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Humphreys, J.
This is an application or petition to this court for a writ of prohibition directed to the Hon. Patrick Henry, judge of the circuit court of Drew County, not to proceed, upon the service obtained, with the trial of two separate causes of action for damages on account of personal injuries instituted in the circuit court of said county by Willie Beard and Mrs. Lucy Leonard against Bradley Lumber Company of Arkansas. The service in each ease was obtained by delivering a copy of each summons upon Leo Jackson as agent in charge or manager of Bradley Camp, a place of business owned and operated by Bradley Lumber Company of Arkansas in Drew County, under authority of § 1152 of Crawford & Moses’ Digest. That section of Crawford & Moses ’ Digest provides that suits may be brought against a corporation in any county in the State in which it maintains a branch office or other place of business by service of a summons upon the agent, servant, or employee in charge of said office or place of business.
The petitioner herein or defendant in each of said suits appeared in said court for the sole purpose of quashing the service on the grounds that it maintained no place of business in Drew County within the meaning of § 1152 of Crawford & Moses’ Digest and that the summons was not served upon its agent, servant, or employee, in charge of any such 'business.
The motion to quash the service was submitted to the court upon testimony introduced by the parties to the suits and was overruled over petitioner’s objection and exception, and this petition for a writ of prohibition followed.
Petitioner states in its brief that it is entitled to the writ unless there is some substantial evidence in the record to support the finding* of the circuit court to the effect that it maintained a branch office or place of business in Drew County which was in charge of and managed by Leo Jackson.
The construction placed upon § 1152 of Crawford & Moses’ Digest by this court is that service of process is good and sufficient if served upon an agent, servant, or employee of a corporation in charge of a well defined line, of business carried on by the corporation in the county where the suit is brought. Terry Dairy Company v. Parker, 144 Ark. 401, 223 S. W. 6; Cooper v. Burel, 129 Ark. 261, 195 S. W. 356; Ft. Smith Lumber Company v. Shackelford, 115 Ark. 272, 171 S. W. 99.
The record reflects that the main office or place of business of petitioner was at Warren, the county seat of Bradley County, where it carried on a large lumber and logging business. It also reflects, by the admission of Joe L. Heaves, vice-president and manager or superintendent of all the outside business conducted by said company, that it maintained a branch office and business at Camp Bradley in Drew County until the............day of ........................, 1932; at which time, it moved the branch office or business conducted in Drew County to its main office or place of business in Warren. At the particular time referred to, petitioner moved the commissary from Bradley Camp in Drew County to Warren and ceased to cut logs in Drew County and haul them to the mill at Warren, and discharged some of the employees at that point. Everything else was left intact and the rest of the business was conducted as it had been for years. About twenty employees and their families remained at the camp and paid rent on the houses in which they lived, some eighteen or twenty of them. It continued to operate its light and water plants at that point for the use of its employees. It continued each working day to operate its two engines or trains for the purpose of transporting its employees to points in other counties to cut and load logs for use at the mill in Warren. When the engines came in over night, they were cooled off, repaired if necessary, and supplied with water for use the next day. They were housed and looked after by hostlers over night. Orders for supplies were solicited by an agent from Warren and brought from Warren to the camp and delivered to the employees. A little office attached to the building formerly used for the commissary remained furnished as before with a safe which contained records, an adding machine, chairs, and a desk. This office was used by Leo Jackson and others for clerical work such as making up time lists, logging statements, reports, etc., to be sent in to the main office or place of business at Warren. A telephone connected with the main place of business in Warren was used by Leo Jackson and others. Joe L. Reaves, in the capacity of manager or supervisor, visited the camp every ten days or two weeks, and in his absence Leo Jackson acted as his assistant and carried out his orders. Leo Jackson lived in one of the houses at the camp and was on the ground or else out where they were sawing log’s in Bradley County practically all the time. The employees regarded and treated him as the boss. The deputy sheriff who served the summons on him was directed to him when he inquired from an employee for the manager. Before serving the summons on him, he asked him whether he was the manager of the business in Drew County, and he replied that he was. Other circumstances appearing in the record indicate that he was the manager of a substantial part of the petitioner’s business in Drew County at the time the summons were served upon him. We think there is ample evidence in the record to sustain the circuit court in overruling the motion to quash the summons.
The writ is therefore denied. | [
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Smith, J.
On June 10, 1929, the tract of land involved in this litigation was sold by the collector of taxes for Boone. County for the nonpayment of the taxes due thereon for the year 1928. Pursuant to this sale the clerk of the county court executed and delivered to the tax purchaser his tax deed on July 16, 1931. This suit was brought to cancel that deed. There were allegations of a tender of taxes, etc., supported by a proper and sufficient affidavit.
The sale was attacked upon numerous grounds. We do not consider all the irregularities alleged in the assessment of the land for taxation or the proceedings incident to its sale. Having found that the sale was void for the reason herein stated, it is unnecessary to consider whether it was not also invalid for other'reasons alleged.
It appears that § 10,084, Crawford & Moses’ Digest, was not complied with. This section reads as follows: “The clerks of the several counties of this State shall cause the list of the delinquent lands in their respective counties, as corrected by them, to be published weekly for two weeks, between the second Monday in May and the second Monday in June in each year. Such list of delinquent lands shall be published in some newspaper of the county, if any be published therein; if not, in some, newspaper published nearest to said county having a circulation in such county. He shall also keep posted up in or about his office such delinquent list for one year.”
Numerous cases have held that noncompliance with the provisions of this section invalidates the sale, and the testimony of the county clerk discloses the fact that there was a failure to comply therewith. Byrne v. Less, 92 Ark. 211, 122 S. W. 635; Walter v. Swaim, 107 Ark. 242, 154 S. W. 511; Wolf & Bailey v. Phillips, 107 Ark. 374, 155 S. W. 924; Earl v. Harris, 121 Ark. 621, 182 S. W. 273.
The court should therefore have held the sale invalid, and should have canceled the tax deed as prayed, upon compliance with the tender which the complaint alleges was made.
The decree of the court helow will therefore be reversed, and the cause remanded with directions to enter a decree conforming to this opinion. | [
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Mehaffy, J.
Tbis action was begun in the Scott Circuit Court against the appellant and Dr. J. P. Runyan for injuries alleged to have been sustained by the ap pellee, Mrs. Sue Britt, by reason of an infection in her eye, the result of what she charged to be negligence on the part of Dr. Runyan. Dr. Runyan was chief surgeon at Little Rock for the appellant company. Mrs. Britt was employed as a registered nurse by the appellant. The following contract was introduced in evidence:
“This agreement, made in duplicate this 15th day of March, 1928, between The Chicago, Rock Island & Pacific Railway Company, by S. O. Plummer, M. D., its chief surgeon, as first party, and Drs. J. P. Runyan, J. P. Sheppard, L. D. Reagan, C. E. Witt, J. P. Delaney and Mrs. W. S. Britt, M. D., of Little Rock, State of Arkansas, as second party (known as the St. Luke’s Hospital Clinic) witnbsseth, That,
“1. The. second party is hereby appointed district and hospital surgeons of the first party for Little Rock, in the State of Arkansas and vicinity, and he hereby accepts said appointment.
“2. The second party agrees, for the consideration hereinafter provided, as follows:
“(a) To render all proper and necessary surgical and medical attention to the employees of the first party residing within the territory covered hereby, also to all such employees of the first party as shall be injured accidentally while in discharge of duty, no matter where residing, whenever requested so to do by any of such employees.
“(b) To render, at any point within the jurisdiction covered hereby, similar services to all passengers injured while traveling upon the road of, or injured on the premises of, the first party, when requested so to do by any officer, conductor, or station agent thereof.
“(c) To render, at anjr point within the jurisdiction covered hereby, such services as shall constitute actual emergency attention necessary for the relief of any injured trespasser, until he can be turned over to public authorities or friends.
“(d) To render in all other cases, such as crossing accidents and the like, actual emergency attention necessary for the relief of any such injured person, when requested so to do by an authorized representative of the first party, and also such further attention as may be so requested by the first party.
“(e) To fill out full reports in duplicate on the First Report Blank, Form 1601, and to forward this on the first passenger train after the services are rendered, one report to the claim agent, in whose territory the injury occurred, and one to the office of the chief surgeon, at Chicago. Should the injury be serious, all the facts in the case should be reported at once by railroad telegraph to the office of the chief surgeon.
“(f) In cases of serious injury, of which the first party assumes permanent charge, to fill out in duplicate supplementary report on form 1609 every five days, until the indications are all of a favorable character, and to forward the same in the manner provided for first report blanks. In addition to these reports in serious cases, a supplementary report must be made in duplicate at least every ten days in all cases.
“(g) In discharging a case, either in the event of recovery or transfer to the care of other surgeon, or death, to fill out in duplicate final report blanks form 1602, and to forward the same in the manner provided for first report blanks. Also fill out form 1610 (release blank) and hand it to the patient to take to his employing officer. Mail duplicate of this to the district claim agent.
“All of the above apply to every ease, no matter how trivial in appearance and’whether the company is thought liable or not.
“Note: No formal operation of serious character must be attempted until full reaction from the shock of injury is established, with exceptions in two conditions, viz., grave hemorrhage, or injury to abdominal viscera.
“(h) To make all such examinations as may be required by the first party in connection with its personal record and pension bureau.
“ (i) To make all examinations of employees or persons desired by the legal and claim departments of the first party, sending one copy of the report indicating the result of such examinations to the chief surgeon, and one copy thereof to the claim agent.
“(j) To attend in behalf of the first party as a witness in any investigation or judicial proceeding where the testimony of the second party may be required or desired.
“ (k) To faithfully observe and carry out all orders, directions and regulations which said chief surgeon shall from time to time transmit or cause to be transmitted to the second party.
“(1) The second party will furnish without charge, instruments, anaesthetics, splints, medicines or anything necessary for the. performance of any operation, treatment of fracture or dressing of wounds.
‘‘ (m) Drugs, other than those required for first attention, must be paid for by the patient, except in the hospital association district.
“Medical Treatment in Hospital Association District
“ (n) The foregoing provisions of this contract will also govern employment of surgeons at points on the lines of the company in the hospital association district, except that the following instructions shall be followed as to those entitled to free attention.
“Those Entitled to Free Attention
“(o) Contributors to the hospital fund, who are sick (or injured while off duty) are entitled to free attention at the expense of the hospital fund when they present identification slip from the employing officer showing that they are entitled to attention.
“(p) All bills account hospital association district for hospital, nursing and ambulance services, and for surgical services where the employee was not injured in discharge of duty, shall be presented monthly in duplicate, on form 1619; hospital, nurse and ambulance bills to bear the approval of second party. In the cases of employees injured in discharge of duty, duplicate bills are not required, but every bill presented should bear the approval of second party.
“3'. It is expressly agreed between the parties hereto that the compensation hereinafter provided for shall include all surgical and medical attention or service of every nature and description which the second party shall render as aforesaid, including all dressings of injuries, amputations, adjustment of fractures, reducing of dislocations, ligations of arteries, and trephining and raising depressed fractures of skull, and all microscopical, pathological and X-ray examinations which may he required in the proper treatment of the patient, or may be desired by the first party.
“4. In consideration of all services and attention to be rendered by the second party under this agreement, the first party agrees to pay to the second party, and the second party agrees to accept from the first party, in full compensation therefor, the sum of Pour Hundred One and 50/100 Dollars per month, beginning with the month of March, 1928; provided, however, that if the second party shall at any time be required, for any of the purposes aforesaid to make trips away from the city where his office is maintained, he shall be paid in addition thereto a per diem of twenty-five dollars, together with his actual expenses. It is further expressly agreed that the first party shall not be held for any other expenses of the second party, whether for office rent, lights, books, instruments, rubber gloves, furniture, dressings, or of any other nature or character whatsoever.
“5. Payments hereunder by the first party shall be made to the second party at his place of residence as aforesaid within a reasonable time after the end of each calendar month.
“6. It is further agreed that either party hereto may terminate this agreement by giving to the other thirty days’ notice in writing, provided that the first party, by its chief surgeon, may at any time forthwith terminate this agreement for the failure of the second party to faithfully and fully perform any of the service contracted by him hereunder to be performed.
“7. The courtesies of the first party are extended to the second party in the form of an annual pass.
“In witness whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.
“The Chicago, Rock Island & Pacific Railway Company,
“By S. C. Plummer, M. D.,
“Its Chief Surgeon. “J. P. Runyan, M. D.,
“J. P. Sheppard,
“L. D. Reagan,
“C. E. Witt,
“J. P. Delaney,
“Mrs. W. S. Britt.”
The following stipulation was introduced in evidence :
“It is agreed by and between all parties hereto that the following statement of facts may be read in evidence at the. trial of the above entitled action and treated as true, to-wit:
“At the time the surgical operation was performed on Wilson Cobbs by Dr. J. P. Runyan, with the assistance of Mrs. Sue Britt and others, Wilson Cobbs was in the employ of the Chicago, Rock Island & Pacific Railway Company. Wilson Cobbs, at the time the operation was performed upon him, was entitled to medical and surgical treatment and hospital care, afforded certain employees of the Chicago, Rock Island & Pacific Railway Company employed at, and near, Little Rock, Arkansas. That the operation being performed on Wilson Cobbs was not for a condition resulting from an injury received while working as an employee of The Chicago, Rock Island & Pacific Railway Company.”
In addition to the contract and stipulation, witnesses were introduced whose evidence tends to show that the operation on Wilson Cobbs by Dr. Runyan was negligently performed, and that that negligence was the cause of the injury to the appellee. The evidence shows that the appellee was assisting Dr. Runyan, and that in the operation a gland was burst by the negligence of Dr. Runyan, and that the contents went into her eye and caused it to become infected and caused the loss ' of the eye. The evidence as to the'manner in which the operation was performed, that is, whether Dr. Runyan was negligent in performing the operation is in conflict, and it would serve no useful purpose to set it out at length. Several witnesses testified that a surgeon, before performing the operation which Runyan performed, would have awaited the making of a laboratory test before operating when no emergency existed. There was also evidence to the effect that the surgeon should have warned his assistants to look out before he dissected or attempted to tear out the gland. That this warning should have been given to protect the assistants, as none of them would know when the surgeon intended to dissect the gland. The evidence also showed that it was customary for the surgeon to have a sponge or piece of gauze in his hand to prevent pus or infected tissue from flying out. They usually hold a piece of gauze in one hand, holding it over the working fingers so that if anything does break or fly out, the gauze catches it or stops it so it does not get into the face. The undisputed evidence shows that the surgeon took hold of the gland with his fingers, that it burst, and the infected tissue went into the eye of appellee, causing the injury complained of. As to whether the operation was negligently performed was a question of fact for the jury. The jury’s verdict is conclusive here on questions of fact, even though we might believe that the preponderance of the evidence was the other way. This court does not pass on the credibility of witnesses nor the weight to be given their testimony. The jury returned a verdict against the executor of the estate of Dr. Runyan and against the Chicago, Rock Island & Pacific Railway Company for $32,000, and judgment was entered accordingly. To reverse this judgment the Chicago, Rock Island & Pacific Railway Company prosecutes this appeal. There was considerable testimony as to whether the appellant was negligent in employing or retaining an incompetent surgeon. It is unnecessary to set out this testimony because, as we understand the law, if the operation was negligently performed, and this negligence caused the injury, the appellant is liable without regard to whether the appellant exercised care in the selection or retention of the surgeon, the sole question being, whether he was negligent in the operation and whether this negligence caused the injury complained of. The appellant cites many cases to sustain its contention that the appellant is only liable if it fails to exercise care in the selection or retention of the surgeon, and if it exercises care in this respect, it contends that it is not liable although the injury may have been caused by Dr. Runyan’s negligence.
The first case relied on is Union Pac. Ry. Co. v. Artist, 60 Fed. 365, decided in 1894. The court’s decision in that case is based squarely on its finding that the hospital was a charitable institution, and the facts are wholly unlike the facts in the instant case. The next case relied on is Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S. E. 740, 102 Am. St. Rep. 839. In that case there was no evidence of a contract like the contract in the case at bar. The facts are wholly different, and the opinion, as we view it, has no application in this case.
Appellant also calls attention to Texas Central Ry. Co. v. Zummwalt, 103 Tex. 603, 132 S. W. 113. In that case the contract was wholly different from the Contract in the present case. The surgeon agreed to establish and maintain a hospital at his own expense, and the railroad company simply agreed to collect fifty cents from each of its employees, and turn over the money thus collected to the surgeon for his compensation. It did not agree to pay him anything, but simply agreed to collect from the employees and turn the money so collected over to him. The next case to which attention is called is Louisville & Nashville Ry. Co. v. Foard, 104 Ky. 456, 47 S. W. 742. The facts in this case are so wholly different from the facts in the case at bar that we think it has no application at all. The next case is Cummings v. C. & N. W. Ry. Co., 189 Ill. 608, 60 N. E. 51. The only thing the court of Illinois decided was that under the statutes of the State of Illinois the appeal in that case could not be maintained. The next case is Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745. The court held in that case that the appellant was a public charity, and that is the reason and the only reason that it was held not liable. Appellant then calls attention to Phillips v. Ry. Co., 211 Mo. 419, 111 S. W. 109, 17 L. R. A. (N. S.) 1167. The court in that case said: “Nor are institutions of the character disclosed by this record exempted from liability by the mere employment of competent servants. They must go further and competently treat the patients received. In such case they occupy the position of ordinary physicians and surgeons and are bound by the same rules, which are too familiar for repetition here. If they undertake to furnish the treatment not. as a charity, they stand in no different light than the ordinary physician. But this question is really beside the issue, in this case. No one can read this record without concluding that, if the thin corporate shell of the hospital is broken, the yolk therein is the defendant; * * * that the Hospital Association is operated for the benefit of the defendant as much as for the benefit of the employees is too apparent from this record.”
The contract in the case last quoted is similar to the contract in the instant case, and the court held the railway company liable. In the case at bar it is claimed that the appellant does not operate the hospital for profit. There is, however, no showing in the evidence how much is collected from the employees nor what the expenses paid by the railway company in the operation of the hospital amount to, but, as said in the case last quoted, it is certainly operated as much for the benefit of the railway company as it is for the employees. The contract in this case expressly .provides: “That the surgeon is appointed district and hospital surgeons for the first party in Little Bock in the State of Arkansas, and that he hereby accepts said appointment. The contract also provides that the, second party, that is Dr. Bunyan, shall observe and carry out all orders, directions and regulations which said chief surgeon shall from, time to •time transmit or cause to be transmitted to the second party. Unlike the contract in one of the eases relied on by appellant, this contract does not provide for the col lection of the money from the employees, but it is expressly provided that, in consideration of the services of the party of the second part the first party, that is, the railway company, agrees to pay the second party and the second party agrees to accept from the first party, in full compensation therefor, the sum of $401.50 per month. It then provides that, if at any time the second party is requested to make trips away from the city where his office is maintained, he shall be paid $25 a day, together with actual expenses. The contract provides that either party may terminate the agreement by giving thirty days’ notice, provided that the first party, by its chief surgeon, may at any time forthwith terminate this agreement for failure of the second party to faithfully and fully perform any of the services contracted by him to be performed. It also provides for giving the- parties annual passes. In other words, this is purely a contract of employment. The contract giving the railway company the right not only to hire but to discharge and the right to control the actions of the parties of the second part. It is true this contract was signed by several persons besides Runyan, but the- undisputed evidence is that Runyan was in charge of the hospital, and that the other parties were under his supervision and control. The appellant also relied upon the- case of Ark. Midland Co. v. Pearson, 98 Ark. 399, 135 S. W. 917. That case holds, in effect, that where the railway company gratuitously assumed to collect and preserve from its employees and therefrom to provide, hospital accommodations and medical attention to its injured employees without any profit or gain therefrom, it will not be responsible. for the negligence of the physicians and surgeons employed at such hospital, provided they use ordinary care in their selection.
It will he observed that the court said that where the railway company gratuitously assumed to collect and preserve, a fund therefrom to provide hospital accommodations and medical attention without gain or profit, it would not be liable. There is no evidence in the instant case that it gratuitously did this, and there is no evidence in the instant case that it paid the surgeons and hospital employees from this fund. One witness testified that a certain portion was paid from the employees’ fund and a part by the appellant, but the evidence also shows that the fund collected from employees was kept with appellant’s money. The contract here provides, without reference to this fund, to pay the surgeon a certain amount per month. Appellant hired him, entered into a legal contract in which it reserved the right to the chief surgeon to discharge him at any time. The court also said, in the last case mentioned, it was not contemplated by such employees, in their contribution to this fund, that it would be used in the payment of damages for the negligence or malpractice of physicians employed in the operation of such department, and certainly the railway company that assumed gratuitously to collect and preserve such fund and employ competent physicians and surgeons to operate without any profit or gain therefrom should not be required to pay damages for malpractice, it being no part of its business to maintain a hospital. There was nothing in that case, as we understand it, indicating what was in the charter of the railway company, and there is nothing in the instant case indicating what the charter provides with reference to the hospital. The court holds in the last ease, at most, that it can only be considered a trustee for the proper administration and expenditure of such fund and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief, etc.
The contract in this case is wholly different. They are not in this contract trustees for anybody or any fund but they contract to pay the surgeon and employees without regard to any fund. The court further said in that case, if it agreed and contracted with such employees in consideration of the fees paid by them to furnish proper medical attention the rule might be different. In the instant case, it did contract to furnish the medical attention and agreed to pay for same, and the surgeon agreed to perform the services and accept the- pay. It is wholly immaterial whether the railway company ac cumulated a fund by taking a certain amount from the wages and salaries of its employees or whether it created the fund by charging for freight and passenger services or how it got it. If an employer enters into a contract with an employee to pay him a certain sum per month for his services, neither the servant nor any one else has any right to inquire how or where the master gets the money. He is required to pay and agrees to pay, and the relation of master and servant existed, and there was no relation, so far as the record in this case shows, of administering the fund as trustee.
There is nothing in the. contract in this case about the employees contributing except the statement that the contributors to the Hospital Fund who are sick (or injured while oft duty) are entitled to free attention at the expense of the hospital fund when they present identification slip from the employing officer showing that they are entitled to attention.
In the case of St. Louis S. W. Ry. Co. v. Webb, 170 Ark. 1089, 282 S. W. 966, the court stated that by the contract introduced in that case it was shown that the railway company operated the hospital under agreement as a trustee. There is no evidence in the instant case to that effect. The court said also in that case that the superintendent and all others drawing salaries were paid out of this hospital fund. The contract in the instant case is to pay without any regard to the hospital fund, but the court also said in the Webb case: “We think the jury was warranted in finding that the railway company was in complete control of the hospital as trustee through the power conferred on it by the trust agreement of appointing and discharging the superintendent who was completely in control subject only to the right of Neislar to inspect and to report to the labor unions any inattention to any of the members of the unions which had selected him for that purpose.” The court then quoted from Sears’ “Trust Estates as Business Companies,” as follows: “That trustees are liable in their personal capacity for acts of negligence or other torts committed by themselves or their agents in matters relating to the trust seems not seriously disputed. ’ ’ The court in that case further said: “There is a humanitarian doctrine involved here. The patient was carried to the hospital where the operation could have been performed. The theory of the plaintiff’s case is, not that there was any negligence in the treatment given the patient, but that there was a withholding of treatment which was never rendered, and nothing was done, except to send the patient to another hospital, and this only after a delay of several hours.” We thiiik the principles announced in that case are controlling here. Any person or corporation who makes a contract of employment with another agreeing to pay the other for his services and the other person accepts the employment and agrees to do the work, if he is negligent in doing the work, the employer is liable. ■ We think there was just a question of negligence, and there was ample evidence to justify the jury’s verdict.
Appellant complains about the instructions, but, in the view we take of the law, the instructions complained about were not prejudicial. The court instructed the jury with reference to the exercise of care in employing and retaining a surgeon. This instruction was more favorable to the appellant than it was entitled to, and, of course., it cannot complain about the court giving it. This is simply a question of master and servant and of liability of the master for the wrongful conduct of the servant, and, as we have said, we think that whether the servant was guilty of negligence was a question of fact, and the finding of the jury is conclusive here. There was no question, we think, of fellow-servants in the case. Of course, it would be immaterial whether Mrs. Britt and Dr. Bunyan were fellow-servants or not. The appellant, however, contends that neither Dr. Bunyan nor Mrs. Britt was in the employ of the Chicago, Bock Island & Pacific By. Company in performing this operation; that the evidence shows that the patient was being treated for the Bock Island Employees’ Association. The appellant may have, had a contract with the Bock Island Employees ’ Association to treat patients like the one being treated, but the contract in this case, which certainly governs the relation of the appellant with Dr. Runyan and Mrs. Britt, clearly shows that they were acting for the appellant. The evidence shows that Dr. Runyan was in complete charge of the hospital under his contract with appellant and had supervision of the other employees. Dr. Runyan died after the suit was begun, and there was no appeal from the judgment against his estate.
We find no reversible error, and the judgment is affirmed.
Smith, McHaney and Butler, JJ., dissent. | [
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Butler, J.
Mrs. Katheryn O. Dugan is the owner of an office building in the city of Hot Springs. She leased offices to the appellant, Dr. Browne, and thirteen others. These tenants abandoned their leases, and Mrs. Dugan brought suit to collect for the rents which had accrued up to the time of the bringing of her suit. The trial resulted in a verdict for the defendants, and Mrs. Dugan appealed to this court, which, in an opinion delivered March 13', 1933, reversed the judgment of the lower court for error in refusing to give certain instructions requested by Mrs. Dugan. Dugan v. Browne, 187 Ark. 12, 58 S. W. (2d) 426. On remand, the case was again submitted to a jury, which found in favor of Mrs. Dugan, and from the judgment based upon that verdict comes this appeal.
At the beginning of the trial, it was stipulated that the fourteen leases exhibited with the complaint were executed by the defendants and the plaintiff lessor; that the defendants had paid no other rent than that stated in the complaint, with the exception of Dr. W. H. Dead-rick; that they had not paid the amounts alleged in the complaint as the balance due of rent, except the said Deadrick who would be entitled to a credit of $480. The lease provided that the lessor should furnish necessary heat, light, gas, water, elevator and janitor service during the term of the lease. The defense tendered by defendants when the case was first tried was that the lessor had failed to comply with this agreement, thereby breaching the contract and justifying the defendants in abandoning the lease. At the trial on remand, the same defense was pleaded, and by an amendment to the answer the following further defense was offered: ‘ ‘ That, ill connection with and incident to the express covenant made by plaintiff (appellee here) to furnish defendants (appellants here) as tenants of said office building the necessary heat, light, gas, water, elevator and janitor, service required by defendants as such tenants, the plaintiff undertook to furnish and install the necessary plumbing fixtures, lavatories, water closets, sewer pipes, etc., required to accommodate the defendants as tenants of said building and undertook and agreed to keep such fixtures in proper condition and repair during the term of said leases.” The defendants alleged that plaintiff did not furnish the necessary plumbing fixtures, etc., but allowed the same to become defective and out of repair, and, although frequently requested to put them in proper condition, she neglected and refused to remedy them, ' (hereby breaching her contract and justifying the defendants in abandoning the premises.
To the answer as amended the plaintiff replied, denying the allegations, and upon the issues thus tendered the case was submitted to a jury upon the evidence adduced and the instructions of the court.
The appellants make seven contentions for reversal, the last being that the verdict was against the evidence. This we shall first consider. The testimony of the appellants was to the effect that there was insufficient janitor service, that the offices were poorly kept and were suffered to become and remain unclean; that they failed to receive the necessary heat, and there was trouble in entering and leaving their offices because of poor elevator service; that the plumbing was bad and the general conditions so unsatisfactory that they were compelled to abandon their offices and move into a new building; that they had complained of the failure of the lessor to comply with her agreements to the superintendent of the building, and some of them testified that they had complained to Mrs. Dugan personally, but that none of these complaints were considered or the defects remedied.
The evidence adduced by the testimony of witnesses for the appellee was in direct conflict with that given by those for the appellants, and was to the effect that all of the services agreed to were performed; that the offices were kept in good condition with the necessary attendants, the plumbing kept in proper condition, the elevator properly maintained and efficiently operated. Both Mrs. Dugan and the superintendent of the building, Mr. King, stated that they had never received any complaint other than was usual or ordinary, and that these they attended to and complied with the requests of the tenants, although inspections disclosed that the causes for these complaints were often brought about by the negligence of the tenants in the use of the offices and their equipment. They also testified that the first they knew of the intention of the tenants to vacate was when they had already left or were in the act of leaving.
The evidence also developed the fact that a new office building was in course of construction during the time of the occupancy by the tenants of Mrs. Dugan’s building. This was known as the “Medical Arts Building, ’ ’ a large and modern structure; that the. tenants, before abandoning their leases and before the Medical Arts Building had been completed, had contracted to rent offices therein.
We think there is sufficient evidence to warrant the submission of the defenses pleaded to the jury. It is the sole judge of the credibility of the witnesses and weight and value of their testimony, and its conclusion is binding upon us.
It is also contended by the appellants that the court erred in admitting certain testimony. The specific complaint made is that “counsel for appellee, on cross-examination of certain witnesses over the protest of the appellants, read to the jury certain portions of the transcript of their former testimony without laying a proper foundation therefor.” We are not favored with the names of the witnesses or the questions propounded to them relative to their former testimony, but we have examined the record and are unable to see in what particular appellants could have been prejudiced. Complaint is also made of the action of the court in permitting appellee’s counsel to interrogate, appellants “concerning a lease which was not material or competent to any of the issues involved in this case and was injected into the case for the sole purpose, of prejudicing the jury.” We presume that counsel refer to the testimony elicited from the appellants on cross-examination to the effect that, while they were still occupants of the Dugan building and before they had given notice of an intention to abandon same, they had signed leases for offices in the new building which was being erected. We think this testimony pertinent to the issue and competent as tending to show a motive for the abandonment of their leases other than that alleged in their answer.
