th day of May, 1912. About thirty-five poles of the defendant company were brought into the city limits by the order extending the boundaries of the City of Little Rock.
It is earnestly insisted by counsel for the defendant that the ordinance granting the franchise to the defendant company could not embrace these thirty-five poles. But we do not agree with counsel in this contention. A city ordinance or a city contract designed for a city at large operates throughout its boundaries whatever their changes. Dillon on Municipal Corporations (5 Ed), Vol. 3, Sec. 1304; McQuillin on Municipal Corporations, Vol. 2, Secs. 656 and 846 and cases cited; St. Louis Gas Light Co. v. St. Louis, 46 Mo. 121; Illinois Central Rd. Co. v. Chicago, 176 U. S. 646, and People v. Chicago Telephone Co., (Ill.), 77 N. E. 245.
Moreover at the time of the passage of the ordinance granting the franchise to the defendant company there was a general ordinance that provided that each telegraph, telephone or electric light or power company should pay annually a sum equal to fifty cents for each pole used by them'whether such poles were leased, rented or owned by them. This was a general ordinance and applied to the poles of any telegraph company which might be brought within the city limits during its existence.
It follows that the judgment will be affirmed. | [
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HUMPHREYS, J.
Appellant brought suit against appellee in the Lincoln Circuit Court for an alleged balance of $600 due him upon a written contract of employment to buy and sell cotton for appellee at Grady, Arkansas, during the cotton season of 1914-15. Appellee denied that it owed appellant any balance on the contract. The cause was submitted on the pleadings, instructions of the court and oral evidence, upon which a verdict was returned and judgment rendered in accordance therewith, dismissing the complaint. An appeal has been prosecuted to test the correctness of the construction placed upon the contract by the trial court. The contract is as follows:
“This agreement made and entered into on this the 30th day of May, 1914, by and between Heliums & Co. of Grady, Arkansas, as party of the first part, and G. E. Morris of Pine Bluff, Arkansas, as party of the second part, witnesseth:
“That the party of the first part hereby hires and employs the party of the second part to buy and sell cotton for it at Grady, Arkansas, for a period of one year commencing September 1, 1914, and ending one year thereafter.
‘ ‘ The party of the second part shall devote his time and attention to said business during the cotton season in said year, and shall take charge of buying and selling all cotton in which the party of the first part may deal.
“For his said services the said party of the first part hereby agrees to pay to the party of the second part the sum of eighteen hundred dollars ($1,800) to be paid in monthly installments at the rate of one hundred and fifty dollars ($150) a month during the period of said employment. Also all necessary expenses, such as traveling expenses, phone bills, livery bills, etc. In addition thereto the party of the second part shall be paid an amount equal to one-third of all profits arising or accruing to the party of the first part from the buying and selling of cotton by him or under his management. To arrive at said amount, the salary of eighteen hundred dollars ($1,800) and expenses above outlined, hereinbefore provided for, shall be deducted from the gross profits of said cotton business and one-third of the remainder shall be paid to the party of the second part as a part of his compensation for his services in buying and selling cotton for the party of the first part as herein provided.”
The undisputed evidence is that appellant worked under the contract for appellee two months and received $300 therefor; that then it became apparent to both parties that no immediate necessity existed for an expert cotton buyer or seller in connection with the business con-ducted by appellee, on account of a demoralization of the cotton market occasioned by the European war; that by mutual agreement appellant accepted employment from Bennett & Co., cotton buyers in Pine Bluff, for a period of six months at $150 per month, with the understanding that the amount of $900 should be credited on the contract between appellant and appellee; that at the expiration of the contract with Bennett & Co. appellant did not return to Grady and offer to buy and sell cotton for appellee during the months of May, June, July and August, 1915; that appellant resided at Pine Bluff, twenty-one miles by rail from Grady, and had a telephone; that appellee made no request after the expiration of the Bennett contract for appellant to buy or sell any cotton for it; that the cotton season began about September 1 and ended about May 1, of each year, and that it was usual for cotton buyers employed by the year to work during the cotton season only; and that appellee sold and bought no cotton after May 1, 1915, and had nothing for appellant to do except to sit around.
The court construed the contract to mean that appellant must either buy or §ell cotton, or actually report and offer to perform said duties for the full period of one year, in ordey to collect the entire contract price; and at the request of appellee, instructed the jury to that effect over the objection of appellant.
The appellant requested an instruction which was refused by the court to the effect that it was his duty under the contract to devote his time and attention to buying and selling cotton for appellee during the cotton season, and to buying and selling all cotton in which appellee dealt during the year, except when at work for Bennett & Co.
(1-3) There is little or no difference between appellant and appellee as to the facts. The main difference between them being in the construction of the contract, as reflected by the conflict in the instructions requested by each. The contract is before us for construction. The only words contained in the contract of doubtful signification are “cotton season.” These are words peculiar to the business of buying and selling cotton- and were properly susceptible of explanation by persons familiar with their meaning. The court did not err in permitting persons engaged in the cotton business to testify that usage in the locality where the contract was made fixed the season for buying and selling cotton from about September 1 to May 1 of the following year. Western Assurance Co. v. Altheimer, 58 Ark. 565; McCarthy v. McArthur, 69 Ark. 313. Under the undisputed facts in the instant case, the words “cotton season,” as used in the contract, mean buying and selling cotton from September 1, 1914, to about May 1, 1915. In construing contracts the purpose should be to ascertain the. intent of the parties to the contract. Such effect should be given to each word and provision in the contract that, when read in the light of each other, and as an entire contract, no conflicts remain. In other words, the several parts should be interpreted so as to make a harmonious whole. Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 497; Ayers v. Heustess, 94 Ark. 493; Johnson v. Wilkerson, 96 Ark. 320; Earl v. Harris, 99 Ark. 112.
In interpreting the contract by the aid of these familiar canons of construction, the first clause need not be discussed as it simply fixed the date of, designated and located the parties to the contract. No conflict whatever existed between the second and fourth clauses. The second clause fixed the term of employment at one year and the fourth clause fixed the year’s salary at $1,800, payable in twelve equal monthly installments, and in addition thereto provided for expenses of appellant and a division of the profits. The only seeming conflict exists between the third clause and the second and fourth clauses. It is said that if the third clause meant that appellant should work only eight or nine months, then it conflicted with the third and fourth clauses which provided for buying and selling of cotton by appellant for appellee for a year, or from September 1, 1914, to September 1, 1915. The only reasonable construction that can be given clause 3, so as to make it harmonize with clauses 2 and 4, is to say that the intention was that appellant should devote Ms whole time and attention to buying and selling cotton for appellee during the cotton season or from September 1, 1914, to about May 1, 1915; and that he should buy and sell all cotton in which appellee might deal during the remainder of the contract period. Of course, he was released from either duty by mutual agreement during the time he worked for Bennett & Co. There is nothing in the contract requiring appellant to report for duty each day after the expiration of the cotton season. He resided only a short distance from Grady, and could have been reached by telephone. It is admitted there was nothing for him to do but sit around. Appellee neither sold nor bought cotton after May 1, the end of the cotton season. We think the clear intendment of the contract was that appellant should report for duty each day during the cotton season and when needed during the balance of the contract period. Under this construction it follows that it was incumbent upon appellee to notify appellant in case he was needed at any time after the cotton season. The cause was fully developed, and under the undisputed evidence appellant should have recovered $600 with interest at 6 per cent, per annum from the 1st day of September, 1915, less $58, advanced or loaned to him by appellee.
The judgment is therefore reversed and judgment entered here for $542, with interest from date of suit at the .rate of 6 per cent, per annum until paid. | [
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WOOD, J.
Appellant was convicted on an indictment charging him with the offense of selling intoxicating liquor, sentenced to one year imprisonment in the penitentiary, and this appeal is from that judgment.
Among others the court gave the following instruction:
“3. You are instructed that under the law the defendant has the right to testify in his own behalf; but his credibility and the weight to be given to his testimony are matters exclusively for the jury. In weighing the testimony of the defendant in this case, you have the right to take into consideration his manner of testifying, the reasonableness or unreasonableness of his account of the transaction, and his interest in the result of your verdict, as affecting his credibility. You are not required to blindly receive his testimony as true, but are to consider whether it is true and made in good faith, or only for the purpose of avoiding conviction. ’ ’
The only question presented on this appeal is whether or not the court erred in giving the above instruction.
In Vaughan v. State, 58 Ark. 353, Vaughan had appealed from a judgment convicting him of murder in the first degree, and one of his assignments of error was that the court erred in giving an instruction identical with the instruction above set out. The court also, in the same case, in an instruction following the above, told the jury that, “nowhere in these instructions does the court mean that you are to disregard the testimony given hy any witness in this case. That is a matter solely with the jury, and it is not within the province of the court to tell the jury what weight you .should give to the testimony of any witness.” There was also the usual general charge as to the credibility of witnesses.
In refusing to reverse for the alleged error in giving the above instruction, the court said: “The instruction, when standing alone, can not be reasonably and fairly construed as tending to discredit the defendant’s testimony before the jury. But, when taken in connection with the one following it, every possible or imaginary objection is removed. The law, as announced in this instruction, has been approved by the Supreme Courts of other States.” And many authorities are cited.
The Yaughan ease was carefully considered by us and the authorities for and against the ruling in giving the above instruction in existence at that time, so far as we had them before us, were thoroughly examined and we deliberately reached the conclusion that there was no error in granting the instruction, in connection with the other instructions on the question of the credibility of witnesses in that case. We said: “It is proper for the jury, in considering the weight to be given to the testimony of the defendant, to consider the interest he has in the result of the suit. Nor should they receive it blindly as true, but consider whether it is true and made in good faith, ’ ’ etc.
We added this cautionary suggestion, however, for the benefit of trial courts in the future: “Because of the difficulty, however, in so framing an instruction, where the defendant’s name is mentioned at all, as not to give his testimony undue prominence, either for or against him, it would be better for trial judges to let him pass, with all the other witnesses, under the purview of a general charge as to the credibility of all the witnesses, leaving to the attorneys in argument to call the attention of the jury to any peculiar facts applicable to any particular witness.” Trial judges, however, have not always followed the suggestion there made as to the better practice in regard to mentioning specifically the name of the defendant, and consequently the instruction in the above form has reached us in several cases since the Yaughan case was decided. For instance, Jones v. State, 61 Ark. 88, and Hamilton v. State, 62 Ark. 543, both convictions for murder in the first degree, and Weatherford v. State, 78 Ark. 36, a conviction of murder in the second degree. In these cases this court adhered to the doctrine announced in Vaughan v. State, supra, and refused to reverse for alleged error in granting instructions identical with the one above quoted.
In Hamilton v. State, supra, Judge Riddick, speaking for the court, answering the argument of appellant’s counsel that an instruction in the above form was prejudicial to the appellant because of the fact that it singled him out from the rest of the witnesses, said: “We think that this contention is not tenable. In the first place, a defendant on trial is already singled out by the indictment, and the fact that he is on trial and directly interested in the result. His position in the trial has already singled him out, and for this very reason it may be necessary in some cases to give an instruction on this point.” Then after illustrating, the learned justice continues: “The defendant has the right to testify, and the jury should give his testimony the same impartial consideration that they accord to the testimony of other witnesses. They should not arbitrarily disregard what he testifies, simply because he is the defendant, nor, on the other hand, are they required blindly to receive a fact as true because he says it is true; but they are to consider his testimony in connection with the other facts in proof, in order to determine whether his statements are true and made in good faith, or made only to avoid conviction. The jury are the exclusive judges of the weight of such testimony. In considering the degree of credit to be given it, they may take into consideration his appearance and manner while testifying, the reasonableness or unreason ableness of his statements, and his interest in the result of the verdict. After a due consideration of his testimony, in connection with the other evidence in the case, they should give it such weight as they may deem it entitled to receive, their sole object being to ascertain the truth. We do not see that an instruction on this point would prejudice either the State or the defendant, but, as jurors are not always highly intelligent, it might in some cases avoid confusion in their minds, and tend to promote the ends of justice. ’ ’
Learned counsel for the appellant strongly insists that the court is in error in its former opinions and that these should be overruled and the instruction condemned as reversible error because in conflict with that clause of the- Constitution which provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law.” Counsel manifests much zeal on behalf of his client in earnestly urging the court to reconsider the question long since put at rest by our numerous former opinions, and to declare the opposite view from that expressed in those cases to be the law in this. Counsel also has displayed considerable industry, when judged by the array of authorities which he has cited in his brief as supporting his contention; he has presented nothing new, however.
We are aware that there is a contrariety of view as to the correctness and propriety of the above instruction, as evidenced by decisions in various American courts of last resort, but, having already carefully gone over the subject in several cases and deliberately decided the matter contrary to the contention of counsel, we must respectfully decline to enter further upon a review of these authorities and adhere to our former decisions as being consonant with the better reason, and also, we believe, with the weight of authority upon the subject.
In at least one of the cases strongly relied upon by counsel for appellant, the opinion was by a divided court, the majority opinion condemning the above instruction as reversible error, being concurred in by three of the five justices taking part in the decision of the case. State v. Evans, 183 S. W. (Mo.) 1059. One of the judges, dissenting from the view of the majority in condemning the instruction in the above form as reversible error, said: “Such an instruction is comparatively innocuous, since it but tells the jury that they may do the identical thing which they would do without being told.” Thus repeating, in part, almost the identical language used by Judge Riddick in delivering the opinion of the court in Hamilton v. State, supra, holding that the giving of such instruction was not reversible error. The unanswerable reasoning in that case of one of the greatest judges that ever adorned this bench should settle forever the question in this State.
There is no error in the record, and the judgment is therefore affirmed. | [
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McCULLOCH, C. J.
During the year 1916 the plaintiff, W. F. Leslie, was a peach grower in Howard County, Arkansas, and employed the defendants, Coyne Brothers, who were engaged in the commission business in Chicago, to sell his crop of peaches on commission. Defendants kept an agent, Mr. Turquette, at Nashville, the county site and business center of Howard County, who conducted the transactions for his principal with plaintiff and handled the fruit committed to the care of the defendants. The contract between plaintiff and defendant was made orally by the plaintiff and Turquette and there was no specification as to the place of sale of the peaches.
Plaintiff was not a large grower of peaches and the shipments were in small lots made in connection with shipments of peaches of other growers. Most of the peaches handled by defendants were shipped to Chicago and sold from that office, but Turquette sold several cars of peaches on the railroad tracks at Nashville — none, however, owned by the plaintiff;
This action was instituted by plaintiff to recover damages on the theory that a better price could have been obtained for his peaches by selling them at Nashville instead of shipping them to Chicago, and that defendants failed to exercise proper care in finding a market. No demand was made by plaintiff for the sale of his peaches at Nashville, nor did he make any objection to the shipment of the peaches to Chicago for sale. He knew that the peaches were being shipped, but was not advised of the prevailing prices on the Chicago market and other markets. The peach season ended about July 20 and defendant furnished plaintiff, on August 9, with statements of the proceeds of the sales, accompanied by checks cov ering the net proceeds, and those cheeks were accepted and cashed by plaintiff without any objections being expressed at that time. This action was instituted several weeks later. The plaintiff recovered damages below and the defendants have appealed.
(1) The court submitted the issues upon instruction, which, in substance, told the jury that the plaintiff’s right of recovery depended upon proof by preponderance of the evidence “that defendant did not exercise such skill and diligence to obtain the best market price for plaintiff’s peaches and that plaintiff suffered loss on account thereof.” The following instruction was also given at the request of the defendant and is in harmony with the other instructions given by the court:
‘ ‘ The plaintiff to recover must show that the defendants failed to exercise ordinary care to obtain the market price for his peaches. It is not sufficient to show the mere fact that more money might have been received for the peaches; in other words, if the defendants exercised ordinary care in selling the peaches at their market value, and erred in the choice of the market whereby the said peaches brought less than might have been obtained for them, still this in itself will not be sufficient to entitle the plaintiff to recover, but before he could recover he must go further and show that the error, if any, in the choice of the markets was the result of the failure of the defendants to exercise ordinary care with regard thereto, and, unless he has shown this by a preponderance of the evidence, your verdict must be for the defendants. ’ ’
(2) The evidence was sufficient to make out a case of liability upon the theory indicated in the court’s instructions, which we think constituted a correct announcement of the law on the subject. It is insisted that the court erred in refusing to give certain requested instruction, telling the jury that “if the plaintiff knew that the peaches were being shipped from Nashville and did not at the time object thereto, but allowed such shipments to go forward without objection,” this constituted assent on the part of the plaintiff to the shipment to Chicago and that he conld not under those circumstances recover.
Learned counsel for defendants rely upon certain language found in the opinion of this court in the recent case of Coyne Brothers v. Feazel, 129 Ark. 163, 195 S. W. 391, which involved a contract for the sale of peaches and damages were sought on the theory that the defendants had violated the instructions of the plaintiff in shipping the peaches to Chicago instead of selling on the market at Nashville. The trial court' refused to give an instruction similar to the one now under consideration, and in disposing of the question involved, we said that if the plaintiff had withdrawn his instructions to sell at Nashville, or had consented to the shipment of the peaches to Chicago, he -could not recover unless there was negligence in tailing to • secure the highest market price at Chicago. That case, however, was different from the present one in that recovery was sought entirely upon the theory of violation of positive instructions concerning the place of sale, while in the present case the plaintiff shows that, notwithstanding the fact that no instructions were given, he was not advised of the prices which could be obtained at Chicago. The plaintiff in committing his product to the custody of the defendant for sale had the right to rely upon the reasonable skill and diligence of the defendant in taking advantage of the best available market, and his failure under those circumstances to object to the shipment to Chicago did not constitute such conduct as would bar his right to recover damages unless he also was advised of the condition of the market at Chicago, as well as at Nashville.
There was no element of estoppel or waiver on the part of the plaintiff in failing to object to the shipment to Chicago unless he was advised that there was a better market at Nashville. To hold otherwise would be a denial of the plaintiff ’s right to rely on the skill and superior knowledge of the agents whom he had employed to handle, his produet.
The defendants also requested the court to instruct the jury that they had a right to ship the peaches to Chicago, that the plaintiff is presumed to have consented thereto and that no liability was established by showing that a better price could have been realized on sales made at Nashville. The theory upon which counsel for defendants argue the correctness of those instructions is that because defendants were doing business at Chicago there is a presumption that the peaches delivered to them were intended to be sold at that place. They quote from 11 R. C. L., section 22, page 768, the following which we think is a correct statement of the law on the subject.:
“Where a consignment is made, to a factor for sale, without instructions, and in the absence of established usage to the contrary, it may be presumed that the goods consigned are intended to be sold at the place of residence of the factor.”
The undisputed evidence was that defendants maintained an agency at Nashville where there was an established market for peaches and the agent occasionally made sales on that market. Therefore, the presumption can not be indulged that the parties to the contract mutually intended that the peaches should be shipped to Chicago, the principal place of business of the defendants.
(3) It is next insisted that the court erred in refusing to give an instruction to the jury stating that, if plaintiff’s peaches were loaded in cars with other shippers who demanded that their fruit be shipped to Chicago and not sold at Nashville, defendants had the right to ship the cars in accordance with the demands of other shippers and would not be liable to plaintiff for failure to sell at Nashville.
The first objection to this instruction, and one that is quite adequate, is that there appears nó evidence in the record, as far as we can find in the abstract, tending to show that plaintiff loaded his fruit in cars with other shippers who made objections to sales at'Nashville and requested shipment to Chicago. The instruction would, therefore, have been abstract and it is unnecessary to search for other reasons why the court did not err in refusing to give it.
(4) It is further insisted that the returns made by the defendant to plaintiff of the sales constituted accounts stated upon the failure of plaintiff to make objection, and that his acceptance without objection of the proceeds of sale constituted a ratification and that for those reasons the right to recover damages is barred. The correctness of the sales accounts furnished to plaintiff is not questioned, and even though they be treated as accounts stated, this furnishes no grounds for barring his right to recover damages. The plaintiff’s attitude in this case does not challenge the correctness of those accounts of the proceeds of sale, but he contends that there was a breach of duty on the part of the defendant-in failing to take advantage of a better market, and this does not put the plaintiff, in an inconsistent position. Nor do we think the plaintiff is barred of his right to recover damages by acceptance without objection of the proceeds of sale.
Counsel for defendants rely on a Mississippi case (Meyer v. Morgan, 51 Miss. 21, 24 Am. Rep. 617), wherein it was held that the acceptance by the owners of cotton of the proceeds of the sales made by a broker, contrary to instructions, constituted ratification of the sales and prevented recovery for damages on account of the violation of the contract. The decision was perhaps correct upon the facts of that case, but the reasoning has no application to the facts of the present case. The court said that the plaintiff in that case had no right to speculate on' the future market of cotton and afterwards complain because of the fact that the instructions not to sell for less than a certain price had been disobeyed and a better price could have been obtained in the future. The facts of that case were that the plaintiff had shipped cotton to the broker with instructions not to sell for less than a stated price. The instructions were violated by a sale of the cotton by the broker at a price less than that mentioned in the instruction and less than could have been obtained later. No such state of facts is presented in the .present case, for the plaintiff did not give any instructions concerning the price he wanted for his fruit, but relied upon the integrity, diligence and sagacity of his agent to find the best available market. As soon as the alleged act of negligence of the plaintiff occurred in selling the fruit on a lower market than could have been found, plaintiff’s right of action accrued and he did not waive his right by accepting the proceeds of sale which belonged to him.
There are other assignments of error with respect to the rulings of the court in giving and refusing instructions, but we find on consideration that those rulings were correct. The issues were correctly submitted to the jury and there was sufficient evidence to sustain the verdict.
Judgment affirmed. | [
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HART, J.
Eighty or more separate actions were filed by J. W. House, Jr., receiver for the Planters Fire Insurance Company against W. T. Johnson et al., upon notes given by them for premiums for policies of fire insurance. The cases originated in a justice of the peace court, where judgment was rendered against each of the defendants and the cases were appealed to the circuit court. There all the cases were consolidated and tried together.
The Planters Fire Insurance Company was a domestic corporation engaged in the business of insuring property against fire. It was a mutual insurance company doing business in the State of Arkansas. It was adjudged insolvent in March, 1915, and J. W. House, Jr., was appointed as receiver -to take charge of its assets and wind up its business. Its outstanding obligations were largely caused by fire losses and its principal assets consisted of premium notes. It became insolvent before the expiration of the policies for which the premium notes were given.
The court directed the jury to return a verdict for the plaintiff and the defendants have appealed.
(1) In the case of House, Receiver v. Siegle, 121 Ark. 236, it was held that the insolvency of a mutual insurance company before the expiration of its policies is no defense to actions on premium notes and that in such cases the receiver of the insurance company may recover from a policy holder the full amount of an unpaid premium note given for insurance. The reason is that companies organized upon the mutual plan have no capital stock. Cash paid for premiums and the premium notes constitute their assets and the members are in a way stockholders. Hence so long as the company has outstanding debts its insolvency gives no right "to a policy holder to recover a premium paid or to avoid the payment of a premium note.
Counsel for the defendants seek to avoid the effect of this decision by contending that the company has not-complied with an act to regulate fire insurance companies approved April 24, 1905. See Acts of 1905, p. 489.
The company was duly organized under the laws of this State and filed its bond in compliance with the statutes thereof. The articles of incorporation, theamendments thereto, the by-laws of the company and the order adjudging the company insolvent and the appointment of the receiver were introduced in evidence. It was also shown that the receiver was directed by the court to bring suit on these premium notes for the purpose of paying claims for losses which had been filed and established against the company. It is claimed that the bond given under this act is an asset of the company and when so considered shows that the company was not insolvent. This court has decided adversely to this contention. In Forte v. Chamberlin, 93 Ark. 112, the court held that while a receiver of -an insolvent mutual insurance company is authorized to enforce the rights of the corporation, he is not entitled to sue the sureties of such company upon the indemnity bond given under the Act of April 24, 1905. The reason is that the liabilities of the sureties on this bond are purely collateral and are in no sense an asset of the corporation.
(2) Again it is contended that the premium notes sued on were six months or more past due and for that reason under our statutes could not be considered an asset of the company. To sustain their contention counsel rely on section 8 of the Act of April 24, 1905, above referred to. The section reads as follows:
‘ ‘ The State Auditor shall not consider any past due promissory note as an asset of the company unless the unearned premium on the policy, for which it is given, is considered a liability. No promissory note that is six months or more past due shall be considered an asset of the company. ’ ’
That act gives the Auditor of State complete supervision over the affairs of the company and grants him authority to examine the books and papers and also the officers of the company as to its condition and management. The section which we have just copied provides that no promissory note that is six months or more past due shall be considered by him an asset of the company. This has no application where insolvency proceedings have been instituted and a receiver has been appointed to wind up the affairs of the company. In such cases according to the authorities above cited the premium notes are assets for the purpose of paying the debts of the company. The section of the statute referred to merely provides that when the auditor is making an examination of the affairs of the company to determine its condition these notes shall not be considered as assets.
It follows that the judgment must be affirmed. | [
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McCULLOCH, C. J.
The plaintiff, Emilie Barnette, intermarried with M. C. Miller in Sebastian County, Arkansas, in the year 1891, and they lived together in Sebastian and Scott counties, Arkansas, until the year 1908, when they separated in Scott County and a decree for divorce was rendered by the chancery court of Scott County in an action instituted by the present plaintiff against her said husband. The decree, in addition to a divorce, awarded to the plaintiff the sum of $500 out of the property of M. C. Miller, and also required the latter to pay the cost and attorneys’ fees. After the divorce was granted the plaintiff intermarried with one Barnette and has since obtained a divorce from him. Miller intermarried with another woman and there are four children now living who were the issue of that marriage. Miller died in March, 1916, and in November of that year the plaintiff began the present proceedings in the nature of a bill of review to set aside said decree for divorce on the ground of its procurement by fraud. The administrator of the estate of M. C. Miller, deceased, and the heirs at law of said decedent were made parties. The plaintiff alleged in her complaint that her husband subjected her to cruel treatment and threatened to kill her to compel her to consent to the procurement of the divorce, and that by force and intimidation she was compelled to go to an attorney in the county and consent to the procurement of the divorce. She .alleged that she did not know that she was to be made, or was made plaintiff in the divorce suit. The chancellor heard the matter upon the pleadings and the testimony and dismissed the complaint for want of equity. The record in the divorce suit was introduced and shows that it was instituted by the plaintiff and that the ground for divorce set forth in the complaint was that the defendant, M. C. Miller, had been guilty of adultery. The deposition of the plaintiff herself appears in the record and her testimony tended to establish the charge of adultery against her husband. She testified in that deposition that she and her husband had separated on account of his criminal intimacy with another woman, and that she would not again live with him. The acts of adultery were proved by other witnesses and upon the testimony thus adduced the chancellor rendered the decree.
The plaintiff in giving her deposition in the present case testified that her husband and his brother grossly mistreated her and by threats and intimidation compelled her to sue for the divorce. Her statements are contradictory, however, for she admitted that she had appeared and testified in the case concerning her husband’s misconduct. Her testimony is contradictory in many other particulars. The attorney who conducted the former litigation testified that he was employed by the plaintiff to prosecute the divorce suit, and that he did so solely at her instance. The plaintiff offered to prove by certain other witnesses that her former husband, Miller, had mistreated her in many ways, but the chancellor declined to hear the testimony on the ground that it was immaterial.
The chancellor was correct in refusing to set aside the decree for divorce under the circumstances shown by the evidence. The plaintiff is estopped by her own conduct and by lapse of time and change of circumstances of the parties to ask an annulment of the divorce decree. She disclaimed any desire to share further in the estate of her former husband, but says that she merely wants her status restored as the wife of M. C. Miller. The effect of the restoration of that status is, however, more far-reaching than mere property rights, for Miller married again and has left a widow and children who were the issue of that marriage. The plaintiff married again too, and waited eight years, and after the remarriage of her former husband and his death before she attempted to set aside the decree.
“There are excellent reasons,” says Mr. Bishop in his work on Marriage and Divorce (Yol. 2, see. 1533), “why judgments in matrimonial causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons that uncertainty and fluctuation in it would be greatly detrimental to the public. And particularly to an innocent person who has contracted a marriage on faith of the decree of the court and calamity of having it reversed and the marriage made void is past estimation. These considerations have great weight with the courts, added whereto there are statutes in some of the states according a special inviolability to such judgments.”
The rule thus stated by Mr. Bishop was applied by this court in Corney v. Corney, 97 Ark. 121, and Womack v. Womack, 73 Ark. 281, and we are of the opinion that its application to the facts of the present case are conclusive against the plaintiff’s effort to set aside the decree. The other testimony concerning the mistreatment of plaintiff by her husband was, as held by the chancellor, wholly immaterial. The decree is, therefore, affirmed. | [
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T. D. CRAWFORD,
Special Judge, (after stating the facts). Appellant asks that his deed from the State 'Land Commissioner to the E 27/40 of the NW/4 of the SE14, section 1, township 18 north, range 20 west, in Boone County, be confirmed and quieted. The chancellor found that this tract was assessed and advertised in the list of delinquent lands as “E Pt. NW SE, 27 acres,” and that the tax books and record of the notice of the delinquent lands were changed so as to make the description read “E 27/40 NW SE, 27 acres.” He held, however, that the description in the assessment as E Pt. NW SE 27 acres, was a good description and sufficient to identify the land. Was this holding correct?
(1) This court has uniformly held such a description to be insufficient in a tax title. In Covington v. Berry, 76 Ark. 460, a tax deed describing the land sold as “E Pt. of tbc SE% of section 30, township 5 north, range east, containing 60.30 acres,” was held void. So, where at a tax sale the deed described the land sold as “Part E% NE%, section 32, township 12 south, range 1 west, 55 acres,” the deed was held void. Dickinson v. Arkansas City Improvement Co., 77 Ark. 570. See also, Hewett v. Ozark White Lime Co., 120 Ark. 528.
As a further source of title, appellant relies upon the two years’ statute of limitations. He testified that he took possession of the above tract in 1910 by going down there and finding a Mr. Patrick in possession and cultivating the land. Patrick told him that he had been a tenant of the original owner. Appellant told Patrick that he had bought the land at tax sale and wanted possession, and Patrick agreed to hold under appellant and pay rent to him provided certain improvements were made by appellant. These improvements were made, and Patrick remained on the land as appellant’s tenant for three years. Was Patrick’s possession as tenant of appellant adverse to the holders of the legal title?
(2) The element of notoriety must be added to adverse possesion before it can ripen into title by limitation. A bare agreement on the part of one in possession of land to attorn to another, who claims it, is insufficient, in the absence of notoriety, to render the latter’s possession adverse to a third party. Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066. There is no evidence in this case that notice was in any manner brought home to appellee, or to his predecessors in title, that Patrick was holding adversely to him or them. Under these circumstances, the claim of title by adverse possession must fail.
(3-4) Appellant insists that appellee is not entitled to have his title to this tract of land confirmed, because he failed to show title in himself to the land. He quotes from Bullock v. Duerson, 95 Ark. 445, to the effect that a plaintiff in a suit to quiet title must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and not upon the weakness of his adversary’s. Appellee relied upon a deed purporting to be executed by the Bartles Lead & Zinc Company, by its president and secretary. Appellant in his answer denied that the Bartles Lead & Zinc Company was a corporation, and, if it was such, denied that said president and secretary had any authority to execute said deed conveying said lands. The appellant’s abstract shows that a deed conveying these lands was executed by Jacob Bartles to the Bartles Lead & Zinc Company, and that the company conveyed the lands to appellee by a deed executed by its president and secretary, and that both deeds were duly acknowledged and recorded. There was no affirmative proof as to whether the Bartles Lead & Zinc Company was a duly incorporated company, or, if it was a corporation, whether its officers were authorized Jo execute such deed.
Appellant insists that, in the absence of proof, it will not be assumed that there was such a corporation, or that the president and secretary were authorized to execute the conveyance upon which appellee relies.
Appellant’s abstract justifies a finding that the Bartles Lead & Zinc Company as a corporation undertook to receive and convey title to these lands. Except as against the State, it is immaterial whether such corporation was a de jure or a de facto corporation, and its conveyances are binding as against all the rest of the world. 1 Clark & Marshall, Private Corporations, Sec. 81d. Mr. Cook says: “The execution and delivery of an instrument by a corporation as a corporation raises the presumption that the company was regularly incorporated.” 3 Cook on Corporations, Sec. 722, page 2554. “Whenever the circumstances may have been such as to authorize a conveyance, lease, mortgage or pledge of its property by a corporation, that it was authorized will be presumed until the ‘contrary is affirmatively shown.” 1 Clark & Marshall, Private Corp., Sec. 164. Where land is conveyed to a company as a corporation, and by its president and secretary it undertakes, as such corporation, to convey such land to another, it will be presumed that it was regularly incorporated and that its officers were authorized to make the deed.
(5) Moreover, appellant is not in a position to insist upon the rule upon- which he relies. The statutory presumption in favor of a conveyance of lands forfeited for taxes, executed by the Commissioner of State Lands (Kirby’s Digest, § 4807) has been overcome in this case by proof that the land was not assessed by a sufficient description to identify the land. The deed of the commissioner being invalid, plaintiff was in fact a trespasser.
(6) While it is a general rule that a plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, this rule has no application where the defendant is a mere trespasser invading the actual possession of plaintiff, in which case .plaintiff can recover on prior peaceable possession alone. 15 Cyc. 22; Green v. Jordan, 83 Ala. 220, 3 Am. St. Rep. 711; Horton v. Murden, 117 Ga. 72; Rhule v. Seaboard Air Line Ry. Co., 102 Va. 343; Newell on Ejectment, p. 434; Warvelle on Ejectment, Sec. 237; John Henry Shoe Co. v. Williamson, 64 Ark. 100; Price v. Greer, 76 Ark. 426.
The rule requiring the plaintiff, in actions of this character, to recover on the strength of his own title, is based upon the presumption that a defendant in possession is rightfully in possession. No such presumption obtains in favor of a mere trespasser.
Appellant claims title, by purchase at tax sale in 1911, to the following tracts of land, all situated in section 1, in township 18 north, range 20 west, towit:
1. The Ni/2 of the SW% of the NE%.
2. The W% of the NWy^ of the NEy=.
3. The Sy2 of the SWy4 of the NE%.
4. The W% of the SE% of the NE%.
Four separate deeds were executed in 1913 by the county clerk, conveying the above lands to appellant in pursuance of the tax sale in 1911.
Appellee has pointed out no defect in the sale or in the deeds, except that he' contends that tracts 1, 2 and 4 were improperly placed on the tax books, and that appellant was disqualified from purchasing the first tract by reason of being in possession thereof.
(7) As to the tract numbered 1, the N% of the SW14 of the NEi/4, appellee contends that, inasmuch as this land forfeited to the State in 1907 by an erroneous description, and was purchased by appellant from the State, he could not acquire a better title by allowing it to forfeit for taxes and buying it in. This contention must be sustained. One in possession of land, and receiving the. rents and profits thereof, under claim of ownership, will not'be permitted to strengthen his title by allowing the land to forfeit for taxes and purchasing it at tax sale. Rodman v. Sanders, 44 Ark. 504; Wade v. Goza, 99 Ark. 543. The purchase of land at tax sale can not have the effect of strengthening the title of those who are in possession and taking the profits, since they ought to keep down the taxes. Hunt v. Gaines, 33 Ark. 275.
In this case, defendant testified that he was in possession of the land, and that he received the rents and profits thereof for the year in which it was delinquent. As to .this tract, his title must fail.
As to the second and fourth tracts, appellee’s contention is that these tracts forfeited to the State in 1907, and that this took the tracts off the tax books and they could not be replaced thereon until the State Land Commissioner certified the lands back to the clerk.
(8) Conceding, without deciding, that this is true, it does not appear that the lands were not properly certified by the State Land Commissioner, before the county clerk placed them on the tax books. The law presumes that every officer does his duty, and that in his official acts he has not exceeded his authority, and, if he can act only in a certain contingency, that such contingency has happened. McCamey v. Wright, 96 Ark. 477.
(9) The sale of these lands for the taxes of 1910 was not invalid because the taxes due on these tracts for previous years were not entered on the tax books for the year 1910. It is true that Kirby’s Digest, § 7022, makes it the duty of the county clerk to enter on the tax books the taxes for the years in which the lands have escaped taxation. A valid tax sale for 1910 would pass title as against the original owner, though the State might still have a lien for the taxes of previous years. It does not appear, however, that the taxes for the intervening years have not, in fact, been paid.
(10) Furthermore, appellee’s contention is that the description of these two tracts in the assessment of 1907 was absolutely void. They were described in the tax sale in 1911 as the W% of the NW% of the NE14, and the W14 of the SE% of the NE14; but in the tax assessment of 1907 they were described as part NW% of the NE14, and W. pt. SE% of the NE%, 50.96 acres. The court agrees with appellee’s contention that the description in the tax assessment of 1907 was void, and that it described no lands and that the tax sale was thereby rendered void, even though the land was correctly described in the State Land Commissioner’s deed. It is obvious that, under these circumstances, no title passed to the State by the forfeiture, and the lands could properly be placed on the tax books.
(11) On April 24, 1914, appellee undertook to redeem the two tracts of land which forfeited to the State in 1910 for the taxes of 1907, towit, E Pt. NW]4 NE% and W Pt. SE/4 NE]4> section 1, township 18 north, range 20 west, 50.96 acres, hy paying the taxes for that year and the intervening years. He claims to own that part of NW1/ NE/4 of the section which lies west of Crooked Creek and a certain branch thereof. He admits that so much of the forty-acre tract as lies east of these streams belongs to a third person, whose taxes have been paid. Inasmuch as the forfeiture of the above described tracts in 1910 is held to be void for inadequacy of description of the lands, a redemption thereof by the same description is equally ineffective, since it can not be ascertáiñed from the redemption deed what lands were redeemed.
No objection whatever is pointed out to the third tract purchased in 1911 by appellant from the tax collector, namely, the SVs of the SW% of the NE%, in the section, township and range aforesaid. This tract does not seem to have forfeited in 1907.
It will be noticed that appellee’s record title is meandered by a certain stream called “Crooked Creek” and by a certain branch thereof. No plat has been furnished in the transcript showing the course of this stream. It is impossible for this court to determine just how much of the land purchased by appellant at the tax sale of 1911 was included in the lands claimed by appellee under his deed from the Bartles Lead & Zinc Company.
As against the appellant, the appellee’s title to the E 27/40 of the NW]4 of the SE14, and the N% of the SW% of the NE/4, both of section 1, township 18 north, range 20 west, will be quieted.
As against the appellee, the decree as to appellant’s title to the W% of the NW/4 of the NE^/And the of the SW/4 of the NE/4 and the W/4 of the SE% of the NE14, all in section 1, township 18 north, range 20 west, in Boone County, is reversed and remanded with directions to enter a decree accordingly.
Hart and Smith, JJ., dissent in part.
Humphreys, J., not participating. | [
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McCULLOCH, C. J.
The defendant, John Davis, was convicted of the crime of subornation of perjury under an indictment which (omitting caption) reads as follows:
“The said defendant, on the 27th day of August, 1917, in Columbia County, Arkansas, did unlawfully, wilfully, corruptly and feloneously procure one Earl Atkins to commit wilful and corrupt perjury in a cause then pending in the Columbia Circuit Court, February term, 1917, wherein the State of Arkansas was plaintiff and John Davis was defendant, charged with the offense of an assault with intent to kill, alleged to have been committed upon one Frank Turner by offering to pay to him, the said Earl Atkins, the sum of ten dollars and giving to ■him, the said Earl Atkins, before and during said trial, whiskey; said false, perjured and corrupt testimony being given by the said Earl Atkins was then and there material to the issue and in substance as follows, towi't: That the said Earl Atkins, while standing in front of Hutchinson’s drug store, in the city of Magnolia, Columbia County, Arkansas, saw one Frank Turner make an assault upon him, the said John Davis, with an open knife, in the hands of him, the said Frank Turner, before he, the said John Davis, interfered or attempted to raise a difficulty with him, the said Frank Turner, which said testimony given by the said Earl Atkins was in truth and in fact false, corrupt and perjured, and the said John Davis well knew at the time he, the said John Davis, procured the said Earl Atkins to give such testimony that the same was false, corrupt and perjured, against the peace and dignity of the State of Arkansas. ’ ’
There was a demurrer to the indictment, but a ruling thereon of the court was never requested. After conviction there was a motion in arrest of judgment, and the principal contention here for reversal is that the indict ment is not sufficient to charge a public offense and that for that reasón the court erred in refusing to arrest the judgment. The sufficiency of the indictment is attacked in several particulars, but it must be remembered that 'the rule established for interpreting an indictment when the question arises on motion in arrest of judgment is that “the language of the indictment will be given that construction and interpretation which results in holding it sufficient, if it is not manifest that another construction and interpretation is required, as called for by the plain, ordinary and usual meaning of the words of the indictment.” Loudermilk v. State, 110 Ark. 549. Certainty in an indictment is required when charging an offense, and on demurrer, which constitutes a direct attack upon its sufficiency, the demurrer should be sustained unless the language of the indictment charges an offense with reasonable certainty so as to put the accused on notice of the nature of the charge he is called upon to meet; but when the sufficiency of the indictment is called in question by motion in arrest of judgment the rule is different, and if it can be gathered from the language of the indictment that the essentials of the crime are charged either directly or by reasonable inference, then the motion should be overruled.
The first point made against the sufficiency of the indictment is that it does not charge that the false testimony of the suborned witness was given under oath. Our statute on the subject of subornation of perjury reads as follows:
“In every indictment for subornation of perjury, ox for any corrupt bargain, contract or attempt to procure another to commit perjury, it shall be sufficient to set forth the substance of the offense, without setting forth the record, proceeding or process, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same. ’ ’ Kirby’s Digest, § 1973.
It will be observed that this statute eliminates the necessity of setting forth “the form of the oath or affirmation, or the manner of administering the same,” but not the allegation that the oath was taken, and it is still necessary to charge in an indictment for subornation that the testimony was given under oath. We think, however, that under a liberal interpretation- of the language used in the indictment, it is sufficient to constitute a charge that the testimony of the suborned witness was given under oath. It refers to the testimony as “wilful and corrupt perjury,” and uses the words “said false and corrupt testimony.” Testimony is, in a legal meaning, “to state or declare' on oath or affirmation before a judicial tribunal or officer.” We are of the opinion, therefore, that while it is essential for an indictment to charge that the testimony was given under oath, the language in this indictment is sufficient when tested on motion to arrest the judgment to constitute such an allegation.
Another objection is that the indictment fails to properly charge the falsity of the testimony given by the witness, but this point is ruled by the decision in Loudermilk v. State, supra.
The jurisdiction of the court in which the testimony was given was also sufficiently set forth in stating that the testimony was given in a certain criminal prosecution by the State in the circuit court of Columbia County. The evidence was sufficient to sustain the verdict and there is no assignment of error in the court’s charge to the jury on other rulings during the progress of the trial.
Affirmed. | [
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McCULLOCH, C. J.
Tbe city council of Little Rock, by an ordinance duly enacted upon tbe petition of property owners as prescribed by statute, bas created a local improvement district “for the purpose of aiding tbe County of Pulaski in building a bridge across tbe Arkansas River, said bridge to land on Broadway street in tbe city of Little Rock, Arkansas.” A majority of tbe owners of real property in tbe district petitioned for tbe improvement and tbe commissioners have been appointed by tbe city council and are about to proceed with tbe assessment of benefits and tbe levying of assessments to pay for tbe improvement. Appellant is tbe owner of real property in tbe district and instituted tbis action in tbe chancery court to restrain further proceedings in tbe assessment of benefits, levying of assessments, issuing bonds and tbe construction of tbe improvement through tbe agency of tbis improvement district, on tbe ground that there is no lawful authority for tbe organization of a local improvement district for tbe purpose named. Tbe chancery court denied relief and an appeal bas been prosecuted to tbis court from tbe decree.
Another district was once formed for tbe same purpose mentioned in the organization of tbis district, but this court held that under the law, as it then stood, there was no authority for tbe formation of a local improvement district to aid in tbe construction of a bridge connecting two cities. Mullins v. Little Rock, 113 Ark. 590. Tbe property owners made another attempt to further tbe improvement by organizing a district to construct one-half of tbe bridge across tbe Arkansas River between tbe cities of Little Rock and Argenta, and tbis court held that tbe effort was futile, and that tbe formation of tbe district for that purpose was void. Mullins v. Bridge Improvement District, 114 Ark. 324. In each of those cases the decision was based upon the lack of legislative authority to form an improvement district for the purposes named. In the first case it was held that the Legislature, in the enactment of the general statute authorizing the organization of improvement districts in cities and towns, had not conferred authority to form a district for the purpose of aiding another agency, such as the county, in constructing an improvement; and in the last case it was held that there' was no legislative authority to form a district to huild one-half of a bridge, or any part less than the whole. Since those cases were decided the General Assembly enacted a special statute applicable only to Pulaski County authorizing the organization of improvement districts in this county for the purpose of raising money to aid the county to “build, repair, reconstruct, strengthen, alter or widen, bridges across the Arkansas River between the cities of Little Rock and Argenta. ’ ’ Acts of 1915, p. 1346.
The first section of the act reads as follows:
“Districts may be organized in Pulaski County in the manner set forth in sections 5664 to 5742, of Kirby’s Digest, and the amendments thereto, for the purpose of raising money to aid the county of Pulaski to build, repair, reconstruct, strengthen, alter or widen, bridges across the Arkansas River between the cities of Little Rock and Argenta, which the county has heretofore built or may hereafter undertake to build, to the extent petitioned for and under such restrictions as may be prescribed, in the petition of the majority in value of the property owners and in such event, it shall be the duty of the commissioners, if they can make satisfactory arrangements with the county court of Pulaski County within the limits of the authority conferred by such petition, to issue the negotiable interest-bearing bonds of the district to the amount prescribed in the petition, and to sell said bonds and turn the proceeds thereof over to said county court, to be used in the construction, reconstruction repairing, strengthening, altering or widening of such bridge or bridges.”
Section 2 of the act provides that when such bridge or bridges are proposed to be built, repaired, reconstructed, etc., the county court of said county shall appoint a commission composed of three persons whose duty shall be to locate and superintend the erection, reconstruction or repair of the proposed bridge. It is thus seen that legislative authority is conferred, as far as is possessed by the law-makers, to form an improvement district for the purpose mentioned in the organization of the present district.
The statute in question is not open to the objection that it attempts to amend or extend a statute by reference only to the title. Common School District No. 13 v. Oak Grove Special School District, 102 Ark. 411. Nor is the statute objectionable on the ground that it authorizes the appointment of two sets of commissioners, one by the county and the other by the city council. The question of extent of the authority of the respective sets of commissioners is not before us for determination and need not be decided until it properly arises. There may not arise any conflict in the authority attempted to be exercised by the respective boards in this instance.
(1) The only question presented, therefore, for our determination is whether or not the statute authorizing the formation of the district for the purpose named is valid, and the validity of the statute is challenged by appellant on several grounds. The Constitution of the State contains but one limitation upon legislative power with respect to the creation of local improvement districts, and that limitation is that the taxation of property in districts situated wholly within cities and towns must rest on the consent, actually ascertained, of a majority in value of the owners of real property. Butler v. Fourche Drainage District, 99 Ark. 100. In other respects the legislative will is supreme, at least as far as any express constitutional limitation is concerned. Of course, there is the further limitation that since the only justification for the imposition of local assessments rests upon the enjoyment of special benefits to the property thus taxed, the amount of the tax must not exceed the special benefit derived ; and also that the imposition of the tax must be uni-' form and free from unjust discrimination.
(2) It is insisted, in the first place, that it is beyond the power of the Legislature to authorize the organization of an improvement district inside of a city or town to make an improvement situated outside of its limits. We decided in one of the former cases cited that a district could not be organized for the purpose of constructing such an improvement, but since then the Legislature has supplied the power, and we perceive no sound reason why it can not be done, for special benefits may inure to property within a given locality inside of the municipality, even though the improvement lies partly outside. The improvement now under consideration affords an apt illustration, for the property adjacent to a bridge spanning a river which forms the boundary between two cities may receive marked benefit from the improvement, even though the greater part of the improvement lies outside of the district and municipality. There is nothing in the Constitution which forbids the organization of such a district. In fact, the Legislature passed a statute many years ago authorizing the organization of improvement districts for the construction of waterworks and sewer systems with part of the improvement lying outside of the municipalities, and the validity of that statute has never been questioned, although this court had previously held that in the absence of such legislative authority it could not be done. Rector v. Board of Improvement, 50 Ark. 116. The Constitution places certain limitations, as before stated, upon the power to organize districts for “assessments on real property for local improvements in towns and cities, ’ ’ but we have construed that provision not to restrict the power to organize districts lying partly inside and partly outside of cities and towns. Butler v. Fourche Drainage District, supra. All that the framers of the Constitution meant was that the assessments on real property in districts wholly within cities and towns must be based upon the consent of the majority in value of the property owners to be affected. It was not a grant of power, but a limitation to that extent upon the power of the lawmakers.
(3-4) Again, it is urged that a bridge which forms part of a highway constitutes a general improvement which affects the whole public and can not be made the object of a local improvement district. There are decisions in other States to the effect that bridges, as well as other parts of public highways, can not be treated as local improvements, but this court has steadily held to the contrary. In fact, the most frequent applications of the improvement district laws in this State have been to the organization of districts for the purpose of improving streets and highways, and the power has scarcely ever been questioned. We have expressly held that a bridge situated either in a rural district or one situated inside of a city may be constructed as a local improvement. Shibley v. Fort Smith & Van Buren District, 96 Ark. 410; Board of Directors v. Collier, 104 Ark. 425; Ferguson v. McLain, 113 Ark. 193. That subject is fully discussed in the recent case of Bennett v. Johnson, 130 Ark. 507, where we reiterated the rule so often announced by this court that an improvement may be a local one so as to justify local, assessments where there is a special and peculiar benefit inuring to the adjoining property, even though the general public enjoys a degree of benefit from the improvement. We held, too, that the legislative determination of the character of an improvement as a local one is conclusive, unless arbitrary and unfounded in reason, and that principle applies to the present case, because the statute under consideration is a special one and necessarily constitutes a legislative determination of the fact that bridges across the Arkansas river between the cities of Little Rock and Argenta may constitute local improvements. We can not say as a matter of law that that determination is such a manifest error as to call for judicial interference with- the legislative will.
(5) One of the most serious considerations in the case is whether or not the authority to levy assessments on adjacent property for the purpose of raising money to aid the county in the construction or repair of bridges, which presupposes that the benefits to be derived from the use of funds out of the county treasury does not overturn or render inconsistent the further determination of the lawmakers that the improvement is a local one so as to justify special assessments on the adjacent property. We think, though, that the better rule is to uphold the legislative determination to the extént that the improvement is local in its nature, even though the general public will receive benefits so as to' justify expenditures of public funds. That is just another way of saying, as we have often said heretofore, that an improvement may be local in its nature even though the general public enjoys a degree of the benefits. We have, in fact, held that an improvement district may be organized to improve a public street in a city even though it is necessary to obtain public funds from the city in order to complete the improvement. McDonnell v. Improvement District No. 145, 97 Ark. 334. This conclusion is very forcibly and aptly stated by the Supreme Court of Minnesota, in dealing with the subject, as follows:
“Such improvements being public in their nature, it is rare that a case arises where the general public do not share to a greater or less extent in the benefits, though in some cases, as of alleys or lateral streets or sewers, the benefit may seem to be peculiarly local. But it has never been contended that, in authorizing local assessments in pursuance of this constitutional provision, municipal authorities were to be limited to such improvements as are entirely local in their character. The city at large is benefited, and at the same time special benefits in ordinary cases result to the owners of property adjoining or in the vicinity of the improvement. If the special benefits to property so locally affected are equal to the cost of the work then an amount, not exceeding the whole cost may be assessed upon such property; but if the expense thereof exceed such benefits, then the city at large should in any event bear a portion of the burden. ’ ’ State v. District Court of Ramsey County, 33 Minn. 295.
"We are of the opinion, therefore, that it is not beyond the power of the Legislature to authorize a district to be formed for the purpose named.
(6) It is urged that the assessment of property in Little Rock will be unjust and discriminatory because no part of the property adjacent to the bridge on the Argenta side is to be taxed. Counsel cite in support of that contention decisions of this court holding that uniformity must be observed in assessments for local improvements and that where there is other property which would obviously be benefited by an improvement in the same degree, it can not be omitted from the assessment. Davis v. Gaines, 48 Ark. 370; Heineman v. Sweatt, 130 Ark. 70. Those were cases, however, where property lying inside of the improvement district was excluded from taxation, and where it was a demonstrable error to say that the omitted property would not be benefited. It is only in such instances as that that in a judicial review the legislative will may be overturned. The decision of this court in Conway v. Miller County Highway & Bridge District, 125 Ark. 325, is, we think, conclusive of this question. There must be a limit somewhere to the boundary of a district organized for the construction of- an improvement of this kind, and the action of the city council in fixing the boundaries is conclusive, unless it is obviously erroneous and arbitrary. We can not say that the property on the other side of the river will be so obviously, benefited in the same degree as the property on this side as to constitute an unjust discrimination in the assessment of the property in the district for the construction of the improvement.
(7) A majority of the court, therefore, reaches the conclusion, not without some difficulty, it is true, that there is no legal objection to be found to this district, or to the validity of the statute under which it is formed, and that the decree of the chancery court in so declaring was correct. The decree is, therefore, affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Scott produced his account to the Cark County Court for two quires of blank executions, at $1 25 per quire, which was shown by the evidence to have been furnished on application of the clerk of the Circuit Court, for the use of his office. The amount claimed, $2 50, is proved to be a reasonable charge.
The history of the case, from the County Court up to this Court, is the same as that of Clark County vs. Spence.
The 8th section of chapter 30, of English's Dig., requires the clerk to provide suitable books, stationery, furniture, and other things necessary for his office.
These the clerk is to provide, but what the law exacts of him to provide, is not for his own benefit, but what is necessary for his office; books, furniture and stationery that are suitable for the preservation of the county i'ecords, in which every citizen of the comity is interested, furniture for their proper keeping, stationery with which the business of the office is to be done, and whatever else is necessary for the office, for all which the ■ county ought to pay.
And that the county would pay for the things provided, under the authority of the section cited, we think is the meaning of the statute.
The County Court should have allowed Scott’s account. The law authorized and required it to be done.
True economy, the despatch and accuracy of public business are greatly promoted by the use of such blanks as were charged for in the account.
The Circuit Court did right in reversing the judgment of the County Court, but should not have remanded the case to the County Court.
The judgment of the Circuit Court is reversed, with instructions to reverse the judgment of the County Court, and set the case for trial anew in the Circuit Court. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
This case Was brought here by appeal from a judgment for the defendant below, the appellee here.
It is like the case of Gould & Co. vs. Tatum, just decided, being an action of debt upon a note executed at the same time with the note in that case, in which the issues were the same-The same testimony of Whitt and Lee was .given in this case, as in the other, and under like circumstances. A similar motion for a new trial similarly met, and with like result, ^as shown in the transcript.
There was no such evidence as that of the endorsement on the note,,and the reading of the declaration in the other case.
The case of Gould & Co. vs. Tatum was first tried; upon the next day this case was called, and the same jurors that tried that case were brought to try this case. It was admitted by the parties that the issues in this were the same as in that case, and that the evidence would be the same, except the note sued on, and the plaintiffs objected to the proposed jurors as disqualified from sitting as a jury in this case. The court overruled the objection.
By their verdict in the other case, the jurors had formed and expressed their opinion upon this case. And the fact that this was done on oath, after hearing all the facts, and after full deliberation thereon, amid the solemnities and under the direction of judicial proceedings, could have no other effect than ip incline them to render such verdict as they had rendered the day before. The law presumes them to have been under a disqualifying bias, and the objection of the plaintiff should have been sustained.
This case, free from two of the errors attending Gould <$• Co-vs. Tatum and charged with the other one just indicated, must go with it, and the judgment is reversed with the instructions given in the other case. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The appellee recovered judgment against the appellants on a writing obligatory for $500, dated 31st May, 1853; and the appellants have prosecuted their appeal to this court.
The only question involved, relates to a demand for rents, pleaded by way of set-off, which is the identical demand relied on in the case of Trapnall vs. Wassell, decided at the present term, where it was held, upon the authority of Watkins et al. vs. Wassell, 20 Ark. 410, that the demand was unfounded.
The judgment must be affirmed with costs. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of assumpsit brought by Wassell against Mrs. Trapnall, for money had and received — being money received by her, arising from the rent of certain premises, situate in the city of Little Rock. The judgment in the court below was for Wassell, to reverse which Mrs. Trapnall prosecutes this writ of error.
It was decided by this court, in Watkins et al. vs. Wassell, 20 Ark. 410, that Wassell was not entitled to the rents for the receipt of which by Mrs. Trapnall, she is sought to be held liable in this action. See the opinion in that case at page 417, et seq., for the law and facts in this.
The judgment must be reversed and the cause remanded. | [
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Mr. Chief Justice English
delivered the opinion of the Court. The action in this case was assumpsit, for money had and received, brought by Rudd as administrator of Maulding against Saunders as administrator of Wm. McD. Pettit. The defendant pleaded non assumpsit and limitation, and upon the trial, it was proven that the plaintiff had sworn to the demand, as required by the statute, before the commencement of the suit, but there was no evidence that he had presented it to the defendant for allowance before bringing the action upon the demand. The defendant moved the court to instruct the jury as follows:
■ “ That before the plaintiff can recover in this suit, he must show that he swore to the justice of his account and presented the same to John II. Gaunders, administrator of said McD. Pettit, for allowance against said McD. Pettit’s estate, previous to the bringing of this suit.”
Which instruction the court refused to give. There was a verdict and judgment in Javor of the plaintiff for the amount of the demand, and costs of suit. A new trial was refused the defendant, and he appealed.
A demand against the estate of a deceased person must be authenticated by the affidavit of the claimant before suit can be brought upon it in any of the courts.
The oath required by the statute is a prerequisite to the right of action. Gould’s Dig. sec. 102-3, etc., 107 ch. 4; Walker as Ad. vs. Byers 14 Ark. 247.
After the demand is thus authenticated, the claimant may present it to the administrator for allowance, and if rejected, he may apply to the Probate Court for judgment upon the demand, after notice to the administrator, in the mode prescribed by the statute (Ib. see. 116; Hudson vs. Breeding et al., 2 Eng. 446;) or he may bring an ordinary suit upon the claim in any of the courts having jurisdiction of the subject matter. If he commence such suit without presenting the demand to the administrator for allowance, after he' has sworn to it, and the suit is not controverted, he is not entitled to judgment for costs. Ib. sec. 108; Ryan et al. vs. Lemon as Ad. 2 Eng. 78.
But if the suit is controverted, and the claimant recover judgment for the demand, as in the case now before us, he is entitled to costs. Maddin as Adm’r. vs. State Bank, 13 Ark. 276.
In the first case, the fact that the administrator does not con- • trovert the suit, is an indication that if the claim had been pre sented to him (with the affidavit attached) before suit, he would have allowed it, and thereby saved costs; but in the second case, the fact that he controverts the suit is an indication that an application to him,to allow the claim before suit would have been fruitless. We suppose it was for this reason that the legislature declared that the claimant should not be allowed costs in the first - case, and left the second case open for the application of the general rule that the costs follow the judgment.
The court below did not err in refusing to give the instruction above copied; and the counsel for appellant insisting upon no other point, the judgment must be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Tne appellee, Ransom Hester, was tried upon an indictment preferred against him as overseer of the road.
He was acquitted, and the State appealed.
From a bill.of exceptions taken at the trial, it appears that the attorney tor the State proposed to read to the jury thé following entries from the record of the County Court of Crawford county, in connection with other evidence conducing to show that they referred to the road of which the appellee was overseer, to-wit:
“ Ordered that Ransom Hester be and he is hereby appointed overseer of the first district of the Huntsville road, commencing at the corporation line, and terminating at the crossing of the west fork of White fiver.”
“ Ordered by the Court that Amos Oittzen, a Justice of the Peace, be and he is hereby appointed apportioning justice in and for the township of Prairie for the next two years, for the purpose of apportioning the hands liable to work on the roads in said township among the different overseers thereof.”