An amendment had been filed to the answer of the defendants (appellants) on a certain Saturday morning. It was shown that they had met in the office of one of them, and on cross-examination they were asked as to whether or not they had talked over the case and discussed their respective defenses. This was over their objection. In the closing argument of one of the attorneys he was permitted to say: “I say they (the doctors) had a meeting last Friday night to discuss this case, and I suspect at that meeting the subject of additional claim was discussed and formulated, because on Saturday morning the amended answer was filed. That was alleged, and it was not done before Friday. You can draw your own conclusion. I am drawing mine. I do say that it came out Saturday morning that they made additional claim.” The appellants objected to this argument and here urge the same as reversible error. It will be observed that the attorney merely argued the meeting of the doctors on Friday night as a circumstance tending to show that the grounds set up in the amended answer were an afterthought, as the case had been once fully tried without these grounds of the answer having been mentioned. He said to the jury, “You can draw your own conclusion. I am drawing mine. ” It is our opinion that no prejudice could have resulted from this argument.
In the motion for a new trial it was urged that the verdict, which purported to be a unanimous one, was not such in fact. Jurors were called and testified to the effect that the verdict as returned, correctly reflected the action of the jury.
An attorney at the hearing on the motion for a new trial offered to testify as to statements made by jurors to him tending to contradict their testimony. The court refused to hear or consider the offered testimony, and this action of the court is assigned by defendants as error.
When the verdict was announced, either party might have required the jury to be polled (§ 1299, Crawford & Moses’ Digest), and when this has not been done, the jury’s verdict becomes final. Section 1300, Crawford & Moses’ Digest. Therefore, if any error was committed, it was one of which defendants can not complain.
There were two instructions numbered “7” given by the court, one at the request of the appellee, and one on its own motion at' the conclusion of the argument of one of the attorneys for the appellants. In the testimony of Dr. Deadrick, he complained of the refusal to permit him to use the passenger elevator for the purpose of taking a safe down to be sent out to be repaired. The court, by instruction No. 7 given on its own motion, excluded that testimony from, the jury in the following language: “I want to eliminate that complaint from the consideration of the jury. That is just one isolated instance, and does not apply to the other defendants; and, so far as Dr. Deadrick himself is concerned, that particular complaint will not be considered by you. It would not be enough to warrant him in abandoning his lease, so you will eliminate that from your consideration of the case.” It was shown by the doctor’s own testimony that the rule of the building, which was posted at the elevator, was: “This elevator is to be used for passengers only from 8:00 a. m. until 7 p. m:,” and the time that he desired the safe to be removed was about.the middle of the morning which was ordinarily a time when passengers were most frequently using it. It was not attempted to be shown that the rule relating to the. use of the elevator was unreasonable or unnecessary. The court therefore properly excluded this complaint from the jury.
At the request of the appellee the other instruction numbered “7” was given, which is as follows: “You are instructed that, in considering your verdict, you shall consider the evidence and instructions as applicable to each of the defendants, irrespective of whether you find against or for any other defendant or-defendants.” • The contention is that this instruction is improper arid prejudicial. Counsel for appellants has not pointed out in what particular prejudice might have resulted, and we are unable to see how any could have. There were fourteen defendants, and the court merely, and very properly, by this instruction, informed the jury that the evidence and instructions applicable to each should be-considered by it in determining what its verdict should be as to any one of them. This, we think, is the pur port of the instruction, and, if it was inaptly drawn, specific objection should have been made, to its language.
It is insisted that the instruction last above quoted is in conflict with the one relating to the testimony of Dr. Deadrick. We see no connection between them, nor any conflict between the two.
Instruction No. 2, given at the request of the appellee, placed the. burden upon the appellants to establish their defense by preponderance of the evidence. It is urged that this is error, the contention of the appellants being that the burden was upon the lessor to establish affirmatively the fact that the defenses pleaded were unfounded. This contention is based upon an allegation of the complaint “that plaintiff has performed each and every agreement and covenant stipulated in said lease to be kept and performed.” The contention of the appellants in this particular is unsound. The stipulation of counsel heretofore noted was offered in evidence by the appellee together with the lease, and she thereupon rested her case. The appellants assumed the burden of establishing their defense and contended that the burden of proof in the whole case would be on them, which would entitle them to the opening and closing of the argument. The court, answering this contention, said: “We will determine that later.” Whereupon, to sustian their several defenses, evidence was adduced by the defendants. In further recognition that the burden rested upon them, defendants requested the court to give an instruction which, in part, is as follows: “You are instructed that if you believe from a preponderance of the evidence during the. period of said leases the plaintiff breached the same by failure to comply with the provisions of said leases incumbent upon her in furnishing the defendants with necessary heat, light, gas, water and elevator and janitor service * * #, the defendants had the legal right to abandon the rooms embraced in said leases and to vacate same.” This instruction was not given by the court because it was covered by other instructions given. No complaint is made as to the refusal of the. court to give this instruction, but we call attention to it simply for the purpose of showing that at all times the defendants voluntarily assumed the burden of proving the affirmative defenses offered by them. This being the case, there was no error committed by the court in instruction No. 2, placing the burden upon the appellants. Complaint was made of instruction No. 5 on the same ground as made to instruction No. 2.
Appellants requested instruction No. 11a which the court refused and which action of the court is assigned as error. That instruction in effect declared the law to be that a leasehold interest might be terminated by the mutual assent of the tenant and landlord, either express or implied, and the jury was told that, if it should find “from the evidence in this case that the defendants, or any of them, abandoned the rooms occupied by them under a written lease with the plaintiff before the expiration of the term of said lease and that by her actions the plaintiff took possession of any of the rooms abandoned by any of the defendants for her own benefit and to the exclusion of the defendants, or any of them, then it will be your duty to find that there has been a surrender of such premises, although there was no express agreement to that effect between the parties.” This instruction was abstract, the evidence relied on by appellants to support it being entirely insufficient. This evidence goes no further than to show that the signs were removed from the windows of one of the appellants after he had vacated his rooms; that another gave the key to his offices to the manager a while after he had left, and after this he noticed that there were no lights in the office and all the doors were open; that the offices of Dr. Deadrick were rented to another party sometime after he moved, without his consent; and another one of the appellants testified that lights were removed from his offices after he had moved from the building and that he did not know who had removed them. None of this evidence is sufficient to show any assent by the lessor to the action of the lessees in vacating the premises. The evidence is undisputed that the lessor was advised by the conduct of the lessees that they had no thought other than to absolutely and permanently vacate the premises, and it is clear that the renting of Dr. Deadrick’s rooms was for his account. This is shown by the efforts made to get Dr. Deadrick to consent to the renting.
In the case of Hays v. Goldman, 71 Ark. 251, 72 S. W. 563, cited and relied upon by the appellants, the lessee of a store building was holding under a lease for a period of nine months, terminating on December 30, 1899. The lease gave the lessee the option to continue the same for a period of one year at the same rental. On the day of the expiration of the lease, the lessee served written notice upon the agent of the lessor that he would not continue the lease through the year 1900, but would like to retain it for the month of January. This notice was delivered to a clerk in the agent’s office who read it and remarked, “That is all right.” Without taking further steps to notify the agent, the lessee remained in the store and paid the rent for January in advance. Learning that the agent considered that he had elected to keep the property under his contract for another year, he protested against this view, and declared his intention of holding only during the month of January. At the end of that month he moved out and returned the keys to the agent. The owner, during the-month of January learning that the lessee intended to abandon the store, rented it to another for the remainder of the year at a monthly rental fifteen dollars per month less than he had been receiving and afterward brought suit to recover this difference from the lessee. To this suit the lessee answered that plaintiff consented that he might occupy the premises during the month of January and quit at the end of that time, and also that, at the end of that month he had surrendered possession of the store to plaintiff’s agent, which surrender had been accepted by said agent. This cotirt held that the circumstances entitled the lessee to have these defenses submitted to the jury and stated the law to be that “if the landlord takes charge of the property after the tenant has abandoned it merely to protect it from injury, or if, knowing that the tenant does not intend to return, he rents it for the account of the tenant, these acts may not show assent on his part, but if after an abandonment he takes possession and rents the premises on his own account, this is conclusive evidence of a surrender.” The circumstances of the instant case fall far short of those in the case cited and did not create evidence of a substantial nature, to warrant the - giving of the instruction above referred to.
Instructions Nos. 3 and 4 requested by the appellants and refused by the court are not abstracted, but from the argument made we judge that they in effect would have told the jury that it was the duty of the lessor, on abandonment by the lessee of the premises, to use a reasonable effort to let the premises to others to thus minimize the damage. The court properly declined to so instruct the jury. The general rule is stated in 16 B. C. L. 969, § 481, as follows: “If the tenant wrongfully abandons the possession of the demised premises, the landlord may re-enter and determine the contract of lease and in so entering is not guilty of a trespass. On the other hand, it is well settled that a tenant cannot by an abandonment of possession before the expiration of the term for which he has agreed to pay rent affect his liability for the subsequently accruing rents; in such a case the. landlord may let the premises lie idle and recover rent for the whole term. In such a case, according to the better view, the landlord is under no obligation to attempt to relet the premises on account of the tenant; the latter cannot by his own wrong in abandoning the premises impose this duty upon the landlord.” The rule announced is supported by the weight of authority and approved by this court in the cases of Meyer v. Smith, 33 Ark. 627, and Grayson v. Mixon, 176 Ark. 1123, 5 S. W. (2d) 312.
We find no prejudicial error in the rulings of the court as to any of the particulars presented by the appellants, and, as there is substantial evidence to support the verdict of the jury, the judgment is affirmed. | [
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Baker, J.
The appellee in this case, about thirteen years ago, purchased an eighty-acre tract of land in Independence County from Mack T. Smith, the appellant, and agreed to pay the sum of $2,000 therefor, executing eighty-five notes of $20 each. He paid $300 about January 1, 1921, and at that time, or soon thereafter, took a deed and executed a mortgage to secure the deferred payments.
At the time of this purchase both of the parties lived in Chicago, and the appellee says that he had never seen the land; that it was represented to him by the appellant, as an inducement to cause him to purchase the land, as being located upon a good road, when in fact it was not upon any road; that one had to pass through the lands of three different landowners to reach a road or mail route; that he represented the character and quality of the land as being excellent, free from rocks and suited to truck farming, when in fact it was rocky and not well adapted to truck farming, very poor soil; that he further represented that there was certain merchantable timber on the land, sufficient to pay for it, when in fact there was no merchantable timber whatever.
Appellee also charges that Smith represented that all of said land was capable of being placed in cultivation, when in fact there was only a small portion thereof suitable for cultivation; that he represented there was a good house and barn on the property, and that the land was fenced, when in fact there was no barn and no fence and that the house was in a very bad state of repair, and it was necessary to go to a great expense to make it habitable.
A contract was entered into in October, 1920; that the deed and notes were executed in January, 1921. It was some considerable time after that, perhaps a year, before the appellee saw the land, and he at once attempted to rescind the contract, but was persuaded by Smith not to do so, and Smith promised that he would grant him a reduction and make adjustment with him before final settlement would be required in payment for the land.
At the time the suit was filed there was due $400 of the principal sum under the contract, which, together with interest, amounted to about $600. This amount Leeper refused to pay. Smith proceeded to make sale of the land under the power granted in the mortgage and procured Oscar T. Jones to sell the land, at which sale Smith became the purchaser. Leeper brought suit to cancel this sale made under the mortgage, and for dam ages, and Smith, by way of cross-complaint, asked for the foreclosure of the. mortgage, or deed of trust.
Leeper, in his testimony, said that he saw Smith’s advertisement in The Chicago Daily Netos; that he wanted to buy a place for a home; that he saw Smith and took notes in a memorandum book as to Smith’s statements or representations. Among other things set out in the notes, which Leeper says he took down, is the fact that Smith recited that all of the land could be cultivated, except a small portion, and that there was timber enough on the place to pay for it; could raise vegetables of all kinds, beets and tomatoes one and a half to two pounds; land not rough but gently rolling; spring water, sufficient to irrigate the place; good soil; grow anything you plant; about thirty acres in cultivation; near churches; road and mail route near place; good road out; place fenced; good barn; house the best on south side of the river; other buildings, spring house; had six acres of fine orchard bearing peaches; tenant on the place named Cazort.
Leeper, without investigating but relying upon all of the representations so made, contracted for the land. In this suit he said there was no merchantable timber upon the land; no barn upon it; no fence; no orchard; that the house was in a very bad condition; the soil very poor and not productive; that the property was not worth exceeding $1,000 at a high price.
Other witnesses testified the property to be worth from $400 to $600. Cazort, who lived upon the. place was also a witness. He states that he received a letter from Smith, who advised him he had found a buyer for the place at $2,000 and asked him to make the place as attractive as possible; to meet the purchaser at the depot and take him to the farm late in the afternoon, just in time to get the train out the same day; that he thought the deal would go through and that he would pay Cazort for his trouble, and also that he didn’t want Leeper to get in touch with any real estate men for fear they would try to switch him to some other place; to keep the information aiven him in the letter to himself and to do his best to help make the deal go through and not to say anything to anybody until afterward.
Cazort said that he lived on the place four or five years, one year before Leeper came and four years after he came. He said that the timber on the place was fit for fire wood only; that the barn had been torn down for kindling the year before.
Smith testified that Leeper’s attitude was a shock to him and offered a letter written by Leeper and his wife stating that they had paid the taxes, no advertising-fee, that all the favors and help extended to them seemed like mountains of blessing and were received with real appreciation. Trusted that they might not always be up against it, that instead something may come their way which would make it possible for them to meet their full obligations and duty.. Smith admitted he wrote the letter to Cazort concerning- the purchaser who would come to look at the place.
The chancellor, upon the trial of this cause, found that this was a suit in recoupment for the deceit alleged to have been practiced by Smith upon Leeper. He set aside the sale, wherein the land was sold by Smith and bought by Smith, under the power contained in the mortgage or deed of trust. No question is raised about the correctness of this part of the decree. He found also that Leeper had paid full value for the land and canceled the other or outstanding notes and mortgage and quieted the title in Leeper against Smith; dismissed Smith’s cross-complaint, wherein Smith was seeking to foreclose the mortgage for the balance due upon the remaining portion of the contract or purchase, price.
It is urged upon this appeal that much of the evidence, or, at least, part of it offered by Leeper contradicts the contract. This is not correct, and this contention can arise only upon a misconception of the nature of the. suit. The contract does not say, of course, that there was a barn upon the place, but Smith had lived upon the place at one time, and there was one at that time. It is not in contradiction of the contract for Leeper to testify that there was no barn upon the. place, nor is he prevented from testifying that Smith told him there was a barn there merely because of the fact that no barn is mentioned in the written contract. The fraud or false representations, or deceit, is the gist of Leeper’s contention, and, if he were not permitted to show that the statements made as an inducement to him to enter into the contract were untrue, because of the fact that Smith did, or did not, write these statements into the contract, then the anomalous situation of preventing- a recovery in the case would arise, for the reason that Smith had not only deceived him, but had contracted with him so as to perpetuate and make workable this deceit without relief. Leeper ratified the contract but sought relief in recoupment.
This court has said in several cases that one of the remedies of the victim in the case of deceit is to await the effort to collect the money and then assert his remedy by way of recoupment for damages. Leeper, the appellee, has done this.
It is urged also that Leeper’s claim is stale; that he has not been diligent, but Leeper’s explanation is entirely tenable, at least not unbelievable, that is, to the effect that Smith had insisted that he keep the property, promising that he would adjust the price with him on the last payments. To argue that he should not have waited thereafter would be tantamount to arguing Smith’s lack of honor and good faith. Perhaps he should not have relied upon this promise of Smith’s, but should have proceeded at once with the suit, either to rescind or to recover his damages, but under the circumstances Smith may not properly urge that defense. Smith was making an effort to collect this money, alleged to be due him, by sale of the land under the power contained in the mortgage. Leeper filed his suit to cancel this sale and deed made under it and asked for damages.
Chief Justice Hart, speaking for the court, in the case of Held v. Mansur, 181 Ark. 876, 881, 28 S. W. (2d) 704, said: “In the third place, to avoid a circuity of actions and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the. same recouped against the sum he has paid for the land. Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546; and Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57. In the same case Chief Justice Hart said further: “Where the vendor knows that the purchaser is wholly ignorant of the valué of the. property, and knows that he is relying upon his representations, the representations do not take the form of a mere expression of opinion, but are in the nature of a statement of fact. The reason is that the vendor knows that the statements he has made are untrue or are made in reckless disregard of the truth, and it cannot be doubted that he knows and believes that such statements will have a material influence upon the purchaser. Carwell v. Dennis, 101 Ark. 603, 143 S. W. 135; Hunt v. Davis, 98 Ark. 44, 135 S. W. 458; Bell v. Fritts, 161 Ark. 371, 256 S. W. 53; Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432; LaneyPayne Farm Loan Co. v. Greenhaw, 177 Ark. 589, 9 S. W. (2d) 19.”
Smith’s letter to Cazort, attempting to arrange with Cazort to so manage Leeper upon his trip to visit the farm so as to not permit any one to meet or talk with him about the property, indicated pretty clearly his intention to deceive, and he did, in fact, deceive Leeper. Myers v. Martin, 168 Ark. 1028, 272 S. W. 856.
The court held that the remaining notes should be canceled. The brief of appellee suggests that further relief ought to be given Leeper, under the proof in the case, to the effect that the property was worth only five or six hundred dollars. We think, however, that, inasmuch as Leeper had paid of the principal amount $1,600 before he quit paying in order to enforce his remedy, the most he could consistently ask is what the court gave him, that is, relief from the payment of the balance of $400 and interest.
The chancellor’s ruling is supported by the authorities, and seems not to be against a preponderance of the evidence, but is well supported by it.
• It follows therefore that the case should be affirmed, and it is so ordered. | [
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McHaney, J.
Appellant owns and operates a narrow-gauge railroad in connection with its sawmill, over which it hauls logs to its mill. Appellee was employed by appellant as tong-hooker in loading logs onto its cars in the woods. On August 24, 1933, after having worked ail day in the woods, appellee and the other employees were transported back to the mill on the log train. All the employees, except the engineer, fireman and appefiee, left the train before reaching the mill, but these latter continued for the performance of other duties, one of which was to place the other engine at the water tank, spot it to go out next morning. The log cars were coupled to the engine and to each other by the link and pin system. After cutting the engine loose from the cars, appellee," as he says, under direction of the engineer, attempted to couple the live engine to the dead one for the purpose of spotting it as aforesaid. The engineer obeyed his lantern signal (darkness having overtaken them) to back up, but negligently failed to obey his stop signal when he attempted to make the coupling, and his hand was caught between the draw-bars of the two engines and severely injured. Trial resulted in a verdict and judgment in his favor for $500.
For a reversal of the judgment, appellant insists that there was no negligence on its part established; that appellee himself was negligent; and that he was a mere volunteer at the time he was hurt. In other words, that the evidence is insufficient to support the verdict. We cannot agree, but are of the opinion that the evidence was sufficient to take the case to the jury, considering it in the light most favorable to appellee, as we must do. He had been working for appellant since 1925 as a tong-hooker, except the time the mill had not been in operation because of depressed business conditions. Operations had only recently been renewed. During all his work he had frequently made couplings of cars in the woods to the knowledge 'of all the officials and other employees. He was a kind of handy man, doing whatever he was told to do. He says he was instructed by the engineer to make the coupling at the time he was injured. He attempted to obey this order, and the engineer knew he was doing so, as he responded to his signal to back up slowly. Appellee stepped between the engines to make the coupling and gave the stop signal. The engineer obeyed the first and failed to obey the second. The drawbars came together with such force as to knock the dead engine about one foot, and appellee’s hand was injured. Under these facts we think it a question for the jury as to whether this was negligence and was the proximate cause of the injury.
Contributory negligence would not bar a recovery, even though it be conceded he was contributorily negligent. Sections 7144, 7145, Crawford & Moses ’ Digest. In this respect appellee’s instruction No. 1, given by the court, was more favorable to appellant than the law justified.
•Whether appellee was a mere volunteer and acting without the scope of his employment was a question of fact, and was submitted to the jury under instructions requested by appellant. We cannot say as a matter of law that he was a mere volunteer.
No error prejudicial to appellant appearing, the judgment must be affirmed. | [
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MoHaney, J.
Appellant sued appellee to recover judgment on a promissory note for $5,000 and accrued interest which appellee had given H. W. Redus in his lifetime. Appellee defended on the ground that he had paid the note and interest on April 19, 1930, by check to the H. W. Redus estate which was delivered to the First National Bank and cashed by it. The facts, briefly stated, are as follows: H. W. Redus, a well-to-do citizen of Harrison, Arkansas, loaned appellee $5,000 in 1921 at 8 per cent, interest. Some time thereafter said Redus became insane, and appellee was appointed guardian of his estate in 1925, said note being a part of the assets of said estate. Interest was paid from, time to time and the note kept alive. Stock owned by appellee in the People’s National Bank of Harrison was given as collateral to secure said note, and appellee was the bank’s president. Said note and other assets of said estate were kept in said bank for safekeeping and collection and credit. Notes, rents, dividends and other assets were collected by the bank from time to time and deposited to appellee’s account as guardian of said estate. Later the name of said bank was changed to First National Bank. In 1929 appellee resigned as guardian, and appellant, son of H. W. Redus, was appointed guardian in succession. At that time, all the assets in the hands of appellee were turned over to appellant, including the note in controversy, and at the same time appellant left same in said bank for safekeeping and collection. The account was thereafter handled by the bank just as it had been handled while appellee was guardian. The note in question was made payable at the People’s National Bank, later changed to First National. On April 19, 1930, appellee sold all his stock in said bank to A. T. Hudspeth, receiving a draft on a St. Louis bank for $39,075 in payment therefor which he. deposited to his credit in the First National of Harrison. After the draft had cleared and on April 23, 1930, he went to the bank, drew his check thereon for $5,800 payable to the order of the H. W. Redus estate, delivered same to the cashier in payment of said note and interest which was accepted by him as full payment, and was handed his note marked paid, and said collateral. The cashier deposited said money to the credit of H. W. Redus estate, a new account, and not to the credit of C. H. Redus, guardian. On May 19, 1930, the bank applied said money to the payment of two notes held by it against appellant, C. H. Redus and his sister, Mary Redus White, and appropriated same to its own use, claiming authority so to do on a written guaranty executed by IT. W. Redus while sane. On this state of facts, the trial court found “that the People’s Savings Bank (successor to the First National) had authority to collect the moneys herein involved for the plaintiff, C. IT. Redus, as administrator of the estate of H. W. Redus, deceased, and that therefore plaintiff’s cause should be dismissed for want of equity.” Decree was entered accordingly.
For' a reversal of the judgment, appellant makes two contentions: (1) Conceding the bank’s authority to collect said note, “the deposit in the bank in the manner and form made on April 23,1930, was not good payment, and Wagley is liable upon his note”; and (2) that the finding that the bank had authority to collect said note is against the preponderance of the evidence.
We cannot agree with either contention. The note was made payable at the People’s National Bank, and it actually made the collection, although its name had been changed to First National Bank. It had been left there for collection and safekeeping by appellant. The deposit of April 23, 1930, “in the manner and form made,” was not made by appellee. It was made and credited by the bank acting through its cashier. Appellee was not a stockholder in the bank at that time and, of course, was not its president. He had sold his stock on April 19, and had been paid for it. His stock attached to said note had not been delivered, but it belonged to the purchaser. Appellee paid the bank the amount of his note and interest by check to the H. W. Redus estate. He had no authority to control the bank in the manner it was credited on its books and did not do so. If the bank on May 19 wrong fully misappropriated the money, then it would be liable. It, through the Bank Commissioner, was made a party, but its liability was not determined by the trial court. The fact that the check was made payable to the H. W. Redus estate did not prevent the bank from depositing it to the credit of the guardian. Whether the bank had authority to collect the money was a question of fact, and, as we view the evidence, the finding of the court that it did have such authority is not only not against the preponderance thereof, but is supported by the decided weight if not by the undisputed evidence.
Let the decree be affirmed. | [
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McHaney, J.
In the year 1926, appellee, T. L. Grubbs, was engaged in the construction of highways in Louisiana near Farmerville, and owned considerable tools, machinery, mules and horses, which he used in his road construction 'business. He became indebted to appellant in that year, and executed to appellant a note secured by a mortgage on said property which is now in controversy. On April 17, 1928, Grubbs was so indebted to appellant in the sum of $4,500, evidenced by his note for said amount due and payable August 20, 1928, which was secured by mortgage on said property. The property was then located in Louisiana, but was afterwards without appellant’s consent brought into Union County, Arkansas. Grubbs failed to pay his indebtedness to appellant when due, and on October 2, 1929, he executed and delivered to appellant a bill of sale of the property in controversy, which was then located near Huttig, in Union County, Arkansas, and was in the possession of the appellee, J. W. Valliant, who was employed by Grubbs and was using said property in hauling logs for the Union Sawmill Company. A short time after the execution and delivery of the bill of sale, appellee Valliant went to Farmerville, Louisiana, for the purpose of obtaining appellant’s consent for him to keep possession of the property for a while and until they could pay the indebtedness that Grubbs was due his employees. According to Valliant, Mr. Selig, appellant’s vice president, refused permission to keep such possession for this purpose. According to Mr. Selig, he agreed to let Valliant keep possession of the mules and other property involved in this suit for the purpose of finishing some hauling. A short time thereafter Yalliant brought an attachment suit in the Union Circuit Court against Grubbs on an alleged indebtedness of $834.95 which he claimed Grubbs owed him for services rendered, and levied an attachment on the property in controversy. Thereafter Grubbs entered his appearance and consented that judgment go against him, and on the 20th day of November, 1929, judgment for said sum. was rendered, the attachment sustained, and the property was ordered sold to satisfy said judgment. Before the sale, appellant learning of this proceeding, brought a replevin suit against John W. Harmon, sheriff of Union County, Arkansas, as also Valliant and Grubbs, to recover possession of the property. Issue was joined, and on Yalliant’s motion the court required appellant to elect whether it claimed title and right to possession of this property under its mortgages above mentioned or its bill of sale dated October 2, 1929. Under the order of the court appellant elected to stand on the bill of sale. It was tried to a jury, and judgment rendered against appellant in the sum of $1,762, the property having been delivered to appellant under its replevin bond.
The bill of sale is the ordinary form of a bill of sale covering personal property. It provided that, in consideration of the sum of one dollar and other valuable considerations to him (Grubbs) cash in hand paid by appellant,- receipt of which is acknowledged, “have bargained, sold and delivered, and do by these presents bargain, sell and deliver,” unto the appellant the personal property therein described, which is the property in controversy. It further contained this clause: “It is agreed that any money received by the seller under this bill of sale for any of the livestock, tools, or equipment herein mentioned, shall and will be credited on and against my indebtedness to them, memorandum of such sale shall be made to me at my address at Maud, Texas, said credits to be applied as, where and if the money is received, less all expenses of sale.” It concluded with a warranty clause, but no defeasance clause. At the same time Grubbs executed a note to appellant covering all of his indebtedness to it up to that time, and also executed a mortgage on other property that he had in Cass County, Texas.
The court instructed the jury that the instrument above mentioned, called a bill of sale, is a bill of sale. The only question submitted to the jury was whether. there was a constructive or symbolical delivery made of the personal property therein described by Grubbs to appellant. The jury found that there had been no such delivery, and under the instructions of the court returned a verdict against appellant for the value of the property.
We are of the opinion that the court erred in submitting that question to the jury, and in refusing to direct a verdict for appellant at its request. The undisputed evidence shows that the sale by Grubbs to appellant was complete, and the execution and delivery of the instrument to it constituted a constructive or symbolical delivery of the property to the -appellant. The instrument was executed in Texarkana, Texas. The property was located in Union County, Arkansas, and was not subject to manual delivery at that time. We agree with the trial court that the- instrument is in fact a bill of sale and not a mortgage. There is no question of fraud involved in the case as between appellant and Grubbs. Appellee is merely an attaching creditor, and, if the execution and delivery of the bill of sale was a sufficient delivery of the property, either actual or constructive, to pass the title, to it, a judgment should have been directed in the appellant’s favor. It was said bj^ this court in Cate-LaNieve Co. v. Plant, 172 Ark. 82, 287 S. W. 750: “It has always been the rule of this court that constructive delivery on the sale of a chattel is sufficient to pass the title, and that the intention of the parties, when manifested by any overt act, is controlling” (citing a number of cases).
Now in this case both appellant and Grubbs testified positively that the execution and delivery of the instrument was intended by both parties to be a complete sale, and to pass the title to the property therein described at that time. Appellee, Valliant, also recognized this to be the fact and recognized appellant’s title, to the property by his trip to Farmerville, and by his request of permission to retain the property for a short time for said purposes. Valliant ’s possession of the property was Grubbs’ possession prior to the. execution and delivery of the bill of sale, as he was Grubbs’ agent. After the execution and delivery of the bill of sale, he held possession for appellant. Appellees contend that the clause above quoted renders the instrument a mortgage and not a bill of sale. Assuming that it might be so held in equity, we think it can make no difference to Valliant for in either case his lien acquired by attachment was subsequent to the title or lien conveyed by the instrument.
Under our view of the case, the court should have directed a verdict in appellant’s favor. Not having done so, the judgment will be reversed, and judgment will be rendered here for the possession of the property in appellant’s favor. | [
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Mehaffy, J.
The prosecuting attorney of the fifth district filed information against appellant, Edgar Brewer, January 29, 1934, charging him with the offense of gross immorality. The case was tried on March 6, 1934, before the court sitting as a jury, and appellant was convicted of the offense of gross immorality and was removed from office. The following is a copy of the information filed:
“In the Conway County Circuit Court, Honorable A. B. Priddy, Circuit Judge.
“State of Arkansas, Plaintiff, v. Edgar Brewer, Defendant.
‘ ‘ Comes Audrey Strait, prosecuting attorney, within and for Conway County, Arkansas, and, upon his oath and information, charges Edg’ar Brewer with the offense of gross immorality, and for cause says:
“That Edgar Brewer is the duly elected, qualified and acting county assessor within and for Conway County, Arkansas, and maintains! an office for the conduct of the affairs of his office in the courthouse situated in Morrilton, Conway County, Arkansas; that he served in said capacity during the year of 1933, and at the present time is conducting said office of tax assessor.
“That during the summer and fall of the year 1933, and particularly during the month of December, 193'3, Edgar Brewer was guilty of gross immorality; that, taking advantage of the fact that he was a county official and used and occupied an office upon the first main floor of the county courthouse, he enticed, persuaded, encouraged and procured one Rosebud Jackson, a minor female child, to enter his office at various and sundry times for the purpose of immorality and of making a lewd and obscene exhibition of his person, and of making indecent and immoral assaults upon her, the said Rosebud Jackson.
“That defendant, although guilty of gross immorality, continues to use, occupy and retain the office of tax assessor and continues to use and occupy the office assigned to him as tax assessor of Conway County.
“That defendant, Edgar Brewer, is not a fit person, morally, to fill the said office of tax assessor, and that his presence in said office and his continuing to hold said office is not conducive to morality, law enforcement and to the respect of the citizenship of Conway County, Arkansas, and that, upon a hearing of the charges preferred herein, the said Edgar Brewer, as tax assessor, should be removed from the office as tax assessor, and a vacancy declared by the proper order of this court.
“Wherefore, the State of Arkansas prays that, upon this information, the circuit court designate a day certain for the introduction of proof relative to the guilt of defendant, Edgar Brewer, as to gross immorality, and that an order of the Conway County Circuit Court issue herein ordering the removal of the said Edgar Brewer from office as tax assessor, or, in the alternative, suspending him from office as tax assessor until the charges heretofore preferred against him be disposed of at the March, 1934, term of Conway County Circuit Court.
“(Signed) Audrey Strait, “Prosecuting Attorney within and for “'Conway County, Arkansas.
■ ‘ ‘ Subscribed and sworn to before me this the 29th day of January, 1934.
“Cleo Cheek, Circuit Clerk.”
Notice was served on appellant on January 29, 1934. The appellant filed motion to require plaintiff to make information more definite and certain.
Defendant also filed a demurrer, and, after argument of counsel on motion to make more definite and certain, the court held that certain parts of the information were too general and should be stricken out, and the prosecuting attorney then, on his own motion, struck out that portion of the information which stated that Brewer was under bond upon a charge of carnal abuse, awaiting the action of the grand Jury, etc. Appellant filed a demurrer which was by the court overruled, and he then filed a motion for continuance, on account of the absence of certain witnesses. The prosecuting attorney admitted that, if the witnesses were present, they would testify as claimed by the appellant, and the motion to continue was overruled. The appellant then asked that he be given a trial by jury, and this request was overruled. The appellant refused to waive a trial by jury, demanded a, trial by jury, which was overruled, and the appellant at that time saved his exceptions. After hearing the evidence, the court entered an order removing Brewer from the office of tax assessor and declared said office vacant. Appellant filed a motion for new trial, which was overruled, and the case is here on appeal.
It would serve no useful purpose to set out the testimony at length. The appellant does not contend that the evidence is insufficient to justify a conviction if the procedure was proper. He first contends that the charge against him could not be tried except upon presentment or indictment. Section 27 of article 7 of the Constitution read's as follows: “The circuit court shall have jurisdiction upon information, presentment, or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office. ’ ’ This action by the circuit court was upon information, and the charge was gross immorality. The appellant cites and relies on Haskins v. State, 47 Ark. 243, 1 S. W. 242. The court in that case, in construing § 27 of art. 7 of the Constitution, said: “These provisions are, to some extent, in apparent conflict, and it is the office of construction to reconcile them, giving effect to each, so far as may be done, and carrying out the intentions of the constitutional convention which framed the whole instrument. Two interpretations are possible: 1. That when the alleged cause of removal is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State’s attorney may proceed upon his own motion, by information filed under oath. But, if it is for an indictable offense, the proceeding must be by indictment. 2. That when the object is to punish an offender by the infliction of the penalties which the law denounces against crime, the prosecution must originate in the grand jury room; but that an information for removal is not of this character, the consequence of a conviction extending only to a removal from office, and the primary object being, not punishment, but the protection of the public against inefficient and worthless officers.”
This court has said: “There are no statutes making ‘ineompetency,’ ‘corruption’ and ‘gross immorality,’ as such, indictable offenses. Therefore the Legislature must have intended by the use of these terms that, when any one holding a public office was indicted for any ‘criminal conduct amounting to a felony, ’ or for any offense which showed him to be corrupt or dishonest, or for any felony or misdemeanor which showed him to be ‘grossly immoral, ’ and which, if proved, in the eyes of the law would render him incompetent to hold office, he should be suspended. In other words, the Legislature did not intend that an officer should perform the functions of his office while he was under presentment or indictment for any criminal conduct which, if proved, amounted to a felony, or that showed that the accused was grossly immoral or corrupt. This is the wise public policy which the Legislature manifestly intended to conserve.” Jones v. State, 104 Ark. 261, 149 S. W. 56.
Appellant next calls attention to the case of McClain v. Sorrels, 152 Ark. 321, 238 S. W. 72. The court in that case said: “The case of Haskins v. State, supra, construed the provision of the Constitution to mean that, ‘when an alleged cause of removal from office is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State’s attorney may proceed upon his own motion, by information filed under oath; but if it is for an indictable offense, the proceeding must be by indictment. ’ It results from this interpretation of the Constitution that, in case the removal is to be accomplished under an indictment for an offense involving one of the grounds for removal stated in the Constitution, the offense set forth in the indictment must be one which necessarily includes the grounds for removal, otherwise the removal would be accomplished without giving the accused the benefit of a trial upon the issue as to the existence of the grounds for removal. In the Haskins case, supra, the charge against 'the sheriff was for permitting prisoners to go at large, which neces sarily constituted official misconduct, and .the court held that the charge must he brought hy the grand jury, and not hy information filed hy the .prosecuting attorney. The converse of that rule is equally true, and, if the charge does not involve one of the grounds of. removal stated, then the removal must he sought on information containing the accusation of facts that constitute grounds for removal. ’ ’
It will he observed that the court expressly stated that, if the charge does not involve one of the grounds of removal stated, then the removal must be sought on information containing the accusation of facts .that constitute grounds for removal. As we have already shown, this court has held that immorality is not an indictable offense, and therefore the removal for gross immorality must he sought on information and not on indictment. It is also true that one might he guilty of gross immorality and guilty of many crimes for which he might be indicted, hut the mere fact that he was guilty of a crime in addition to the act of gross immorality would he no reason why he could not he removed upon information. If that provision in the Constitution authorizing the circuit court to remove on information does not mean that one can be removed on information for gross immorality, it does not mean anything, and we think there is no question hut that the court had jurisdiction to remove the appellant on information.
It is next contended hy appellant that he was entitled to a trial by jury. Appellant calls attention to a great many cases which we do not review because we think they have no application to the facts in this case. The right to trial hy jury does not apply to proceedings to oust one from public office. “There is some conflict in authority with respect to whether a proceeding for the removal of a public officer is of a civil or criminal nature. * * * Nevertheless, hy the most approved opinion, it is regarded as an executive function, and an action for that purpose is a civil and not a criminal proceeding. It is also considered as remedial rather than penal in char acter, because the purpose is not to punish the officer, but to improve the public service.” 22 R. C. L. 573.
“It is true that conviction of any of these officers under an indictment for malfeasance, misfeasance or neglect of official duty, by virtue of § 3, art. 9, Const., operates a removal from office; but that does not prevent their summary removal for these or other causes coming under the head of gross immorality, without indictment or criminal prosecution. McDonald v. Guthrie, 43 W. Va. 595, 27 S. E. 844, chapter 48, Acts 1897, provides that, ‘upon satisfactory proof of the charges made in writing, the court having jurisdiction shall remove any such officer from the discharge of the duties of his office.’ This provision wholly excludes the idea of a jury trial, and plainly imposes on the court, in the person of the judge thereof, the duty of investigating the matter, hearing the evidence, and, if satisfied of the truth of the charge, removing the incumbent.” Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L. R. A. 279.
Section 3 of article 15 of the Constitution reads as follows: “The Governor, upon the joint address of two-thirds of the members elected to the houses of the General Assembly, for good cause, may remove the Auditor, Treasurer, Secretary of State, Attorney General, judges of the supreme and circuit courts, chancellors and prosecuting attorneys.” It will, of course, not be contended that the Governor would have to call a jury, but he acts just as the circuit judge acted in this case. The reason that no jury is necessary is that the object is not the punishment of the officer, but the protection of the public against inefficient and worthless officers.
It therefore appears that the circuit court, without the intervention of a jury, had a right to try the case and to enter judgment removing appellant from office.
"We find no prejudicial error, and the judgment is affirmed. | [
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Baker, J.
The appellant filed his suit in Pulaski Chancery Court praying for a restraining order to prevent the -State Treasurer from paying out certain moneys, upon order of the Refunding Board, in the purchase of tenders of bonds, made to the Refunding Board, and which that board desires to accept. Plaintiff alleged that he is a resident of Pulaski County, and that he is a taxpayer and interested in the- contemplated acts of the State Treasurer and Refunding Board, which conduct complained of, he says, is in violation of the provisions of act No. 11, approved February 12, 1934; said act having been passed at the special session of the Legislature held in 1934.
Plaintiff alleges that said act No. 11, by the provisions of § 47, makes an appropriation of $100,000 for redeeming State highway refunding bonds and State toll bridge bonds during the period beginning the 1st day of January, 1934, and ending the last day of June, 1934, and an additional appropriation of $350,000 for redeeming road district refunding bonds during the period beginning with the first day of January, 1934, and ending with the last day of June, 1934; and an appropriation of $20,000 for redeeming certificates of indebtedness during the period beginning with the first day of January, 1934, and the last day of June, 1934; an appropriation of $15,000 for redeeming funding notes issued to contractors during the period beginning with the first day of January, 1934, and ending with the last day of June, 1934; that said § 47 also makes an appropriation for all of said purposes in the total amount of $970,000 during the fiscal year beginning with the first day of July, 1934, and ending with the last day of June, 1935. The total appropriation made by said § 47 is $1,455,000.
Plaintiff states further that by the terms of said § 47 of said act No. 11 the appropriation made for use during the period beginning the first day of January, 1934, and ending the last day of June, 1934, has expired.
That the Refunding Board on the 27th day of July, 1934, passed a resolution authorizing the State Treasurer to draw a voucher for the full amount of the appropriation made for the period from January 1, 1934, to the last day of June, 1934, for the purpose of redeeming bonds that might be purchased by the State Treasurer on the 19th day of September, 1934.- Plaintiff states that at the time said resolution was passed by the Refunding Board there had been no bonds offered for tender, and, under the terms of the call made, there could be no bonds offered for tender and no purchases made until the 19th day of September, 1934.
Plaintiff further states that neither, the Treasurer nor Refunding Board has a right to use. any portion of the moneys appropriated by the provisions of said § 47 of said act No. 11 for the period beginning with the first day of January, 1934, and ending the last day of June, 1934.
Plaintiff further states that, under the provisions of § 37 of said act No. 11, no refunding obligations can be purchased by the State Treasurer until there shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption account and in the other redemption accounts, provided for in said act, funds in excess of the amount necessary to pay the interest and principal falling due in any fiscal year. That the State Treasurer is preparing to purchase bonds offered for redemption on September 19, 1934, when there are on hand funds in excess of the amount necessary for the semi-annual payments on refunding obligations next to accrue after the date of the acceptance of said tenders.
Plaintiff further alleges that the State Treasurer should not' purchase any refunding obligations until there shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption accounts funds in excess of the amount necessary to pay the interest and principal falling due in the fiscal year, which ends June 30, 1935, and that at the present time there is on hand no funds in excess of said amount when there is taken into consideration all payments falling due on highway obligations during said fiscal year, there being on hand a sufficient amount of funds with which to purchase refunding obligations in the amount of $1,350,000 when there is provided, only for the semi-annual payments next to accrue; that the Treasurer and the Refunding Board should provide for all payments falling due in the fiscal year before using funds with which to purchase refunding obligations under the provisions of said act No. 11.
To this complaint a demurrer was interposed, sus- ■ tained by the court, and the plaintiff refusing to plead further, the complaint was dismissed. The plaintiff, by his appeal, brings to this court, the matters alleged in his complaint.
It is necessary that we construe those particular sections of act No. 11 relied upon by the plaintiff, the appellant herein.
Act No. 11 is the result of settlement and compromise between the State of Arkansas and bondholders, holding State highway bonds, toll bridge bonds, and road improvement district bonds, which were assumed by the Martineau Act, passed in 1927, and other creditors.
We think it unnecessary to go into the complete and detailed history of the so-called Martineau Act and the amendments thereto, and the subsequent acts, in an effort to set out all of these obligations. It will be sufficient, however, to say that at the time of the passage of act No. 11, under consideration, the State had already defaulted in payments of its several obligations. Decreased revenue available for payment of these obligations, and extremely heavy bonded indebtedness, were such that, under the conditions that prevailed, suits had been filed and the funds of the State, whatever they were, were held under orders impounding the same, and it was seeming impossible, under the then existing statutory authority, for the State to meet its obligations.
After a long period of negotiations between the officers and agents of the State and committees of bondholders, certain facts were recognized that made it necessary to refund all of this indebtedness. The road improvement district bonds had, as their security, lands of taxpayers along, and adjacent to, the highways built by the improvement districts. An effort to enforce liens of the bondholders against these lands necessarily meant that the property owners, who were in most instances not able to pay the assessments, would not pay State and county and school taxes, and on that account the resources of the State, from which a large part of its revenue is derived, would be further destroyed, and the ability of the State to meet its obligations be so hopelessly impaired as to leave, all creditors without remedy. These conferences between officers and agents of the State and bondholders’ committees, were in full recognition of these general facts and other conditions equally potent and affecting both debtor and creditor alike. The ultimate result of these negotiations was act No. 11, which a special session of the Legislature was called to pass, and, when passed, to become a contract and settlement as between the State and its creditors.
It is on account of these facts that the writer of this opinion approaches his task with some degree of trepidation.
It is a well-recognized theory that in all conferences and negotiations of this kind, having the viewpoints of all of the varied interests represented, the result would ordinarily be entirely satisfactory, but it is also a matter of common knowledge possessed by those who are skilled and who are trained by experience and study that most instruments prepared under such conditions frequently are mere vehicles to bring forward, in certain parts thereof, individual ideas of some of those taking a part therein, as distinguished from the composite or combined judgment and decision of the entire body, and, by reason thereof, there may ultimately be some matters not in harmony with others, if not in direct conflict.
We think that, by mistake and oversight, certain matters appear in act No. 11 not intended to be there, but which were probably in some of the original drafts of the proposed act as it was in the course of study and preparation.
A careful reading of act No. 11 indicates that it was intended to be practical, so that it would work out and dispose of these troubles, aiding both the State and bondholders. It was not intended by either of the parties that there should be changes or amendments. Section 44 of the. act expressly provides that it should be a contract between the State and its creditors, including the affected improvement districts, and that the terms of the contract, or contracts, should never be impaired by any subsequent legislation. The only purpose, under the circumstances, which judicial construction could serve ought to be for mutual benefit of the contracting parties.
Having all of these matters in mind, we consider the act, by beginning with § 2, which section creates an account in the State Treasury known as the State Highway Fund.
• “The first charge upon the State Highway Fund shall be the cost of maintaining the State Highway system and the operation and maintenance of the toll bridges, and the Treasurer of State shall transfer from said State Highway Fund to the Highway Maintenance Fund 25 per cent, of the total amount credited to said State Highway Fund during any fiscal year, such credit to be not less than $166,666 monthly and not more than $100,000 for each fiscal year may be appropriated for the operation and maintenance of said toll bridges.”
The second paragraph of § 2, containing, these provisions, indicates clearly that the contracting parties recognized the fact that all revenues must be obtained primarily by the maintenance of the State Highway System and in a condition so that the roads can be reasonably well used. It was known that local citizens would not buy cars or pay license fees, or buy gasoline upon which tax could be collected, unless there were roads upon which they might be operated, and travelers would avoid the State if highways were not such as to invite the traffic.
The next paragraph of § 2 provides for the transfer of certain funds to take care of certain conditions then prevailing, and the third paragraph of § 2 provides that all highway revenue credited to the State Highway Fund, in excess of the transfers and appropriations above provided for, shall next be applied in payment of interest upon the bonds and other oblig-ations authorized to be issued or paid under the provisions of the act. The term “interest” as used shall be deemed to also include an amount equal to 3 per cent, per annum of the total par value of the road district refunding bonds, series B, issued hereunder. Any balance remaining after providing for the semi-annual payments next to accrue, shall be credited to and paid by the Treasurer of State into certain special accounts, created in the State Highway Fund, and for purposes as stated.
The first of these special accounts is to be known as the State highway refunding bond redemption account, and percentages for allocation of funds for the years of 1934, 1935, and 1936 are provided in that paragraph and also the amounts annually thereafter, and these amounts were pledged for the payment or redemption of the principal of State highway refunding bonds, series A and B, State toll bridge refunding bonds, series A and B, and LeValls Bluff Bridge Refunding-bonds were in the same manner provided for by the act.
The second special account was created to be known as the Road District Refunding Bond Redemption Account, and percentages for allocation of funds were provided for in like manner as in the Highway Refunding Bond Redemption Account, but not in the same amounts, which were pledged for the payment or redemption of the principal of Road District Refunding Bonds, series A and B, and the State thereby covenanted with the holders of Road District Refunding Bonds that the amount in said Road District Refunding Bond Redemption Account should never be less than $600,000 during any fiscal year, and in like manner there was provided an account to 'be known as the Funding Notes Redemption Account, and, in addition, a Refunding Certificates of Indebtedness Redemption Account.
It will be observed from the reading of the act, and the foregoing statement of the effect of paragraph 2, that the several accounts created out of the State Highway Fund could come into being only after highway maintenance had been provided for, and after making allocation and provision for the payment of interest upon bonds and other obligations to be paid under the provisions of the act, and whatever was then left, was intended to be used to create the special accounts just above mentioned.
Trouble, however, seems to arise when we read § 37 of the act, which provides that “whenever in any fiscal year there, shall be on hand in the State Highway and Toll Bridge Refunding Bond Redemption Account funds in excess of the amount necessary to pay the interest and principal falling due in such year, such excess, or remaining, funds shall be applied by the Refunding Board in the purchase of State highway refunding bonds, series A and B, and State toll bridge refunding bonds, series A and B, and DeValls Bluff Bridge Refunding Bonds, at the lowest prices submitted, not exceeding par and accrued interest, in the manner provided by the act.”
It must already be apparent that the above mentioned special Refunding Bond Redemption Account is created out of the balance or surplus remaining after interest and other debt service obligations, for the next fixed semi-annual payment shall have been provided for out of the general State Highway Fund. These special refunding redemption accounts were intended to be used in the purchase of bonds to be issued under this refunding act when tendered to the Treasurer under the conditions set forth in the act. It certainly was the purpose of the contracting parties that the State should have the right to pay for, and that the bondholders should have the right to tender, their bonds to be purchased by the State out of these special refunding accounts. The refunding accounts represent the amounts not needed after provisions shall have been duly made for maintenance of highways and for payment of interest and other obligations, as fixed in § 2, and it was wholly unnecessary to provide again in § 37 for a further reservation in these redemption accounts of interest for one fiscal year. It is expressly stated in § 2 of the act that the interest shall be allocated prior to the passing of any funds to the redemption accounts. The interest, annually, on all obligations would be in excess of three million dollars. The statement is sufficiently accurate for the purpose of this opinion. If it were the intention of the contracting parties that there should be an accumulation of funds for debt service of three million dollars annually, after these payments had already been provided for in § 2 of the act, then such a provision is unreasonable. The theory is without explanation that three million dollars should be held in the State. Treasury for the payment of the debts, by reason of which both parties must lose, and by reason of which neither could gain in point of profit or security. The parties certainly did intend, as shown by the entire spirit of the act and its otherwise harmonious provisions, that the State should use these funds in these redemption accounts for the purpose of purchasing such bonds as might be tendered at prices deemed advantageous to the State, and in that way save to the State enormous amounts which would otherwise be paid in interest, and also operate to the benefit of those holding the bonds, by enabling the State to 'become more able, from time to time, as bonds are purchased, to meet its obligations.
There is most certainly a well considered, well defined and definite plan contained in the act, and the purpose of the act, approved by all of the parties, should not be permitted to be defeated and be made of no effect by this one provision for an unnecessary accumulation to pay obligations otherwise provided for in the act. The words “in excess of the amount necessary to pay interest and principal falling due in such year,” and after the following word “such” the word “excess,” in § 37, are unnecessary, and if permitted to remain in the act, will prove extremely injurious to the State, damaging the bondholders generally, and will operate to the defeat, for practical purposes at this time, of the legislative intent. To leave these words in the act, as written, would perhaps only affect the State Highway Bond Redemption Account, and Toll Bridge Redemption Account.
The second paragraph of § 37 relates to the Road District Refunding Bond Redemption Account and permits the use of funds available in this account to purchase Road District' Refunding Bonds, series A and B.
If the offending words are. necessary to the State Highway Bonds, it would be of vastly more importance that the same provision be incorporated as to the Road Improvement District Bonds, but these words were omitted in the provision relating to Road Improvement District Bonds and also omitted in the matter of Refunding Certificates of Indebtedness Redemption Account, and also omitted in the matter of Funding Notes Redemption Account, nor can these words, by interpretation, be, by any reason, read into the act as relating to these last several refunding bond accounts just mentioned.
It must appear to any one reading § 37, which is a provision for the use of the surplus funds, that the creation of these several redemption accounts and an allocation of these funds for the. respective purposes set forth, that it was not the legislative intent to interject a phrase to defeat the purpose of the statute. Since that provision is contradictory, it must be treated as surplusage and the effect of the ruling of the chancery court upon that proposition, in so finding, is correct.
Our position is well stated in the following quotation from one of the briefs furnished us: “In the decision of the issues involved in this appeal, the determination of the intentions of the Legislature is the primary factor. This court has frequently announced the doctrine that omitted words in legislative acts will be supplied and that unnecessary or contradictory clauses in acts will be deleted and disregarded in order to give effect to the clear legislative intent.
“In the case of Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823, the court quoted from the earlier case of Garland Power Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S. W. 454, as follows: ‘In order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted.’
“In the case of McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646, the court again quoted this language with approval, and stated: ‘The whole subject was reviewed in the case last cited and the doctrine was made plain that the duty of the courts in interpretation of statutes was to endeavor to ascertain from the language used the true intention of the lawmakers, and, when that intention was ascertained, to disregard everything which was in conflict with that intention, and, if necessary, to omit words or substitute others so as to make the statute harmonize with the manifest will of the lawmakers.’
“The ease last cited is that of State ex rel. v. Trulock, 109 Ark. 556, 165 S. W. 16.
“The more recent ease of Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 140 S. W. (2d) 998, adheres to the rule above announced, citing the former cases above mentioned and many others.”
One other question is submitted to us for determination, and that arises under § 46 of act No. 11. The provision of paragraph (a) is to the effect that there is appropriated, payable from the State Highway Fund, for the maintenance and repair of the toll bridges owned 'by the. State for the period beginning January 1, 1934, and ending June 30, 1934, the sum of $25,000; and for the fiscal year ending June 30, 1935, the sum of $50,000. This is an example of several different items of appropriations.
The writer must confess that the wording of these appropriations is such as to give trouble, but the language used as to these appropriations must be construed “by the law of reason,” and this may be done under the same, authority as we have just above cited. It certainly cannot be found harmonious with the spirit of the act to say that it was the purpose of the Legislature to create and establish dead funds. It must have been the purpose, and we so hold, that the dates fixed in the language of these appropriations, in this particular act, was intended to fix merely the amount of money appropriated out of such funds as might arise during the particular period set out in the act and that it did not intend to say, and it does not say, expressly or impliedly, that such sums of money must be used, as being appropriated for use only during that particular period. The Legislature knew something of the financial condition of the State. It did not want the appropriations fixed for use through and to the end of the biennial period to be taken out of the first moneys that might be collected, but intended to fix amounts to be taken out of funds arising during the several periods, and such funds are certainly available to the end of the period. This is the only conclusion that can be arrived at in harmony with the evident and expressed purpose of act No. 11. We believe this to be the legislative, intent; that it is in accordance with the terms of the agreement and contract between the State and its creditors; that it in no manner impairs the act in any respect.
It follows therefore that the chancellor was correct, and the case is affirmed. | [
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Smith, J.
On December 1, 1927, appellant insurance company delivered to the city of Little Rock its group policy of insurance covering the lives of the members of the Little Rock police and fire departments, with certain disability benefits accruing while the policy was kept in force by the payment of the annual premium required by the policy.
Appellee was and for many years had been a member of the city’s fire department, and was the captain of one of the fire companies. Proper payments of premiums was alleged, and does not appear to be questioned. Appellee alleged that, while so employed and while entitled to the benefits of the group policy, he became totally and permanently disabled, and he brought this suit to recover the disability benefits which he was entitled to receive under the policy.
The policy contained the following conditions upon which the disability benefits might be demanded:
“1. That due proof is furnished the company that the said person has suffered subsequent to the date hereof for a period of at least six months either (a) total disability, (b) entire and irrecoverable loss of sight of both eyes, (c) loss of use.of both hands, or of both feet, or one hand and one foot. * * *
‘ ‘ 3. That, if proof of total disability is furnished, the said total disability must be shown to be such as to justify the presumption that it would continue throughout the entire subsequent life of the said person and during that time wholly prevent the said person from pursuing any occupation for wag’es, compensation, or profit.
“4. That the company, prior to the granting of the benefit, shall be permitted to make such examination of the person as may in reason be required to convince that the conditions necessary for the granting of the benefit have been fulfilled. ”
Appellee alleged his total disability and that he had made the proof thereof which the policy required. The suit was defended upon the grounds (1) that the insured was not totally and permanently disabled, and (2), if so, that sufficient proof thereof had not been made to confer the right to sue.
At the trial from which this appeal comes the question of disability was submitted under instructions conforming to numerous previous decisions of this court on that ’subject, and the testimony, to which further reference will be made, was sufficient to support the finding that appellee was totally and permanently disabled.
The sei’ious question in the ease is whether the testimony shows sufficient compliance with the provisions in regard to notice set out above. Paragraph 3 on this subject, above quoted, requires that proof of total disability be furnished such as to justify the presumption that the disability exists and will continue throughout the life of the insured, and during that time wholly prevent him from pursuing any occupation for wages, compensation or profit. Effect must be given to this provision, because the parties have so contracted. But this does not mean that the insurer must in fact be convinced. On the contrary, the proof is sufficient if it justifies the presumption of disability to an intelligent judgment, reasonably and fairly exercised. Missouri State Life Ins. Co. v. King, 186 Ark. 983, 57 S. W. (2d) 405; § 507, chapter Insurance, 14 R. O. L., page 1337.
The question was also raised and was submitted to the jury whether proof of disability was made within a reasonable time. This question was considered in the recent case of American National Ins. Co. v. Chastain, 188 Ark. 466, 65 S. W. (2d) 899, which was a suit upon a similar — if not, indeed, the identical — policy sued on herein. The appellant here was the appellant there, and it was there contended, as it is here contended, that proof was not made within the time required by the policy. It was there pointed out that no time was specified in which proof was required to be made. An instruction was requested in that case to the effect that there could be no recovery unless the proof was made within a reasonable time, which was modified to provide “that due proof should be made of the disability by appellee before he could recover. ’ ’ It was there held that: ‘ ‘ The court was within the law in modifying the instruction and in refusing to give it in the form requested by appellant. ” In so holding we quoted from the case of Sovereign Woodmen of the World v. Meek, 185 Ark. 419, 47 S. W. (2d) 567, as follows: “Under a benefit certificate providing for a recovery if insured should suffer bodily injury and furnish satisfactory proof of total disability, that the right to recover depended upon insured’s total disability during the life of the certificate, and not upon the receipt of the proof of total disability, no time being fixed in the policy for making such proof.”
However, in this case the question of the reasonableness of the time within which the notice and proof of disability should be furnished appears to be unimportant, for the reason that the insurer suggested and requested a postponement of the suit for an additional period of six months for the purpose of ascertaining, after that lapse of time, whether the disability from which the insured was then admittedly suffering was in fact .permanent.