To the reading of which the appellee objected, for the reason, as stated in the bill of exceptions, that no record was first read in evidence, showing said road to have been districted by the County Court — the prosecuting attorney announcing that the entries proposed to be read, were the only records he had to offer — and the court sustained the objection of the appellee, and refused to permit said records to be read to the jury.
It is made the duty of the County Court, to lay off the public roads, in each county, into convenient districts, with definite boundaries, and to appoint an overseer for each district. Gould’s Digest, chap. 149, sec. 5. But it is not necessary, in the discharge of this duty, that two separate and distinct record entries should be made, the one districting the road, and the other appointing the overseer. That both requirements may be complied with in the same order, we think there can be no doubt; and, in this case, the order appointing the appellee overseer, also indicates the boundaries of his road district, which is a substantial compliance with the statute.
The court erred, therefore, in excluding the evidence.
Let the judgment be reversed. | [
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Mr. Chief Justice English
delivered the opinion of the court.
Replevin in the dctinet, by Nimrod Britt, against James A. Hicks, for a horse. Pleas, non detinet, and property in the defendant, and two other persons, composing the firm of Hicks, Arrington & Co. Verdict for plaintiff, and motion for a new-trial, on the grounds that the court erred in giving instructions moved by plaintiff, and in refusing instructions asked for defendant; and that the verdict was contrary to law and evidence. Motion overruled, and bill of exceptions and appeal taken by defendant.
The evidence introduced upon the trial conduces to prove that the horse was the property of the plaintiff. That he purchased him through one White, his nephew, and let him have the use of the horse as a matter of favor; that while he was in the possession of White, he was levied upon by a constable, and sold as the property of White, and bid off for Hicks, Arrington & Co., who were the plaintiffs in the execution, and taken to a livery stable, by one of its keepers, who was present at the sale. Afterwards the plaintiff brought replevin for the horse, and the deputy sheriff found him in the livery stable and took possession of him, and delivered him to the plaintiff under the writ.
1. The bill of exceptions states that, on the motion of the plaintiff, the court gave the jury certain instructions against the objections of the defendant, but these instructions were not copied into the bill of exceptions; and the clerk states in the transcript, that the office had changed hands since the trial, and the instructions could not be found among the papers of the cause, or elsewhere, in the office. After the case was docketed here, the appellant sued out a certiorari, to perfect the record, on which the clerk of the court below returned, that he has searched diligently, and could find, no instructions asked for by the plaintiff, and given by the court in the cause, on file in his office.
The appellant then filed a joinder in error, and submitted the cause on the transcript sent up upon the appeal.
Whether the appellant was entitled to a new trial on the ground that the court erred, to his prejudice, in charging the jury, we cannot determine unless all the instructions were before us. The instructions given at the instance of the appellee, may have sufficiently and correctly declared the law of the case, and covered, in terms more acceptable to the court, such of the instructions moved by the appellant as announced correct principles of law, and thus no injustice may have been done to him.
It was the duty of the appellant to have incorporated the instructions, to which he objected, in his bill of exceptions, and if he thought proper to leave them among the papers of the cause, and trust to the clerk to insert them in the bill of exceptions, when he came to copy the transcript to be sent up to this court, he must suffer the consequences of any casualty by which they were lost.
We cannot say whether the court erred, upon the whole record, to fhe prejudice of the appellant, in giving and refusing instructions, unless all of the instructions were before us.
2. It is insisted by the appellant that the appellee failed to prove that he was entitled to the immediate possession of the h>rsewhen the suit was brought. That the evidence proved that the appellee let his nephew, White, have the horse to make a crop, and that there was no proof that the crop was complet id, and that the term of the loan had expired when the suit was brought.
White positively testified that the appellee did not agree to let him have the horse until he could make a crop, or for any definite time, but that appellee was entitled to the possession of the horse at any time.
Butler testified that when White purchased the horse for the appellee, he told witness that the appellee was to let him have the horse to plow, or make a crop with, or something to that effect.
Upon this evidence the jury would not have been warranted in finding that White was the owner of the horse for a term, and that appellee had not the legal right to reclaim the horse until the expiration of such term.
3. It is furthermore insisted for appellant that the evidence failed to prove that the horse was in his possession, or unlawfully detained by him at the time the suit was brought.
The evidence conduces to prove, as above stated, that thé horse was bid off for Hicks, Arrington & Co., (of which firm appellant was a member,) the plaintiffs in the execution, at the constable’s sale, and taken to a livery stable, where he was found and replevied by the deputy of the sheriff.
The keepers of the stable were the bailees of Hicks, Arrington & Co., the horse was constructively in their possession, and in legal contemplation unlawfully withheld by them — and the appellee had the right to bring replevin against them, or either of them, or the keepers of the stable who had the actual custody of the horse. The facts of this case are not the same as in Wallace vs. Brown 17 Ark. 449.
4. The appellant submits that a demand before suit was necessary, and that none was proven.
No demand was necessary. McNeil vs. Arnold, 17 Ark 174.
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Mr. Chief Justice English
delivered the opinion of the court.
The will of Jacob Clingfost was admitted to probate, in the Probate Court of Union county, against objections interposed by his daughter, Mrs. Vines, and her husband, who appealed to the Circuit Court, where the judgment of the Probate Court, on inspection of the record, was affirmed, and they appealed to this court.
It was objected that the will was not signed by the testator.
John Ford, one of the subscribing witnesses, testified, that at the time the will was signed, the testator was very weak, and at his instance, Hugh B. Cobb guided the pen while the testator held it, and in this way signed Ms name. He was of sound mind, though in feeble health, but perfectly at himself mentally. Just before signing, Cobb called the witnesses in, and said that was the will of the testator, and read it over; the testator nodded his head, and said “ yes.” Affiant subscribed his name as a witness to the will, in the presence and at the request of the testator, etc. Before the signing of the will, it was read aloud in the hearing of all present, etc., etc.
Wm. Roach, the other subscribing witness, testified that the testator signed the will in the manner stated by Ford, etc., etc.
Hugh B. Cobb testified that he wrote the will, at the request of the testator. Roach came for witness, and said testator wanted him to go and write his will: and he went to the house of testator’s son, where testator was. Found him in very feeble health. He said he had sent for witness to write him a will, witness wrote the instrument in question, read it over to him and he said it was right. After witness had written caption’ he asked testator how he wished to dispose of his property, and he told him, and witness wrote it down nearly in the words of the testator. Ford and Roach were called into the house, after the will had been written and read over to testator, and it was read to them, and testator again sanctioned it as being according to his wish. Witness then presented the paper to testator to sign, in their presence. The room was dark, had but one door, which was shut, and no window, and the bed curtained with blankets, except a small place in front. Testator asked his son Jacob to hand him his specks; and when they were handed to him, he observed that it was so dark that he did not believe he could see, and if he could see, he believed his hand trembled so that he could not write; and he then remarked to his son, “ here, Jake, I reckon you had better write it,” meaning his name — and witness then observed to testator “ for him to hold the pen, and he would write his name for him.” The instrument was laid on the bible, before testator, and in his lap. Witness sat on the side of the bed or leaned against it, deceased held the top of the pen, above his hand, witness guided it, and in this way the name was written. Testator held the staff of the pen with his right hand, above the hand of witness, who held next to the paper, guiding the pen, and in that way it was signed — testator’s hand touching the hand of witness at the time. Testator had his face towards the paper at the time his name was written, but witness did not know whether he saw the letters being formed or not — nor could witness say whether he used any exertion towards writing his name or not, but witness guided the pen in writing the name of testator to the will, as above stated — and the signature was in the obstructed handwriting of witness. Testator was in his proper mind at the time. Witness was not interested in the will, and got nothing for writing it.
Such is the substance of the testimony of Cobb, as stated in the bill of exceptions.
Every last will and testament, of real or personal property, or both, must be subscribed by the testator at the end of the will, or by some person for him, at his request, etc.
Every person who shall sign the testator’s name to any will, by his direction, shall write his own name as a witness, to such will, and state that he signed the testator’s name at his request. Gould’s Dig. ch. 180, sec. 4-5.
It is insisted for the appellant, that the name of the testator was signed to the will, in this case, by Cobb, who did not subscribe his own name, as an attesting witness, and that therefore the will was not executed in accordance with the statute.
A signature, says Mr. Grebnleaf, consists both of the act of writing the parties name, and of intention of thereby finally authenticating the instrument. It is not necessary that the testator should write his entire name. His mark is now held sufficient, even though he was able to write. [This court held the mark sufficient in the matter of Cornelius, 14 Ark. 678.] And if the signature is made by another person guiding his hand with his consent, it is sufficient. 2 Greenleafs Ev. sec. 674.
In Stevens et al. vs. Vandave, 4 Wash. R. 269, the hand of the testator was steadied and guided by one Pharis, and the signature thus written. Washington, J., said, this will, in the opinion of the court, was, upon strictly legal principles, signed by the testator, his hand being with his own consent guided by another and the will afterwards acknowledged by him. Under these circumstances the act of Pharis was, in point of law, (he act of the testator.
In Vandruff et al. vs. Reinhart, 29 Penn. State Rep. 232, the testator was so badly affected with palsy, he could not hold the pen to write his name. Pie attempted to make his mark, but wasxmable to do so without assistance, and aby-stander steadied his hand while he made his mark. The court said: If one having testamentary capacity, is unable from palsy or other cause, to steady his hand so as to make to his will the signature required by law, another person may hold his hand, and aid him in so doing; and it is not necessary to prove any express request from the testator for such assistance. The act is his own, with the assistance of another, and not the act of another under authority from him.
In the case now before us, there was no fraud or .unfairness practiced on the testator. The will was written at his request, and as dictated by him. He manifestly had the mental capacity to make his will. It is clear that'his intention was to sign the will as prepared for him, but being unable to do so, from weakness, he was assisted by Gobb, who appears to have acted in good faith, and merely aided the testator to do what he manifestly desired to do- — to sign the will.
Under these circumstances we think the signature was, in legal effect, the act of the testator, and not the act of Gobb by his request. ' ,
There is no other point in the case that need be noticed.
The judgment must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an action of covenant brought by Robt. W. Carter against John Adamson in the Pulaski Circuit Court.
The action was commenced 18th March, 1857, and founded on a covenant entered into on the 7th of July, 1841, at Little Rock, by the plaintiff, the defendant, and one Jesse T. Higgins, who were partners in the mercantile business, and by which Carter sold and assigned to Adamson and Higgins his entire interest in the partnership effects; in consideration whereof they covenanted and bound themselves to pay and satisfy all the creditors to whom Carter stood chargeable and indebted for and concerning the affairs and dealings of the co-partnership, and to save him harmless, etc.
Breach, that plaintiff was sued on one of the partnership debts in the Circuit Court of Montgomery county, in the State of Maryland, on the 12th day of February, 1844, and after pleading, etc., etc., judgment was finally obtained against him by the plaintiffs in the action, on the first Monda}r of March, 1854, for $327 35 damages, and $28 16 costs, which he was compelled to pay, etc.
The defendant pleaded.
1. That he did not execute and deliver said covenant in the declaration mentioned within five years next before the commencement of this suit.
2. That the cause of action in the declaration mentioned did not accrue within five years next before the commencement of this suit.
3. That the cause of action upon which the judgment was recovered in the declaration mentioned, did not accrue within three years next before the institution of said suit in which said judgment W'as recovered.
4. That the cause of action upon which the judgment was recovered in the said declaration mentioned did not accrue within five years next before the institution of said suit in which said judgment was recovered.
5. That the cause of action in the declaration mentioned did not accrue for or on account of any payment by said plaintiff of any indebtedness or liability due or owing by the said former partnership of Robt. W. Carter, John Adamson, and Jesse T. Higgins.
6. That said judgment in the declaration mentioned was not recovered for or on account of any partnership indebtedness or liability due or owing or demand against said Robt. W. Carter, John Adamson and Jesse T. Higgins.
7. That the plaintiff did not, and never has paid the said sum of-so recovered against him, nor any part thereof in manner and form as in said declaration alleged.
' To the first plea the plaintiff replied that even though defendant did not within five years next before the bringing of this suit execute and deliver the said covenant, in the declaration mentioned, to the said plaintiff, precludi non, because he says the right of action did not accrue to the said plaintiff until the breaking of said covenant by said defendant suffering judgment against said plaintiff on account of said partnership transactions, violative of the covenant, as alleged in the declaration, etc.
(To this replication the defendant took issue, after demurrer thereto overruled.)
To the 2d plea the plaintiff replied that the cause of action in the declaration mentioned did accrue within five years next before the bringing of this suit.
(To which replication defendant took issue.)
To the 3d and 4th pleas the plaintiff demurred, the court overruled the demurrer and the plaintiff rested.
To the 5th plea the plaintiff replied that the causé oí action, in the declaration mentioned, did accrue on account of a payment by him of a debt which was due and owing by said former partnership of Robt. W. Carter, John Adamson, and Jesse T. Higgins.
(To which replication defendant took issue.)
To the 6th plea the plaintiff replied that the judgment in the declaration mentioned was recovered on account of a partnership indebtedness due and owing by said Robt. W. Carter, John Adamson and Jesse T. Higgins.
(To which replication the defendant took issue.)
To the 7th plea the plaintiff took issue.
The issues were submitted to a jury, and verdict and judgment for the defendant.
Plaintiff took a bill of exceptions in relation to the charge of the court to the jury, and appealed.
1. The declaration alleges that the suit upon the partnership debt was brought against Carter in the Maryland,Court, on the 12th of February, 1844. At that time the Arkansas limitation to an action on a simple contract, was three years, and to an action on a bond for the payment of money, five years. The counsel for Adamson say that they pleaded the statute of three and five years (in the 3d and 4th pleas) because the declaration did not show whether the partnership debt upon which the judgment was recovered against Carter in Maryland, was evidenced by an unsealed or sealed instrument.
Taking the 3d and 4th pleas to be true, as admitted by the demurrer, and that the suit was not brought, upon the partnership debt, against Carter, in the Maryland court, within the period of limitation prescribed by the statute of Arkansas, is that a good defence to this suit brought by Carter against Adamson on the covenant of indemnity, etc? We think not. Carter having been sued in the Maryland court, the remedy was regulated by the limitation law of that State. Such at least is the general rule. Angel on Lim. 62, etc. If the cause of action on the partnership debt was barred by the limitation law of Maryland, at the time Carter Avas there sued, Adamson should have pleaded that fact, averring in the plea what the law of Maryland was, inasmuch as the court here could not judicially know what the law of that State was. 1 Chitty's Plead. 216.
Whether Carter was bound to plead, and insist upon the statute of limitation of Maryland, or not, is a question not now before us. The court erred in overruling the demurrer to the 3d and 4th pleas.
2. On the trial the plaintiff asked the court to charge the jury that: “If they believed from the evidence that the said judgment was obtained within five years before the bringing of this suit, and that the judgment was obtained on account of a subsisting indebtedness due and OAving by the firm of Carter, Adamson, and Higgins, and that the plaintiff in this suit had paid the amount of said judgment so obtained against him, they will find for the plaintiff;” — which instruction the court refused to give.
But, on the motion of the defendant, the court instructed the jury as follows: “That the cause of action of said plaintiff, if any he ever had, occurred upon the covenant sued on herein within a reasonable time after the execution thereof; and that if the jury believe from the evidence that more than five years have elapsed prior to the commencement of this suit, and after the lapse of a reasonable time from the execution of said covenant sued on, they must find for the defendant.”
The clause in the covenant on which the suit was founded is as follows: “And the said John Adamson and Jesse T. Higgins for themselves, their executors, administrators or assigns doth covenant that they will at all times hereafter pay and satisfy all the creditors to whom the said Robt. W. Carter standeth chargeable or indebted for and concerning all the affairs and dealings of the said co-partnership, and shall at all times save harmless the said Robt. W. Carter, his executors or administrators from them and every of them.”
The most reasonable interpretation of this covenant is that it contains two distinct stipulations on the part of Adamson and Higgins: 1. That they would pay and satisfy all of the creditors of the firm to whom Carter was responsible as one of the partners: 2. That they would save him harmless on account of the partnership debts. In other words, they covenanted not^only to pay the debts but to indemnify him against loss or damage on account thereof.
There being no time fixed in the covenant for the payment of the debts, it may be supposed that it was the intention of the parties that such of them as were due at the date of the contract should be paid immediately, and that such of them as were not then due, should be paid at maturity. According to the current of adjudications, on the failure of Adamson and Higgins to pay such of the firm debts as were due at the date of the covenant within a reasonable time thereafter, or on their failure to pay such of them as were not then due within a reasonable time after maturity, the stipulation in the covenant for the payment of the debts was broken, a cause of action thereon accrued to Carter, and the statute of limitation began to run ©n the accrual of the cause of action. But be this as it may, it is not necessary for us to express any opinion on this point, as in the case now before us the action is not founded on the stipulation of the covenant to pay the debts, but on the indemnity clause of the covenant. And Carter was under no legal compulsion to avail himself of any right of action that may have accrued to him on the former clause of the covenant, but had his election to rest upon the latter clause for protection against loss or damage, etc.
Upon the indemnity feature of the covenant, no right of action accrued to Carter until he was subjected to damage on account of the partnership liabilities, and of course the statute of limitation did not begin to run against him until after the cause of action accrued, Churchill vs. Hunt, 3 Denio 321; Gilbert vs. Weinan, 1 Comstock 563; In the matter of Negus, 7 Wend. 503; Thomas vs. Allen, 1 Hill 145; Lathrop vs. Atwood, 21 Conn. 117; Dorsey vs. Dashiell, 1 Maryland Rep. 202; Sedgwick on Dam. 313.
The court below erred in refusiug the first instruction moved by the plaintifF; and in giving in lieu thereof the instruction moved by the defendant.
3. On the trial, the plaintifF read in evidence a regularly authenticated transcript of the proceedings and judgment of the Maryland court referred to in the declaration.
At the foot of the judgment entry is the following: “Mem. 10th. Tried and verdict for the plaintiffs, damages $327 35 and judgmenCon verdict, damages $327 35 ct. mo. with interest from 10th day of March, 1854, and cost $28 16-J, and satisfied by Robt. W. Carter per line filed 1st April, 1854.”
This memorandum is embraced in the transcript as a part of the record of the cause. The last clause of it is doubtless an entry of the satisfaction of the judgment under the Maryland practice, and is prima facie evidence of the payment of the judgment by Carter. Snider vs. Greathouse et al., 16 Ark. 72. This case is unlike that of Chipman vs. Fambro, ib. 291, relied on by the counsel for the appellee. See also Bone as ad. vs. Torry, ib. 93; Slate use etc., vs. Martin, et al. 20 ib. 629.
The court below erred, therefore, in refusing to charge the jury that the transcript was evidence of the payment and satisfaction of the judgment by Carter.
The judgment must be reversed, and the cause remanded for further proceedings, etc. | [
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Mr. Chief Justice English
delivered the opinion of the court.
On the 25th of February, 1857, the appellee, Philip Pennywit, presented a petition to the Judge of the Circuit Court of Sebas tian county, sitting in chancery, in term time, alleging in substance, as follows:
That, at the August term of said court, 1856, in a suit' in chancery therein pending, in which one Burton, internal improvement commissioner, etc., was complainant, and Charles B. Johnson, Marshall Grimes, G. Adolphus Meyer and others were defendants, a decree was rendered in favor of the complainant, foreclosing a mortgage upon a tract of land, directing a sale of the mortgaged premises for the payment of the debt, etc., and appointing a commissioner to make the sale, etc.
That in pursuance of the decree, the commissioner sold the land, on the 16th. of February, 1857, and the appellee became the purchaser, paid the purchase money, obtained the commissioner’s deed, and on the 20th of the same month, the commissioner made his report of the sale to the court, which was approved and confirmed. That at the time of the filing of the bill to foreclose, and at the time of rendering the decree, and from thence until the sale, Marshall Grimes, one of .the mortgagors, and one of the defendants to the bill, was in possession of the mortgaged premises, in person, or by tenants claiming under him, etc. But that the said Grimes, in order to harrass, perplex and defraud appellee, had since the sale, delivered the keys of a steam mill situated on the land to EthelbertB. Bright, (the appellant,) and put him into possession of the premises, who had refused to surrender .possession to appellee upon demand, etc. Prayer for an order supplemental to the decree and confirmation of the sale, directing the sheriff to put the appellee into possession of the premises.
The appellant filed a response to the petition, stating, in substance, that he was a stranger, and not a party to the proceeding, etc., for foreclosure, etc. Admits that he was in possession of the mortgaged premises, and avers that he had been since the 5th of September, 1855, about twelve months prior to the decree; and that he held such possession and claimed title adversely to the title of the defendants therein.
He denies that he then, or ever, held possession of the premises as the lessee, tenant or agent of the defendants in the decree, or any, or either of them.
He also denies that Marshall Grimes ever delivered to him the keys of the steam-mill, or the possession of the premises, as alleged in the petition. Insists that he is entitled to the possession of the premises, and prays to be discharged, etc.
The matter was heard upon the petition, response and evidence introduced, and the court made an order in favor of appellee for the possession of the premises, and that a writ of possession be issued, etc., as prayed.
From a bill of exceptions taken by the appellant, it appears, that upon the hearing the appellant read in evidence the decree of foreclosure, and the deed executed to him by the commissioner who made the sale under the decree.
The appellee also proved that all of the defendants in the decree were duly served with process, thirty days prior to the August term, 1855, notifying them of the pendency of the suit to foreclose, etc.
That before filing the petition, he had demanded of the appellant possession of the premises, which was refused, etc.
The clerk then brought into court a book purporting to be the record of deeds and mortgages for Sebastian county, from which the appellee offered fo read a deed purporting to have been executed by the sheriff of the county to the appellant, for the premises in question, etc., and in connection therewith introduced Solomon F. Clark, Esq., as a witness, who stated that the original of said deed was not in the possession or under the control of the appellee. That the appellant was in the court-house on the previous day, and hearing vritness say he intended .to serve notice on him to produce the deed, left, and that the notice was placed in the hands of the sheriff, who returned it, not served.
Appellee also introduced John Carnall, as a witness, in connection with his offer to read in evidence the deed from the record book, who stated that two days previous he saw the original deed in a pocket-book belonging to. Ben. T.' Data!, Esq., in the town of Greenwood.
Appellee also introduced Duval, who stated that the deed was in the possession of John King, Marshall Grimes, or the appellant; that King and Grimes had been in the court-house on that morning, and the appellant on the day before. Upon this showing, the court permitted the appellee to read in evidence the deed from the record book, against the objection of appellant, who insisted that it was irrelevant, and that the showing was not sufficient, etc. The deed is copied in the bill of 'exceptions.
The appellee introduced no other evidence, and the appellant none.
In Kershaw vs. Thompson, 4 John. Ch. R. 613, Chancellor Kent said: “ It does not appear to consist with sound principle, that the court, which has exclusive authority to foreclose the equity of redemption of a mortgage, and can call all the parties in interest .before it, and decree a sale of the mortgaged premises, should not be able even to put the purchaser into possession against one of the parties to the suit, and who is bound by the decr'ee. * * * * * If it was to be understood that after a decree and sale of the mortgaged premises, the mortgagor or other party to the suit, or perhaps those who have been let into possession by the mortgagor, pendente lite, could withhold the possession in defiance of the authority of the court of chancery, and compel the purchaser to resort to a court of law, I apprehend that the delay and expense, and inconvenience of such a course, of proceeding, w’ould greatly impair the value and diminish the results of sales .under a decree. * * * * * A bill to foreclose the equity of redemption is a suit concerning realty, and in rem, and the power that can dispose of the fee must control the possession.”
In the case of Frelinghuysen vs. Golden, 4 Paige 206, the Chancellor (Walworth) said: “ Where mortgaged premises are sold under a decree of foreclosure, the purchaser is entitled to the assistance of the court in obtaining the possession, as against parties to the suit, or those who have come into possession under them subsequent to the filing of notice of the commencement of the suit. But the court has no jurisdiction, in a summary proceeding, to determine the rights of third persons claiming title to the premises, who have received the possession of the same by legal and adverse proceedings against a party to the suit, under a claim of right which accrued previous to the filing of the bill to foreclose.
And so it was held in Van Hook vs. Throckmorton, 8 Paige 33, that a purchaser under a decree of foreclosure is not entitled to a writ of assistance to turn a person out of possession of the mortgaged premises, although such person went into possession pendente lite, unless he went into possession under or by the permission of some one of the parties to the suit.
We think it clear from the above, and other adjudications, that the court of chancery has the power to order the purchaser under a decree of foreclosure to be put into possession of the premises, and to enforce the order by appropriate process, where the person in possession does not claim to hold by title paramount to that of the parties to the decree of foreclosure. 2 Smithls Ch. Pr. p. 214, and note; 1 Bland Ch. R. 363; Hoff. Master Ch. 237; 2 Hen. (f Munf. 8.
In this case, upon the application of the appellee for an order, supplemental to the decree, for a writ of possession, a rule was issued and served upon the appellant to show cause why the order should not be made. In his response he admits that he went into possession of the premises after the filing of the bill to foreclose, but denies that he held under any of the parties to the bill, and avers that he held possession and claimed the premises by adverse title, etc.; but he does not set out his title in the response; nor did he produce, or offer to produce, any title upon the hearing, so as to enable the court to determine whether the alleged title was of a character which could not be the subject of adjudication in the summary proceeding before the court.
In Commonwealth vs. Ragsdale, 2 Hen. & Munf. 8, the court said the usual course had been, to make a rule upon the person in possession, where he was not a party to the suit to foreclose, and unless he showed a paramount right in himself, to order the property to be delivered, etc.
The appellee made a prima facie case for the order, by introducing the decree of foreclosure, the commissioner’s deed to him, and by showing that the appellant came into possession of the premises after the filing of the bill to foreclose, the service of the process, etc., and if the appellant held by title paramount, it was incumbent upon him to show it.
The appellee, however, made, an unnecessary attempt to show that the appellant purchased the property at execution sale, after.the filing of the bill to foreclose, under judgments recovered against parties to the bill subsequent to the mortgage, etc.. The appellant objected to the reading of the sheriff's deed from the record book, etc.
On the showing made for the appellee (by his counsel) that the original deed was “ not within his power and control,” he had'the right to read the copy from the record, which appears from the certificates attached to it, to have been duly acknowledged .and recorded. See Gould’s Dig., chap. 37, sec. 27.
If it was necessary for the appellee to give the appellant notice to produce the original deed before he could read in evidence the registered copy, as insisted by the counsel for appellant, the testimony conduces to prove that the appellant evaded the service of the notice, and avoided the production of the original.
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Mr. Justice Compton
delivered the opinion of the Court.
This was a bill in chancery, brought by Edmund McGehee, the appellant, against Martin R. ,P. Mathis, as and in his capacity of sheriff and tax collector for the county of Chicot.
The bill alleges that the appellant, during the years 1855, 1856 and 1857, entered and located with scrip, which had been 'issued upon levy contracts, made prior to the 11th day of January, 1855, a large quantity of swamp lands, amounting in the aggregate to over ninety thousand acres, situate in Chicot county. That the lands having been entered with such scrip, were, under the 14th section of the act of the 5th January, 1851, exempt from all taxation whatever, for the space of ten years. That the 14th section of this act was repealed by the act of the 11th January, 1855, and the lands made subject to taxation for State and county purposes, as other taxable property. That by an act passed on the 7th of January, 1857, the State authorized a special levee tax to be levied in that county, under which no lands could be assessed at less than ten dollars per acre. That the levee tax on the lands of the appellant, under that law, amounted to the sum of $4,744 45 annually, and that the sheriff was proceeding to assess and collect the same. The prayer of the bill is, that the sheriff be restrained from collecting any taxes on said lands until after the lapse of ten-years from the date of entry; that the act of January 11th, 1855, be declared void, as impairing the obligation of contracts, and that the special levee tax laid be declared unconstitutional and likewise void.
An injunction was granted in strict accordance with the prayer of the bill.
The appellee answered, averring that the lands in the bill mentioned, were subject to taxation, and had been regularly-assessed under the levee act. ' He also, in his answer, specially insisted that there was no equity in the bill — that the court had no jurisdiction to restrain by injunction or decree, the collection of a tax levied under the authority of law, and that at the hearing, he would rely on these defences.
To expedite the cause, the following agreement, in writing, was entered into by counsel representing the parties, which was filed and became a part of the record in the cause, viz:
“ 1. The lands mentioned in the bill, situate in Chicot county, are confirmed swamp lands, and were purchased by the complainant with scrip issued upon levee contracts made prior to the llih January, 1855, but were actually purchased and entered after the passage of that act. They are what are known as alluvial lands, and are owned by MeGehee, who is a non-resident, and a citizen of the State of Tennessee.
“2. Under the act of the 11th of January, 1855, the said lands were furnished to the defendant, as assessor of Chicot county, by the auditor, in due form of law, and by such assessor regularly assessed for the year 1858, for State and county taxes, and those taxes being stricken out by the County Court, leaves only the levee tax as the subject matter of controversy.
“3. Under the act of the 7th January, 1857, concerning levees in Chicot county, levee inspectors were elected, a levee board instituted, meetings held, the county divided into levee districts, the assessment list made out and returned, and passed on by the County Court, the valuation and tax fixed,- as appears by the exhibits to the answer, and the levee tax book delivered to the defendant as sheriff, all in due time and according to that act. The levee tax thus assessed, being unpaid, publication and advertisement was made in strict accordance with that act, and the sale prevented by the injunction.
“ 4. The steps taken and the proceedings had, have been in accordance with said act; but the complainant insists that the act is unconstitutional and that said lands are not taxable for levee purposes, the defendant affirming that they are.
“ 5. The levee tax assessed on said lands amounts to the sum named in the bill.
“ 6. Replication to the answer, in short, and the cause to be heard by consent at the present term, on bill, answer, exhibits, replication and this agreement.”
On the final hearing the injunction was dissolved, and the bill dismissed for want of equity.
In disposing of the several question's raised and argued, we will first consider the objections taken to the validity of the act of 7th January, 1857.
That act provides'that the county of Chicot shall be laid off into levee districts. That for each district there shall be elected one inspector, who shall reside therein, and that no person shall be entitled to vote in such election who does not reside on or cultivate alluvial lands in the county.
After providing for the qualification of the several inspectors, and their organization as a board, it is further enacted, in substance, by the 14th section of the act, that there shall be levied and collected in the county of Chicot, an annual levee tax on all alluvial lands in said county, that would be benefited by levees, and which are or shall be taxable for State revenue, the rate thereof to be fixed by the County Court for each year— commencing with 1857 — at not less than one-fourth of one per centum upon the assessed value of said lands — provided that no lands so taxed, shall be valued at less than ten dollars per acre; that each levee inspector shall assess the lands in his district, and shall be the sole judge of what land would be benefited by levee work, and shall embrace in his assessment list only such as he shall deem-of that description, and that they shall make out and certify under oath, their respective assessment lists, and make due return thereof.
By the 15th section of the act, it is made the duty of the Court upon the return of the assessment lists, to make an order levying the tax, in which the amount per acre and time of payment are. to be designated, which order is tc be published in the manner prescribed by the act, and on such publication being made, all the lands in said county subject to the tax, are to be considered as duly and legally assessed, and the tax duly levied thereon; and such order being recorded by the clerk of the Circuit Court,it is made his duty to attach a copy of the same to each tax list o'f the State and county revenue — made out annually — and to extend the said tax against all lands subject thereto, contained in such list, in a separate column, to be provided for that purpose.
Then comes the last clause of section 15, which is as follows:
“ And said board of levee inspectors shall have power, and it is hereby made their duty, at their annual meeting in-May, to adjust the assessment and levy of said tax, by hearing and deciding all questions relating to the improper assessment and location of any land, or the omission to assess and tax any legally taxable, under the provisions of this act, and make additions to or deductions from the taxes, as charged in such list, upon any land or against any person whatsoever, and such correction and deduction may be made upon the affidavit of the person applying therefor, stating the ground upon which it is claimed, or any other information or evidence, satisfactory to the board of inspectors, whose decision thereupon' shall be final; such board shall make a list of all such corrections and deductions, and deliver the same to the clerk, who shall certify and attach a copy thereof to such tax list made out by him, wdiether the same shall have been previously delivered to the collector of the State and county taxes, or otherwise, and so reform such lists as to make them conform thereto, and the collector of the taxes shall collect,” etc., etc.
The first objection relied on is, that so much of the act as requires the lands to be assessed at not less tha.n ten dollars per acre, is in conflict with that clause of the constitution which says: “ all property subject to taxation shall be taxed according to its value — that value to be ascertained in such manner as the General Assembly shall direct; making the same equal and uniform throughout the State.” In answer to this, it is sufficient to say that this clause of the constitution applies to taxation for State purposes, as held by this Court, on a careful review of its former decisions, in Washington vs. The State, 13 Ark. 752.
It is next insisted, that so much of the 15th section of the act as confers on the board of inspectors certain powers therein mentioned, conflicts with section 9, Art. 6 of the constitution, which declares that the County Court “ shall have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”
The term “ taxes,” as employed in this clause of the constitution, must be construed to have reference to taxation for general county purposes, which is a common burden imposed for the common welfare, and not to special local assessments (as provided for by the act of 7th January, 1857,) where the fund raised is expended for the improvement of the property taxed. Legislative sanction of. such, assessment is ordinarily procured by the action of the parties interested; and that they are widely distinguishable from taxation for governmental purposes, is well established by the authorities.
In the Egyptian Levee Co. vs. Hardin, 27 Missouri 495, it appears that, for the purpose of reclaiming from liability to inundation a district of country between the Des Moines, Fox and Mississippi rivers, in Clark county, a company was chartered by the legislature of Missouri, authorized to construct levees and dig canals, and raise the fund necessary for such construction by a tax, not to exceed fifty cents per acre, upon the landholders in the district embraced within the charter'. Each land-owner was allowed a vote, in the control óf the work, for every forty acres of land he owned in the limits. The towns of Alexandria and Churchville, with their additions, were excepted from the operation of the charter, although within the district of country embraced by it. Suit was brought to recover so ue of the assessments, and the defence was, that the act of the legislature was unconstitutional, because the land was taxed by the acre, and not in proportion to its value. The Court said: “that provision of our State constitution, which requires taxation to be proportioned to the value of the property on which it is laid, is only applicable to taxation in its usual, ordinary and received sense, and is therefore limited to taxation for general purposes alone, where the money raised by the tax goes into the State treasury, or the county treasury, or the general fund of some city or towm, and is applicable to any purpose to which the legislative body of such State, county or town may choose to apply it; and is not intended to apply to local assessments, w'here the money raised is to be expended on the property taxed.”
In The matter of the Mayor of New York, 11 John. 80, certain churches insisted that their lots were exempt from assessments for opening, enlarging, or otherwise improving streets in the city of New York, made pursuant to an act of the legislature passed in 1813. The Court said in that case: “These assessments are intended and directed to be made upon the owners of lands and lots who may receive ‘ benefit and advantage ’ by the improvement. The exemption granted by the act of 1801, was in the general act for the assessment and collection of taxes; and the provisions of that act refer to general and public taxes to be assessed and collected for the benefit of the town, county, or State at large. The words of the exemption are, that no church or place of public worship, nor any school house ‘should be taxed by any lawr of this State.’ The word ‘ taxes ’ means burdens, charges, or impositions, put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word talliage; (2 Inst. 532,) and Lord Holt, in Garth. 438, gives the same definition, in substance, of the word “ tax:n To pay for the opening of a street in a ratio to the benefit or advantage derived from it, is no harden. It is no talliage or tax within the meaning of the exemption.”
In Northern Liberties, etc. vs. St. John's Church, 1 Har. 104, the same question arose, and the Supreme Court of Pennsylvania put the same construction on the word tax, and held that the church property, though exempt from taxation, under the general revenue law, was, nevertheless, subject to local assessments appropriated to the improvement of the property itself. The Court said: “ Taxes are a public imposition, levied by authority of the government, for the purpose of carrying on the government in all its machinery and operations. They are imposed for a public purpose; whereas municipal charges are often for the benefit of lot holders on a particular street, and the assessment, as in this instance, induced by the request, made known according to the charter, of a majority of the inhabitants.”
Mr. Justice Martin says, in the case of The State vs. New Oilcans Nav. Co., 11 Mart. 309, “These words (impost, tax or duty,) must be confined to the idea which they commonly and ordinarily present to the mind, exactions to fill the public coffers, for the payment of the debt, and the promotion of the general welfare of the country, not to a contribution provided to defray the expenses of building bridges, erecting cause-ways or removing obstructions in a water-course, to be paid by such individuals only who enjoy the advantages resulting from such labor and expense.”
The Ordinance of 1787 declared that “all the navigable waters leading into the St. Lawrence and Mississippi, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the territory as the citizens of the United States or those of any other State that may be admitted into the confederacy, without any impost, tax or duty therefor.” This provision was literally copied in the act of Congress of March 2, 1805, and it was held, in the-case from which Judge Martin’s remarks are quoted, that the charter of the New Orleans Navigation Company, which authorized a tax to be levied on vessels navigating the Mississippi for the purpose of raising a fund to be applied to the improvement of that navi gation, was not a tax or impost or duty, within the meaning of the act of Congress or the ordinance from which It was copied. The same principle was decided in Crowley vs. Copley, 2 Louis. Ann. 329. Under a law of that State, the owner of land on the Mississippi, was required to construct levees or embankments; and if the'owner failed to construct or keep in repair, his portion of the levee, an officer, called the district inspector, had the levee built or repaired, and assessed the cost upon the land of the delinquent proprietor. This assessment was held not to be' within the act of Congress, which exempted from State taxation all public lands of the United States for five years after they were sold under the direction of Congress.
These, and other authorities which might be cited, show the construction which our sister States, through the judiciary, have put upon the term “ taxes,” as employed in their constitution and revenue laws; and it is not reasonable to suppose that the framers of our constitution intended to use the term in a different sense in.that instrument.
Nor are the levees provided for by the act of 7th January 5 1857, an “internal improvement and local concern” within the meaning of that clause of the constitution last above stated. Those terms, as there employed, relate to public internal improvements and local concerns for general county purposes — which appertain to the county at large as a body politic — and not to improvements for special local purposes, where the funds expended in making the improvement, are raised by assessments imposed only on the particular property improved.
None of these co’nstitutional provisions apply to the exercise of the taxing power of the government in the form provided for'by the act under consideration; and it follows, as a consequence, that the power conferred on the board of levee inspectors, “to adjust the assessment and levy” of the tax “by hearing and deciding all questions” in relation thereto, was legitimately conferred — and, by conferring such power, the legislature did not constitute them a court, as seems to be sup posed in the argument. There is, as has been seen, no constitutional provision requiring such assessments to be made and enforced through the instrumentality of a Court; and there is nothing in the nature of taxation itself, in whatever form exercised, which makes it indispensably necessary that the acts of assessment and collection should be performed under the sanction of a judicial tribunal. Parham vs. Decatur County, 9 Geo. 352; McCarroll vs. Weeks, 2 Tenn. 213; 6 Monroe 643; 1 Peters 669.
The power of taxation and the mode and manner of exercising the power, in the absence of constitutional restrictions, belong to the legislature. In the performance of their duties, the board of inspectors acted, therefore, as ministerial and not as judicial officers.
But it is objected that, by the 15th section of the act, the decision of the board of inspectors, touching the matters confided to their jurisdiction, is made final, and concludes all further investigation as to the legality of the assessments— which, it is contended, is unconstitutional.
If this were conceded, it would not destroy the validity of the whole act, because it is well settled that'one part of an act may be unconstitutional and void, and other parts of the act, not necessarily dependent on it, valid. Hence., those provisions of the act which authorize the assessment and collection of the tax would remain unimpaired, because not obnoxious to the objection; while so much of the act as denies the right to test the legality of the assessment by judicial investigation, would be declared void. So that if this objection were well taken, it would only secure to the appellant the right to impeach the assessment for illegality — if any in it — notwithstanding the decision of the inspectors.
The construction contended for, however, is not a sound one. The act, after stating what the inspectors shall hear and decide, provides that their “ decision thereupon shall be final.” From this we do not understand that the legislature intended to close the door of the Courts against a party whose land had been illegally assessed. Suppose the land of A is assessed when it is not liable to taxation, by reason of an exemption, or of its not lying in the alluvial district. He appears before the board of inspectors — raises the question, and it is decided against him. Was it the design of the legislature, in such a case, to deny A the right to apply to the Courts' for relief? But suppose the land is sold for the taxes assessed, and the purchaser brings ejectment. Was it intended that A should be precluded from setting up the illegality of the assessment as a defence to the action? The power of the legislature so to enact has been gravely doubted. But whatever may be the power of the legislature, the moral injustice of such a law would be so monstrous, that such a construction should not be put on the statute in question, if, by a strict construction, confined to its very words, one more just and reasonable can be adopted. Blackwell on Tax Titles,p. 102, 103, 104, and authorities there cited.
True, the decision of the board of inspectors in the matters which they are authorized to hear and determine, is declared to be final. But this is to be understood in that sense which makes it final so far only as to conclude further investigation by the ministerial officers acting in the assessment and collection of the tax. The decision of the board is pronounced in a ministerial proceeding, and so far as regards its conclusiveness, must be understood to have reference to proceedings of that character — and not to judicial proceedings. It is no where expressly provided in the act, that a party, feeling himself aggrieved in the assessment of his land, shall be debarred the privilege to prosecute or defend his rights in the courts; and we will not extend, by implication, the operation of the act, and thus impute to the legislature the intention to exercise a power so arbitrary and unjust.
By express provision of the act of 7th of January, 1857, such lands only as are taxable for State revenue, are made subject to the special assessments provided for by that act; and this involves the further question, whether, under our revenue laws, the lands of the appellant are subject to taxation for State pur poses. He affirms that they are not, and relies for their exemption on the 14th section of an act of the legislature, passed on the 6th January, 1851, to provide for the reclamation of the swamp and overflowed lands of'the State.
By this act the swamp land commissioners were required to let out the making of levees and drains by contract, at a stipulated price per cubic yard, to the lowest bidders; payment for which was to be made in the lands reclaimed, or the proceeds of the sales thereof, at the price previously fixed by the commissioners, and the contractor might, at his option, demand and receive in payment the land reclaimed in kind, or land scrip representing quarter section tracts — which scrip was transferable by assignment, and might be located on any portion of the unselected swamp and overflowed land. And when any contractor had selected land in payment for his work, or having received scrip, had located it upon unselected land, he was required to furnish the numbers to the commissioners, and, on their certificate, the Governor was directed to execute a deed to the contractor, or his assignee, in due form'of law. Secs. 3, 4, 5, 6, Swamp Land Laws, p. 6.
The 14th section of the act is as follows:
“ That to encourage, by all just means, the progress and Completion of the reclamation, by offering inducements to purchasers and contractors to take up said lands, the swamp and overflowed land shall be exempt from taxation for the term of ten years, or until said lands are reclaimed.”
By the act of the 11th of January, 1855, (Acts 1854, p. 127,) this section was repealed, and all swamp and overflowed lands, sold or located, made subject to taxation, as, under the revenue laws, other lands were'.
It is insisted for the appellant, that, although his lands were not actually purchased until after the passage of the repealing act, yet, being purchased with scrip which issued on levee contracts made prior to the passage of that act, they were, by contract between him and the State, brought within the exemp tion provided for by the 14th section of the act of the 6th January, 1851. We do not think so. The 14th section of that act underwent discussion and was construed by this Court in The State vs. County Court of Crittenden County, 19 Ark. 360. In that case the Court held that the 14th section was, in legal effect, an offer, on the part of the State, to sell her swamp lands, in which she proposed, as an inducement to purchasers, to exempt them from taxation for ten years, or until 'they were reclaimed; that such of them as were sold under the provisions of the act, while the 14th section thereof was in force, were, by contract between the State and the purchaser, exempt from taxation; and that the period of exemption began at the date of the purchase from the State, and continued for ten years, if the lands were not sooner reclaimed, and if they were, ceased upon their reclamation; and in no event continued longer than ten years, whether reclaimed or not.
The Court did not decide that the 14th section of the act of 1851, was irrepealable, but did decide, that it could not be repealed so as to affect the exemption’ in favor of those who had purchased swamp lands prior to the passage of the repealing act, and in this was well warranted on principle and by authority. In the offer of the State, the exemption was held out as an inducement to purchasers and contractors to purchase, or, in the language of the act, “ to take up ” the lands, and not as an inducement to contractors to take scrip. Until the offer was accepted, or, in other words, until a purchase was made, there was no contract. Did the State not have the right to withdraw her offer? Was she bound to wait, in order that the holders of the scrip, after speculation had ceased to be desirable, might have an opportunity to secure the exemption? The State was under no obligation, legal or moral,-to do so.
According to the plain provisions of the act of 1851, the contractor might take land in kind, or take land scrip. It was left to his choice to do either. Various considerations might, and doubtless in many instances did, influence the contractor to take scrip instead of land in kind. If he took land, it was to be at the price per acre previously fixed by the commissioners, and he was confined, in his selection, to such lands only as were reclaimed, however undesirable they might be; But if he took scrip, it could, as the law then was, be floated, and with it, the contractor could purchase unselected swamp land, lying any where within the limits of the swamp land grant, at the same price per acre, even though the land, thus purchased, should be intrinsically more valuable than those which had been reclaimed. Again: The lands being wild and productive of no present income, the contractor might not be willing to invest the proceeds of his labor in them, and wait indefinitely for the fruits of the investment — whereas, the scrip being assignable, he could, by receiving and selling it, realize its then present cash value. To take land in kind was one thing, and to take scrip was quite another. If the contractor took land, he became a purchaser, and acquired the exemption. But if he took scrip, he did not become a purchaser, and did not acquire the exemption.
To hold that the State, in the offer to sell her swamp lands, as expressed in the 14th section of the act of 1851, proposed, as an inducement to contractors to take scrip, that the lands which they might afterwards purchase with it, should be exempt from taxation, would not only do violence to a settled rule of construction — which is, that privileges and exemptions, granted by the State, shall be strictly construed, and that nothing shall be held to have passed except what is clearly and explicitly granted, (State vs. County Court of Crittenden county, supra.) • but would also be at war with what seems to us to be the plain reading of the statute.
Leaving the question of jurisdiction an open one, we are of opinion that the appellant’s bill was properly dismissed for want of equity.
Let the decree of the court below be affirmed with costs.
Absent, Mr. Justice Rector. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill for the specific performance of a contract for the conveyance of land, determined in the Circuit Court of Mississippi county.
The complainants were Thomas and John Richardson, minor heirs of Aaron Richardson, deceased, suing by their next friend, Thomas J. Blackmore. The defendant was Thomas Kellums, who appealed from the decree of the court below.
The material facts of the case, as they appear from the pleadings and evidence, are that about the year 1840, Aaron Richardson, the father of complainants, entered upon the northwest quarter of section 25, township 13 north, range 10 east, situate in Mississippi county, which was public land, and upon which there was an improvement, which he purchased. That he resided upon, improved and cultivated a portion of the land until about the year 1845, when he left the county, and remained absent for two years. That during his absence, the appellant, who was his step-father, having married his mother, proved up a pre-emption right to the land, and entered it at the government land office, declaring, at the time, that his intention in entering it was to secure it for the use and benefit of said Aaron, and to prevent its being entered by some other person. That upon the return of Aaron (with his wife, the mother of complainants, whom he had married while absent,) the appellant informed him that he had entered the. land, and promised to make him a title to it, upon his paying to appellant the entrance money, and the expenses necessarily incurred by him in making the entry. That Aaron again entered upon the land with the consent of appellant (taking possession of his former improvement) and continued to reside thereon improving and cultivating a portion of it, until his death in 1853. That sometime prior to his death he paid to the appellant the entrance money, expenses, etc., by assuming and arranging, to the satisfaction of the parties, a debt which the appellant owed to another person. That after the payment of the money, as aforesaid, the appellant, both before and after the death of Aaron, acknowledged himself fully satisfied, and delared his readiness to make the title to him, and to his heirs, according to his agreement, etc., but that he had subsequently' neglected and refused to do so.
Although Aaron Richardson settled upon and improved the land in controversy, the pleadings and proof fail to show that he brought himself within the provisions of the pre-emption laws, so as to acquire an equitable title to the lands, as against the appellant, who purchased the legal title of the government. For any thing that appears in this case, therefore, the appellant, if he had thought proper to do so, under the circumstances, might have claimed, and retained to his own use, the title which he so purchased.
But the depositions read upon the hearing, conduce to prove, with reasonable certainty, that after he entered the land, and after the return of Aaron, the appellant promised to make him a title to it, upon his refunding the entrance money, etc., and that, in consequence of this agreement, Aaron went upon the land, and continued in possession of it, improving and cultivating, until his death, paying to the appellant, in the meantime, and in a mode satisfactory to him, the entrance money, etc., which w’as a sufficient part performance of. the contract to take it out of the statute of frauds, and to entitle the'appellees to a specific performance of it, as decreed by the Court below. See Cain vs. Leslie, 15 Ark. 315; Morris vs. Peay, ante.
The decree is affirmed. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the court.
This is error by the defendant below, in the case of Joseph R. Bettison vs. John J. Budd, which has been decided at this term, upon error brought by Bettison. That case is referred to for the statement of the case, and the principal portion of the facts.
On the trial below, after the introduction of the testimony recited in Bettison vs. Budd, on the part of Budd, he offered to read to the jury a deed from Benjamin F. Danley, collector of Pulaski county, to lots number four and five, in block number twelve, dated June 18th, 1851, with certificate of acknowledgment and record.
The deed recites the- assessment; that the taxes were not paid; that the unknown owners had no personal property whereon to levy; that A. J. Hutt, sheriff, gave proper notice, by advertisement to sell, October 16, 1848: lots sold to John J. Budd; received a certificate of purchase; paid the taxes, penalty and cost,' amounting to three dollars; presented the certificate to Danley, and demanded a deed, who gave it; conveys the lands to Budd. The deed is signed, acknowledged and recorded.
Budd also offered, in aid of this deed, to prove that the assessor filed his affidavit in due form, and in proper time. That he made a proper assessment list, and filed it in proper time. That lot number four was assessed on the resident list, at its true value, to unknown ownérs; that he gave due notice, and that the county court, at the proper term, adjusted and corrected said list; that the clerk made two tax lists in proper time, and disposed of them as required by law; that the sheriff in proper time gave bond as collector; that the tax book received by the collector had the proper warrant attached; that the sheriff demanded the tax of the unknown owners, and after ten days, the taxes being unpaid, he proceeded to levy the taxes on the lot, and advertised .and sold the same in due form.
The court excluded the deed, and refused to hear the testimony.
The objections to receiving the deed were: 1st, That the lot was sold by the sheriff and not by the collector. 2d, That the deed did not show that the tax book and warrant came to the hands of the collector. 3d, It does not show a levy by Iiutt on the lots. 4th, The deed shows that the lots were sold on a day not authorized by law.
A deed which recites an assessment for taxes, which remain unpaid — the advertisement of the lot, and offering it for sale— that it was struck down to the highest bidder, who paid the purchase money, and received a certificate, is a sufficient deed to be admitted in evidence. Pillow vs. Roberts, 7 Eng. 822. This deed has these several recitals.
A.s to the first point — that the sale appears to be made by the sheriff only — it applies to the person making the sale, and not to the person making the deed, and the court will prima facie hold, that the sheriff is collector, at least it will so hold, when supported by oral proof, as in this case, that he was in fact the collector.
The second, third and fourth objections are severally obviated by the proof offered by Budd. It is settled, that where a deed has sufficient recitals to justify its introduction, its defects may be supplied by oral proof. In Gossett et al. vs. Kent et al., 19 Ark. 602, it was held, that in a sale of a resident’s land for taxes, the demand on the owner might be supplied by oral proof; and in Bonnell vs. Roane, it is said that the omission in the deed, to state that the person in whose name the land was sold, was a non-resident, might be aided by proof.
The deed in this case being clearly admissible, and with the aid of parol proof, will make a good title, and for the reason that the court did not permit said proof and deed to be admitted, the case is reversed.
Mr. Chief Justice English did not sit in this case. | [
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ROBERT L. BROWN, Justice.
Appellant Diana Nichole Robertson appeals from her convictions for capital murder, aggravated robbery, and arson and her sentences to life imprisonment without parole, twenty-five years imprisonment, and ten years imprisonment, respectively. She asserts three points on appeal. We find no reversible error, and we affirm.
The facts are garnered from Robertson’s statements to West Memphis detectives. Robertson and her boyfriend, Maurice Le-flore, had a small-time prostitution operation in West Memphis. One of their customers was the victim, O.V. Johnson, who had a valuable gun collection. On November 19, 2007, Robertson and Leflore met B.M., a fifteen-year-old runaway, at a party. The next day, Leflore dropped off Robertson and B.M. at Johnson’s house, where Robertson tried to make B.M. have sex with Johnson. When B.M. refused, 12Robertson had sex with Johnson instead. Later that night, both Robertson and Le-flore had sex with B.M. in a motel room. The following day, Leflore again dropped Robertson and B.M. off at Johnson’s house, and this time B.M. had sex with Johnson'.
Over the next week, Robertson and Le-flore developed a plan to kill Johnson and steal his collection of guns. On November 26, 2007, Robertson went to Johnson’s house and left the front door open for Leflore. Leflore followed fifteen or twenty minutes later and shot Johnson in the neck, while Johnson was sitting on the couch. After shooting Johnson, Leflore and Robertson gathered up his guns and piled them next to the front door. The two then left the house and walked down the street to Leflore’s car. They next drove to meet another man, G, after which Robertson, Leflore, and G, took G’s car back to Johnson’s house. There, they loaded the guns into G’s car, drove into the woods, dumped the guns into a ditch, and covered the guns with leaves. After this, they returned to Johnson’s house for a third time. At this point, Robertson went into the house, set Johnson’s body on fire, and left.
The following day, B.M. called her mother, and the police came to pick her up. That same day, Leflore was arrested for the sexual assault of B.M. On December 3, 2007, Robertson went to the West Memphis Police Department to turn herself in on an arrest warrant for sexually assaulting B.M., after Leflore informed her that a warrant was also out for her arrest.
|,On December 3 and December 5, Robertson gave statements to West Memphis police detectives. She later moved to suppress the statements, and the motion was denied by the circuit judge. She was tried before a jury and convicted and sentenced as has already been stated in this opinion.
I. Duress Instruction
For her first point on appeal, Robertson asserts that the circuit judge erred in refusing to instruct the jury on the affirmative defense of duress with respect to the charge of capital murder. We conclude that this issue is not preserved for our review. Robertson did not proffer the desired duress instruction on murder into the record, and, as a result, we do not have it before us for review. This court has repeatedly stated that it is the appellant’s duty to present to this court a record sufficient to show that the circuit judge erred below. See, e.g., Stevenson v. State, 375 Ark. 318, 290 S.W.3d 5 (2008). To preserve an objection to an instruction for appeal, the appellant must make a proffer of the proposed instruction to the judge. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). That proffered instruction must then be included in the record and abstracted to enable the appellate court to consider it. Id. An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Id.
It is true that Robertson offered an instruction on duress pertaining to the arson charge under AMCI 606 and claimed that sufficient evidence had been presented at trial for |4the jury to consider whether she had acted under duress in committing the arson. The circuit judge gave this instruction. He ruled, however, that he would not give the instruction in connection with the murder charge because he found (1) that her evidence of duress pertained to conduct that occurred after the murder had taken place, (2) that she had failed to articulate a specific threat regarding the murder, and (3) that she had acted recklessly in putting herself in the situation leading up to the murder and robbery.
Regardless of the circuit judge’s reasons for not giving the duress instruction in connection with the murder charge, Robertson failed to proffer that instruction into the record for our review. We affirm on this point.
II. Right to Counsel
Robertson next urges that the circuit judge erred by refusing to suppress her December 5, 2007 videotaped statement and any evidence obtained from it because it was given after she had invoked her right to counsel.
The facts relevant to this point are these. On December 3, 2007, Robertson went to the West Memphis Police Department to turn herself in on an arrest warrant for sexual assault involving B.M. Her boyfriend, Leflore, had been arrested on the same charge earlier in the week and had informed Robertson that she had an arrest warrant outstanding. After signing a waiver-of-rights form on December 3, Robertson was questioned by Detectives |sTerri Hollis, Donald Oaks, and Ken Mitchell about the sexual-assault charge. Robertson later agreed to a videotaped interview.
During the recorded portion of the interview, Detective Hollis asked Robertson about the sexual-assault charge. At one point during Detective Hollis’s questioning, Robertson asked “Do I need a lawyer?” and then said that she wanted to talk to the detective “woman to woman” and continued talking. After Detective Hollis’s questioning, Robertson was questioned by Detectives Oaks and Mitchell about the sexual-assault charge and Johnson’s murder. She completed the interview and was taken to the Crittenden County jail on the sexual-assault charge and told that she would have a bail hearing on December 5.
On the morning of December 5, 2007, Robertson was transported from the county jail to the West Memphis Police Station for additional questioning about Johnson’s death. She was again given her Miranda rights and again signed a waiver-of-rights form. During the unrecorded interview that followed, Robertson admitted her involvement in Johnson’s murder and offered to show the detectives where the guns stolen from Johnson’s house and the murder weapon were located. She subsequently took the detectives to the site where the guns were hidden and the site where she claimed Leflore discarded the murder weapon. The police detectives recovered the guns stolen from Johnson’s house but were unable to locate the murder weapon.
[(¿Pie detectives and Robertson returned to the police station, and Robertson agreed to give another videotaped statement. At the outset of the interview, Detective Mitchell began to read Robertson her Miranda rights, but she cut him off and recited the Miranda rights from memory, commenting that this was the fifth time they had gone over them. She then detailed her involvement in Johnson’s murder. After the interview, Robertson was arrested for capital murder.
Prior to trial, Robertson moved to suppress her December 5, 2007 statement and the evidence recovered on the same date. At the suppression hearing, the circuit judge heard the testimony of Robertson and the four detectives — Hollis, Galtelli, Oaks, and Mitchell. Robertson testified that she had asked several times for an attorney off the record and once on the record on December 3. Robertson also stated that she asked whether she had missed her court date during her December 5 interview because she thought she would be getting an attorney at that time. All four detectives testified that Robertson never asked for an attorney off the record and that her only reference to an attorney came on December 3, when she asked if she needed a lawyer. At the conclusion of the hearing, the circuit judge found that “any request or mention of a lawyer was unclear and equivocal at best.”
Robertson now claims that the circuit judge should have suppressed her December 5 statement because: (1) she invoked her right to the assistance of counsel during the December 3 interrogation by asking if she needed an attorney; (2) she believed that “she was 17going to an appointment to have an attorney appointed to her” when she was interrogated on December 5; and (3) she testified at the suppression hearing that she made a number of clear and unequivocal requests for an attorney on December 5 that were not recorded by the detectives.
The question before this court is whether Robertson sufficiently invoked her right to counsel at the December 3 interrogation. This court has observed that when invoking the Miranda right to counsel, the accused must be unambiguous and unequivocal. Holsombach v. State, 368 Ark. 415, 421, 246 S.W.3d 871, 876 (2007) (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). An equivocal request for counsel does not obligate police officers to cease questioning and seek clarification, but interrogation may continue until the suspect unambiguously requests counsel. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. As the United States Supreme Court has said, an accused “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the cir cumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Furthermore, “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at 461, 114 S.Ct. 2350.
The precise issue here is Robertson’s statement made to Detective Hollis during the December 3 interrogation, where Robertson said: “Do I need a lawyer?” This court on | snumerous occasions has rejected the argument that questions of this type are unequivocal requests sufficient to require an interrogating officer to cease questioning. See, e.g., Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580 (when asked if he understood his right to have an attorney present, appellant responded: “Yes sir, do I need one?”); Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006) (“Do I need to call an attorney?”); Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994) (“Do you think I need an attorney?”). In these cases, this court rejected the argument that such questions constituted unequivocal requests for the assistance of counsel, concluding that such references were “surely ambiguous and hardly amounted to the sort of direct request required to invoke [the] Fifth Amendment right to counsel.” Wallace, 2009 Ark. 90, at 20, 302 S.W.3d at 591; Flanagan, 368 Ark. at 160, 243 S.W.3d at 878; Higgins, 317 Ark. at 563, 879 S.W.2d at 428.