Now, upon the question whether the suit was prematurely brought for the reason that proof had not first been furnished sufficient to justify the presumption that the insured was totally and permanently disabled, it may be said that the testimony upon that issue was to the following effect: The city clerk, the custodian of the policy sued on, testified that on December 16, 1932, he made written application to the insurer for proper blanks for making proof of insured’s disability. These blanks were duly furnished. One of these was the “claimant’s statement, ’ ’ which was filled out and dated December 29th and signed by the insured. This statement recited that the disability began June 25, 1932, and was occasioned by a ruptured appendix, for which an operation was per formed 9-13-31, and a second 10-27-31. The name and address of the surgeon performing the operations was given, and the statement was made that the insured was unable to perform labor and was totally and permanently disabled.
A statement was made, as paid of the proof, by the attending surgeon, which was duly verified, to the effect that, following the appendix operation, a rectal abscess came on immediately after the abdominal wound closed, resulting in a disability which the surgeon stated was “permanent and total at this time.”
The city clerk, as the custodian of the city’s records and of its payrolls, made the “employer’s statement,” which was attested by the chief of the fire department. This statement showed the insured’s retirement from the fire department because of his disability. These proofs were transmitted by registered mail to the insurer.
These “proofs” were not regarded as sufficient, and the request was made that the insured submit himself to an examination by a surgeon selected by the insurer. This request was complied with and the examination made, and it is insisted that the report thereof left the permanency of the insured’s disability in doubt, and for this reason a postponement of the suit for six months was suggested by the insurer. This doctor testified at the trial that the insured was totally disabled at the time of his examination, but it was his opinion that, if the fistula was cured, as it might be by one or more operations, the insured might do light work, but that he could not thereafter do heavy work, even though the operations were successful. It was the opinion of another doctor who also examined the insured that one or more successful operations would probably entirely restore the insured so that he would not be disabled, and that he thought these operations could be. successfully performed. It may be said that a third operation was performed on the insured’ after his proof had been submitted, which did not relieve his condition, and the opinion was expressed by three, physicians who testified on behalf of the insured that an incurable condition existed which rendered the insure'd totally and permanently disabled. These conflicts of opinion, which are always found where experts express opinions, were resolved in the insured’s favor by the verdict of the jury for the amount of the disability benefits provided for in the policy sued on.
It is insisted that the court erred in allowing a penalty and an attorney’s fee, and that the fee allowed was excessive, and that error was committed in awarding judgment for interest. The insistence is that the insured had not denied liability, but had asked for additional proof, which the insured refused to furnish. This proof appears, however, to have been the same proof covered by the blanks originally furnished for that purpose, which had previously been filled and returned. Besides, as has been said, the insured had submitted himself to an examination at the hands of a surgeon selected by the insurer, and the jury was, therefore, warranted in finding that there had been no failure to furnish proof and that the suit had not been prematurely brought.
Interest appears to have been calculated from a date about sixty days later than the date on which the proof was submitted, which the court evidently found was a reasonable and sufficient time for payment. The policy itself provided that the benefits should be payable “upon receipt of the individual certificate and of due proof of the occurrence of the events upon which the payment of the benefit is contingent. ’ ’ It appears, therefore, that interest was properly allowed. The penalty is fixed and allowed by the statute.
The attorney’s fee was fixed at $300. The sum recovered under the policy was $2,000. The attorney’s fee does not appear to be excessive when compared with other fees in such cases which have been approved by this court.
There appears to be no error, and the judgment will be affirmed. It is so ordered. | [
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Humphreys, J.
This suit was brought by appellant against appellee in the municipal court of Little Bock to recover $300 principal and $108.94 interest, or a total of $408.94, upon four out of a series of rent notes executed by Peter Kumpures to N. Brastos, alleging that he (appellant) was the owner thereof for a valuable consideration, and that no part of said notes had been paid.
Appellee filed an answer admitting the execution of the notes to N. Brastos, but denied that Brastos transferred them to appellant for a valuable consideration, and denied that no part of said notes had been paid, and, by way of further answer, alleged that the notes were executed as rent notes subject to the terms and conditions of a lease entered into on the 6th day of May, 1928, by and between Christine M. Bryan, lessor, and Peter Kumpures, lessee, under the terms -of which the rent should cease and all unpaid rental notes should become void in the event the leased property should be destroyed by fire and rendered untenantable.
Upon a trial of the cause, the municipal court rendered judgment in favor of appellee, from which an appeal was duly prosecuted to the circuit court of Pulaski County, Second Division.
In the circuit court, appellee was permitted, over the objection and .exception of appellant, to file an amended answer and counterclaim, in which he adopted a part of his former answer, and, by way of counterclaim, alleged that on or about December 19, 1930, the appellee paid the sum of $600-to appellant for $700 worth of the unpaid notes, which were a part of the same series as those sued upon, under agreement with appellant that, should the building be destroyed by fire, he would refund said amount to him.
The cause was submitted upon the pleadings, the evidence adduced, and instructions of the court, resulting in a judgment dismissing appellant’s complaint, from which is this appeal.
The facts reflected by the record are, in substance, as follows:
Brastos had a lease on certain property in El Dorado belonging to Mrs. Christine M. Bryan. He ran a billiard hall therein, and Mrs. Bryan desired to make a five-year lease on the property to appellee and was compelled to buy the Brastos lease in order to do so. Appellant had advanced .(Brastos money with which to conduct his business, and was anxious to collect same. Appellant and Brastos were willing to accept $1,000 in cash and take a certain number of appellee’s rent notes for the Brastos lease and billiard hall. Mrs. Christine M. Bryan, acting through her husband, purchased the lease and billiard hall from Brastos and leased a part of the premises thus acquired to appellee. Her husband ran the billiard hall and cut off a space therein for appellee’s hat shop. The lease for which appellee executed the series of rent notes provided that they should become void in case the building should be destroyed by fire. The series of rent notes were made payable to Brastos. He turned them over to appellee without indorsing them. The check for $1,000 was indorsed by both appellant and Brastos when they cashed it. Appellant afterwards proposed to discount a part of the rent notes which he had received, and appellee accepted his proposition and paid him $543 in cash for them on condition, according to testimony introduced by him, that he (appellant) would refund the money in case the building should be destroyed by fire. Appellant testified that they were discounted and turned over to appellee unconditionally, and that he made no promise to return the money in case the building was destroyed by fire. There is a dispute in the testimony as to whether appellant took the notes originally from Brastos with knowledge that they were to be void in case the building should be destroyed by fire. Appellant denied such knowledge, but two witnesses testified on behalf of appellee that the lease was read to appellant twice before the notes were assigned and delivered to him, and that he knew such a clause had been inserted in the lease. The record also reflects, without dispute, that appellee refused to execute the lease and sign the rent notes until such a clause was inserted in the lease, and that, after same was inserted therein, he delivered the rent notes to Brastos and took possession of the part of the space he was entitled to under the lease and occupied same until the building was destroyed by fire. The lease itself was not signed by appellee after said clause was inserted in accordance with his request and demand. The building was destroyed by fire on May 31, 1931. Three of the notes sued upon matured before the fire and one thereafter. The notes which were discounted and turned over to appellee by appellant had not matured at the time of the fire.
At the conclusion of the testimony, appellant requested the court to instruct a verdict in his favor for the full amount, principal and interest, covered by the notes sued upon, which was refused. Then he requested the court to instruct a verdict for the amount, principal and interest, covered by the three notes which matured before the building was destroyed by fire, which was refused.
These instructions were requested by appellant on the theory that he was an innocent purchaser of the notes for value before maturity, and the refusal of the court to give these instructions and the submission of this issue to the jury constitute the main contention of appellant for a reversal of the judgment. These instructions could only be justified on the ground that the undisputed testimony showed that appellant was an innocent purchaser for value of the notes before maturity; whereas there is testimony in the record showing that appellant knew all about the transaction, and that the lease contained a clause to the effect that the rent notes should be void in case the building should be destroyed by fire.
Appellant also contends for a reversal of the judgment on the ground that the written lease does not refer to the written notes nor the written notes to the lease, and that the court committed error in admitting oral evidence to show the connection between them. Oral testimony showing the connection between them does not have the effect of contradicting the terms of either as argued by appellant. The effect of the testimony was to show that they were parts of the same agreement and not for the purpose of changing or modifying the provisions of the written instruments. Again, it is always permissible “to show the consideration for a promissory note by oral proof for the purpose of showing want or failure of consideration, or illegality of consideration. ” Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366.
Appellant also contends for a reversal of the judgment because the undisputed evidence reflects that the lease was never signed by appellee. It is immaterial under this record whether the lease was signed by appellee or not. It was signed by the lessor and accepted by the appellee, who went into possession under it and remained in the building until it was destroyed by fire.
Appellant also contends for a reversal of the judgment because appellee was permitted to plead a counterclaim for the first time in circuit court. It is true the written answer filed in the municipal court did not set out the counterclaim, but that does not necessarily mean that it was not orally pleaded. In fact, the judgment rendered by the municipal court could not have been rendered upon any other theory than that the counterclaim was pleaded. Oral pleadings are permissible in municipal or justice’s courts, and it was within the discretion of the circuit court to allow appellee to embody in the amended answer the counterclaim pleaded orally in the municipal court.
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Butler, J.
Effective June 11, 1932, appellant, the Missouri Pacific Railroad Company and other common carriers of freight, published a reduced rate on certain petroleum oil products, which action was voluntary on their part and to enable rail lines to meet truck competition. This publication did not carry any restrictive routing, the rates applying on all Arkansas lines. The rate expired August 9,1932, but was republished, effective August 10, 1932, and again, by supplement No. 30, effective May 30, 1933. The only change in the last publication from the former was that the routing was restricted to certain lines of railway and to certain specifically named points within the 150-mile radius. A protest was filed to the restricted routing in said supplement No. 30, and the Arkansas Corporation Commission issued an order suspending the operation of the supplement and rates and to set the same down for a hearing.
The testimony taken before the commission was to the effect that the rates were voluntary, made to meet truck competition, and that the carriers originating the shipments amended the schedule of rates so as to permit them to designate the routes to which the same should apply; that this was done in order to facilitate the service by lessening the time required for the movement of oil products, and to enable the originating carriers to earn a greater revenue. It was shown that in some instances the earning of the originating carrier over the restricted routing named in supplement No. 30 would be about 50 per cent, of the revenue, whereas, if the routing was unrestricted and was moved over other connecting lines, they would receive not more than 20 per cent, of the revenue. On the hearing the commission canceled the restricted routing, which order was affirmed by the Pulaski Circuit Court on appeal, and from that judgment is this appeal.
It is the contention of the appellant that, since there is no question of reasonable rates involved, the commission could not properly compel the application of reduced rates over any route except that adopted by the carriers. It was and is the contention of the appellee, and that adopted by the commission and the circuit court, that the application of the rate with restricted routing is in violation of § 1 of act of April 8, 1903, which provides as follows: “That every person, company or corporation operating any railroad in this State which connects with any other railroad in this State and which form a part of a continuous line of railway communication to any point within this State, such companies and corporations, respectively, shall afford all due and reasonable facilities for receiving and forwarding by one of such railroads all the traffic arriving by the other and shall promptly forward the same at through rates, tolls and fares, without giving any undue preference or advantage to, or in favor of, any particular person or company, or any particular description of traffic, in any respect whatever, so that no obstruction may be offered to the public desirous of using the railroads of this State as continuous lines of carriage from one to another point within this State.”
It is insisted by the appellant that the controversy presented is one between the railway companies in which the public has no interest, and that there is no discrimination as to the public since all shippers are treated alike. It is further argued that the commission has no power to fix and compel a competitive rate such as the one under consideration, but can only compel the application of reasonable rates; that in this instance the rate is voluntary, and no question is being made of its unreasonableness, and that, before the statute relied upon can apply, there must be a specific abridgment contained in it of the common-law rights of the carriers to select such agents as they may see fit for the transportation of freight they had originated beyond their own lines, and that the words of the- statute invoked are general in their nature and not sufficient to divest them of their rights at common law.' In support of this contention, appellant quotes § 3 of the Interstate Commerce Act and the case of Southern Pacific Co. v. Interstate Commerce Comm., 200 U. S. 536, 26 S. Ct. 330, construing the language of the act as not authorizing the commission to order the carriers to desist from a restricted routing applied to through rates. Appellant contends that the language of our statute is no more comprehensive than that of the Interstate Commerce Act, and that the import of the two acts is the same. The Commerce. Act forbids the giving of any undue or unreasonable preference or advantage to any particular person * # *, or any particular description ’of traffic in any respect whatsoever, or to subject any particular person * * *, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage * * *, and afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines * * * and shall not discriminate in their rates and charges between ■ such connecting lines. The general meaning of these acts appears somewhat the same, as contended by the appellant, bnt the language is more specific in our statute, for, among other things, it requires the “forwarding by one of such railroads all the traffic arriving by the other, and shall promptly forward the same at through rates * * * without giving any undue preference or advantage to, or in favor of, any particular person or company, or any particular description of traffic in any respect whatsoever.”
The rate fixed for the movement of petroleum products, assented to by the commission, was unrestricted with respect to the lines of railway over which they might be routed. If the initial carriers are permitted by the restricted routing to prevent the freight from being hauled over other lines of railway than those selected by them, then they manifestly give an undue preference in favor of the lines selected and discriminate against those not favored, and deny to the latter the benefit of the through rates given to others which appears to be in direct violation of the statutory mandate. It will be remembered that by supplement No. 30 no competitive rate was fixed. That had already been fixed and approved by the Corporation Commission and was effective over all the lines of railway in the State of Arkansas. Supplement No. 30 nullified to an extent the rates fixed by preventing other lines than those of their own selection to benefit by them.
It is next argued that the statute relied on by the commission as a basis for its order was repealed by act No. 193 of the Acts of 1907. Attention is called to § 17 of that act, which is identical with § 1 of the act of 1903, supra, except it does not include the clause, ‘ ‘ so that no obstruction may be offered to the public desirous of using the railroads of this State as continuous lines of carriage from one to another point within this State.” If the contention of appellant is sound in this particular, we cannot see where it is helped, for that act, with respect to discrimination by any railroad against any of its connect ing carriers is identical with the act of 1903, and is the provision which supplement No. 30 violates.
While the public may have no direct interest in the present controversy, it has an important indirect interest. It is manifestly beneficial to the public that the short lines of railroad in Arkansas operate, and any discrimination against them cannot but result in an obstruction to the shippers within the State. By § 3 of the act of 1903, supra, it is made the duty of the Railroad Commission (now the Corporation Commission) to make reasonable rates of freight, etc., to be observed by all persons. Section 1 of that act, which has been quoted, prohibits discrimination, and § 4 provides that, where connecting carriers are unable to agree upon a fair and just division of the charges arising from the transportation of freight, etc., the commission shall make the division and fix the pro rata charges to be received by said connecting lines. Supplement No. 30 would prevent the application of this statute and permit the initial carrier to in effect make the joint rates and to determine the proportion of revenue .it should receive from the traffic haul.
It follows that the judgment of the trial court is correct, and it is therefore affirmed. | [
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Johnson, C. J.
The grand jury of Jackson County indicted appellant for the crime of murder in the first degree for the killing of one W. P. Ford. Upon trial to a jury she was convicted of second degree murder and was sentenced to a term of five years in the State penitentiary, and this appeal is therefrom.
The only serious contention advanced by appellant for reversal is that the trial court erred in permitting witnesses to detail certain statements made by deceased immediately prior to his death because, as it is urged, not made by deceased while in the belief that death was imminent and impending. To understand the contention made, it is necessary to detail in brief the facts.
The deceased Ford and Will Parish met in the court house at Batesville in Independence County about 10 a. m. on September 7, 1933, and after some conversation went to inspect a small place purchased by deceased, which was located about one mile from Batesville. They returned to Batesville about 1 o’clock p. m. the same day and went to the home of a Mrs. Mainard for refreshments. There appellant first appeared upon the scene. After imbibing freely of whiskey at Mrs. Mainard’s home, deceased, Ford, appellant, Will Parish, Roy Hicks, Geneva Hicks, the wife of Roy Hicks, and Otis Crosser about 2 p. m. secured an automobile and went to a wooded section known in that community as Lover’s Lane where the party again engaged in drinking. After all the whiskey was exhausted, the party concluded to go to Newport in Jackson County, and upon their way there additional whiskey was obtained and the party arrived at Newport about sundown the same day, all in a more or less intoxicated condition. At this point the evidence of witnesses is in irreconcilable conflict, but that upon behalf of the State tended to establish that at the bridge at Newport three other people joined the party and after riding over Newport for some little time the party as augmented went to a secluded spot adjacent to Newport where deceased was slugged and robbed of $58. This occurred about 8 o’clock p. m., September 7, 1933'. A witness on behalf of the. State, a Mr. Ward, testified that about 5:30 or 6 o’clock a. m., September 8, 1933, his attention was attracted by the cries of deceased Ford; that deceased requested witness to assist him, and he did so by calling Mr. William and Mr. Albright; that deceased was in a bad condition — his head was caved in on the right side. Deceased told witness that “he did not aim to be here much longer,” and showed witness a rock upon which deceased had carved his name for identification. Deceased told witness that he “had done give up,” and for that reason had carved his name upon the rock. Deceased died in about thirty minutes after this conversation. Deceased told witness that he, a Mr. Parish, and another fellow, Essie Fulbright, and another woman named Mabel were out drinking together; that Parish started to the car and deceased attempted to follow Parish at which time he was struck on the head. Deceased mentioned no other person being present at the scene. This occurred in Jackson County.
Sheriff: Albright testified that he examined deceased before he died and found a large hole in the right side of deceased’s head; that deceased told witness he didn’t know who struck and robbed him, but that Will Parish, Essie and Mabel were with him when he was struck and robbed. Deceased told witness: “I have been laying here all night, and it looked like I wasn’t going to get any help, and I was afraid of what might happen to me, and I wrote this on the rock to identify myself. ’ ’
After appellant, Hicks and wife, and Crosser left deceased at the place where he was found, the following morning they returned to Batesville arriving .there about 10 p. m., and immediately thereafter left Batesville for points in Missouri and Oklahoma. They were apprehended near Springfield, Missouri, some three days after Ford’s death, and all made conflicting statements in reference to their locations, whereabouts and travels not only after Ford’s injury but prior thereto.
From the facts and circumstances here detailed, it was certainly a question of fact for the jury’s determination whether or not deceased believed that death was impending at the time he made the declarations to witnesses Ward and Albright.
The fact that deceased had carved his name upon a stone for identification purposes was patent evidence that he believed the end was near; the fact that the right side of his head was crushed must have demonstrated to him the seriousness of his condition; the fact that deceased told witness Ward that “he had done give up” was tantamount to saying that death was inevitable. At any rate the facts and circumstances were amply sufficient to warrant the trial court in submitting the matter to the jury.
True, it is the settled law in this State that declarations of a deceased person made when hope of recovery was not relinquished are not admissible as dying declarations, but, when all the facts and circumstances surrounding such declarations unerringly indicate that hope of recovery is relinquished, then such declarations are admissible as dying declarations. Underhill on Criminal Evidence, § 172. Greenleaf on Evidence, (16 ed.) § 158; Sanderlin v. State, 176 Ark. 217, 2 S. W. (2d) 11; Alford v. State, 161 Ark. 256, 255 S. W. 884; Evans v. State, 58 Ark. 47, 22 S. W. 1026; Scroggins v. State, 109 Ark. 510, 159 S. W. 211.
Weakley v. State, 168 Ark. 1087, 273 S. W. 374, in no wise conflicts with the views here expressed. There the wound was in the leg, and no fact or circumstance was offered in evidence showing or tending to show that deceased Garrison had relinquished hope of recovery at the time the declarations were made.
Other cases are cited in brief, but the discussion heretofore set out fully disposes of the contentions urged.
We have explored the transcript to ascertain the correctness of the instructions requested, granted and refused, and have concluded that no prejudicial error was committed in this regard.
No prejudicial, error appearing, the judgment is affirmed. | [
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Baker, J.
This is a replevin suit brought by appellant against appellee to recover possession of certain electric sound reproducing motion picture equipment, used by the appellee, in his theater at Walnut Ridge. A description of the property is unnecessary. The plain tiff alleged in its complaint that the value of the property is $800, and that it is entitled to the immediate, possession of the same, and prayed for the recovery and $250 damages. It set up its title in the equipment under a lease, copy of which was made an exhibit to the complaint. It pleaded also that the appellee executed two notes, one for the payment of $25 weekly on each consecutive Saturday for a period of twelve weeks, commencing on the 12th day of June, 1931, and the second note for the payment of $52 weekly on each consecutive Saturday for a period of 74 weeks commencing on Saturday, the. 9th day of September, 1931, and that the appellee was in default in the payments, the first default being for a balance of $7 on the 19th day of September, 1931, and $52 each Saturday from that date until March 12, 1932, making a total default of $1,307. As we understand appellant’s presentation of the case, these notes were set up, and the defaults shown in order to show the breach of the contract by which the property was leased to the appellee, and that appellant, on account of the said defaults, was entitled to retake the property, in accordance with the lease contract signed by appellee.
Appellee answered the complaint and denied that the appellant was entitled to the possession of the equipment or for judgment for damages and costs; denied that the. equipment was leased or that he executed the promissory notes; and pleaded further that, if there was a contract, it was a contract of sale and not a lease, the title being retained until the purchase money was paid. He alleged further, by way of cross-complaint, that on the 8th of March, 1932, the equipment mentioned in the complaint was in the Sharum Theater, owned and operated by him, and that, among other things, the property was equipped with certain sound equipment, without which the theater could not operate, and that on that date the appellant by its agent, Hughes, had taken from the theater a certain part of this sound equipment, disabling the sound system to such an extent that it could not be used, and that, on account of the removal of such, part, the optical sound system, he was unable to operate his theater; that he had pictures booked and paid for until March 8, 1932, and for each evening thereafter for two pr three weeks; that he was playing to a large house, making a profit of $75 per week and would have continued to make such profit, except for the fact that he was compelled to close the theater by reason of the taking away of the sound system part so removed. He pleaded that, by the removal of this part of the equipment, he lost $225 profit; that he was required to pay for pictures he did not use during said period, in the sum of $450; that on account of being unable to operate for a period of three weeks his business was almost ruined; that for a period of four months thereafter he lost $50 a week on account of poor attendance caused by the closing of his theater, and finally that he had been damaged in the sum of $125 per week to the total of $2,000, and profits, which he should recover, in the amount of $600, and other items totalling finally the aggregate amount of $6,275, for which he prayed judgment.
As an amendment to the cross-complaint, the appellee set up the fact that the plaintiff had no right to the property, and that he was not in arrears; that the plaintiff had promised to refinance defendant’s account and to reduce the price of the equipment mentioned in the complaint, and that the terms had been agreed upon, and that it was in violation of this agreement that the plaintiff, the appellant herein, took possession of the property. Answer filed to the cross-complaint denied the material allegations.
Upon trial of the ease verdict was for defendant, Sharum, and his damages fixed at $225, and judgment, for appellee for said sum. If this judgment be sustained, appellee would be entitled, upon proper motion, to the return of the sound equipment taken from his theater.
This is a sufficient statement of the case, except as to the matter of the contract which will be discussed in the opinion.
The plaintiff, appellant herein, asked for certain instructions. Number one is as follows: “The contract in this case calls for a forfeiture and the right to repossess the property by the plaintiff at aim time when the defendant was in arrears, and the undisputed evidence shows that he was in arrears at the time the property was taken, and you should therefore find for the plaintiff.”
The. court refused to give this instruction, but gave other instructions upon which the case went to the jury.
There are certain undisputed matters of fact, asserted by the appellant and admitted by the appellee, which, taken in consideration with the contract, settle each controversy presented to this court.
The contract provides, among other things, for rights and remedies on behalf of the lessor or appellant. The parties to the contract anticipated, among other things, that there might be defaults, and that, in the event of such defaults, indulgencies might be granted, and the effect of such defaults and indulgencies and the rights and remedies of each party are set out in the contract, should any of these, conditions arise.
We quote from the provisions of the contract: Section 5. “Exhibitor (Sharum) accepts the terms, covenants, and conditions in this agreement set forth and agrees to perform the same in the time, and manner provided. Exhibitor hereby agrees to pay for the rental and license to use the equipment, premium for insurance (all of which shall be considered as rental), and for service, the total of the amounts payable under the following selected plan, and exhibitor also agrees that said amounts except service charges shall be due and payable to ECA Photophone without set-off or counterclaim on the execution and delivery of this agreement, but for the convenience of exhibitor ECA Photophone hereby agrees to permit exhibitor to pay said sums in accordance with the terms of plan three hereby selected by exhibitor, which permission may be terminated at the option of ECA Photophone in the event of failure by exhibitor to make any of the payments when and as provided by said plan. ’ ’ Plan three provides for rental of standard and additional equipment, if any, premium for insurance required by ECA Photophone for the period of the agreement, and services charges for the first two years. Exhibitor will make the following payments which, subject to the pro vision of this section, may he made as follows: down payment of $44.60 herewith, receipt of which is hereby acknowledged; weekly payments of $43'.85 payable on Saturday of each week for 104 consecutive weeks commencing’ on the first Saturday following the installation date.
Section 18 provides that, upon the expiration or termination of the agreement, exhibitor will deliver the equipment to RCA Photophone free from all claims and demands, and pay transportation to a point not more distant than the point from which the equipment was shipped, and, “upon default of exhibitor under any provision of this agreement and/or the expiration or termination of this agreement, RCA Photophone may repossess the equipment or any part thereof and shall have the irrevocable right to enter the theater or any other premises where the equipment shall then be, and, without notice or legal proceedings, repossess, and remove the equipment or any part thereof, and exhibitor will cooperate in such repossession and removal and pay any and all expenses of RCA Photophone in connection therewith. ’ ’
A part of § 20 provides: “No agreement altering, modifying or extending the terms of this agreement shall be valid unless in writing duly signed by the parties by their duly authorized officers.”
The original contract provided for the payment, at the end of each week, of a larger amount than the $25 per week, as set out in one note, and the $52 per week, as set out in the other note. The testimony of the parties is fairly clear, but Sharum had defaulted in his payments, and rather persistent efforts had' been made for collection; that the potes set out in the complaint and affidavit were given by Sharum as the new method of making payment upon the original contract, which was in no sense otherwise changed or altered. This was done for the accommodation of Sharum to enable him, for a time at least, to pay his indebtedness already in- default, and to save himself from the loss of the use of the property. These facts, as they appear from the record, considered most favorably for the benefit of Sharum, show that he was in default, though the time had long since elapsed within which some of these installments were to be paid.
Appellee says that the only contract he signed was the one exhibited by the plaintiff, appellant herein,' and also that the testimony of Iley], as to the amount of his indebtedness was substantially correct. Iieyl says that on March 8, 1932, the date Hughes got possession of a part of the machinery, Sharum was in default $1,307; that on August 7, 1931, the payment of $25 was made, and this left the defaults of July 18, July 25, and August 1. On the 24th of August, Sharum was in default five payments, and on August 31 Sharum sent in $100, still leaving him in default for August-22, 29 and for September 5, and on October 13,1931, in arrears $439. That was prior to the time that the last or final series of $25 notes were to be paid. The new notes called for $25 for fifteen weeks from January 23, 1932, and $42 for ninety-four weeks from April 30, 1932, but no payments were ever made on these notes. The other payments above mentioned had been credited on the indebtedness that had been existing, and which was evidenced by former notes and the contract.
Sexton, witness for Sharum, and Archer, the sheriff, also witness for Sharum, testified that Sharum admitted the arrearages in payments. Sharum says he doesn’t know how much he was in arrears. He asserted that the negotiations were going on in which he was insisting that he was entitled to a 40 per cent, reduction in the original contract price, but he had not secured any contract or agreement allowing that reduction.
Upon the record, as presented here, there was such default in the payments as to entitle the plaintiff, appellant herein, to retake the propertjn Under the contract it ha.d the right to do so, or to take any part of it.
There had been no action or conduct on the part of the plaintiff, such as to fix the course of dealing contrary to the express terms of the contract. There had been persistent efforts on the part of the appellant to collect its debt, and equally insistent demands on the part of the appellee that he was entitled to a change of the original contract, a modification thereof, which is admitted had never been made.
Although appellant had the right granted to it under the terms of the contract to enter upon the premises and take therefrom the machinery or any part thereof, we disapprove the surreptitious and deceitful manner of appellant’s agent in gaining entrance to the theater and taking therefrom a part of this machinery then in the possession of Sharum. But no damage resulted from this entry in itself. If there was any loss suffered by Sharum, it did not arise out] of the manner of obtaining entrance to the building. Whatever loss Sharum may have suffered, if any, arose out of the fact that the appellant took from the machine a part of it so as to disable it completely. It had a right to do that. It is inconceivable that damages can be predicated upon the enforcement of the right, when the enforcement is done in accordance with the agreement of the parties.
It follows, therefore, that the court should have instructed a verdict for the appellant, and, under the case as developed at the time, instruction No. 1, as asked for by appellant, or one to the same legal effect, should have been given, and a judgment should have been rendered for the property sought to be recovered in the action of replevin. .
So much of the contract sued on as has been presented to this court is enforceable, and there is no evidence of change or modification, except as to installments to be paid, and we have sought only to declare the rights and remedies of the parties as they have themselves expressed them. The appellee, no doubt, honestly feels that he is entitled to some reduction, but that is not evidenced by his contract, nor by any amendment to it, and the parties have expressly contracted that “no agreement, modifying or extending the terms of the contract, or agreement, shall be valid unless in writing and duly signed by the parties, or by their duly authorized officers.” That part of the contract just quoted would, at least, exclude evidence of any other agreement or understanding had as between Sharum and the agent of appellant at the time this contract was reduced to writing and signed. As the case is presented here, Sharum is only contending that negotiations were under way, hut not completed, for some modification or change.
We have carefully considered the case cited by appellee, General Motors Acceptance Corporation v. Hicks, ante p. 62. That case is easily distinguishable from the instant case. Mrs. Hicks, in that case, was in default of her payments one month. This default had occurred many months prior to the time of the taking of the Frigidaire sold her, and upon which she was making regular monthly payments. It was a course of conduct that had been pursued for such a length of time that she had a reasonable right to believe, that the default would not be taken advantage of, so long as she kept up, with reasonable regularity, the payments falling due each month. In fact, she was assured, by the seller of the Frigidaire, to whom the original contract had been delivered, that this method of payment was satisfactory. This dealer still had an interest in the paper, because he was a guarantor of her payments by his indorsement and transfer of it to the General Motors Acceptance. Corporation. Without reasonable notice to her of an intention to do so, the General Motors Acceptance Corporation procured entrance to the building, by breaking in, where the Frigidaire was stored, seized upon it and took it away. Mrs. Hicks was permitted to recover for the conversion of this property and also for other property lost by her on account of the fact that the agent of the General Motors Acceptance Corporation negligently left the doors open and other of her property was left unprotected, and it was stolen while so exposed. There was a performance in this ease, except as to the one payment, which was in default some months previous.
In the case now under consideration, there is persistent and continuous default, with equally persistent efforts on the part of the plaintiff to make collection; the distinction being that in the Hicks case, there was a waiver and in the instant case there was not.
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Johnson, C. J.
This is an action for divorce instituted by appellee against appellant in the Independence Chancery Court, the complaint alleging “indignities” in accordance with the mandate of § 3500, Crawford & Moses’ Digest. Appellant answered the complaint by general denial, and by way of cross-complaint prayed a decree in her behalf for separate maintenance, suit money, attorney’s fees and costs.
To sustain the allegations of the complaint, the following testimony was adduced. Murill Welborn testified that she is a daughter of appellee and is thirteen years of age; that she had met appellant upon the streets, and appellant did not speak to her. This occurred before appellant and appellee began living together as husband and wife.
Luther Welborn, a brother of appellee, testified that he assisted appellee in his restaurant business, and that appellant would come in the place of business and raise “cain” with appellee because witness was working there.
Appellee testified in his behalf: That he is thirty-nine years of age and was married to appellant January 11, 1932; that they did not live together as husband and wife until about May 10, 1932, because appellant did not desire to take care-of his children; that they lived to getlier on this occasion only two weeks when appellant moved away because, as she said, she could not get along with the children. Thereafter in June, 1932, appellant brought suit against appellee for maintenance, but this suit was settled and dismissed, and appellant then returned to his home; that appellant objected to his going to see his children and giving them money, and “fussed every time I came home,” and when he sent money to the children appellant would “blow up”; that appellant would “fuss” because appellee would not take her to shows “She told me that she couldn’t come into the shop without some of my ‘darned outfit’ was there; that just before I left there or the morning appellant left she had been fussing ever since Saturday night about me not going out with her and this continued until Wednesday morning when appellant left. ’ ’
Ada Welborn, appellee’s sister, testified that she never saw appellant but one time and never had “any fusses” with her.
In rebuttal Fon Wagner testified that appellant came to his place of business and asked about appellee and stated that “she would have been glad to let him go” if he had settled up with her.
Mrs. Wagner corroborated the testimony of witness, Fon Wagner, and this was all the testimony adduced in appellee’s behalf.
Without stating in detail the testimony on behalf of appellant, it may be said as to all material facts it flatly contradicts that produced for appellee, and in addition recounts a shocking set of facts and circumstances in reference to the conduct of appellee in regard to his marital obligations.
Appellee was awarded a decree of divorce, and this appeal is prosecuted therefrom. Were it conceded, which we do not for the reasons hereinafter expressed, that appellee’s testimony was sufficient to establish cause for divorce, this would fall far short of complying with the prevailing rule in this State that a divorce will not be granted upon the uncorroborated testimony or admissions of either spouse. Rie v. Rie, 34 Ark. 40; Kurtz v. Kurtz, 38 Ark. 119; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486.
The testimony of appellee’s witnesses heretofore set ont demonstrates its lack of corroborative facts and circumstances, and we have no hesitancy in holding its insufficiency.
Moreover, appellee’s testimony, giving it its most charitable view, relates no facts or circumstances establishing indignities under our statute. True, he testified to certain “fussing,” “blow ups,” etc., and other conclusions but he does not undertake to detail the facts which superinduced these conclusions. Not only this, but appellee’s testimony falls far short of the rule announced by us many, many times, to the effect, that to entitle a complaining spouse to a divorce for indignities, the conduct of the offending spouse must be of such nature as to connote settled hate and a plain manifestation of alienation and estrangement, and must have been followed habitually and continually through such period of time as to show settled hate and malevolence. Rose v. Rose, 9 Ark. 507; Preas v. Preas, 188 Ark. 854, 67 S. W. (2d) 1013.
Manifestly, therefore, the court erred in granting appellee a divorce on the testimony adduced. The trial court also erred in refusing to award appellant separate maintenance and a reasonable attorney’s fee. The testimony in reference to appellee’s ability to provide separate maintenance is to the effect that appellee owned a restaurant business in the city of Harrison which he gave to his brother for the asking; he gave a farm worth several hundred dollars to his sister because she had assisted him; he collected more than two thousand dollars from a fire insurance company which accrued to him because of a fire, and no satisfactory explanation has been made of its disposition. From this we conclude that appellee should be compelled to contribute $25 per month for appellant’s separate maintenance which allowance is made effective as of date of the trial court’s decree. Appellant’s counsel is awarded an attorney’s fee of $50 for his services in this court.
The cause is therefore reversed, and remanded with directions to enter a decree not inconsistent with this opinion. | [
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Butler, J.
T. W. Roach, the appellant, is engaged in the work of the construction of levees, and as a part of his equipment a tower machine was in use. This machine is composed of a tower about one hundred feet high with cables, engines, etc., installed thereon. It was used for placing dirt on the levee by means of buckets or scoops moving on cables from a point between the levee and the river. This structure moved on wheels along a track made of cross ties and heavy timbers, constructed in sections called “mats.” As the work progressed the tower was pulled along the track by means of a cable which was fastened to a “dead man” and wound around a drum, thence back under the machine. After the machine passed over one section the cable was attached to that section, which was then pulled underneath the machine to the front so that the machine could pass over it again. A small steam engine was used in pulling the machine forward and also for bringing forward the “mats” or sections. This engine was located on a platform about twenty feet above the ground floor. The floor of the machine was about six feet above the ground level at the rear and about four feet in front. It was constructed in this manner because it operated on a slope.
The appellee Haynes was in the employ of the appellant and in charge of the operation of the tower machine. On the 10th of October, 1932, in the regular course of his employment, the appellee was under the machine taking some measurements at a time when the ‘£ mat ’ ’ over which the machine had just passed was about to be pulled forward. On a given signal the engine was started suddenly by the application of a full head of steam which caused the cable to vibrate violently from side to side, striking Haynes and severely injuring him. This suit was brought to recover damages for such injuries, and resulted in a verdict and judgment in favor of the appellee, from which is this appeal.
It is contended that the injury was the result of a risk assumed by the appellee; that there was no negligence on the part of the appellant proved, that the cause of the injury was the negligence of the appellee, and, lastly, that the case was submitted to the jury on improper instructions.
In determining these questions, under settled rules, we must view the evidence with every reasonable inference arising therefrom in the light most favorable to the appellee, and which so considered may be thus stated: The appellee was experienced in the nature of the work he was performing and aware of the danger ordinarily incident thereto. He had been in the employ of the appellant for some time before the accident occurred and had operated the tower machine, beginning about the first of August, 1931, for a few months. Por an interval for some reason the machine was not in operation, and then about July, 1932,' while the machine was at Greenville, Mississippi, appellant obtained a contract to construct a levee near Grand Lake in Chicot County, Arkansas. The machine was moved there and work began on that job about July 10th with Haynes in charge of the operation of the machine. At the time of the removal of the equipment, between the first and the tenth of July, Haynes notified the appellant that the small engine used for moving the machine forward and for bringing forward the “mats” was worn and defective. The appellant promised that he would have it repaired when it was taken “to the lower job.” The defects were described to be the result of a worn condition, which caused about a fifty per cent, loss of power. The cylinders and pistons were worn, and, if the engine was started in the proper manner, it would come “on center” and stop. This necessitated the opening of the throttle wide and letting the steam start with full head in order that the engine would operate. This would cause the slack in the cable to be taken up quickly, resulting in the cable whipping from one side to the other. If the engine had been in proper condition, the proper manner of operation was -to start it slowly, gradually applying the cable and tightening it before applying full steam. The engine could not be repaired while on the job, and it would be necessary to stop operations and take it to some machine shop for the repairs to be made. The engine was not repaired before beginning work on the lower job, and Haynes called that fact to the attention of Mr. Frank Grant, who, according to the claim of Haynes, was the superintendent of the job. Grant promised several times to have it fixed at the first favorable opportunity when something would occur— such as rains or anything else which would cause the work to stop for a time — and that, on the occurrence of an event of this nature, the engine would be taken to the shop at Greenville and there be repaired. Relying on the promise of the appellant and Grant, Haynes continued to operate the tower machine up until the time of his injury and, not realizing the extent of his injury, operated it for some time longer.
The above facts are drawn from the testimony of the appellee. There was no dispute in the testimony as to the defective condition of the engine. As to the promise of repair, Mr. Roach, when asked if Haynes had made complaint to him at Greenville about the engine being defective, answered, “Not that I remember.” Mr. Grant, in testifying regarding the notice as to the defective condition of the engine claimed by Haynes to have been given him and as to whether or not it was before or after the injury, when asked, “Did he ever make any such complaint to you,” answered, “I don’t think so — not before then. He did afterwards.”
It will be observed that there were positive statements of Haynes regarding the notice and promise of repair both given to and made by Roach and Grant, while there is not a positive denial by them of those facts. There was therefore sufficient substantial evidence to warrant the conclusion of the jury that such notice was given and the promise of repair made.
There is a conflict in the testimony relative to the position Grant occupied and as to whether or not he was clothed with authority to represent the appellant with respect to shutting down the work for the purpose of hav ing the engine repaired. Haynes testified that Grant was general superintendent, and that, while he himself directed the operation of the tower machine, kept it in shape, and did such repairs to its structure or machinery as might be done without serious interruption of the work, the general supervision of the work was under Grant, from whom he received hisi orders. The testimony of Boach details the particular duties required of Grant, and that Haynes “was superintendent of the tower machine and had charge of all the machinery, ’ ’ but did not deny that given by Haynes to the effect that Grant was in charge of the general supervision of the work and that Haynes took his orders from him. The testimony of Grant relative to this told of his specific duties, which were that of a timekeeper and commissary man, and the statement that he did not have anything to do with the operation of the tower machine. But there was no denial by him of that part of the testimony of Haynes to the effect that he was clothed with general supervision of the work. We think that the evidence as to the authority of Grant to receive the notice of the defective condition of the engine and to have the repairs made is sufficient to justify the submission of that question to the jury, and its conclusion that he had such authority is binding on us, and therefore notice to him was as effectual as if made to the appellant himself. This state of case makes applicable the rule announced in St. Louis, I. M. & S. R. Co. v. Holman, 90 Ark. 555, 120 S. W. 146, cited by the appellee, and creates an exception to the rule that an employee assumes all the ordinary risks of his employment and such extraordinary risk as may result from defects in the instrumentalities used of which he is aware.
As said in the case cited supra: “The effect of a promise to repair by the master, and the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation, whereby the master assumes the risk impendent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant continues for a reasonable time. 1 Labatt, Master and Servant, §§ 424, 425, and notes thereto. No matter how obvious the defects or how imminent the perils therefrom, the servant, pending the promise of the master to repair, does not assume the risk of the given defects by continuing in the master’s service in reliance upon his promise. For, as was said by the .Supreme Court of Illinois in Swift & Co. v. O’Neill, 187 Ill. 337: ‘By the promise of the master a new relation is created between him, and the employee whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise.’ ”
The appellee was skilled in the operation of the appliances with which the work was done and familiar -with the dangers incident to the defects therein, and ordinarily, as insisted by the appellant, where the danger arising from the negligence of the master is so obvious in its nature as to be readily discoverable by one of ordinary intelligence, the employee, by voluntarily continuing in the situation, assumes the hazard which exempts the employer from liability on account of injury. This was the theory on which instruction No. 6, requested by the appellant and given by the court, was based, which instruction was more favorable to him than he was entitled to. This instruction, and the appellant’s theory would have been correct, had it not been for the notice given to the employer and his promise to repair. This fact distinguishes the instant case from those cited and relied upon by the appellant announcing the doctrine of assumption of risk. The promise of repair creates a new relation between the employee and the master which removes the assumption of risk for a reasonable time pending the compliance of the promise, and it is only where the danger is apparently so great and imminent that no prudent person would continue in the work that the assumption of risk would continue. See cases first cited and Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120. In this case it cannot be said as a matter of law that the defect in the engine caused its operation to be so dangerous that no prudent person under any circumstances would continue to use it or to work in close proximity thereto. Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180; Pekin Cooperage Co. v. Duty, 140 Ark. 135, 215 S. W. 715; Mama Coal Co. v. Dodson, 141 Ark. 438, 217 S. W. 475.
Appellant is in error in the contention that the evidence fails to show any negligence on his part. From the evidence accepted by the jury as true, he was negligent in the failure to repair the engine within a reasonable time after having received notice of its defects and after making promise to repair the same.
On the contention that the proximate cause of appellee’s injury was not the negligence of appellant, it is argued that the injury was occasioned by the negligence of the appellee himself, in occupying a place of known danger without advising those who operated the engine that he was about to take this place. It is true that the appellee did not tell the operator of the engine, or any one else of the employees, that he was about to go under the tower machine, and, as argued by the appellant, he was well aware of the condition of the engine and that from the necessity of the manner of its operation the cables, in taking up the slack, would be switched and jerked about in varying degrees. But he was in the line of his duty in going under the machine, and this was necessary for the proper prosecution of the work. In testing the question of the degree of care the appellee took or failed to take, consideration should be given to the fact that he was engaged in the performance of necessary work and had to give to it his attention as well as the particular place he was then occupying. This place was twelve feet distant from the line of cable, and it is not shown that at that distance the appellee would have been in such an obviously dangerous place that one of ordinary prudence and caution would not have occupied it. It is well settled that, where an employee works in a situation where the danger is so obvious and imminent that no person of ordinary prudence would expose himself thereto, then the negligence would be such as to relieve the employer of liability. On the other hand, however, where reasonable minds might draw different conclusions as to the danger and its imminence, it becomes a question of fact for the determination of the jury. St. Louis, I. M. & S. R. Co. v. Mangan, 86 Ark. 507, 112 S. W. 168; Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180; E. L. Bruce Co. v. Leake, 176 Ark. 705, 3 S. W. (2d) 6; Newport Mfg. Co. v. Alton, supra. The court submitted the question of the appellee’s contributory negligence to the jury under an instruction which fully and correctly declared the law on that subject.
It is lastly insisted that instructions Nos. 1, 2 and 3 were repetitions of identical statements, the principal objection being that in all these instructions the court assumed as a matter of law that the engine was defective. We have examined these instructions and find them not open to the objections made. The question as to whether or not the engine was defective was submitted to the jury, and in this respect was more favorable to the appellant than it should have been. There is no dispute in the evidence as to the condition of the engine and no denial by any witness that the statements regarding the defective condition of the engine were not correct.
On the whole case, we find no error prejudicial to the appellant, and, as there is substantial evidence to support the verdict, the judgment, is affirmed. | [
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McHaney, J.
This is an action by appellees against appellant and her husband, "W. S. O’Kane, for the foreclosure of two mortgages given to secure certain indebtedness represented by three promissory notes. One of the mortgages was dated April 6, 1927, and was executed by W. S. 0 ’Kane alone to secure an indebtedness to L. B. Crenshaw. It was sold and assigned to appellee bank after maturity in 1933. The other was dated July 30, 1930, and purported to be signed and acknowledged by both appellant and her husband, the acknowledgment being dated October 7, 1930, and was recorded the same day. This mortgage by express terms made it subject to the Crenshaw mortgage.
The defense to the foreclosure action by appellant was that, although she signed the mortgage of July 30, 1930, she did so under duress and compulsion of her husband, and that she did not acknowledge the same. The court found both issues against her and decreed foreclosure, extinguishing her dower and homestead rights in and to the lands described.
This appeal presents the same questions for review, and these are principally questions of fact. To support her plea of duress, appellant testified as follows: “Well, Mr. 0 ’Kane had been trying to get me to sign the mortgage, and I refused to sign it, and he said I had to sign it. He cursed and made me sign it. ’ ’ She was corroborated somewhat by her husband, but the trial court held his testimony incompetent, and this forms the basis of one argument for reversal by appellant. We do not think it necessary to determine this question in this case, for, conceding without deciding its competency, we are of the opinion that the decree of the court in this respect, as well as upon the issue of whether she appeared before the notary and acknowledged the instrument, is not against the preponderance of the evidence. Appellant admitted she signed the mortgage at her home and that her husband took it to the bank. She did not at any time mention the matter of duress to any official of the bank. Mr. O’Kane took the mortgage to the bank and there acknowledged it before Dolph Guthrie, notary. His wife (appellant) was not present at that time. Officials of the bank testified that she later came in and acknowledged some paper before the same notary, and this paper was handed to the cashier. The acknowledgment was completed October 7, 1930, and was recorded that same day. The certificate of the officer is regular in form, and states that she, “in the absence of her said husband, declared that she had of her own free will executed the foregoing deed and signed and sealed the relinquishment of dower and homestead therein expressed for the consideration and purpose therein contained and set forth, without compulsion or undue influence of her said husband. ’ ’ This mortgage had been delivered to the notary to hold for the acknowledgment of appellant, and, when it was had, it was turned back to the cashier, Mr. Sadler, who had it recorded the same day. Appellant stands alone in denying that she appeared and acknowledged the instrument. She is contradicted, not only by her interest in the result of this lawsuit, but by the certificate of the officer and two officers and employees of the bank, and by her ádmission that she actually signed her name to it. The burden was upon her to establish the falsity of the certificate of the notary, and this she has failed to meet. As said by the late Chief Justice Hart, in Nevada County Bank v. Gee, 130 Ark. 312, 197 S. W. 680: “In our opinion, the weight of the evidence should not be affected by any particular rule peculiar to the subject, but rather the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. This much may be said, however, under chapter 29 of Kirby’s Digest, a proper acknowledgment is an essential part of the execution of a conveyance. The acknowledgment is an official act done under an official oath and is protected under the presumption the law necessarily indulges in favor of the acts of its own officers. Under our statute, one of the means of evidence upon which a deed can be admitted to record is a certificate of proof or acknowledgment of an officer authorized by our statute to take such proof or acknowledgment. The burden of proof undoubtedly rests upon the person denying the falsity of the certificate, which carries with it the usual presumption that the officer making it has certified to the truth, and has not been guilty of a wrongful or criminal action.
“The notary or other officer before whom an acknowledgment is taken performs a very important duty when he takes and certifies an acknowledgment of a deed or any instrument affecting the title to real estate. For that reason great weight is given to his official act in certifying to the validity of such instruments. The impeachment of his certificate involves a charge of criminal violation of duty on the part of the certifying officer.” See also Miles v. Jerry, 158 Ark. 320, 250 S. W. 34; Clifford v. Federal Bank and Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026; Anthony v. Pennington, 182 Ark. 1039, 34 S. W. (2d) 219; Jolly v. Meek, 185 Ark. 395, 47 S. W. (2d) 43, and cases cited therein.
The evidence is amply sufficient to support the court’s finding that she did appear before the officer and did acknowledge the instrument. Having done so, and having solemnly and without compulsion stated to the officer that she had signed same “without compulsion or ■undue influence of her said husband,” sbe ought to be and is now estopped from so contending.
The decree of the chancery court is correct, and must be affirmed. | [
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Butler, J.
This case was submitted to the trial court upon the following agreed statement of facts: •
“That on tbe '29'tb day of August, 1931, the intervener, C. C. Holmes, ’received a draft for $600, indorsed by Fred Mahler, to him, the said' draft drawn by the Farmers’ National Bank of Sparta, Wisconsin, on the Federal Reserve Bank of Chicago, in favor of the said Fred Mahler. That on the same day, August 29, 1931, the said C. C. Holmes deposited said draft in the People’s Savings Bank at Harrison,'Arkansas, and that said bank issued to Mm a deposit slip, which is here exhibited and made a part of this agreement as exhibit A thereto.
“At the close of business on August 28, 1931, the said C. C. Holmes had on checking account in said bank the sum of only $9.47. That the said C. C. Holmes was a regular customer of said People’s Savings Bank. That on the said 29th day of August, 1931, he drew his certain check on said bank for $175, due to a third party, out of the proceeds of said $600 draft, which said check was presented to the bank on the same day and prior to the time when said draft was deposited and was cashed by said People’s Savings Bank. That the said C. C. Holmes had previously been permitted to 'overdraw his account in said bank.
“That the said draft for $600 was immediately forwarded by the said People’s 'Savings Bank to the Bankers’ Trust Company of Little Bock, Arkansas, for deposit, and same was credited to the account of People’s Savings Bank of Harrison, and said item was sent in the regular course of business by the Bankers’ Trust Company to the Federal Beserve Bank of Chicago,'where it was paid September 2, 1931, and the proceeds remitted to the Bankers’ Trust Company, aforesaid.
“That the intervention herein is made for the purpose of having said sum of $600 established as a preferred claim against the said Walter E. Taylor.
“It is further agreed that, on the 31st day of August, 1930, another check of C. C. Holmes for $7.50 was presented to the bank for payment and was paid by said bank, leaving a balance of .only $426.97, to the credit of this intervener in said bank at close of business on August 31,1931. That no deposit was made by the said C. C. Holmes in said bank subsequent to August 29, 1931, and no other checks were paid and charged to his account except as herein set forth; and the amount of his account in said bank when said bank closed was only $426.97.”
The court declared the law to be that the deposit slip issued by the People’s Savings Bank to C. C. Holmes constituted a contract between Holmes and said bank, and that by its terms the draft for $600 was accepted for collection by said bank, the proceeds of which the bank held as a preferred claim under subdivision 6 of § 1 of act No. 107 of the Acts of 1927, and that the balance, after deducting the checks mentioned in the agreed statement of facts, to-wit, the sum of $426.97, should be allowed as a preferred claim. From that finding and decree is this appeal.
It is well settled that the owner of the proceeds of a collection made by an insolvent bank is entitled to have his claim for such preferred to that of general creditors on the theory that the collecting bank is the ag’ent of such owner and the title to the proceeds of the collection remains in the depositor. Act No. 107, § 1, subdivision 6, Acts of 1927; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557; Taylor v. Dermott Grocery & Commission Co., ante p. 7; Taylor v. First Nat. Bank of DeQueen, 184 Ark. 947, 43 S. W. (2d) 1078. ;Where checks or drafts are indorsed and deposited in the usual course of business, and the bank credits the depositor with the proceeds thereof, the relationship of debtor and creditor arises, in the absence of an agreement to the contrary, even where the right on the part of the bank exists to charge back the check if it proves uncollectable. Taft v. Quinsigamond Nat. Bk., 172 Mass. 363, 52 N. E. 287; Downey v. Nat. Exchange Bank, 52 Ind. Ap. 672, 96 N. E. 403; Sears v. Emerson, 182 Ill. App. 522; Brusegaard v. Ueland, 72 Minn. 283, 75 N. W. 228; Mudd v. Farmers’ etc., Bank, 175 Mo. App. 398, 162 S. W. 314; Covey v. Cannon, 104 Ark. 550, 149 S. W. 514; Calhoun v. Sharkey, 120 Ark. 616, 180 S. W. 216; Taylor v. Dierks Lbr. & Coal Co., 183 Ark. 937, 39 S. W. (2d) 724; and in case of insolvency of the bank the depositor becomes a general creditor. Taylor v. Dermott Grocery & Comm. Co., supra; Kansas City Life Ins. Co. v. Taylor, 184 Ark. 772, 43 S. W. (2d) 372; Tyler v. Citizens’ Bank, 184 Ark. 332, 42 S. W. (2d) 385.
The deposit slip mentioned in the agreed statement of facts had printed on its face: “All checks' and drafts are credited subject to payment as per conditions stated on reverse side hereof.” The conditions on the reverse side, quoted by appellee as material to the question presented, are as follows: “All checks, drafts and papers deposited subject to payment and on express condition that this bank is not responsible for omission, neglect or default of any bank or subagent employed to collect same, but only for good faith and due care in selection of such bank or agencies.” Also the following: “This bank accepts deposits and collections on the following conditions only: (2) items received for collection or credit and not drawn on this bank are taken at depositor’s risk, and, should any such items be lost, and should no returns be received within reasonable time, such items may be charged back to the depositor.”
Another condition on the deposit slip is: “ Should any item be not paid, or any agent fail to remit proceeds therefor, this bank may charge the item back to depositor. ’ ’
It is the contention of the appellee that these provisions of the deposit slip created the relationship of principal and agent between the depositor and the bank as effectually as if the words, “for collection,” had been written on the face of the deposit slip, and this conclusion was reached by the court below. The only question therefore, is, Was the check a general deposit and accepted as cash by the bank, or was it a deposit for collection?
The depositor was a regular customer of the bank with a checking account which at times would be overdrawn. The check was deposited in the usual course of business, and credit was given therefor, and checks drawn against the general account in which it was placed, so that, at the time the bank became insolvent, the depositor was due only the sum of $434.47. By his indorsement of the draft the depositor guaranteed its payment, and the bank had the right to charge the same back to the depositor in the event it was not paid. K. C. Sou. Ry. Co. v. First Nat. Bank of Ft. Smith, 174 Ark. 447, 295 S. W. 357; Taylor v. Dierks Lbr. & Coal Co., supra. Therefore the conditions on the deposit slip gave the hank no right that it did not already have. Whether the deposit was for collection merely or a general deposit depended on the intention of the parties to the transaction, as shown from all of the circumstances in the case. Ark. Trust & Banking Co. v. Bishop, 119 Ark. 373, 178 S. W. 422. We think the circumstances of this transaction contain nothing to rehut the presumption that the draft was a general de.posit, and we find nothing in the language of the conditions printed on the deposit slip that would show that this was not the intention of the parties. Tyler v. Citizens’ Bank, supra.
It follows from what we have said that the trial court erred in its decree, which is therefore reversed, and the cause remanded with directions to allow the claim of the appellee as that of a general creditor: | [
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Humphreys, J.
Appellant was indicted, tried and convicted for murder in the first degree of Manley Jackson, and adjudged to serve a life term in the State penitentiary as a punishment therefor, from which is this appeal.
The first assignment of error for a reversal of the judgment is that the trial court erred in allowing the prosecuting attorney to prove by Lige Dame, a witness for the State, that appellant had been engaged in the liquor business for several years. Even if improper to make this proof, appellant afterwards became a witness in his own behalf and admitted that he had engaged in the liquor business, so he was not prejudiced by the proof of the State in this respect.
The next assignments of error for a reversal of the judgment were the admissions in evidence of statements of witness, Lige Dame, to the effect that John Slayton had promised him $1,000 to kill Manley Jackson and $450 to burn a house, and had protected him in the sale of liquor in Pocahontas for a consideration, all in the absence of, and without the knowledge of, appellant. Objections were made and exceptions saved to the introduction of this evidence.
Such evidence could he admitted only on the theory that Lige Dame, who killed Jackson, was induced and encouraged to do so by John Slayton and appellant, or, to put it differently, that the three were conspirators in the commission of the crime.
Lige Dame testified that he killed Jackson at the instance and request of John Slayton and appellant; that John Slayton and Manley Jackson were opposing candidates for marshah.at Pocahontas, and that Friday before the killing on Saturday John Slayton offered him $1,000 to kill Manley Jackson, and that he agreed to do so; that on the next day, Saturday, appellant came and informed him that Manley Jackson was having illicit relations with witness’ wife, and advised that he kill him, and offered to help him do so; that, pursuant to the agreement, they induced Manley Jackson to go with them out in the country a short distance before daylight Sunday morning, where witness shot Manley Jackson four or five times in the back, and left him a corpse on the roadside.
The fact that both appellant and John Slayton approached Lige Dame for the same purpose within a few hours of each other and prevailed upon him to kill Manley Jackson tended to show that they conspired together to take his life. There being sufficient evidence from which to infer a conspiracy, the conduct and relationship of the conspirators, one to another, in lawlessness and crime was admissible as a circumstance tending to show the guilt of either in the particular crime charged.
The next assignment of error is that the court erred in allowing the State to show by George Promberger, Jr., and his father that appellant bought No. 45 calibre pistol shells at their hardware store about two months before Manley Jackson was killed. Manley Jackson was killed with bullets of that size, and for that reason the circumstance of the purchase was admissible.
The next assignment of error was the admission of appellant’s evidence, taken in shorthand and transcribed at the coroner’s hearing or examining trial, and also in a habeas corpus proceeding on application for bond by John Slayton. It is argued that the admission of this testimony was in plain derogation of § 3122 of ’Crawford & Moses’ Digest, which is as follows:
“In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”
The introduction of the testimony was not objected to on this specific ground, and no general objection was made to it, so we cannot pass upon the admissibility thereof on appeal.