Here, Robertson’s question, “Do I need a lawyer?” is analogous to the questions raised in Wallace, Flanagan, and Higgins, and those cases control this issue. We hold that Robertson’s question did not amount to the type of unequivocal request required to force an interrogating officer to cease questioning. Similarly, Robertson’s inquiries in her December 5
statement concerning her bail hearing on the sexual-assault charge that was scheduled for later that day, which she contends showed she was under the impression that a lawyer would be appointed for her shortly, were insufficient to force a cessation of the interrogation. As noted previously, an accused “must articulate his desire to have counsel present sufficiently 1 nclearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Wallace, 2009 Ark. 90, at 19, 302 S.W.3d at 591 (quoting Davis v. United, States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). Robertson’s questions concerning whether she would make her bail hearing did not articulate a desire on her part to have counsel present. A reasonable police officer under these circumstances would not have understood them to be requests for an attorney.
As a final point, Robertson asserts that she unequivocally asked for an attorney several times off the record, both on December 3 and December 5, and testified to such at her suppression hearing. However, all four detectives involved in interrogating Robertson testified at the suppression hearing that she never asked for a lawyer on December 3 or December 5 and that her only mention of an attorney came on December 3 when she asked if she needed a lawyer. The circuit judge credited the testimony of the four officers over that of Robertson’s, and this court defers to the superior position of the circuit judge to pass on the credibility of witnesses. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Robertson makes much of the fact that large portions of her interrogations were not recorded. This court, nevertheless, has noted that no Arkansas law requires the police to record an interrogation in its totality. See, e.g., Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).
We affirm on this point as well.
III. Hearsay
ImFor her final issue on appeal, Robertson maintains that the circuit judge allowed the State to introduce inadmissible hearsay evidence. At issue is the testimony of B.M., who testified that she overheard a conversation between Robertson and Leflore in which the two discussed a plan to rob Johnson. Specifically, Robertson objects to B.M.’s testifying as follows:
I first met Leflore on the 19th of November 2007. At least two days after I met [Robertson] and [Leflore], I had a conversation in the vehicle with them. [Roberston] said that [Johnson] was getting too cocky, and that she knew he had more money and more guns in the house and to find a way to rob him.... In response, [Leflore] said he was going to find a way to kill him. He was going to go in after [Robertson] and put Seroquel in his drink, and find a way to shoot him.
Initially, the circuit judge sustained Robertson’s objection to B.M.’s testimony over the prosecutor’s argument that the testimony was not offered for the truth of the matter asserted but rather as evidence of Robertson’s state of mind or intent. Yet, after the prosecutor proffered B.M.’s testimony, the circuit judge changed his mind and ruled that the testimony was admissible under Arkansas Rule of Evidence 803(3), the state-of-mind exception. Robertson now contends that B.M.’s testimony should have been excluded because the statement “relates to a plan or action, which was rejected by [Robertson].” She argues further that the circuit judge erred “in allowing a devastating statement by Leflore where he was going to sho[o]t the victim, which inferred that appellant was part of a plan to shoot the victim, into evidence based upon a plan that was not carried out.”
|nThe State first urges that Robertson failed to preserve this issue for appeal because she failed to make a responsive argument to the Rule 803(3) ruling, after the circuit judge readdressed the issue at trial. The State also claims that the basis for Robertson’s objection below differed from her arguments on appeal. For its last point, the State urges that this court should decline to reach this issue because Robertson has failed to cite authority in her brief on appeal to support her argument or provide convincing argument. The State is correct about Robertson’s change of argument on appeal.
Prior to trial, Robertson moved to exclude any witness from testifying about statements made by Leflore and argued that Leflore’s statements were hearsay under Arkansas Rule of Evidence 802. Specifically, she contended that the State had failed to prove the existence of a conspiracy so as to make the statements admissible as a “statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” under Arkansas Rule of Evidence 801(d)(2)(v). During B.M.’s testimony on direct examination, the prosecutor asked her: “Now at that point, what did [Leflore] tell you and [Robertson]?” Robertson’s counsel immediately objected without articulating a reason, though presumably it was a general hearsay objection. Counsel said: “Well, objection to that, your Honor.” The circuit judge responded: “I’ll sustain ... the part about [Leflore].”
After continuing with the direct examination of B.M. for several minutes, the prosecutor approached the bench and, referring to the circuit judge’s ruling on Robertson’s prior objection, argued that B.M.’s testimony about Leflore’s statements was admissible as [12a statement against interest, or as a present sense impression, or because it was not being introduced to prove the truth of the matter asserted. After discussion with counsel, the circuit judge sustained the objection, finding that a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, was not within the argued Rule 804(b)(3) hearsay exception dealing with a statement against interest.
As already noted, at the conclusion of the State’s evidence, the prosecutor proffered the testimony of B.M. that the circuit judge had excluded. After B.M.’s testimony was proffered, the following colloquy occurred:
The Court: You still object to this information?
Defense Counsel: Yes.
The Court: All right. The court’s researched this issue last night and again today and based on my reading and rereading Rule 803(3), then existing mental, emotional, physical condition, including state of mind, such as intent and motive. Finding that motive and intent are always relevant and probative in a criminal case and based on the holding of Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000), ... court finds this evidence is admissible and overrules the objection of [Robertson]
Proseoutor: Thank you.
The Court: So, I’ll note your objection and the jury can hear the evidence.
Defense Counsel: So, your Honor, you’re specifically allowing that under—
The Court: 803(3).
JjjDefense Counsel: Right.
The Court: State of mind.
Defense Counsel: State of mind.
The Court: Yes.
Defense Counsel: All right.
Defense counsel made no argument against allowing the testimony under Rule 803(3). Indeed, at no point did Robertson address her opposition to the Rule 803(3) exception before the circuit judge, as she now does in this appeal.
Because Robertson did not contest the circuit judge’s Rule 803(3) ruling in any form or fashion after the judge changed his mind and concluded that B.M.’s testimony fit within that exception, we will not consider it at this juncture. It is boilerplate law that we will not consider arguments made for the first time on appeal. See, e.g., Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).
The record in this case has been reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4 — 3(i), and none has been found.
Affirmed. | [
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ROBERT L. BROWN, Justice.
I,This is an interlocutory appeal from the circuit judge’s order granting class certification for one subclass (Subclass A) and denying class certification for another subclass (Subclass C). Appellants have appealed the order relating to Subclass A, and appellees have cross-appealed the order concerning Subclass C. Some of the cross-appellees have also moved to dismiss the cross-appeal. We affirm the order of the circuit judge and deny the motions to dismiss.
The plaintiffs in this matter are former residents of the Springdale Ridge Apartments (“Springdale Ridge”) in Springdale. They filed a complaint against various defendants regarding the alleged presence of dangerous levels of carbon monoxide in the apartment units and subsequently amended that complaint three times. The plaintiffs and putative class ^representatives (appellees and cross-appellants), as set forth in the Fourth Amended Complaint, are:
• Juan and Dalia Hernandez — Residents of Springdale Ridge from August 2003 to the present.
• Mark and Jennifer Raabe — Residents of Springdale Ridge from July 13, 2002 to February 2003.
• Melanie Cash — Resident of Springdale Ridge from December 30, 2003 to September 1, 2004.
• Michael Cline — Resident of Springdale Ridge from May 3, 2003 to August 16, 2004.
• Donna Hays — Resident of Springdale Ridge from October 2003 to September 2004.
The defendants, as set forth in the Fourth Amended Complaint, are:
The Owners/Managers (hereinafter “Sim/pson”) (appellants and cross-appel-lees)
• Simpson Housing Solutions, LLC— Parent Entity of Deer Run, Fox Run, and Affordable Multi-Family.
• Simpson Housing Limited Partnership, LLLP — Unclear from the record but appears to be part of Simpson Housing Solutions, LLC.
• Deer Run Limited Partnership — Current or Former Owner of Springdale Ridge.
• Fox Run Limited Partnership of Springdale — Current or Former Owner of Springdale Ridge.
• Affordable Multi-Family, LLC — General Partner of Fox Run and Deer Run.
• Walling Development, a/k/a Walling Development Co. and a/k/a Walling Development, Inc. — Developer and former owner of Springdale Ridge.
h* Pinnacle Realty Management Co., a/k/a Pinnacle Realty Management, Inc. — Former Management Company of Springdale Ridge.
• Heather Hardcastle — Manager of Springdale Ridge.
Builders (cross-appellees)
• Atlas Construction of Arkansas, LLC — General Contractor of Spring-dale Ridge.
• A.R. Mays Construction, Inc., f/k/a Devcon, Inc., a/k/a Devcon by A.R. Mays Construction — General Contractor of Springdale Ridge until September 2001.
• L & L Plumbing and Heating, Inc.— Subcontractor involved in the building of Springdale Ridge.
Architects (cross-appellees)
• Architecture Design & Development— Designed Springdale Ridge.
• Thomas O’Neill — Principal and individual who provided the engineering plans for Springdale Ridge.
• Jerry Verdin — Provided the engineering plans for the project.
Other (cross-appellees)
• Arkansas Western Gas Company (“AWG”) — Public utility company that provided the hot water heaters and the
heating, ventilation, and air conditioning (“HVAC”) units and natural gas to Springdale Ridge.
According to the Fourth Amended Complaint, in April 2001, tenants began to move into the newly constructed Spring-dale Ridge Apartments under lease agreements entered into with Simpson. The facility was not completed until 2003. Springdale Ridge includes |4multiple buildings and has 192 separate units. The complaint alleges that the design for the HVAC and hot-water systems was flawed when the building was constructed, which resulted in dangerous levels of carbon monoxide in the individual apartment units. The complaint further alleges that many residents, including some of the class representatives, were alerted by in-home detectors to high levels of carbon monoxide in their units. These residents allegedly told management, AWG, the Springdale Fire Department, and others about the carbon-monoxide readings.
During 2002, according to the complaint, AWG tested some of these individual units upon notification and discovered varying levels of carbon monoxide. Some levels were elevated, and others were not. After testing, AWG either shut off the gas or returned service. On January 24, 2004, after reports to the Springdale Fire Department of elevated carbon-monoxide levels, AWG inspected apartment units and reported problems with the “make-up air supply.” AWG, however, reactivated natural-gas service to Springdale Ridge.
On August 8, 2004, Melanie Cash reported that her carbon-monoxide alarm had sounded, and, in response, the Springdale Fire Department and the Springdale Building Inspector’s Office tested each unit in her building for carbon monoxide. Some of the tests revealed the presence of carbon monoxide.
hOn August 10, 2004, Michael Cline called the Springdale Police Department to respond to his carbon-monoxide-detector alarm. The police responders did some initial testing, which resulted in a decision by the police department, AWG, and Springdale Ridge management to conduct more extensive testing. The subsequent tests revealed that there were high levels of carbon monoxide in most of the units examined. AWG then shut off the gas to all of the facilities at Springdale Ridge. The Springdale Building Inspector posted a “red tag” notice on each apartment, stating that the building was “unsafe.”
On August 14, 2004, AWG reconnected gas to the Springdale Ridge facilities, but the HVAC units remained disconnected until December 12, 2004, while repairs were being made. Some residents apparently moved out of their apartments during the four months in which the HVAC units were inoperative, and others remained. Springdale Ridge took various steps to mitigate the inconvenience to the residents, which included providing meals while the gas was disconnected, working with a local church to provide showers and transportation, providing washers and dryers, and paying for hotel rooms. Springdale Ridge also did not charge any rent during the week that the gas was turned off.
The procedural history of this case is lengthy and complex. The named plaintiffs/appellees, representing a putative class, originally filed a class action against various | ^defendants on September 2, 2004, alleging various causes of action. Many of the defendants filed cross-claims against each other, and the plaintiffs/appellees filed multiple amended complaints and motions for class certification. On June 30, 2006, the plaintiffs/appellees filed a Fourth Amended Complaint and Second Amended Motion for Class Certification, which are the pleadings that give rise to the instant appeal. In that complaint, Subclass A plaintiffs/appellees brought claims for breach of contract and fraud against Simpson, and Subclass C plaintiffs/appel-lees brought various tort claims against Simpson and the remaining defendants/ cross-appellees.
The circuit judge held a four-day certification hearing. On June 13, 2007, she issued Findings of Fact and Conclusions of Law, as required by Arkansas Rule of Civil Procedure 23. Some of the defendants filed a motion for reconsideration or, in the alternative, for additional findings of fact and conclusions of law. The circuit judge scheduled another hearing, and on September 5, 2007, she entered an order amending her findings of fact and conclusions of law and a class certification order, conditionally certifying Subclass A and denying certification for Subclass C.
The class-certification order defines Subclass A as “all current or former lessees of Springdale Ridge Apartments I and II located within Springdale, Washington County, 17Arkansas.” The order states that Subclass A “seeks claims for breach of implied covenant of good faith and fair dealing, breach of contractual obligation to maintain, repair, and inspect, failure of consideration, and fraud” against Simpson. According to the Fourth Amended Complaint, plaintiffs/appellees prayed for a refund of rental payments with respect to the breaeh-of-contract and fraud claims and punitive damages for the fraud claims. Subclass C, which was not certified, was defined as “all current or former residents, current or former tenants, or current or former occupants of Springdale Ridge Apartments I and II located within Springdale, Washington County, Arkansas.” Subclass C brought claims for outrage, negligence, and strict liability against Simpson; negligence against AWG, the Architects, and the Builders; and wrongful death against all defendants. Subclass C also sought to have the Civil Justice Reform Act of 2003 declared unconstitutional and unenforceable. The prayer for relief in the Fourth Amended Complaint for the Subclass C tort claims was for a determination of liability only, independent of determinations relating to causation and damages.
I. Rule 23.
In order to certify a class, the trial judge must find that the plaintiff has met the requirements of Arkansas Rule of Civil Procedure 23, which states:
h(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subsection (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy....
Thus, in applying Rule 23, this court has held that the following six factors must be met for a class to be certified: (1) numerosity; (2) commonality; (3) predominance; (4) typicality; (5) superiority; and (6) adequacy. BPS, Inc. v. Richardson, 341 Ark. 834, 841, 20 S.W.3d 403, 406 (2000). In the instant appeal, the appellants do not appeal the circuit judge’s findings on numerosity or adequacy with respect to either subclass.
In reviewing a trial court’s decision to grant or deny class certification, this court gives trial courts broad discretion and will reverse only when the appellant can demonstrate an abuse of discretion. Id. at 840, 20 S.W.3d at 405. When reviewing a circuit judge’s class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit judge’s decision. See, e.g., FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 470-71, 277 S.W.3d 576, 580 (2008) (citing Anbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006)). Neither this court nor the circuit court delves into the merits of the underlying claims at this stage, as the issue of whether to certify |fla class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. Id. at 471, 277 S.W.3d at 580 (citing Ato. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004)).
II. Direct Appeal
A. Commonality
To certify a class, the circuit judge must determine that “there are questions of law or fact common to the class.” Ark. R. Civ. P. 23(a)(2) (2009). This court has held that the commonality requirement is always case specific and that
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... that there need be only a single issue common to all members of the class.... When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.
Union Pac. R.R. v. Vickers, 2009 Ark. 259, 308 S.W.3d 573, 578 (quoting Herbert B. Newberg, Newberg on Class Actions § 3.10 (3d ed.1993)). Furthermore, the circuit judge “must determine what elements in a cause of action are common questions for the purpose of certifying a class,” and commonality is satisfied where “the defendant’s acts, independent of any action by the class members, establishes a common question relating to the entire class.” Id., 308 S.W.3d. at 579 (quoting Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 96-97, 60 S.W.3d 428, 432-33 (2001)).
ImFor its first point on appeal, Simpson claims that the circuit judge abused her discretion in finding that the commonality requirement was satisfied as to Subclass A. We turn then to the circuit judge’s specific finding on this point:
a. All of the apartments were constructed from the same basic building plans as it pertains to the mechanical closet where the heat, air conditioning, and hot water were produced for each apartment.
b. All of the apartments had the same flex duct system and the same return air system regardless of whether the apartment had two or three bedrooms.
c. All of the apartments had either the Rudd or Apollo HVAC system installed, which are both claimed to be defective.
d. Each member of the class alleges his/her personal, wrongful exposure to carbon monoxide was a result of a faulty design of the mechanical closet where the heating ventilation and air conditioning (HVAC) for each apartment was located.
e. On August 10, 2004, the Springdale City Inspector’s Office placed a red tag on the door of each apartment stating the building was unsafe and its use or occupancy was prohibited by the Building Official of the Building Department of the City of Springdale, Arkansas under provisions of Ordinance No. 587.
f. All of the apartments had the natural gas shut off on August 10, 2004, pursuant to the Springdale City Inspector’s order.
g. The natural gas remained disconnected, as stated above, at least until August 14, 2004.
h. Air conditioning and heating units were disabled from August 14, 2004 until December 12, 2004. During this period, the tenants were provided with concessions, rent discounts, and other necessary services.
The circuit judge concluded in paragraph 7 of her order: “[T]he commonality requirement has been satisfied with regard to Subclass A. The issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A with respect to their claims for breach of contract and fraud.”
Simpson alleges error in two ways on this point. First, it argues that each claim brought by Subclass A — breach of contract, failure of consideration, and fraud— would require |1Tthe plaintiffs/appellees to “initially prove as a predicate that each apartment contained high concentrations of carbon monoxide.” It is Simpson’s assertion that this would require individual proof because it is not clear in the record that each apartment unit had elevated levels of carbon monoxide. Second, Simpson urges that the judge’s finding that “the issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A” is patently wrong because some of the putative class members did not reside at Springdale Ridge on August 10, 2004. We disagree with Simpson on both points.
The plaintiffs/appellees’ complaint states that each apartment at Springdale Ridge included a defectively designed mechanical closet, which housed the hot-water heater and HVAC unit. The complaint further asserts that Simpson breached the lease agreements by failing to provide apartments free from carbon monoxide and by failing to notify the putative class members when they knew or should have known that there were elevated levels of the dangerous gas in the apartments. The plaintiffs/appellees’ fraud claim rests on the same allegation that Simpson knew or should have known of the defective HVAC units and the carbon-monoxide levels but continued to lease apartments to the putative class members without disclosing the defect.
The putative class has clearly claimed that Simpson’s actions in installing defective HVAC units, failing to repair the defects, and failing to notify prospective and current residents of the problem gave rise to their cause of action for breach of contract, failure of consideration, and fraud. The circuit judge then found that “[ejach member of the class | ^alleges his/ her personal, wrongful exposure to carbon monoxide was a result of a faulty design of the mechanical closet where the heating ventilation and air conditioning unit (HVAC) for each apartment was located.” The circuit judge’s decision that there was commonality in the claims raised was not an abuse of discretion.
In addition to arguing that the record does not support a finding of commonality, Simpson contends that the circuit judge’s finding that “the issue of evacuation of the buildings on August 10, 2004 is common to all members of Subclass A with respect to their claims for breach of contract and fraud” was factually erroneous and “inconsequential and irrelevant to the claims as alleged.” Again, we disagree.
The judge’s finding — “the issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A” — can be harmonized with the circuit judge’s specific findings in her order as set forth in this opinion. The allegedly faulty design and construction of the mechanical closets for each apartment, beginning in 2001, is the overarching basis for liability and led to the red-tagging of all apartments on August 10, 2004. By red-tagging every apartment as unsafe on August 10, 2004, every lessee and resident in the class, who lived in the apartments at some point between April 2001 and August 10, 2004, was affected. This is so even though some of those putative class members were not residents on August 10, 2004. In short, the circuit judge’s conclusion regarding evacuation reasonably refers to the red-tagging date, which affected all apartment units involved in this lawsuit, and that redj 13tagging is some support for the common-liability claim that all units were defectively planned and built from 2001 forward.
B. Typicality
Simpson also argues that the circuit judge abused her discretion in finding that the typicality requirement was met with respect to Subclass A. This court has long held that the typicality requirement is satisfied if the representative’s claim arises from the same common wrong alleged against the members of the class. See, e.g., FirstPlus, 372 Ark. at 476, 277 S.W.3d at 584. We have often quoted with approval the following language from Newberg’s Treatise on Class Actions:
Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
Id. (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 3.13, at 166-67 (2d ed.1985)) (emphasis in FirstPlus). In determining whether the typicality requirement is met, this court focuses on the defendant’s conduct and not on the injuries or damages suffered by the plaintiffs. Id. (citing Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997)).
The circuit judge made the following findings with respect to typicality:
a. Each class representative testified he/she was/is typical of other tenants in that they occupied a 2 or 3 bedroom unit at the Springdale Ridge Apartments, equipped with a hy-dronic heat system housed in a single closet, and claim that this system was defectively designed.
li4b. On August 10, 2004, the Springdale City Inspector’s Office placed a red tag on the door of each apartment stating the building was unsafe and its use or occupancy was prohibited by the Building Official of the Building Department of the City of Springdale, Arkansas under provisions of Ordinance No. 587.
c. All of the apartments had the natural gas shut off on August 10, 2004, pursuant to the Springdale City Inspector’s order.
d. The natural gas remained disconnected, as stated above, at least until August 14, 2004.
e. Air conditioning and heating units were disabled from August 14, 2004 until December 12, 2004. During this period, the tenants were provided with concessions, rent discounts, and other necessary services.
f. Five of the seven class representatives were tenants of Springdale Ridge Apartments on August 10, 2004, when the apartments were ordered to be evacuated by the City of Springdale.
Simpson essentially claims that the circuit judge abused her discretion in finding typicality because (1) the class representatives do not possess the same interest and have not suffered the same injury as the class members, and (2) the judge based her finding of typicality on the erroneous finding that “[t]he claims of Subclass A and its representatives arise from the same wrong, more specifically mass evacuation of the apartment units, repair to the units, and loss of use by the class members alleged against the named Defendants.”
The circuit judge relied on testimony of the putative class representatives that their claims were typical of the class and found that to be the case, as already stated. This finding supports her conclusion that the typicality requirement has been satisfied with regard to Subclass A. See FirstPlus, 372 Ark. at 476, 277 S.W.3d at 584 (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 8.13, at 166— 67 (2d ed.1985)). Moreover, we reject again the argument that the circuit judge tied her finding of common liability and typicality |1ssolely to a mass “evacuation” of all residents on August 10, 2004, for the reasons already stated in this opinion. We affirm on this point.
C. Predominance
Rule 23(b) provides that common questions of law and fact must predominate over any questions affecting only individual members. See, e.g., Johnson’s Sales Co. v. Harris, 370 Ark. 387, 392, 260 S.W.3d 273, 277 (2007). We have already established that a common wrong has been alleged against the defendants. The predominance requirement, however, is more stringent than commonality. See Vickers, 2009 Ark. 259, 308 S.W.3d at 578 (citing BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000)).
In Vickers, this court recently summarized the standard for testing predominance:
When deciding whether common questions predominate over other questions affecting only individual members, this court does not merely compare the number of individual versus common claims. Rather, this court decides if the preliminary, overarching issues common to all class members “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. Thus, the mere fact that individual issues and defenses may be raised regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members.
Id. (internal citations omitted).
This court has further said that if a case involves preliminary issues common to all class members, predominance is satisfied even if the court must subsequently decertify a class due to individualized damages. See, e.g., Farmers Ins. Co. v. Snowden, 366 Ark. 138, 148, 233 |1fiS.W.3d 664, 670 (2006). However, if the preliminary issues are sufficiently individualized, then predominance is not satisfied and class certification is improper. Id., 233 S.W.3d at 671.
The circuit judge reiterated many of her commonality findings in her analysis of predominance for Subclass A. She then concluded that “the predominance requirement has been satisfied with regard to Subclass A. The issue of breach of contract is common to all of Subclass A and predominates over any individual claims of the class members.”
Simpson urges that “the heart of the Plaintiffs’ claims here is exposure” and the plaintiffs’ “foundational claims of pervasive ‘unhealthy and hazardous’ carbon monoxide raise a host of individual issues.” Simpson specifically maintains that the following individual issues, in addition to others, predominate over any common issues: (1) the amount, if any, of carbon monoxide in each apartment unit; (2) the duration of any exposure to carbon monoxide, which could be affected by lifestyle choices; (3) each class member’s medical history; (4) whether any class member used the mechanical closet for storage; and (5) whether Simpson is entitled to any set-offs for “skipped rent” or for other amenities provided to an individual class member.
Simpson next cites this court to various federal court cases for the proposition that common issues cannot predominate over individual issues where “no single proximate cause |17applies equally to each class member” and where “affirmative defenses depend on facts peculiar to each plaintiffs case.” See, e.g., Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir.1996), aff'd, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Simpson, citing Ameri.net v. Xerox Corp., 972 F.2d 1483, 1494, (8th Cir.1992), further asserts that “where the individualized issues determine whether a class member is entitled to any compensation at all, certification is not appropriate.” This federal authority, however, is not controlling on this court. Moreover, the federal courts apply a rigorous-analysis test for class actions, which this court has consistently rejected. See, e.g., Tens, LLC v. Chandler, 375 Ark. 70, 83, 289 S.W.3d 63, 73 (2008).
Our case law has held that “the mere fact that individual issues and defenses may be raised by the defendant regarding the recovery of individual class members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members.” See, e.g., Gen. Motors Corp. v. Bryant, 374 Ark. 38, 49, 285 S.W.3d 634, 643 (2008) (citing FirstPlus, 372 Ark. 466, 277 S.W.3d 576) (emphasis added).
In General Motors Corp. v. Bryant, the class representative brought suit against GMC on behalf of a nationwide class, alleging that approximately four million pickup trucks and sport-utility vehicles were sold with defectively designed parking brakes. Bryant further alleged that GMC discovered the defect but failed to disclose it for over two years in order to avoid paying warranty claims. After the circuit court granted class certification, GMC appealed to this court, arguing, among other things, that individual fact issues precluded a finding that | iscommon issues of law and fact predominated. GMC specifically argued that whether the class members’ brakes were actually defective was an individual issue that prevented predominance over any common questions. GMC also contended that it may be entitled to various defenses against individual class members. Simpson makes similar arguments in the instant appeal.
This court affirmed the circuit judge and held that “the common issue that predominates here over any other potential issue is whether the parking-brake system installed in the class members’ vehicles was defective and whether General Motors attempted to conceal any alleged defect.” Id. at 49, 285 S.W.3d at 642. The court noted that challenges based on statutes of limitation, fraudulent concealment, releas es, causation, or reliance are usually rejected and do not bar a finding of predominance because those issues go to the right of a class member to recover, not the underlying issues of the defendant’s liability. Id. at 49, 285 S.W.3d at 643; see also, SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997) (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 4.26, at 4-104 (3d ed.1992)).
In the case at hand, as in Bryant, the individual issues raised by Simpson will go to the right of any individual class member to recover, but the common questions of whether the installed HVAC units were defective and whether Simpson knew of and should have disclosed the defect pertain to the whole class and can be decided before reaching any individual issues. Those issues clearly predominate, and the circuit judge did not abuse her discretion in finding that predominance was satisfied.
1i;iD. Superiority
Simpson next contends that the circuit judge abused her discretion in finding that a class action was superior to any other method for adjudicating the claims of Subclass A because it is unfair to the defendants. Simpson specifically asserts that “[t]he class representatives should not be permitted to put on generalized proof and then ask the court to assume or blindly conclude that all other claims are similar.” Simpson also maintains that if the case proceeds as a class action, it will be “deprived of the opportunity to raise the individualized defenses that exist with respect to each class member and/or the right to receive a verdict on the individualized facts of each class member’s claims.”
This court has repeatedly held that the superiority requirement is satisfied if class certification is the more efficient way of handling the case and it is fair to both sides. See, e.g., Bryant, 374 Ark. at 50, 285 S.W.3d at 643. When determining whether a class action is the superior method of adjudication, it may be necessary for the circuit judge to evaluate the manageability of the class. Id. The avoidance of multiple suits lies at the heart of any class-action decision. Id. Furthermore, where a cohesive and manageable class exists, we have often held that “real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for a trial on individual issues, if necessary.” Snowden, 366 Ark. at 150, 233 S.W.3d at 672. As a final point, we have said that this is especially so
when it is possible that a large number of persons who may have legitimate claims not worth pursuing because of the cost of our system of justice may lose those claims if |j>nthey are not allowed to proceed together as a class. By not certifying a class, a trial court can cause the problem to “go away” to the extreme disadvantage of the claimants unless that decision is reviewable.
Id. at 151, 233 S.W.3d at 672 (quoting Ark. Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 289, 78 S.W.3d 58, 70 (2002)) (emphasis in Snowden).
In this case, the circuit judge found as follows:
29. The Court finds that class certification is the most efficient way of handling this case for Subclass A because the large number of small claims would require numerous individual trials which would be repetitive and could lead to inconsistent results.
30. The court finds a class action for Subclass A will allow economically disadvantaged individuals to pursue a claim they would otherwise be unable to bring against the Defendants.
The circuit judge’s findings are based on the most efficient and manageable way to handle these multiple claims. Simpson challenges these findings, but its argument on this point is contrary to this court’s case law. As already noted, we have held many times that a class action is the superior way to handle numerous claims where common, preliminary issues can first be decided, with the case then splintering, if necessary, for the trial of individualized issues, like defenses and damages. See, e.g., BPS, 341 Ark. at 847, 20 S.W.3d at 410. The circuit judge did not abuse her discretion in finding that a class action was the superior method for adjudicating the claims of Subclass A.
_jyK. Miscellaneous Arguments
1.Failure of Consideration
Simpson argues that failure of consideration is not a viable class claim because each class member will be required to show that there was a complete failure of consideration in order to recover total restitution of the rent paid. The plaintiffs/ap-pellees rightly note that this argument prematurely asks this court to delve into the merits of the underlying claims, which this court has repeatedly refused to do. See, e.g., Vickers, 2009 Ark. 259, 308 S.W.3d at 579 (totally immaterial whether the petition will succeed on the merits or even if it states a cause of action).
2.Arkansas Tort Reform Act
Simpson next claims that the circuit judge abused her discretion in failing to address the effect of the Arkansas Tort Reform Act because it went into effect on March 25, 2003, which was during the alleged class period. Thus, Simpson contends that the fact that the act will apply to some class members and not to others defeats certification.
This argument must fail, as Simpson has failed to cite this court to where it made this specific argument to the circuit judge. Simpson, instead, directs this court to a hearing before the circuit judge during which the parties presented arguments about the Arkansas Tort Reform Act. That hearing, however, centered on the plaintiffs/appellees’ motion to have the act declared unconstitutional and not on whether the fact that it was enacted during the class period defeats any of the Rule 23 requirements. Furthermore, Simpson failed to obtain a final | ^ruling from the circuit judge on this issue. It is well settled that this court will not address an argument on appeal if it has not been argued before the circuit judge or if a party fails to obtain a ruling from that judge. See, e.g., Johnson v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d 407 (2008).
3.Mass-Accident Case
Simpson further maintains that the circuit judge abused her discretion because she treated this toxic-tort case as a mass-accident case. Again, Simpson is in error. The critical issue in our review is whether the circuit judge abused her discretion in finding that the requirements of Rule 23 were met in this particular case and not whether the case was wrongly categorized. This case, moreover, is distinguishable from the toxic-tort cases cited by Simpson.
Simpson cites this court first to our opinion in Baker v. Wyeth-Ayerst Laboratories Division, a case in which this court affirmed the circuit court’s denial of a motion to certify a class action. 338 Ark. 242, 992 S.W.2d 797 (1999). The plaintiffs in Baker sued multiple defendants for injuries allegedly sustained as a result of taking various diet drugs. The plaintiffs brought suit for negligence, products liability, failure to warn, and breach of express and implied warranties. The circuit judge declined to certify the class because he found that individual issues precluded a finding that common questions predominated. This court affirmed, holding that “this case presents numerous individual issues that go to the heart of the defendants’ conduct, causation, injury, and damages such that the defendants’ liability as | pjjto each plaintiff will have to be resolved on a case-by-case basis.” Id. at 249, 992 S.W.2d at 801. We further noted that the amount or combination of diet drugs a plaintiff took, combined with her personal medical history, might make the drugs dangerous for one party and not for another.
Simpson cites, in addition, Arthur v. Zearley for the proposition that toxic-tort cases, as opposed to mass-accident cases, are not well suited to class treatment. 820 Ark. 273, 895 S.W.2d 928 (1995). In Arthur, the plaintiffs sought to certify a class action against various defendants for multiple tort claims, which centered on the allegedly improper surgical implantation of a product known as “Orthobloek” into the plaintiffs’ spines. The circuit court certified the class, and this court reversed. We held that the issue of informed consent with respect to class members was foundational and could not be tried on a class basis. Id. at 283, 895 S.W.2d at 933. We further held that each plaintiffs unique medical history and condition, diagnosis, and treatment plan were individualized questions that predominated over common questions of liability. Id. at 286, 895 S.W.2d at 935.
In the instant case, if the HVAC units and the storage closets where they were housed were defectively designed and constructed, and Simpson knew or should have known of the defect and failed to advise tenants, Simpson may be found liable. That is the same fundamental, overarching issue of liability common to all putative class members. The other individualized issues go to damages, which can be determined in a bifurcated proceeding, | ?4That is a categorically different situation from the two medical cases relied on by the defendants.
4. Causation and Damages
Simpson contends that the circuit judge abused her discretion in certifying Subclass A for all purposes instead of certifying only on the question of liability. Simpson, however, cites no authority for this argument. This court has long held that it will not address arguments if they are insufficiently developed and lack citation to authority. See, e.g., Gatzlce v. Weiss, 375 Ark. 207, 215, 289 S.W.3d 455, 461 (2008). Second, Simpson does not direct this court to any place in the record where it made this argument below. As already noted, this court will not address an argument made for the first time on appeal. See Johnson, 375 Ark. 164, 289 S.W.3d 407. This argument is not preserved for our review.
5. Class Period
Simpson urges that the circuit judge abused her discretion in defining the class period. The argument, however, was not raised by Simpson in its original brief before this court. Rather, it was raised for the first time in its reply brief. Therefore, the issue is not properly before this court, and it will not be addressed. See, e.g., Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005).
⅛11. Cross-Appeal
A. Motion to Dismiss Cross-Appeal
Each of the cross-appellees, other than Simpson, has filed or joined a motion to dismiss the cross-appeal:
• May 30, 2008 — Motion of Defendant-Appellee A.R. Mays Construction Co., f/k/a Devcon Enterprises, Inc., a/k/a Devcon by A.R. Mays Construction to dismiss designated “cross-appeal” of Plaintiffs-Appellants.
• June 16, 2008 — Motion of Defendant-Appellee Atlas Construction of Arkansas, LLC, to dismiss designated “cross-appeal” of Plaintiffs-Appellants and Brief in Support.
• June 18, 2008 — Motion of Defendant-Appellee Arkansas Western Gas’s motion to join motion of Defendant-Ap-pellee A.R. Mays Construction Company, f/k/a Devcon Enterprises, Inc., a/k/a Devcon by A.R. Mays Construction to dismiss designated “cross-appeal” of Plaintiffs-Appellants.
• June 20, 2008 — Motion by L & L Plumbing and Heating, Inc., to adopt the motion to dismiss the cross-appeal filed by A.R. Mays Construction, Inc., and Atlas Construction of Arkansas, LLC.
• June 23, 2008 — Motion of Defendant-Appellee Architecture Design & Development and Thomas O’Neill to dismiss designated “cross-appeal” of Plaintiffs-Appellants.
The movants ask this court to dismiss the cross-appeal because it should have been filed as a direct appeal rather than as a cross-appeal and, therefore, was untimely according to our rules of appellate procedure. Arkansas Rule of Appellate Procedure-Civil 4(a) requires a notice of appeal to be filed within thirty days of entry of the judgment, decree, or order. The rule also states that a cross-appeal must be filed within ten days of receipt of the notice of appeal. Ark. R.App. P.-Civ. 4(a) (2009). The circuit judge entered an order granting certification to Subclass A (to which the Simpson appellants were the only defendants) and denying certification to Subclass C (to which Simpson and the movants were defendants) on September 5, 2007. Simpson filed a notice of appeal on October 3, 2007, and the plaintiffs/appellees filed a notice of cross-appeal on October 12, 2007. If the plaintiffs/ap-pellees/cross-appellants’ challenge to the circuit judge’s refusal to certify Subclass C was a proper cross-appeal, it was timely under Rule 4(a). However, if it should have been filed as a direct appeal, the notice of appeal was untimely.
The movants rely on Johnson v. Carpenter for the proposition that where the matter sought to be appealed is separate from that which has been appealed in a timely manner, it should be the subject of an original appeal, and it may not be made timely by its denomination as a cross-appeal. 290 Ark. 255, 260, 718 S.W.2d 434, 437 (1986). The movants contend that the class members, their claims, their theories of recovery, and the defendants involved in Subclass C are all separate and distinct from those involved in Subclass A. The plaintiffs respond that each putative-class claim arises from the same underlying facts.
This case is distinguishable from Johnson because in that case two cases were filed (one in probate court and another in circuit court) against different defendants and were consolidated into one case before the circuit court. While one order disposed of both cases, this court held that a cross-appeal was inappropriate because they were completely separate cases in different jurisdictions. In the instant case, the plaintiffs/appellees/cross-appellants filed one complaint in one jurisdiction in which they alleged, albeit by way of two subclasses, ^various theories of recovery against multiple defendants. We conclude that this is a critical distinguishing factor from the Johnson case. The motions to dismiss are denied.
B. Class Certification for.Subclass C
The circuit judge found, based on the same findings and conclusions discussed earlier with respect to Subclass A, that all of the Rule 23(a) requirements were satisfied for Subclass C. She found, however, that the Rule 23(b) criteria of predominance and superiority were not satisfied due to the tort claims brought. We agree.
1. Predominance
With respect to Subclass C, the circuit judge made similar findings regarding predominance that were made for Subclass A. She specifically found that the apartments were red-tagged, the gas was disconnected from August 10 to August 14, air conditioning and heating units were disabled until December 12, and the apartments were constructed from the same basic building plans. The judge added these findings with respect to exposure:
g. Each member of the class claims their respective exposure to carbon monoxide was a result of a faulty design of the mechanical closet where the heating ventilation and air conditioning (HVAC) for each apartment was located.
h. There are cross-claims between certain defendants that must be adjudicated. These must be fully adjudicated in order to determine the liability, causation, and damages as they relate to the class members.
i.[sic] Simpson Solutions, Simpson Partnership, Deer Run, Fox Run, Affordable, Pinnacle, and Hardcas-tle have filed cross-claims against all other defendants.
y&. AWG has filed a cross-claim against all other defendants; and
b. L & L has filed a cross-claim against all other defendants.
i. The alleged common questions of “design defect” does not address every alleged exposure. Some Defendants allege that some of the alleged wrongful exposure may have been caused by operations, maintenance, tenant behavior, or using the HVAC closets for storage.
j. The alleged wrongful exposure happened at different times and/or different levels with regard to individual class members.
k. Defendants claim damages are diverse among class members. Class members’ lifestyles affected their exposure such as whether or not they smoke, their past medical histories, what appliances they used and how often, and how much they used the HVAC units.
The judge also found that “[t]he tort of outrage is intensely individualized and is not easily determined by a class action suit. While it is possible to bring outrage as a class action, the court finds that in this case, with this many defendants, the elements of outrage are highly individual and predominate over any common claim of Subclass C.” With respect to the other tort claims, the judge held that “[t]he common issues to Subclass C such as whether there was exposure do not predominate over the issues of proximate cause, comparative fault, notice, maintenance, and damages of individual class members.”
The cross-appellants urge that the circuit judge erred in finding that the predo minance requirement was not met with respect to Subclass C. They specifically assert that “the trial court applied the wrong test when deciding that Subclass C failed the Rule 23 test as to predominance” and contend that a recent decision by this court has changed the standard for testing predominance. See Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). Cross-appellants contend that Johnson’s Sales changed the law cited by the circuit judge, which was (1) that common claims must predominate over any questions only affecting individual | ^members of the class, citing Mega Life & Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997); and (2) if the common issues predominate over individual claims, the trial court may certify the class to try common issues first, and then bifurcate the trial under Rule 23(d) to resolve individual issues, citing Fraley v. Williams Ford Tractor and Equip., 339 Ark. 322, 5 S.W.3d 423 (1999).
For their contention that the predominance analysis has changed, the cross-appellants rely on the following language in Johnson’s Sales: “If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement is satisfied even if the circuit court must subsequently determine individual damages issues in bifurcated proceedings.” 370 Ark. 387, 392, 260 S.W.3d 273, 277. They further cite another case for the well-settled proposition that the initial analysis is whether there is a common preliminary issue with the potential to wipe out the possibility of a claim for every class member. See Snowden, 366 Ark. 138, 233 S.W.3d 664. This language, say the cross-appellants, taken together, means that when a circuit court determines that there are common issues of liability affecting all class members, the predominance requirement is automatically satisfied. We disagree.
We initially observe that the cross-appellants’ interpretation of the Johnson’s Sales opinion is wrong. This court did not change the standard for determining predominance in Johnson’s Sales and certainly did not hold that where the judge finds common questions of liability, which apply to all class members, predominance is automatically satisfied. In point |3flof fact, the paragraph in Johnson’s Sales, which includes the language relied on by the cross-appellants, reads in its entirety as follows:
Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members[.]” This court has explained that the starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant. If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied even if the circuit court must subsequently determine individual damages issues in bifurcated proceedings. Moreover, this court has recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying the class to resolve individual issues, such as damages, is consistent with Rule 23. Moreover, this court has repeatedly stated:
[t]he predominance element can be satisfied if the preliminary, common issues may be resolved before any individual issues. In making this determination, we do not merely compare the number of individual versus common claims. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of bifurcated proceedings.
370 Ark. at 392, 260 S.W.3d at 277 (internal citations omitted) (emphasis added).
Hence, it is clear that this court has not changed its predominance requirements and that the standard is the same as that cited by the circuit judge. To repeat, the circuit judge must first decide that there are issues of liability common to the class and then determine whether those common issues predominate over individual questions. In the instant case, the circuit judge specifically found that individual issues predominated over any common questions of liability for Subclass C. The Johnson’s Sales case is in agreement with this finding.
Further, as the cross-appellees rightly note, proximate cause cannot be decided at a subsequent proceeding after “liability” has been determined for all Subclass C members [S1because causation is a foundational element for determining liability in negligence claims. See, e.g., Jones v. McGraw, 374 Ark. 483, 486, 288 S.W.3d 623, 625-26 (2008) (the circuit judge erred in permitting the defendant to introduce proximate-cause evidence at a hearing on damages because proximate causation is an element of liability for medical malpractice, not an element of damages); Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959) (negligence must proximately cause a given result in order to justify a finding of negligence); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41 (5th ed. 1984) (“An essential element of the plaintiffs cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called ‘proximate cause,’ or ‘legal cause.’ ”).
The critical distinction between Subclass A and Subclass C is that proximate causation is a foundational element of the torts of strict liability, negligence, wrongful death, and outrage. Therefore, the plaintiffs cannot establish the defendants’ liability without addressing the individualized issues of proximate causation, which involve the extent of exposure to carbon monoxide and how that exposure caused damage to the putative-class members. In Subclass A, the issues of Simpson’s liability for breach of contract due to defectively designed apartment units and for fraudulent concealment in not revealing the defect to renters can be resolved at a preliminary stage. Furthermore, the damages prayed for by putative-class members were for the rental payments that had been made. Thus, the Subclass A claims do | a^not involve the individual variances associated with personal exposure to carbon monoxide, including class members’ lifestyles and medical histories, and the resulting injuries to putative-class members caused by the alleged negligence of the defendants/appellants/cross-appellees. In this respect, the Subclass C claims are more akin to those made in Baker, where we affirmed the denial of class certification. We affirm on this point.
2. Superiority
The circuit judge’s order found
that the superiority requirement is not satisfied in this case with respect to Subclass C. The number and the nature of the individual inquiries that would be required of the class will make a class action inefficient and difficult to manage.
This case involves issues of defect, unreasonable danger, duty, breach of duty, comparative fault, modification of equipment, proximate cause, statute of limitations, contribution indemnity, vicarious liability, and damages.
There exist viable alternatives to class litigation in this case with respect to Subclass C that are superior alternatives. Arkansas Rule of Civil Procedure 20 pei’mits cases that assert a common question of law or fact to be joined permissively, without a showing of predominance. Separately filed actions can be consolidated for trial if they are sufficiently similar. Ark. R. Civ. P. 42(a).
The cross-appellants maintain that the circuit judge erred because she erroneously found that proximate cause and degree of exposure would be involved in the class action. As already discussed, this argument must fail because, in the context of the tort claims brought by Subclass C, proximate cause and damages are foundational elements in determining liability. The cross-appellants also urge that the circuit judge erred in finding that there are superior alternative methods to class certification because the alternatives do not require a showing of predominance. Cross-appellants, in connection with this argument, maintain that |S3the circuit judge erred in finding that a decision on liability, apart from causation and damages, is not a predominating issue. However, this court has already concluded that the circuit judge did not abuse her discretion in concluding that individual issues do predominate in the claims of Subclass C.
This court defers to the circuit judge with respect to a decision of whether a class action is the superior method for resolving multiple claims because the judge must take into consideration, among other things, whether she believes she can effectively manage the class. See Bryant, 374 Ark. at 50, 285 S.W.3d at 643. Here, the judge held that certifying Subclass C would result in unmanageable litigation. We find no abuse of discretion on this point, and we affirm.
Affirmed on direct appeal and cross-appeal; motions to dismiss cross-appeal denied.
. According to the Fourth Amended Complaint, Simpson Housing Solutions, LLC is the current owner of Springdale Ridge, as the owner, alter-ego, and parent of Affordable Multi-Family, Deer Run, and Fox Run. Simpson's brief on appeal, however, indicates that Simpson Housing, LLC, Simpson Housing Limited Partnership, LLP, and Affordable Multi-Family are the former owners and that Deer Run and Fox Run are now the current owners.
. Walling is listed as a defendant in Subclasses A and C but has not joined the other Subclass A defendants in appealing the certification of that subclass. Walling also failed to file its own notice of appeal. Walling does respond to the plaintiffs’ cross-appeal regarding the judge’s decision not to certify Subclass C.
. According to the circuit judge’s findings of fact, plaintiffs allege that Atlas was the general contractor, but Atlas maintains that it was a subcontractor. A motion seeking a declaration on this point is pending in the circuit court.
. Cash's alarm had gone off on more than one occasion before.
. The complaint states that there were high levels of carbon monoxide in every apartment unit checked, except one. Simpson's brief says that "elevated levels of carbon monoxide were found in some apartments, but not others.” The circuit judge found that elevated levels of carbon monoxide were discovered in "most of the apartments inspected.”
.Plaintiffs originally included other claims against some defendants as part of Subclass B, but they nonsuited Subclass B, and an order to that effect was entered on April 6, 2006.
. The circuit judge found that the class period for Subclass A should commence from the time the first rental of apartments on the project property began, April 2001, and cease on December 12, 2004.
. While the circuit judge does not specifically reference the fraudulent-concealment claim in her predominance findings, the underlying facts related to that claim and breach of contract due to failure to notify of hazardous-gas conditions are the same. For both causes of action, a refund of rents paid is sought by the plaintiffs/appellees.
. The circuit judge specifically found that the criteria of numerosity, commonality, typicality, and adequacy were met for Subclass C. | [
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George Rose Smith, Justice.
This action was brought in the name of the State by the Director of Labor, on behalf of a number of the appellee’s female employes, to recover overtime wages that assertedly should have been paid under Act 191 of 1915, as amended. Ark. Stat. Ann. §§ 81-601 et seq. (Repl. 1960). The appellee contends that the Arkansas statute is no longer valid, having been pre-empted, under the Supremacy Clause, by this provision in the Civil Rights Act of 1964:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” [42 U.S.C.A. § 2000e-2.]
This appeal is from a judgment sustaining the appellee’s position and dismissing the complaint.
At the outset it is insisted by the appellant, for the first time, that the circuit court did not have jurisdiction of the subject matter, because the proof does not show that the Civil Rights Act is applicable to the appellee, as an employer. That is, it is now shown that the appellee is engaged in an industry affecting interstate commerce, with 15 or more employees and a specified annual volume of business, as required by federal legislation.
That argument is not sound. Our circuit courts, unlike the federal courts, are tribunals of general jurisdiction with constitutional authority over all cases not within the exclusive jurisdiction of another court. Ark. Const., Art. 7, § 11 (1874); Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901). Here the Director of Labor, as plaintiff, selected the forum himself. The circuit court unquestionably has prima facie jurisdiction of an action for the recovery of unpaid wages. The appellee merely pleaded the impact of the Civil Rights Act as a defense to the action. If the plaintiff thought that the defendant was not entitled to invoke the Act, that issue should have been raised in the trial court. But the issue was not jurisdictional, because even if the defendant had not been entitled to invoke the Act the case would still have proceeded to judgment. For all we know, the plaintiff may have known that the defendant came within the Act and may simply have decided not to encumber the record with needless proof. Thus the appellant has no standing to raise the issue here, subject-matter jurisdiction not being involved.
Now, the merits. Our statute undoubtedly discriminates in favor of women on the sole basis of their sex. The employer must pay time-and-a-half overtime when the work day exceeds eight hours or the work week six days. Ark. Stat. Ann. § 81-601. There is no similar provision for male employees. It is fair to assume that an employer might therefore decide to hire a man rather than a woman, both being qualified. The appellee accordingly argues that our statute conflicts with the federal law, which prohibits any discrimination in hiring or in the terms of employment, on the basis of sex.
In answer to that argument the appellant relies upon the opinions in Potlatch Forests v. Hays, 318 F. Supp. 1368 (E.D. Ark. 1970), and Hays v. Potlatch Forests, 465 F. 2d 1081 (8th Cir. 1972), affirming the district court. Those cases upheld the Arkansas statute, upon the ground that the employer could comply with both the federal act and the state act simply by paying overtime to both men and women at the rate specified in the Arkansas statute. An essentially contrary view was taken in Homemakers, Inc., Los Angeles v. Division of Indus. Welf., 356 F. Supp. 1111 (N. D. Cal. 1973), affirmed, 509 F. 2d 20 (9th Cir. 1974). Those courts held, as did the trial judge in the case at bar, that for a court to extend the benefits of the state statute by requiring men to be paid at a statutory scale applicable only to women would be an exercise of legislative rather than judicial power.
We are unable to agree with the Potlatch opinions, because we think they oversimplify the issue. In Potlatch both courts treated the Arkansas statute as a wages-and-hours law having as its sole purpose the payment of female employees at time-and-a-half for overtime. Neither opinion mentions other aspects of the Arkansas law which we think to be of controlling weight.
The original 1915 statute had several provisions linking wages with the health of the female employees protected by the act. For example, the act created a three-member commission whose duty it was to adopt regulations making it certain that women would not be employed “at a lower rate or wages than will supply said female employees the cost of proper living, and safeguard their health and welfare.” Act 191 of 1915, §§ 9 and 11. A 1935 amendment to the statute gave to a commission the power to issue, after a hearing, permits exempting from the statute females in executive or managerial positions. Act 150 of 1935; Ark. Stat. Ann. § 81-606. A 1943 amendment provided that no female could be employed for overtime of a permanent nature in excess of one hour a day without a permit from the Commissioner of Labor. Act 70 of 1943; Ark. Stat. Ann. § 81-601.
It must be emphasized that the constitutionality of Act 191 was upheld on the ground that it was a reasonable method of safeguarding the health of female employees. State v. Crowe, 130 Ark. 272, 197 S.W. 4, L.R.A. 1918A, 567, Ann. Cas. 1918D, 460 (1917). The majority and dissenting opinions in that case indicate clearly that the statute would not have been sustained had it merely regulated wages and hours, without regard to the health of the female employees.
In the intervening 60 years the pendulum has swung far in the opposite direction. The Supreme Court now holds that an act which discriminates between men and women is invalid as a denial of the equal protection of the law unless there is a reasonable basis for the distinction. Reed v. Reed, 404 U.S. 71 (1971). Hence Act 191 is now prima facie invalid, because with respect to many office and clerical jobs there is no sound reason for paying time-and-a-half overtime to women while denying it to men. Of course it follows that if the Arkansas act is now invalid, its benefits cannot simply be extended to male employees under the Potlatch rationale.
The Director of Labor advances two theories in his effort to have Act 191, as amended, continued in force. First, it was stipulated below that although the Department of Labor still issues permits under the act, it no longer conducts hearings under §§ 81-606 and -607 to determine whether the particular female employee actually exercises executive or managerial authority. One sho”t answer to this argument is that the discriminatory provision is still in the statute, whether the Department obeys it or not. A second answer is that the stipulation does not touch upon the equally questionable permit requirement in § 81-601, by which a permit must be obtained for any permanent overtime employment of a female in excess of one hour a day.
The Director’s second suggestion is that the permit provisions and other discriminatory sections of Act 191, as amended, be held unconstitutional but separable, leaving in effect a simple wages-and-hours law that would benefit male employees under Potlatch. What we have already said pretty well answers this argument. Separability means that the legislature would have enacted the valid portion of the act even if it had known the rest to be invalid. But just the opposite is true here. In Crowe we sustained Act 191 only because it was considered to be a health measure rather than a mere regulation of wages as such. We could not with even a semblance of judicial integrity completely reverse our position and solemnly declare that the legislature would have adopted Act 191 as a mere wage regulation without regard to the very provisions that saved the statute from unconstitutionality at the time it was passed.
Affirmed.
Roy, J., dissents. | [
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John A. Fogleman, Justice.
Appellants commenced this action by filing their petition in the chancery court on June 25, 1974, as citizens, residents, taxpayers and property owners situated in the Annex to Street Improvement District No. 1 of the City of Booneville. They contended there and here that both the order creating the annex and the assessment of benefits in the annexed territory were void. Appellants state three points for reversal, but all are argued together in appellants’ brief. In it, appellants contend that the failure of the city council to act upon the petition for the annexation within two years allotted by Ark. Stat. Ann. § 20-108 made the council’s ordinance annexing the territory described in the petition and the assessments of benefits thereunder null and void. That section provides that a petition for the creation of a municipal improvement district shall become void unless it has been acted upon within two years from the date of its filing.
The fallacy in appellants’ approach lies in their assumption that § 20-108 applies to petitions for annexation. We find nothing in the language of the statute providing for annexation of territory to a municipal improvement district [Act 280 of 1919, appearing as Ark. Stat. Ann. § 20-134 (Repl. 1968)] indicative of a legislative intent that Ark. Stat. Ann. § 20-108 (§ 3 of Act 64 of 1929 as amended) have any application to an annexation proceeding. Nor do we find anything in Act 64 of 1929 on which to base a finding of such legislative intent.
Appellants also argue that the court erred in granting appellees’ oral motion to dismiss that portion of the complaint alleging the invalidity of the assessment of benefits. The basis of this argument is that the court, in effect, granted a summary judgment, without following the procedures required by Ark. Stat. Ann. §§ 29-205, 29-203 and 29-202 (Repl. 1962). This issue was waived because it was not raised by an objection on this ground in the trial court. We cannot consider it for the first time on appeal. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403. To the contrary, appellants, insisting that § 20-108 governed, then offered to prove that the record showing that the petitions were filed in 1969 was incorrect and that the petitions were actually filed some two years earlier. Appellants also asked to be allowed to prove all the other allegations of their complaint. The trial court not only heard evidence on one issue, i.e., whether Street Improvement District No. 1 of the City of Booneville was in existence when the additional territory was annexed to it, but it also advised appellants’ counsel that he might make an offer of proof on other issues.
No argument is made in appellants’ brief that the chancellor erred in holding that Street Improvement District No. 1 was “a live, viable street improvement” and that the face of the record disclosed that the attack made by appellants was barred by the applicable statute of limitations, Ark. Stat. Ann. § 20-134 (Repl. 1968). No authority to support appellants’ position on these points is cited. Failure to argue a point constitutes a waiver. See Brockwell v. State, 260 Ark. 807, 545 S.W. 2d 60 (1976). We will not consider assignments of error presented in a brief unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). We cannot say that it is apparent that these points are well taken. This court accepts as correct the decisions of a trial court which the appealing parties do not show to be wrong. Clemson v. Rebsamen, 205 Ark. 123, 168 S.W. 2d 195.
There is one other matter that we feel compelled to mention because it is recurring too frequently. We note that appellants’ statement of the case consists of ten pages, in spite of the admonitions in Rule 9 (b) that such statements should ordinarily not exceed two pages in length. The statement in this case goes far beyond the requirements of the rule in that it gives a complete history of the entire litigation, recites allegations in pleadings and even contains a verbatim recitation of the dialogue pertaining to, and including, appellants’ offer of proof. Striking the brief would be too severe a sanction in this case. We take this opportunity to call the attention of the bar to the two-page ideal espoused by our rule. We believe that such lengthy statements result from a misconception of their purpose. For a complete statement of that purpose, we refer the bar to an article by Mr. Justice George Rose Smith, appearing in Vol. 15, Arkansas Law Review at p. 357. Adherence to the precepts there expounded will be of material assistance to this court.
7’he decree is affirmed.
We agree. Harris, C.J., and George Rose Smith and Byrd, JJ. | [
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George Rose Smith, Justice.
John Henry Kay appeals from a verdict and judgment sentencing him to five years’ imprisonment for robbery and to two additional years for committing the offense with a firearm. We find no merit in the two points for reversal that are presented.
The victim of the robbery, Khachia Muradain, who was employed in his son’s liquor store, speaks Armenian but not English. The son, who was not present when the robbery occurred and who did not testify, acted as the interpreter when his father testified for the State. Defense counsel objected to that procedure, on the ground that the son was biased, and also asked for a mistrial.
No prejudicial error is shown. The son had had some earlier experience as an interpreter, but he was evidently not skilled in that role. Occasionally he interposed remarks of his own instead of confining himself to the attorneys’ questions and to the witness’s answers. His remarks, however, had no direct bearing on the merits of the case. Any impropriety in the procedure could readily have been corrected by an admonition to the jury, but the court was not asked to take that action. In the circumstances the request for a mistrial was properly denied. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). Moreover the questions and answers were recorded on tape so that the son’s accuracy as an interpreter could have been checked later on, but that step does not appear to have been thought necessary.
It is also argued that the accused was denied his right to a speedy trial. Kay was in prison in Louisiana when the information was filed, but eventually he waived extradition and consented to being brought to Arkansas for trial. Having waived extradition he is not in a position to, and does not, question the extradition procedure. He does assert, however, that the State was required to exercise good faith in seeking his return to Arkansas. Smith v. Hooey, 393 U.S. 374 (1969). From that premise he argues that the State’s good faith is rebutted by its use of certain “pre-notarized” documents in the extradition proceedings and that therefore he was denied a speedy trial. This argument is not sound. We cannot approve the use of such documents, but we fail to see how their use implies a lack of good faith as far as a speedy trial is concerned. To the contrary, presumably the documents were used to hasten Kay’s return to Arkansas rather than to retard it. Consequently no prejudice from their use appears.
Affirmed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Frank Holt, Justice.
In February, 1975, the circuit court rendered a judgment suspending petitioner’s license to practice law for twelve months and ordering that his license “be reinstated thereafter only upon the petitioner’s satisfactory passing the regular examination for admission to the Bar administered by the State Board of Bar Examiners.” Petitioner argues that the provision of the court’s judgment which requires him to satisfactorily pass the regular bar examination is a nullity because the circuit judge was without the power or authority to impose such a condition on the reinstatement of his suspended license. Therefore, petitioner asserts that since the one year period of suspension is completed his license should be forthwith reissued to him.
Proceedings involving the disbarment of an attorney are civil in nature. Hurst v. Bar Rules Committee of the State of Arkan sas, 202 Ark. 1101, 155 S.W. 2d 697 (1941). Amendment 28 to the Arkansas Constitution (1874) provides:
The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.
Rule 5 of our Supreme Court Rules on Professional Conduct (1973), promulgated pursuant to Amendment 28, provides in pertinent part:
If the Judge or Chancellor finds, upon the hearing before him, that the attorney has been guilty of professional misconduct, he shall reprove, reprimand, suspend, or disbar such attorney, as the testimony may warrant ....
Either the Committee or the attorney defendant may appeal to the Supreme Court from the action taken by the Judge or Chancellor. . . .
Further, as to jurisdiction, it was succinctly said in Feldman v. State Board of Law Examiners, 438 F. 2d 699 (8th Cir. 1971):
The principle is firmly established that the judicial branch of the government, acting through the courts, has exclusive jurisdiction to admit, control and disbar attorneys.
Here, in a disbarment proceeding, the trial court clearly had jurisdiction with the power and authority to impose the lesser penalty; i.e., to conditionally suspend petitioner’s license “as the testimony may warrant. ...” which we equate with the imposition of reasonable conditions upon termination of the suspension. If the condition was unacceptable when imposed, petitioner’s remedy was by appeal to test the reasonableness of the condition. Admittedly, petitioner failed to exercise his right of appeal within the proper time. Consequently, he is not entitled to a review of his petition which asserts that the court was without the power and authority to require him to pass the bar examination as a condition to the reinstatement of his license.
Petition denied. | [
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Conley Byrd, Justice.
This election litigation arises as a result of a local option petition filed with the Pulaski County Clerk on September 8, 1976, for a wet or dry election in Precinct 18QA at the general election to be held on November 2, 1976. The Special Chancellor invalidated the petitions because they were not filed more than 60 days before the election. Appellants G. L. Glover, Sharon Cissell and Dr. Joel Anderson, as members of the Board of Election Commissioners of Pulaski County and Charles F. Jackson as Clerk of Pulaski County appeal contending that there is no mandatory filing deadline for local option petitions filed pursuant to Ark. Stat. Ann. § 48-801. Appellees Maxine Russell, Russell’s Liquor, Inc., M. C. Garrison and N. G. Mitchell cross-appeal contending that the Special Chancellor erred in holding that Precinct 180A was a valid, legal and established precinct of Pulaski County.
Both the appellants and appellees recognize that a local option election is not an initiative petition under the initiative and referendum provisions of Amendment No. 7 to the Arkansas Constitution. Yet both the appellants and appellees rely upon dictum from our decision in Armstrong v. Sturch, 235 Ark. 571, 361 S.W. 2d 77 (1962), to support their respective positions on the direct appeal issue. The sole issue involved in Armstrong v. Sturch, supra, was whether local option petitions Filed on July 23, 1962, prior to the general election on November 6, 1962, had been Filed too early. In construing Acts 1955, No. 15, we held that the petitions had been filed within the time prescribed by law. Here, however, the issue on the direct appeal is whether the petitions filed on September 8, 1976, were filed too late for the general election to be held 55 days later on November 2, 1976.
To understand how this problem arises, we must first consider Init. Meas. 1942, No. 1, § 1, Acts 1943 [Ark. Stat. Ann. § 48-801 (Repl. 1964)], which permitted 15% of the qualified voters to petition the county court for a wet or dry election. That act required the county court to hold a public hearing within 10 days to determine the sufficiency of the petitions. That provision directed the county court to order a special election not earlier than 20 days nor later than 30 days following the public hearing. Provision was also made for the time of taking an appeal from the county court to the circuit court, Ark. Stat. Ann. § 48-804.
After some experience with the provision for special local option elections, the General Assembly by a two-thirds vote adopted Acts 1955, No. 15 [Ark. Stat. Ann. §§ 48-824 and 48-825 (Repl. 1964)]. Section 1, thereof, required local option elections to be held only on the regular biennial November general election days. Section 2 of the Acts 1955, No. 15 [Ark. Stat. Ann. § 48-825] provides:
“Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the. subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.” [Emphasis ours].
The time table for the filing and processing of petitions on county initiative measures is controlled by Amendment No. 7, to the Constitution of Arkansas and the enabling legislation pertaining thereto, Acts 1935, No. 4 [Ark. Stat. Ann. §§ 2-301 — 2-314 (Repl. 1976)]. Amendment No. 7 provides that “ ... In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days . . . before the election at which it is to be voted upon.” After the filing of the petitions Ark. Stat. Ann. § 2-303 gives the county clerk 10 days to certify the sufficiency or insufficiency of the petitions. If the clerk certifies the petitions insufficient, the petitioners pursuant to Ark. Stat. Ann. § 2-309 are given 10 days to obtain additional signatures or to submit proof to the clerk on rejected signatures and the clerk thereafter has another 5 days to certify as to the sufficiency or insufficiency of the petitions. Ark. Stat. Ann. § 2-310 thereafter gives to any taxpayer 15 days to petition the chancery court for review of the clerk’s certification. Ark. Stat. Ann. § 2-311 then requires the chancery court to hold a hearing within 10 days. When viewed from the perspective of handling the requirements for certifying and contesting of petitions filed pursuant to the Enabling Act for initiative measures, one can readily understand that the process is expected to take as much as 50 days.
If we should accept the appellants’ position that Ark. Stat. Ann. § 48-825 does not fix a deadline for local options, then of course there is no reason why petitions filed only 30 days before the election would not also be filed within the time allowed by law, yet there would not be sufficient time for the county clerk after making his certification to give his notice of publication for two consecutive weeks as required by Ark. Stat. Ann. § 2-307, not to say anything about the rights of aggrieved taxpayers to review the clerk’s findings. Of course, if the clerk should certify the petitions insufficient, then under the appellants’ contention the chancery court would not be required to act until the election would be over. We do not believe the General Assembly intended any such absurd procedural results. Rather we interpret Ark. Stat. Ann. § 48-825, supra, in its grammatical sense as providing that every petition for a local option election “ . .. shall be filed ... in the manner provided for county initiative measures . . . ” — i.e. at least 60 days before the general election. It follows that the Special Chancellor properly invalidated the petitions here filed 55 days before the general election.
With reference to the validity of the establishment of Precinct 180A we must consult Acts 1969, No. 465, Art. 6, § 1 [Ark. Stat. Ann. § 3-601 (Repl. 1976)], which after empowering the County Election Commissioners to alter and establish election precincts, provides:
“The action of said commissioners ... in altering the boundaries of any precinct, or in establishing any new one, shall be entered in the record to be kept by them, and a copy of said order shall set out intelligently and accurately the boundaries of said precincts as so altered or established, shall be filed with the Clerk of the County Court who shall record the same at full length on the record book on which the minutes of the proceedings of the County Court are recorded. ...”
The only record for the establishment of Precinct 180A is shown by the minutes of the meeting of the Pulaski County Election Commission under date of October 8, 1974. Those minutes which were not filed for record with the county court until just immediately before the trial of this case provide:
“Commission Attorney Tom Tanner read the court order from Judge Warren Wood ordering the placing of both the Sherwood Annexation and North Little Rock Annexation proposals on the November 5, 1974 General Election Ballot and ordering County Clerk Charles Jackson to notify the affected voters. There were to be no precinct boundary changes, but to set up provisions to allow the proper voters to vote on the questions. A copy of the court order attached.
Chairman Mears made the motion to set up the precincts in question; draw a hypothetical and geographical line to accommodate the Sherwood Annexation Proposal. One part of the line will remain its presently designated number, the other part will have the designation ‘A’ added. Those voters in Precincts 180A, 204A, 205A and 215A are to be notified by the County Clerk that the designation is for the November 5, 1974 Election only, Those areas designated ‘A’ are the parts of Hill Township proposal to be annexed to Sherwood. ”
The circuit court order signed by Judge Warren Wood and attached to the minutes of the County Election Commission does not contain a description.
Obviously the foregoing minutes of the Board of Election Commissioners do not intelligently and accurately set out the boundaries of Precinct 180A in the manner required by Ark. Stat. Ann. § 3-601 (Repl. 1976). Furthermore, the Precinct 180A by the minutes of the Board of Election Commissioners existed only for the 1974 election. Consequently, it follows that the Special Chancellor erred in holding that Precinct 180A was a valid, legal and established precinct of Pulaski County.
Affirmed on direct-appeal and reversed on cross-appeal. | [
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John A. Fogleman, Justice.
Appellants were convicted of burglary of the residence of Jimmy “Red” Jones in Perry County and of grand larceny of property taken from that house. Appellants contend that there was insufficient evidence to support the verdict of guilt, and we agree, insofar as Raymond Olles is concerned. We find sufficient evidence as to Anderson’s guilt.
The testimony of Sue Markham, a participant in the crimes, would support the verdict, if this were sufficient. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense and it is not sufficient to show that the offense was committed and the circumstances of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The corroborating evidence must be sufficient to establish the commission of the offense and the connection of the accused therewith if the testimony of the accomplice is eliminated from the case. Prather v. State, 256 Ark. 581, 509 S.W. 2d 309. The evidence connecting the accused with the crime must be independent of the testimony of the accomplice. Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151; Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. It may be circumstantial, but it must be substantial. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Even though it need only tend to connect the accused with the crime, it must do more than raise a suspicion of guilt. Prather v. State, supra. It need not be sufficient, in and of itself, to sustain a conviction and it may be slight and not altogether satisfactory and convincing, if substantial. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202. It must, however, be of a substantive character (Yates v. State, 182 Ark. 179, 31 S.W. 2d 295), i.e., it must be directed toward proving a fact in issue, not simply toward discrediting a witness or corroborating his testimony. Black’s Law Dictionary, 4th Ed.; Zimmerman v. Superior Court, 98 Ariz. 85, 402 P. 2d 212, 18 ALR 3d 909 (1965). See also, State v. Fitch, 162 S.W. 2d 327 (Mo. App., 1942); Kitchen v. Commonwealth, 291 Ky. 756, 165 S.W. 2d 547 (1942); Foster v. Copeland, 27 Tenn. App. 777, 159 S.W. 2d 96 (1942).
When we eliminate the testimony of Sue Markham, the other evidence clearly shows that a burglary and a theft amounting to grand larceny were committed. The evidence connecting appellant Olles with the crime does no more than raise a suspicion of guilt. As to Anderson, the only independent evidence to connect him with the crime is a statement he made to an officer and his own testimony. But the acts, conduct and declarations of the accused before or after the crime, including his testimony at the trial may furnish the necessary corroboration. Long v. State, 192 Ark. 1089, 97 S.W. 2d 67; Stroud v. State, 167 Ark. 502, 268 S.W. 850; Mallett v. State, 165 Ark. 613, 263 S.W. 384; Ford v. State, 205 Ark. 706, 170 S.W. 2d 671; Dickson v. State, 197 Ark. 1161, 127 S.W. 2d 126; Russell v. State, 97 Ark. 92, 133 S.W. 188.
Perry County Deputy Sheriff Clyde Booher testified that when he asked Anderson if he helped burglarize Jones’ home, Anderson answered, “I don’t know. I guess so. I was drinking at the time.” Anderson testified at the trial that he was so drunk he remembered nothing from the time he got into the back seat of an automobile with Sue Markham and Raymond Olles on the evening of the burglary and until he “awoke” when they were near the Arkansas River and Sue was cooking some eggs. Booher had testified that Anderson told him that he remembered leaving with Sue and Raymond Olles and being under a building which was “high off the ground” down along the river, and cooking some eggs. The officer went to such a place, not identified, and found eggshells on the ground.
Anderson’s wife testified that when she got home from work at 10:30 p.m. on the night of the burglary there was a box of clothes, sheets, pillow cases and towels in the house which had not been there earlier. She said that when Anderson got up the next morning he just told her there was a box of clothes there in the house. Anderson himself testified that he told the officers some sheets “stayed out there” on his porch. He said he went out the next morning when he sobered up and there was a box of clothes in the yard, folded up in a long, pasteboard box, and there was a little piece of copper wire laying out in the driveway. Mrs. Anderson said that she started using the clothing. The owner testified that the property stolen included certain ladies’ garments and a heavy cardboard box 36 inches wide, 24 inches deep and 48 inches long containing approximately 14 sheets, 15 pillow cases and 24 towels.
Sue Markham testified that she, Raymond Olles, with whom she was living, and Richard Anderson, her uncle, had gone to the Jones residence, where Olles and Anderson got out of the car, went to the house and brought back a couple of boxes of “stuff” and put them in the car. She said that Anderson made two or three trips, after which Olles and Anderson got in the car with her and the three went down to the river to a house built up on poles above the ground where they cooked some hamburger meat and boiled two dozen eggs. They then went by Anderson’s home where he unloaded a box, after which Olles and Markham went home.
The possession of the stolen property would not be sufficient, standing alone, to corroborate the testimony of the accomplice, because the property at the Anderson house was not sufficiently identified at the trial. See Scott v. State, 63 Ark. 310, 38 S.W. 339. Still this evidence showing that articles of the type of those stolen mysteriously appeared in Anderson’s possession on the night of the burglary, without any explanation except that Anderson claimed to be drunk and ignorant of their source, is certainly a circumstance to be considered in determining whether there is a chain of circumstances making the corroborating evidence sufficient. See King v. State, 254 Ark. 509, 494 S.W. 2d 476.
The circumstances, coupled with Anderson’s own statements putting him in the automobile with Sue Markham and Raymond Olles immediately before the burglary and at the house along the river where eggs were cooked by Sue immediately after the burglary, constituted substantial circumstantial evidence tending to connect Anderson with the crime sufficient to warrant submission of the question to the jury. Hubbard v. State, 258 Ark. 472, 527 S.W. 2d 608 [and State v. Bassett, 86 Idaho 277, 385 P. 2d 246 (1963) therein cited]; Shaw v. State, 133 Ark. 599, 202 S.W. 704; Cook v. State, 182 Ark. 1185, 31 S.W. 952; Middleton v. State, 162 Ark. 530, 258 S.W. 2d 995; Yates v. State, supra, 182 Ark. 179; Stout v. State, 249 Ark. 24, 458 S.W. 2d 42. Since the accomplice was corroborated as to particular material facts, the jury could infer that she spoke the truth as to all. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462.
We are unable to find substantial evidence tending to connect Olles with the crimes. The fact that an officer found eggshells at a house similar to that where Sue Markham said she and Olles had cooked eggs after the burglary cannot be considered as substantive evidence, even though it tends to be corroborative of her testimony. Even if we considered Anderson’s testimony as connecting Olles with the crime, the testimony of one accomplice cannot be corroborated by another. Edmondson v. State, 51 Ark. 115, 10 S.W. 21; Melton v. State, 43 Ark. 367. Otherwise the only circumstance connecting Olles with the offenses is that some of the merchandise stolen was recovered from the home of Olles and Sue Markham at 3814 Shackleford Road in Little Rock, after he had been arrested on a warrant issued on another charge. Possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny. Klimas v. State, supra, 259 Ark. 301. But the mere fact that several days after Olles had been arrested and incarcerated some of the stolen goods were recovered from the dwelling shared by the accused and Sue Markham, whose participation in the crime was admitted, is not sufficient corroboration, standing alone, even though it certainly would arouse a suspicion. In this respect, there is a similarity to such cases as Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204 and Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222. In Cockrell, we held that the mere fact that stolen guns were found in the trunk of the accused’s automobile was, not sufficient corroboration of the testimony of an accomplice who lived with the accused and had free use of the car, especially when the accused was at work.
There is another point for reversal we must consider as to Anderson. He argues that he was incapable of having com mitted the crimes because he was so intoxicated at the time that he could not have entertained the specific intent to commit burglary or larceny. He contends that the undisputed evidence clearly establishes this defense. Of course, voluntary intoxication is not a defense, even though it may produce a form of “temporary insanity” or render the person charged unconscious of what he is doing. Robertson v. State, 212 Ark. 301, 206 S.W. 2d 748; Wood v. State, 34 Ark. 341. Still, when an offense can be committed only by doing a particular thing with a specific intent, it may be shown that an accused was so drunk at the time of the crime that he could not have entertained or formed the necessary intent, but the determination whether there was that degree of intoxication is solely within the province of the jury. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451.
Undoubtedly, Anderson had been drinking beer in large quantities before and after the crimes. Sue Markham and Anderson’s aunt (neither of whom was a medical expert) testified that Anderson had Huntington’s Chorea and that one who has this disease does not know or remember what he is doing or has done, after drinking. Markham testified that he “passed out” on the way to Perry County, but that he made two or three trips to the Jones house and that he unloaded a box when she and Olles took him to his home. Even though Anderson testified that he did not know how the box got there, he did tell his wife of the presence of the box and she later used some of the contents. In Wood v. State, supra, we quoted authorities pointing out that, if one who is too drunk to entertain the specific intent to steal, relinquishes property taken by him before the intent could arise in his mind, there is no larceny. Despite Anderson’s protestations that he knew nothing of the crimes, the question of intent was still for the jury’s determination.
There remains another point affecting Olles which will arise on a new trial. He contends that evidence obtained by Deputy Sheriff Booher from his residence was erroneously admitted into evidence as the fruit of an illegal search. A motion to suppress this evidence was made and a pretrial hearing was held in camera, but the motion was denied. It is appellant’s contention that the search and seizure resulted from an earlier “illegal” entry into Olles’ place of residence by the officer. We find no merit in this contention, because we cannot say that the circuit judge’s findings of fact are clearly against the preponderance of the evidence.
Booher testified substantially as follows:
Olles told me that he lived at 3814 Shackleford Road when I arrested him. I went to the house there with Raymond Olles’ father. I don’t remember the date but it was after Olles had been arrested on another charge. The senior Olles asked a Mrs. Speigel, the lady who owned the house, about Raymond’s gun, saying that he was afraid someone might steal it. She told him the house was open and to go out there and get the gun. I went in the house with him, but I didn’t see anything. The place was pretty badly torn up. I had no permission to enter from Raymond Olles or Sue Markham. I just went in there with Raymond’s father. He took some jumper cables which were just inside the door on the right, saying they were his. I did not try to stop him. I had no authority there. Mrs. Speigel gave us permission to go in.
A few days later (November 12) I went back to this residence to talk to Sue Markham, who lived there with Raymond Olles, about the burglary. She and her sister were there and she invited me in. I talked with her for a few minutes, advised her of her rights, told her that she was accused in a burglary, and she signed a statement and gave me permission to search. I asked her about the Jimmy “Red” Jones incident and she said, “I’ve got some of his stuff here, part of it.” She signed papers giving me the authority to search the house, but I did not search it. She gave me the merchandise and I took it back to Perryville. At first, Sue Markham said she didn’t know anything about the burglary, but I didn’t force her into answering any questions. We had a very cordial conversation. I talked to her at some length. She went into details and it took some time to write it all down. She seemed intelligent enough to me.
Sue Markham testified reluctantly. She was called by the court as a witness. When asked what was said when Booher talked to her about the Jones burglary, she responded:
Well, at first I, see, I said I didn’t know anything about it, then he said that, “Well, we’ve been up to Raymond, I and Raymond’s daddy have come up here and you wasn’t at home and we walked in.” íle said that his daddy was just looking for the gi^n and he said, “I know you got the stuff,” he said, “but is it all here,” and then, I mean, since he already knew, I thought well, I’d return the stuff.
She said Booher had seen the toaster and electric blender while there on the second visit and asked her if they came from the Jones house and she told him, “Yes, sir.” She admitted that she had been advised of her rights. On cross-examination by appellants’ counsel, the following questions were propounded and answers given:
Q. - - and it was after Deputy Booher told you that he’d been in your house and he’d seen the stuff there, that he knew it was there, that you told him about it, wasn’t it?
A. Yes, sir.
Q. He told you he’d been in there and he told you he knew the stuff was there?
A. Uh huh.
The witness had not previously stated that Booher had seen anything in the house on his prior visit. The witness also testified that she helped dispose of some of the “stolen stuff” and kept some of it in her house, knowing it was stolen.
The trial court ruled as follows:
*** The Court finds that Deputy Booher, when he went in there the first time, as he has testified to, did not receive anything that would incriminate anyone. He merely went there with the father of the defendant, Olles, who he himself had apparently had a right to be there picking up some of his own goods, and then when he went back to the premises on the 12th, apparently, he did not make a search of the premises. The witness here, who is available to testify, voluntarily gave him the goods that had been stolen from the victim’s home. They are available, I guess, so I find that there was, in fact, no search.
We are in no position to say that the trial judge erred in holding that there was no search and that the stolen goods had been voluntarily delivered to the officer. There is little conflict in the testimony of the two witnesses. The only suggestion that Sue Markham’s turning over the stolen property was not voluntary, because of knowledge obtained by a trespass on the part of the deputy sheriff, lies in affirmative answers to questions which put into the mouth of the witness words she had not otherwise spoken. This is largely a matter which turns upon the credibility of the witnesses, who were seen and heard by the trial judge. We cannot say that his determination was erroneous.
The judgment as to Anderson is affirmed. As to Olles, it is reversed and the cause remanded for further proceedings consistent with this opinion.
We agree. Harris, C.J., and George Rose Smith and Jones, JJ. | [
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Elsijane T. Roy, Justice.
This action involves the second appeal of this condemnation case. See Arkansas State Highway Commission v. Taylor, 256 Ark. 681, 509 S.W. 2d 817 (1974).
Upon the second trial in July, 1975, the jury returned a verdict in the amount of $56,550. Appellees filed a motion to set aside the verdict, and on September 5, 1975, the trial court, in response to the motion, granted a new trial to appellees. From said order this appeal is brought.
Ark. Stat. Ann. § 27-1901 (Repl. 1962) governing the granting of a new trial reads in material part as follows:
“New trial” defined — Grounds — A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:
First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.
Effective January 1, 1975, this Court adopted Rule 16 of the Uniform Rules of Procedure for Circuit, Chancery and Probate Courts which required the lower court to set out with particularity the specific ground or grounds for its decision in the order granting a new trial. The trial court complied with Rule 16, and the order setting aside the verdict and granting the new trial enumerated four grounds.
The first ground was the error of the clerk in preparing the list of jurors submitted to the parties for the purpose of making their strikes. The order states:
(a) Because of the irregularity in the proceedings of the Court, in that the name of one of the jurors was omitted from the list of jurors prepared by the Clerk and submitted to the parties for the purpose of making their strikes; that said list did not contain 18 names, but only had thereon 17; that after the parties made their strikes the Court then added the name of the 18th juror, to wit, one Dee Barnes.
The list of persons drawn and called, which was prepared by the clerk of the court, omitted the name of Dee Barnes. This was clearly an irregularity in the proceedings of the court. This error became more important when Mr. Barnes became the foreman of the jury.
We have held many times that a trial judge’s order granting a new trial upon a statutory ground should not be reversed in the absence of manifest abuse of his discretion. Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877 (1967); Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922 (1911). The showing that this discretion was abused must be much stronger when a new trial has been granted than when it is denied. Worth James Construction Co. v. Herring, 242 Ark. 156, 412 S.W. 2d 838 (1967); Heil v. Roe, 253 Ark. 139, 484 S.W. 2d 889 (1972). We find no abuse of discretion by the trial court in this case.
Since the first reason given by the trial court for granting a new trial constitutes sufficient justification for this action, we need not discuss those additional grounds enumerated in the order.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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Elsijane T. Roy, Justice.
In November, 1973, appellees Doyle and Bernice Bates purchased certain real property from Mrs. Jamie Williamson. The property was adjacent to Wheeler Avenue in Fort Smith, Arkansas, on which a widening project had commenced several years prior to the purchase. Before beginning this work the City of Fort Smith (hereafter City) secured permission, after lengthy negotiations, from Mrs. Williamson to utilize an eleven foot strip of land across the front of her property for widening purposes in exchange for making certain improvements to the remaining property. The agreement between the parties is incorporated in the following letter to the City of Fort Smith:
l have enclosed the executed easement agreement as you requested in order that Wheeler Avenue can be expanded to four lanes. The easement has been signed however, subject to a reciprocal agreement by the City that the property be left clean, with utility taps at the front of the property on Wheeler Avenue. You have also agreed that there will be two curb cuts (location to be determined at a later date) with two driveways paved a minimum of 40 feet on the property. (Italics supplied.)
Sincerely,
/s/ JAMIE V. WILLIAMSON
Jamie V. Williamson
The City of Fort Smith acknowledges the above and will Incorporate this work as a part of the construction, for the Wheeler Avenue Widening Project.
/s/ WILLIAM E. HUEY, JR.
William E. Huey, Jr.
All of the improvements with the exception of the driveways had been completed at the time this action was filed. The City construed the agreement to require the construction of two 40-foot wide cuts in the curbs extending to the edge of the right of way and that it was not obligated to build the driveways on appellees’ property. Appellees thereafter filed this action in chancery court requesting that the City be required to construct the driveways or, álternatively, that compensation be granted in the amount of $2,-870. The court decreed that the City had entered into an agreement with appellees’ predecessor in title to build the two driveways 40 feet in length; that appellees had standing to enforce this agreement; that the City had ratified the actions of its employee, William Huey, in negotiating the agreement and was thereby estopped to deny its enforcement; and that appellees should be awarded compensation in the sum of $1,244.25 plus costs. Appellants thereafter perfected this appeal.
The first alleged error is the trial court’s action in admitting into evidence a copy of the assignment to appellees from their predecessor in title. The document, captioned “Assignment,” conveyed to appellees all rights of Mrs. Williamson pursuant to the agreement she entered into with the City. Appellants’ objection to its introduction was twofold; first, that appellees did not produce the original of the document and failed to properly explain its unavailability and, second, that the copy introduced did not contain the properly authenticated signature of Mrs. Williamson.
Don Smith, the real estate broker who helped negotiate the agreement between Mrs. Williamson and appellants, at the City’s request testified that the photocopy of the agreement was a true and correct reproduction of the original. Smith testified that after he secured the original instrument from Mrs. Williamson he gave it to appellees’ counsel, William Wright, who stated to the court that the original had disappeared and he was unable to locate it and he only had the copy.
Smith further testified he was familiar with Mrs. Williamson’s signature, having handled business for her for a number of years and having seen her signature on numerous documents. Since Smith was familiar with Mrs. Williamson’s signature his confirmation of its authenticity was sufficient. Davis v. Falls, 172 Ark. 314, 288 S.W. 723 (1926). It must follow that the chancellor acted correctly in admitting the document.
Appellants also contend error in the trial court’s construction of the agreement between appellants and Mrs. Williamson.
In construing the agreement the court evaluated the conflicting testimony of Don Smith and William Huey. Huey was an engineer and assistant director of planning who was handling the widening project for the City, and he testified he signed the agreement at the instruction of Cliff Keheley, City Administrator.
Smith testified the City was unable to get Mrs. Williamson to grant the easement and he assisted the City in securing it. When he and Mrs. Williamson worked out the agreement Smith submitted it to Huey. Then Huey added a paragraph reflecting the City’s acquiescence to the terms. It was Smith’s testimony that the agreement meant the City should construct two driveways 40 feet in depth upon appellees’ property; that this depth or length would go to the normal setback for buildings; and that he assumed the width would comply with zoning policy of the City. Although Huey’s testimony was in sharp conflict, the chancellor resolved the issue in favor of appellees.
In reviewing chancery appeals we affirm unless the chancellor’s holding is against the preponderance of the evidence. We also recognize that the chancellor is better situated to appraise witnesses and reconcile conflicts in testimony than the appellate court. Minton & Simpson v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974). Furthermore we'think the plain wording of the agreement clearly supports the decision of the chancellor. Under the facts here it is not necessary to answer in detail all the contentions of appellants on this issue but we find them without merit.
In other points the City argues that the agreement is ultra vires and/or void; and that the agreement is outside the scope of the authority of those agents of the City who actually negotiated it.
Appellant City contended it had no right to go upon private property to make improvements, relying inter alia upon Article 12, § 5 of the Arkansas Constitution which provides:
No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.
This section of our Constitution was not meant to apply as a limitation on the ability of the municipal corporation to acquire private property for a public purpose in exchange for fair and equitable consideration. See 63 C.J.S. Municipal Corporations § 957. Here the City agreed to construct the improvements in lieu of cash consideration for the easement acquired.
We also note the action taken by the City in other instances is contrary to its argument on this issue. On a number of the tracts, in connection with acquiring the right of way, the City allowed its contractor to go on the tracts for regrading and paving of driveways on private properties and allowed Administrator Keheley to negotiate grants for cash consideration from one dollar to several thousand dollars. To allow the City to avoid the duties assumed under the agreement by alleging that its agents had no authority to so act would result in injustice to appellees.
From the above facts it appears that Huey and Keheley acted with at least implied authority from the City, but even if we concluded that authority was absent this does not preclude appellees from recovery. In Day v. City of Malvern, 195 Ark. 804, 114 S.W. 2d 459 (1938), a case factually similar to the instant appeal, we held that:
... a contract illegally entered into or entered into without authority by agents or officers of a municipal corporation, may be ratified and rendered binding upon the municipal corporation by affirmative action on its part, or some negative action, which of itself would amount to an approval of the contract. * * *
The City accepted the property, utilized it and carried out most of the terms of the agreement. In fact, the City did not until several years later question the provision concerning the driveways. This action certainly constituted ratification under our decisions, and appellants accordingly are estopped from denying the terms of the agreement. However, in order to avoid the application of the doctrine of ratification, appellants contend the doctrine itself must have been specifically pled. Because the word “ratification” was not used in appellees’ original or amended complaint, it is argued it should not have been invoked by the trial court. Although the exact word “ratification” was not used in the pleadings, the facts necessary to invoke the doctrine (agency, acceptance and retention of the benefits and knowledge of the contract) were well pled, and appellants had sufficient notice of appellees’ position to allow presentation of any testimony through necessary to controvert the doctrine of ratification.
Appellants also complain about the measure of damages but we find the chancellor properly applied the standard established in Day, supra. As to other arguments for reversal urged by appellants we likewise find them to be without merit.
Accordingly the decree of the chancellor is affirmed. | [
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Elsijane T. Roy, Justice.
Appellant Tri-B Advertising, Inc. filed a complaint for damages against the Arkansas State Highway Commission (Commission) and Folk Construction Co., Inc. (Folk), appellees herein. The complaint alleged that the Commission ordered its agent Folk, as part of an eminent domain action, to remove an outdoor advertising sign owned by appellant and that its property valued at $2500 was taken for public use without compensation in contravention of the Arkansas Constitution. Each appellee filed a demurrer to the complaint, and both were sustained by the trial court.
On appeal Tri-B Advertising, Inc. first contends that the trial court erred in granting appellees’ demurrers because appellant’s complaint stated a common law cause of action against them.
Under its first assignment of error appellant urges that in failing to follow necessary statutory procedure prior to removal of its sign the Commission became vulnerable tó a common law cause of action in a State court. It is contended by appellant that it received neither notification of the condemnation action taken against it nor compensation in the form of a deposit to cover the estimated value of the condemned property. Appellant argues that this failure to provide compensation is violative of § 22, Article 2 of the Constitution of Arkansas which requires that before private property shall be acquired for public use just compensation shall be tendered.
Appellees, without disclaiming in any manner appellant’s assertions of the taking of the property without notice or compensation, contend that § 20, Article 5 of the Arkansas Constitution forestalls making an agency of the State a defendant in any State court.
It is well settled that in determining the sufficiency of a complaint on demurrer, every reasonable intendment should be indulged in favor of the complaint, and if facts stated in the complaint, together with all reasonable inferences to be deduced therefrom, constitute a cause of action, the demurrer should be overruled. Mortenson v. Ballard, 209 Ark. 1, 188 S.W. 2d 749 (1945). Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S.W. 2d 717 (1969); Comer Lbr. & Supply Co. v. Woodward, 235 Ark. 632, 361 S.W. 2d 259 (1962).
The State of Arkansas, its officers and its agencies cannot be made a defendant in any of its courts. Article 5, § 20, Arkansas Constitution. The Arkansas State Highway Commission is an agency of the State, and suit cannot be maintained against the Commission. Ark. State Highway Commission v. Nelson Brothers, 191 Ark. 629, 87 S.W. 2d 394 (1935). This immunity extends to suits for torts. Wenderoth v. Baker, 238 Ark. 464, 382 S.W. 2d 578 (1964); Ark. State Highway Commission v. Lasley, 239 Ark. 538, 390 S.W. 2d 443 (1965).
In Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S.W. 2d 415 (1961), we stated:
The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Par tain, 192 Ark. 127, 90 S.W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S.W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S.W. 2d 1061.
The complaint states the device had been removed prior to the filing of this suit. The “taking” of any property interest in the sign as a fixture had likewise been completed. See Ark. State Highway Commission v. Holden, 217 Ark. 466, 231 S.W. 2d 113 (1950); Ark. State Highway Commission v. Flake, 254 Ark. 624, 495 S.W. 2d 855 (1973).
The Bryant decision, supra, has been reaffirmed in Ark. State Highway Commission v. Flake, supra, and Shipley v. Crawford County, 253 Ark. 1021, 490 S.W. 2d 439 (1973), and appellant,is limited to a remedy in the State Claims Commission. Ark. Stat. Ann. § 13-1402 (Repl. 1968).
Appellant’s second contention is that the court erred in granting appellee Folk’s demurrer because the complaint states a cause of action for the commission of an intentional tort. In Ark. State Highway Commission v. Steed and Steed, 241 Ark. 950, 411 S.W. 2d 17 (1967), we held:
. . . [Tjhere is no liability on the part of a contractor if he follows the designs and plans and specifications of the condemnor and complies with his contract with it if he did not do so in an improper or unskillful manner or was not guilty of negligence which caused the damage to which complaint is made. (Citations omitted.)
However, the converse of this principle is also true. If the contractor does not act in compliance with these requisites he may become liable even though acting under directions of the Commission.
In 40 C.J.S. Highways § 212 the general rule of law is stated as follows:
However, the contractor, and not the highway authority, is liable for damages resulting from his own tortious acts in the performance of the contract, as where he is negligent, or commits an unauthorized trespass on the property off the right of way. Even though the highway authority may be immune from liability for damage, such immunity is not shared by the contractor. * * *
In Bucton Construction Company v. Carlson, 225 Ark. 208, 280 S.W. 2d 408 (1955), we upheld a judgment against a contractor who negligently performed such a contract.
When we view the complaint construing every reasonable intendment in favor of the pleader, as we are required to do when its sufficiency is tested by a demurrer, we find a factual issue is presented as to whether the damage done to appellant’s property was caused by some negligent or tortious act on the part of the contractor. Therefore the demurrer should have been overruled.
The judgment of the trial court is affirmed as to the Commission and remanded for action not inconsistent with this opinion as to Folk.
Comer Lbr. & Supply Co. v. Woodward, supra. | [
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John A. Fogleman, Justice.
Appellant, Fireman’s Fund Insurance Company, was surety on the bond of Herman J. Callahan, as Collector of Polk County, covering the year 1973. An audit of the accounts of Callahan for that year by the Division of Legislative Audit of the Legislative Joint Auditing Committee reflected that there was a net shortage in his accounts of $6,982.20 attributable to an excessive withholding of $7,444.16 in commissions on school tax collections and additional commissions due him on other funds totalling $461.96. Callahan and Fireman’s Fund were notified of the discrepancy by letters from the Division of Legislative Audit. When neither paid the shortage the Prosecuting Attorney of the Ninth Judicial District, of which Polk County is a part, filed this suit for Polk County against appellant in the circuit court seeking to recover the amount of the shortage.
Appellant answered, alleging that the discrepancies arose from an erroneous calculation of the collector’s commissions by Helen Thomas, County Clerk of Polk County and that she, rather than Callahan and appellant, was liable to the County for the shortage. Appellant filed a third party complaint against Ms. Thomas and the surety on her bond, St. Paul Fire & Marine Insurance Company asking that they be held liable to the county, or in the alternative, to appellant for any judgment rendered against it in the action. Helen Thomas and St. Paul Fire & Marine Insurance Company filed a motion for summary judgment.
By an amendment to its answer, Fireman’s Fund alleged that the statutory notice of overpayments had not been timely served on the collector, that no judgment had been rendered against the collector in the County Court, that no timely examination of the collector’s settlement had been effected or changed, that the accounts of the collector could not be settled in the circuit court in an action against the surety on the collector’s bond, that the complaint against appellant could not be maintained in the circuit court and that the circuit court was without jurisdiction. Appellant then filed its motion for summary judgment.
At a pretrial hearing the facts were stipulated by the parties. It was agreed that:
The information contained in the letters from the Legislative Joint Auditing Committee to Callahan and Fireman’s Fund, dated November 22, 1974 and December 6, 1974, respectively, was based upon an audit made during the months of August, September and October, 1974. On March 14, 1975, the Legislative Joint Auditing .-Committee notified Prosecuting Attorney Steel of the Ninth Judicial District that the Fireman’s Fund had failed to pay the shortage. The prosecuting attorney filed the complaint seeking judgment against Fireman’s Fund for the net shortage on June 6, 1975. The calculations made by the Auditing Committee were correct. The discrepancy in the commissions on school funds was attributable to the utilization of a rate of .04039 by Helen Thomas, County Clerk, in calculating the commission rather than the correct rate of .0302053136. No official of Polk County had made any demand upon Callahan prior to the filing of the complaint. Based upon the county clerk’s computation, Callahan retained collections amounting to $6,-982.20 over and above the amount to which he was entitled. The county clerk did nothing except make a computation for a “tentative” settlement to be made by the collector with the taxing units. She did not receive any benefits by reason of the overpaid commission and no demand had been made on her or her surety by anyone. During the years 1973 and 1974 neither the Polk County Court nor the Polk County Judge made or filed any record concerning the collector’s accounts, collections or commissions for the year 1973, other than the settlement of the collector for the year 1973, dated December 4, 1973, which was exhibited.
The circuit court then rendered judgment against appellant based upon the stipulation, holding that the procedure provided by Ark. Stat. Ann. § 13-209 (E) governed and had been followed. The motions for summary judgment were denied and the cross-complaint against Ms. Thomas and St. Paul Fire & Marine Insurance Company dismissed. The judgment was rendered on November 6, 1975 at the pretrial hearing but was not filed until November 24, 1975. It was dated November 21, 1975.
A certified copy of an undated order of the County Court of Polk County, purportedly pursuant to the authority vested by Ark. Stat. Ann. § 84-1401 et seq, found its way into the transcript. The certificate of the county clerk is dated November 10, 1975 and it appears to have been filed with the Clerk of the Circuit Court of Polk County on the same date. It contained a finding that Callahan had “overdrawn” his collector’s compensation for the year 1973 by the amount of $6,982.20, as shown by the audit by the Legislative Joint Auditing Committee, and ordered him to repay the amount. There is nothing to indicate that it was presented to or considered by the circuit court in rendering the judgment. It could not, and should not, have been admitted into evidence because it was not made before the bringing of this suit. Graham v. State, 100 Ark. 571, 140 S.W. 735. At any rate, it cannot be considered on appeal.
Appellant asserts a single point for reversal. It questions the propriety of the holding that Ark. Stat. Ann. § 13-209 (E) alone governed the procedure. In its argument, appellant contends that the section in question does not authorize an action in the circuit court against it, without the liability of the collector having been determined in the County Court of Polk County. We agree with appellant. The section in question does nothing more than authorize the Director of the Division of Local Affairs and Audits, with the approval of the Legislative Joint Auditing Committee, to give notice and make demand upon the surety on an official bond, and in default of payment, to give notice to the prosecuting attorney of the proper circuit, who is, by the act, directed to “forthwith take such legal action as may be necessary to collect the amount so found to be due from the officer and his surety or sureties. ” The amount referred to is the amount of any shortage or other liability reflected by reports of audits of the records of a county official.
There is no language in the act which purports to vest any jurisdiction in any court of an action for recovery of amounts found due by an audit, or which suggests that there was any intention to repeal or amend statutes which do govern the procedure for establishing the liability of a county official, and, at least indirectly, that of a surety on his official bond. Specific acts were repealed, but none are germane to this procedure. Of course, neither repeals nor amendments by implication are favored in construing statutes. Penney v. Vessels, 221 Ark. 389, 253 S.W. 2d 968. In Arnold v. City of Jonesboro, 227 Ark. 832, 302 S.W. 2d 91, we said:
*** The Legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.
The statute relied upon is not so inconsistent with the provisions of the earlier law that all cannot stand. By omitting these acts from the specific repealer, there is more indication that the General Assembly intended that they be unimpaired than that they be superseded.
In the first place, it is the duty of the county clerk to set up the collector’s settlement, by charging him with the amount to be collected and deducting amounts delinquent and the commissions allowed him by law, Ark. Stat. Ann. § 81-1409 (Repl. 1960). The collector is charged with the duty, however, to render his accounts to, and settle with, the county court. Ark. Stat. Ann. § 84-1430 (Repl. I960). It is the duty of the county court to pass upon the collector’s settlement made and filed with the county court and to approve, reject or restate it. Ark. Stat. Ann. § 84-1410 (Repl. 1960). Failure of the county judge to act is misfeasance and a misdemeanor and failure of the county clerk to set up the settlement is a misdemeanor punishable by removal from office. § 84-1410. If the settlement is found correct, the county court shall order it spread of record; if rejected, the clerk must restate the settlement and resubmit it to the county court. Ark. Stat. Ann. §§ 81-1411, 1431 (Repl. 1960). It is only after this is done that the collector makes final payment to the various agencies for whom he has made collections. Ark. Stat. Ann. §§ 81-1412, 1416, 1432 (Repl. 1960). If the collector fails to make settlement, the county court must adjust his accounts, according to the best information obtainable. Ark. Stat. Ann. § 84-1436 (Repl. 1960). This proceeding may be ex parte, but it is only a preliminary step on which judgment cannot be entered without further proceedings. Trice v. Crittenden County, 7 Ark. 159; Carnall v. Crawford County, 11 Ark. 604; Christian v. Ashley County, 24 Ark. 142. If the collector does not show good cause for setting aside a settlement so made, the county court then enters judgment against him. Ark. Stat. Ann. § 84-1439. If good cause is shown, the court may reexamine, settle and adjust the settlement so arrived at by it. Ark. Stat. Ann. § 84-1440 (Repl. 1960). But notice must first be given to the collector, so he may be heard. Trice v. Crittenden County, supra. If the amount found due by the collector is not paid after 15 days’ notice to the collector and his sureties, the county court may render judgment against them. Ark. Stat. Ann. § 84-1442 (Repl. 1960). If an error either of law or fact is discovered in the settlement, it is the duty of the county court, within one year from the date of the settlement, to reconsider and adjust it, after ten days’ notice to the officer. Ark. Stat. Ann. §§ 84-1443, 1444 (Repl. 1960). See Haley v. Thompson, 116 Ark. 354, 172 S.W. 880.
These proceedings against the collector are exclusively within the jurisdiction.of the county court. Trice v. Crittenden County, supra. In acting on such matters the county court acts judicially. Brandenburg v. State, 24 Ark. 50.
This record is totally devoid of any evidence that the collector made or filed any settlement with the county court or that the county court ever adjusted his accounts upon his failure to make a settlement or for any error (unless this was done after the hearing in this case). There certainly is nothing in the record to indicate that the county court ever rendered a. judgment against the collector, pursuant to the statutes and after notice to the collector. This was a condition precedent to an action against the surety on the collector’s bond. Graham v. State, 100 Ark. 571, 140 S.W. 735; Jones v. State, 14 Ark. 170. In Jones, we said:
The county court is the forum where the liability of the collector, upon which that of his securities depends, is to be ascertained and evidenced by its records. An adjudication in the forum is conclusive evidence against the securities, as well as the collector, in an action upon his bond in the Circuit Court. There can be no liability upon the collector’s bond without such adjudication unless the Circuit Court can in an action upon the bond draw to itself, in a collateral way, a jurisdiction to investigate and settle the accounts of delinquent officers for the collection of revenue, which appropriately belongs to the county courts.
Later in Goree v. State, 22 Ark. 236, we held that a judgment in circuit court against the surety on a collector’s bond was defective because no action could be maintained against the surety until a final judgment had been rendered in the county court upon the collector’s settlement or its adjustment and settlement, and that the ex parte preliminary settlement was not sufficient basis for the action. Upon the basis of this holding we rejected the argument that the circuit court, and not the county court, had jurisdiction of such an action. Chris tian v. Ashley County, 24 Ark. 142. It is clear that notice prior to the final judgment is essential to its validity. Christian v. Ashley County, supra; Trice v. Crittenden County, supra; Carnall v. Crawford County, supra.
It is quite clear that no cause of action accrues against the surety on the bond until a final judgment fixing the liability of the collector has been entered. Graham v. State, supra, 100 Ark. 571.
Inasmuch as the record does not disclose that the conditions precedent to the cause of action have been met, the judgment must be reversed.
Appellant has argued that the action is barred by the statute of limitations. But the earliest date the statute can begin to run is the date the collector actually files his settlement with the county court, McCoy v. State, 190 Ark. 297, 79 S.W. 2d 94, unless it should be put in motion by the county court’s ex parte preliminary settlement or by any notice given thereafter. In any event, there is nothing in this record to show any basis for the accrual of the cause of action, so we cannot hold that the action is barred upon the record before us. Bledsoe v. State, 167 Ark. 160, 267 S.W. 571, has no application, because, as far as this record discloses, the collector never filed his settlement with the county court and the statement of the account by the county clerk is not necessarily the settlement contemplated. See Ark. Stat. Ann. § 84-1430.
It should be noted that there is no allegation of either actual or legal fraud in this case. All parties agree that the shortage is due to a mistake, which may well not have been the basis of relief in equity for fraud. State v. Perkins, 101 Ark. 358, 142 S.W. 515, but see Fuller v. State, 112 Ark. 91, 164 S.W. 770. Even if fraud has been the basis of the action, or could be alleged, this case could not be transferred to chancery court and an action on that basis would have to be instituted in that court. Bledsoe v. State, supra.
Since conditions precedent had not been met, there was no cause of action of which the circuit court had jurisdiction, so the judgment is reversed and the cause dismissed.
We agree. Harris, C.J., and George Rose Smith and Jones; JJ.
It may well be that this jurisdiction could not be given to any other court because of Art. 7, § 28 of the Constitution of Arkansas. E. F. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S.W. 570; Ann. Cas. 19.70 438. | [
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George Rose Smith, Justice.
Upon a charge of possession of marihuana with intent to deliver, Ralph Wayne Conor was found guilty and was sentenced to three years’ imprisonment. For reversal he argues that the trial court should have sustained a pretrial motion to suppress as evidence a quantity of marihuana and a pistol, assertedly obtained by means of an illegal search of an automobile.
At about 1:20 p.m. on March 21, 1975, a Fort Smith police officer received an anonymous telephone call. The caller said that at a certain car washing establishment there was a Lincoln Contenental automobile with Louisiana license plate 177A368. He said that the car was occupied by two armed black males and asked the officer to look into the matter. The officer passed the information on to the radio dispatcher, who broadcast it.
An hour or more later two officers in a police car spotted the automobile in question and stopped it. It was then oc cupied by two black males and a black female. The officers directed the three to get out of the car. As the female was alighting a pistol fell to the ground from beneath a coat in her lap. The officer informed all three that they were under arrest. The officers then searched the car, finding marihuana in an envelope on the floor and a larger quantity of marijuana in the trunk.
Under the “fruit of the poisonous tree” principle the admissibility of the evidence depends upon the validity of the warrantless search, which in turn depends upon the existence of probable cause for the warrantless search. Probable cause exists when the facts and circumstances within the arresting officers’ own knowledge or of which they have reasonably trustworthy information are sufficient to convince a reasonably cautious man that an offense has been or is being committed. Draper v. United States, 358 U.S. 307 (1959). Here the arresting officers had no personal knowledge about the commission of an offense. Of course they were entitled to act upon the collective knowledge of the police, Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969), but the radio broadcast of the tipster’s information could add nothing to its original trustworthiness.
The State concedes that the carrying of a pistol is at most a misdemeanor and is actually permitted when one is upon a journey. Ark. Stat. Ann. § 41-4501 (Repl. 1964). Thus at the outset there was no certainty that the occupants of a car from Louisiana were necessarily committing an offense by carrying a pistol. That was a circumstance to be considered.
The pivotal question, however, is the reliability of the information upon which the officers acted. The identity of the anonymous caller remains unknown. In contrasting such an informant with one who discloses his identity the Supreme Court has said: “The informant was known to [the officer] personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip.” Adams v. Williams, 407 U.S. 143 (1972). In United States v. Calovich, 392 F. Supp. 52 (W.D. Mo. 1975), the court examined the point at length and concluded that a warrantless arrest and a warrantless search cannot be justified simply because an anonymous tip proves to be accurate.
That is really all we have here. The facts verified by the officers — that is, the identification of the Lincoln car and its occupancy by two black males — did not suggest in any way whatever that an offense was being committed. The one incriminating fact, that the men were armed, was not verified until the officers had put the men under restraint by directing them to get out of the car. We do not in the least imply that in this case the officer who initiated the broadcast had not actually received an anonymous telephone call. But, unlike the situation in which the informant is known, the officer’s testimony cannot be corroborated or disputed. Hence, if this arrest must be upheld on the basis of sufficient probable cause, any officer may arrest anyone at any time and justify his action by attributing it to an anonymous telephone call. The protection afforded by the Bill of Rights is not to be so readily circumvented.
The State also argues that the arrest was permissible under the “stop and frisk” rule recognized in Terry v. Ohio, 392 U.S. 1 (1968). Here, however, the officer candidly testified that the vehicle was stopped only because of the anonymous tip. The typical stop-and-frisk situation is so fundamentally different from the halting of a moving vehicle on the basis of an anonymous telephone call that we see no reason to discuss the distinction at length.
Reversed. | [
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J. Fred Jones, Justice.
John M. Priddy, d/b/a Priddy Insurance Agency, and Utica Mutual Insurance Company, his insurance carrier for errors and omissions, bring this appeal from a declaratory judgment rendered on the petition of the appellee, Mayer Aviation, Inc.
The facts, as gathered from the testimony, appear as follows: The appellee Mayer Aviation, Inc., hereafter referred to as Mayer, was engaged in crop dusting operations by distributing chemicals, including 2-4-D, on growing crops from the air by airplane. Mayer obtained his liability insurance coverage through the appellant insurance agent Priddy. Prior to August, 1970, Priddy had obtained the required coverage for Mayer’s operations through brokers in policies issued by North American Insurance Company and Lloyd’s of London. Mayer had obtained favorable information concerning liability coverage for his type of operation in policies being written by Pan American Fire and Casualty Company through its underwriters, Aviation Office of America, hereafter referred to as AOA. Mayer requested Priddy to obtain coverage through AOA and he paid Priddy approximately $5,000 as intended insurance premium for the coverage requested.
It appears that in order to distribute the chemical 2-4-D it was necessary to have special license from the Arkansas State Plant Board, and in order to obtain the license it was necessary to file a copy of liability insurance policy with the Board as a condition precedent to issuing the license. Priddy made application to AOA for the coverage requested by Mayer but the application was refused because of Mayer’s past year’s loss experience. It appears that when the application was refused by AOA, Priddy intended to place the coverage with one of the original insurers, North American or Lloyd’s of London, but failed to do so. In the meantime, however, in order to obtain a renewal of Mayer’s license to distribute 2-4-D, it appears that Priddy simply altered a copy of a similar policy he had obtained from Pan American through AOA for a Mr. King and filed the altered copy, showing Mayer as the insured, with the Plant Board and Mayer’s license was issued. It appears that Mayer thought he had the coverage he had requested until he was unable to find his policy following rumors of pending claims against him for damages to crops growing out of his operation. When he was unable to find his policy, he obtained a copy from the Plant Board and upon contacting Pan American was advised that no such policy had been issued to him by that company.
It appears that when Mayer advised Priddy of the pending claims and Pan American’s denial that it had issued the policy or authorized a binder, Priddy admitted he had not placed the coverage. Priddy advised Mayer of Priddy’s own coverage under an errors and omissions policy issued by Utica Mutual and advised Mayer he would have the same protection under that policy as he would have had if the policy coverage he had requested had been obtained.
Two lawsuits, alleging damages to crops in the total amount of approximately $168,000, were filed in circuit court against Mayer, and on February 8, 1974, Mr. Mayer filed in chancery court his petition for declaratory judgment from whence comes this appeal. In his petition Mayer alleged that on or about August 5, 1970, he contracted with Priddy to provide insurance liability coverage for his operation of aircraft in the application of agricultural chemicals. He alleged that Priddy allegedly did provide the coverage by Pan American under policy No. AC6-3-1281, and that he paid a premium to the defendant Priddy for the coverage which was to expire on August 5, 1971; that in July, 1971, claims arose for damages to crops caused by his operation; that he called on Pan American to take action because of its liability coverage, but that Pan American denied it had issued any policy to him. He alleged that a copy of the alleged policy contract was in the possession of Pan American and he believed at all times he did have liability coverage for damage to crops in the operation of his business. He alleged that the matter had been investigated by the Arkansas insurance commissioner who apparently determined that no valid policy had been issued by Pan American, and that Priddy had acted in error, omission, negligence and/or fraud in connection with the matter. He alleged that subsequent to July, 1971, there had been filed against him lawsuits in circuit court for alleged damages occurring in July, 1971, growing out of his operation during July, 1971, and that lawsuits were then pending against him in the approximate amount of $168,000 for alleged damages occurring during July, 1971. He alleged that he had given notice to the defendant Utica Mutual Insurance Company who had insurance coverage under policy No. 6456-LE for errors, negligence, omissions and/or fraud on the part of the defendant Priddy but that Utica had denied liability. He alleged that he was entitled to legal aid and expenses sustained from either Pan American or Utica Mutual and for the purposes of defending the pending litigation or settlement of same if proper. He alleged that he was presently in the position of not knowing what his best procedure would be to protect his interest due to the actions of the defendants; that he was having to expend money for legal services without the assistance of the defendants, and that he needed their assistance. He alleged that since his legal position as to insurance coverage had not been passed on by a court, his future liability would depend to a large extent on the question of his insurance coverage and the acts of the defendants in connection therewith, and that without such adjudication he would suffer irreparable damage to his business because of the serious consequences of the liability involved. He alleged that either Pan American or Utica Mutual should provide the coverage and assistance for which he contracted and paid to the defendant Priddy. He prayed for a declaratory judgment against all the defendants jointly and severally or for declaratory judgment as to which one of the defendants is responsible for the present and future damage that he had suffered and will suffer.
Priddy filed a response and cross complaint denying the material allegations in the petition for declaratory judgment and alleged that if the policy was not issued as alleged in the petition, it was due to simple negligence on his part and that Utica Mutual Insurance Company should take over his defense and pay any judgment rendered, up to the applicable limits of its obligation to him under its policy. He prayed that the petition be denied and in the alternative that it be denied in so far as it seeks relief from him; and, in the alternative, that if any acts of his caused the petitioner to not have coverage, that Utica Mutual, his errors and omissions carrier, should provide his defense and pay any judgment rendered against him.
Utica Mutual and Pan American demurred to the petition on the grounds that the chancery court was without jurisdiction of the subject matter.
On March 14, 1974, Priddy filed a separate answer in which he denied the allegations in the petition for declaratory judgment and specifically denied that he acted in error, omission, neglect and/or fraud as alleged in the petition.
On March 15, 1974, Utica filed a demurrer to the petition on the grounds that the petition did not state a cause of action against it and that it was not subject to a direct action by Mayer even if it had coverage for the errors and omissions of Priddy as alleged in the petition. On May 24, 1974, Pan American filed a separate demurrer to the petition on the ground of defect in parties defendant, and on June 19, 1974, Mayer filed a motion to strike the allegation of fraud by Priddy from his petition and the motion was granted. On September 3, 1974, Priddy filed a third party complaint making the various plaintiffs in the circuit court action parties defendant and prayed that they be bound by the final ruling of the chancellor on the petition for declaratory judgment.
On September 23, 1974, the chancellor entered an order denying the demurrers and motions to dismiss and finding that all interested parties had been joined. He gave 20 days in which to answer or plead.
On October 1, 1974, Priddy amended his answer and cross complaint by praying attorney’s fees against Utica and on October 2 Utica filed a response denying the allegations in the petition; denying that the acts of Priddy constituted acts of error, omissions, etc. In the alternative it alleged that it would not be liable for Priddy’s defense in the litigation, and as a second alternative it alleged it would in no event be liable for any amount in excess of the amount of insurance Priddy was supposed to have contracted for. On November 12, 1974, the chancellor entered an order, at the request of Priddy, dismissing his cross complaint as to statutory penalty and attorney’s fees against Utica without prejudice.
In answer to interrogatories propounded by Pan American, Priddy answered that he does not contend Pan American issued the policy in question or authorized him to do so. He answered that he deposited the premium he collected in his agency account. He answered that he advised Mayer that his application had been submitted and subsequently when informed of a possible loss, he advised Mayer that his coverage was in effect as he, Priddy, thought he had obtained the replacement of coverage through Mayer’s previous insurers. He answered that he mailed Mayer’s application to AOA in Beaumont, Texas, whom he understood to be the underwriter for Pan American; that he did not mail a premium check and was advised by AOA that it could not accept the risk because of losses sustained by previous carriers. On February 11, 1975, the chancellor ordered and directed Utica to submit for inspection any errors and omissions policies issued to or in favor of Priddy.
At the hearing on the merits Priddy testified as above indicated and set out, and following final hearing Pan American demurred to the evidence and the demurrer was overruled. Utica demurred to the evidence on the grounds of lack of allegation of privity and no substantial evidence. Priddy demurred to the evidence for insufficiency and because the petition did not allege acts of negligence. The demurrers were overruled, and on April 24, 1975, the chancellor entered declaratory judgment as'follows:
Upon the pleadings and proof the court finds:
1. All demurrers not heretofore specifically overruled are now overruled and this court finds the complaint states a cause of action in equity and this court has jurisdiction to issue a declaratory judgment. Jackson v. Smith, 366 S.W. 2d 278 (1963).
2. That the defendant, John M. Priddy, was negligent in failing and omitting to obtain aircraft liability insurance coverage for Mayer Aviation, Inc. from August 5, 1970 to August 5, 1971; and,
3. At the time of the said negligence of John M. Priddy he was insured under the terms of a contract of insurance covering his errors and omissions as an insurance agent issued by the defendant, Utica Mutual Insurance Company; and,
4. That the liability coverage to have been obtained by Priddy for Mayer was $25,000.00 per occurrence and $100,000.00 aggregate; and,
5. There are presently pending two cases in the Circuit Court of Lincoln County, Arkansas, against Mayer Aviation, Inc. Nos. 2047 and 2048, arising out of alleged tortious aerial application of herbicides during the period from August 5, 1970, to August 5, 1971.
IT IS THEREFORE by the court adjudged and declared as follows:
(1) The defendant, John Priddy, shall defend the two lawsuits, Cases 2047 and 2048, referred to in the findings hereinabove, for and on behalf of the plaintiff, Mayer Aviation, Inc., arising from the two aforementioned cases, up to $25,000.00 per occurrence and up to $100,000.00 in the aggregate; and,
(2) It is the judgment of this court that a contract of insurance issued by the defendant, Utica Mutual Insurance Company, insuring the errors and omissions of the defendant, John M. Priddy, was in force during the period of August 5, 1970, to August 5, 1971.
(3) The complaint of the plaintiff against Pan American Fire and Casualty Insurance Company should be, and is hereby, dismissed for want of equity.
The appellant Priddy first contends that the chancellor erred in overruling his demurrer to the evidence. He argues in support of this contention that the petition for declaratory judgment failed to allege acts of negligence on the part of Priddy and failed to allege that Priddy’s acts were the proximate cause of any damage sustained by Mayer. We do not agree with the appellant’s contention. Mayer alleged that he entered into a contract with Priddy to provide insurance liability coverage and paid Priddy an insurance premium for such coverage; that Priddy allegedly obtained the coverage from Pan American but this was denied by Pan American. He alleged that following an investigation by the insurance commissioner, Pan American’s denial was confirmed and that Priddy had acted in error, omission and neglect. He alleged that he was having to spend money for legal services and will be further damaged unless the rights and relationship of the parties are determined. We conclude that the petition stated a cause of action against Priddy for breach of contract with sufficient clarity for a declaratory judgment.
Priddy also argues that since the appellee Mayer failed to allege and prove a written contract with Priddy, the chancellor should have dismissed the action. He argues that the declaratory judgment act only authorizes construction of written contracts. Ark. Stat. Ann. § 34-2502 (Repl. 1962) provides as follows:
Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
The construction or validity of a contract to procure insurance coverage is not really involved on this appeal. Section 34-2504 provides as follows:
The enumeration in Sections 2, 3 [§§ 34-2502, 34-2503] and 4 does not limit or restrict the exercise of the general powers conferred in Section 1 [§ 34-2501], in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
Furthermore, § 34-2501 provides: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” And, § 34-2511 provides as follows:
This Act [§§ 34-2501 — 34-2512] is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.
Appellant Priddy further contends that the chancery court was without jurisdiction to entertain an action for declaratory judgment adjudging him guilty of a tort. Chancery courts clearly have jurisdiction to render declaratory judgments where the subject matter of the declaration is within equity jurisdiction. Jackson v. Smith, Chancellor, 236 Ark. 419, 366 S.W. 2d 278 (1963). Appellant Priddy did not demur to the petition for declaratory judgment, nor did he move to have the cause transferred to law for lack of jurisdiction. In Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975), this court said:
In the absence of such a motion, [to transfer] the chancery court may, in its discretion, transfer the case on its own motion or proceed to trial on the merits. Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289; Catchings v. Harcrow, supra. Where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Reid v. Karoley, supra; Whitten Developments, Inc. v. Agee, supra.