The next assignment for a reversal of the judgment is that the court withdrew instruction No. 11 from the jury after the case had been submitted. The jury had returned to the court to ask that the instructions be read to them again. In reading the instructions, the court discovered that the subject-matter contained in instruction No. 11 was fully covered by instruction No. 15, which appellant had requested, and therefore withdrew instruction No. 11 from their consideration. We are unable to see where any prejudice resulted to appellant by the withdrawal of one instruction which was fully covered by another.
The last assignment of error for a reversal of the judgment is that the testimony of appellant’s admitted accomplice, Lige Dame, is not sufficiently corroborated to sustain the verdict and judgment of conviction.
The rule of evidence is that the corroboration of the testimony of an accomplice is not sufficient if it merely shows the killing and the circumstances thereof, but must connect the defendant with the commission of the crime. There are corroborating circumstances in the testimony tending to connect appellant with the murder of Manley Jackson, as follows:
A short time prior to the killing, appellant was arrested by Manley Jackson in a manner displeasing to him. In making the arrest, Jackson drew a pistol on him, and he stated in a heated argument with him that he had better never do that again.
Appellant purchased, about two months before the killing, cartridges the same size that were used in killing Manley Jackson.
There is testimony in the record tending to show that appellant told of'the killing before it was known in Pocahontas.
During -the investigation of the killing by W. A. Jackson, father of deceased, appellant, said to Joe Alphin, “Now listen; if you know anything, you had better keep your damn mouth shut.”
Immediately after the investigation, just after appellant had been interrogated concerning his knowledge of the crime, he said to Frank Jankersfeldt, “The sons of b............! Trying to find out something, and I am not talking.”
No error appearing, the judgment is affirmed. | [
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McHaney, J.
November 16,- 1926, Samuel Harper, deceased husband of appellant, made application to appellee for a policy of life insurance in-the sum-of $1,000, paying the premium therefor. The policy was issued bearing date January 8, 1927, in which appellant was named beneficiary. Twenty days later the insured died, and thereafter proper and timely proofs of death were furnished and demand made for payment, but appellee did nothing until June 29, 1927, when it sent its agent to appellee to effect a settlement. ■ On that date, accompanied by a notary public of Corning, Arkansas, said agent called upon appellant, told her the policy was void because her husband had misrepresented his physical condition in the application, that his statements in this regard were warranties, were false, and that, because of such false warranties, the policy was void. He offered to return the premium paid, about $29, which she refused, and he finally offered her $100, stating that if she refused that she would get nothing. She finally made the settlement, signed a release, and the agent departed. Thereafter, within the period of limitations, she brought this action to recover the balance due on the policy, charging fraud in the procurement of the settlement. A second count of the complaint sought to recover special damages for breach of the contract. In-this count she alleged that her husband's farm was mortgaged, and that he was induced to apply for this on the representation of the agent that in the event of his death the amount of the policy would take care of the mortgage, and thereby preserve the homestead for the widow and minor children; and that appellee had breached the contract of insurance by refusing to pay, and that she had lost the farm homestead through or oh account of such breach. Appellee demurred to the complaint. The court overruled the demurrer to the first count, but sustained it as to the second count. Appellant refused to plead further on the second count, and the court dismissed same. An answer was filed to the first count, denying the material allegations thereof. An affirmative defense was pleaded that insured had made certain statements in his application relative to his insurability which were false, known by him to be false, and made for the purpose of defrauding it.
The case proceeded, to trial, and at the conclusion of the testimony on behalf of appellant the court sustained a motion for a directed verdict in favor of appellee. Judgment was entered accordingly, and this appeal' followed.
We think the court erred in so doing. The trial court should not direct a verdict, thereby taking.the case, from the jury, unless there is no substantial evidence to support a verdict in favor of the other party. Of course, in a case where a verdict has been rendered which, in the opinion of the trial court, is against the preponderance of the evidence, it is the duty of the trial court to set it aside and grant a new trial on proper motion therefor; but the trial court is not authorized to take the case from the jury in the first instance, if there is some substantial evidence to support a verdict against the party making the request or in favor of whom it is directed. In determining the question here, we view the evidence in the light most favorable to the complaining party. Viewing the evidence in this light, the facts are substantially as follow's: Appellant is a woman of moderate education, not unlettered or ignorant, but inexperienced in business matters. She lived on a small farm at Palatka, Arkansas, with her husband and five small children, aged from 11 to 2, until his death. She made proof of death, but heard nothing from appellee until June 29, 1927, when its agent, Mr. Dow, and Mr. Arnold came to see her. She was not well at the time. Dow told her the company didn’t intend to pay the policy, and that he had brought the premium, about $29, and would pay that back, and wanted to take up the policy. She refused to take it. She asked to be permitted to go to town to consult with a friend, but was told that, if she refused to accept that, it was all she would get. He told her Mr. Harper had “lied” in his application, and that he had cancer of the rectum at that time, and the policy was null and void. She told him if she couldn’t collect the policy she would lose her home, and that he talked to her so she broke down and cried; told her again the return of the premium was all he would pay. She refused the offer, expressed the desire to go to town and advise with friends, and finally he offered to pay her $100, which she finally accepted and signed a release in the presence of Mr. Arnold. Other facts and circumstances appear, but we think it unnecessary to detail them. Appellant was fully corroborated by Mr. Arnold as to what Dow said and did. We think the effect of this evidence, when considered in connection with the fact that Dow’s attitude was dictatorial, domineering and insulting, was sufficient to go to the jury on the legality of the settlement and the release executed pursuant thereto. Moreover, he made false statements to her regarding the effect of the alleged false statements made by the insured in his application for insurance. The policy provides that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.” Dow made the statement to her that Mr. Harper had misrepresented the condition of his health, and that this would avoid the policy. Such is not the law under the above provision of the policy. If the applicant states what he honestly believes to be true regarding his physical condition, the fact that it turns out to be not true does not avoid the policy, as it is a representation merely. Of course, if his statements are false and known to him to be false, and are made fraudulently, they have the same effect as warranties. Union Aid Life Ins. Co. v. Munford, 180 Ark. 1048, 24 S. W. (2d) 966. It is true that appellant testified that insured had some rectal trouble, piles he thought, but probably hemorrhoids, which later necessitated an operation from which he died, but she also testified that it was not considered serious by them, and that he worked every day, made a crop in 1926 and harvested it. The question will be then were his statements made in good faith, if untrue, or were they made knOAving them to be false and for the purpose of defrauding appellee. See American Nat. Ins. Co. v. Chavey, ante p. 865. But the question here is, was the settlement conclusive of appellant’s rights as a matter of law under the evidence, or was it a question for the .jury? We think the question one for the jury as to Avhether the release was procured by fraud or coercion.
We think the court properly sustained the demurrer to the second count of the complaint.
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Smith, J.
E. E. Mitchell, trading as E. E. Mitchell & Company, obtained a decree foreclosing a vendor’s lien upon 160 acres of land which' he had sold to Johnnie Maxwell, who was dead at the time of the rendition of the decree. Maxwell’s widow and his heirs, who were minors, were defendants in the suit. A receiver had been appointed, who was in possession of the land and had collected the rents.
Pursuant to this decree, this land was sold by the commissioner named for that purpose to Mrs. Maxwell, the widow, for $1,025. The sale was reported to and approved by the court, but Mrs. Maxwell declined to comply with her bid by executing a note and bond as the notice of sale required the purchaser to do.
Thereupon a notice was served upon Mrs. Maxwell by Mitchell which contained the following recital: “You have failed to comply with said bid, by either -making bond or paying cash for same, and will also ask that the lands be resold and if they fail to bring the amount bid by you to-wit: the sum of $1,025, that judgment be given against you for the difference, and that execution issue for said balance, if any, and for all cost.” A formal petition was filed 'by Mitchell in which relief was prayed as indicated in the notice, and a response was filed by Mrs. Maxwell.
In this response Mrs. Maxwell alleged that she had refused to comply with her bid for the reason that, prior to the sale and unknown to her, Mitchell had caused the merchantable timber on the land to be cut and removed, thereby destroying the value of the land for the purpose to which she intended to- devote it.
Testimony was heard to the effect that there was only a limited quantity of merchantable timber on the land, and that its value was only about $50, and Mitchell had credited the decree with that sum. The timber was cut between the time of the rendition of the decree of sale and the sale thereunder, and Mrs. Maxwell testified that she had moved her family from the land, and .did not know the timber had been cut at the time she bid in the land, and that she would not have bid on the land hád she known this fact.
Under the decree of the court, the land was ordered resold, and at the resale Mitchell bid in the land for $700, and, upon the final hearing of Mitchell’s petition and the response thereto, a decree was rendered in his favor against Mrs. Maxwell, from which is this appeal.
By § 4320, Crawford & Moses’ Digest, it is provided that, if any person shall refuse to pay the amount bid for any property struck off to him, the officer making the sale may again sell such property to the highest bidder, and, if any loss shall be occasioned thereby, the officer may recover such loss by motion before the court under whose order the sale was made.
In the case of Fulbright v. Morton, 131 Ark. 492, 199 S. W. 542, it was held that this statute provided a cumulative, and not an exclusive, remedy against the purchaser at a judicial sale who refuses to comply with his bid, and that the selling officer still has the common-law remedy of maintaining an action against the purchaser for the full amount of his bid.
It is insisted that, while two remedies are open against the purchaser at a judicial sale, who refuses to complete his purchase, neither remedy can he pursued by any one except the officer mailing the sale. If this were true, the jurisdiction of the court would not be affected under the facts of this case, for the reason that all persons who would be made parties in such an action were parties to this suit, and the court had expressly retained jurisdiction of the cause for the purpose of making such orders as might appear to be appropriate. The commissioner, who was merely an agent of the court to perform its orders, was, of course, a party, for the reason that his report was before the court and the litigation arose over the action to be taken thereon. The decree of the court thereon would necessarily be conclusive of any right on his part to pursue either the statutory or the common-law remedy against Mrs. Maxwell, who not only became a party by her bid, but was also an original party, and was made a defendant in the proceeding* brought by Mitchell on account of her default in the petition above referred to. All these proceedings were had in the case brought by Mitchell to enforce his lien. We conclude therefore that the relief prayed is not to be denied for the reason that Mitchell proceeded in his own name, instead of that of the commissioner.
Now it is settled law that the rule of caveat emptor applies to judicial sales, and we do not intend by this opinion to impair it. One must know what he buys when he bids at a judicial sale. But it nevertheless appears inequitable to permit Mitchell to recover in this case. The recovery was for his benefit, although we have treated the case as if it had been a suit by the commissioner.
We do not impute to Mitchell any improper conduct or wrongful intention in cutting the timber, and he has credited his judgment with an amount which the court found represented the fair market value of the timber cut and removed. Yet the fact remains that Mitchell had no right to cut the timber, and Mrs. Maxwell did not know that he had done so, and she had the right to assume, when she hid in the land, that he had not done so. To permit him to recover under the facts of this case would be to allow him to profit from- his own wrongful act, especially in view of the fact that he has his land hack at his own price.
The case of Connell v. Savings Bank of Newport, 47 R. I. 60, 129 Atl. 803, 41 A. L. R. 1269, was one in which a house and lot were sold under a mortgage foreclosure sale, under which the purchaser was required to make a cash deposit of ten per cent, of the amount of his bid, which he did. Before the confirmation of the sale, and before possession was delivered to the purchaser, the house was destroyed by fire, and the purchaser -not only refused to pay the balance due on his purchase, but sued to recover the part paid. It was held by the Supreme Court of Ehode Island in that case, to quote the headnote, that, “where purchaser at mortgage foreclosure sale made deposit to be forfeited on failure to pay balance and take deed at time appointed, and before that time cottage on premises was destroyed by fire, purchaser was entitled to refuse deed and recover deposit.”
In the opinion in that case the court quoted from the case of Thompson v. Gould, 20 Pick. (Mass.) 134, as follows: “The only question therefore is, whether the plaintiff or the defendant is to sustain the loss by fire. In respect to the loss of personal property, under the like circumstances, the principle of law is perfectly clear, and well established by all the authorities. When there is an agreement for the sale and purchase of goods and chattels, and after the agreement, and before the sale is completed, the-property is destroyed by casualty, the loss must he borne by the vendor, the property remaining vested in him at the time of its destruction. * * * No reason has been given, nor can be given, why the same principle should not be applied to real estate. The principle in no respect depends on the nature and quality of the property, and there can therefore be no distinction between personal and real estate. * * * The same principle applies to an agreement to purchase a house, as in the present case, the house being casually destroyed before the purchase is completed. Neither party being in [fault, the loss must be borne by the owner of the property.”
The authorities are not uniform on this question, and cases on both sides are cited in the annotated cases of Re Mortgaged Lands of R. L. Sarmon, 182 N. C. 122, 17 A. L. R. 965, 108 S. E. 497; McGinley v. Forrest, 107 Neb. 309, 22 A. L. R. 567, 186 N. W. 74; Fine v. Beck, 140 Md. 317, 25 A. L. R. 68, 117 Atl. 754; Skean v. Ellis, 105 Ark. 513, 152 S. W. 153.
Now it must be admitted that there is a distinction between this Rhode Island case and the instant case, the distinction being that in the former the fire occurred after the sale, while in the instant case the timber was cut before the sale. The doctrine of caveat emptor would ordinarily operate to make this distinction of controlling importance, but the application of that doctrine to the instant case would permit Mitchell to profit by his own wrong. Mrs. Maxwell did not want the farm without the timber, and she had the right to assume, but for the doctrine of caveat emptor, that she was buying it and would have gotten it but for Mitchell’s wrongful act, of which she was not advised, and it appears inequitable to permit him to profit by his own wrong.
The more appropriate practice would have been for Mrs. Maxwell to have stood on her exceptions to the confirmation of the report of sale, on the ground that it was inequitable to confirm it, and to have appealed from an order of confirmation; but such, in effect, is the present status of the case, inasmuch as no persons are concerned in this litigation except only Mrs. Maxwell and Mr. Mitchell, there being no intervening rights of any third parties.
The decree of the court, in so far as it holds Mrs. Maxwell liable on account of her bid, will therefore be reversed, and the cause remanded with directions to enter a final decree conforming to this opinion. | [
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Hart, C. J.,
Appellant prosecutes this appeal to reverse a decree sustaining a demurrer to his complaint asking that the defendant Sewell he declared a trustee for the lands described in the complaint and that the deeds from the defendant Sewell to the defendant Bailey be canceled as a cloud upon his title.
The material allegations of the complaint may be stated as follows: Sometime prior to 1918, a partnership composed of R. K. Sewell and three others was organized in the city of Russellville, Arkansas, to deal in general merchandise under the firm name of Sewell-Thompson & Company. In April, 1919, appellant, J. J. Shoptaw, became by purchase a one-fourth owner of said mercantile company. In March, 1920, the partnership purchased the interest of one of the partners, leaving the firm composed of R. K. Sewell, Fred Thompson and J. J. Shoptaw, who continued the business under the firm name of Sewell-Thompson & Company, each owning a one-third interest therein. In April, 1925, Thompson sold his interest to W. A. West, and the business was conducted under the name of .Sewell-West & Company. In March, 1928, West sold his one-third interest to T. M. Overman, and the firm became Sewell-Overman Company. In February, 1931, this firm was dissolved by mutual consent, and Sewell and Overman withdrew from it and sold their interest to appellant, Shoptaw.
In April, 1923, Sewell-Thompson & Company recovered judgment in the circuit court against J. M. Hendrix in the sum of $755.57. In September, 1926, execu-. ti'on was issued on the judgment and levied upon certain lands of said Hendrix. In October, 1926, Sewell-West & Company became the purchasers at the execution sale for the amount of the judgment indebtedness. Prior to the date of the aforesaid judgment, Hendrix had mortgaged said lands to Ray Moses. On the 23rd day of October, 1928, Ray Moses, by his attorney, Robert Bailey, brought suit to foreclose said mortgage, and on November 7, 1928, a decree of foreclosure was granted. Before said decree was rendered, Moses transferred his mortgage to Sewell-Overman Company, and judgment was rendered in favor of that firm both for the indebtedness due Ray Moses and for the judgment held by Sewell Thompson Company. The lands embraced in the mortgage were sold to satisfy the judgment.
We copy from the complaint the following:
“That said lands were duly advertised for sale according to said decree and at the sale' thereof, E. K. Sewell (presumed to be bidding for Sewell-Overman Company), bid and offered for said lands the sum of nine hundred seventy-five andno/100 ($975) dollars, and, he being the highest and best bidder, the lands were struck off and sold to him for that sum, and a commissioner’s deed was made to the said E. K. Sewell, said report of sale and approval of deed appearing of record in chancery record “K” at page 296. Date Feb. 25,1929.
“That the cost of said proceeding in chancery was paid out of funds belonging to Sewell-Overman Company, and the value of the property carried upon the books of the firm as part of the assets of the firm.”
In March, 1923, Eobert Thomas became indebted to the firm of Sewell-Thompson & Company and executed a mortgage on certain town lots in the city of Eussellville to secure his indebtedness. In August, 1927, Sew-ell-West & Company, successors to Sewell-Thompson & Company, by their attorney, Eobert Bailey, brought suit to foreclose said mortgage and obtained a decree of foreclosure on the 27th day of September, 1927. We copy from the record the following:
“That said lands were duly advertised for sale according to the decree in said cause and at the sale thereof, E. K. Sewell (supposed to be bidding for the firm of Sewell-West & Company) bid and offered for said lands the sum of eight hundred twenty three and 09/100 ($823.09) dollars, and he being the highest and best bidder, said lands were struck off and sold to him for that sum, and a commissioner’s deed was issued to the said E. K. Sewell, said report of sale and approval of deed now appearing of record in Chancery Eecord “K” at page 112. Date of deed Dec. 5, 1927.
“That the cost of this proceeding in chancery was paid out of funds belonging to the firm of Sewell-West & Company, and the value of the property carried on the books of the firm as assets of the firm.”
In the spring of 1930, Sewell borrowed from the bank $600, giving his promissory note therefor with Robert Bailey and H. B. Sewell as security. Said note became due and unpaid, and, to secure said Bailey against loss, R. fL Sewell conveyed to him the two tracts of real estate described in the complaint, the title to which had been taken in his own name as above stated. The deed to the Thomas property was dated May 15, 1930, and recited a consideration of $500, but no consideration passed between the parties. The deed to the Hendrix land was dated December 3, 1930, and recited a consideration of $100, but no consideration passed between the parties. The taking of title to said property in the name of R. K. -Sewell and his subsequent sale to Robert Bailey was entirely unknown to appellant until after said deeds from Sewell to Bailey were recorded in December, 1930. The taking of title to said property in the name of R. K. Sewell and his subsequent conveyance to Robert Bailey was a fraud upon the right of appellant as the last successor to the rights and assets of said firm. The prayer of the complaint is that R. K. Sewell be adjudged to have acquired title to said tracts of lands as trustee for said firm, and that his deed to Robert Bailey be declared void and canceled as a cloud upon the title of appellant.
Our Code drew a marked line of distinction between an entire failure to state any cause of action or defense on one side which is to be taken advantage of by demurrer and the statement of a cause of action or defense in an insufficient, uncertain or imperfect manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment. The court has uniformly held that, if the substantial facts which constitute a cause of action are stated in the complaint, or can be inferred by reasonable intendment by the matters which are set forth, although the allegations of these facts are imperfect or indefinite, such insufficiency should be met by a motion to make the averments more certain and can not be corrected by demurrer. In short, if the facts stated, together with every reasonable inference therefrom, constitute a cause of action, then the demurrer should be overruled. Ball v. Fulton County, 31 Ark. 379; Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826; Kansas City Southern Railway Company v. Fort Smith Suburban Railway Company, 180 Ark. 492, 22 S. W. (2d) 21; and Holcomb v. American Surety Company, 184 Ark. 449, 42 S. W. (2d) 765. This practice has been uniformly sustained by numerous other decisions of this court.
Applying the principle to the case at bar, we think the learned chancellor erred in sustaining a demurrer to the complaint. It is the duty of partners to observe the utmost good faith towards each other in the partnership business. They stand in a fiduciary relation to each other, and the same rules are to be applied to the conduct of partners towards each other as are ordinarily applicable to that of trustees and agents. All property bought by funds belonging to a firm is prima fade the property of the partnership, although the title to it is taken in the name of one of the partners. The reason is that partners are bound to conduct themselves with good faith towards each other, and the partnership property cannot be used for the private gain of one of the partners to the exclusion of the others. Drummond v. Batson, 162 Ark. 407, 258 S. W. 616; and Cain v. Mitchell, 179 Ark. 556, 17 S. W. (2d) 282.
"While stated in a somewhat imperfect and indefinite manner, it is fairly inferable, when the complaint and the surrounding circumstances are considered together, that it was intended to allege that R. K. Sewell became the purchaser at the commissioner’s sale for the benefit of the partnership. It would have been more in accord with good pleading to have alleged directly that he became the purchaser for the partnership. This is infer-able, however, from the allegations that the cost of the proceeding in chancery in each case was paid out of the partnership funds, and the value' of the property carried on the books of the firm as a part of the assets. If the land had been purchased by Sewell for his own benefit, the cost of the proceeding should have been deducted from the proceeds of the sale, and the balance would have been carried on the books of the partnership as the money derived from the proceeds of the sale.
It is pointed out that the sale in each case was made prior to the dissolution of the firm, and that several years elapsed before the present suit was instituted. The complaint, however, contains a distinct allegation that these facts were entirely unknown to appellant, and that it did not become known to him until sometime in December, 1930, when the deeds from Sewell to Bailey were filed for record.
It is also insisted that the defendant, Bailey, is an innocent purchaser, and that the deed to him should not be set aside. Here again the cause of action must be tested by the allegations of the complaint and not by what might or might not be proved upon a trial of the case upon the merits. It is alleged that the defendant, Bailey, was the attorney for the partnership in the foreclosure proceedings, and as such must have known all the facts connected therewith. Our court has uniformly held that whatever puts a party on inquiry amounts to notice where the inquiry becomes a duty and would lead to knowledge of the requisite facts by the exercise of due diligence. Waller v. Danby, 145 Ark. 306, 224 S. W. 615; Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; and Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985.
Besides this, the plaintiff alleges that no money was paid by the defendant 'Bailey in consideration of the deeds that were executed to him. The complaint alleges that he became a surety for Sewell, and that the deeds were executed to him by Sewell to secure him from loss by reason thereof. Notice at any time before payment was sufficient to defeat the defense of innocent purchaser by Bailey. Massie v. Enyart, 32 Ark. 251.
The result of our views is that the court erred in sustaining a demurrer to the complaint, and for that error the decree will be reversed, and the cause will be remanded with directions to overrule the demurrer and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. | [
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McHaney, J.
Apparently because of an explosion in its coal mine, in which several lives were lost, in February, 1928, and in order to evade, if possible, liability therefor, the Mama Coal Company, a corporation, surrendered its charter on April 23, 1928. It did not own the mine, but leased same from the Western Coal and Mining Company, which lease had expired, or was about to expire. It did own some mining equipment. On the same day, and at the same meeting of stockholders convened to authorize a surrender of its charter, appellant, Mid-West Coal Company, was organized with the same stockholders, who subscribed for and were issued stock in the same amounts as in the Mama Coal Company, with the exception of Valentine Vervdck. He was killed in the explosion, and the stock held by him in the Mama was issued to his widow, Augustine Vervdck. The new com pany, Mid-West Coal Company, procured a new lease, took possession of the mine, machinery and equipment with the knowledge and consent of everybody concerned, and continued in the possession and use thereof until this suit was brought by certain creditors- of the Mid-West for the appointment of a receiver on February 13,1930. A receiver was appointed, and, with the consent of the corporation, took charge of the property. On March 21, the receiver filed his report and inventory of the property, showing cash-on hand of $197.42 and personal property invoiced at the value of $12,596.47. A few days later he applied to the court for permission to sell the property at private sale, in which all the appellants joined, with the exception of Mr. W. L. Curtis, who was made trustee for the Mama company on dissolution. The court refused to permit a private sale, ordered the property which had been inventoried by the receiver to be advertised for sale, and that the two highest bids be submitted to the court. It was advertised, and at the sale appellee Henson bid $6,200, and one Graham bid $6,000. Report was made to the court of these bids, and the Henson bid was accepted, and the report of sale approved and confirmed on April 15, 1930, he having paid his bid in cash. A bill of sale was executed and delivered to him at the court’s direction. Thereafter, on April 26, 1930, appellants, Curtis and Augustine Vervdck, iiitervened, setting up certain claims to the property sold to Henson, and asking that the sale be set aside. On May 5, appellant Templeton intervened therein for the same purpose. The court vacated its order of confirmation of sale. Thereafter a number of motions, demurrers, answers and cross-complaints were filed, and on a final hearing the. court dismissed all interventions, confirmed the sale, and the case is here on appeal.
We think the court correctly confirmed the sale. The creation of the new corporation, the Mid-West Coal Company, with the same stockholders owning and holding the same number of shares as in the old, amounted to sub stantially the same thing as changing its name from Mama to Mid-West Coal Company. It was simply an effort to evade possible liability for personal injury, but, whether it succeeded in that purpose or not, the Mid-West Coal Company was in effect a continuation of the Mama Coal Company. All the interveners were cognizant of all the facts, and not only participated therein, but consented thereto. They stood by, -with full knowledge, permitted a bona fide sale by the receiver to an innocent purchaser for value, and Vervdck and Templeton actually petitioned the court to permit the receiver to make a private sale. Templeton was the president of the Mama Coal Company. They permitted the sale to be advertised, the property sold, the sale confirmed, and the purchase money paid without objection, and with full knowledge of all the facts. They are therefore estopped from questioning the validity of said sale. There are so many facts in this case calling for the application of the doctrine of estoppel that we do not review them all. What we have said shows conclusively that it would be so manifestly inequitable and unconscionable to permit appellants to come in and upset a sale under such circumstances as to make the citation of authorities a work of supererogation.
The decree is correct, and is therefore affirmed. | [
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Kirby, J.
The only question for determination here is whether the statute allowing recovery of penalty and attorney’s fee for loss under a fire insurance policy is applicable to the case at bar, in which an automobile was destroyed by fire, the policy herein insuring said automobile against damage or loss by fire.
Suit was brought for damages for destruction by fire of an automobile belonging to appellee, which had been insured by appellant company, and judgment was rendered for the amount sued for with a 12 per cent, penalty and an attorney’s fee of $100.
It is contended for reversal that the statute has no application to such a loss as that complained of here, but only to nsnal losses by fire under ordinary fire insurance policies, and that this is rather automobile insurance than regular fire insurance.
The statute, § 6155, Crawford & Moses’ Digest, provides: “In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of said loss; said attorney’s fees to be taxed by the court where the same is heard on original action, by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are, or may be, by law collected. ’ ’
The appellant, the LaSalle Fire Insurance Company, is obviously a fire insurance company in name, and certainly its policy insures against the perils specified therein, defined as follows:
“F. Fire, Lightning and Transportation:
“ (a) Fire, arising from any cause whatsoever; and lightning. ”
The penalty and attorneys’ fees are allowed to be recovered under the statute where the fire, life or accident insurance company liable therefor fails to pay after a loss occurs and demand made within the time specified in the policy. No form of policy for fire insurance is specified in our statutes, and, even though the company issuing the policy was not named a fire insurance company, it would be none the less a fire insurance company if it issued policies of fire insurance upon property insuring against loss by fire, etc., and, as such, came within the provision of the statute, without regard to whether it wrote fire insurance exclusively or whether writing fire insurance was its principal business. In other words, if it insures property against loss by fire, it is a fire insurance company within the meaning of said statute.
The statute has been held uot to apply to the recovery of a loss by cyclone in Home Fire Ins. Co. v. Stancell, 94 Ark. 578, 127 S. W. 966, or for loss by theft of an automobile under a policy issued by a fire insurance company in National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97. In National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. (2d) 786, the recovery of penalty and attorney’s fees, •where the suit was brought on “tornado policy,” was denied.
The statute is highly penal, and should not be held to apply to any loss or company that is not therein expressly named, as already said by this court. But this hazard was expressly insured against by a fire insurance company, and the loss having occurred and not having been paid within the time specified in the policy after demand made therefor, the company was liable, of course, to the payment of the penalty and attorneys’ fees prescribed by the statute.
The Arizona case relied on in appellant’s brief, Penn. Fire Ins. Co. v. Johnson, 28 Ariz. 448, 237 Pac. 635, holding otherwise, does not seem to be- based on sound reasoning and construed a statute of that State in conjunction with a specified form of policy provided for by law, and is without value in determining the question here.
We find no error in the record, and the judgment is affirmed. | [
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MoHaney, J.
Appellant, O. W. ¡Bass, is the county superintendent, and the other appellants are members of the county board of education of Washington County, Arkansas. At the April, 1932, term of the Washington Circuit Court, they were indicted by the grand jury of said county for falsely and fraudulently certifying the returns of the election held in that county on the first day of March, 1932, for the election of members of the county board of education. The indictment charged that appellants falsely and fraudulently certified one Paul Brogdon as having been elected to the county board of education, when in truth and in fact one A. W. Mintun was elected. After the indictment was returned, the prosecuting attorney filed a petition with the court praying for an order suspending them from office under § 10,335, Crawford & Moses’ Digest, to which appellants filed response. The court- granted the prayer of the petition and suspended appellants from office pending their trial upon said indictment. From this order of suspension appellants have appealed.