Priddy alleged in his response and cross complaint that if the policy was not issued by Pan American as alleged in the petition for declaratory judgment, it was because of simple negligence on his part. In the declaratory judgment with respect to Priddy the chancellor found: “That the defendant, John M. Priddy, was negligent in failing and omitting to obtain aircraft liability insurance coverage for Mayer Aviation, Inc. ...” And, in effect, found that Priddy was obligated to provide a defense to the lawsuits filed against Mayer, and to assume such obligations of providing such insurance coverage he agreed to obtain for Mayer and failed to obtain. It was more or less admitted in oral argument that this was the intent and effect of the chancellor’s holding and judgment, and that Priddy was not directed to personally assume the defense and pay such judgments as might be rendered against Mayer in the circuit court cases pending against him. Priddy unequivocally admitted he was negligent, but we conclude that the complaint and judgment against him sounded in contract and not in tort and the chancery court was not wholly without jurisdiction to render the judgment that was rendered.
It is quite true that even in contracts a court of equity is not competent to afford redress by way of compensation or damages for a mere breach of contract, where the remedy at law is plain, adequate, and complete, and where no peculiar equity intervenes. Cockrell v. Warner, 14 Ark. 345 (1854); Carroll v. Wilson, 22 Ark. 32 (1860); Cosby v. Hurst, 149 Ark. 11, 231 S.W. 194 (1921). But failure to plead lack of jurisdiction in equity because of an adequate remedy at law waives this objection to jurisdiction on appeal. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648 (1960); Stolz v. Franklin, supra. Since the chancery court had jurisdiction the appellant IViddy’s argument concerning his right to a jury trial is without merit. Ark. Const. Art. 2, § 7; State v. Churchill, 48 Ark. 426, 3 S.W. 352.
The appellant Priddy contends that the chancellor erred in admitting evidence prejudicial to Priddy. This assignment relates to evidence of Utica’s insurance coverage on Priddy for his errors and omissions. We find no error in this connection. Testimony was to the effect that when Mayer learned that Priddy had not procured coverage as agreed, and con fronted Priddy with that fact, Priddy assured Mayer that he would have the same coverage under Priddy’s policy from Utica. Utica Mutual was brought into the declaratory judgment action by Mayer as a necessary party. See Ark. Stat. Ann. § 34-2510 (Repl. 1962). Furthermore, Priddy cross complained against Utica and sought relief against Utica under his errors and omissions policy.
Appellant Priddy also contends that in any event, he should be liable to Mayer for no more than the unauthorized premiums he had collected. This contention is prematurely presented and is, therefore, without merit. The chancellor did not render a money judgment for damages against Priddy. The chancellor did not rule on the extent of Priddy’s liability to Mayer in damages, if any, but only ruled on Priddy’s obligation to Mayer as a result of Priddy’s breach of their agreement.
The appellant Utica contends that the chancellor did not have jurisdiction pertaining to the subject matter of the claim against it. This contention is likewise without merit. Utica filed a demurrer for want of jurisdiction, but did not request a transfer to circuit court because there was an adequate remedy at law: We have held a number of times that the proper method of procedure in this type situation is by a motion to transfer and not by demurrer. The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S.W. 2d 770; Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668; Reid v. Karoley, supra. Utica argues that it should not have been subject to this declaratory judgment because its contract with Priddy was not a justiciable issue. In Andres v. First Ark. Dev. Fin. Corp., 230 Ark. 594, 324 S.W. 2d 97 (1959), we said:
Our declaratory judgment act (§ 34-2501 et seq, Ark. Stats.) was not intended to allow any question to be presented by any person; the matters must be justiciable. In Anderson on “Declaratory Judgments” 2nd Ed. § 187, the general rule is stated as to declaratory judgments:
Since purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these pur poses may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.
It would appear from the evidence in the case at bar that Mayer did have a legally protectable interest under the errors and omissions policy Utica issued to Priddy. There is no contention that a justiciable issue was absent in Priddy’s cross-complaint against Utica. This court has held that in a declaratory judgment action between an insured and insurer disputing the coverage of a liability policy, an injured party possibly covered by the policy is a proper party. So. Farm Bur. Cas. Ins. Co. v. Robinson, 236 Ark. 268, 365 S.W. 2d 454 (1963). The case at bar resembles Robinson except that in the case at bar the declaratory judgment action was brought by the injured party. The record indicates that Utica disputes the extent of its liability under the errors and omissions policy. That issue was not determined by the chancellor and is still available to Utica. The chancellor made no attempt to settle the issue as to the extent of Utica’s liability under its policy to Priddy. He only found that Priddy had such policy issued by Utica and adjudged that the policy was in effect during the period of August 5, 1970, to August 5, 1971.
The decree is affirmed.
Fogleman, J., concurs. | [
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PER CURIAM.
11 This court granted a petition for review filed by appellant Robert Meyer, d/b/a Meyer Excavators Contractors. The petition requested this court to review a decision by the court of appeals affirming the trial court’s grant of summary judgment in favor of CDI Contractors, L.L.C. (CDI) on Meyer’s fraudulent-inducement claim. We order rebriefing, however, because Meyer did not comply with Ark. Sup.Ct. R. 4-2(a)(5) (2008). Meyer failed to abstract depositions that provided a substantial amount of evidence to support CDI’s motion for summary judgment. Further, on July 6, 2005, Meyer filed a response to CDI’s motion for summary judgment that stated: “[Meyer] has controverted the facts alleged by [CDI] as detailed in [Meyer’s] Brief in Support of this Response. [Meyer] incorporates by reference his Brief in Support of this Response.” (Emphasis added.) CDI’s reply brief indicates that Meyer filed his brief in support of his July 6, 2005 response, but it is not included in the addendum |2or the record. Thus, the record is incomplete.
Rule 4 — 2 (a) (5) provides, in pertinent part:
The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.
The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup. Ct. R. 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4~2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Arkansas Rule of Appellate Procedure— Civil 6(c) (2008) provides that this court can sua sponte direct the parties to supply omitted material by filing a certified, supplemental record. See also Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005).
| .-¡Accordingly, under Ark. Sup. Ct. R. 4-2 and Ark. R.App. P. Civ. 6(c), we order Meyer to file a substituted abstract, addendum, and brief, and to file a certified, supplemental record that includes the omitted brief in support within fifteen days from the date of entry of this order. If Meyer fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, CDI shall have an opportunity to revise or supplement its brief in the time prescribed by the court.
Rebriefing and supplemental record ordered.
DANIELSON and CORBIN, JJ„ concur. | [
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John A. Fogleman, Justice.
Appellant was convicted of second degree murder for the killing of his son-in-law, Walter Griffin, by shooting him with a 12 gauge shotgun loaded with buckshot. Brockwell and his wife lived next door to their daughter and son-in-law at McGehee. The killing took place as Griffin approached the front door of the Brockwell house, where his wife, Goldie Griffin, had gone with her mother on the preceding day. Goldie Griffin was ill at the time and died before the trial. Appellant’s defense was that he acted in defense of his habitation. He urges 20 points for reversal, most of which merit little discussion. We do find reversible error in the court’s failure to sustain appellant’s objection to the prosecuting attorney’s cross-examination of him.
Appellant had testified that his daughter was ill and had been released from the hospital just a few days earlier and had first come to the Brockwell house, but had gone to the Griffin house just two days prior to the day of the killing. On the evening of that same day, according to Brockwell, his wife had brought their daughter back to the Brockwell house and Griffin had followed them at a distance of about two and one-half feet, cursing and raging. Brockwell said he had latched the storm door at the front of the Brockwell house after his wife and daughter entered and Griffin had threatened to tear it down and come into the house. Brockwell stated that when he closed and latched the main door, Griffin left and Mrs. Brockwell called the police. Brockwell said that he watched and saw that Griffin had turned out all the lights in the Griffin house. Brockwell told of the steps taken by him and his daughter to institute “peace bond” proceedings against Griffin the following day. On still the next day he stated that Griffin returned home from work, sent for his wife, and, when she didn’t come, came out and said that if she were not back home in 15 minutes, he would come back, tear the door down and get her. Then, Brockwell said, Griffin left, after having upbraided his wife on the telephone for having taken his gun, telling her he could get another. He stated that Griffin promptly got in his car and “took off,” spinning his wheels, but returned in about one and one-half hours and sat on his front steps drinking beer, after which the five-year-old son of the Griffins came into the Brockwell house and reported that his daddy had said that, if he came back to the Brockwell house, “it would be rough. ” Brockwell said that Griffin sat on his own porch for about 15 minutes and then started toward the Brockwell house.
Brockwell testified that he thought Griffin had a gun, but could see only his shirt, not his hands. He said that the shirt hung down pretty long. On cross-examination, Brockwell testified that Griffin’s shirttail was out as he approached the Brockwell house. Then the prosecuting attorney showed a photograph to the witness, prompting an objection that the picture had not been introduced in evidence. The prosecuting attorney showed a photograph to the witness, prompting an objection that the picture had not been introduced in evidence. The prosecuting attorney responded that the photograph was offered for the purpose of impeaching the testimony of the witness, because it clearly showed that “the man’s shirttail was in.” The trial judge permitted the prosecuting attorney to question the witness about the picture without its being shown to the jury. The witness protested that the picture had been taken after the shooting but that he had been unable to see Griffin’s hands prior to the shooting. The prosecuting attorney asked if the witness assumed that Griffin tucked his shirt in after the killing. When appellant’s attorney objected to any statement by the prosecution that Griffin’s shirt was tucked in after the shooting, the prosecuting attorney answered that the witness had testified that' the shirttail was out and that if the defendant wanted to introduce the picture, he could do so, and the trial judge stated: “I’m going to now — This witness testified that his shirttail was hanging out. ” The picture was never introduced in evidence, even though the prosecuting attorney had said that it would be if Brockwell could identify it. There was no indication other than the statement of the prosecuting attorney, what it depicted relative to the shooting or when it was taken.
This attempt to impeach the defendant related to a very critical issue in the case. Admissibility of the photograph in evidence depended upon the laying of a foundation showing that it was a fairly accurate representation of the conditions existing at the time in question. Riggan v. Langley, 238 Ark. 649, 383 S.W. 661; Wheeler v. Delco Ben & Broadway Ice Co., 237 Ark. 55, 371 S.W. 2d 130. In this case, the picture would not have been admissible, unless it was indicated, in some manner, other than the prosecuting attorney’s statement, that it showed Griffin’s clothing was arranged substantially as it had been when the shooting occurred, or unless the difference was properly explained. Powell Bros. Truck Lines v. Barnett, 196 Ark. 1082, 121 S.W. 2d 116. The prosecuting attorney’s statement about what the picture portrayed was not evidence and was patently improper.
Appellant’s objection should have been sustained. The statement that appellant could introduce it if he wished certainly did not cure the error, or erase the manifestly prejudicial effect of the prosecuting attorney’s statements or the trial court’s failure to sustain the objections. It was not appellant’s responsibility to lay the foundation for the introduction of the picture; and he should not have been called upon to rebut statements of the prosecuting attorney that are not supported by evidence. It should be noted that the picture was never introduced or offered for identification and, in effect, the witness was impeached on a critical point by the unsupported statement of the prosecuting attorney. Even though leading questions are permissible on cross-examination, an attorney cannot be permitted to make statements of fact in the guise of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496.
Although we find no reversible error on other points, there are matters that will arise on a retrial that we must treat in order to avoid potential reversible error on other points. Even though we consider the record deficient on two points for want of a proper proffer of proof, there are indications that such a proffer would have demonstrated that the trial court erred in excluding testimony about statements made to appellant by his daughter prior to the shooting relating to a telephone conversation between her and her husband and about previous actions and statements of the victim.
Appellant’s wife, Marie Brockwell, told of caring for her daughter after she was released from the hospital and said that she had gone to her daughter’s house the first night the latter was at her own home and had found her having trouble with her heart and her husband bathing her face and cursing loudly. Mrs. Brockwell testified that she invited her daughter to come to the Brockwell house. Objections to her stating that Griffin grabbed Goldie when she started to arise from her bed were sustained. When asked if she had run into any obstruction in helping her out of the house, an objection to the question was sustained before any answer was given, with the court ruling that the testimony was not admissible because appellant was not present. Subsequently, Mrs. Brockwell testified that her daughter had later talked on the telephone with Griffin. When Mrs. Brockwell was asked what her daughter had repeated to her and whether Brockwell was present at the time, objections were sustained. Appellant’s attorney then objected to the court’s ruling, arguing that the statement made by Goldie Griffin to her father was admissible to show what she told him and relevant to the determination whether it was sufficient to excite fear of Griffin. Appellant also now suggests that Mrs. Brockwell should have been permitted to testify as to facts she had communicated to her husband which tended to show that Brockwell was acting with reasonable apprehension of danger at the time of the shooting.
A homicide in defense of one’s habitation is justifiable. Ark. Stat. Ann. § 41-2231 (Repl. 1964). His house or place of residence is, in law, his castle. Ark. Stat. Ann. § 41-2233 (Repl. 1964). A manifest attempt and endeavor, in a violent, riotous or tumultous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein, is a justifica tion of homicide. Ark. Stat. Ann. § 41-2234 (Repl. 1964). To justify a killing, it must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the killer really acted under their influence and not in a spirit of revenge. Ark. Stat. Ann. § 41-2235 (Repl. 1964). The burden of proving justification devolves upon the accused, once the killing is established. Ark. Stat. Ann. § 41-2246. Phillips v. Turney, 198 Ark. 364, 129 S.W. 2d 963. These statutes are, so far as they extend, a reenactment of the common law and leave the common law, as to the extent, manner and circumstances in or under which the right may be exercised, in force. Carpenter v. State, 62 Ark. 286, 36 S.W. 900.
An assault upon one’s house was considered as an assault upon him, at common law. Brown v. State, 55 Ark. 593, 18 S.W. 1051. It is so considered by this court. Hall v. State, 113 Ark. 454, 168 S.W. 1122. Generally, speaking, the defense of one’s habitation or members of his family or other persons therein is similar to, and an extension of, the right of self-defense. See Brown v. State, supra; Hall v. State, supra; Carpenter v. State, supra; Wheatley v. State, 93 Ark. 409, 125 S.W. 414; Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963). In either case, the danger to the person defended may be either real or apparent. Maples v. State, 225 Ark. 785, 286 S.W. 2d 15; Hall v. State, supra; Brown v. State, supra; Carpenter v. State, supra. Even though the danger may be only apparent to the slayer, it must be reasonably so or he must honestly or reasonably believe that the person defended is in such danger and that it is necessary to kill to save him from it. Brown v. State, supra; Carpenter v. State, supra; Maples v. State, supra.
In case of defense of habitation, however, it may be that the danger, real or apparent, need not, by the plain language of the statute, be the peril of death or great bodily harm in every case, because a violent attempt to enter with the apparent purpose of assaulting or offering personal violence does not necessarily imply the greater danger. Hayner v. People, 213 Ill. 142, 73 N.E. 792 (1904). In this case, there was no evidence that the victim was making a manifestly violent attempt to enter the home of appellant, but the right of one to use force to prevent an intrusion into his house does not depend upon the manner of the attempt. Brown v. State, supra. The reasonableness of the defender’s belief that there was danger of great bodily harm, at the least, is judged by the facts and circumstances as they appeared to him at the time. Sledge v. State, 507 S.W. 2d 726 (Tex. Cr. App., 1974); Miller v. Commonwealth, 188 Ky. 435, 222 S.W. 96 (1920). See also Sullivan v. State, 171 Ark. 768, 286 S.W. 939. Evidence which tends to explain the conduct or actions or state of mind of the deceased or the accused is admissible. See Lasater v. State, 133 Ark. 373, 198 S.W. 122; Rogers v. State, 152 Ark. 40, 237 S.W. 435.
All the sections of the Criminal Code defining justifiable homicide are parts of the same original statute and are so closely related that each to some extent explains or controls the meaning of the others. Brown v. State, supra. The rules regarding the defense of one’s person and regarding defense of his habitation are generally similar. State v. Miller, 267 N.C. 409, 148 S.E. 2d 279 (1966); Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963). Every fact that would be competent evidence in a case of self-defense by the person defended is competent where the killing by the accused is alleged to be in defense of another. See Commonwealth v. Girkey, 240 Ky. 382, 42 S.W. 2d 513 (1931). This is undoubtedly the rule where both the accused and the person defended are in the same dwelling. This includes evidence of hostile feelings and previous conduct toward and communicated threats and assaults against the person defended. King v. State, 55 Ark. 604, 19 S.W. 110; Brown v. State, supra; Hart v. State, 161 Ark. 649, 257 S.W. 354. See also, Commonwealth v. Girkey, supra.
Testimony showing the conduct, declarations of hostile purposes, and communicated or uncommunicated threats of the person slain on the day and near the time of killing are admissible as part of the res gestae in self-defense cases. Pitman v. State, 22 Ark. 354. A doctrine often announced by this court is that threats and conduct of the slain person, when they tend to explain or palliate the conduct of the accused are admissible circumstantial facts which are a part of the res gestae, whenever they are sufficiently connected with the acts and conduct of the parties at the time of the killing. Burton v. State, 82 Ark. 595, 102 S.W. 362; Palmore v. State, 29 Ark. 248. The same sort of evidence is admissible as tending to show who was the aggressor where the defense is defense of another. Brown v. State, supra; Trapp v. N.M., 225 F. 968 (8 Cir., 1915). Cf. Armstrong v. State, 251 Ark. 865, 475 S.W. 2d 541; Decker v. State, 234 Ark. 518, 353 S.W. 2d 168; Parsley v. State, 151 Ark. 246, 235 S.W. 797; Jackson v. State, 103 Ark. 21, 145 S.W. 559; Turner v. State, 128 Ark. 565, 195 S.W. 5.
Evidence of threats made by the victim of an assault to or against someone other than the accused is admissible when it tends to show the state of mind between the parties or to show who was the aggressor or to have probative valúe in determining whether the accused had reason to believe that danger of bodily harm was imminent. Rogers v. State, 152 Ark. 40, 237 S.W. 436. Furthermore, such statements may well have a bearing on the question of the motives of the parties. Prewitt v. State, 150 Ark. 279, 234 S.W. 35; Palmore v. State, supra, 29 Ark. 248.
Questions as to when efforts to enter the dwelling began, how far these persons may be permitted to proceed with safety to those assailed, the necessity for the use of fatal force and other such matters must be determined from the facts and circumstances existing at the time. They are usually, as here, questions of fact, not law. Brown v. State, supra. Hall v. State, supra.
Appellant had the burden of proving all the elements of justifiable homicide including the fact that the deceased was the aggressor and that appellant had a reasonable apprehension of danger to himself or the occupants of his household. He was entitled to have the jury consider all the conduct of the deceased from the time he commenced his threats against appellant’s daughter, who was, at the time of the fatal encounter, an occupant of appellant’s dwelling, until the shooting, in order to determine whether there was a necessity for appellant to act in her defense or the defense of his household, or whether he honestly believed that such a necessity existed. Hart v. State, supra, 161 Ark. 649. The case of Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 as to violent disposition of the person killed toward third persons is relied upon by the state. It is not applicable here, because defense of a third person or defense of habitation was not involved there. We did recognize, however, that even uncommunicated threats are admissible when there is doubt as to who was the aggressor. The court erred in excluding this testimony. Bailey v. People, supra, 54 Colo. 337, 130 P. 832, 45 LRA (ns) 145.
The state’s argument that there was no error in exclusion of this evidence because it would have only been cumulative to appellant’s own testimony is not persuasive, because corroboration of the testimony of the party most interested in the case is important. See Hall v. State, 64 Ark. 121, 40 S.W. 578.
We find no abuse of discretion on the part of the trial court in the admission of photographs over the objection of appellant. Furthermore, there was no error in the sustaining of an objection to the question by appellant’s attorney whether Griffin on some occasion was shaking his finger “in a menacing manner. ” The question was leading and called for a conclusion.
There was no error in the denial of a motion for a directed verdict. Appellant contends that there was no substantial evidence of malice or that the killing was done without reasonable apprehension of danger on his part. He further contends that Griffin had offered considerable provocation and that there was no evidence of any circumstances manifesting an abandoned or wicked disposition on the part of appellant. The fact that there was evidence that would have supported a finding favorable to appellant does not mean that there was no evidence to the contrary. The killing was admitted. The burden of showing circumstances that excused or justified the killing was upon appellant unless they were manifest from the state’s evidence. Ark. Stat. Ann. § 41-2246 (Repl. 1964). The killing was done with a deadly weapon. This in itself was sufficient basis for a finding of malice, if the jury found that the killing was without justification. Erby v. State, 253 Ark. 603, 487 S.W. 2d 266.
Griffin had not attempted to enter the house when he was shot. There was no evidence that Griffin was armed. The screen door was locked but the front door was not, even though Brockwell was expecting Griffin and testified that he latched both doors to prevent Griffin’s entry on the preceding day. Brockwell had told the officers that when he fired the fatal shot he was in the middle of his house. He testified that he was in a “partial stoop” when Griffin approached the door. Max Marbury, a neighbor who lived directly across the street testified that, on the day of the killing, Brockwell had called on the telephone and warned him to keep his family away from the front of the house because Brockwell was having trouble and might have to shoot across the road. Brockwell said nothing when he fired the fatal shot except to say to his wife and daughter, “Here he comes. You all go to the bedroom and stay in the bedroom.” Brockwell had kept his gun loaded with buckshot for two days. There was certainly sufficient evidence to warrant the submission of the case to the jury.
There was no error in the trial court’s exclusion of testimony of the circuit court clerk about statements made in Brockwell’s efforts to obtain a restraining order against Griffin, because they were self-serving.
Appellant has massed several points together in his brief. We consider the following points as waived because they were not argued. They were:
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION TO CROSS-EXAMINING DEFENDANT’S WITNESS AS TO WHETHER A RESTRAINING ORDER IS EFFECTIVE.
THE COURT ERRED IN ADMITTING IRRELEVANT AND IMMATERIAL EVIDENCE AGAINST THE DEFENDANT.
THE COURT ERRED IN REFUSING TESTIMONY REGARDING APPELLANT’S KNOWLEDGE OF MARRIAGE PROBLEMS BETWEEN APPELLANT’S DAUGHTER AND THE VICTIM.
THE COURT ERRED IN PERMITTING PROSECUTING ATTORNEY TO CROSS-EXAMINE DEFENSE WITNESS CONCERNING WHO HELD TITLE TO THE BROCKWELL HOUSE.
THE COURT ERRED IN PERMITTING PROSECUTING ATTORNEY TO CROSS-EXAMINE DEPUTY CIRCUIT CLERK REGARDING PARTIES AND PURPOSES OF RESTRAINING ORDER.
THE COURT ERRED IN REFUSING TESTIMONY OF CONVERSATIONS HAD BETWEEN THE DEPUTY PROSECUTING ATTORNEY AND THE APPELLANT PRIOR TO THE SHOOTING AS TO WHETHER APPELLANT CONSIDERED THE DECEASED A VIOLENT PERSON.
We do not agree with appellant that mere statement of any of these points is sufficient argument for reversal.
We do not agree with appellant that the trial court permitted the prosecuting attorney to harass defense counsel in examination of appellant. The examination was rather extensive in showing the condition of appellant’s daughter’s health. In the first place, after considerable argument, the court permitted appellant to pursue the line of examination, as far as he liked. In the next place, the court has some discretion in controlling the extent of examination on a particular matter, especially when it is of secondary importance.
We find no error in the giving of court’s instruction No. 16. Appellant made no objection to remarks of the prosecuting attorney in closing argument or to those of the trial judge of which he now complains on appeal. Some of them will not likely recur on retrial; others are clearly not improper and any that were could have been corrected if a timely objection had been made. For these reasons, we forego further discussion.
The judgment is reversed and the cause remanded.
Byrd, J., concurs in the result.
Harris, C.J., and Jones, J., dissent.
The right of one to defend his close relatives from attack is widely recognized. This is so even when the “attacker” is the husband of the person defended. Bailey v. People, 54 Colo. 337, 130 P. 832, 45 LRA (ns) 145 (1913). | [
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Elsijane T. Roy, Justice.
Appellant Edna Hicks, a licensed cosmetician, desired to offer ear piercing as a service to her customers.. She filed a petition with the Arkansas State Medical Board (hereafter Board) requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery. On June 12, 1975, the Board after a hearing decided that ear piercing was encompassed in the phrase “the practice of medicine” as defined in Ark. Stat. Ann. § 72-604 (Repl. 1964). The circuit court affirmed the decision of the Board and from that affirmation comes this appeal.
Appellant first urges that “the findings, conclusions and decision of the Board, affirmed by the circuit court, are based upon an error of law.” Ark. Stat. Ann. § 72-604(1) provides:
(1) The term “practice of medicine” shall mean: (a) holding out one’s self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever; (b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; (c) the maintenance of an office, or other place to meet persons, for the purpose of examining or treating persons afflicted with disease, injury or defect of body or mind; (d) using the title M.D., M.B., Physician, Surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnosis or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to the practice of any limited field of the healing arts; or (e) performing any kind of surgical operation upon a human being. If any person who does not possess a valid license to practice medicine within this state and who shall not be exempted from the licensing requirements hereunder, shall do any of the acts hereinabove mentioned as constituting the practice of medicine, shall be deemed to be practicing medicine without complying with the provisions of this Act [§§ 72-601, 72-603 — 72-623] and in violation thereof.
We consider the issue raised in this case to be primarily a question of interpretation of the definitional aspects of the statute rather than a question of fact. The testimony of the two doctors at the Board hearing dealt mainly with possible adverse effects from the ear piercing procedure if not properly carried out. However, the Board after its hearing noted that it had “. . . consistently interpreted the practice of surgery as contained in the Arkansas Medical Practices Act as being the penetration of the epidermis by mechanical instruments or appliances . . . ,” and would include the procedure of ear piercing.
At the Board hearing a copy of an advisory opinion issued by the attorney general was introduced. The opinion, relying upon Subsection (e) of 72-604(1), supra, determined that ear piercing was a surgical procedure within the intendment of this subsection and thus could be performed only by a licensed physician or other qualified person acting under physician supervision. The Board premised its determination of the issue to a large extent on the attorney general’s opinion.
The opinions of executive agencies are not, of course, binding upon the court, but are held to some extent persuasive. In Shivers, et al v. Moon Distributors, Inc., et at, 223 Ark. 371, 265 S.W. 2d 947 (1954), we said:
* * * Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court.
See also McCarley v. Orr, 247 Ark. 109, 445 S.W. 2d 65 (1969).
We cannot agree with the interpretation placed on the statute by the attorney general and the Board. In interpreting statutes “ ... we give words their ordinary and usually accepted meaning in common language [citations omitted],” Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973); Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W. 2d 449 (1962), and avoid resort to “ . . . subtle and forced construction for the purpose of limiting or extending the meaning [citation omitted],” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965).
“Surgery” is a word which, commonly defined, embraces a more complex procedure than the relatively simple technique used in piercing ears. Webster’s New International Dictionary, 2nd Ed., defines surgery as:
That branch of medical science, art, and practice, which is concerned with the correction of deformities and defects, the repair of injuries, the diagnosis and cure of diseases, the relief of suffering, and the prolongation of life, by manual and instrumental operations.
Black’s Law Dictionary, Revised 4th Ed., 1968, defines surgery as:
The art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.
To the same effect see Random House Dictionary of the English Language, 1966 Ed., and Maloy’s Medical Dictionary for Lawyers. It follows that when we accord the word “surgery” its most commonly accepted definition such definition excludes the process here under review.
We noted in Aetna Life Ins. Co. & Pacific Mutual Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W. 2d 651 (1943), that:
. . . [SJurgery is defined as: “That branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries. ” (Italics supplied.)
The statutory language at issue herein denominates as the practice of medicine the representation to the public by an individual of those skills which can aid in the palliation or prevention of “ . .. any human disease, ailment, injury, deformity, or physical or mental condition ...” by various methods including surgery.
The case of People v. Lehrman, 251 App. Div. 451, 296 N.Y.S. 580 (N.Y. App. Div. 1937), construed the statutory words “practice of medicine” as related to electrolysis for hair removal. This process involved the penetration of the skin with an electrically charged needle. The court held that the definition in the statute in Lehrman (basically analogous to our own) was never meant to include the process questioned, and the court stated:
Practices such as this have always been held to be matters of personal taste and adornment and not connected with the practice of medicine.
Ear piercing is a simple physical change effected solely to facilitate the wearing of ear ornamentation. It is an uncomplicated penetration of the skin and tissue of the ear lobe by a sharp instrument. The procedure is not as serious as the normal anatomical change customarily wrought by surgery. It is not a corrective undertaking, nor one intended to ac complish a palliative objective. No transformation other than an opening in the ear lobe is created, and it is thus distinguishable from the more conspicuous alteration normal cosmetic surgery is intended to provide.
Although not controlling, we note that in Texas the attorney general, in interpreting a statute similar to our own, ruled that ear piercing did not constitute the practice of medicine. Other states, including Arizona, Virginia, Kansas, New Jersey, Georgia and California, have, through opinions rendered by their respective attorneys general or state medical boards, excluded the piercing of ears as a procedure to be found within the term “the practice of medicine.” Appellee has not cited and our research has not disclosed any decisions to the contrary except the decision involved in this appeal.
We are not unmindful nor unconcerned about possible adverse effects from “uncontrolled ear piercing.” However, we are not at liberty to declare, by judicial interpretation, a procedure “surgery” which is not encompassed by the legislative enactment under consideration.
Reversed.
Jurisdiction of the Board to determine this issue has not been raised, and we do not consider it in this opinion. | [
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PER CURIAM
'I’his matter involves the petition of Wayne R. Williams which states that a complaint is pending against him before the Supreme Court Committee on Professional Conduct.
Mr. Williams admits the allegations against him are substantially true, and he petitions the Court as follows:
I therefore petition this Court to accept my surrender of my Attorney’s License and to remove me from the list of attorneys authorized to practice law in the State of Arkansas for a period of two (2) years and that following the said period of two (2) years that I then be considered eligible for reinstatement as a licensed attorney in Arkansas subject to such conditions as may be set by this Court concerningj any pertinent considerations for re-admission including, but not limited to, establishment of my then good character and my good conduct during the suspension period [italics supplied].
I make this request without any reservations and hope this matter will be handled without any undue publicity. I herewith tender my license certificate to this Court.
The Court also has received from the Executive Secretary of the Committee on Professional Conduct the following letter:
The Committee on Professional Conduct has held two long hearings concerning the alleged misconduct of Attorney Wayne R. Williams, formerly charged with bribery in state courts. An extensive investigation was conducted on behalf of the committee. Mr. Williams was afforded the opportunity to voluntarily surrender his license to practice law in lieu of a disbarment suit being filed by the committee. He expressed a desire to do this, and there has been considerable negotiation to draft a Petition to surrender his license that was satisfactory to Mr. Williams and would be acceptable to the committee for a recommendation to the Court to accept it.
I have today received a Petition executed by Mr. Williams acceptable to the committee, along with his license certificate, and have delivered them both to Jimmy Hawkins for filing with the Court. I am instructed by the committee to recommend to the Court it accept this Petition according to the terms therein.
Phis Court is most fortunate in having on the Professional Conduct Committee seven outstanding members of the bar, men of the highest caliber, men dedicated to maintaining high standards in the legal profession. Their duties entail careful investigation of complaints questioning the ethical conduct of attorneys and then taking whatever action may be prescribed by the Rules of Professional Conduct governing attorneys. When deemed appropriate, recommendations are made to this Court. These men aré called upon to take long hours from their own busy professional schedules to serve the larger interest and welfare of the entire bar of this State in carrying out these responsibilities.
As indicated in the letter of transmittal from the Committee, after two long hearings, much deliberate consideration and lengthy negotiations the Committee recommended that we accept the petition according to its terms. Certainly we attach great weight to the recommendation of the Committee which heard the testimony of petitioner and other witnesses who came before it. The members of the Committee are in a much better position to gauge appropriate action in this matter than this Court which has not seen the witnesses nor heard the testimony.
This Committee ably carries out the responsibilities delegated to it, and in performing their duties the members of the Committee gave consideration not only to the Code of Professional Responsibility but also to the action taken and pronouncements made by this Court in applying sanctions in previous cases.
Accordingly we deem it appropriate to accept surrender of petitioner’s license for a two-year period, but this does not mean petitioner will be automatically reinstated at the end of this period. Petitioner will only be readmitted upon a satisfactory showing to the Board of Law Examiners that his character and integrity are such that he deserves readmittance. Another condition of the suspension is that petitioner refrain from assisting any other attorney engaged in the practice of law and from accepting employment by any other attorney in any capacity whatever during the term of his suspension. The burden of proof shall rest upon petitioner in making those showings to the Board of Law Examiners. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of battery in the second degree in violation of Ark. Stat. Ann. § 41-1602 (1) (d) (Criminal Code 1976). His punishment was assessed at three years in the Arkansas Department of Correction. The prosecution of appellant resulted from his driving a car, which left the road, entered a three foot deep roadside ditch and struck a thirteen year old boy who was playing in the ditch. The victim suffered a broken leg, fractured toe, and a bruised heel and pelvis. Appellant first contends that § 41-1602 (1) (d) is unconstitutional. Appellant argues that the provisions of the statute are patently vague and overbroad, resulting in inadequate guidance to the individual whose conduct is sought to be regulated and is insufficient guidance to a jury in their application of the law to the facts before them. We cannot agree.
§ 41-1602 (1) (d) provides:
(1) A person commits battery in the second degree if: (d) he recklessly causes serious physical injury to another person by means of a deadly weapon.
Appellant argues that the statute “sets no clear standard for the regulation and enforcement of ‘reckless’ conduct.” He reasons that since the severity of the punishment for a battery is controlled by the degree of harm to the individual, an individual cannot know the consequences of his actions in terms of “liability until after the conduct is over and the amount of harm has been established.” He further asserts that the statute “is so overbroad in its possible application by a jury, as to deny the defendant fair adjudication and due process. The Statute requires that a jury find that the defendant: 1) was ‘reckless,’ 2) caused ‘serious physical injury,’ and 3) used a deadly weapon. This Statute, by its overbroad language, may be wrongly applied, as it was in this case, and unfairly used against individuals.” He argues that “[EJvery accident is a potential Battery in the Second Degree by the construction of Statute as used here.”
The statute involved here does not fit such a broad application. The statute requires, as appellant avers, that a jury find the appellant was reckless, caused serious physical injury and used a deadly weapon. In Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975), we applied the standard of specificity as defined in U.S. v. Petrillo, 332 U.S. 1 (1946):
The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of law which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.
See also Weston v. State, 258 Ark. 707, 528 S.W. 2d 412 (1975).
In our new Code batteries are scaled in degrees, i.e., first, second and third, with the severity of punishment based not only on the result of the battery in terms of harm done to the victim, but also on the conjunction of a culpable mental state; i.e., recklessly, negligently, or extreme indifference to the value of human life. See Commentary following § 41-1603. Appellant’s argument that only the degree of injury dictates the liability is based on erroneous interpretation of the battery statutes. The new Arkansas Criminal Code provides a detailed definition for each of the required elements of battery in the second degree; i.e., recklessly, serious physical injury and deadly weapon:
(1) ‘Recklessly.’ A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. § 41-203 (3)
(2) ‘Serious physical injury’ means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. § 41-115 (19)
(3) ‘Deadly weapons’ means:
(a) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious physical injury; or
(b) anything that in the manner of its use or intended use is capable of causing death or serious physical injury. § 41-115 (a) (b)
These definitions were included in the instructions given to the jury. Obviously, as defined in the Code, “recklessly” involves an awareness and “conscious” disregard of a “substantial and unjustifiable risk” that certain attendant circumstances exist or that prohibited consequences will occur. Further, the disregard of the risk “constitutes a gross deviation from the standard of care” of a reasonable person in appellant’s “situation.” There must also be “serious physical injury” to the victirri by means of a “deadly weapon” to justify a conviction of a battery in the second degree. The felony liability of second degree battery manifestly would not attach to mere negligent conduct. Cf. Phillips v. State, 204 Ark. 205, 161 S.W. 2d 747 (1942). It is also pointed out in the Commentary following § 41-1603 that for even the misdemeanor battery statute to apply it requires a showing of negligence greater than that in civil negligence citing § 41-203 (4).
In our view the terminology of § 41-1602 (1) (d) is not vague nor overbroad. The provisions of the statute are of such “common understanding and practice” that it cannot be said that an ordinary individual or juror would have to speculate as to its meaning. Neal v. State, supra.
Appellant next contends that the trial court erred in overruling appellant’s motion for a directed verdict. He argues that the state failed to adduce substantial evidence to sustain all of the elements of battery in the second degree. It is well established that a directed verdict is only proper where there are no factual issues to be determined by the jury and on appeal, the evidence will be reviewed in the light most favorable to the appellee and the judgment will be affirmed if there is any substantial evidence to support it. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975).
Here appellant first asserts that the evidence was insufficient to establish one of the required elements of § 41-1602 (1) (d); i.e., recklessness. We disagree. One witness testified that preceding the accident, he saw appellant’s car traveling “pretty fast” in front of his home. The car then returned and he heard screeching of the tires and saw appellant’s car hit the victim. The squealing of the tires “sounded like losing control of it, or squealing around a curve.” The arresting officer testified that appellant had an unobstructed view of the ditch where the victim was playing. Appellant's car left “quite a few feet” of skid marks on the road. Two other witnesses testified that appellant attempted to remove his car from the three foot ditch when the victim was still underneath the car. Witnesses testified that they smelled alcohol on appellant immediately after the accident and the arresting officer testified that appellant “was in kind of a stupor” at the time of his arrest after he had left the scene. We are of the view the state adduced ample substantial evidence to sustain the jury’s finding on the element of recklessness.
Appellant next asserts that the injuries here are not of such a nature to constitute a serious physical injury as contemplated by the drafters of the Code or battery statute. § 41-115 (19), supra. We cannot agree. The victim suffered a broken leg, a fractured toe, bruised heel and pelvis. He was hospitalized for about a month and was in a leg case and traction for two or three weeks during this time. He was walking with crutches at the time of the trial which was about a month and a half after the alleged offense. Even though it be said there is insubstantial evidence that the physical injuries suffered by the victim did not result in or create “a substantial risk of death,” we cannot say, as a matter of law, that a fact question did not exist as to whether the victim’s injuries constituted a “protracted impairment of the function of any bodily member or organ.” Webster’s Third New International-Dictionary defines “protract” as “to continue, prolong, lengthen in time.” It was for the jury to resolve the issue as to whether the injuries constituted a temporary or protracted impairment.
Appellant next contends that here an automobile is not a deadly weapon within the purview of the battery statute. Therefore, he argues the third element or prerequisite of the statute is not established. Suffice it to say that in the Commentary following § 41-1603 it is stated “under § 115 (4) [definition of a deadly weapon] a ‘vehicle’ might constitute such a weapon.” Certainly, it must be said that there is substantial evidence for the jury’s finding that the automobile constituted such a weapon. In accord are People v. Anderson, 229 Ill. App. 315 (1923); Williamson v. State, 111 So. 124 (Fla. 1926); State v. Hollis, 273 P. 2d 459 (Okla. Cr. 1954); and People v. Benson, 152 N.E. 514 (Ill. 1926).
Appellant next asserts that the trial court erred in refusing to give instructions on assault in the first degree and assault in the second degree. Appellant argues that under Ark. Stat. Ann. § 41-105 (2) (b) and (c) (Criminal Code 1976) he was entitled to his proffered instructions on assault in the first and second degrees as lesser included offenses. The provisions relied upon read:
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
The gist of appellant’s argument is that assault is an attempt to commit a battery and the only difference between battery and assault is that “the former requires a reckless ‘causing’ of a substantial risk of death or serious physical injury and the latter requires a reckless ‘creation’ of a substantial risk of death or serious physical injury.” Ark. Stat. Ann. § 41-1605 (Criminal Code 1976) provides:
(1) a person commits assault in the first degree if he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.
(2) Assault in the first degree is a class A misdemeanor.
Ark. Stat. Ann. § 41-1606 (Criminal Code 1976) provides:
(1) A person commits assault in the second degree if he recklessly engages in conduct which creates a substantial risk of physical injury to another person.
(2) Assault in the second degree is a class B misdemeanor.
It is apparent that the assault provisions apply to a situation which creates risk of death or physical injury while a battery and its penalties are directed towards the situation where actual injury is suffered. In the Commentary following § 41-1602, it is succinctly stated:
In some jurisdictions, ‘battery’ has ceased to exist as a separate offense, its elements having been assimilated into assault provisions. The Commission, however, felt that assaults and batteries were worthy of treatment as separate offenses having distinct criminal sanctions. Accordingly, the Code preserves the conceptual distinction drawn between ‘assaults” and ‘batteries’ by present law. **** Under the Code, conduct is denominated a ‘battery’ or ‘assault’ depending on whether or not physical injury results, (italics supplied.)
Further, § 41-105 (3) provides that “[T]he court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” See also Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); and Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362 (1975). Here, in view of the evidence, the court was not obligated to give instructions on assault. Furthermore the Commentary following § 41-105 clearly shows that subsection (2) (c), supra, is intended to apply to a situation where battery in the third degree is a lesser included offense within battery in the second degree. Here, the court instructed the jury on third degree battery and, also, at appellant’s request, on reckless driving.
Finally appellant asserts the trial court’s admission of testimony relating to appellant’s actions subsequent to the alleged battery was irrelevant and prejudicial. The testimony objected to was with respect to appellant’s activities in moving his car and leaving the scene. The evidence is clearly relevant to the issue of whether appellant’s conduct was “reckless,” a prerequisite or an element of the offense charged and, further, was close enough in time to the occurrence to be part of the res gestae, manifesting appellant’s state of mind at the time of the accident.
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Elsijane T. Roy, Justice.
Appellant was charged with capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (Supp. 1973) for the death of Kenneth Wells who was slain during the course of a robbery. At trial by jury appellant was found guilty as charged, and after rendering its verdict the jury heard evidence of aggravating circumstances as required by Ark. Stat. Ann. § 41-4710 (Supp. 1973). No mitigating circumstances were offered by appellant. In assessing the aggravating circumstances the jury determined that they did not justify imposition of the death penalty and consequently sentenced appellant to life imprisonment without parole. This appeal ensues.
Appellant first claims error in the refusal of the trial court to dismiss the information against him as being violative of his rights under the Fourteenth Amendment to the United States Constitution. He contends the statutes under which his penal ty was determined are constitutionally vague, overbroad and vest too much discretion in the jury. This contention involves Ark. Stat. Ann. §§ 41-4710 — 41-4712 which require that, upon a determination of guilt, the jury consider specified aggravating and/or mitigating circumstances as a guideline in establishing the sentence to be imposed.
The argument here urged was decided adversely to appellant’s contention in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1976). In Neal we held that the statutory language should be so susceptible of “ . . . common understanding and practice that it cannot be said an ordinary man or juror would have to speculate as to its meaning.” We reaffirm our earlier holdings that the questioned language is amenable to such common understanding and practice as to be constitutionally sound. See also Collins v. State, 259 Ark. 8, 531 S.W. 2d 13 (1975).
Upon a finding of guilt appellant faced a death sentence or life imprisonment without parole. Since the jury imposed life imprisonment without parole appellant is not in a position to question the constitutionality of those provisions of the statute which permit the imposition of the death penalty under certain circumstances.
In Harris v. State, 259 Ark. 187, 532 S.W. 2d 423 (1976), the appellant received a sentence of life imprisonment without parole. He contended that Act 438 of 1973 (incorporating the statutes here in dispute) was constitutionally improper in that it conferred upon the jury more discretion than is legally permissible in fixing punishment. In Harris we stated:
. . . [T]his appellant received only a sentence to life imprisonment without parole. We find nothing in any of the opinions in Furman [408 U.S. 238 (1972)] to indicate that the court’s restrictions upon a jury’s discretion in the matter of punishment apply to anything except the imposition of the death penalty. * * *
In light of the above authorities we find no merit in appellant’s first point.
Appellant also urges error in the refusal of the trial court to grant his motion for a directed verdict at the close of the State’s case because the circumstantial evidence was not sufficient to warrant a conviction. A directed verdict is proper only when no fact issue exists and upon appeal we review the evidence most favorably to appellee, affirming if there is any substantial evidence. Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973). The fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). In Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974), we held that where circumstantial evidence is involved a determination of whether the evidence excludes every other reasonable hypothesis than the guilt of the defendant is basically a question for the jury.
We find the evidence here ample to raise a fact issue. The evidence showed the decedent had been robbed; eyewitness accounts connected appellant with the crime; and appellant’s alleged admission to two other men that he murdered the decedent made more than ample proof for the question to go to the jury. Therefore, appellant’s motion for a directed verdict was properly refused.
Appellant next questions the cross-examination of Pearlie Mae Givens. During the cross-examination in an attempt to impeach her testimony the State alluded to a tape recording of a conversation the prosecutor had with the witness in his office prior to trial. Appellant immediately objected, and both sides retired to chambers to consider the State’s effort to authenticate the recording for purposes of impeaching Witness Givens’ testimony. It was agreed that the State would discontinue its efforts to discredit the witness by use of the tape and appellant would withdraw his motion for a mistrial. The court thereafter admonished the jury to disregard the State’s previous line of inquiry and the attorney for appellant stated, “This is sufficient, Your Honor.”
Appellant’s next averment again questions the constitutionality of Ark. Stat. Ann. § 41-4712 (Supp. 1973) on a different theory. He urges that this statute, upon a determination of guilt, compels him to assert mitigating circumstances which in effect destroys his right not to testify. As heretofore set out in this opinion, appellant cannot question the con stitutionality of a statutory provision when he has not been penalized by the provision of the statute under attack. Without introducing evidence of mitigating circumstances appellant received life without parole instead of death, so this argument is of no avail.
Appellant’s last assignment of error concerns the action of the trial court in sustaining the State’s objection to appellant’s cross-examination of prosecuting witness George Horton concerning his need for money to support his heroin addiction. This point has no merit because although the court initially sustained an objection to Horton’s testimony, thereafter the court allowed full cross-examination of the witness on this point. The court stated: “. . . [Y]oü can go ahead and ask him anything you want to now.” Appellant then pursued his cross-examination of the witness to the full extent desired.
In addition to the points discussed, we have considered every objection and assignment of error required by Ark. Stat. Ann. § 43-2725 (Supp. 1975), and, finding no error, the judgment is affirmed.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ.
Now Ark. Stat. Ann. § 41-1501 (effective January 1, 1976).
Now Ark. Stat. Ann. §§ 41-1301 — 41-1302 (effective January 1, 1976).
Now Ark. Stat. Ann. §§ 41-1301 — 41-1304 (effective January 1, 1976). | [
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George Rose Smith, Justice.
In July of 1975 an application was filed with the State Bank Commissioner for a charter for a new bank, to be named Caddo State Bank and to be located in the city of Glenwood. The application was resisted by the Bank of Glenwood, the only bank in the city. After the submission of extensive proof by both parties the State Banking Board entered an order granting the application upon the basis of detailed findings of fact. The Board’s action was sustained by the circuit court. Four points for reversal are argued here.
We find no merit in the appellant’s first argument, that the Bank Commissioner arbitrarily and capriciously limited the appellant’s pre-hearing discovery. To begin with, the appellant succeeded in obtaining access to almost everything that it sought to examine. It was particularly interested in loans made by two escrow banks to subscribers to stock in the proposed bank. Eventually all those subscribers agreed to the appellant’s request to see their individual files. There remained one master filed to which the appellant was at first denied access. The Bank Commissioner later ruled, we think correctly, that certain information in that file, with respect to proposed officers of the new bank, was confidential, and that the release of certain other data would give the Bank of Glenwood an unfair competitive advantage over the new bank. The Commissioner directed that information pertinent to those two matters be removed from the file, with the remaining contents of the file being made available to the appellant. We are not convinced either that the Commissioner created a “banker’s privilege,” as the appellant argues, or that any information relevant to the basic application was arbitrarily or capriciously withheld. No abuse of discretion is shown.
The appellant also argues that the limitation upon dis covery prevented its attorney from adequately preparing to cross-examine an adverse expert witness, James Becknell. Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446 (1971). It is asserted that Becknell testified that “the bank would be economically feasible and would show a profit after two years.” It is then asserted that Becknell’s projections were based upon expense figures supplied by Twin City Bank and that the appellant’s inability to obtain those figures “severely restricted appellant’s ability to cross-examine” Becknell.
The proof simply does not sustain this argument. If Becknell made any projections involving expenses over a two-year period or any other period, it must have been in a discovery deposition that is not in the record before us. In actuality, BecknelPs testimony had to do with such matters as population growth in the Glenwood area, the influx of new business enterprises, dissatisfaction on the part of some people with the Bank of Glenwood, the “leakage” of potential deposits from the Glenwood area, and similar statistics that were offered to buttress BecknelPs conclusion that the overall situation would support another bank in Glenwood. BecknelPs direct examination included no projections about the new bank’s income or expenses, nor was he cross-examined on that subject. Moreover, the Board relied primarily upon the Federal Deposit Insurance Corporation’s computations in finding that the proposed bank’s future earning prospects were favorable. We find no basis in the record for the appellant’s argument that its ability to cross-examine Becknell was restricted.
As its second point for reversal the appellant argues that the Bank Commissioner acted unlawfully in assuming the supervision and enforcement of the Arkansas Securities Act with respect to the stock in the proposed bank. If so, the only persons who might be hurt would be the subscribers to the stock. We cannot see how the appellant has any standing to complain about this matter, even if it be assumed that its assertions are correct.
Thirdly, the appellant argues that the circuit court denied the appellant’s constitutional and statutory right to judicial review. This argument is based upon Section 13 of the Administrative Procedure Act, which contains this provision: “The [circuit] court shall, upon request, hear oral argument and receive written briefs.” Ark. Stat. Ann. § 5-713 (g) (Repl. 1976).
Perhaps the appellant has a basis for complaint, but we are unwilling to remand the cause upon this ground. At the outset, we are not certain that the point was brought to the trial court’s attention. The appellant first filed in the circuit court its “Notice of Appeal and Petition for Judicial Review,” a two-page typewritten pleading. The prayer for relief asked the court to hear additional evidence, to hear oral argument and receive written briefs, and to reverse the decision of the Board. After several other pleadings had been filed by the parties the court entered its order, “being well and sufficiently advised,” affirming the action of the Board. There is no indication that any request for oral argument or for the submission of briefs was actually presented to the court or that any such objection was made after the entry of the court’s order, if we assume that it was made without notice to counsel. In the absence of any such request or objection, we are unwilling to say that the court should have invited oral argument or written briefs merely because those matters were included in the appellant’s first pleading. (We note that no complaint is made about the trial court’s failure to hear additional evidence, which was also mentioned in the same pleading.) Moreover, the appellant has had the opportunity to file written briefs and to ask for oral argument in our court. We do not imply that in no instance would we remand a case to the circuit court upon the ground now argued, but that action is not appropriate here.
The appellant’s final contention is that the Board’s decision to grant the new charter is not supported by substantial evidence. We find no merit in this contention, especially in the light of the supplemental abstract of the record, submitted by counsel for the applicants. The Board made unusually detailed and specific findings of fact and conclusions of law. We are convinced that the applicants’ testimony, especially that of H. J. Ligón, John E. Cook, and Becknell, supports the Board’s decision. Nothing would be accomplished by a narration of the evidence.
Affirmed.
Byrd, J., not participating.
Jones, J., dissents. | [
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HART, J.
Mrs. M. A. Gillespie sued L. A. Hinson before a justice of the peace in Faulkner County for $85 for rents alleged to be due her on her farm for the year 1915, and $20 damages for holding the farm after the expiration of his term. There was a verdict for the defendant before the justice of the peace and the plaintiff appealed to the circuit court. In the circuit court the case was tried before a jury upon-the following facts:
Mrs. Gillespie testified that in the first part of January, 1915, she rented her farm in Faulkner County, Arkansas, for that year to the defendant, Hinson, and that he agreed to pay her the sum of $85 therefor, and owes her that amount.
L. A. Hinson testified for himself and admitted that he had rented Mrs. Gillespie’s place in Faulkner County, Arkansas, for the year 1915, for the sum of $85. He stated further, however, that he went to Mrs. Gillespie’s house in the city of Argenta, in the early part of January, 1915, to see her about renting her place in Faulkner County; that he was running a small supply store near her place and also owned a small place of his own; that Mrs. Gillespie was anxious to get some one to supply her son Arthur; that she finally agreed that she would rent her place to Hinson for $85 and let the rent stand for supplies that he, Hinson, should furnish to her son Arthur; that pursuant to this arrangement he rented her son his place and furnished him supplies for the year 1915; that there was due him by her son for supplies so furnished, an amount equal to the rent he had agreed to pay Mrs. Gillespie; that sometime in the spring he learned there was some misunderstanding abotit the terms of their oral agreement and that he wrote Mrs. Gillespie about it; that in reply to his letter, among other things, she stated that she intended for her son to pay her next fall the amount that Hinson was due her for rent. Other evidence tended to corroborate the statement of the plaintiff.
Mrs. Gillespie and a young son about sixteen years old deny that Mrs. Gillespie had told Hinson that if he would rent his place to her son Arthur and furnish him for the year 1915, that she would let the rent on her place stand for the supplies so furnished him.
Mrs. Gillespie relied upon the statute of frauds to defeat Hinson in his defense to the action. At the conclusion of the testimony the court stated to the jury that even if the testimony of Hinson was true, it was an oral agreement to answer for the debt of another and under the statute of frauds was not binding because it was not in writing. The jury was therefore directed to bring in a verdict for the plaintiff. The defendant has appealed.
We think the learned circuit judge erred in directing a verdict for the plaintiff. In Brown v. Morrow, 124 Ark. 480, the court held that in determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and in determining such intention the words of the promise, the situation of the parties, and all of the conditions attending the transaction, should be taken into consideration. In the application of this rule to the present case we think it was a question for the jury to determine whether or not the promise of Mrs. Gillespie was an original promise to answer for the debt of her son Arthur. According to the testimony of Hinson she was interested in getting some merchant to furnish him.- She agreed to rent her place to Hinson and let the rent stand for supplies for that amount to her son Arthur in consideration that Hinson should rent his place to her son and furnish him supplies. Pursuant to this agreement Hinson rented his own place to Arthur and furnished him with supplies during the year to the amount of the rent he agreed to pay Mrs. Gillespie.
As above stated this state of facts made a question for the jury to determine whether or not the promise of Mrs. Gillespie was an original or a collateral promise.
Therefore the court erred in directing a verdict for the plaintiff and for that error the judgment must be reversed and the cause remanded for a new trial. | [
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SMITH, J.
(1) At the trial of this cause in the court below, the jury was directed to find the appellant guilty of the charge of -carrying a concealed weapon, and fix his punishment at a fine of not less than .fifty dollars nor more than two hundred dollars, and this appeal has been prosecuted to reverse a judgment imposing a fine of $100 upon a verdict so returned. The proof on the part of the State was to the effect that appellant had carried a pistol on two different occasions, but the court did not specify the occasion for which the fine should be imposed, and it will, therefore, be necessary to review the evidence upon both occasions; but, inasmuch as a verdict-was directed against appellant, we need -consider only, for the purpose of this appeal, the undisputed testimony and that offered in his behalf. According to this testimony, appellant had bought a pistol in Forrest City at a restaurant from a boy named Will Fleming, and the pistol was put in a suitcase, along with some cartridges, and the suitcase was carried by Fleming and placed in a truck belonging to one Charlie Walker, on whose farm appellant lived. Appellant rode in the truck to his home. Walker testified that appellant did not have on a coat, nor did he have the pistol on his person. There was also testimony that one Clem Kilgore borrowed the pistol, and carried it to the Cut Off, where appellant some days later shot the pistol at a snake; but that the Cut Off was in Lee County, whereas appellant was charged with carrying the pistol in St. Francis County.
(2) By section 1609 of Kirby’s Digest, it is made unlawful to carry a pistol as a weapon, and by the act of March 29, 1907, page 323, it is provided that any person convicted of a violation of the provisions of section 1609 of Kirby’s Digest shall be punishable by fine of not less than fifty dollars nor more than two hundred dollars, or by imprisonment in the county jail for not less than thirty days nor more than three months, or by both fine and imprisonment. To sustain a conviction under this statute it is essential that the proof show that the pistol was carried as a weapon. It is true that it has been said that, when it was shown that a person wore a pistol concealed, the presumption was that it was carried as a weapon; but in the same case it was also said that this presumption was one of fact which might be overcome by affirmative proof that it was not carried as a weapon. Hatchcock v. State, 99 Ark. 65. The jury here might very well have found that appellant, in carrying the pistol from the place of its purchase to his home, was not carrying it as a weapon. Carr v. State, 34 Ark. 448. And, so far as the second occasion was concerned, the jury might have found that the venue had not beep properly proved.
(3) The court erred in directing the verdict for still another reason. This offense is punishable either by a fine or imprisonment, or by both fine and imprisonment,and it was within the province of the jury to decide what the appropriate punishment would be. It is true the jury was directed to impose a fine only; but, when the court instructed the jury as a matter of law that the appellant was guilty as charged, it was the province of the jury to determine what the punishment should be. Of course, the jury could not have exceeded the limits fixed by the statute, and the judge might have reduced the maximum sentence to a lower one, or to the lowest one, and yet the court might not have done so. We need not speculate about the probable action of a trial judge under the circumstances stated. The question is one of power. The trial judge directed the jury to return a verdict of guilty when the punishment might have been imprisonment.
In the case of Roberts v. State, 84 Ark. 564, the members of the court differed about the right of the trial court to direct the jury to return a verdict of guilty in any ease, and the writer of the opinion expressed the view that it could not be done in any case; but the view of the majority was expressed as follows: “In this case, however, while the verdict rendered was for fine only, the appellant was tried for an offense punishable either by fine or imprisonment. Section 5241, Kirby’s Digest. We are all of the opinion that in such cases the trial judge has no power to direct a verdict. Says Mr. Bishop: ‘ The judge is incompetent to convict one of crime, even though he acknowledge it, except on a plea of guilty. The evidence is exclusively for the jury. However conclusive of guilt it may be, he can only .tell them that, if they believe such and such to be the facts, the law demands a verdict of guilty; he can not otherwise direct such verdict.’ * * * The majority of the court is of the opinion, however, that our own court is already in line with the doctrine announced in the United States v. Susan B. Anthony, 11 Blatch. 200, 24 Fed. Cas. No. 4450, and the Michigan cases holding to the same doctrine. And that the doctrine of these cases is founded upon the sound legal principle that where the facts are undisputed, and only one inference can be drawn from them the question is then one of law for the court, and not of fact for the jury. - But the doctrine can not apply in a case where jeopardy attaches, for the reason that in such cases, as before stated, the court is without power to set aside a verdict of acquittal or to direct a verdict either way. Inasmuch as there might have been imprisonment in this case, it follows that the court erred in directing the verdict.”
In the more recent case of Parker v. State, 130 Ark. 236, 197 S. W. 283, we held that the court, in a prosecution for embezzlement, could not direct a verdict of guilty, although the testimony was undisputed; that the plea of not guilty, itself, put in issue the truth of the evidence ; and, while the charge there was a felony, the decision of the court was not controlled by that fact, as no distinction is made where imprisonment is the punishment, whether the charge be a felony of a misdemeanor.
For the errors indicated, the judgment will be reversed and the cause remanded. | [
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SMITH, J.
The trial of this cause in the court below was presided over by the Honorable Scott Wood, judge of the Eighteenth Circuit, upon an exchange with the Honorable W. H. Evans, regular judge of the Saline ■Circuit Court, where the cause was tried. Within the time allowed, a bill of exceptions was' presented to Judge Wood for his approval, and was signed by him after he had written just above his signature the notation: “Signed subject to change if found to be incorrect or incomplete.” Following Judge Wood’s signature, the bill of exceptions was endorsed: “Approved: "W. H. Evans, Judge Seventh Judicial District.” The trial of the cause was had on March 12 and 13, at which time Judge Wood was presiding. The motion for a new trial was filed March 20, 1917, when Judge Evans was presiding, and the motion was overruled by him on that day.
The Act of March 5, 1909, page 147, which provides that “Where the judge who presided at any trial shall die, become insane or for any other cause become incapacitated before he has signed the exceptions, his successor in office shall allow, or correct, and sign said exceptions,” has no application here, because Judge Evans .was not the successor of Judge Wood, and Judge Wood had not in any manner become incapacitated from signing and approving the bill of exceptions. Having presided at the trial, it was the duty of Judge Wood to allow and sign the bill of exceptions if one presented for his approval was correct. O’Neal v. State, 98 Ark. 449; Carnehan v. Parker, 102 Ark. 441.
Judge Wood did sign the bill of exceptions; but did he also approve it? We must hold that he did not. In the case of Williams v. Griffith, 101 Ark. 84, it was said:
“Where the judge signed a bill of exceptions but immediately following his .signature added the words: ‘Proper corrections to be made if -necessary,’ and attested the letter by his initials, the certificate was a qualified one and insufficient to bring up the matters therein contained for review.” See also, Barry v. White Drug Co., 109 Ark. 120, 123.
The language employed here is as equivocal as that set out in the case cited, .and upon the authority of that case we must affirm the judgment in this for the lack of a proper bill of exceptions, the errors complained of consisting of exceptions appearing in the purported bill of exceptions. It is so ordered. | [
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WOOD, J.
This suit was instituted by the appellee against appellants to recover damages for personal injuries which she alleged she sustained in January, 1914, while walking across Central avenue, a public highway, in the city of Hot Springs. She alleged that the appellants were doing a livery business under the name of Cooper Brothers in the city of Hot Springs, and were the owners of a vehicle and horses which were being driven along Central avenue by the servant of appellant; that such servant so carelessly and negligently drove and managed the horses that the horses and vehicle struck the appellee, throwing her to the ground and breaking her arm and inflicting other severe injuries, for which she asked damages in the sum of $5,000.
The appellants denied the material allegations of the complaint, and set np the defense of contributory negligence.
When the selection of the jury was begun counsel for appellee called counsel for appellant before the court, out of the hearing of the jury, and announced that he was informed and believed that appellants’ counsel represented an indemnifying company which was interested in the result of the suit and wanted to know the name thereof so he could properly examine the jury on voir dire. Appellants’ counsel refused to give the name. The court refused to compel counsel to disclose the name, but, at appellee’s request, announced that it would permit counsel to examine the jurors.as to their relationship with indemnifying companies so as to determine the jurors’ interest. Whereupon counsel for the appellee, over the objection of the appellants, asked one juror on his voir dire whether or not he represented any accident or casualty insurance company, to which question the juror answered, “No.”. And appellee’s counsel asked another juror whether or not he was under any obligation to any accident insurance company or was the agent of any 'such company. The juror answered, “No.” And other jurors were asked, “Do you know of any accident company or any agent of such company that has any influence or control over you in the city of Hot Springs?” to which they answered, “No.” And another juror was asked whether he knew that parties in public business were insured against accidents that occurred, and the juror answered, “Yes.” Then the juror was asked, “Do you know of any insurance company or casualty company or any agent of such company, in Hot Springs or anywhere else, to whom you are under obligations?” and the juror answered “No,” Still another juror was asked, “Do you know any of these accident casualty companies?” and the answer was, £ ‘ Know all of them, I suppose. ’ ’ Question,£ ‘ They haven’t any hold on you?” Answer, “None that I know of, nobody else.”
The rulings of the eonrt in permitting these questions and answers are assigned as error, and to sustain their contention that these rulings are erroneous, counsel for appellants rely upon the cases of Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, and Williams v. Cantwell, 114 Ark. 542.
In the first mentioned case, after both parties had announced ready for trial, and while several members of the petit jury were in the box,.counsel for the plaintiff asked one of the attorneys for the defendant if he represented an insurance company in the case. The attorney questioned answered that he represented the defendant. The court announced that that was not an answer to the question, and upon the attorney declining to answer further the court stated that he should not appear in the case, whereupon the attorney withdrew from the case. Upon the above facts the court held that the authority of an attorney to appear for a client whom the attorney stated that he represented could not be challenged in the above manner and the attorney .denied the right to appear for the client whom he professed to represent.
In the above case the attorney for the plaintiff contended that he propounded the questions to the defendant for the purpose of ascertaining who were the interested parties in order that he -might use the information to test the qualification of the jurors on their voir dire. In commenting upon this contention, the court said: “If counsel for plaintiff honestly and in good faith thinks that any of the veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their voir dire relative to this. If, however, his real purpose is to call unnecessarily the attention of the jury to the fact of the insurance, and thereby to prejudice them against the defendant’s rights.,,then this would be clearly an abuse of this privilege, and should be promptly stopped by the trial judge. In case it appears that prejudice to the rights of the defendant does result therefrom, it would call for a new trial or a reversal of the judgment on appeal. In an action by a servant against his master for damages growing ont of a personal injury, it is improper for the jury to take into consideration the fact that the defendant is indemnified against accident to his employees. Evidence of such fact could throw no light upon the issue involved in the case, and would be wholly incompetent. The endeavor, therefore, by any character of practice, to press unnecessarily upon the jury’s attention the fact that a defendant is indemnified against loss for the injury which is the subject-matter of the suit could only have for its purpose the arousal of sympathy for the one party or prejudice against the other. Such action or practice is therefore improper, and, if successful in its desired effect, should call for a new trial. ’ ’
In Williams v. Cantwell, supra, the attorney for the plaintiff, not in the presence and hearing of any of the veniremen, asked the attorney for the defendant if he was not the attorney for and representing the Home Life and Accident Insurance Company, and upon the attorney for the defendant declining to answer, the attorney for the plaintiff addressed the court, in the presence and hearing of the veniremen, and said: “Your Honor, this gentleman here (indicating the attorney for defendant), in my opinion and information, does not represent the defendant, but represents an insurance company for him, and for the purpose of inquiring from the gentleman, and for that purpose only, as to whether he is representing the insurance company, I am asking, in good faith, who his client is, and I ask you, as you did for me, and as the Supreme Court upheld you in doing, to require him to state who he represents. ’ ’ In questioning the veniremen as to their qualifications as jurors the attorney for plaintiff asked each of them if he was in the employ of the Home Life and Accident Insurance Company, and upon his answering said question in the negative the court permitted the attorney to ask each of them “if they or either of them expected to be employed by the Home Life and Accident Insurance Company, and if they were in the employ of any accident insurance company.”
In commenting upon the above facts we said: “It is, of course, true that the trial judge must be clothed with much discretion in determining what questions may be asked veniremen by an attorney or veniremen on their voir dire as a basis for challenging them. But that discretion is subject to review, and if it appears that the attorney’s real purpose is to call unnecessarily the attention of the jury to the fact that a party to the litigation is insured against liability, such action should be promptly stopped by the trial judge, and, where it appears that prejudice to the rights of the defendant results therefrom, the judgment must be reversed on appeal. # * It will be observed that the-appellee’s attorney appears to have known not only that appellant’s attorney did represent an insurance company, but to have known the particular company which he represented, and his speech before the court, as well as his questions to the jurors, appears to us to have unnecessarily advised the jurors of the fact that appellant was insured against liability and that he would not be required to pay any verdict which they might render against him. Information as to any juror’s connection with any insurance company could have been obtained in a less dramatic manner by asking each of the jurors if he represented or was connected with any casualty company insuring employers against liability, or if he was connected with any insurance company, or any other proper question which might have tended to disclose whether any juror had any bias or prejudice likely to influence his verdict one way or the other.”
(1) It will be observed that the facts in the above eases clearly differentiate them from the case in hand. In those cases it was manifest that the conduct of the attorney representing the successful party and the rulings of the court were well calculated to impress on the minds of the jury that the attorney ostensibly appearing for the defendants in the respective cases was not really their attorney but was an attorney for an indemnity insurance company that had insured the defendants against any loss that they might sustain on account of such accidents as were therein complained of, and that the defense was really being made for the benefit of snch indemnity company or companies. In both of those cases it is expressly recognized that it is within the province of an attorney representing a plaintiff to question veniremen concerning their relation to any casualty company whom the attorney might know or might honestly believe to have insured the defendant against loss for the injury which the plaintiff had sustained at the hands of the defendant.
(2) Trial courts must necessarily have a wide discretion in permitting questions that are intended to test the competency of a venireman from which the jury must be empaneled to try the cause. Questions that are intended to elicit any possible bias or prejudice that the veniremen might have “likely to influence his verdict one way or the other” are always proper, and the rulings of the trial court in permitting such questions will never be disturbed unless there is a manifest abuse of its discretion. The questions propounded to the veniremen in the instant case in and of themselves were not objectionable,- and the record does not disclose anything in the conduct of the attorney in the manner of propounding the questions, or other conduct on his part aside from this, that was calculated to cause the jury to believe that the defense was actually being conducted in the interest of some casualty insurance company instead of those who were named and who appeared as defendants at the trial.
Had nothing more occurred in the above cases, relied upon by the appellants, than the mere asking of the questions therein propounded, doubtless this court would not have condemned as erroneous and prejudicial the rulings of the trial court in permitting such questions. Doubtless counsel for appellees in the instant case were permitted a broad scope of inquiry concerning the veniremen’s connection with any casualty insurance company in Hot Springs or elsewhere by reason of the conduct of the appellant’s counsel in refusing to discover whether or not he represented any casualty company, and, if so, in refusing to divulge the name of such company. Had such informa tion been given to appellee’s counsel, we may assume that tbe court would have restricted the inquiry accordingly.
While it was improper, as held.in Pekin Stave & Mfg. Co. v. Ramey, supra, to interrogate counsel in the presence of the veniremen as to whether he represented a casualty company, and upon the attorney giving a negative answer to refuse to permit him to appear for the defendant, nothing of that kind occurred at the trial of this cause. Although a similar question was. asked.the attorney, which he refused to answer, this did not occur in the presence of the veniremen, and hence their minds could not have been prejudiced thereby.
(3) The court instructed-the jury, over the objection of the appellants, as follows: ■
“1. It was the duty of the driver of the hack to use ordinary care to avoid injuring the plaintiff, and if you believe from the preponderance of the evidence that he failed in this duty and plaintiff was injured by such failure your verdict should be in plaintiff’s favor. ’ ’ And told them that, “ordinary care is such care as an ordinarily prudent and careful driver would have used under the circumstances of the case.” ':
“2. It was the duty of. the driver to use ordinary care to observe persons crossing the'street and to use ordinary care to prevent injury to such persons, and if you believe from a preponderance of the evidence that he did not use such care and the plaiiitiff -was injured as a result of his failure to use such care, then you should find for the plaintiff. ” .
Appellants contend that these instructions were abstract, because they were aside from the issue defined by the pleadings and the evidence:
The issue as to the alleged negligence of the appellants is raised by the allegations.in.the complaint that the servant of the defendants “so carelessly and negligently drove and managed the horses and vehicle” as to strike the plaintiff and cause the injuries of which she complains and by appellants ’ answer denying such allegations.
Appellants contend that inasmuch as the uncontradicted proof showed that the driver of the vehicle saw the plaintiff when she ran into the street, the only, issue for the jury to pass upon was whether the driver was negligent in handling his team after the plaintiff ran into the street. This may be conceded and still the instructions complained of did not permit the jury to wander “in a vague and boundless region of abstract, ’ ’ as asserted by counsel. On the contrary, the instruction limited the jury to the consideration of the conduct of appellants’ hack driver with reference to the direct and proximate result of such conduct as it affected appellee on the occasion when she was crossing the public street, and when he, at the same time and place, was driving appellants’ hack upon such street. The allegation, in short, was that appellants’ driver on that occasion so negligently drove and managed the horses that he struck and injured the plaintiff. The instruction very correctly told the jury that it was the duty of the driver to use ordinary care to observe persons crossing the street to prevent injury to such persons.
It certainly constituted negligent driving if appellants’ hackman failed to exercise ordinary care to observe appellee while she was crossing the street, if by reason of such failure he ran upon and injured her. It would also constitute negligence, even though the hackman exercised ordinary care to discover the appellee, if, after discovering her, he had failed to exercise ordinary care in managing his team and vehicle so as to avoid the injury to her.
The issues of negligence and contributory negligence were submitted to the jury under instructions which declared the law.
Appellants contend that there was no evidence to sustain the verdict. It could serve no useful purpose to set out and discuss in detail the evidence. After carefully examining it, we have reached the conclusion that the issues of negligence and contributory negligence were, under the evidence, questions for the jury, and as the jury were properly instructed upon these issues, the verdict in favor of the appellee here is conclusive.
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SMITH, J.
This cause originated in the probate court of Pulaski County, where the purported will of Adolph Allen, a colored man, was offered for probate by Kate Smith, a colored woman, who was not of kin to the testator but who received a substantial portion of the estate under the will. The probate court refused to probate the will, and an appeal was prosecuted to the circuit court, where, upon a trial before a jury, there was a verdict in favor of the will.
The subscribing witnesses were O. Samington and W. Beavers, both of whom testified at the trial in the circuit court, and their testimony was of a character to cast some doubt both upon the testamentary capacity of the testator at the time of the execution of the will, or the fact that they signed as witnesses at the testator’s request. Thereupon one Brown, who was the attorney who had prepared the will, testified concerning the circumstances of its execution, which he had witnessed, and Kate Smith, who was also present at its execution, gave similar testimony. The admissibility of 'this testimony is the principal question raised on this appeal.
It is argued that Kate Smith was an incompetent witness under § § 8053 and 8057 of Kirby’s Digest. Section 8053 is attacked by appellee as being in conflict with Section 2 of the Schedule to the Constitution, which provides that “In civil actions, no witness shall be éxcluded because he is a party to the suit or interested in an issue to be tried. * * *”
(1) It is also contended by counsel for appellee that Section 8057 of Kirby’s Digest does not apply to either Kate Smith or to the attorney, as neither of them was a subscribing witness; and, as we agree with them in this contention, we do not consider the constitutionality of the section attacked.
The States of the Union generally appear to have statutes more or less similar to the aboye mentioned sections of Kirby’s Digest. Missouri has such a statute, and the Supreme Court of that State, in the case of Miltenberger v. Miltenberger, 78 Mo. 27, held that a legatee who was interested as such in the establishment of the will, would not be allowed to testify to its due execution, notwithstanding he may not have signed as an attesting witness; that, while the statute only disqualifies him in express terms in the case in which he has so signed, it would defeat the manifest policy of this statute to allow him to testify when he has not so signed.
Kansas has a similar statute, which was construed by the Supreme Court of that State in the case of Sellards v. Kirby, 108 Pac. 73, and that court said that the statute of that State, making void a devise or bequest to a witness to a will, which can not be proved without his testimony, applies only to attesting witnesses, and not to other persons called upon to testify when the will is offered for probate.
A similar conclusion was reached by the Supreme Court of Vermont in the case of In re Wheelock’s Will, 56 Atl. 1013.
Upon principle, we perceive no reason why the beneficiary under a will, who was not an attesting witness, should not be permitted to testify. It is argued that it would contravene public policy to permit this. But the Supreme Court of Vermont, in the case cited, answers that argument as follows: “It is argued that to allow a legatee to testify to the execution of the will .is improper as against public policy. At common law, in the probating of a will, a legatee thereunder was incompetent to testify. This, however, was solely on the ground of pecuniary interest in the outcome of the action: 1 Underhill on Wills, Sec. 192; 4 Kent’s Commentaries (11th Ed.) 598. Since such disqualification has been removed by statute, it is no more against public policy to allow a legatee to testify as a common witness on all questions arising in the probation of a will than it is to allow any other person interested in the result of a suit to give testimony therein. In either case the only reason why it could be against public policy is the interest of the witness, and that ground is no longer available. ’ ’
Nor is it the law that the proponents of a will are limited, in mailing proof of its execution, to the evidence of the subscribing witnesses. This subject was reviewed by Professor Wigmore in Volume 2 of his work on Evidence. Chapter 40 is devoted to the subject of preference for attesting witnesses. He discusses the subject with his usual learning and expounds the reason for the rule. In Section 1302 of this chapter he says:
“The notion of the rule of preference for the attesting witness is that of the general desirability, in the furtherance of truth, of obtaining his knowledge on the subject. What its tenor may be, remains to be seen; the object of the law is to obtain his knowledge, irrespective of the side in whose favor it may bear. Accordingly, it is not necessary, as a part of the rule, that he should testify in favor of execution. The rule is satisfied by calling him, i. e., by making Ms testimony available for the trial. If his testimony fails to evidence the execution, the present rule says nothing about the consequences — whatever any other rule may say. The present rule’s force is absolutely spent when the witness is produced for examination. Here also policy agrees with principle; for the practical working of the rule, if it require that the witness should not only testify but testify favorably (i. e. if the party desiring to prove execution must fail if the attesters failed to prove it) would be unfair and disastrous, especially in testamentary causes. Accordingly, the failure of the attester from lack of memory, to prove execution, is not in itself any breach of the present rule; and though the proponent has still to prove the execution in some sufficient way, he is no longer hampered by any rule about attesting witnesses.
“For the same reason, the attester’s positive denial of the facts of execution, contradicting the statements implied or expressed in his attestation, leaves the proponent still free to prove by other testimony, if he can, the facts of due execution; a permission demanded not only by principle but also by policy, inasmuch as the proponent would otherwise be defeated of his rights by a corrupt attester.”
(2) It is argued that prejudicial error was committed by permitting the will to be read to the jury. The basis of this argument is that the will recited the reasons prompting the testator to make the devise which was made to Kate Smith, thereby arousing sympathy in her favor and inclining the jurors to give it an unduly favorable consideration. We think, however, that no error was committed in this respect, as the will could not be probated unless it was offered in evidence, and we can not say that it was improper for the jury to read the disposition there made of the property devised, as we can not assume that such information would control or influence the jury in determining whether the will had, in fact, been executed.
(3) Objection is made to an instruction numbered 4, upon the ground that it was abstract. The instruction is admittedly a correct declaration of the law, and, according to appellee’s theory of the case, it was not abstract. A litigant has a right to have a correct declaration of the law given upon any material point in the cage where he has offered competent testimony tending to sustain that theory. Finding no prejudicial error, the judgment of the court below is affirmed. | [
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McCULLOCH, C. J.
Appellant instituted this action against appellee before a justice of the peace to recover .the amount of a promissory'note in the sum of $160. There were no written pleadings, and the record does not disclose what defense was offered. The note sued on was one executed by appellee to appellant, and the. note was introduced in evidence. Appellant testified in substance that the note was executed to him in satisfaction or in renewal of two notes formerly executed by appellee to one Alice Stanford, and that he (appellant) had the notes for collection. . He testified that he had an agreement with Alice Stanford that he should have, as compensation for his services, fifty per centum of the amount collected from appellee, that the notes were about to be barred by the statute of limitations, and that he took the new note from appellee in renewal of the old ones.
At the conclusion of appellant’s own testimony, the court gave a peremptory instruction in favor of appellee on the ground that Alice Stanford was the real party in interest and that appellant had no right, according to his own testimony, to maintain the suit. ■ Counsel for appellee say that the ruling of the court was correct, and that even if an unsound reason was given for the ruling, the judgment should not be reversed. They defend the ruling of the court on the ground that even though appellant had a right to maintain the action, the note being in his name, that the proof shows there was no consideration for it. It is clear that appellee had the right to maintain the action under the statute which provides that “a person with whom, or in whose name, a contract is made for the benefit of another, * * * may bring an action without joining with him the person for whose benefit it is prosecuted.” Kirby’s Digest, § 6002.
The note was introduced in evidence, and it made out appellant’s case for recovery of the- amount. It devolved upon appellee to show that the note was executed without any consideration. There was no effort to make such proof, and the testimony of appellant himself shows that there was a consideration in that this note was executed in renewal of two others. The fact that the other two notes were made payable to Alice Stanford does not defeat the consideration, for the testimony of appellant shows that he had an interest in the note himself to the extent of one-half, and that he was authorized by Alice Stanford to represent her in the collection of the former notes. There was no attempt to show that Alice Stanford had not given any such authority and no one else could complain.
It developed in the course of appellant’s testimony that he had not actually surrendered possession of the old notes, but he was not asked to explain why he had not done so. He testified positively, however, that this note was given in renewal of the old ones and that made ont a sufficient consideration; hut had it been shown that he refused to surrender the old notes, or that Alice Stanford had repudiated the transaction and was attempting to enforce payment of the old notes, then a case of failure of consideration would have been shown, but no such state of facts appears in the present record.
We are, therefore, of the opinion that the court erred in giving a peremptory instruction, and that on the contrary, in the state of the record now presented, judgment should have been rendered in appellant’s favor on the note.
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HUMPHREYS, J.
Appellee instituted suit in the Washington Circuit Court against appellant on a tornado insurance policy for damages alleged to have been done to its school building by a storm on May 20, 1916. The west end of the building was blown off the foundation five or six feet and the east end five or six inches. The policy was made a part of the complaint and contained a “loss proof” clause to the effect that appellee would make written proof under oath of any loss that might occur within sixty days from the date of the loss. It also contained a conditional arbitration clause and other clauses of like nature unnecessary to set out in this opinion, as no dispute arose in the case concerning them.
A general demurrer was filed to the complaint charging that it failed to state a cause of action. The demurrer was overruled and appellant saved its exception to this ruling of the court.
Appellant then filed an answer, reserving all rights. under the demurrer. The answer admitted the issuance of the policy and that it was in force and effect on the 20th day of May, 1916; but denied that the school building was injured by tornado or wind storm or both; denied that the district suffered damage in the amount of $400, or that it was indebted to the school district in any sum whatever. By way of further defense, it alleged that if the school district suffered any damage by reason of a casualty covered by the policy, same had been proved, adjusted, compromised and paid by appellant; and specifically alleged that appellee filed its proof of loss on account of the damage on May 20,'1916, mentioned in the complaint, and that same was fully adjusted and paid by appellant. Appellee filed reply, denying that the loss pleaded in the complaint had beén proved, adjusted, compromised and paid by appellant; and denied that appellee had filed proof of the loss covering damage on May 20, 1916, mentioned in the complaint; and denied that any payment was made or offered because of such casualty, loss or damage set up in the complaint.
The cause was heard upon the pleadings, oral evidence and instructions of the court and a verdict rendered in favor of appellee for $240, upon which judgment was rendered.
The necessary proceedings were had and done and an appeal has been prosecuted to this court.
(1-2) The first contention made by appellant for reversal is that the complaint failed to state a cause of action in not pleading performance by'appellee of the conditions precedent in the policy. It will be observed the demurrer is general. It does not point out any spe cific condition in the policy as being a condition precedent. The record does not disclose that appellant pointed out to the circuit court the defect in the pleadings he now complains of. So far as the record speaks, he now, for the first time, insists that the complaint should have averred that appellee had performed all the conditions precedent in the policy or should have alleged the waiver of said conditions by appellant. Even now appellant does not point to any particular provision in the policy as a condition precedent to recovery. It is alleged in the answer that appellee made proof of loss in accordance with the requirements of the policy, therefore no prejudice resulted to appellant according to its own allegations on account of appellee’s failure to plead performance in this particular. Appellant also pleaded by way of answer a compromise settlement and payment of the loss incurred by tornado or wind storm on May 20, 1916, and went to trial on that issue. This clearly constituted a waiver of the conditions precedent in the policy, and, therefore, no prejudice resulted to appellant on account of the failure to plead performance on its part or waiver on appellant’s part. Learned counsel for appellant is correct in his contention that when instruments providing for mutual undertakings are made the basis of actions at law, the rule of pleading requires, that the plaintiff allege performance of all conditions precedent on his part or a waiver of them by the defendant. This abstract proposition of law can not be gainsaid. It is also true, however, that before an erroneous declaration or application of law,by a trial court can avail a party on appeal, he must show that he was prejudiced thereby. No prejudicial error resulted to appellant on account of the action of the court in overruling the demurrer.
(3) But it is insisted that the court erred in submitting to the jury the question of whether the appellee had substantially complied with the conditions of the contract when the pleadings did not aver a substantial compliance, and when no proof was offered upon that issue. It is true an instruction has no place in the case if not responsive to the issues presented by the facts and pleadings, treated as amended to conform to the facts; bnt as stated with reference to overruling the demurrer in this ease, if no prejudice resulted to appellant by the action of the court, the giving of such instructions can not work a reversal of the case. In two instructions given by the court on other issues in the case, the court predicated the right of appellee to recover upon a showing that it had substantially complied with the contract in all things on its part. Compliance with the conditions of the policy not being an issue in the case, the submission of that question to the jury placed a burden upon appellee that might have resulted in prejudice to it, but in no view of the case, could have resulted in prejudice to appellant, for the undisputed evidence showed that all conditions precedent contained in the policy were either complied with by appellee or waived by appellant. Appellant does not contend that appellee failed to comply with the conditions imposed by the policy. Unless there was a failure on the part of appellee to comply with the contractual conditions in the policy, no real prejudice resulted to appellant by the erroneous trend or course of the trial.
(4-6) Again, it is contended that appellant was entitled to a peremptory instruction for the reason that there was a complete settlement of the liability sued on. The building was repaired after it was damaged by the wind storm and paid for out of a check issued by the insurance company to the school district. One of the disputed facts in the case was which of the two parties assumed to make the repairs. The evidence was conflicting on the point/ T. N. Sondgrass, who moved the building back on the foundation, and two of the directors, W. J. Vawter and C. M. Buttry, testified that Jones employed Snodgrass to repair the building. W. W. Jones testified to the contrary, stating that he agreed to make the repairs but that, he employed Snodgrass at the instance of and for the board of directors. That question was submitted to the jury under proper instructions, and the finding of the jury was adverse to appellant. There was ample evi dence in the record to support the finding of the jury to the effect that the insurance company assumed to and did make the repairs.
After the repairs were made and the costs thereof ascertained, the directors made proof of loss. Thereupon, a draft was issued to the school district by the insurance company, which is as follows:
“Loss No. 20493. Pittsburgh, Pa., July 19,1916. “Draft No. 32128.
“Upon acceptance by the National Union Fire Insurance
Company,
“The National Bank, Pittsburgh, Pa.,
“Will pay to (School District No. 60 the order of) ninety-five and 14/100 dollars, which payment evidenced by proper endorsement hereof, constitutes full satisfaction, compromise and indemnity for all claims and demands for loss and damage by storm May 20, 1916, to property described in Policy No. T-16214, issued at its H. O. F. D.' Prairie Grove, Ark., agency, and said policy is hereby reduced in the amount of claim $95. To the National Union Fire Insurance Company of Pittsburgh, Pa. Claim, $95.14.
“Discount, $.............................Net $95.14.
“Nelson Reid, “Assistant Secretary.”
The draft was endorsed by W. J. Vawter and C. M. Buttry, school directors of School District No. 60, and the proceeds thereof were apportioned among the parties who had assisted Snodgrass in repairing the building. Jones, the agent of the company, and Vawter and Buttry, directors of the school district, had each performed some labor for Snodgrass during the time he made the repairs. The proof of loss, based upon the cost of the repairs, and the draft issued and cashed by the directors and expended in the payment of repairs, was taken by the parties under the belief that the building had been restored to its former condition. The undisputed proof, however, disclosed that the repairs were not substantial in nature and that the building began to slip from the foundation in a few days after the repairs were made. It continued to move toward the north until it became necessary to prop it with logs, and, at or about the time of the institution of this suit, was from five to ten inches out of plumb and unfit for use. It is in evidence that a second injury occurred to the property in June, and proof of loss and payment for the damage done by the second wind storm was made in the same manner as the first: This last damage, however, was of little moment, the expense of making the repairs only amounting to $5. The real damage done to the building resulted from the wind storm on May 20, 1916. The draft issued in payment of the damage caused by the wind storm on May 20, 1916, was in effect a receipt, contractual in nature. It was recited in the draft that the .payment of $95.14 was in “full satisfaction, compromise and indemnity for all claims and demands for loss and damage by storm, May 20,1916, to the property described in the policy.” The law as to the effect of receipts in full settlement and compromise of claims or accounts is well settled in this State. The rule announced in Burton v. Merrick, 21 Ark. 357, is as follows:
“A receipt expressed to be in full of all demands is only prima facie evidence of what it purports to be, and upon satisfactory proof being made that it was obtained by fraud, or given under a mistake, it may be inquired into and corrected in a court of law as well as in equity. But where the receipt is introduced by the party relying on it, and there is no attempt from the other side to prove that it was obtained by fraud, or given by mistake, it must necessarily operate in the particular case as conclusive evidence of what it purports to be on its face.”
This rule has been affirmed from time to time in subsequent decisions. Fletcher v. Whitlow, 72 Ark. 234; Kahn v. Metz, 88 Ark. 363; Cache Valley Lumber Co. v. Culver Co., 93 Ark. 383. The proof of loss was made un der the belief that the building had been substantially and permanently repaired. The compromise was made and the draft or receipt was issued and accepted under the same belief. It can be said with certainty in the light of the facts in this case that the compromise was made and the receipt or draft executed and received under the mutual mistake of all parties concerned, that the building had been restored to its former condition. The instant case falls clearly within the exception to the rule to the effect that a receipt is not absolute or conclusive if given under a mistake. A written contract executed under mutual mistake of the parties would, like a receipt, be subject to inquiry and correction in a court of law as well as in equity.
(7) Lastly, it is insisted that the court erred in permitting testimony as to the condition of the school building on the 1st and 15th days of February, 1917, some seven months after the building was damaged. Immediately after the building was repaired, it began to slip and lean by degrees, and its condition became worse as time progressed. It received a second slight damage in June, but it is very clear under the evidence that the, coj. dition of the building in February was due to the damage sustained in May and not in June. The damage in June was inconsequential and so slight that its condition in February could not be traced to the damage received in June. The damage done in June was repaired at an expense of only $5. We think its condition in February, 1917, was fairly traceable to the damage done on May 20, 1916, and not too remote in time to be established by evidence. The judgment is affirmed. | [
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WOOD, J.
Miss Mae Smithson was a school teacher. She taught school at Ponder, Missouri, where she met George Holt at Sunday school. They became “sweethearts,” and he visited her frequently while she was teaching school at the school house at Ponder, Missouri, and also at her home in Reyno, Randolph County, Arkansas. Holt asked Miss Smithson to marry him and she promised to do so if he would defer the matter for two years, giving as her-reason for the delay that she was then not twenty-one years old, and that her mother was a widow and needed her assistance, and promised that if he would wait for that time and they still loved each other she would marry him. He pressed his suit, and she finally told him that she had changed her mind and did not love him as he deserved to be loved, and therefore refused to marry him. Holt professed still to be her friend and told her that he would do anything he could for her, and that he thought he could get her another school near Warm Springs when her time was out with the school she was then teaching. He wrote her two letters, dated at Warm Springs, in which he represented that the directors were his friends and that he had interviewed them in her behalf and that they had promised to employ her to teach the school, but before they did so they wanted her to come up to Warm Springs so they could see her and arrange the contract. Holt arranged with Miss Smithson to meet her at Pocahontas on a certain day and to take her to Warm Springs. They met in Pocahontas on that day and started out from Pocahontas about 3:30 o’clock in the afternoon in a two- horse buggy for Warm Springs, which was a distance of about 18 miles. Dark overtook them, and, after driving for quite a while, Holt detoured from the road they were traveling and took a dim road through a woody place. When they arrived at a certain place he stopped the team, drew a gun on Miss Smithson, told her he had not got any school, and never had, and that he was simply carrying out a plan to take her life. He asked her to allow him to have .the privilege of sexual intercourse with her, and upon her resisting he continued his threats and intimidation until finally she lost consciousness and he had intercourse with her, which she could testify as a fact from her painful condition which she realized after she regained consciousness and the condition of her clothes.
The above is a condensed statement of the essential facts upon which Holt was indicted for the crime of rape, was convicted of an assault with intent to rape and sentenced to imprisonment in the State penitentiary for a period of twenty-one years, and from the judgment of the court he prosecutes this appeal.
The defendant admitted the intercourse, and set up and testified that it was obtained by the consent of the prosecutrix.
There is an exceedingly voluminous record, and the motion for a new trial assigns seventy-six grounds of alleged error in the rulings of the court in admitting and rejecting testimony and in the granting and refusing of prayers for instructions. We have examined all these and find no reversible error in any of them, except as set forth in the 68th assignment, which is as follows:
“The jury, disregarding the instruction of the court to the effect that they were to remain together and in a body at all times and would not be permitted to separate for any purpose until after the rendition of their verdict herein, on the evening of July 25th, during the progress of the trial herein, during a street concert, when there was a crowd of perhaps two hundred people on the street, separated and mixed and mingled with such crowd, indiscriminately. ’ ’
In support of this assignment of error, the appellant filed the affidavit of Dee Mock, who stated that, “during the evening of July 25, 1917, while standing on the pavement south of the court square in said town (Pocahontas) listening to the music of a street concert, which had attracted a large crowd of people, my .attention was called to the fact that the trial jury, which had been empaneled to try the case of the State of Arkansas v. George Holt, charged with rape, alleged to have been committed on the person of one Mae Smithson, was present with the crowd of people, and some of said jurors had separated themselves from their fellow jurors and were mingling with said crowd of people, while another one of said jurors separated himself from his fellow jurors and walked several feet away to where a gentleman was sitting in his automobile and carried on a conversation with the gentleman for several minutes. I do not know the subject of such conversation, nor do I know that the jurors who were mingling with said crowd of people spoke to any of them, but I know that a large number of said crowd of people were strongly prejudiced against said George Holt.”
The affidavit of S. N. Bailey was also read, which states that “on the evening of the 25th of July, 1917, while the jury selected in said cause (State v. George Holt) was in a body on the streets of said town (Pocahontas), a street concert was in progress in the street just south of the court square; that a large crowd of people had assembled at said place attracted by the music; that while enjoying said music, I noticed several jurors separate themselves from the other jurors and mingle with the crowd there assembled, for several minutes. I do not know if any words were passed between any of said jurors with any one in said crowd, but do know that numbers of people in said crowd were strongly prejudiced against said George Holt.”
No affidavits were introduced on the part of the State hy the jurors, the officer in charge of the jury, or others, to controvert the truth of the statements contained in the above affidavits, and there were no affidavits on the part of the jurors who tried the case to the effect that they had not had any conversation with anyone concerning the case and had not heard it discussed, and, in short, that nothing) h)ad occurred on the occasion mentioned which in any manner influenced them in the rendition of their verdict finding appellant guilty of the crime charged.
In Ferguson v. State, 95 Ark. 428, the facts were that after the case was in the hands of the jury to deliberate upon their verdict, and while they were in the custody of the officer, when the jury were passing a certain store in the town of Magnolia one of their number left his fellows and went to the rear of the store. The remaining members of the panel and the officer in charge passed on by the store to the corner of another building and remained there until the juror who had separated from them returned. The juror .who left his fellows was out of their sight until he returned to them. . The court, speaking of the facts there disclosed, quoted from Maclin v. State, 44 Ark. 115, 119, as follows: “But it has long been the rule of this court in case of felony that separation of a juror from his fellows pending the trial casts upon the State the burden of showing that no improper influence was brought to bear upon the juror during his absence. In other words, the mere fact that a juror separates from his fellows, without the order of court, is prima facie ground -for a new trial, unless it affirmatively appears that the separating juror was not subjected to any noxious influence.” The court, continuing, said: “The object of this rule is apparent. The jury are kept together, and an officer is put in charge of them and directed to see that they do not separate to protect the defendant against outside influence. They are not allowed to have any communication with outside persons with re spect to the guilt or innocence of the defendant on trial, and it is the duty of the officer in charge to see that they do not. This protection is due to the defendant, and the State should see that he receives it. It is not expected of him to employ someone to watch the jury and report any misconduct on their part. Hence, when they separate the burden is upon the State to show, by circumstances or directly, that the absent juror was not subjected to any injurious influence.”
Now, the uncontroverted facts here disclose that the jurors who had been instructed to not separate from their fellows while deliberating upon their verdict, and who had been placed in the custody of an officer charged with the duty to see that they obeyed these instructions of the court, separated themselves and mingled with a large crowd of people, a large number of whom “were strongly prejudiced against George Holt;” that they mingled with the crowd for several minutes and one of the jurors went several feet away and carried on a conversation with a gentleman for several minutes.
If there were a large number in the crowd with whom the jurors mingled who were strongly prejudiced against the appellant, who can say, in the absence of evidence to the contrary, that members of the crowd so strongly prejudiced against appellant did not avail themselves of the opportunity thus presented to make remarks, concerning appellant and the crime with which h'e was charged, so derogatory in character as to inflame the minds of the jury against him. A more flagrant disobedience of the orders of the court could rarely occur, flor the evidence shows a complete separation of all the jurors and an opportunity for, each of them to have heard things said that might have greatly influenced and prejudiced their minds against appellant. The very object of the rule is to prevent the jury from being subjected to such possible sinister influences.
Rape is a crime so heinous that generally the mere charge of itself is sufficient to set ablaze the minds of the public in the community where the crime is alleged to have occurred against the accused victim. Hence, courts usually adopt, and are justified in adopting, most stringent methods in order to insulate the jury, as far as possible, from any current of popular prejudice. Here the record shows they were brought in direct contact with it. When the appellant proved that they might have been affected by it this made a prima facie case against the purity of the verdict and was sufficient to cast the burden upon the prosecution of upholding its integrity.
As there was a palpable disobedience of the instructions of the court, both on the part of the jurors and the officer having them in custody, with no word upon the part of the State to show by the jurors themselves or others that they emerged from the poisoned circle without contamination, their verdict has been impeached and the appellant, on this account, must be awarded a new trial. See, in addition to cases above, Vaughan v. State, 57 Ark. 1, and other cases cited in appellant’s brief.
We need not discuss other assignments of error. The alleged errors in regard to refusal to admit certain expert testimony, and as to the remarks of counsel, we assume will not occur on the new trial, and the other assignments are not of sufficient importance to call for a discussion.
The judgment is, therefore, reversed, and the cause is remanded for a new trial on the charge of assault with intent to commit rape. | [
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HART, J.,
(after stating the facts). (1) Appellants assign as error the action of the eonrt in giving the following instruction: -
‘ ‘ If you find from the testimony in this case that the defendants knew, or by exercise of reasonable care should have known, that the salary account of R. E. Harrison was overdrawn, and, with such knowledge, continued to pay drafts drawn upon them for his salary; and if you further find that the plaintiff did not know that such account was. overdrawn and had no such information as would cause an ordinarily prudent person to believe that said account was overdrawn, then you will find for the plaintiff. ’ ’
They insist that under this instruction appellee when charged with negligence in the performance of his duties as general manager is allowed to interpose the defense that the defendants were guilty of contributory negligence in not keeping watch on their agent’s wrong doing. In other words, they claim that under this instruction a premium was placed on the wrong doing of the agent. We do not agree with counsel in this contention. Harrison was a first cousin of appellants and had charge of keeping the plantation’s accounts for them. The drafts which were drawn by appellee in Harrison’s favor for salary nearly all prior to the year 1914, showed on their face that they were for salary. These drafts were turned in to appellant for examination annually. If any examination had been made by appellants they would have seen at the end of each year that Harrison had overdrawn his account. By continuing to pay drafts for his salary when they knew that his salary accounts were overdrawn or were in possession of facts which would lead to such knowledge, they ratified the action of appellee. It was the duty of appellants to have examined the drafts showing overpayments of salary to Harrison and they will be deemed to have been in possession of the knowledge which such an examination would have imparted to them. The continued payment of drafts drawn by appellee in favor of Harrison for Ms salary after this, as above stated, constituted a ratification of appellee’s action. Hence the instruction was not erroneous.
(2) It is next insisted by counsel for appellants that the court erred in refusing to give the following instruction :
“No. 6. Even if the jury find from the evidence that the plaintiff did not know what the salary of E-. E. Harrison was, still this fact would be no answer to the defenant’s counter-claim, because unless the plaintiff had this information he should not have drawn the drafts. ’ ’
There was no error in refusing tMs instruction. It is true as stated by counsel for appellants that the instruction was in the language of the court on the former appeal in this case but it is not always proper to use the language of the court in an instruction. The court in using this language was considering the subject of a directed verdict for appellee. The court said in testing the, correctness of a directed verdict it must view the evidence in the light most favorable to appellants and on that account must assume that appellee exceeded his authority in drawing drafts in favor of Harrison when his salary was overpaid. The court further stated that it was no answer to this contention for appellee to say that he did not know the amount due; for unless he had this information he should not have drawn the drafts. The language was correct in the discussion of the point then under review by the court. It would be incorrect for the court to have given the instruction as asked, for the instruction did not take into consideration the question of ratification at all and this was the main defense to the counter-claim relied upon by appellee.
Counsel for appellants also assign as error the action of the court in refusing to give the following instruction :
‘ ‘ The jury are instructed that if they find from the testimony that the plaintiff was the agent for the defendants, and, as such agent, had charge of the business of managing the plantation of the defendants, and, if you further find from the evidence that the plaintiff was guilty of any fraud or unfaithfulness in the transaction of his agency, he can not recover in this action, and your verdict will be for the defendants.”
" The court modified, by adding to the end of the instruction, “for the amount of the counter-claim,” and this modification, it is insisted, is error. To sustain this contention they cite the opinion on a former appeal in which the court quoted from the case of Doss v. Long Prairie Levee District, 96 Ark. 451, as follows:
“The rule is well settled, both by the text-writers and the adjudicated cases, that where the agent is guilty of fraud, dishonesty or unfaithfulness in the transaction of his agency, such conduct is* a bar to the recovery by him of wages or compensation.”
That case was only.cited as tending to show that the view of the court was that unliquidated damages flowing from a tort could be set up by way of a counterclaim. The facts in that case were essentially different from those in the present' case. There it was charged and evidence was adduced to prove that the chief engineer of a levee district had conspired with the construction company to defraud the levee district in the construction of the levee. It was held that where the agent is guilty of actual fraud towards his principal and causes his principal trouble and expense of litigation in order to secure his rights, the agent forfeits his' rights to compensation for his services as the penalty for his fraudulent conduct.
No such state of facts exists here. There is no fraud shown or attempted to be shown on the part of appellee. There is no proof tending,to show collusion between him and Harrison in drawing the drafts for Harrison’s salary. The most that can be said with reference to his eon- duct is that he negligently permitted Harrison to overdraw his salary. There is no testimony tending to show that his conduct in this respect was fraudulent. Therefore the rule anoúnced in the ease just cited does not apply and the court was right in modifying the instruction.
(3) Finally it is contended that the court erred in allowing appellee interest on yearly balances. Appellee was employed by the year to manage the plantation of appellants. His compensation was due at the end of the year. According to his testimony he refrained from collecting his salary during the last three years of his service in order to accommodate the appellants. It would have been better to have calculated the interest on these amounts up to date of the rendition of the judgment against appellants for a stated sum but the language of the judgment amounts to this and no prejudice resulted to appellants in this respect.
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of debt, by Anderson against Barnes, Morris and Bradshaw, upon two writings obligatory, each for the payment of six hundred dollars.
The only question presented by the record, is as to the sufficiency of the plea of partial failure of consideration, interposed by the defendant, Barnes. The plea alleges substantially as follows:
That the writing obligatory sued' on — together with a certain other writing obligatory, for the sum of six hundred dollars,, which had been paid — was executed and delivered by Barnes and his co-defendants, for and in consideration of a certain-tract of land sold to him by one Ringstaff, and of a certain improvement pointed out and represented by the vendor to be upon the land, consisting of a dwelling and out houses, and. twenty-two acres of cleared land. That the vendor pointed out the land, but did not trace the lines, and the defendant Barnes, relying on the truth of the representation, was induced to make the purchase and execute the writings obligatory; when in fact, the improvement — except about two acres of ground, cleared and fenced — was not on the land, but was situate on certain other land adjoining thereto, belonging to the State, ¡and commonly called swamp land. That the improvement was ■estimated by the defendant, Barnes, at the time of the purchase, to be worth, and was worth seven hundred dollars, etc.
The Circuit Court sustained a demurrer to the plea, and the defendant rested.
It was held in Wheat use etc. vs. Dotson, 7 Eng. 699, that in an action on a writing obligatory, for recovery of the purchase money on the sale of real estate, a partial failure of consideration is the subject of recoupment, when the partial failure is in the quantity or quality of the property sold, but not when the partial failure is in the title. The counsel for the appellee, conceding the soundness of the rule, insists that the facts set up in the plea, show no failure in the quantity or quality of the land, but merely a misrepresentation as to its boundaiy, and that the appellant can have relief in a Court of equity only.
The Court thinks differently. That the alleged false representation related to the quality of the land, we think there can be no doubt. To confine the term “ quality,” in this connection, to natural qualities, such as fertility of soil and the like, would be a narrow construction. It must be understood in a more comprehensive sense, as embracing not only qualities essentially inherent in the land itself, but also adventitious qualities— qualities extrinsically added, such as preparation for cultivation or any other material improvement made upon the land. This is the received sense in which the term is used when applied to realty. Thus, it is laid down, that in an “ action brought for recovery of real property, its quality should be shown; as whether it consists of houses, lands or other hereditaments, and in general it should be stated whether the lands be meadow, pasture, or arable,” etc. See Stephen on Pleading p. 296; Bouvier's Law Dictionary “ quality.”
According to the decision of this court in Wheat use etc. vs. Dotson, supra, a party is not required to resort to a Court of equity, but may make his defence at law, except in cases where the partial failure goes to the title; and' there is nothing on the face of the plea before us which raises any question touching the title. In Sandford vs. Handy, 23 Wend. 268, which was covenant for the purchase money, the Supreme Court of New York held that the defendant might recoup the damages by showing a false representation as to the location of the land, made under circumstances and in a way calculated to mislead the defendant.
This case is directly responsive to the argument of the counsel.
In sustaining the demurrer to the plea, the Court erred. The judgment must therefore be reversed, and the cause remanded for further proceedings. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
It appears from the transcript in this case, that on the 4th of August, 1856, Philip Derton presented a petition to the judge of the Bradley Circuit Court in vacation, for a writ of certiorari, stating in substance, that Charles S. Boyd died in said count}', leaving a considerable estate real and personal, upon which administration was granted, by the Probate Court of the county, to F. A. Boyd; that afterwards petitioner purchased, and obtained transfers from the legatees of all their interest in the estate, which transfers are exhibited; that on the last day of the April term, 1856, of the Probate Court, Samuel A. Boyd filed in the office of the clerk of said court an account against said estate for $300, which had been examined and allowed by the administrator, and which, on the same day that it was filed in the clerk’s office, was presented to, and ordered by the court to be allowed and classed against the estate, contrary to law, etc.; that the account should not have been presented to the court for allowance and classification until the next term of the court after it was filed in the clerk’s office; that the account was with out date, and unjust; that petitioner had a good defence to offer in opposition to the allowance and classification of the account, at the next term of the court after it was filed in the clerk’s office, but his defence was precluded by the allowance of the claim on the day that it was filed, etc. Prayer that a transcript of the proceedings of the Probate Court in the matter be removed into the Circuit Court, by certiorari, aud that the judgment of allowance and classification be quashed.
A transcript of the order of the Probate Court allowing and classifying the account was exhibited with the petition.
On the presentation of the petition to the circuit judge he endorsed upon it an order directing the clerk of the Circuit Court of Bradley county to issue a writ of certiorari to the judge of the Prohate Court, commanding him to send up to the ensuing term of the Circuit Court a transcript of the record of the proceedings and judgment of the Probate Court in the matter etc.
It does not appear from the transcript before us, that any writ of certiorari was issued in obedience to the order of the circuit judge.
At the following term of the Circuit Court (September, 1856,) it appears that the case stood upon the docket thus:
“ Philip Derton, Appellant,
vs. Appeal from Prohate Court.
Samuel A. Boyd, Appellee,”
The record states that the parties appeared, and the plaintiff moved that the case be continued, which motion was overruled; “and on motion of the defence the certiorari in this case is dismissed for want of jurisdiction.” Whereupon judgment was entered in favor of Boyd against Derton for the costs in the case.
At the next term of the court, Boyd appeared and moved the court, the record states, “to remit the judgment for costs erroneously rendered by the clerk at the last term of this court in this case, which motion is sustained, and said judgment expunged from the record.”
Derton brought error.
It may be remarked that, under our practice, the circuit judge should have ordered the writ of certiorari to be directed to the clerk of the Probate Court, and not to the judge, it being a court of record, and the clerk being the custodian of its records, and the keeper of its seal, etc.
No writ of certiorari having been issued in pursuance of the order of the circuit judge, and consequently no transcript of the record of the proceedings and judgment of the Probate Court, in the matter in controversy, having been removed into the Circuit Court, though the case was docketed, there was nothing before the court, at the return term, for adjudication.
The plaintiff in error, upon the petition on file and the bond executed by him, might have moved the court for an order directing the certiorari to be issued returnable to the next term; and on his failure to ask for the writ, the court should have simply stricken the case from the docket.
There was no want of jurisdiction of the subject matter in the court. If the plaintiff in error, by his petition for certiorari made a prima facie showing that he was interested in the estate, that the judgment of the Probate Court, allowing and classifying the claim of the defendant in error, was irregular and that there was no opportunity for an appeal, it was perfectly competent for the Circuit Court, in the exercise of its constitutional power of supervision over the Probate Court, to cause a transcript of the record of the proceedings and judgment of the Probate Court to be removed into the Circuit Court by the writ of certiorari; and on the return of the writ to quash the judgment if found to be irrregular, or to affirm it, if it proved to be regular, etc. Carnall vs. Crawford County, 6 Eng. 613.
On the supposition that the court properly dismisssed the case for want of jurisdiction, it was an error to render judgment for costs. Levy vs. Shurman, 1 Eng. 182. But the court had not the power, at the next term, to vacate the judgment. Ashley vs. Hyde et al., Ib. 92. The expunging process is not practiced in the courts. King et al. vs. State Bank, 4 Eng. 185.
The question whether the judgment of the Probate Court was irregular or not, is not properly presented for adjudication, by us, in the attitude which the case now occupies.
The judgment must be reversed, and the cause remanded for further proceedings. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
On the 26th of November, 1856. the plaintiff, a minor, obtained from the auditor of public accounts a donation deed to the north-west quarter of section twenty-eight, in township seven, north of range fifteen west, in Conway county. But at this time, and for several years before, the defendant owned an improvement on the land, ‘ whereby, under section 19, chapter 101, Gould's Digest, it became necessary for the plaintiff to pay to the defendant double the value of the improvement, and to do so within three months from the deed, and take a receipt from the defendant of the amount of money paid for the improvement, and also, within thirty days from that time, to file the receipt with the auditor.
The plaintiff did not pay, or offer to pay, the defendant for his improvement.
On the 27th of March, 1857, the defendant applied to the auditor to purchase the land, filing his affidavit with the auditor, in which he|stated thatahe owned an improvement on the land at the time it was donated to the plaintiff, and that the plaintiff had not paid or tendered to him double the value of his improvement.
The auditor thereupon allowed the defendant to purchase the land by paying all arrearages of taxes charged on it, amounting to one hundred and sixteen 35-100 dollars. The defendant paid the money to the auditor, and the auditor executed a deed to him for the land as if it had never been donated, under the authority of the section of the statute before cited.
The case is a conflict as to the validity of the two deeds, the plaintiff praying that the defendant’s deed be canceled. The court below dismissed his bill, and he appealed.
The plaintiff obtained the land as a gratuity from the State, subject to the condition prescribed by the law, of paying double the value of the defendant’s improvement.
Failing in this his right was forfeited, and the auditor properly sold the land to the defendant, whose title to it is good against the plaintiff.
We have not overlooked the argument of the counsel for the appellant, that the defendant had no improvement on the land when it was donated to the plaintiff, from the improvement having reverted to the State upon the defendant’s failure to preserve his donation title of 1855, and therefore that the plaintiff was not obliged to pay the defendant double the value of the improvement. However that might be determined, upon suitable allegations, we need not say, for the first donation title and its forfeiture are not brought into the case, only as evidence in the agreed state of facts. There is no pleading in the case setting it up, on which the evidence can stand for consideration.
The case made by the bill is the plaintiff’s donation deed, and the defendant’s subsequent purchase from the auditor, which is alleged to be void. The case of the answer is, that defendant owned an improvement on the land when plaintiff obtained a donation deed to it, which was not paid for, for which the auditor’s deed of March, 1857, was procured by the defendant. Thus, the foundation of the appellant’s argument, however good it may be in itself, has no pleadings upon which to rest.
Let the decree be affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Moreland had been the administrator of Wiley Beasley, and in defending law suits as such administrator, had incurred costs, as he claimed, to the amount of one hundred and seventeen dollars and ninety cents.
Gilliam had become the administrator of Lucy Beasley; whereupon without presentation of the claim to Gilliam, and without notice to him, Moreland presented his petition to the Probate Court of Pulaski county, at its October term 1857, to have the aforementioned sum allowed to him out of the estate of Lucy Beasley, as expenses of the administration of Wiley Beasley’s estate.
The Probate Court sustained the petition, and ordered the allowance to be made.
On a subsequent day, at the same term, Gilliam appeared in the Probate Court, and prayed and obtained an appeal against the allowance to the Circuit Court.
There the judgment of the Probate Court was reversed, and on hearing of the case in the Circuit Court, judgment was rendered against Moreland.
No reason is shown why Lucy Beasley’s estate should be charged with the account presented in Moreland’s petition. We do not see how expenses of administration could be allowed against her estate, but at the instance of its representative, and for moneys paid out in the. course of the administration of that estate.
No bill of exceptions was necessary to give the Circuit Court jurisdiction, the error appearing upon the record of the Probate Court. Dempsey vs. Fenno, 16 Ark. 493; Jones vs. Jones, 21 Ark.
The judgment of the Circuit Court is affirmed. | [
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Mr. Justice Faiiichii.d
delivered the opinion of the court.
Jones and Cummins sued Barrett on a note, charging it to be made on the first of January, 1858, which, when produced an oyer, had no date. Barrett demurred for the variance, and his demurrer was overruled; he pleaded nil d:bet and payment, to which the plaintiff replied.
Upon his failure to obtain a continuance of the case, on application made by him, he thought best to withdraw his pleas, which the court gave him leave to do, and rest upon his demurrer, and the court gave judgment against him.
"We do not approve of this mode of pleading backwards in order to have the benefit of a defence strictly technical, if it be any defence at all, yet the court below having permitted it, the case must be considered as resting upon the demurrer.
If the allegation concerning the note had been that it was made on the 1st January, 1858, due at one day from date, but that the note itself bore no date, that would have been a subject of proof, and no question of variance could have been raised upon the note.
And bringing the note upon record by oyer, it then becomes a part of the declaration; and the whole pleading, that is, the original declaration and the note, is equivalent to the allegation above supposed; the defendant was put to a plea to raise any question about the date of the note; otherwise his demurrer would have the effect of a simple denial of a fact, which cannot be.
Let the judgment be affirmed. | [
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Mr. Justice Fairchild
delivered the,opinion of the court.
To assumpsit for labor brought by Hodgins against Gaster, the latter pleaded non-assumpsit, set-off and recoupment, and issues upon these pleas were submitted to the jury. The verdict and judgment were for the plaintiff in the sum of one hundred and ten dollars. Defendant moved for a new trial, for the verdict being against evidence, which the court overruled.
The evidence shows conclusively that the plaintiff and defendant had a settlement, and that the defendant paid plaintiff more than his own or all the evidence in the case proves he had earned.
The verdict was not only without, but directly against the evidence, and a new trial should have been granted. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Kayser commenced an action of attachment against Moehring, on an account, before a justice of the peace. Before the return day of the writ of attachment, Moehring filed a bond under the statute for the release of the property attached; and the attachment was dissolved, leaving the cause to be proceeded in as if begun by summons. On the 7th of February, 1855, the return day of the attachment, Moehring filed his set-ofF before the justice of the peace that had charge of the case, on which day the parties appeared, the defendant in person, and agreed to a continuance of the case till the 10th of March, 1855. On that day the trial was had, and the justice of the peace entered in his docket, that there being no evidence to establish the accounts of the plaintiff and of the defendant, the plaintifF called upon the defendant to testify, and had him summoned for that purpose, that upon his failing to appear or testily, the plaintiff was sworn, proved his own account, proved part of that of the defendant, and disproved the remainder, when judgment was given against the defendant according to the evidence.
On the 17th of March, 1855, the defendant prayed an appeal, which was granted to him, upon his filing the affidavit and recognizance required by law.
The justice’s transcript was filed in the Circuit Court clerk’s office, the 5th of April, 1855.
At the February term 1858, of the Circuit Court, Kayser moved to dismiss the cause, because the judgment was taken by default, and no application was made to set it aside within fifteen days from its being rendered.
Before and after this time, various proceedings were had, with a view to have the justice of the peace amend his transcript, so as to show, in terms, that the defendant did appear by attorney, and contest the plaintiff’s demand upon the day of trial, but the justice refused so to certify. The defendant then wished to contradict the return of the justice to the rule served upon him, by proof, and to examine him individually, he then being out of office, upon interrogatories, which the court refused to allow.
The court, at the same term, sustained the motion of Kayser to dismiss the case, for want of jurisdiction, and Moehring appealed to this court.
He now contends that he ought to have been allowed- to disprove the truth of the justice’s return, by showing that he was present on the day of trial, contesting the plaintiff’s demand; and that the judgment of the justice of the peace was not a judgment by default, consequently that his appeal to the Circuit Court was well taken; and that the Circuit Court improperly dismissed him from the court.
The court below was right in refusing the appellant leave to contradict the transcript of the justice, the correctness of which was affirmed by him in response to the rule served upon him.
Within the scope of its jurisdiction the transcript was a record, and, like any other record, conclusive of the facts that were or should have been therein mentioned.
And if contrary to the legal maxim, the record did not disclose the truth, it must, nevertheless, in law import verity; and the remedy of an injured party must be sought in some other way than by disputing a record, that public policy and settled law require to be held conclusive between the parties.
And it is equally clear that the court erred in dismissing the case, as it had jurisdiction of it, and ought to have tried it on its own merits. For the judgment given by the justice of the peace was not a judgment by default, and the appeal therefrom was properly taken, without any application to set it aside.
Before the return day of the attachment the defendant had appeared to the action, by giving bond to dissolve the attachment. On the day fixed for trial, he appeared in person, filed his set-off, and consented to a continuance of the case. On the day of actual trial, judgment was not rendered upon his default, but upon testimony that established part of the set-off, disproved the residue, and established the plaintiff’s demand. The judgment was given on a contested case, and the defendant had thirty days in which to appeal from it, without being obliged to apply against it within fifteen days.
Judgment reversed, with instructions to overrule the motion to dismiss for want of jurisdiction, and to set'the case for trial anew in the Circuit Court. | [
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Mr. Justice Compton
delivered the opinion of the court.
This was an action of debt by Lewis, against Davis and Slosson, on two writings obligatory, each for one thousand dollars, the one due and payable on the 2d August, 1853, and the other on the 2d August, 1854. By consent, the cause was submitted to the court for trial, upon an issue of fact, and the finding was for the defendants. Motion was then made for judgment non obstante veredicto., which was overruled, and the plaintiff prosecuted his appeal to this court.
The facts relied on in the defence, as set out in the special plea interposed by the defendants, are, that the writings obligatory sued on were executed to secure the payment of a part of the purchase money for a tract of land, under the following circumstances: The plaintiff represented to the defendants that he held the equitable title to the land in virtue of a title-bond executed to him by one Oliver C. Wood, and that he had a lawful right to convey the same; whereupon, on the 4th August, 1852,' the plaintiff and the defendants entered into a verbal contract, by which it was agreed that the plaintiff should sell the land to the defendants, assign to them the title-bond of Wood, and within one month next after the date of the con tract, make, or cause to be made to them, “ a good and valid title to the land.” In consideration whereof, the defendants agreed to pay the plaintiff' four thousand dollars, five hundred of -which they were to pay down, and execute .their writings obligatory for the residue, which was to be secured by a mortgage on the land.
Pursuant to, and at the date of this contract, the defendants paid the five hundred dollars, and executed the writings obligatory sued on, for the residue of the purchase money, to secure the payment of which, they also mortgaged the land. And the plaintiff, on his part, assigned to the defendants the title-bond of Wood, but did not, within one month next after the making of the contract, nor at any time afterward, make, or cause to be made, to them a good and valid title to the land, nor could he do so for the reason, as stated in the plea, that he had no title whatever, legal or equitable, to the lands which he had thus agreed to convey.
The plea further avers that the defendants offered to deliver up the title-bond, cancel the assignment of the plaintiff, and surrender possession of the premises.