For a reversal of the case appellants make two contentions: First, that § 3888 of Crawford & Moses’ Digest, under which they say they were indicted, has no application to school elections; and, second, that the members of the county board of education and the county superintendent are not county officers, within the meaning of said § 10,335.
Section 3888, Crawford & Moses’ Digest, reads as follows: “Any election officer or other person whosoever who shall wilfully make a false count of any election ballots, or falsely or fraudulently certify the returns of any election, or steal, destroy, secrete or otherwise make way with any election ballot, tally sheet, certificate or ballot box, either before or after the closing of the polls, shall be deemed guilty of a felony, and, on conviction thereof, punished by imprisonment at hard labor in the penitentiary not less than two years nor more than seven years.”
The court suspended appellants from office under § 10,335, which provides, in substance, that, when an indictment is filed in any circuit court against “any county or township officer” for the offenses therein named, the court shall immediately order such officer suspended from office until tried. “Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant.”
Section 3888, above quoted, is a part of the election laws of this State, and is § 43 of the act of March 4,1891, Acts 1891, p. 32, entitled, “An act to regulate elections in the State of Arkansas.”
.Section 30 of act 169, Acts 1931, p. 476, same being designated in § 1 as the “School Law,” provides that the election returns of all school elections shall be made to the county superintendent of schools immediately after the election; that he shall call a meeting of the county board within fifteen days after the election; that said board shall canvass the returns and certify the result to the county clerk for record in his office. Provision is made for notification and issuing commission to those elected to the board, and for contests. It is further provided that: “The election laws regulating the nomination and certification of the names of candidates for county offices shall govern in the matter of candidates for members of the county board of education.” This has reference to the manner of getting the names of candidates for membership on the county board on the ticket to be voted on in the annual school election. The annual school election, held on the first Tuesday in March each year, is not a primary but a general election — a general school election. Any elector of the county may become a candidate for membership on the board by paying- a fee of $1 to the county treasurer, not later than 20 days before the election. We see no reason why § 3888 should not apply to the general annual school election as well as to other general elections. Its terms are sufficiently broad to include the county board. It applies to “any election officer or other person whomsoever who shall * * * falsely or fraudulently certify the returns of any election.” If it does not apply, there is no applicable statute defining and punishing this particular offense or breach of duty. It is suggested that § 197 of said act 169 applies. It provides that “any * * * county board of education * * * who shall wilfully fail or refuse to comply with any provision of the ‘school law’ for which no punishment is otherwise provided by law shall be deemed guilty of a misdemeanor and shall be fined in any sum not less than ten ($10) dollars, nor more than five hundred ($500) dollars.” We think this section has no application, as we are of the opinion that punishment is otherwise provided by law in said § 3888, and that appellants did not fail or refuse to comply with the law. It is further argued that this court, in Stout v. State, 43 Ark. 413, and in Brown v. Haselman, 79 Ark. 213, 95 S. W. 136, held that the provisions of the general election law had no application to school elections. In the former case we held that the provision of the general election law of January 23, 1875, (§ 3881, Crawford & Moses’ Digest) prohibiting the giving away or selling intoxicating liquor on election day, did not apply to an election for a school director at an annual school meeting provided for by the Common Schools Act of 1875. In the latter case we held that § 1667, Kirby’s Digest (now§ 3883, Crawford & Moses’ Digest) had no application to a school election. Section 3883, as well as § 3881, are parts of the act of January 23, 1875, p. 92, Acts 1875, which was entitled “An act providing a general election law.” In the latter case we said: “The act, in term applies only to general elections of State, county and township officers, and to special elections held to fill vacancies in said offices.” The reason for the holding in the two cases above mentioned therefore becomes apparent. The act in question in this case is entitled ‘ ‘ An Act to Regulate Elections in the State of Arkansas.” It is therefore not limited in its title to general elections, such as the act of 1875 above mentioned, and, being broad enough in its terms to apply to school elections, we hold that § 3888 of the Digest is applicable to the case at bar.
The next question for determination is whether the county board of education and the county superintendent are county officers. As to the county board of education, we think there can be no question that they are county officers. Its members are elected for a definite term. Their jurisdiction extends to the whole county. As a board, it is given broad and comprehensive powers over the conduct and management of the schools of the county, including the organization, reorganization and change in boundary lines of school districts. They are given all the powers formerly conferred upon the county court. As to the county superintendent, while he is not elected at the annual school election by direct vote of the people, he is elected by the county board, for a definite term, not to exceed two years, and his jurisdiction is co-extensive with the county. See 32, 33, 42, 92 of Act 169 of 1931. While he is not a member of the county board, he is in express terms by said act made an executive officer of the board. The act requires returns of the school election to be made to him, and, within 15 days, he is required to call a meeting of the county board to canvass and certify to the county clerk the returns of said election. The law permits him to act as secretary of the board, or they may elect some member of the board as secretary. Whether appellant Bass is secretary of the county board, the record does not disclose, but he is an executive officer thereof, and as such it is alleged that he participated in the acts charged in the indictment. We therefore hold that both he and the members of the county board are county officers within the meaning of § 10,335, Crawford & Moses’ Digest. See also Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; Middleton v. Miller County and Miller County v. Kosminsky, 134 Ark. 514, 204 S. W. 421; Warren v. McRae, 165 Ark. 436, 264 S. W. 940; Ft. Smith v. Quinn, 174 Ark. 863, 296 S. W. 722. In the second case above mentioned, we held that the position of county health officer is not an office and does not come within the constitutional provision concerning officers holding over after the expiration of their respective terms, until the election and qualification of their successors. In the case last cited we held that a member of the city fire department was an officer of the city of Fort Smith under the act then under consideration and entitled to his salary during the time he was wrongfully excluded from office.
We are therefore of the opinion that both contentions of counsel for appellants can not be sustained, and that the judgment of the circuit court suspending them from office is correct and must be affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant contends that the conduct of the parties, the power company continuing to furnish power to the district and charge and receive for the service the same rates or compensation as paid under the contract, amounted to an extension of the terms of the contract for another five-year period, without regard to whether any notice of such desired extension was given in accordance with the terms of the contract. That the provisions about the written notice were for its benefit and could be waived by it. The undisputed testimony shows that no such written notice of desire to extend the contract for an additional period of five years was given, or attempted to be given, in accordance with the terms of the contract before its expiration; nor did the appellant company make any claim or insist anee that such conduct and so-called waiver of notice amounted to an extension before the meeting of the parties to discuss the contemplated action of the waterworks district for purchasing the Deisel engines from Fairbanks-Morse & Company, which would necessarily dispense with the use of the power furnished by appellant company. The district could have complied with the terms of the contract by giving the written notice required for its extension, but certainly the power company could not, by any waiver of such notice, express or otherwise, extend the provisions thereof; and the continuation of the service at the same rates, as under the terms of the old contract, could not have had effect to extend it for another term. Appellant argues otherwise, saying that, without such notice, the company on the 5th day of October, 1928, was at perfect liberty to cut off the current, and refuse further service, but such is not the casé, as the company is a public service corporation, and as such was bound to furnish to appellee district, so long as it desired it to be done, current for its use at a reasonable rate, and, by an attempted waiver of such notice of the extension of the terms of the contract charging the old rates provided therein, it could not acquire any other rights under the law than to furnish the desired power at reasonable rates. Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Company, 161 Ark. 12, 255 S. W. 903. The appellee district could continue taking the power furnished by appellant company at the rates provided in the old contract without an extension of same, and without being bound or estopped in any way to claim a reduction to reasonable rates in accordance with the law providing therefor.
Appellee did not hold over any property of appellant company after the expiration of the lease as contended by appellant. It is presumed, of course, that appellant was fully compensated for the extra service and expenses for service in furnishing the power by the rates allowed to be charged and collected under the terms of the contract. All of the parties appeared to have understood their rights as disclosed by the meeting held for determination of whether the district could not save much expense by the installation of its own power plant, instead of the continued use of power furnished by appellant, the appellant at such meeting agreeing to reduce its rates 25 per cent, if power were used according to the “off peak” schedule. The appellant company had no contract with the waterworks district for furnishing power for any particular term or time, when it sought to enjoin the district from installing a power plant of its own, with which it could supply water to the district at a saving of about 3 cents per thousand gallons, and from such savings pay for the installation of the new power plant in a period of seven years, leaving in the savings fund more than $4,000, and no error was committed in dismissing the appellant’s complaint for want of equity.
Neither does appellant company have, any standing as a taxpayer to resist or prevent the purchase of the new power plant by the appellee district. Sections 14 and 15 of act 64 of 1929 provided for the creation of improvement districts for installing waterworks, electric light plants, and sewers, and making repairs, improvements or extensions thereon,- “when they are in funds”; and, when 'such district has to borrow money for such purposes, the •exercise of the power is conditioned on a petition of the majority in value of the property owners of the district, the adoption of an ordinance by the council authorizing the commissioners to proceed with the work, the assessment of benefits and the levying of a tax to raise funds to repay the money borrowed. The appellant contends that the district is not authorized to purchase the Deisel engines for the new power plant-except by procuring the money in the manner provided for borrowing in said statute. This contention is not warranted, however, since the contract expressly provides that the purchase price of the engines is to be paid for only out of the savings in the cost of pumping water, and the agreement provides : “shall never be held to create any liability or general obligation upon the district, and no taxes, general or special, shall ever be levied upon the real estate or other property in the district, or hereafter within the limits of the district, to pay all or any part of the said sum of $23,560, or interest thereon.” It also provides that no part of the purchase price shall ever be paid from other funds of the district, except funds on hand representing the savings in the cost of pumping water, and that the credit of the district is in no manner pledged for payment of the monthly installments evidenced by writing, providing it is not a general obligation of the improvement district, but a special obligation, “payable only from that part of the income of the waterworks plant of the said district set aside by the terms of the contract between the waterworks district No. 1 of Van Burén, Arkansas, and Fairbanks-Morse & Company, as applicable to payment hereof, and, by reference to said contract, the terms thereof are, so far as regards payment hereof, incorporated herein.” The district is in funds, of course, if there is money enough in the “savings fund” available to make the payments as they become due, but it necessarily would be in funds to discharge such obligations, because under the contract there is no obligation unless the fund for its discharge is on hand, and, when there are no such funds, there is no obligation that can be made a charge or levied as a benefit or assessment against the property of the district, as said in a Massachusetts case:
“It is, in effect, a cash transaction, where the payments are to be made pari passu with the accumulation of the fund, and the only fund, out of which they are to come.” Smith v. Town of Dedham, 144 Mass. 177, 10 N. E. 782. Appellant insists, however, that, notwithstanding the notes or instruments are payable out of the “ savings fund,” they are none the less a debt, bearing interest, and are purchase-money notes for machinery, of which title is retained until their payment. The courts have held, however, that contracts of this character did not create debts within the purview of constitutional or statutory prohibitions against incurring debts as the only recourse in the contract which the selling company has in the case of the failure to pay the purchase price is to retake the machinery. It is a contingent liability only, for which a general tax cannot be levied, and does not constitute a lien upon the power plant, nor its revenues. It can be paid only on the contingency that the district derives enough net revenues from the consumers of wider and lights furnished by the.plant to pay such notes after payment of all expenses of operation, and, as said in Bell v. Fayette, 325 Mo. 75, 28 S. W. (2d) 356: “There is no aspect to that situation which could make the ag’reement to pay in the manner provided a debt of the city. It is a contingent purchase, the property to be paid for only out of the net earnings which it produces; the seller takes a chance on that contingency.” See also Lang v. Cavalier, 59 N. D. 75, 228 N. W. 828; Barnes v. Lehi City, 74 Utah 71, 279 Pac. 878; Johnson v. Stuart, Iowa 226 N. W. 164. Other authorities sustaining the principle are State v. Neosho, 2031 Mo. 40, 101 S. W. 99; Shields v. Loveland, 74 Col. 27, 218 Pac. 913; Franklin Trust Co. v. Loveland, 3 Fed. (2d) 114; Twichell v. Seattle, 106 Wash. 32, 179 Pac. 127; Bowling Green v. Kirby, 220 Ky. 829, 295 S. W. 1004; Searle v. Haxton, 84 Col. 494, 271 Pac. 629; Carr v. Fernstermacher, 119 Neb. 172, 225 N. W. 114; Butler v. Ashland, 113 Ore. 174, 232 Pac. 655; and Ward v. Chicago, 342 Ill. 167, 173 N. E. 810.
Appellant attempted to make a showing in the meeting, held for the consideration of the purchase by the district of the machinery for the power plant, that the waterworks district could use electricity furnished by the appellant company in pumping its water as cheaply as it could be done with the plant contemplated being purchased, and some of the estimates made by the power company’s experts tended to sustain the contention; the other estimates introduced by experts showing overwhelmingly to the contrary, and that in six years the district would be able to supply its own water .with the plant proposed to be purchased, paying the entire purchase price of the engines and have remaining over some $5,500 in money; and also that the life of the engines was more than 20 years. The proposed purchase and contract was not an improvident one, could not be, and the contract-was within the power of the district to make, not -being prohibited by said §§ 14 and 15 of act 64 of 1929. The contract being valid, and the agreement or obligation to pay being such that it did not constitute a debt against the district, nor impose general liability thereon, no tax conld be levied to raise funds for the payment thereof, the credit of the district not being pledged for the payment of the installments, nor the funds of the district, except the “savings fund,” the contract of purchase could not affect the taxpayer’s private interests, and he has no case of equitable interposition nor right to an injunction to prevent its consummation, even though the contract were invalid and it may be challenged by the State. Jones v. Mayor, 25 Ark. 301; Henry v. Steel, 28 Ark. 465.
The court did not err therefore in dismissing appellant’s complaint for want of equity, and the decree must be affirmed. It is so ordered. | [
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Humphreys, J.
This suit was brought by appellee as administratrix of the estate of Louis Davis, deceased, and for the next of kin in the circuit court of Clark County against appellants to recover damages for the death of the intestate occasioned through their alleged negligence.
Appellants filed an answer denying the material allegations of the complaint, and, in addition, pleaded contributory negligence on the part of the intestate as the cause of his death.
The case- was tried upon the pleadings, evidence introduced by the parties, and instructions of the court, resulting in a judgment against appellant in the sum of $25,000, from which is this appeal.
The intestate was killed in a collision between an automobile he was driving and a lumber truck driven by Larkin Denton on Highway 53 about half way down Barringer’s Hill, between Grurdon and Camden. L. A. Cox and Ernest Sebee were riding in the Chevrolet coupe which the intestate was driving. They were traveling south and descending the hill behind appellant’s truck and when about half way down attempted to pass appellant’s truck and ran head on into the lumber truck, which was traveling north, about the time the two trucks were passing each other. Soon after starting down the hill, Thornton, who was driving appellant’s truck, observed the lumber truck starting up the hill. The collision occurred about seven-thirty p. m., on the 17th day of September, 1930, just about dusk. The lights in ail the ears were on. The road, at the point of collision, was about 25% feet wide. All were driving at a reasonable rate of speed. Denton was on the extreme east side of the road as he ascended the hill. The evidence is conflicting as to whether Thornton was in the middle or on the west side of the road, and also as to whether' he knew the intestate was attempting to pass his truck as they were descending the hill and as to whether he turned to the right to allow him to pass and before the intestate had done so, turned to the left and forced him to run into.the lumber truck. In view of the dispute in the evidence touching appellant’s negligence, the court might -well have submitted that issue to the jury, had there been any conflict in the evidence on the issue of contributory negligence on the part of the intestate. The undisputed testimony reflects that the intestate was guilty of contributory negligence resulting in his own death; so, instead of submitting the issue of negligence on appellant’s part, the court should have instructed a verdict for appellant on account of the contributory negligence of the intestate. According to the undisputed testimony, the intestate turned to the left in an effort to pass appellant’s truck when about half way down the hill without first ascertaining whether the way was clear and' could have accomplished his purpose had the lumber truck coming up the hill with which he collided not been so near. It was almost dark, and before at tempting to pass appellant’s truck, the intestate should have seen to it, in the exercise of ordinary care for himself and his companions, that the way was clear of nearby approaching ears from the south, and this, too, even though appellant had been or was negligent in failing to turn to the right sooner than he did or after starting to turn to the right, he turned to the left. The negligence on the part of the intestate consisted in attempting to pass appellant’s truck at the particular time he did so without ascertaining to a certainty that the way was clear of nearby approaching cars from the south. Had the truck driven by Denton not been in the way, the intestate could have passed appellant’s truck, notwithstanding appellant’s negligence just as Denton’s truck, coming north, passed it in the clear. It was not intended, according to the law of the road, on a highway only- 25% feet wide, .for three rapidly driven cars to pass each other at the same point. Denton had the right-of-way on his side of the highway, and the intestate should not have attempted to occupy that space in order to pass a truck in front of him.
On account of the error indicated, the judgment is reversed, and, as the case seems to have been fully developed, the cause is dismissed. | [
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Smith, J.
J. T. Wilson was survived at the time of his death on June 8, 1911, by his widow and seven children. He owned at the time of his death a quarter section of land, upon which he resided as a homestead, and the personal property usually found on a farm of that size.
G. W. Brewer, who had married one of Mr. Wilson's daughters, resided on this farm, and he claims to have rendered personal services to Mr. Wilson, who was an invalid for several years prior to his death, for which he should receive compensation of $1 per day, amounting to $1,269.
There was no administration on Mr. Wilson's estate until about a year after the death of his widow in March, 1928, at which time Brewer took out letters of administration, so that about eighteen years elapsed after the death of the intestate before letters of administration had issued.
The court below was of opinion that this lapse of time barred Brewer’s right as a creditor to administer upon the estate, and, on this theory, reversed the .judgment of the probate court, which had -allowed the claim in part. The correctness of this ruling is the point for decision.
The excuse given for the delay in having an administration was the existence of the widow’s right of homestead and dower, and it is asserted that an administra.tion was had within a reasonable time after the termination of those estates.
We think the excuse offered for the delay was insufficient, and that the circuit court correctly held that Brewer’s claim was barred by the delay.
In the case of James v. Gibson, 73 Ark. 440, 84 S. W. 485, it was said: “The rule is well established in this State that real estate is assets in the hands of the executor or administrator for the payment of the debts, as far as needed for that purpose, after the personal property has been exhausted; yet the right of creditors to enforce payment out of the lands must be exercised within a reasonable time. (Citing cases.) It has been held that seven years’ delay, without reasonable excuse, is sufficient to bar the right, and it is immaterial whether the delay occurred before or after the administration commenced. Roth v. Holland, [56 Ark. 633, 20 S. W. 521, 35 Am. St. Rep. 126] supra.”
In the case of Roth v. Holland, just referred to, 56 Ark. 601, 56 Ark. 633, 20 S. W. 521, Mr. Justice Hemingway stated the reasons which induced the court to hold that a delay of more than seven years on the part of a creditor in procuring letters of administration to be issued upon the estate of his debtor is such delay as will defeat the application of the administrator for an order to sell the lands of the estate. It was said of this holding in the case of James v. Gibson, supra, that “The rule is not an application, strictly, of the equitable doctrine of laches, for it lacks some of the elements of that doctrine, nor of the statute of limitation, though it is applied in cases at law as well as in equity, but it is sui generis, rather an application of the statutory period of limitation to the equitable doctrine of laches in part, so as to prevent the abuse by creditors of the right to enforce demands against the lands of a decedent after unreasonable delay.”
The case of Turner Heirs v. Turner, 141 Ark. 48, 216 S. W. 44, is cited to sustain the contention that there has been no such delay as to bar the allowance of Brewer’s claim, inasmuch as the land of the intestate constituted his homestead, and was not subject to sale to pay his debts until the expiration of the widow’s homestead and dower estates.
That and the instant case are not otherwise similar. In the former case the intestate died in 1894, and, while the date of the letters of his administrator is not recited in the opinion, it is stated that the claims against the estate were presented and allowed in 1895 and 1896. The personal estate appears to have been exhausted in the course of the' administration. There appears to have been no delay in probating the claims against the estate in that case, and the opinion recites that the administration was still pending at the time of its rendition. There was no petition in the probate court until after the death of the intestate’s widow in 1918, for an order to sell the homestead and a small adjacent tract of land, which was said to have been valueless if sold apart from the homestead. Inasmuch as the homestead could not have been sold in payment of the intestate’s debts during the continuance of the homestead estate of the widow, it was held that there was no laches or delay in waiting until the homestead estate had expired before asking the probate court for an order to sell.
The delay in the instant case consisted in not having an administration upon the estate. The claim could have been probated in any event, and the right so to do was not affected by the fact that all the land belonging to the intestate was embraced in the homestead. As was said by Justice Hemingway, in the case of Roth v. Holland, supra: “Delay in taking out letters, and delay in applying to sell after they are taken out, alike keep alive uncertainty in the tenure of the heir, and are alike due to the non-action of the creditor. For, although letters are issued upon application of the administrator, it is within the power of creditors to compel administration after thirty days from the debtor’s death, and, if it is delayed, it is as much due to them as is the delay in applying for leave to sell. Our conclusion, therefore, is that the right to sell is lost by delay in administering, whenever a like delay after administering, in proceedings to sell, would forfeit it. [Citing cases.]”
We conclude therefore that the circuit court was correct in holding that the delay in causing the estate to be administered upon — about eighteen years — was unreasonable, and barred the right of the appellant creditor to proceed against the estate. Lester v. Kirtley, 83 Ark. 554, 104 S. W. 213; Field v. Tyner, 163 Ark. 373, 261 S. W. 35; Backes v. Reidmiller, 157 Ark. 569, 249 S. W. 10; Mayo v. Mayo, 79 Ark. 570, 96 S. W. 165; Black v. Robinson, 70 Ark. 85, 68 S. W. 489; Stokes v. Pillow, 64 Ark. 1, 40 S. W. 580; Brogan v. Brogan, 63 Ark. 405, 39 S. W. 58; 58 Am. St. Rep. 124; Abramson v. Rogers, 97 Ark. 189, 133 S. W. 836.
The judgment of the court below must therefore be affirmed, and it is so ordered. | [
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Mehaffy, J.
The appellee brought suit on an insurance policy for $3,000 and 12 per cent, penalty and attorney’s fees.
The appellant is a citizen of the State of New York and the appellee is a citizen of the State of Arkansas. The appellant filed its petition for removal to the Federal court, alleging diversity of citizenship, and that the amount in controversy exceeds the sum of $3,000.
The appellant filed a bond and prayed that the court proceed no further, and that the cause be removed to the United States District Court.
The circuit court denied the petition, and appellant filed answer, the case proceeded to trial, and there was a judgment for $3,000 and $360 penalty, and a $500 attorney’s fee. Motion for a new trial was filed and overruled, and an appeal granted to the Supreme Court.
The only question we find it necessary to determine is, whether the cause was removable to the Federal court. The Federal statute provides: "Any suit of a civil nature at law or in equity, arising under the Constitution or laws of the United States, or treaties made under their authority, of which the district courts of the United States are given original jurisdiction in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district.
“Any other suit of a civil nature at law or in equity, of which the district courts of the United States are given 'jurisdiction, in any State court may he removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of the State.” Title 28, § 71, U. S. Code, Annotated.
It is also provided by the Federal statute: “The district courts shall have original jurisdiction as follows: (1) Of all suits of a civil nature at common law or in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and is between citizens of a State and foreign States, citizens or subjects.” Title 28, § 41, U. S. Code, Annotated.
The diversity of citizenship is not disputed, but appellee contends that the cause was not removable because, he says, under the decisions of the Federal court, § 6155 of Crawford -& Moses’ Digest, is unconstitutional. The contention is that, while this court has held the statute valid, the Federal court has held that it is void.
If this section is valid, it necessarily follows that the amount in controversy exceeds $3,000, exclusive of interest and costs. He sues for $3,000 and 12 per cent, damages and attorney’s fees. Section 6155, supra, provides that the attorney’s fees shall be taxed as costs, but it does not provide that the 12 per cent, penalty shall be taxed as costs. Therefore the amount in controversy was $3,360.
Appellee calls attention to> Standard Accident Ins. Co. v. Rossi, 35 Fed. Rep. (2d) 667. That case does not hold that the Arkansas statute for penalty and attorney’s fees is invalid, but the court said in that case: “In view of the fact that the case must be tried again, we think some remarks upon the imposition of penalties and attorney’s fees, under § 6155, supra, of the Arkansas Digest, are pertinent. It is true that the language of the statute, strictly' construed, imposes these penalties in all cases where the company fails to pay — within the time specified in the policy, after the demand made therefor. However, the rigor of this language has been somewhat relaxed by the Supreme Court of Arkansas, in Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384. # * * In the absence of any decision of the Arkansas court of last resort to the contrary, and none has been cited, we are of the opinion that the statute in question should not be construed to demand the imposition of its penalties where the refusal to pay without suit is based upon an honest and fairly debatable difference of opinion as to the law involved; should be confined to cases of vexatious and inexcusable neglect and failure to respond to contract obligations, as is the rule in other jurisdictions.”
There is nothing in the decision relied on indicating that the law is unconstitutional. There might be cases, of course, where the company refused to pay without incurring the penalty. If demand was made for more than one was entitled to recover, the insurance company would not be subject to the penalty imposed by 'statute.
The next case relied on by the appellee is Inter-Southern Life Ins. Co. v. McElroy, 38 Fed. (2d) 557. In this case, the court repeated what was said in the opinion in Standard Accident Ins. Co. v. Rossi, supra. The court did not hold the statute invalid, but said that the facts in the case did not warrant or justify the assessment of penalty and attorney’s fees.
The next case cited and relied on by appellee is North American Transportation & Trading Co. v. Morrison, 178 U. S. 262, 20 S. Ct. 869. The only thing the court said in that case that is relied on by the appellee was: “Where the plaintiff asserts as his cause of action, a claim which he cannot be legally permitted to sustain by evidence, a mere ad damnum clause will not confer jurisdiction on the circuit court, but the court on motion or demurrer, or of its own motion, may dismiss the suit. ’ ’
But the court also said in that case that it was obvious on the face of plaintiff’s complaint that if he was not entitled to recover the money which he alleged he could have earned and secured by obtaining employment and engaging in business at or about Dawson City, the amount necessary to give the court jurisdiction was not involved.
It cannot be said in the present case that either under the decisions of this court or the Federal court the amount necessary to give the court jurisdiction was not involved. The right to recover 12 per cent, damages was an issue. Of course, it might be found, either by this or the Federal court, that the plaintiff was or was not entitled to recover, but that is not the question. The question is the amount in controversy.
•Appellant calls attention to several -authorities which we do not think it necessary to review, because if the amount in controversy exceeded the sum of $3,000 exclusive of interest and costs, the appellant was entitled to a removal of the cause. The statute expressly provides for the removal where the amount in controversy exceeds $3,000, and we hold that the amount in controversy in this case exceeds $3,000.
The judgment of the circuit court is reversed, and the cause remanded with directions to grant the petition for removal. | [
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Smith, J.
Appellant filed an intervention in a suit brought by the State Bank Commissioner to wind up the affairs of the Travelers’ Building & Loan Association as being insolvent. The intervener alleged that on November 18, 1929, he obtained a loan from the association of $5,000 on the regular, and usual plan of subscribing for $5,000 worth of stock, to be paid for in monthly instalments, in addition to the interest. These payments, which are called dues, amounted to $15, plus interest, and were regularly paid for a period of twenty-five months, when the association was taken over by the Bank Commissioner in the suit filed to wind up its affairs. The intervener made a tender of the balance due on his loan, less the dues paid, and prayed that the receiver of the association be required to accept this tender in satisfaction of his loan and be directed to cancel the mortgage which he had given to the association to secure it. A demurrer to the intervention was sustained, from which decree is this appeal.
The case presented involves the construction of § 7 of act 236 of the Acts of 1931 (page 726), which is entitled “An act to amend act 128 of the Acts of 1929 for the supervision and operation of building and loan associations.” This section reads as follows:
“Section 7. That § 11-c is hereby added to act 128 of the Acts of 1929 as follows:
“Section 11-c. Repayment of loans in voluntary or involuntary liquidation. Any borrower from a domestic building and loan association which shall be in voluntary or involuntary liquidation or which has been legally declared insolvent, who, at the time of such liquidation or insolvency, is indebted to the said association, shall be charged with the amount due on said loan and/or advance, and any other indebtedness due said association by such borrower, at the time of liquidation or insolvency, and shall be given credit on his loan and/or advance for the amount theretofore paid on his stock, bond, investment certificate, membership certificate, or other evidence of shares, as the ease may be, less any fees, fines, or penalties due said association by such borrower.”
It is apparent that this section changes the rule announced by this court in the case of Courtney v. Reap, 184 Ark. 112, 40 S. W. (2d) 785. In that case a borrowing member of an insolvent building and loan association sought the relief which the section copied above is intended to afford. The question there presented was stated as follows: “* * * The main question is the right of set-off, or whether the appellant (the borrowing member) is entitled to any credit for dues paid on the value of her stock against the loan.” The opinion sets out the procedure under which building and loan associations operate, and it is not contended that there is any difference in the facts between that case and' the instant one. The relief there prayed was denied upon the authority of the earlier cases of Hale v. Phillips, 68 Ark. 382, 59 S. W. 35, and Taylor v. Clark, 74 Ark. 222, 85 S. W. 231. It was there conceded that the relief prayed could not he granted unless those cases were overruled, and this we were asked to do, but we declined to do so. In reaffirming those eases, we said: “In other words, if the payments made on stock by the borrowing members were applied on the debt, the borrowing member would receive for his stock all that he had paid on the stock if it were worthless, and the nonborrowing member would lose everything he had paid on Ms stock. The rule adopted by this court requires each to bear his part of the burden, and, so' far as the payments on stock are concerned, each stockholder, whether he is a borrower or not, is treated like every other stockholder. The borrowing member’s duty as a stockholder is not changed because he borrows money from the association.