Upon an agreement for the sale and purchase of land, where the stipulations by which the vendor undertakes to make title, and the vendee to pay the purchase money, are dependent, the vendor cannot maintain an action for the purchase money unless he has performed, or offered to perform his part of the contract. In all such cases, if the mutual stipulations of the parties are set forth in the instrument declared on, the fact of performance, or the offer to do so, must be averred in the declaration; and when the stipulations do not so appear, the defendant may plead the fact. So this court held in Smith vs. Henry, 2 Eng. 207. And whether the stipulations, in the case we are considering, fall within this rule, must depend upon the meaning and purpose of the parties, to be gathered from a rational interpretation of the whole contract. Atkinson vs. Richie, 10 East 530; 2 Par. on Cont. 41.
The sum of five hundred dollars was payable on the day the contract was made, which was one month before the expiration of the time allowed the plaintiff to make title. The promise by the defendants to pay this amount, was independent of the plaintiff’s agreement to convey at a subsequent period. They were to pay it when due and rely upon their remedy against the plaintiff in the event he should afterwards fail to make the title, and it was accordingly paid.
The writings obligatory sued on were due and, payable, as has been seen, the one on the 2d August, 1853, and the other on the 2d.August, 1854 — periods of nearly one and two years after the time when the plaintiff was to make a title to the land. Here, the stipulations were dependent, for it was the manifest intention of the parties, that a “good and valid title” was to be made before the defendants should be required to pay these last installments. The making of the title was, therefore, a condition precedent, the performance’of which, or the offer to do so, was first necessary on the part of the plaintiff, before he could maintain this action. Leonard vs. Bates, 1 Black/. 172; Brockenbrough vs. Ward’s adm’r., 4 Rand. 355. This condition precedent was not only not performed, but could not be, the plaintiff having no title, legal or equitable, to the premises.
It is insisted that the making of a good and valid title to the land within one month after the date of the contract, was not the entire consideration for which the writings obligatory were executed, and cannot, therefore, be pleaded as a condition precedent to their payment; because, the assignment of Wood’s title-bond to the defendants, and their possession of the land under the contract, constituted a part of the consideration.
In answer to this argument it may be remarked, that, taking a comprehensive view of the whole contract, it was obviously the design of the parties, that a valid title, by deed in fee simple, sufficient to pass the estate, should be made on the one part, and that the purchase money should be paid on the other. Nothing more or less was contemplated; nor does the contract, on a proper construction of it, show that anything else was to be done. The assignment of the title-bond was but a step towards the accomplishment of what the plaintiff, on his part, had undertaken to do, and a fruitless one it was, because the plea alleges he neither then, nor afterwards, had any title to the land. The defendants did not contract for the title-bond with the remedies, it and the assignment of it afforded against Wood and the plaintiff, as a part of the consideration for the purchase money. Nor can the possession of the land under the contract be treated as a part of the consideration. True, it has been decided in this court, that where a party contracts for, and receives a deed to land, with covenants of warranty, and the title fails, the purchaser cannot avail himself of the plea of total failure of consideration, unless there has been an eviction or its equivalent. McDaniel vs. Grace, 15 Ark. 487. But the rule does not apply in this case. The distinction is, that where the vendor has accepted a deed with covenants of warranty, the contract ceases to be executory — it is executed— and the vendee is held to have agreed expressly, of impliedly, to rely upon'the covenants in the deed, which cannot be resorted to until broken, and which are never broken without actual eviction, or its legal equivalent. In such a case the consideration is two-fold, that is, the present transfer of the vendor’s estate, and the future performance by himself and his heirs; when necessary, of the covenants of warranty, which is an undertaking that the purchaser, and those claiming under him, shall not suffer from any defect of title covered by the covenants, and this performance is never necessary or required by law while the purchaser is in possession. Hence, the doctrine laid down in McDaniel vs. Grace, supra. But where no deed has been executed, and there is a bond, or parol agreement^ only, for title, the contract for the sale and purchase remains executory — there are no covenants of warranty, the performance of which constitutes a part of the consideration, and if the stipulations are dependent, as in the case under consideration, the vendee though in possession, cannot be forced to part with his money unless the vendor is ready and able to make the title. Feemster vs. May, 13 Smedes & Mar. 275.
The court is of opinion that the matter alleged in the plea is a bar to the plaintiff’s action. The judgment must be affirmed with costs. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
When this case had been affirmed, determining the slaves in controversy to be the property of the appellant, under the law of possession of five years, 17 Ark. 222; the inquiry of what damages McDaniel had sustained by the injunction, and by the seizure of the negroes, was prosecuted in the court below, and resulted in an assessment, for the amount of which a decree was entered for McDaniel. The assessment was made by the judge of the court sitting as a jury, for that purpose, by consent of parties, and amounted to sixty-five dollars — McDaniel being dissatisfied with the amount of the decree to him, appealed, and the case is now here upon nothing but the sufficiency of the damages.
The negroes that were the subject of McDaniel’s claim for damages, were taken from him the 26th of January, and he came in possession of them again, under hiring from the sheriff, on the 8th of February, the next month — two of the negroes when taken were in the field, one was a cook, another a nurse, and others were children too small for field work.
If the hire of the negroes be the proper estimate of the damages sustained by McDaniel for the disturbance of his possession, ample allowance seems to have been made to him by the judge of the Circuit Court.
And, ordinarily, a loss sustained by a man for negroes being taken out of his possession, is what their labor would have been worth to him, had they continued in his possession. But upon the happening of other events that may be the direct consequences of the removal of negroes, other elements may enter into the calculation of losses, as if the negroes be removed in inclement weather, be injured thereby, or while removed contract disease or death from neglect, or if in consequence of their being taken away, that which they were working at, be wasted for want of attention, as if cotton could not be picked, grain or stock saved; in these and such like instances, the loss would not be made good by payment of the usual hire of the negroes; but because it directly flowed from their being taken away should be made good by him who took them without right.
Still damages to be recovered must be traceable to the act complained of as its direct proximate or natural consequence, must not be remote, speculative, involving enquiries that are collateral to the consideration of the wrongful act. Sedgwick on Damages, ch. 3. p. 112, 2d ed.; Mayne on Damages, 15; 2 Greenleaf Ev. sec’s. 256, 261; Crain vs. Petree, 6 Hill 524; Downer vs. Madison Co. Bank, ib. 650.
Two sorts of damages seem to be claimed by McDaniel in this case, and they aie made.up of a positive loss to him of the amount he paid for counsel fees in defending the original case» in the court below, and in this court; and of the estimated loss which he sustained in not being able to make a crop in Texas, in the year 1853, as he seems to think he could and would have done but for the hindrance of this suit; and of expens,es paid to a man whom he was obliged to hire to take his other negroes to Texas, because the original suit detained him in Lafayptte county, or in the vicinity.
We have not been able to find any reason for imposing upon Crabtree the payment of McDaniel’s counsel’s fees, that would not apply with equal force against the plaintiff in every unsuccessful chancery suit, whether an injunction or seizure of pro perty, were, or were not invoked, or obtained, as a mode of precautionary relief.
Questions may arise between principal and surety, between parties to covenants in deeds, in actions for an oppressive and illegal use of extraordinary legal remedies, in malicious and fraudulent suits, and in admiralty cases, in which the assessing tribunal, in the exercise of its power of visiting the wrong doer with exemplary damages, may include counsel fees in their estimate; yet it is not the less the general rule that a suitor must himself, and without compensation, bear the burden of charges for legal advice and defence of his suit. Sedgwick on Damages, 95, 100, 2d. ed.; Guild vs. Guild, 2 Metc. 232; Arcambel vs Wiseman, 3 Dall. 306; Stimpson vs. The Railroad, 1 Wallace, jr. R. 166, 172; Barnard vs. Poor, 21 Pick. 282.
A remark in Blakeney vs. Ferguson, 18 Ark. 354, and Edwards vs. Bodine, 11 Paige 223, are principally relied upon to sustain the claim of counsel fees made for McDaniel.
With regard to the latter case, it need only be said that the allowance of counsel fees was based solely upon a statute of New York, and rule of practice of its chancery court, and extended only to a prescribed and probably moderate sum for attendance of counsel to obtain a dissolution of an injunction.
In this case, the sum paid to counsel by McDaniel, and claimed from Crabtree,relates not alone toa motion to dissolve the injunction, but to the whole defence made b3r McDaniel in the Lafayette Chancery Court, and in this court upon appeal.
From the statement of the case in its published report, as well as from view of the transcript before us, we see that the claim made by Crabtree, and its resistance by McDaniel involved an enquiry into the existence and construction of the usages and laws of a foreign nation, an examination of much and conflicting testimony, and the effect of our five years possession law. These matters might, and would doubtless, have been examined and argued by counsel for McDaniel, if there had been no injunction or seizure of negroes in the case, and the award to McDaniel in the shape of damagés, for the disso lution of an injuction as compensation for the gross sum.paid by him for legal services in two courts upon the whole case, would not be well supported by the citation to the opinion of Chancellor Walworth.
The remark in Blakeney vs. Ferguson, referred to, was not made in the decision of that cause, but with reference to a supposititious case, seems to have been founded solely upon Edwards vs. Bodine, and is too indefinite in itself for authority; yet we are ^willing to qualify it by saying that, generally, counsel fees in ii junctions, as well as in general causes, ought no to be the subject of allowance against the opposite unsuccessful party.
Nor can that money be recovered which McDaniel expended in paying the wages and traveling expenses of the witness Dyer whom he procured to take his negroes to Texas, while he himself staid behind to make defence to Crabtree’s suit. Whenever a man contests a law suit, the contest involves a loss of time, a possible loss to his business, from which his attention is diverted, and the expenditure of money besides that paid to his lawyers.
■A farmer may be obliged to obtain a substitute for his own labor or oversight, a mechanic may suffer by his absence from his shop, and a trader may lose the opportunity of making some desirable bargain, but these are incidents to all hindrances in the usual pursuits of life, and are not to be taken into account as losses to be reimbursed by the party who has brought an unavailable suit.
McDaniel further claims, and this, in amount at least, is the most important claim, that heawas delayed about three weeks in sending his other servants to Texas, where he was about to take them when sued by Crabtree, that this delay caused him to lose making a crop in Texas in 1853, and that the crop, if made, would have been worth to him two thousand or twenty-five hundred dollars.
It is not explained how it is that a controversy respecting the title to seven negroes, three or four of them laboring hands, which did not require long personal attendance from himself till the issues had been made up, should have been permitted to have kept idle and upon expense, some thirty other negroes, including twenty working hands; but however that may be, the claim for this sort of damages is too speculative to be allowed.
If the principle of the claim were held good, its practical operation would cover many collateral enquiries; as the health of McDaniel and his negroes in the new climate, the general productiveness of the Texas soil whence the crop would have been made, the results of cropping for that particular year, depending upon or affected by frost, rain, drought, hail, wind, etc., and the probable freedom from interruptions of labor, which might require the introduction into the case of elements of social, political and material history, whose investigation might be entertaining, but hardly appropriate in an inquisition for damages.
In this case, as in other cases, the proper rule of damages is the injury sustained by the party, and at the time and place of the injury.
The injury sustained by McDaniel in Lafayette county, where and while the negroes were taken from him, is that for which he should have compensation. The direct injury was the loss of the labor of the negroes. What that was worth at that time and place he should have and nothing more, as no injury to the negroes has been proven. Smith vs. Condey, 1 How. 35; Loker 2 Damen 17 Pick. 288.
It is upon this principle that in admiralty cases, in collision of ships, the rules for compensation is the actual value of the ship or goods that are lost or injured — -the profits that the ship might have made had she gone on, without interruption, to her destination, are not to be computed. And generally profits of a disappointed adventure are not recoverable from the wrong doer that has caused the disappointment. Sedgwick on Damages, ch. III, p. 69-78; The Schooner Lively and Cargo, 1 Gall. 325; The Amiable Nancy, 3 Whea. 560. See Amestad de Rues, 5 Whca. 388.
We are not saying what compensation may be allowed as exemplary damages in actions of tort promoted by malicious motives, or for fraudulent purposes.
But this is no such case, from any thing that the papers inform us. It was simply a contest of ownership of the slaves, in which Crabtree had the same right to affirm his claim that McDaniel had to deny it and assert his own.
And although the remedial process sought by Crabtree was forcible and likely illegal, McDaniel was deprived of the use of his property but twelve days, and for that wa fairly compensated by the judge who assessed the damages. Such other losses as he sustained by his successful suit, were incidental or might be occasioned by his own improvidence, or misfortune, and are not to be attributed to Crabtree.
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Mr. Justice Rector
delivered the opinion of the Court.
This is a suit by attachment commenced by the appellant, against the appellee, before a Justice of the Peace in Sebastian county.
The appellant obtained, judgment before the justice, and the case was taken to the Circuit Court by appeal.
Upon the trial there, the appellant proved the sale and delivery of merchandise, to the amount of one hundred dollars, within Sebastian county, State of Arkansas.
It was also proven that Ewhartonah, the appelle, was an Indian, and Hicks was a white man.
And upon this proof, the Circuit Court, sitting as a jury, found for the appellee, and gave judgment accordingly; and Hicks appealed to this Court.
The question is> whether an executory contract, entered into in the State, by an Indian with a white man, can be enforced.
The Constitution of the United States gives Congress the power “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”
And by the 3d section of an act passed by Congress, 3d March, 1847, it is provided, amongst other regulations, touching the payment to the Indians of annuities, “ that all execu- “ lory contracts, made and entered into by any Indian for the “ payment of money or goods, shall be deemed and held to be “ null and void, and of no binding effect whatever.”
Commerce, by its universal signification, when applied to governmental polity, can mean nothing less than commercial in,tercourse, carried on between States or governments. And without a palpable perversion of the term, cannot be held applicable to ordinary business transactions occurring between individuals.
Will it be contended that under the- provision of the consti tution, the States delegated to the federal government the power to nullify contracts entered into by an alien with a citizen, or the citizen of one State with one who is a citizen of another State?
Certainly, nothing could more seriously trench upon the attributes of State sovereignty, than to concede the power in the general government to invalidate contracts entered into by the citizen within the borders of his own State.
And whether with those having citizenship elsewhere or not, it is quite immaterial.
Nor do we perceive the case to be essentially different, because as in this instance one of the contracting parties is an Indian.
The Indians residing west and contiguous to Arkansas, have, for many years past been an educated and intelligent people, many of them the owners of large estates, having a local government of their own, carrying on a foreign and internal trade with citizens from all parts of the Union, and having as much need for credit, and the validation of their pecuniary engagements as any other class of persons.
In the case of the United States vs. Cisna, the Supreme Court at Washington, say: that “When the Indians occupy a “ territory of limited extent, surrounded by a white population, “ which necessarily have daily intercourse with the Indians, “ and it becomes impracticable to enforce the United States “laws, the federal jurisdiction must cease.”
In several of the States, regulations have been passed forbiding the enforcement of contracts entered into with Indians; showing the repeated exercise of the power by the States to enact such laws.
And in New York (Murray vs. Wooden, 17 Wendell 531,) it is held, that a deed from an Indian, executed in accordance with the laws of that State, is valid — notwithstanding the inhibition of Congress, that no grant of lands from an Indian shall be valid’ unless made by treaty or convention, entered into in pursuance of the Constitution of the United States.
And so again, in New York, where the State law forbids the bringing of any suit against an Indian, upon penalty of treble costs, it is held that the disability must be pleaded. Hastings vs. Barber, 3 Barber's S. C. R. 492; Hastings vs. Farmer, 4 Cow. 293.
In the case of Gibbons vs. Ogden, wherein the Supreme Court of the United States have treated the subject now under consideration before us, elaborately, it is remarked, that “ the “ genius and character of the whole government, seem to be “ that its action is to be applied to all the external concerns of “ the Nation, and to those internal concerns, which affect the “ States generally, but not to those which are completely within “ a particular State, which do not affect other States; and with “ which it is not necessary to interfere for the purpose of exe- “ cuting some of the general powers of the government.
“ The completely internal commerce of a State, then, maybe “ considered as reserved for the State itself.”
Conceding the interpretation given by the Court below, to the act of Congress, above referred to; yet, in our opinion, Congress lacks the constitutional power to enact laws invalidating contracts entered into within the limits of a sovereign State, whether with an Indian or a resident of a sister State, or subject of a foreign government, this being one of the reserved rights retained to the States, and the people.
The case of Clark vs. Crosland, 17 Ark., furnishes no precedent in this. There the writing obligatory was executed by the Indian, in the Indian country, whereto the lex loci applied, as it does in this case, and must as a settled rule in all cases of a similar character.
Let the judgment of the Circuit Court be reversed with directions to proceed with the cause, in accordance with this opinion. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the court.
This is a bill in chancery, filed in January, 1857, by appellant, against appellee and Israel H. Adler. For a synopsis of bill, see Hirsch vs. Adler, just decided.
In March, 1857, the appellee filed his answer to the following effect:
Says, the partnership of Hirsch, Adler & Co. commenced in 1852, and continued until August, 1856. Denies .that appellant put eighteen hundred dollars in the partnership, or more than three hundred dollars; denies that complainant was much urged and solicited to become a partner. The partnership was dissolved by mutual consent, in August, 1856; bought appellant’s interest, for which he gave twenty-five hundred dollars; complainant sold his entire interest, and defendant was to assume all the debts of the firm and release complainant’s account of about one thousand dollars to the firm: denies that he bought on any other consideration than is in the bill of sale: admits that he executed the paper marked A., but denies that it was any part of the consideration, or that he made any representations, such as arc charged: did not believe the paper would bind him not to become Adler’s partner. The paper was not drawn' under the direction of appellee, but under the directions of appellant. After the sale, and after the bill of sale had been executed, appellant procured an attorney to prepare an assurance, which was done, and complainant being dissatisfied with it, another was prepared under complainant’s special directions. Denies that it was a part of the consideration for the sale. Exhibit A was given without consideration. Defendant has paid five hundred dollars on the thousand dollar note, and gave a new note for the balance, which has been sold by complainant. Denies ail fraud. He gave as much as he would have given any person for the property purchased, without reference to Exhibit A. Admits that he has formed partnership.as charged with Israel II. Adler, his co-defendant.
Attached to the answer is a demurrer, which reaches all parts of the bill not answered.
To the answer is annexed the bill of sale from appellant to appellee, marked Exhibit B., which is for the expressed consideration of twenty-five hundred dollars, and conveys all of appellant’s interest to Aaron Hirsch, and in which it is stipulated that appellee and Israel II. Acller shall pay all the debts.
The demurrer was sustained, and complainant excepted: complainant took leave to amend his bill, and defendant excepted.
Afterwards, the appellant filed his amended bill, at the September term, A. D. 1859, and moved the court to take said bill as confessed for want of an answer, and the defendant moved the court to take said amended bill from the files.
The gravamen of the original bill is, that the defendant made a contract not to do business as a partner with Adler, and had not complied with it, and complainant therefore seeks to have the contract for the sale of appellant’s interest rescinded for fraud in the making of it.
The complainant does not allege that Aaron Hirsch made any representations about the value of Samuel Hirsch’s interest, nor that Aaron Hirsch ever desired to buy his interest, nor that he wished him to retire from the partnership, nor that he suggested or desired that his abandoning any connection with Aaron Hirsch in business, should be made a contract and part consideration of the sale from Samuel Hirsch to Aaron Hirsch. On the contrary, Samuel Hirsch seems to have been acquainted with the business, and Aaron declined when Samuel proposed a dissolution, and it was only on a second application that he consented to buy, and that Samuel Hirsch well knew that Aaron Hirsch was satisfied with his connection with Adler, and desired that it should continue as before. He does not directly charge that there was fraud in the inception of the contract, but that if the exhibit did not bind Aaron Hirsch, then he had procured the contract by fraud.
This is making the fraud to depend on a process of reasoning, which the court do not understand. In the amended bill the appellant does not improve his case. He says that Aaron Hirsch was book keeper, and well knew the amount of assets^ and that he had confidence in Aaron, and therefore did not keep accounts himself of the sales and transactions; but he does not say that he had not access to the books, nor that his brother Aaron misrepresented the condition of the business, or that there was any thing unfair or unusual in his conduct in this respect.
He alleges that Aaron Hirsch fraudulently did not keep his contract, but this is not alone a sufficient reason to go into a court of chancery to set it aside, no more than that he fraudulently neglected to pay the note, or perform any other stipulation to be performed in the future.
The bill charges that he made a contract and reduced it to writing without any facts to show any unusual confidence on the part of Samuel Hirsch, and with facts to show that he, Samuel, acted for himself, upon his own judgment, against the expressed wishes, of Aaron, which contract may, or may not be binding upon him, and that he represented it as binding him. It does not appear that one party had better opportunity of judging than the other of the validity of the contract. A misrepresentation under these circumstances, is not such a fraud as will avoid a contract, since every person is supposed to know the legal effect of an instrument of writing, and therefore has no right to rely upon the statements of the other party. Lewis vs. Jones, 4 Barn. & Cress. 506; Russell vs. Bonham 8 Blackf. 277; and Starr vs. Bennet, 5 Hill, 303.
The judgment of the court is not asked whether the instrument is a valid and binding one. If it be a valid instrument then the complainant would have his remedy at law on it. If it be not valid because it is against public policy, then the complainant may go into chancery in this particular case, if necessary, in order to recover back the consideration paid, but we are clear that the bill does not allege such fraud as will justify a rescisión of the contract, and that the amended bill does not strengthen the complainant’s case.
The court below had the power to compel the complainant to file such an amended bill as would justify relief, and might well sustain .a demurrer to a bill which would not authorize a decree. Although, to take the bill from the files is not precisely regular, the appellant is not prejudiced.
Let the decree be affirmed.
Mr. Justice Fairchild did not sit in this case. | [
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Mr. Chief Justice English
delivered the opinion of the court.
Fagan was indicted for betting at faro, one count charging that he bet money on the game, and the other, that he bet a check, which represented money.
On the trial one witness proved that he went into a room where he found several persons betting checks at a faro bank> and among them Fagan. Witness bought some checks, bet against the bank and lost them. He saw neither Fagan, nor any one else, except himself, buy checks at the bank, nor did he know that Fagan bought any. He supposed that Fagan’s checks represented money, because witness paid money for what he bought at the bank, but he did not see Fagan pay any money for his checks, nor did he know that his checks in fact represented money. He saw him bet no money at the game.
Another witness testified that he was present at the time referred to by the first witness, and knew the fact that Fagan’s checks did not represent money. That by an agreement between him and the banker they were not to represent money and that he did not risk, win or lose any thing on the game, and could not have done so under his understanding with the banker. That he bet the checks, which represented no money or value, against the bank, and not against any other person. Witness, saw him bet no money on the game.
At the instance of the attorney for the State, the court gave to the jury, among others, the following instruction, against the objection of Fagan:
“ If the jury believe from the evidence that the defendant bet any check at a game of faro, within Pulaski county, within twelve months next before the finding of the indictment, whether the defendant wagered any thing himself or not, they must convict.”
The jury found the defendant guilty, and assessed his fine at $50; he moved for a new trial, which was refused, and he appealed.
The evidence conduces to prove that appellant obtained checks from the banker, without paying any thing for them, and went through the usual form of betting them off on the game, but that in point of fact he bet nothing — that by an understanding with the banker the checks did not represent any sum of money, and that he did not win or lose anything on the game, and could not have done so under his agreement with the banker.
The betting is the gist of the offence under the statute, and without betting he was guilty of no offence. The fact that others bet against the bank at the time he went through the form of playing off his checks, made him guilty of no offence.
The jury might have inferred from the testimony of the first witness, that appellant was guilty of betting checks which were the representatives of money, but if they believed the testimony of the second witness there was left but little or no ground for such inference.
The instruction copied above, which was not consistent with others given by the court, was calculated, we think, to make the impression upon the jury that the appellant was guilty of the crime alleged against him even if the fact stated by the second witness were true, and appellant did not bet money, or checks representing money at the game.
For the error of the court in giving this instruction, the judgment must be reversed, and the cause remanded, with instructions to the court to grant the appellant a new trial. | [
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Conley Byrd, Justice.
For reversal of a marijuana conviction in violation of the Controlled Substance Act, Ark. Stat. Ann. § 82-2617 (Supp. 1975), appellant William Lawrence French raises the three points hereinafter discussed.
POINT 1. The record admittedly contains evidence, if believed, that would establish the defense of entrapment. The trial court recognized the sufficiency of the evidence, but over objections of appellant to the word “unconscious” instructed the jury “. . . Entrapment exists where the criminal design or act originated, not with the accused, but with an officer of the law or his agent who lures the defendant into the unconscious commission of an unlawful act by persuasion, deceptive representation or inducement. . . .” We hold that the trial court erred in using the word “unconscious,” because it is not an element in the defense of entrapment. See Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), where Chief Justice Hughes pointed out that it was the duty of officers of the law to prevent, not to punish crime and that it was a gross abuse of authority for the officers to cause or create a crime in order to punish it. See also Ark. Stat. Ann. § 41-209 (Supp. 1975).
POINT 2. Appellant’s contention that the trial court erred in failing to advise the jury that it was his burden to establish the defense of entrapment by a preponderance of the evidence, seems to have been raised for the first time on appeal. Therefore we do not reach that issue.
POINT 3. In addition to the evidence from which the jury could have found that a Government agent by the name of Haas had planned the acquisition of the marijuana and persuaded appellant to assist in its acquisition for the purpose of prosecuting and convicting appellant and others, the trial court ruled inadmissible evidence showing that Haas was paid by the Drug Enforcement Administration of the United States Government upon a contingent arrangement depending upon whether he makes a case and how many arrests result. To support the trial court’s ruling, the State mentions that Haas did not testify and concludes that such testimony was inadmissible because it involved collateral issues. The same contention, now made by the State, was argued by the Government in Sorrells v. United States, supra. In answer to the argument there that the defense of entrapment would lead to “the introduction of issues of a collateral character relating to the activities of the officials of the Government. . . ”, the court there stated: “The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused. . . . ”
As pointed out by the concurring opinion of Mr. Justice Roberts in Sorrells v. United States, supra, “Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” If such be the facts in a case, we can see no reason for preventing the defendant from proving them. The remuneration of an officer contingent upon the conviction of an accused has always been viewed as suspect, see Doty v. Goodwin, 246 Ark. 149, 437 S.W. 2d 233 (1969). Consequently, we must hold that the trial court erred in excluding the testimony showing the contingency of Haas’ remuneration.
Reversed and remanded.
We agree: Harris, C.J., and Holt and Roy, JJ. | [
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Conley Byrd, Justice.
The trial court found as a fact that appellant Eddie L. Brewster had not been a resident of District 54 (being a part of Jefferson County) for one year next preceding the date of election as required by Article 5, § 4 of the Arkansas Constitution and directed the Secretary of State to omit appellant’s name from the official list of candidates to be certified to the Jefferson County Election Commission. For reversal appellant contends that the “durational requirements” of Article 5, § 4 of the Constitution of Arkansas are invalid under the Equal Protection Clause, abridge his fundamental right to travel, and infringe his fundamental right to vote as possessed by the electorate of the State. He also contends that the trial court erred in holding that he had not been an elector of District 54 for the required time.
The record shows that appellant was a student at the University of Arkansas at Pine Bluff from April 15, 1972 through the summer term of 1976. When he entered the University he listed his permanent mailing address as 608 Spruce Street, Augusta, Woodruff County, Arkansas, and he continued to do so through the Spring semester, registration which was held in January 1976. On May 31, 1976, while registering for the Summer semester he changed his permanent mailing address to 815 West Barraque Street, Apartment E., Pine Bluff, Arkansas. The same information appears in his own handwriting in his applications for financial aid in attending the University. It is also admitted that from May 30, 1972 through March 9, 1976 appellant was a registered voter and voted in Woodruff County in every election up through and including the March 9, 1976 election. Appellant first transferred his voter registration to Jefferson County on March 18, 1976. He has paid no taxes nor assessed any personal property taxes in Jefferson County until August 13, 1976. The petitions by which appellant seeks to run as an independent candidate for representative from District 54 were filed with the Secretary of State on April 6, 1976. It was stipulated that appellant would testify that he considered himself a resident since 1972.
In reviewing the findings of fact by the trial court on appeal we must affirm them if there is any substantial evidence to support such findings. On the record before us we cannot say that there is no substantial evidence to support the trial court’s finding that appellant was not a resident of District 54 for one year before the date of election.
For his contention that Article 5, § 4 contravenes the United States Constitution appellant principally relies upon Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), and the line of cases from California following Dunn v. Blumstein, supra, such as Thompson v. Mellon, 9 Cal. 3d 96, 107 Cal. Rptr. 20, 507 P. 2d 628 (1973) and Smith v. Evans, 42 Cal. App. 3d 154, 116 Cal. Rptr. 684 (1974).
Article 5, § 4 of the Arkansas Constitution provides:
“No person shall be a Senator or Representative who, at the time of his election, is not a citizen of the United States, nor any one who has not been for two years next preceding his election a resident of this State, and for one year next preceding his election a resident of the county or district whence he may be chosen. Senators shall be at least twenty-five years of age and Representatives at least twenty-one years of age.”
Requirements similar to those in the Arkansas Constitution, supra, can be found in the Constitutions of nearly every State, except Nevada. Only five states require less than a year. See table set out in Hayes v. Gill, 52 Hawaii 251, 473 P. 2d 872 (1970). The United States Constitution provides that “no person shall be a representative who shall not have .. . been seven years a citizen of the United States....” [Art. 1, § 2(2)] and a like provision of nine years is required of a Senator, Art. 1, § 3(3).
Dunn v. Blumstein, supra, involved durational residence laws for voter qualification. Before addressing itself to the merits of the durational residence law, Mr. Justice Marshall in writing for the majority of the court said:
“To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. . . .In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved. First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.”
With respect to filing fee requirements for qualification of a candidate in a statutory party primary, Chief Justice Burger in speaking for the Court in Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), discussed the determination of the test to be applied in this language:
“The initial and direct impact of filing fees is felt by aspirants for office rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969). ...”
The California Courts, Thompson v. Mellon, supra, have taken the position that in determining the validity of durational candidate qualifications to cities, the cities must show the same substantial and compelling reason for imposing durational residence requirements to candidate qualification that the United States Supreme Court applied to voter qualification. In applying that test to the durational qualifications, the court struck down a two year durational requirement for candidates for the office of city councilman. Justice Mosk, in a concurring opinion went farther by stating: . . indeed, all such durational residential requirements should be rejected because they can be justified solely on a paternalistic theory that the citizens of yesterday knew what is best for the governance of the citizens of today and tomorrow.” In a dissent Justice Burke stated his views of the test to be applied as follows:
“Initially, we must determine what standard governs in measuring the constitutionality of various restrictions imposed upon the right to run for public office. The latest pronouncement of the United States Supreme Court indicates that the traditional ‘rational basis’ test may be sufficient in the absence of a discrimination based upon wealth or some other ‘suspect’ classification, (see Bullock v. Carter, 405 U.S. 134, 142-144, [31 L. Ed. 2d 92, 99-100, 92 S. Ct. 849], applying a ‘close scrutiny’ test to invalidate a Texas filing fee scheme which tended to exclude from the ballot candidates unable to afford the substantial fees at issue therein.) The residence requirement at issue may operate to restrict the field of candidates from which voters might choose, but, as stated in Bullock, ‘The existence of such barriers does not of itself compel close scrutiny.’ (Id. at p. 143 [31 L. Ed. 2d at p. 100].)”
Following the decision in Thompson v. Mellon, supra, the California Court of Appeal, Third District, in Smith v. Evans, supra, held invalid a one year durational residence requirement for city council candidates. In so doing the court stated:
“It is unnecessary to decide here whether the relatively stringent ‘compelling interest’ test or the relative mild ‘reasonable necessity’ test is appropriate. Even by the measure of the latter, the one-year durational residence requirement for local candidates fails. Its preference for settled inhabitants and its denial of political opportunity to new inhabitants is restrictive beyond its reasonable necessity for achieving legitimate public ends.”
Other courts in considering durational residence requirements of candidates for state offices contained in the state’s constitution have arrived at a different result. See Gilbert v. State, Alaska, 526 P. 2d 1131 (1974), [state senator|; Walker v. Yucht, (D.C. Del. 1972), 352 F. Supp. 85 [office of state general assembly]; Hayes v. Gill, 52 Hawaii 251, 473 P. 2d 872 (1970), [state representative]; State ex rel Gralike v. Walsh, Mo. 483 S.W. 2d 70 (1970), [state senator]; and Chimento v. Stark, (1973 D.C. N.H.) 353 F. Supp. 1211, affd. 414 U.S. 802, 94 S. Ct. 125, 38 L. Ed. 2d 39 [Governor of New Hampshire], In so doing, all of these courts except Hawaii and a concurring opinion in Chimento v. Stark, supra, have applied the “compelling state interest” test or at least given lip-service to the test.
When one considers that durational residence requirements, usually considered in terms of citizenship or domicile, are required in practically all of the State Constitutions for state officers and that seven and nine years citizenship is required in the United States Constitution for Representatives and Senators respectively, we cannot agree with the statements in Thompson v. Mellon, supra, that such durational requirements “can be justified solely on a paternalistic theory that the citizens of yesterday know what is best for the governance of the citizens of today and tomorrow.” In fact history records that the seven year provision in the United States Constitution Article 1 § 2(2) was inserted by the Constitutional Convention because it was thought that three years, as originally proposed, was not enough time for securing that local knowledge which ought to be possessed by a congressman, The Constitution of the United States by David K. Watson, Volume I, page 146. The State of Arkansas has had five Constitutions, the Constitution of 1836, the Constitution of 1861, the Constitution of 1864, the Constitution of 1868 and the present Constitution of 1874, all of which have carried the same durational qualifications for candidates to the State Legislature. In fact the 1868 Constitution was approved by Congress June 22, 1868, 15 Stat. 72, Ch. 69. When viewed with this historical setting and the almost unanimous requirement in every state of this Nation, we do not believe that such durational requirements should be considered as “suspect” classification or as “invidious” discrimination. If the classification of State officers is neither “suspect” nor “invidious” then of course the “rational basis” test when applied to the classification under consideration would not invalidate such requirements.
Neither do we interpret the United States Supreme Court decisions as requiring the “Compelling State Interest” test. When viewed by the three tests stated by Mr. Justice Marshall in Dunn v. Blumstein, supra, we find:
1. The character of the classification is contained in practically every state constitution and a corresponding durational requirement is set forth in the Federal Constitution.
2. The individual interests affected by the classification are the exception rather than the rule. Nearly every community, figuratively speaking, has had its feuds between the Martins and the McCoys that have been settled by unwritten and unpublished compromises — such feuds should not be renewed through ignorance.
3. Furthermore to hold such classification invalid to protect the interest of the few, who fall in the exception, would permit the political bosses in the more wealthy districts of the State of keep the political leaders in the less wealthy or rural districts busy with their home chores through hired agitators as candidates while the wealthy political bosses concentrated their efforts on state wide political races.
Everyone who has learned to drive an automobile has already learned the philosophical lesson — i.e. there is a lot of difference between talking about something and doing something. The same philosophy applies to government. It has been less than two decades since headlines in the newspapers of Boston, Massachusetts were telling the citizens of Little Rock, Arkansas, how they should handle their school racial problems. But if one can believe what he presently reads in the newspapers, it seems that some of the good citizens of Boston are now having trouble practicing what was preached to Little Rock during the 1957 Integration Crises. Stated in the words of the old courthouse political wag it seems that “A man ought to wear out at least one pair of shoes in a community before he undertakes to speak for it or tell it how to run its business.”
Now obviously it would appear that the “reasonable basis” test ought to be applied to reasonable durational qualifications for state officers. But if the United States Supreme Court should subsequently decide that the “compelling state interest” is the proper test we think the foregoing discussion is sufficient to satisfy even that test in upholding the validity of durational qualifications of a candidate.
Affirmed.
Harris, C.J., concurs in the result.
We agree: Holt and Roy, JJ. | [
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Carleton Harris, Chief Justice.
This is a case of first impression in this state. Sam Black, appellee herein, was incarcerated in the “drunk tank” of the Little Rock city jail with another prisoner, and on February 12, 1976, Officer Gentry, who was employed at the jail, observed Black engaging in oral sex with the other prisoner. The two prisoners were the only ones occupying the “tank” at the time. Black was charged with violation of Ark. Crim. Code § 41-1811 (1976), Public Sexual Indecency, the information charging that the deviate sexual activity mentioned was committed “in a public place or in public view in the Little Rock Police Department Detention Center.” The state filed a motion asking the court to rule on whether the Little Rock city jail is a public place under the statute for the purposes of sexual crimes, before jeopardy attaches, in order that the state might' preserve its right of appeal. On hearing, the court held that the jail was not a public place within the meaning of the statute and dismissed the case. From such order, the state brings this appeal.
Pertinent portions of the statute at issue provide as follows:
(1) A person commits public sexual indecency if he engages in any of the following acts in a public place or public view:
(a) an act of sexual intercourse; or
(b) an act of deviate sexual activity; or
(c) an act of sexual contact.”
Officer Gentry testified that the “drunk tank” is one of the “forward cells,” i.e., near the front of the jail area, and that it is open on the east side. The officer stated that it is directly across the hall from another similar cell which is open on the west side; that the latter cell was being occupied by 10 or 11 people.
The witness said there were two jailers and a supervisor employed at the jail at the time, and that these employees customarily walk up and down the halls. He further stated that prisoners are brought into the jail on an average of about one every two hours and that all customarily will pass by the “drunk cell.” Further, Gentry testified that tours of the jail are conducted for the public from time to time, though these tours are in charge of some official at the jail.
It is argued by appellee that the jail is licensed to only a very few members of the public at one time, and there are no “occasional observers in the city jail that could witness an offense.”
Ark. Crim. Code § 41-1801 (6) (1976) defines “public place” as “a publicly or privately owned place to which the public or substantial numbers of people have access.”
Of course, visitation to a jail by members of the public must necessarily be restricted and subject to supervision by an officer; otherwise, weapons could be brought to prisoners, or, for that matter, some outsider could commit harm to a prisoner.
The case of Bishoff v. The State of Texas, 531 S. W. 2d 346 (Tex. Crim. App. 1976), bears great similarity to the instant case, even to the statute involved. Bishoff was convicted of sodomy, the act occurring in the “drunk tank” of the city jail. The offense was observed by a police officer as he opened the door to the “tank.” Subsequent to the commission of the act, a new criminal code went into effect and Bishoff elected to receive punishment under the new code. The court stated:
“He was convicted of the old Code offense of sodomy, and his election for punishment under the new Penal Code only made it necessary for the trial judge to determine from the proof which of the applicable sections of the new Code to apply. Both Secs. 21.06 (homosexual conduct) and 21.07 (public lewdness) replaced 'the old sodomy statute. Since the proof showed that the act of deviate sexual intercourse look place in a public place, (our emphasis), the court did not err in assessing punishment as a Class A misdemeanor under the provisions of said Sec. 21.07.”
Summarizing, what is a public place? Primarily, the circumstances must be considered. While the fact situation was different, the language of the Maryland Court of Appeals in the indecent exposure case of Messina v. State, 212 Md. 602, 130 A. 2d 578, we think, succinctly answers the question asked. There, the court said:
“An exposure is ‘public,’ or in a ‘public place,’ if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.”
It is not uncommon for groups of persons to tour a jail, and, according to the evidence in the present case, persons constituting such groups would have no difficulty in seeing acts committed in the “drunk tank;” in other words, if such a tour had been in progress at the time Black committed the act herein set out, he could easily have been observed. Of course, families and friends frequently visit inmates and, as also reflected by the evidence, persons coming into the jail customarily pass the “drunk tank.” As already mentioned, Black and his companion were in plain view of the inmates across from the cell.
It follows from what has been said that the court erred in holding that the offense did not occur in a public place. The judgment is accordingly reversed and the case remanded for further proceedings not inconsistent with this opinion.
Hickman, J., not participating.
According to Gentry, these people told him that they observed the act between Black and the other prisoner, but, of course, this was hearsay evidence and properly objected to.
Though involving a police station house, rather than a jail, the observation of the court in the case of People v. Fine, 135 NYS 2d 515, is rather pertinent:
“As the term suggests a ‘public place’ is a place open to the general public and available for use by the general public without limitation except such as may be required in the interest of safety and good order.”
V.T.C.A. Penal Code, Sec. 21.07, sets forth the offense of “Public Lewdness” as follows:
“(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
“(1) an act of sexual intercourse;
“(2) an act of deviate sexual intercourse;
“(3) an act of sexual conduct;
“(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.” | [
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George Rose Smith, Justice.
The appellant, Coy Thomas, is the claimant in this workmen’s compensation case. At the time of his injury he was drilling rock with a jackhammer, in the process of excavating a trench for the installation of a sewer line to serve a residence that was being built. Walters Construction Company was the prime contractor for the residential project. Southside Contractors, Inc., the appellant’s employer, was the subcontractor for the installation of the sewer line. Thomas’s claim for compensation is asserted both against the prime contractor and its insurance carrier and against the subcontractor and its insurance carrier. The Commission denied the claim altogether, finding (a) that the subcontractor’s insurer had canceled its policy before the accident, and (b) that the claimant is estopped to assert liability on the part of the prime contractor. Upon this appeal Thomas challenges both findings.
There is substantial evidence to support the Commission’s finding that the subcontractor’s coverage had been canceled before the claimant was injured. The risk had been assigned to the subcontractor’s insurer pursuant to Ark. Stat. Ann. § 81-1309 (Repl. 1960). That insurer, owing to its inability to obtain an audit of the subcontractor’s payroll, applied to the Commission for cancellation of the policy. The Commission, acting under Section 81-1309 (d), notified the subcontractor that its policy would be canceled if the Commission “does not hear from you within ten days from the date of this letter.” There was no reply to that letter. Despite some uncertainty about the date of cancellation, the Commission was justified in finding that the policy had been canceled. Upon this point the subcontractor’s local insurance agent testified that he discussed the proposed cancellation with the president of the subcontractor, a corporation, who said: “I guess we will have to get along without it.”
A more difficult question is presented with respect to the liability of the prime contractor and its insurer. The statute provides that when a subcontractor fails to obtain compensation insurance, the prime contractor shall be liable for compensation to the employees of the subcontractor. Section 81-1306. Despite that section of the statute the Commission denied Thomas’s claim, on the ground that he had dealt with the prime contractor, Walters Construction Company, as an independent contractor and that he was estopped to say that he had no part in the cancellation of Southside’s compensation coverage.
We state the facts most favorably to the Commission’s decision. For some time before the claimant Thomas joined the concern there had been a partnership of three or four men engaged in work involving excavations. Thomas bought out one of the partners by contributing a truck for which Thomas had paid SI,000. In January, 1971, when there were three partners, the business was incorporated upon a lawyer’s recommendation and under his supervision.
Paul James was the president of the company, with Thomas being designated as vice-president. The three principals, manifestly in good faith, continued to conduct the business pretty much as a partnership, though some corporate records were kept. Excavation contracts were made orally, without formality. Here is an excerpt from the testimony of Paul James:
Q. Dealing with the decision-making process, is it not true, Paul, that the three members of the Board of Directors, yourself and Gary and Coy, somebody approaches you or Cary or Coy about doing a job, you all meet and say all right here is the job whose [sic] is going to handle it — how much are we going to get for it — right?
A. Right.
Q. And you all say, well, Coy why don’t you handle this one, and the next one, Paul, you take this one — it was a joint decision by the members of the Board of Directors?
A. That is right.
James, as president of the company, was responsible for keeping the records and for obtaining workmen’s compensation insurance. His home was the company’s only office. Coy Thomas received take-home pay of SI 15 a week, paid by the company’s check. Taxes and Social Security contributions were withheld. The company furnished the tools and materials that Thomas and his crew used in their work. Apparently the company never made enough money to distribute any profits before Thomas was injured.
Southside’s compensation coverage was canceled as of May 6, 1973. At about that same time Henry Walters, the owner of the prime contracting company, approached Thomas about the sewer-line subcontract, because Thomas had been highly recommended to Walters as a very competent person in that field. The oral contract was made according to Southside’s usual practice. Thomas discussed it with his associates, who approved the job for the proposed price of $1,100. Walters testified that he thought he was dealing solely with Thomas. Thomas brought his own crew to the job and worked with them, as foreman, until he was hurt. Walters said he knew nothing about Southside Contractors until Paul James came up to finish the job after Thomas’s injury.
When the oral contract was made, Walters asked Thomas if he had workmen’s compensation insurance. Thomas replied that he did have it and, at Walters’s request, promised to furnish the policy number. Walters testified that he discussed Thomas’s coverage because his own insurance carrier had told him very specifically that “subcontractors either had to be covered or we had to furnish coverage.” Thomas did not in fact supply the policy information. Walters testified that he would have insisted upon having that information before he paid the contract price, because if Thomas did not have coverage “we would have to pay the premium for the work that they had done, for the coverage of those employees.” In actuality, Walters paid the agreed contract price to Southside without deducting any amount for the premium and without inquiring about the coverage. Of course, by then Thomas had been seriously injured on the job, and a deduction of the premium from the final settlement would have carried an inplication of liability on the part of the prime contractor and its insurer.
We can find no substantial evidence to support the Commission’s denial of Thomas’s claim. The Commission found, first, that Thomas dealt with Walters as an independent contractor rather than as an employee of Southside. The true issue, however, is not whether Thomas was an independent contractor, for that is ordinarily the status of any subcontractor. Rather, the issue is whether Walters’s contract was with Thomas individually or with the Southside corporation. There is no proof that Thomas held himself out as acting on his own. Apparently the matter was simply not mentioned, which is not unusual. A customer of a small grocery store may believe that he is dealing with a sole proprietor, but that belief makes no difference if the store is actually owned, say, by a family corporation. A corporate entity is to be disregarded only if the corporate structure is illegally or fraudulently abused to the detriment of a third person. Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). Here there is no evidence that the Southside corporate entity was so used. The Workmen’s Compensation Commission of course has final authority upon disputed issues of fact, but here the Commission made an error of law in its interpretation of an undisputed fact situation. The corporate entity should not have been disregarded.
Neither can we sustain the Commission’s conclusion that Thomas is estopped to deny that he knew that the compensation policy had been canceled. The testimony is not definite, but the cancellation must have occurred not very long before or not very long after the oral subcontract was made. Walters testified that he asked Thomas about the coverage and was told that it existed. Thomas testified that he did not remember such a conversation, but he stated candidly that if the question had been asked he would have said that there was coverage. He testified, without contradiction, that he knew nothing whatever about the cancellation; that was Paul James’s responsibility. The only disinterested witness with regard to this issue was the insurance agent, who said that he discussed the cancellation with James.
Even though there is no testimony that Thomas knew that the policy had been canceled, the Commission made this finding: “The president of this corporation . . . had great power to direct the activities of the corporation, but allowing this policy to lapse . . . and then not afford the claimant protection coverage without some consultation with his vice-president-employee is . . . inconceivable.” Thus the Commission attributed to Paul James a precise knowledge of law when it concluded that James would not have allowed the coverage of his “vice-president-employee” to lapse without some consultation between the two men. Even the members of this court have disagreed about a corporate officer’s right to compensation coverage as an employee. Brooks v. Claywell, 215 Ark. 913, 224 S.W. 2d 37 (1949). It is extremely unlikely that either James or Thomas could have realized that Thomas, an officer of the company, might be protected by the policy while he was engaged in physical labor as an employee.
Thomas established a prima facie case by proving that he was injured while working as an employee of an uninsured subcontractor. The prime contractor and its insurer assert the defense of estoppel, arguing that Thomas knowingly misrepresented the fact of compensation coverage. One who asserts an estoppel must prove it strictly; the facts cannot be supplied by inference. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532 (1974). That burden of proof has not been met. To the contrary, the Commission’s conclusion rests upon evidence that presents a mere choice of possibilities and is therefore not substantial. Ellsworth Bros. Truck Lines v. Canady, 245 Ark. 1055, 437 S.W. 2d 243 :1969); Ark. Power & Light Co. v. Cash, 245 Ark. 459, 432 S.W. 2d 853 (1968). We are unwilling to sustain a denial of compensation that rests merely upon speculation.
Reversed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Frank Holt, Justice.
This case involves the eminent domain power of the appellant under Amendment 35 of the Arkansas Constitution (1874). Appellant brought suit in the circuit court to condemn 143.76 acres of appellees’ lands pursuant to the authority of that Amendment. The land sought to be condemned is adjacent to approximately 34,000 acres of land (the Bayou Meto Wildlife Management Area) owned and managed by appellant. During the duck hunting season, appellant annually floods a portion (a green tree, artificial reservoir) of the Bayou as a wintering habitat for the migratory mallard duck. The water impoundment is later released in mid-February of each year to prevent damaging the green timber in appellant’s artificial reservoir. As a result of this annual seasonal flooding, approximately 20 to 40 acres of appellees’ lands are sometimes flooded, damaging their crops. Appellant, in its complaint and declaration of taking, alleged that appellees’ lands are necessary, useful and convenient in the exercise of its control and management of the wildlife management area. The appellee landowners filed a motion to strike the declaration of taking on five grounds: (1) the taking is contrary to Amendment 35 to the Arkansas Constitution for the reason that the taking is not in the public interest; (2) the taking is contrary to the finding in Hampton v. Arkansas State Game and Fish Commission, 218 Ark. 757, 238 S.W. 2d 950 (1951); (3) the taking is not necessary to carry out the statutory and constitutional purposes of the Commission; (4) appellee landowners would be irreparably damaged for which they have no adequate remedy at law; and (5) the purpose of the taking is to avoid building dams, levees, or other structures to prevent flooding of appellees’ lands. On appellees’ motion the action was transferred to chancery court. After hearing the evidence, the chancellor dismissed the complaint and declaration of taking, finding in part:
There is really very little difference between the facts of this case and, certainly, the facts that existed and the purposes that were present and involved in the Hampton case. It can be said that the Game and Fish Commission is seeking to condemn the defendants’ lands to make it a part of the Bayou Meto Wildlife Management Area to improve the, basically, duck hunting and duck killing capabilities of this area, and that, the Supreme Court says, it cannot do. **** So, Ground No. 1., the Court holds that ultimately, even though the witnesses for the plaintiff were not trying to deceive the Court, the Court believes they gave their testimony in utmost good faith, but when they have testified that the purpose is to improve the habitat of this area, the Court must pursue that further than they did and, as stated, and to repeat, that is in the opinion of this Court for the purpose of improving that quality of the habitat so that the duck shooting in that area can be and will be enhanced, and that is not permitted under Arkansas Law according to the Hampton case.
Appellant asserts that the evil sought to be corrected is that the Commission cannot fully operate its green tree artificial reservoir without flooding the appellees’ private lands lying adjacent to the Bayou Meto Wildlife Management Area. Therefore, the acquisition is for the purpose of acquiring such lands in order to fully utilize the waterfowl habitat previously acquired for the W.M.A. Appellant candidly admits that it is asking this court to either overrule or distinguish Hampton, supra, from the case at bar. Appellant further correctly recognizes that this court is reluctant to overrule previous decisions except for clear and demanding cause.
In Hampton, supra, the Arkansas Game and Fish Commission, pursuant to Amendment 35, sought to condemn 1,-320 acres of land to become part of the Bayou Meto Wildlife Management Area. The chancery court sustained the Commission’s authority to exercise eminent domain there. On appeal we reversed saying:
So here the State cannot, under the guise of a game refuge, take the property of private citizens and then convert the property to a public hunting ground to satisfy the sporting instincts of other citizens. A careful study of the entire Amendment No. 35 shows that it is not the duty of the Commission to acquire lands by eminent domain in order to establish shooting grounds where the public may kill migratory fowl. That is the basic question in this case; and we hold that the Commission does not have such power.
In the case at bar the chancellor found the same situation to exist as in the Hampton case; namely, the Commission was attempting to improve the habitat of the Bayou Meto area for the purpose of enticing migratory mallard ducks to this public hunting ground for the purpose of hunting and killing ducks. We think the evidence clearly preponderates in support of the chancellor’s finding. In fact, appellant agrees that it “has no quarrel with the finding of the court below that the direct purpose of the taking was to improve the quality of the habitat for ducks, but that the purpose of improving the habitat was to attract more ducks to the Bayou Meto Wildlife Management Area where regulated public hunting is allowed.” The thrust of appellant’s argument, as indicated, is that we should “either outright reverse the rule established therein or distinguish it from the case at bar.” We must decline appellant’s persuasive argument to overrule the longstanding precedent established by Hampton. Neither can we agree with appellant that Hampton is distinguishable from the case here. Nor can we agree that Hampton is overruled by our decision in State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S.W. 2d 342 (1951).
We deem it unnecessary to discuss appellant’s additional contention that the chancery court was without jurisdiction to substitute an alternative remedy (building a levee with pumps to prevent flooding) to the eminent domain proceeding initiated by appellant.
Affirmed.
Smith, Fogleman, and Byrd, JJ., dissent. | [
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Conley Byrd, Justice.
The issue in this case is not what laws, appellant James Roland, may have violated, but whether he was entitled to a directed verdict, upon a charge of an accessory after the fact to the delivery of a controlled substance by one John White. Ark. Stat. Ann. § 41-120 (Repl. 1964), defines an accessory after the fact as follows:
“An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.”
The State did not attempt to prove that John White had committed the offense of selling a controlled substance but to the contrary freely admitted that the controlled substance, of which he was charged with selling to the narcotics officer, tested out to be baking soda. The proof submitted against James Roland was that he knew that White was charged in Independence County with selling a controlled substance and that he had furnished the plane fare to White and transported White to Memphis, Tennessee, to catch a plane. The State also complained to the jury of the fact that James Roland had made it possible for White to consult with White’s lawyer in Batesville without being detected by the authorities. Roland testified that John White told him about the charge in Independence County and that it arose out of a sale of caffein to an under cover narcotics agent. That Roland’s knowledge of the sale was correct can be seen from the following quote from the opening statement of the State to the jury:
“One officer, Dan Sanders, with the State Police Narcotics Division thought that he was going to develop sufficient evidence against John White, made a purchase and warrants were issued and it developed that instead of being guilty of selling a controlled substance, John White was even smarter than everybody thought he was, he even went around bragging about it; that a Narc got close to him but he sold him a hundred dollars worth of baking soda, who could tell, white powder is white powder and a narcotics officer is not going to take out a field test kit and test it in front of him, that wouldn’t hardly go over. So the State did buy $50.00 or $100.00 worth of baking soda from John White and charged him with selling whatever it was he said it was, THC or heroin; or cocaine I think it Was. Later it turned out, as I say, after we sent it to the laboratory, that he is guilty of obtaining money under false pretenses.”
The authorities with respect to the conviction of a person as an accessory after the fact generally hold:
“To constitute a person as accessory after the fact these essentials must appear; (1) The felony must have been committed. (2) The accused must know that the felony has been committed by the person received, relieved or assisted. (3) The accessory must render assistance to the felon personally. . . State v. Potter, 221 N.C. 153, 19 SE2d 257 (1942).”
Our own cases hold that before one can be convicted as an accessory to a crime he must have full knowledge that the crime has been committed. See State v. Jones, 91 Ark. 5, 120 SW 154 (1909), and Stevens v. State, 111 Ark. 299, 163 SW 778 (1914).
It follows that the trial court erred in not directing a verdict for the appellant Roland.
Reversed and dismissed.
We Agree: Harris, C.J., and George Rose Smith, Holt and Roy, JJ. | [
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George Rose Smith, Justice.
This is a boundary line dispute. The chancellor, in fixing the boundary in accordance with certain fences and iron pins, relied upon acquiescence in the boundary line (and to a lesser extent upon adverse possession) that continued from 1953 until 1971, this suit being filed in 1975. The pivotal issue is whether the chancellor’s conclusions are correct in view of the fact that during the 18-year period in question the right to possession along the disputed line was primarily vested in life tenants rather than in fee simple owners.
The really material facts are not in dispute. The appellant, Leon Raborn, and the principal appellee, Dorothy Buffalo, are brother and sister. The disputed boundary runs east and west and is three quarters of a mile long. Leon owns the three contiguous forties that lie along the north side of the line. Dorothy and her husband own the corresponding three contiguous forties that lie along the south side of the line.
In 1953 Leon and Dorothy’s parents, George Raborn and his wife, owned all the six forties except the middle one south of the line. On January 6, 1953, the elder Raborns conveyed the three northern forties to Leon and the two southern forties to Dorothy. Both deeds reserved a life estate in the grantors as long as either of them should live. George Raborn survived his wife and owned the life estate until his death in 1971. In 1955 the Buffalos acquired their middle forty by purchase from a third person.
During the pertinent years the two western forties and the two middle forties were in cultivation; the two eastern forties were in woods. There was a meandering fence through the woods, north of the true line, but at the trial the Buffalos’ attorney readily conceded that it was “a fence of convenience” and did not mark the boundary. The chancellor, however, fixed the line through the quarter mile of woods by drawing a straight line from an iron pin at the eastern end of that fence to another iron pin at its western end.
Along the remaining half mile of the disputed boundary, dividing the four forties to the west, there was a fairly straight fence lying north of the true dividing line. The chancellor, relying upon acquiescence and adverse possession, fixed the boundary along that fence line.
We consider first the disputed boundary between the two middle forties, for here the Buffalos’ claim of title by acquiescence is bolstered by their claim of title by adverse possession. The facts are that from 1953 until 1971 the elder Raborn, under the reserved life estate, was in possession of the tract north of the fence. After the Buffalos’ purchase of their middle forty in 1955 they were continuously in possession of that tract, up to the fence. Upon this proof the chancellor fixed the fence line as the boundary.
Under our decisions the Buffalos’ claim of title by adverse possession must fail. The elder Raborn’s possession was solely attributable to his life tenancy, his son Leon being the remainderman. The Buffalos, it is true, were asserting title from a completely independent source, hostile both to the life tenant and to the remainderman. Even so, adverse possession was not effective against the remainderman until the termination of the life estate. Our statute with regard to the recove y of land provides that the action must be brought within seven years after the right to maintain the suit shall accrue. Ark. Stat. Ann. § 37-101 (Repl. 1962). In view of that language we have held, upon facts like those now before us, that the statute does not begin to run against the remainder-man until the termination of the life tenancy. Heustess v. Oswalt, 253 Ark. 730, 488 S.W. 2d 707 (1973); Hayden v. Hill, 128 Ark. 342, 194 S.W. 19 (1917). Thus the appellees’ claim of title by adverse possession cannot be sustained.
The same conclusion must be reached with respect to the Buffalos’ claim of title by mutual acquiescence in the fence line. The principle of title by long acquiescence in a boundary rests upon the assumption of an implied agreement. We have said that in such circumstances “the law will presume an agreement concerning the boundary,” and that by their long acquiescence the adjoining landowners “apparently consent” to the line. Stewart v. Bittle, 236 Ark. 716, 370 S.W. 2d 132 (1963). There being no indication in the proof that the elder Raborn acted or had authority to act for his son Leon, the remainderman, it follows that any acquiescence on the part of the father would not be binding on the son.
What we have said also disposes of the controversy with regard to the east one third and the west one third of the disputed line. In both instances the elder Raborn was in possession, as life tenant, of the forties on each side of the disputed line. If he could not bind the remainderman by acquiescence in a line beine adversely asserted by someone else, obviously his acquiescence in his own possession on both sides of the line would be even more ineffective.
The decree is reversed and the cause remanded for the entry of a decree fixing the boundary line in accordance with the original Government survey, as shown by the appellant’s proof.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Frank Holt, Justice.
Appellant represented himself before a jury which found him guilty of forgery and uttering and assessed his punishment, as a habitual criminal, at ten years’ imprisonment on each charge. The court ordered the sentences to be served concurrently.
Appellant contends through court appointed appellate counsel that the trial court erred in refusing to appoint another trial attorney after appellant and his court appointed counsel, Mr. Black, were unable to agree on defense strategy and, further, the court erred by failing to adequately warn appellant of the risks involved in conducting his own defense. Mr. Black had recommended before trial that appellant plead guilty in view of the state’s evidence and the prosecutor’s offer of a five year sentence on a guilty plea to the present and additional charges. Appellant rejected the plea bargain. At trial the appellant insisted on his right to represent himself if he could not have another court appointed attorney. Mr. Black told the court “I did not inform this defendant that I would not try the case or that I could not represent him in court.” The appellant stated that although his court appointed counsel “was willing to fight the case,” he preferred to represent himself in view of Mr. Black’s recommendation of a plea of guilty. The court explained to appellant that appointment of counsel was done on a rotation basis and he considered Mr. Black a competent and capable attorney. Therefore, the court would not appoint another attorney. Mr. Black, as directed by the court, sat at the counsel table in an advisory capacity to appellant during the trial.
The right to counsel is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at trial. Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267 (1966); Faretta v. California, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975); and Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922). Here the record indicates that the court thoroughly acquainted appellant with his rights and the nature of the charges against him. Further, the trial court went to considerable lengths, including appointment of standby counsel, to insure that appellant had the greatest latitude in his efforts to represent himself. Appellant was no stranger to court, room procedures since he admittedly was' previously convicted of forgery and uttering. There is no contention that appellant was mentally incompetent. The record discloses that, he presented and questioned his witnesses, conducted cross-examination of the state’s witnesses, objected to evidence and consulted with his standby appointed attorney. A defendant’s technical legal knowledge is irrelevant to the assessment, of a knowing exercise of his constitutional right to represent himself. Faretta v. California, supra. In the case at bar, we hold that appellant knowingly and intelligently elected to voluntarily represent himself.
Appellant next asserts error by the trial court in allowing the state to interrogate appellant about the revocation of a previous suspended sentence for forgery and uttering because of a subsequent conviction. He argues that such a question was improper as a violation of Rule 609 (a) of the Uniform Rules of Evidence. However, the effective date of the Rules is July 1, 1976. Appellant was tried on January 14, 1976. Therefore, Rule 609 (a) is inapplicable. It follows that appellant’s conviction of a misdemeanor was admissible as going to the credibility of the witness. Hays v. State, 219 Ark. 301, 241 S.W. 2d 266 (1951); and Ark. Stat. Ann. § 28-605 (Repl. 1962). Another answer here is that the appellant, during his redirect testimony, discussed the subject of his previous conviction. We find no merit in this assertion.
Appellant’s final point is that “[t]he court erred in admitting into evidence during application of the habitual criminal statute, a copy of a penitentiary commitment showing that appellant’s suspended sentence was revoked for conviction of a misdemeanor in municipal court.” The peniten tiary commitment makes no reference to a conviction of a misdemeanor. Further, the subject of his felony conviction was previously discussed by the appellant himself as a witness and during which time he referred to the misdemeanor charge as a “little confusion” which resulted in the revocation of his suspended sentence. The jury found that the appellant had only one previous felony conviction which appellant had freely admitted. In the circumstances we hold that appellant has demonstrated no prejudicial error by the trial court’s action.
Affirmed.
We agree: Harris, C.J., and Byrd and Roy, JJ. | [
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John A. Fogleman, Justice.
Appellant James E. Dillard was found guilty of the crimes of inciting to riot, attempting to escape from custody of an officer while he was under lawful restraint, and assault and battery upon the person of;the officer. He asserts multiple grounds for reversal, divided into classes under three stated points for reversal. We find reversible error in certain of the grounds argued under the point relating to refusal of, and failure to give, certain instructions. We will forego discussion of any of these numerous grounds, except for those which constituted reversible error and those which will likely arise on retrial.
We find reversible error in the trial judge’s refusal to give appellant’s requested instructions Nos. 6, 7 and 8. Each of these instructions would have advised the jury of the elements of one of the three offenses with which appellant was charged and that it would have to find appellant guilty of each element of that offense, beyond a reasonable doubt, before it could find him guilty of that offense. Appellant objected to the court’s failure to give these instructions because the jury had not otherwise been instructed that each of the elements of the offense covered must be proved beyond a reasonable doubt before appellant could be found guilty of that offense.
The jury was only instructed that “ [t]he defendant is presumed to be innocent until proven guilty, and if upon the whole case you have a reasonable doubt of the defendant’s guilt, you will acquit him” and “[t]he burden of proof, as you have been instructed, is on the State to make out or establish its case to your satisfaction, beyond a reasonable doubt.” Those instructions are correct, as far as they go. Even though the court had defined the elements of each of the offenses, nothing in the instructions given could possibly be construed as requiring that each element of each such offense must be proven beyond a reasonable doubt. In this respect the proffered instructions were proper even though it is not necessary that the state prove each fact or circumstance beyond a reasonable doubt, but it is required that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A. 2d 792 (1967); Spear v. U.S., 142 CCA 67, 228 F. 485 (8 Cir. ED. Ark., 1915), cert. den. 246 U.S. 667, 38 S. Ct. 335, 62 L. Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 142 CCA 85, 228 F. 503 (8 Cir. ED. Ark., 1915); State v. Long, 30 Del. 397, 108 A. 36 (1919). Cf. Ferrell v. State, 165 Ark. 541, 265 S.W. 62. The failure to give instructions similar to those requested by appellant is reversible error unless the matter is fully covered by other instructions. McAfee v. U.S., 105 F. 2d 21 (D.C. Cir. 1939). Instructions going no further than those given here have been held deficient when an objection is based upon the failure of the court to instruct the jury that it must find the appellant guilty of each element of the offense charged beyond a reasonable doubt or that the state bears the burden of proving each element of the offense beyond a reasonable doubt. See Heard v. U.S., supra; Spear v. U.S., supra; State v. Ottley, supra; State v. Kimes, supra. The Court of Appeals of the District of Columbia spoke lucidly upon the matter in McAfee. Speaking through Justice Stephens, it said:
*** The purpose of such an instruction is to impress upon the mind of the triers of fact the proposition that guilt depends upon demonstration beyond a reasonable doubt of the existence of each of the several elements which, as a matter of law, constitute the crime charged, rather than upon some vague general notion that the defendant did some sort of wrongful act. Such an instruction is to be contrasted with those which tell a jury that they may not convict if they have a reasonable doubt “upon the whole evidence” or that they may convict if “upon the whole evidence” they are convinced beyond a reasonable doubt of guilt. The charge actually given to the jury in the instant case belongs to the latter type of instructions. ***
Apparently, we have not reversed any judgment on account of failure of the trial court to give such an instruction but we have tacitly recognized the necessity for so instructing the jury. In Humphrey v. State, 168 Ark. 163, 269 S.W. 988, we held that the court correctly charged the jury that:
If any fact in the case or any element necessary to constitute the crime has been established to your satisfaction beyond a reasonable doubt by either direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if the jury believe beyond a reasonable doubt from either or both direct and circumstantial evidence that the defendant is guilty, it is your duty to so find.
In Jones v. State, 159 Ark. 215, 251 S.W. 690, we held that it was reversible error to refuse a request to charge a jury that the intent to kill must be proven beyond a reasonable doubt when the charge is assault with intent to kill.
Since no instruction given, or any combination of them, adequately stated the state’s burden or the findings requisite to a conviction, the judgment must be reversed.
Appellant complains of the court’s failure to give other instructions. By his requested instruction No. 1, he sought to have the jury instructed that, if he did not know or have reasonable grounds to believe that Galen Hutcheson (who arrested appellant) was, at the time of apprehending appellant, a duly authorized law officer, appellant violated no law in using whatever force was necessary to break away from him and run into the nearby woods. The instruction requested was certainly not in keeping with the spirit of our Per Curiam order entered April 19, 1965, adopting Arkansas Model Jury Instructions, in that it is not wholly impartial and free from argument. Certainly, it would be desirable to eliminate references to running into the nearby woods. The instruction as to the permissible amount of force probably should have been qualified. Even though one has the right to resist an illegal arrest, the force that may be used is limited to that reasonably necessary. Jett v. State, 151 Ark. 439, 236 S.W. 621. See also, Baxter v. State, 225 Ark. 239, 281 S.W. 2d 931. The circuit judge refused to give it on the basis that the facts did not justify doing so. We find no error, because of appellant’s own testimony. He “presumed” that Hutcheson was an officer at the time Hutcheson got out of an automobile occupied by the Sheriff of Clay County, whom appellant knew, and Deputy Sheriff Stow, whom appellant recognized, and called appellant over to the automobile where the arrest was made. This testimony certainly eliminated any question of fact as to appellant’s having reasonable grounds to believe that Hutcheson was an officer of the law.
Appellant also requested an alternative instruction that an officer making an arrest must inform the person about to be arrested of the intention to arrest him and the offense for which he is being arrested. Appellant included in his requested instruction a prefatory statement that he had undertaken to show that, at the time of the arrest, he did not know that Hutcheson was a law officer and that Hutcheson did not tell appellant he was being arrested. Appellant’s objection to the court’s failure to give this instruction is based solely on the ground that Hutcheson’s official capacity was not made known to appellant. Because of the introductory language and appellant’s own testimony, it was not error to refuse the instruction over the objection made by appellant.
Dillard testified that Hutcheson never advised him that he was under arrest. There is contradictory testimony by Hutcheson that he did in fact advise appellant that he was under arrest for inciting a riot. Nevertheless, there was a disputed question of fact on this point. In Minton v. State, 198 Ark. 875, 131 S.W. 2d 948, we said:
The law of this subject is correctly stated in the chapter on Arrest in 6 CJS, p. 602 [now 6A CJS § 48], as follows:
“It is, ordinarily, incumbent on an officer, seeking to make an arrest without a warrant, to inform the accused of his authority or official character, of his intention to arrest him, and of the offense for which he is being arrested, otherwise the person whose arrest is sought is under no duty to submit; although circumstances surrounding the arrest may, in a proper case, dispense with one or more of these requirements. In accordance with this exception to the rule, an officer need not inform a person who is committing an offense in his presence, or who is pursued immediately after the offense, of the cause of his arrest; and, where an officer is met with a demonstration of force at the outset, he need not go through the formality of informing the person of his intention to arrest him or of the cause of his arrest.”
It is true that the statute, Ark. Stat. Ann. § 43-416 (Repl. 1964), does not apply when the offense is committed in the presence of the officer. Minton v. State, supra; Bookout v. Hanshaw, 235 Ark. 924, 363 S.W. 2d 125. But, in this case the principal issue was whether the appellant had committed any offense. In such a case, a proper instruction would qualify the recitation of the statute by stating when it is, and when it is not, applicable. We do not agree with the trial court’s holding that merely instructing the jury that it must find that appellant was lawfully taken into custody covered the re quests made by appellant, because neither a lawful arrest nor lawful custody was defined for the jury.
We might well agree with appellant that the attitude, demeanor and acts of the officers, both before and after his being arrested, may be relevant to the issues on the charge of attempting to escape while in lawful custody or to the weight to be accorded the testimony of the officers. This would not justify, however, his requested instruction advising the jury relative to his right to the assistance of counsel and his privilege against self-incrimination. No custodial statement was offered in evidence and no contention is made that appellant was not properly advised of his constitutional rights prior to any custodial interrogation.
We find no reversible error in the circuit judge’s refusal of a request that he instruct the jury that Arkansas law requires that one arrested without a warrant be forthwith taken before a magistrate for the fixing of bail or discharge and that admission to bail is an order from a competent court or magistrate that defendant be discharged from custody on bail. The instruction offered begins with a recitation of proof the appellant “has undertaken to develop” and is argumentative in form. It was also abstract. The provisions of Ark. Stat. Ann. §§ 43-601 — 43-603 (Repl. 1964) have always been held directory, not mandatory. Appellant was not seeking freedom from pretrial incarceration, having been admitted to bail. He went to trial on a plea of not guilty, without raising any questions about pretrial procedures. We note that appellant’s objection to the denial of this request is that the time passing between his arrest and the formal filing of the charges against him was pertinent to the jury’s consideration of the weight to be given to the testimony of the officers. Even if this is so, under the factual situation of this case, the instruction would not have so advised the jury, therefore, was not required.
There would have been no error in the giving of an instruction requested by appellant emphasizing the fact that the three charges upon which appellant was tried were separate and that, on each charge the state had the burden of proving defendant’s guilt beyond a reasonable doubt and that it might find him to be not guilty on any charge and guilty on others if it found that one or more offenses were not so proved and one or more were proved as required by law. Even though it seems to us that the instructions given covered the matter, the giving of this instruction, or one similar to it, in a case where multiple charges are tried jointly, is advisable.
Appellant requested an instruction that it is incumbent upon a law enforcement officer dressed in plain clothes without any official badge or insignia worn in plain sight to inform the person arrested that he is an officer of the law and to show his credentials and that any plain clothes officer failing to take these precautions acts at his own peril. This instruction might well have been proper if the officer was on trial on criminal charges growing out of the arrest or in a civil action between the officer and the person arrested, but there was no error in refusing it in this case. It must be recalled that at the time of the arrest, appellant “presumed” that Hutcheson was an officer of the law.
So much for requested jury instructions. We now pass to allegations that the circuit court deprived appellant of a fair and impartial trial by undue restriction of his cross-examination and by the words and actions of the trial judge in ruling on admissibility of evidence. At the outset, we will say that we have reviewed all appellant’s contentions about the trial court’s remarks and find no reversible error.
In considering arguments that appellant’s right of cross-examination was unduly restricted it must be kept in mind that the trial judge is vested with some discretion in the limitation of the scope and extent of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496; Baldwin v. State, 119 Ark. 518, 178 S.W. 409. See also, Tullis v. State, 162 Ark. 116, 257 S.W. 380. Such examination may be restricted to matters that are material and relevant, either to the issues of the case or to the credibility of a witness or the weight to be accorded his testimony. Baldwin v. State, supra; Pleasant v. State, 15 Ark. 624; Atkins v. State, 16 Ark. 568; Self v. Dye, 257 Ark. 360, 516 S.W. 2d 397; Murchison v. State, 153 Ark. 300, 240 S.W. 402; Kelley v. State, 133 Ark. 261, 202 S.W. 49. See also, Tullis v. State, supra; Williams v. State, 258 Ark. 207, 523 S.W. 2d 377; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225. A witness should not be allowed to state his impressions, con elusions, inferences, supposition or understanding unless his answer is equivalent to a statement of the fact asked for. Darrough v. State, 252 Ark. 198, 478 S.W. 2d 50; Covey v. State, 232 Ark. 79, 334 S.W. 2d 648; Self v. Dye, supra. See also, Vaughn v. State, 252 Ark. 260, 478 S.W. 2d 759; Clift v. State, 155 Ark. 37, 243 S.W. 955; Decker v. State, 85 Ark. 64, 107 S.W. 182. Questions on cross-examination should not be conjectural, speculative or argumentative. Watson v. State, 257 Ark. 876, 521 S.W. 2d 205; Self v. Dye, supra; Fort v. State, 52 Ark. 180, 11 S.W. 959, 20 Am. St. Rep. 163.
Appellant’s first complaint about undue restriction of cross-examination relates to questions of Hutcheson about appellant’s belief or reason to believe that Hutcheson was a police officer after Hutcheson, who had been bearded, attired in blue jeans, a green T-shirt and suede cowboy boots, had attempted to pass himself off as a Missouri visitor at the Blue Grass Festival near Piggott, where the incidents in question occurred. The questions were argumentative and called for the witness to state a conclusion as to appellant’s belief. Answers, of course, would necessarily be speculative. See Darrough v. State, supra. This line of examination was pursued even after the witness stated that, judging from appellant’s actions, the defendant did not believe the witness’s disguise. Appellant also complains about the sustaining of an objection to the form of a question, but the court immediately granted appellant’s attorney permission to rephrase the question. It does not appear that appellant attempted to do so.
After Hutcheson had stated that he didn’t know whether people some 15 feet distant from him and appellant could have heard what Hutcheson had said, the court sustained the state’s objection to a question whether the witness had a reasonable knowledge of how far away normal people heard. The judge ruled that the witness might testify as to the circumstances. The question tended to be argumentative and called for an opinion not based upon what the witness had observed. See Fort v. State, supra.
During the testimony of Randy Brookman, also a narcotics investigator for the Arkansas State Police, who accompanied Hutcheson to the Blue Grass Festival, appellant’s attorney questioned the witness about his practices with reference to smoking marijuana, or appearing to do so, while attempting to infiltrate a culture suspected of trafficking in drugs. He then asked if the witness did not occasionally pull a “joint” out of his pocket and offer it to a youngster. After the witness denied having done this, the prosecuting attorney objected and asked that the court instruct the jury that this line of inquiry was limited to purposes of credibility. When appellant’s attorney insisted that the testimony was not offered on the question of credibility alone, but for the purpose of showing his method of operation, the court sustained the prosecuting attorney’s objection. See Murchison v. State, supra. Appellant, however, now argues that his attorney should have been permitted to ask this type of question to point up possible prejudices, improper motives and lack of credibility of the witness. He did not pursue the matter for those purposes in the trial court.
Appellant also complains that he was not permitted to ask Hutcheson how long it was after the episode that resulted in appellant’s arrest that the witness was served with a summons as a defendant in a damage suit by appellant. When objection was made, the court held an in camera hearing during which it was stipulated that the information on which appellant was being tried was filed on July 22, 1975, more than five weeks after the arrest. Appellant’s counsel said that the purpose of the examination was to show that the filing of criminal charges was motivated by the fact that summons in a civil suit against Hutcheson and other officers had been served upon the witness and others before the information was filed. He stated that he wanted to argue to the jury that it was reasonable to suspect that criminal charges would never have been filed if the civil suit had not first been filed. The record discloses that appellant had been released on bail on these charges before the information was filed by the prosecuting attorney and the circuit judge ruled that, for the purposes of the objection, the officer had probable cause to make an arrest. The objection was sustained as to the examination for the limited reasons stated by appellant’s attorney, but the judge ruled that the testimony would be admitted for the purpose of testing the credibility of the witness or determining the weight to be given his testimony, with an admonition to the jury that it was permitted for no other purpose. The judge stated that the attorney would be permitted to repeat the question for these purposes only. The jury was instructed to disregard any reference to a pending civil suit and the question was not repeated.
When Sheriff Cloyce Pierce was being cross-examined, he was asked what undercover men normally did when they had been recognized. An objection was sustained insofar as normal procedure was concerned. See Murchison v. State, supra. Appellant now argues that he had every reason to believe that the undercover agents in this case violated instructions to withdraw after they had been recognized as narcotics officers. No foundation had ever been laid for this, because it had not been shown that this officer was familiar with normal procedures under these circumstances.
Deputy Sheriff Stow, after testifying that neither he nor Sheriff Pierce had ever seen Hutcheson before he climbed into the back seat of the sheriff’s car, was asked if it would not be customary for an experienced law officer to demand identification from some plain clothes man claiming to be an officer. The trial judge interrupted the answer to state that, “We are not concerned here with what is customary.” See Murchison v. State, supra. Appellant’s objection to the ruling was that whether this officer followed normal procedure was pertinent for the jury’s consideration in weighing the testimony of the witness.
During the cross-examination of Deputy Sheriff Stow, the witness started to state his personal feelings about a knife being carried by appellant when the prosecuting attorney’s objection was sustained on the basis that the attempted answer was an assumption. The judge stated that the witness might testify to facts observed, but that conclusions to be drawn from them were for the jury.
We find no abuse of discretion in the trial judge’s rulings on cross-examination of the state’s witnesses by his attorney. We will not reverse the trial court on such rulings unless there is a clear abuse of discretion. Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965; Clift v. State, supra.
Appellant also argues that there were four instances in which the trial court erred to his prejudice by rulings which deprived him of pertinent and relevant evidence which was favorable to him. In one instance appellant made no objection to the court’s voluntary ruling that a witness for appellant was stating conclusions and opinions and admonishing her to state facts as to appellant’s appearance. She had said that when appellant was brought out of a wooded area into which he had fled, he couldn’t have walked on his own. See Nelson v. State, supra. In another instance the judge overruled an objection to the prosecuting attorney’s asking a defendant’s witness, “You knew the pigs were there, didn’t you?” There had been a great deal of testimony in the case in which the officers had been referred to as “pigs.” There had been no objections to these references. We find no error.
On the other hand, we think that the trial judge did exclude admissible testimony. There had been testimony by an officer that Dillard had refused to give his name and had made threats and remarks derogatory to the officers when he was being interrogated by the officers in the sheriff’s office after having been taken to jail. Dillard had testified that, during a 20 or 25 minute “session” in the sheriff’s office, he had been physically abused by the officers and that he didn’t answer when he was asked his name. He testified that, before leaving the jail, when he was being taken to the sheriff’s office, a city police officer had said to him, “You’re Pat Mouton, aren’t you?”, but that he did not respond. The court sustained an objection to this testimony as hearsay, but we do not agree. The testimony was not offered to show the truth of the remark, but to show that it was made. The error was probably harmless, but, nevertheless the action was erroneous.
The trial judge also excluded certain testimony of Steve Parker, who was arrested for drunkenness after Dillard’s arrest and transported to the jail along with Dillard. He would have testified that Hutcheson had tightened the handcuffs on Dillard after Dillard had said they were tight enough; that Dillard’s request to telephone either his mother or his attorney was refused; that Dillard was taken downstairs and after about 40 minutes was returned to the jail, gasping and bearing welts and red spots over his whole torso. Appellant contended that the conduct of the officers following Dillard’s arrest and during his incarceration was a proper element for the jury’s consideration in determining the weight to be given their testimony. In view of the nature of the charges, Dillard’s version of his encounters with Hutcheson, and the obvious efforts of his counsel to show that the officer acted maliciously in the arrest of Dillard, the conduct of the officers after the arrest was the proper subject of inquiry. Parker’s testimony tended to corroborate that of appellant and should have been admitted.
For the errors indicated, the judgment is reversed and the cause remanded.
We agree. Harris, C.J., and George Rose Smith and Jones, JJ.
The statement in Edgin v. Talley, 169 Ark. 662, 276 S.W. 591, that even though the person arrested might have believed that he was being illegally arrested, it was his duty to have submitted to the officers, is much too broad and comprehensive and Coats v. State, 101 Ark. 51, 141 S.W. 197, cited as authority for the statement, does not support it. | [
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George Rose Smith, Justice.
The petitioner, Willis Shaw Frozen Express, is an Arkansas corporation engaged in transporting freight by truck, with its principal place of business in Washington county. Upon being sued in Pulaski County it appeared specially and moved that the service of summons be quashed. The motion was denied. The petitioner now seeks a writ of prohibition.
The litigation arises from the petitioner’s asserted negligence in carrying a load of produce from Arizona to New York. The shipment did not cross Arkansas, but petitioner has “irregular lines” passing through Pulaski county. The cargo was damaged by being allowed to freeze. The plaintiff below, an insurance company, paid the shipper’s loss and brought this action in Pulaski county, as subrogee, for reimbursement.
The issue of venue turns upon the meaning of two successive sections of the Civil Code. The first provides that an action against a domestic corporation may be brought in the county of its principal office — here Washington county. Ark. Stat. Ann. § 27-605 (Repl. 1962). The second provides that an action against a railroad company and certain other carriers (admittedly including the petitioner) for an injury to person or property upon the defendant’s road or line “may be brought in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes.” § 27-606.
Both sections say that the action “may be brought” in a particular county, but we have held that phrase to be mandatory. Viking Freight Co. v. Keck, 202 Ark. 656, 153 S.W. 2d 163 (1941). The petitioner argues that the two sections are in conflict unless we say that § 27-605 applies to domestic corporations and § 27-606 applies only to foreign corporations. That construction is foreclosed by our language in the Viking case, where we said that § 27-606 makes no distinction between foreign and domestic corporations.
The petitioner is right, however, in insisting that under § 27-606 the suit must be brought in a county through or into which the road or line “upon which the cause of action arose” passes. We do not see how the language of the statute can be given any other interpretation. The respondent relies upon Chicago, R.I. & P. Ry. v. Miller, 103 Ark. 151, 146 S.W. 485 (1912), where the branch line upon which the cause of action arose did not run through Saline county, where we held the suit to be maintainable. The opinion did not discuss this particular point and, as we read the opinion, did not rule upon it. Furthermore, the defendant’s railroad did extend into Saline county, so that the court, considering the main line and the branch line together, may have believed that the terms of § 27-606 were met. We also note that in the Viking case, supra, although the injury took place in Missouri, it occurred upon the same line that passed through Mississippi county, Arkansas, which we held to be the proper venue.
In the case at bar the shipment from Arizona to New York did not pass through Arkansas at all; so the cause of action could not have arisen upon the lines that pass through Pulaski county. We must sustain the petitioner’s insistence that in this instance the venue is fixed by § 27-605.
Writ granted.
Roy, J., not participating. | [
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J. Fred Jones, Justice.
The appellant Robert L. Lisenby was charged on information Filed by the prosecuting attorney with the crime of “assault with intent to kill by use of a firearm.” He was found guilty at a jury trial and sentenced to 27 years in the state penitentiary with at least nine years to be served before parole.
On appeal to this court Lisenby has designated eight points on which he relies for reversal, but having concluded that he was entitled to a directed verdict as contended under his third point, we Find it unnecessary to discuss the other assignments.
The information Filed against Lisenby also included a co-defendant, Barney B. Norton, and the specific charge in the information was as follows:
The said defendants on or about the 2nd day of February, 1975, in Garland County, Arkansas, did unlawfully, wilfully and with malice aforethought make an assault upon one Norman Hall and Richard James with a deadly weapon, to-wit: a handgun by then and there shooting at them, the said Norman Hail and Richard James with said gun then and there had and held in the hands of him, the said Barney B. Norton, with the unlawful and felonious intent then and there, them, the said Norman Hall and Richard James wilfully and maliciously to kill and murder, in violation of Ark. Stats. Ann. 41-606, and the use of said Firearm in the perpetration of the said assault being in violation of Ark. Stats. Ann. 43-2336.
The facts appear as follows: In the early morning hours of February 2, 1975, one Norman Hall, a security guard at the Diamondhead Resort in Garland County, discovered that the “Pro Shop” at the resort had been burglarized and a quantity of merchandise had been removed therefrom. A golf cart was also missing and the golf cart was located near the premises adjacent to Highway 290. The canvas top of the golf cart had been removed and placed on the ground near the cart and the stolen merchandise was placed on top of the canvas top.
Mr. Hall and Richard James, in charge of golf course maintenance and construction, secreted themselves where they could watch the merchandise and around 6:30 A.M. an automobile stopped near the merchandise and two men got out of the automobile. The automobile traveled a short distance where it turned around and stopped again at the same location where it had first stopped. The two men went to the golf cart cover and started back toward the automobile carrying the canvas cover with the merchandise thereon between then. Mr. Hall shouted to the two men to halt and fired a pistol shot over their heads. The appellant Lisenby stopped and fell forward to the ground and his companion ran a distance of about 360 feet where he entered the waiting automobile. Mr. Hall then approached Lisenby and ordered him to get up from the ground, which Lisenby did, and at this point three shots were fired from the direction of the automobile. The bullets struck the ground near where James, Hall and Lisenby stood and Mr. Hall placed Lisenby between himself and the direction the shots were coming from.
A crime of assault with intent to kill and the penalty provided therefor are set out in Ark. Stat. Ann. § 41-606 (Repl. 1964) as follows:
Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counselors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one [1] nor more than twenty-one [21] years.
Thus, it is seen that “feloniously, wilfully and with malice aforethought” are necessary elements of an assault with intent to murder or kill, and Lisenby was charged in the language of this statute. To sustain an indictment for an assault with intent to murder, the evidence must be such as would warrant a conviction for murder if death had ensued from the assault. McCoy v. State, 8 Ark. 451; Lacefield v. State, 34 Ark. 275; Allen v. State, 117 Ark. 432, 174 S.W. 1179; Francis v. State, 189 Ark. 288, 71 S.W. 2d 469. Of course, intent to kill may be inferred from acts and circumstances of the assault but it cannot be implied as a matter of law. Ward v. State, 208 Ark. 602, 186 S.W. 2d 950.
The above comments are especially important in the light of additional statute, Ark. Stat. Ann. § 41-2507 (Repl. 1964), which provides as follows:
If any person shall shoot at any person, with the intent to kill or wound, although he may miss or fail to hit the person aimed at, he shall be deemed guilty of an attempt to kill or maim, and on conviction shall be fined not exceeding three thousand dollars [$3,000], and imprisoned not exceeding seven [7] years.
In Lacefield v. State, supra, the distinction as to intent becomes important as between the two statutes. In Lacefield we said:
The proposition is incontrovertible that to sustain an indictment for an assault with intent to murder, the evidence must be such as to warrant a conviction for murder had death ensued from the assault.
This court has said that in order to convict for assault with intent to kill, the state must prove without a reasonable doubt that an accused committed an assault and that it was with intent to murder. Allen v. State, 117 Ark. 432, 174 S.W. 1179. It is elementary under Arkansas law that one who is present, aiding and abetting in the commission of a crime is equally guilty as reiterated in Cheeks v. State, 169 Ark. 1192, 278 S.W. 10; Woolbright v. State, 124 Ark. 197, 187 S.W. 166, and Lacy v. State, 177 Ark. 1056, 9 S.W. 2d 314. These were assault with intent to kill cases but in them the accused, unlike Lisenby, were aiding and abetting in the commission of the crime charged or at least there was evidence from which the jury could have so found.
In 23 C.J.S. § 786 (2) is found the following:
In order to be an accomplice, one must in some way be connected with the crime charged against accused. Thus, it is not sufficient that he was connected with the accused in commission of other offenses.
See State v. Walters, 209 P. 349, 105 Or. 662. See also Coleman v. State, 121 A. 2d 254; People v. Webb, 25 N.Y.S. 2d 554, reversed on other grounds, 26 N.Y.S. 2d 386; State v. Bowman, 70 P. 2d 458, 111 A.L.R. 1393; Washburn v. State, 318 S.W. 2d 627; Warren v. State, 132 S.W. 136. See also Soloman v. Commonwealth, 270 S.W. 780; People v. Cowan, 101 P. 2d 125; Warren v. Commonwealth, 333 S.W. 2d 766.
There is considerable difference in the case at bar and such cases as Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. In Bosnick a father and son and two other young men were in the process of robbing a store when a policeman appeared on the scene and two of the robbers shot and killed the policeman. Each participant was charged with first degree murder. Bosnick, Sr., took the other defendants to the grocery store; all of them were armed and Bosnick, Sr., waited outside the store while the other three carried out the robbery with stocking masks over their faces. The defendants in Bosnick were not charged with the homicide in perpetration of robbery, but were simply charged with first degree murder. We pointed out in Bosnick that when a group plans an armed robbery, “Each one of the party would be responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Citing Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925). Then in Bosnick we continued as follows:
[T]he jury could have attributed to the elder Bosnick a full share of responsibility for what took place inside the Gatteys store, even though the original plan did not contemplate a homicide. Henry v. State, 151 Ark. 620, 237 S.W. 454 (1922). But the jury was not required to do so. By the decided weight of authority, and by what we regard as the better rule, the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.
In the case at bar the evidence is clear that Lisenby was associated with Norton and another individual in the theft of the merchandise from the Pro Shop, but Lisenby was apprehended in the theft of the merchandise. He offered no resistance to his arrest and was under the observation and complete control of the arresting officers when the shots were fired toward him and the officers. All three participants in the attempted theft of the merchandise abandoned the merchandise when the officers appeared, Lisenby surrendered and the other two ran away. After Lisenby was completely in custody offering no resistance whatever, one of his two former companions in fleeing from the scene fired three shots in the direction of Lisenby and the officers, and that was the sole basis for the charge against Lisenby of assault with intent to murder or kill.
As already pointed out, to sustain a conviction for assault with intent to kill the evidence must be such to have sustained a conviction for murder had the homicide occurred. In Jones v. State, 89 Ark. 213, 116 S.W. 230, the appellant was convicted of the crime of assault with intent to kill. The evidence was to the effect that the appellant chased the prosecuting witness with an ax threatening to kill him, but never did get in striking distance. In reversing the judgment, this court said:
There was no evidence to show that appellant at any time had the present ability to injure Carter in the manner alleged in the indictment. It is argued that appellant might have thrown an ax at Carter and have injured him with it in that manner. But the proof does not show that appellant made any effort to injure the prosecuting witness by throwing the ax at him. Even if an injury could have been inflicted in that manner, it was not attempted. Appellant must be convicted, if at all, upon the attempt he actually made, and not upon what he might have'done had he made the attempt. So the evidence is not sufficient to sustain the verdict, and the court should have set it aside for that reason.
In the case styled Slim and Shorty v. State, 123 Ark. 583, 186 S.W. 308, peace officers were advised of a train robbery and attempted to arrest the appellants who had alighted from the train. Upon approaching the appellants the officers said to them: “Boys, we want you; put up your hands.” (The appellants refused to give their names and were referred to as Slim and Shorty). The evidence was to the effect that both appellants were armed when apprehended and that they “started for their guns” when the officers accosted them. Slim’s gun hung in its holster and Deputy Sheriff Pierce told another deputy to watch Slim, Pierce then told Shorty not to pull his gun. Shorty, nevertheless, pulled his gun and pointed the gun at the face of Deputy Finley. Finley and Pierce fired about the same time and Shorty fell. Pierce then immediately looked at Slim and Slim’s hands were going up and his gun fell out in front of him. Both appellants were indicted for the crime of assault with intent to kill and also jointly indicted for the crime of resisting an officer. They both were convicted on the charge of resisting an officer and Shorty was convicted of assault with intent to kill. In reversing Shorty’s conviction for assault with intent to kill, this court said:
There was testimony tending to show that when the officers approached the appellants the driver ran the motor car up within a few feet of them and the officers jumped out with their guns presented towards the appellants before anything was said by the officers. A majority of the court is of the opinion that the testimony is not legally sufficient to sustain a conviction of appellant Shorty for the crime of assault with intent to kill, and that the court erred in not granting his motion for a new trial as to this offense.
In the Kentucky case of Warren v. Commonwealth, 333 S.W. 2d 766, the appellant Warren, Everett Perry, and three other men, were jointly indicted for the murder of Woodrow Smith. Smith operated a small coal mine and the appellant and Perry were members of a local union which was on strike. The homicide grew out of an effort on the part of the appellant Warren, Perry, and other union members to force Smith and his employees to join the union and participate in the strike. Warren and Perry and other members of the union armed themselves and converged on Smith’s coal mine. As they approached the mine, Perry dropped out of the group and suggested to Warren that he do likewise but Warren insisted on going on. Smith, in an attempt to elude the group, passed by where Warren and Perry were standing and Perry warned Smith that the group was going to kill him. Smith threw his own pistol to the ground and Warren retrieved it. Perry asked for the pistol and Warren refused to surrender it but put it in his pocket and walked off. Perry walked to where Smith had stopped and advised him that they had come up to talk with him about joining the union. At this point other shooting started. Perry saw Smith fall over and saw Warren standing about six feet away with a gun in his hand. He called Warren a.“damn fool” and Warren walked away. The question on appeal was whether the court erred in not giving an instruction that if the jury believed Perry was an accomplice of the defendant, Warren could not be convicted without corroborative evidence, and in affirming the judgment the court said:
Perry certainly started out with the mass movement of the striking miners. But it is clear from his undenied testimony that when violence developed, he not only refused to participate in the intimidation of Smith, but sought to prevent Warren from harming him. The familiar definition of an accomplice is one who participates in the commission of a crime, whether as a principal aider and abettor or accessory before the fact. The usual test is whether or not the witness could be convicted of the crime with which the accused is charged. Soloman v. Commonwealth, 208 Ky. 184, 270 S.W. 780. Mountjoy v. Commonwealth, 262 Ky. 426, 90 S.W. 2d 362. Mere association with the accused or mere presence at the time of the commission of the offense does not make one an accomplice. Head v. Commonwealth, Ky., 310 S.W. 2d 285.
In the Oregon case of State v. Walters, 209 P. 349, two soldiers, Walters and Tillman, while A.W.O.L., committed several robberies in Portland. Policemen Palmer and Thorpe intercepted Walters and Tillman on a street corner and quoting from the opinion the following occurred:
When the officers met the soldiers at the corner, Thorpe said: “Boys, just a minute; I want to see you.” Tillman “stopped right there,” but Walters “walked right on — stepped off the curb.” Palmer gave his attention to Walters, and Thorpe gave his attention to Tillman. Thorpe ordered Tillman to take his hands out of his pockets, and Tillman “had just started to pull his hands out of his pockets when Walters shot Palmer.” Thorpe immediately took his “gun off of” Tillman and shot at Walters, and it is probable that this was the shot which wounded Walters in the shoulder.
Walters proceeded about 14 feet after he and Tillman were accosted by Thorpe, and Walters was only 5 or 6 feet from Palmer when he shot Palmer.
Tillman testified for the state at Walters’ trial and testified as to the robberies prior to the homicide. It appears that the statutes of Oregon contain a subdivision in § 868 “that the testimony of an accomplice ought to be viewed with distrust,” and the appellant assigned error in the trial court’s failure to give an instruction to that effect. In disposing of this contention the Supreme Court of Oregon said:
Tillman was an accomplice in the commission of the three robberies; but the record does not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide. Tillman was not an accomplice in the killing of Palmer, and therefore the trial judge properly omitted to instruct the jury about viewing the testimony of an accomplice with distrust.
We conclude that the same situation exists in the case at bar. There is no evidence whatever, either circumstantial or otherwise, that Lisenby entertained any malice aforethought, or any intent to murder, or kill anyone, and there is no evidence that he counseled, aided or abetted in firing the shots toward him and the officers. There is not even any evidence that Lisenby participated in the burglary. It is true he was participating in retrieving the stolen merchandise when accosted by the officers, but he had submitted to arrest and his former companions had made good their escape when the shots were fired. Whether the shots were fired at Lisenby, the two officers, or at all three, is not in evidence. It would require the highest degree of speculation to say they were fired at the officers to effect Lisenby’s release, or fired at Lisenby to silence him. It would also be pure conjecture and speculation to say the shots were fired as a probable and natural consequence of burglary under the evidence of record in this case.
The judgment is reversed and the cause dismissed.
Harris, C.J., concurs in part, dissents in part. Fogleman, J., dissents. | [
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George Rose Smith, Justice.
The appellant Rastle, a school teacher, was employed by the Marion County Rural School District to teach during the school year running from September, 1974, to May, 1975. At the end of the school year the district apparently decided not to renew Rastle’s contract, but the district failed to give the required notice that the contract was being terminated. Newton v. Calhoun County Sch. Dist., 232 Ark. 943, 341 S.W. 2d 30 (1960). During the following summer the district was divided into two new districts, comprising the same territory as that of the original district.
When the new districts refused to recognize Rastle’s contractual right to teach during the ensuing school year, he brought this suit, in equity, asking that the districts be compelled by a writ of mandamus to execute a voucher in the amount of his salary or, alternatively, that he have judgment for that amount. Without objection the case was transferred to the circuit court. In the course of a trial without a jury, Rastle testified that between the beginning of the 1975-1976 school year and the date of trial, February 13, 1976, he had earned $2,185 in other employment. The trial judge dismissed the complaint, finding that Rastle did not have a clear right to a writ of mandamus, that the court did not have jurisdiction to award a money judgment in a mandamus proceeding, and that the plaintiff had an adequate remedy at law.
The court was undoubtedly right in denying the request for a writ of mandamus to compel the districts to issue a voucher for the amount of the plaintiff’s agreed salary. The testimony presented an issue of fact as to the amount to be credited in mitigation of damages. The writ of mandamus will not be issued when there is a question of fact to be decided. Mothershead v. Ponder, 220 Ark. 816, 250 S.W. 2d 121 (1952). Moreover, at the time of trial the school year still had several months to run, during which Rastle might have earned additional mitigating income.
Rastle argues, however, that the trial court was wrong in holding that it did not have jurisdiction to award money damages in a mandamus proceeding. That question depends upon whether the two causes of action can be joined in the same proceeding.
Act 73 of 1967 enlarged the classes of actions that may be joined, but that act does require that the causes of action “be prosecuted by the same kind of proceedings.” Ark. Stat. Ann. § 27-1301 (Supp. 1975). A suit for breach of contract is a common-law action, triable by jury. By contrast, an action for mandamus is a special proceeding, to be tried by the court. Ark. Stat. Ann. § 33-108 (Repl. 1962). Such a petition “shall have precedence over all other actions and proceedings and shall be heard and determined summarily.” Section 33-104. It is to be heard within seven days, § 33-106, but in a common-law action the defendant need not file his answer until 20 days after the service of summons. Ark. Stat. Ann. § 27-1135 (Repl. 1962).
We think it clear that the two actions are so procedurally incompatible as to prevent their joinder. That seems to be the implication of our decision in School Dist. No. 3 v. Bodenhamer, 43 Ark. 140 (1884), which was also an action for the recovery of a teacher’s wages. In rejecting the school district’s contention that the teacher should have sought a writ of mandamus, we said: “The writ of mandamus is frequently employed to compel public corporations to perform their duties towards their creditors. But there must first be a judgment to establish the validity and amount of the debt.” That decision was adhered to in Huie v. Barkman, 179 Ark. 772, 18 S.W. 2d 334 (1929), although the existence of a statute expressly providing a remedy by mandamus led to a different result.
If the suggested joinder were permitted, two separate trials in a single lawsuit would frequently be necessary — one with a jury and the other without a jury. Under the statute the mandamus action would take precedence and should be tried first, but under the Bodenhamer opinion disputed questions of fact should first be settled by the trial of the common-law action. Such multiple possibilities of confusion are readily avoided by simply holding, as we do, that the two causes of action cannot be joined and that the plaintiff, as is true in many situations, must make an election between two remedies.
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J. Fred Jones, Justice.
This is an appeal by Joseph Helton and Elgin Bush, individually, and as next friends of their minor sons Danny Helton and Donald Bush, hereafter referred to as “Helton” and “Bush,” in a suit they filed against the appellees Missouri Pacific Railroad and Robert D. Selby.
The facts appear as follows: Helton was 16 years of age and owned a Honda motorcycle. Bush was 14 years of age. The two boys were close personal friends and Bush was in the habit of riding around with Helton on Helton’s motorcycle. On November 19, 1974, Bush was riding behind Helton on the motorcycle with Helton driving as they crossed the Missouri Pacific Railroad tracks at an elevated street crossing inside the city limits of Lake Village. As the boys approached the railroad crossing, they were unable to see what was beyond the crossing and at that point they observed a pickup truck belonging to, and being driven by, the appellee Selby backing into the street approximately 92 feet ahead of the motorcycle and in the same lane of traffic. Another automobile was approaching from the opposite direction the motorcycle was traveling and the motorcycle collided with the back portion of the pickup truck. The motorcycle was damaged and both boys were injured.
Two separate suits were filed by Bush and Helton and they were consolidated for trial. The complaints alleged that the collision was the result of the negligent acts of Missouri Pacific Railroad in constructing and maintaining an unsafe street crossing on an elevated dump or roadbed in such manner that the vision was obstructed from one side of the crossing to the other; that Selby was negligent in his failure to yield the right-of-way; failure to keep a proper lookout for oncoming traffic and in driving his vehicle from a private driveway into the plaintiffs’ traffic lane in violation of statute. A jury trial resulted in verdicts for the defendant-appellees Missouri Pacific and Robert D. Selby in both cases.
On appeal to this court the appellants have designated the points on which they rely for reversal as follows:
A. Appellant Bush—
I
The trial court erred by instructing the jury that passenger assumed the risk of his injuries when the uncontradicted facts show that the passenger could not have known or anticipated the risk that appellee would illegally back his vehicle into the motorcycle’s lane of traffic from a private driveway when under the law there is no duty to assume that another person will violate the law.
II
The trial court committed reversible error in instructing the jury on joint enterprise as between operator and passenger of a motorcycle when the ride was within the corporate limits of Lake Village and for no particular purpose except pleasure.
B. Appellant Helton—
I.
The trial court erred by submitting an instruction to the effect that the mere happening of an accident is not of itself, evidence of neligence when there was uncontradicted proof in the record that appellee had been negligent by violating Ark. Stat. Ann. 75-624 by failing to yield the right-of-way by pulling his vehicle from a private driveway into a public street.
Appellant Bush, the passenger on the motorcycle, contends the trial court erred in giving AMI Instruction 612 as the court’s instruction 17. This instruction permitted the jury to render a verdict in favor of Selby if the jury determined that Bush had “assumed the risk” for his injuries. Bush argues that the evidence failed to show that Bush assumed the risk for Selby’s actions. Appellee Selby argues that the risk Bush assumed was not the risk of negligent acts on the part of Selby, but the risk of appellant Helton’s negligent acts in the operation of the motorcycle and, therefore, Selby contends instruction 17 was proper.
In Prosser, Torts § 68 (4th ed. 1971), appears the following:
It is here that is the greatest misapprehension and confusion as to assumption of risk, and its most frequent misapplication. It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to negligence of the defendant which creates it. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at high speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk. And if A leaves an automobile stopped at night on the traveled portion of the highway, and his passenger remains sitting in it, it can readily be found that there is consent to the negligence of A, but not to that of B, who runs into the car from the rear. This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.
Thus, if Bush did assume the risk of Helton’s negligent driving, the proper instruction should have been one concerning Bush’s comparative neligence, that is, Bush was negligent in riding with Helton. The jury should have been instructed to compare the negligence of Bush and Selby instead of ruling in favor of Selby because Bush assumed the risk. See AMI 2102.
Appellee Selby cites a portion of 61 C.J.S. Motor Vehicles, § 486 (7), quoted by this Court in J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176 (1964), and in Hass v. Kessell, 245 Ark. 361, 432 S.W. 2d 842 (1968), as authority for the questioned instruction.
A guest’s assumption of risk, in case of a motor vehicle collision, applies only as between the guest and his host, and does not bar recovery from a third person for injuries to which the third person’s negligence proximately contributed, unless the acts of the host, in which the guest acquiesces, operate as the cause of the collision.
Neither this rule from C.J.S. nor the Arkansas cases where it was quoted call for the instruction 17. Bush was not suing the driver Helton for negligence; the C.J.S. rule limits the assumption of risk defense to the driver charged with negligence. Cases from other jurisdictions, Calahan v. Wood, 24 Utah 2d 8, 465 P. 2d 169 (1970); Keowen v. Amite Sand & Gravel Co., 4 So. 2d 79 (La. App. 1941); Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649 (1934), as well as the two Arkansas cases, supra, clarify the last clause of the C.J.S. (“unless the acts of the host, in which the guest acquiesces, operate at the cause of the collision.”) Where the host causes the collision, the recovery of the guest is affected by the guest’s comparative negligence in riding with the negligent host. However, the guest’s recovery is not barred by assumption of risk. In J. Paul Smith Co. v. Tipson, supra, Tipton was a passenger in an automobile driven by Woolsey. Woolsey drove his automobile into the rear of a truck which negligently drove onto the highway. Tipton was killed in the collision and the Tiptons sued the truck company and driver and also sued Woolsey. The jury found that Woolsey contributed 20% of the negligence and that the truck driver contributed 80% of the negligence which caused the death of young Tipton; and, that the negligence of Woolsey, as well as the negligence of the truck driver, was a proximate cause of the injuries and death. Contributory negligence did not go to the jury. The verdict for Tipton fixed the amount of damages and the trial court reduced the amount by 20% in the judgment against the truck company. It seems that the Tiptons waived their right to any judgment against Woolsey. On appeal the truck driver and truck company asserted assumption of the risk and contended:
that the boys should not be allowed to recover because they “assumed the risk of the harm that might come to them through the negligent acts of Billy Joe Woolsey in the operation of the vehicle in which they were riding.” This contention is based partly on the fact (as found by the jury) that Woolsey was 20% negligent and that his negligence was a proximate cause of the injuries. It is contended that under the well established “assumption of the risk” rule they could recover nothing, and that this rule was not affected in any way by our comparative negligence statute.
In affirming the judgment of the trial court this court said:
To adopt the rule which appellants appear to espouse would lead to an illogical and unjust result. It would allow Woolsey (the negligent driver) to recover, but it would deny recovery to the boys who had no control over the car.
Hass v. Kessel, supra, was the consolidation of two lawsuits resulting from an automobile collision. The driver of car 1, Morris, sued the driver of car 2, Hodges, and the passenger of car 1, Kessell, sued the driver of car 2, Hodges. Hodges was killed in the accident and Hass, the appellant, was the administrator of the Hodges estate. The case was submitted to the jury on interrogatories and the jury found the following percentages of negligence:
Hodges 44% Hodges 75%
Morris 56% Kessell 25%
The trial court reduced the amount of Kessell’s damages by 25% and entered judgment for Kessell against Hodges’ estate. The appellant argued on appeal as follows:
The Trial Judge erred in refusing to apply the jury’s finding that appellee Louis Kessell assumed the risk of riding with his host whose negligence exceeded fifty per cent and further erred in refusing to dismiss appellee Kessell’s complaint.
This court on appeal dismissed the appellant’s argument saying:
We are unable to see where assumption of risk as an element separate and apart from contributory negligence enters into the picture in this case at all. * * * Although Kessell assumed the risk of riding with Morris, and although he may have been negligent in doing so, he was not driving the Morris automobile, nor was he directing Morris in its operation at the time of the collision. Kessell did not sue Morris, but he did sue Hodges’ estate for damages he sustained because of Hodges’ negligence. The jury found that the combined, negligence of Hodges and Kessell caused the damages sustained by Kessell and that Hodges contributed 75% and Kessell contributed 25% of this total negligence causing Kessell’s injuries, and the court correctly found that as between Kessell and Hodges, Hodges was only liable for 75% of Kessell’s damages.
Although a jury instruction was not in issue in Hass v. Kessell, supra, the majority opinion indicates there is no need for any assumption of the risk instruction where the plaintiff guest in a motor vehicle is not suing his host driver.
Under the rationale of the concurring opinion in Hass, supra, the negligence of Helton, which the jury found to be greater than the negligence of Selby, might have been imputable to Bush because Bush assumed the risk of riding with Helton; and, therefore, Bush’s negligence was greater than Selby’s. But the instruction 17 given in the case at bar did not require the jury to hold against Bush if it determined that Bush assumed the risk of riding with Helton, and if it deter mined that Helton was more negligent than Selby. Rather, instruction 17 is the classic assumption of the risk instruction to the effect that a plaintiff who assumes the risk is barred from receiving recovery from the defendant. See AMI 612.
We conclude that the trial court erred in giving instruction 17 on assumption of risk because assumption of the risk by appellant Bush for the negligent acts of appellee Selby was not involved.
Under his second point the appellant Bush contends that there was not sufficient evidence to justify the trial court in instructing the jury on joint enterprise, and the trial court erred in giving AMI 712 as the court’s instruction No. 18. The appellant argues that there wgs no evidence showing the second element of joint enterprise under AMI 712: “An equal right to share in the control of the operation of the vehicle.”
In Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169 (1961), this court quoted with approval from 4 Blashfield, Chapter 65, as follows:
It is commonly a question of fact, for the jury to say, whether a joint enterprise existed between the driver and another occupant of an automobile, except where the evidence as to the existence of such a relation is insufficient to go to the jury.
The doctrine of joint adventure, in connection with the operation of motor vehicles, should be restricted to those cases where the common right to control its operation and the correlative common responsibility for negligence in its operation either are clearly apparent from the agreement of the parties or result as a logical and necessary conclusion from the facts as found.
As already pointed out, the evidence in the case at bar shows that the appellants, two teenaged boys, were riding together on appellant Helton’s motorcycle and that appellant Bush was the guest on the motorcycle. Helton testified that he and Bush often made such rides and that he would take Bush to destinations Bush suggested. Bush testified that Helton would take him to destinations in the community which Bush wanted to visit. Bush also testified as to his role in controlling the speed of the motorcycle when he rode with Helton.
Q. Let me ask you this, Donald, if you were ever going too fast, in your opinion, do you feel like you would have had the authority to tell him to stop, and let you off that thing?
A. I would have, but I wouldn’t know how, it is hard to judge how fast you are going on the back.
Q. You just ride on the back, and the speed is up to him?
A. Yes, sir.
Q. If you ever had the sensation that this thing was just going too fast for you, would you have felt like you could say, “Stop and let me off?”
A. Yes, sir.
Q. You think you could have done that?
A. Yes, sir.
Q. If he had ever been driving the motorcycle in such a manner that you felt like he was reckless, would you have felt like you could have said, “Stop and let me off?”
A. Yes, sir.
Q. And would he have honored that request?
A. Yes, sir.
We are of the opinion the evidence does not establish equal control of the motorcycle between the driver and his passenger. The answers of the appellants simply say that Helton, as a friend of Bush, would take Bush where Bush wanted to go. There is no testimony that Bush had the right to determine the destination of the pair over the objection of Helton. Bush’s testimony as to his control of the speed of the motorcycle indicates that he left the speed up to Helton and that Bush had the right to have the vehicle stopped so he could get off.
In Restatement of Torts (2d), § 491 (1965), is found language as follows:
[ Ij f there is no prearrangement for a substantial sharing of the expenses of the trip, . . . the trip is not a joint enterprise merely because it is made at the request of the plaintiff, because he and his host have a common destination, because the destination or any change in it is to be determined by mutual agreement, because it is arranged that the guest is to drive alternatively with his host, or even because they are going to the common destination to accomplish a purpose in which they have a common but not a business interest. No one of these facts, nor indeed all of them together, is sufficient to justify a jury or other trier of fact in finding that the trip was a joint enterprise.
In Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744 (1962), the court found error in instructing the jury on joint enterprise because the testimony failed to show equality of control between the passenger and host of an automobile. The case involved two salesmen who traveled together; they took turns suggesting locations where they should go to call on customers. In that case this court said:
Joint control and joint responsibility should go hand in hand; neither should exist without the other. If the passenger shares the responsibility for the physical control of the vehicle then it is proper for him to share the liability for the driver’s negligence. But if the responsibility of control is not shared then the liability ought not to be shared. In the case at bar the trial court’s error lies in permitting the jury to infer the existence of the second requirement from proof of the first, which in effect amounted to doing away with the second requirement altogether.
We conclude that the trial court erred in giving instruction 18 under the evidence in this case.
The appellant Helton contends that the trial court erred by submitting AMI instruction 603 as the court’s instruction 16, to the effect that the mere happening of an accident is not of itself, evidence of negligence when there was uncontradicted proof in the record that appellee had been negligent by violating Ark. Stat. Ann. § 75-624 (Repl. 1975) by failing to yield the right-of-way by pulling his vehicle from a private driveway into a public street. We find no error in giving this instruction. The appellant could have requested the court to give AMI 601 as follows:
A violation of Ark. Stat. Ann. 75-624 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.
The judgment as to Bush v. Selby is reversed and that cause remanded for a new trial. The judgment as to Bush v. Missouri Pacific and the judgment as to Helton v. Missouri Pacific and also v. Selby are affirmed.
Affirmed in part; reversed in part. | [
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Elsijane T. Roy, Justice.
Appellees, relatives of Ida D. Beals, brought this action against appellant Bettina B. Iwerson (daughter of Frank Beals) for the purpose of compelling specific performance of an alleged oral contract between Ida D. Beals and Frank Beals to make joint and mutual wills. The action also prayed that Mrs. Iwerson be constituted a trustee of certain assets which appellees would have received had the terms of the wills been consummated. From a decree in favor of appellees Mrs. Iwerson brings this appeal.
On November 20, 1962, Frank Beals and Ida B. Beals executed joint and mutual wills in one document, creating a testamentary plan in favor of the surviving testator as a life tenant with remainders in the heirs at law of both testators. The pertinent provision of the wills reads as follows:
3rd. All the rest and residue of my estate, real personal and mixed, wherever situate, I give, devise and bequeath to my spouse, for life with full power to use, invest, reinvest, manage, control any part or parts thereof for the care, maintenance, comfort, convenience, recreation and pleasure of said spouse; and to execute all necessary quittances and assurances pertaining thereto; and at death of said spouse, all remainder in said estate to the following persons to the extent shown, to wit: (a) To Mrs. Bettina B. Iwerson (daughter of Frank L. Beals) if living; and if deceased, in equal parts of her nearest next of kin, per stirpes; one half (1/2); (b) To Nicholas Duchek (brother to Ida D. Beals) one fourth, (1/4); (c) To the surviving children (or heirs,per stirpes) of Rosemary Mabbott (sister to Ida D. Beals), and this date including Susan, Lynn, Jill, Ann, James and Michael; one fourth (1/4).
Frank and Ida were married May 1, 1941, and lived together until Ida’s death on May 13, 1972. No children were born of their marriage. Appellant is Frank’s daughter by a previous marriage,
Frank Beals, although some 30 years older than his wife, survived her and qualified as executor of her estate. He served as such executor until his death on August 31, 1972. On May 17, 1972, (four days after Ida’s death) Frank executed a holographic will, leaving his entire estate to appellant. On August 22, 1972, he executed a declaration of trust, conveying the assets of Ida Beals’ estate to himself as trustee for the exclusive use and benefit of himself and appellant, for maintenance in their accustomed manner of living and/or for any other purposes the trustee believes to be in the best interest of the said beneficiaries. Attached to the trust document as Schedule A was a list of assets substantially in excess of $300,000 in market value. By amendment to the trust on August 29, appellant was designated as sole beneficiary to the exclusion of Ida Beals’ relatives.
At her father’s request appellant came from California to Eureka Springs on May 2, 1972, to take care of him. However, she gave no money or property to her father for the beneficences awarded her under the trust and his holographic will. While Frank Beals was alive she received a home in Eureka Springs from him together with $20,000 to pay the mortgage thereon and other gifts of furniture and personal property. These assets were not made a part of Ida Beals’ es tate, and the court specifically found that Mrs. Iwerson could retain this property.
In Janes, Excr. v. Rogers, 224 Ark. 116, 271 S.W. 2d 930 (1954), we held a contract for reciprocal wills need not be expressed in the wills, but may arise by implication from circumstances which make it clear that the parties had such wills in mind and that they both agreed to the terms of the testamentary disposition made therein.
Here the wills are not only reciprocal in terms, but both are contained in one document, executed by the testators contemporaneously and necessarily in identical terms. The document and the circumstances surrounding it indicate an agreement by Frank and Ida Beals concerning disposition of their properties. In fact the document is itself in the nature of a contract, being dated, signed by the parties and signatures witnessed by three persons.
The major part of the property was held in Ida’s name, who was 30 years younger than Frank. It is logical to assume that Frank thought he would die first and wanted to be sure his only daughter would receive the benefit of half of the joint estate after Ida’s death. Provision in the wills for all surviving kin of both testators is significant of the agreement and intentions of the testators at the time. The testimony also reflected that Frank and Ida acted jointly in almost everything.
The limited power of disposition under the joint wills reposed in Frank Beals the right to utilize the assets of the estate for his well-being subject to the limitations set out therein. It did not give him the right or power to convey by will or by trust the remainder of the estate to his daughter on his death, rather it contemplated an equitable division of the residue among the various heirs of both testators.
In Owen v. Dumas, 200 Ark. 601, 140 S.W. 2d 101 (1940), we dealt with a will containing a limited power of disposition. Owen held that under the will of the deceased, by which he gave all of his property to his wife in trust for herself and his children with power to sell when necessary for her support and maintenance, and/or for the maintenance and education of his minor children, the wife acquired a life estate only and that she had no power to sell the property except for the purposes mentioned in the will. See aiso other cases cited therein.
It is illogical to argue, as appellant did, that Frank’s actions in establishing the trust should be sustained as being for his use and “recreation and pleasure.” In Galloway v. Sewell, 162 Ark. 627, 258 S.W. 655 (1924), we held:
As a general rule the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy or cultivation, etc., or the rent which can be obtained for its use. If it is money or its equivalent, generally speaking, it is the interest which it will earn. (Citations omitted.)
The facts we have detailed here and others, upon which we need not elaborate, certainly indicate the preponderance of the evidence supports the chancellor’s finding “that the joint wills of Frank and Ida Beals were the result of a contract between them, and once Ida Beals died, Frank Beals could not in equity violate the agreement.” Accordingly we hold the trust invalid as exceeding the limited power of disposition under the wills.
We have considered the various arguments advanced by appellant for holding the trust valid and also the allegations made as to errors in the trial court proceedings; however, we find these contentions to be without merit.
Affirmed.
We agree. Harris, C.J., and George Rose Smith, Jones, Byrd and Holt, JJ.
APPENDIX
A photocopy of the document is attached as an appendix to this opinion.
In an unpublished opinion, Iwerson v. Mabbott, No. 75-241 (July 19, 1976), we affirmed the probate court in its decision that Frank Beals could not dispose of property passing to him under the residuary clause of the will of Ida Beals by a subsequent will leaving all the property to his daughter, Bettina Iwerson.
The record reflects one reason most of the property was in Ida Beals’ name was because Frank Beals had transferred it to her to avoid paying a large sum of back alimony for which judgment against him had been secured in Illinois. | [
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