“The court said in a later case: ‘The court is of the opinion that the rule adopted in Hale v. Phillips, supra, and here followed, more nearly conserves than any other the principles of equality, mutuality and fairness, upon which building and loan associations are supposed to be founded.’ Taylor v. Clark, 74 Ark. 220, 85 S. W. 232.”
The advantage of § 7, above quoted, to the borrowing member is apparent. It enables him to terminate his relation with the association without loss, although it is insolvent. He is given full credit for all dues paid, and is required only to pay the difference between the total amount of dues paid and the amount of his loan. It is equally as apparent that this preference is given at the expense of the investing stockholder, as sufficiently appears from the opinion in Courtney v. Reap, supra, and the whole system of mutuality is destroyed.
In support of the decree of the court below sustaining the demurrer to the intervention, it is insisted that § 7 is not retroactive, and does not apply to existing contracts. It is also insisted that, if it is retroactive, it is unconstitutional, as impairing the obligation of existing contracts, the validity of which had long been recognized under the decisions of this court.
We recognize the seriousness of the question as to the constitutionality of the act if it is held applicable to existing contracts, but we find it unnecessary to decide that question, for the reason that, in-our opinion, the act is not retroactive, and does not apply to contracts existing at the time of its passage.
It is not expressly stated in the act that it shall be retroactive, nor does that intention otherwise sufficiently appear to compel that construction. In the recent case of Dulaney v. Continental Life Ins. Co., ante p. 517, we recognized that an act might be retroactive in its operation, although that intention had not been expressly declared by the Legislature, but we said this could not be true unless the provisions of the act were such as to clearly show that intention.
The case of Mosaic Templars of America v. Bean, 147 Ark. 24, 226 S. W. 525, announces the rule which this and all other courts consistently follow that all statutes will be construed as having only a prospective operation unless the Legislature expressly declares or otherwise shows a clear intent that it shall have a retrospective effect.
As appears from the facts herein stated, § 7 of the act of 1931, if retroactive, affects contracts existing at the time of its passage, and in the case of Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752, we quoted from the case of City Ry. Co. v. Citizens’ St. R. R. Co., 166 U. S. 557, 17 S. Ct. 653, as follows: “A statute should not be construéd to act retrospectively or to affect contracts entered into prior to its passage unless its language be so clear as to admit of no other construction.” We there also quoted from our own case of Beavers v. Myar, 68 Ark. 333, 58 S. W. 40, where it was said: “An act of the Legislature will not be construed to have a retrospective effect if susceptible of any other construction.”
In the case of Dulaney v. Continental Life Ins. Co., supra, we were of the opinion that the legislative purpose in passing the act there construed would have been defeated had the aet there involved not been construed as being retrospective.
Such is not the case here. The Legislature knew that many building and loan associations were then operating, and would continue in business, and the act may be construed as applying to contracts entered into after it became a law.
The act was approved March 27, 1931, and as it contained no emergency clause, it did not become a law until ninety days after the adjournment of the session of the General Assembly at which it was enacted. Dulaney v. Continental Life Ins. Co., ante p. 517; School Dist. No. 41 v. Pope County Board of Education, 177 Ark. 982, 8 S. W. (2d) 501; Crowe v. Security Mortgage Co., 176 Ark. 1136, 5 S. W. (2d) 346.
In addition to the presumption that an act is not intended to be retroactive, we have the presumption that the General Assembly did not intend to enact an unconstitutional law, and it is a settled rule of construction that legislation will be so construed as to be constitutional if that construction may be fairly and reasonably given. Board of Commrs. Rd. Imp. Dist. No. 9 v. Furlow, 165 Ark. 60, 262 S. W. 991; Standard Oil Co. of La. v. Brodie, 153 Ark. 114, 239 S. W. 753; Commrs. of Broadway-Main St. Bridge Dist. v. Quapaw Club, 145 Ark. 279, 224 S. W. 622.
While we have said that we do not feel required to pass upon the constitutionality of § 7 if held to be retrospective, there is such grave doubt of its constitutionality, if so construed, that we cannot fail to take this fact into account in determining whether there was indeed a legislative intent that it should be so construed.
We therefore hold that the section is not retroactive, and that the demurrer was properly sustained, and the decree is therefore affirmed.
Kirby, <7., dissents. | [
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Smith, J.
On the 30th day of April, 1930, Boss & Dalton entered into a contract with the .State Highway Commission for the construction of thirteen and one-half miles of State highway, and they sublet to Ayres & Graves a portion of the work. Ayres & Graves, in turn, sublet to A. O. Freeman the concrete structural work on a portion of the highway, and Freeman entered into a contract with W. C. Ellis doing business as the W. C. Ellis Lumber Company to furnish money and material to carry out the sub-contract. When the original contract was let to Ross & Dalton they executed a bond with the New Amsterdam Casualty Company as surety, conditioned as required by act 368 of the Acts of 1929, page 1487. This was an act entitled “An act to protect those who furnish labor, material, * * * and all other supplies or things entering into the construction of public buildings or works or necessary or incident to the construction of the same.” Section 1 of this act reads as follows: ‘‘ That all bonds required by any commission or commissioners or board, or the agent or agents thereof, county courts or judges thereof, or any other public officer or officers for the construction of any public buildings, levee, sewer, drain, road, street, highway, bridge or other public buildings or works aforesaid, shall be liable for all claims for labor, material, camp equipment, fuel including oil and gasoline, food for men and feed for animals, labor and material expended in making repairs on machinery or equipment used in connection with the construction of said public buildings or works aforesaid, lumber and material used in making forms and supports and all other supplies or things entering into the construction, or necessary or incident thereto or used in the course of construction of said public buildings or public works; said bonds shall also be liable for rentals on machinery equipment, mules and horses used in the construction of said public buildings or public works aforesaid, and all persons holding such claims shall have a right of action on said bonds.”
Upon the completion of Freeman’s sub-contract, a balance was due from him to Ellis, who brought this suit against Freeman and all other parties above named to recover the balance due him.
A general denial of all the allegations of the complaint filed by Ellis was contained in the answer filed in the name of all the defendants, and liability to Ellis was denied upon the following grounds: (1) That the contract between Freeman and Ellis was usurious, and void for that reason; (2) That all demands have been paid for which any of the defendants are liable; and (3) That the bond sued on was not offered in evidence.
At the conclusion of the testimony the case was, by consent, withdrawn from the jury and submitted to the court, and from a judgment against all the defendants is this appeal.
The defense of usury was not pleaded in the answer but was raised in the court below upon the testimony developed in the case, and is based upon the charge that the contract between Freeman and Ellis involved and required the payment of interest on money advanced at the rate of 8 per cent, per month.
We think the court below was warranted by the testimony in finding that the contract between Freeman and Ellis was not void as usurious. It appears that Ellis undertook to finance Freeman’s contract, and to order and deliver all material required, to keep a record of the pay rolls, and to render monthly statements, to which there should be added 8 per cent. These statements included, among other items, cash advanced, and upon these cash advances, as well as all other items, a charge of 8 per cent, was added. Usury can only attach to a loan of money or to the forbearance of a debt. Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. (2d) 1111. This compensation, by way of an 8 per cent, addition to the monthly statements, appears to have been made, not merely for the money advanced, but for services rendered in connection with ordering and delivering the' material and in keeping the payrolls. In other words, the 8 per cent, charge was not exclusively for the money advanced, and the contract was not, therefore, usurious. Coleman v. Hawkins, ante p. 283. There was no testimony that any kind of partnership arrangement existed between Freeman and Ellis, and the extent of Ellis’ connection with Freeman’s sub-contract appears to have been to order and deliver material and to keep records of the pay rolls.
Ellis’ right to recover for the materials furnished Freeman is not questioned, but it is insisted that payments made were sufficient to discharge that demand, and it is denied that Ellis has any right to sue upon the contractor’s bond for the money paid Freeman’s laborers. On the other hand, it is asserted that both the bond and the statute confer that right. The right of the laborers themselves to sue upon the bond is conceded, but the question is whether Ellis has the right to sue for the money paid by him to Freeman’s laborers.
The argument is made that, upon advancing money to pay laborers, Ellis acquired the status of a subcontractor, to the extent of such payments, and is thereby entitled to sue upon the bond. The statute enumerates the claims which may be enforced against the bond, and provides that “All persons holding such claims shall have a right of action on said bond.” Is Ellis the holder of such a claim by reason of having paid the laborers? It is not contended that Ellis is the assignee of any of the laborers or that any attempt was made to assign these claims to him, and we do not, therefore, have the question of the right of an assignee of a claim to enforce it as the holder thereof.
We think the case of Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S. W. (2d) 172, is decisive of the question above stated. It is true that that case arose prior to the passage of the act of 1929, supra, but it is true also that the bond there sued on contained the provision in regard to paying labor which the act of 1929 would have written into it had it been executed subsequent to the passage of that act. The statement of facts in that case recites that: “The contractor executed a bond with the Maryland Casualty Company as surety for the faithful performance of the contract and the payment of all bills for labor and material entering into the construction of said road or used in the course of the performance of the work.”
In a suit upon that bond, which covered both labor and material, (as does the bond here sued on and the statute pursuant to which' it was executed), it was contended in the Norton ease, supra, that one who had advanced money to pay the contractor’s laborers might recover the amount of such advances. The reasoning of that case applies here, and we quote from it as follows: “The main question to be determined is whether appellant, by advancing money to the contractor in the manner he did, thereby became entitled to a lien or claim against the surety company. Of course, no one would claim that the surety company became liable for all of the contractor’s personal debts, but it is claimed that, because appellant advanced or loaned money to the contractor to meet the pay roll of laborers and the money was used to pay for labor and material, the appellant thereby became a subcontractor and is entitled to enforce his claim against the surety company. We do not agree with appellant in this contention. It makes no difference what the purpose was in lending the money, it was a loan from appellant to the contractor. The contractor used the money or most of it to pay for labor and material, but this did not make appellant a sub-contractor, and he did not furnish either labor or material. The surety company was compelled to pay materialmen and laborers, and, as shown by the evidence, lost a large sum of money. It was not a volunteer, but under its bond it became obligated to pay all bills for material and labor used in the work.”
Notwithstanding the liability of the surety company to pay laborers, we there denied the right of one to recover who had advanced money to pay laborers upon the theory that he did not thereby acquire a contractual relation to the bond, but became only a creditor of the contractor. The fact that Ellis personally paid the laborers in the instant case does not alter the legal principles there announced. Such payment was nothing more than an advance to Freeman, and created only the relation of debtor and creditor between Ellis and Freeman, and did not constitute Ellis a subcontractor, as appellee contends, nor did it make Mm a person holding such a claim as the statute requires the surety to pay. Ellis furnished material, and for the contract price thereof he has a right of action. He advanced money to Freeman to pay laborers, and for these advances he has no enforceable demand against any one except Freeman.
It appears that, as the work progressed, Freeman received checks covering the estimates given him on his contract, which were indorsed and delivered to Ellis. As Freeman owed Ellis for both the materials and money advanced to laborers, Ellis had the right to credit such payments to the debt due him, whether for material or for money paid laborers, but, as no application of the payment appears to have been made to any particular item, the items will he credited proportionately. If at the time any check was indorsed to Ellis it sufficed to pay the entire account then due, the whole thereof was paid, as Freeman had the right to use the money for that purpose.
The case was not tried upon this theory, and we do not, therefore, render judgment here, as we are unable to say with certainty what the statement of the account is since the last payment was made. The account will, upon the remand of the cause, be stated in accordance with the principles here announced.
As to the failure to introduce the bond sued on in evidence, but little need be said. A copy of the bond was made an exhibit to the complaint, but the original bond was not introduced until after the cause had been withdrawn from the jury by consent and submitted to the court. The attorney for Ellis’then asked permission to offer the bond in evidence, which request the court refused upon the ground that he did not consider it necessary, to which action plaintiff’s counsel excepted. Thereafter judgment was rendered for the plaintiff. Later, during the same term, the court reconsidered its ruling excluding the introduction of the bond and permitted it to be formally offered in evidence, granting to the defendants the right to object and except to that ruling and to amend the motion for a new trial to include this exception.
It is not contended that the copy of the bond made an exhibit to the complaint differed in any respect from the bond later offered in evidence, and, as the case had been, by consent, submitted to the court, and as the reversal of the ruling as to the admission of the bond was made at the same term of court at which the original judgment was rendered, there was no prejudicial error in the action of the court in permitting the bond to become a part of the record in the case. American Bldg. & Loan Ass’n v. Memphis Furniture Mfg. Co., ante p. 762; Democrat Ptg. & Litho. Co. v. Van Buren County, 184 Ark. 974, 43 S. W. (2d) 1075.
The judgment of the court below will therefore be reversed, and the cause remanded with directions to disallow so much of the account of Ellis for labor as has not already been paid by Freeman. | [
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Hart, C. J.,
(after stating the facts). The exercise of the taxing power is a sovereign attribute, and the mode of ascertainment of the tax is a matter of legislative discretion within the limits of the Constitution. Our Legislature passed an act providing for the collection of back taxes owed the State by corporations; and the statute, as amended, gave the State the right to recover back taxes where there had been a gross undervaluation of the prop erty belonging to a corporation. State v. Kansas City & Memphis Railway & Bridge Company, 117 Ark. 606, 174 S. W. 248; State v. Bodcaw Lumber Company, 128 Ark. 505, 194 S. W. 692; White River Lumber Company v. State, 175 Ark. 956, 2 S. W. (2d) 25; and State ex rel Attorney General v. Chicago Mill & Lumber Corporation, 184 Ark. 1011, 44 S. W. (2d) 1087.
The Legislature of 1923 passed an act to levy a privilege or license tax upon corporations engaged in severing our natural resources from the soil, which is commonly known as our Severance Tax Act. This is the act under which the taxes sought to be collected in this case were assessed against the defendant. The act has been sustained as not in violation of any of the provisions of our Constitution, and it has been held that the owner of the soil must pay the severance tax provided for in the statute. Floyd v. Miller Lumber Company, 160 Ark. 17, 254 S. W. 450; and Miller Lumber Company v. Floyd, 169 Ark. 473, 275 S. W. 741.
It is insisted, however, that our Back Tax Statute (§ 10,204 of Crawford & Moses’ Digest) does not include overdue taxes levied under the Severance Tax Act. We do not agree with counsel in this contention. The act is very broad and comprehensive. It is well settled that the Legislature may authorize different modes of assessment for different purposes; and, under the authorities above' cited, it is the settled law of this State that the State may recover against a corporation for a gross undervaluation of property in the assessment of it, provided, such a remedy is given by the statute. The statute for the collection of overdue taxes from corporations just referred to provides that where the Attorney General is satisfied that in consequence of the failure from any cause to assess and levy taxes and after enumerating certain other particulars, concludes with the clause, “or from any other'cause, that there are overdue and unpaid taxes owing to the State, etc.,” it shall become his duty to at once institute a suit in chancery in the name of the State for the collection of the same. The Legislature in the exercise of its sovereign power evidently meant to give the Attorney General the right to bring a suit for the collection of overdue taxes from corporations from all sources, and did not intend to limit the provisions of the act to back taxes due on property. It was evidently the intention of the Legislature to make the collection of overdue taxes from corporations uniform in its operation and to apply it to taxes levied from any source whatever. The act has been construed under our former decisions to be prospective in its operation; and, as soon as the Severance Tax Act was passed by the Legislature of 1923, the tax levied thereunder took its place in the section of the statute above referred to, prescribing proceedings for the collection of overdue taxes from corporations.
The Legislature of 1927 however passed an act which, as construed by this court, contains a mandatory provision that the Attorney General must obtain the permission of the Tax Commission before bringing a suit against a corporation for the collection of back taxes, and that the act, by implication, repeals so much of § 10,204 of Crawford & Moses’ Digest, as authorized the Attorney General to bring action therefor. State ex rel. Attorney General v. Standard Oil Company of Louisiana, 179 Ark. 280, 15 S. W. (2d) 403. In that case it was expressly held that in an action to recover back taxes from a corporation, a complaint which fails to allege that the suit was instituted under the direction or approval of the Tax Commission, as required by the act of 1927, is subject to demurrer. The reason is that, inasmuch as the power of the State to recover back taxes from corporations, alleged to be due on account of under-assessment, is dependent on the statute, the procedure prescribed by the statute must be followed as a condition precedent to its right to maintain such suit. Statutory provisions of this kind, intended to give a specific remedy to the exclusion of other remedies, must be followed; and if the officer or person authorized to sue for back taxes fails to pursue the remedy available under the statute, he will not be entitled to recover.
The result of our views is that the court properly sustained a demurrer to the complaint because it did not contain an allegation that the Attorney General had been directed by the Tax Commission to bring the suit. It follows that the decree will be affirmed. | [
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Mehappy, J.
The appellee, Jess Simpson, brought suit in replevin for the possession of certain stock belonging to. him and running at. large in Monroe County, Arkansas.
The stock were impounded by the appellant, Claudius Johnson, because it was claimed that the stock were running at large in violation of law.
On appeal to the circuit court, the case was tried on an agreed statement of facts, and the court held that act 205 of-the Acts of 1927 and act 99 of the Acts of 1929 were invalid for the reason that they were amendatory of local legislation, and in violation of amendment No. 11 to the Constitution of the State of Arkansas, and that the orders of the county court authorizing the holding of an election, and all orders of said court made in consequence of said illegal election are invalid and of no force and effect.
The Legislature of 1915 passed a local act restraining the running at large of stock, hut exempted from the provisions of the act twenty-three counties. We all agree that the exemption of the twenty-three counties made the act a local one.
In 1915 the Legislature had authority to pass a local act, hut in 1926 the people adopted the following amend1 ment to the Constitution: “The G-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of special or local acts.”
After the adoption of this amendment, the Legislature could not pass a valid local act. They could not' amend a local act, but they were given authority in the amendment to repeal local acts.
Act 205 of the Acts of 1927 amended § 321 of Crawford & Moses’ Digest. This section of the Digest is § 1 of the local act of 1915, above mentioned. It provides for the per cent, of qualified electors necessary for the county court to order an election and a vote by the people.
This was purely an amendment to the local act. It did not undertake to repeal any part of it, but amended it as to the manner of calling an election.
Act 99 of the Acts of the General Assembly of 1929 undertook to repeal act 5 of 1923 in so far only as it applies to Monroe County.
Act No. 5 undertook to amend § 332 of Crawford & Moses’ Digest. This was a section of the original local act of 1915 and simply applied to counties exempted from that act, and exempted twenty-one counties only. That left fifty-four counties under the provisions of the local act passed in 1915.
Act 205 of 1927 and act 99 of 1929 do not repeal any part of a local act, but act 99 of 19'29 undertakes to repeal so far as it applies to Monroe County. Monroe County was one of the counties exempted from the provisions of the local act. The effect of repealing the law as to Monroe County, if it had any effect, was to take Monroe County out of the exemptions, and leave it under the provisions of the local act, which would then apply to fifty-four counties, if this were a valid act.
In other words, they undertook to amend the act of 1915 so as to take Monroe County out of the exemptions, and this necessarily added it to the counties under the provisions of the local act.
The election was called, held, and the stock impounded under the provisions of the local law. Of course, the local law would have no effect unless the act in controversy, which repealed the law so far as Monroe County was concerned, had the authority to put Monroe County •under the provisions of the local law. If it did not do this, it did not accomplish anything, because there is no general law governing.
In other words, either the law repealing the local law as to Monroe County put Monroe County back under the provisions of the local law, or it was wholly ineffective. If it did not have the effect of putting Monroe County under the provisions of the local law, the election was void because it was held under the provisions of the local law; and if the election was void, the impounding of appellee’s stock was unlawful.
Appellant calls attention to the case of Smith v. Plant, 179 Ark. 1024, 19 S. W. (2d) 1022, and Wright v. Badders, 181 Ark. 1124, 29 S. W. (2d) 671, and argues that these cases hold that the acts now involved are valid. The question of whether the sections of the Digest mentioned in these cases was a local or general law was never raised. The sections were in the Digest and were therefore assumed to be general laws, and the attention of the court was not called to the fact that these sections were parts of the local law enacted in 1915.
We all agree that the act of 1915 is a local law, and all amendments thereto were local laws.
If the court’s attention had been called to the fact that these sections of the Digest were parts of a local law, we would have held then that the law was local, but it was not called to our attention, and, finding the sections in the Digest which is supposed to contain general laws only, and the fact that the attorneys did not call our attention to it, we assumed that the sections involved were parts of a general law.
Appellant calls attention to the case of Ewing v. McGehee, 169 Ark. 449, 275 S. W. 766, in which it was held that it was within the legislative power to amend a general statute by local and special acts. This case, however, was decided before the adoption of amendment No. 14, and, since the adoption of this amendment, the Legislature has no authority to pass any special or local act, although the Constitution gives the Legislature power to repeal local laws.
As it was held in Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362, the authority to repeal a local law includes the authority to repeal it in part. But the facts in the case of Gregory v. Cockrell, supra, are wholly different from the facts here, and the situation as to the instant case is exactly the reverse of the situation in that case. The Legislature of 19'21 passed an act for a stock law embracing all of Chicot County, and all that part of Ashley County lying east of Bayou Bartholomew. The Legislature thereafter repealed that part of this local law that applied to Ashley County, and the local law no longer applied to the territory in Ashley County, but such territory was thereafter under the operation of the general law. No one would contend that the Legislature could have added other territory to this local act after the adoption of amendment No. 14. No matter whether they called it repeal or amendment, it would have been the enactment of a special law.
Act 99 of the Acts of 1929 repeals act 5 of the Acts of 1923, in so far only as it applies to Monroe County. In the first place, the act did not apply to Monroe County. Monroe County was expressly exempted from the provisions of the act. Just how it could be said that this act applied to Monroe County, when Monroe County was exempted from its provisions, is difficult to see. The act meant that Monroe County was to be put under the provisions of the act, or it is meaningless.
The circuit court was correct in holding the acts mentioned invalid, and the judgment is affirmed. | [
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Smith, J.
In the trial of this ease in the court below the court, after hearing the testimony, made a finding of facts, the correctness of which is not questioned. It reads as follows:
“The court finds that H. H. Taylor is a resident of Texarkana, Texas, is a practicing attorney of that city, that he has an office in that city and has no office in Texarkana, Arkansas. He is here prosecuted for failing to pay an occupation tax to the city of Texarkana, Arkansas, for 1931. During that year he appeared in the municipal court of Texarkana, Arkansas, as attorney for various parties at least 25 times. He had one client whose office was in Texarkana, Arkansas, and he consulted with this client as its attorney in its office in Texarkana, Arkansas. He has been admitted to practice before the Supreme court and the other courts of the .State of Texas.
“The court finds as a matter of law that the city of Texarkana does not have authority to impose an occupation tax on attorneys who appear in the courts in that city unless they reside in that city, or have an office or place of business there. Taylor does not have an office or place of business in Texarkana, Arkansas, nor does he reside in that city. He is not therefore liable for the occupation tax, and the court therefore finds him not guilty.
“It is the opinion of the court that the statutes of Arkansas grant to Taylor, as a Texas attorney, the right to appear in the courts of this State. See 60S to 606, inclusive, of Crawford & Moses’ Digest. If the city has the power to tax the exercise of this right, it has the power to destroy it. The court does not think the Legislature meant to vest in the city the right to say who should appear as attorneys in the courts held in the city. The court therefore finds that the power to impose an occupation tax on attorneys which was vested in the city by § 7618 of Crawford & Moses’ Digest did not include the power to tax an attorney who neither resides in nor has an office or place of business in the city, and who only appears in court and/or advises his clients in said city.
“The court therefore finds the defendant not guilty.”
Section 7618, Crawford & Moses’ Digest, to which the court referred, provides that hereafter any city of the first or second class shall have the power to enact ordinances requiring any person, firm, individual or corporation who shall engage in, carry on or follow any trade, business, profession, vocation, or calling, within the corporate limits of such city (with certain exceptions not here involved) to take out and procure a license therefor, and to pay into the city treasury the amount of money specified in such ordinance for such license and privilege.
Pursuant to the power thus conferred, the city of Texarkana, a city of the first class, passed an ordinance imposing an occupation tax, which provides: “That it shall be unlawful for any person, firm or corporation or' individual in the city of Texarkana, Arkansas, to engage in the following businesses, trades, occupations, vocations, callings or professions without having first obtained and paid the license therefor from the city collector, the amount of which license is hereby fixed in this ordinance.” Attorneys-at-law are included in the occupations there named and taxed.
Similar ordinances, .enacted in other cities have been upheld, and the question of power need not be reviewed. That has been definitely settled. Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; Shepherd v. Little Rock, 183 Ark. 244, 35 S. W. (2d) 361.
It is argued very earnestly and with much plausibility that the Texarkana ordinance, by its terms, applies only to residents of that city pursuing the named occupations, etc., within its limits. But whether this be true or not, we think the court below was correct in holding that § 605, Crawford & Moses’ Digest, applied to and governed in this case, and that appellee’s status was that of an enrolled nonresident attorney, within the meaning of that section.
Chapter 3 of Thornton on Attorneys-at-Law is devoted to the subject of taxation of attorneys. Yol. I, page 103. After citing cases from numerous courts to the effect that nonresident attorneys who pursue their profession in cities other than that of their residence may be taxed in such cities, the author says: “It is doubtful if mere incidental practice would subject a nonresident to taxation.”
The court below evidently regarded the practice of appellee in the courts of this State as merely incidental to the practice of his profession in the adjoining State, and that he was not therefore subject to the tax. We concur in this view.
Section 605, Crawford & Moses’ Digest, is applicable to such cases' and governs in this. .This section provides that justices of the peace and the clerks of courts of record .shall keep a record of nonresident attorneys enrolled in such court, and shall charge each nonresident attorney a fee of a dollar for such enrollment. This section applies not only to cities of the first and second-class, but to the entire State, and, as there does not appear to be any authority for the exaction of any other fee from appellee, the judgment of the court below must be affirmed, and it is so ordered. | [
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Kikby, J.,
(after stating the facts). The policy insures against accident resulting from insured’s being struck by a vehicle “propelled by steam, cable, electricity, # * * gasoline, etc., while insured is walking or standing on a public highway, which term, public highway, as here used, shall not be construed to include any portion of railroad or interurban yards, station grounds, or right-of-way except where crossed by a thoroughfare dedicated to and used by the public for automobile or horse vehicle traffic.”
The evidence shows that the place at which insured was standing when struck by the cable was laid out and made a public highway by order of the county court on the 20th day of January, 1930, insured being killed on the 5th day of May thereafter, and the stipulation shows that he was struck by a cable, one end of which was attached to a tractor pulling stumps out of this new roadway laid out. The Legislature, by act 666 of 1923, § 5, defined a public highway, and the policy limits the meaning public highway as prescribed in it, which in nowise conflicts with the contention that the road, laid out and being improved, was a public highway within the meaning of the statute and our decisions. Finney v. State, 172 Ark. 115, 287 S. W. 744. See, also, 29 C. J. 363.
If a person coming alongside a public highway over which vehicles of the kind specified in the policy moved, and while there was injured by being struck by any such vehicle with a cable or board or something else attached to it, or by a car or piece of car or anything carried on such vehicle in a collision between two cars, it would hardly be contended that the accident was not within the provision of the policy insuring against risks of this nature; or if he had been struck and injured by any such vehicle on a short detour from the public highway, made necessary by its obstruction, or a washout, certainly it could not be claimed that the injury was not covered by the terms of the policy, and, in the first illustration, whether he negligently or foolishly stood or walked by the side of the road would make no difference.
Being struck by the cable attached to the tractor was as much being struck and injured by a vehicle within the meaning of the policy as if the insured had been run over by the wheels thereof, or had come in collision with any other part of it, and such an injury was covered by the terms of the policy and insured against. Great American Casualty Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 775.
It was there held that, when a policy provided indemnity for accidental injury to insured while actively engaged in farming by actual contact with and while operating a threshing, mowing, reaping or binding machine, such provision covered an injury to insured, who was operating a binding machine harvesting rice, while he was down under it making adjustment or repairs and injured by a sledge hammer falling off the seat of the machine and striking his foot.
If there is ambiguity in the policy, or if its provisions are of doubtful meaning-, it must be most strongly construed against the company writing it, and more favorably to the insured. Great American Casualty Co. v. Williams, supra.
The court therefore erred in directing a verdict against the appellant, and the judgment is reversed, and the cause will be remanded for a new trial. It is so ordered. | [
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Mehaeey, J.
The petitioner filed suit in the Bradley Circuit Court against the respondent, Southern Lumber Company, for damages for slander, alleging that Fred Wyman, president of respondent company, and acting within the scope of his authority, falsely and maliciously spoke and published, of and concerning plaintiff, certain false, malicious and defamatory words, setting out the words spoken, and asked for damages.
The respondent, defendant in the slander suit, filed a demurrer, a motion to make the complaint more specific, and complaint was amended to comply with the motion to make more specific.
After the demurrer filed by defendant was overruled, the defendant filed answer in which it alleged, among other things, that Wyman had no authority to act for it in the utterance of any slander. It denied that Wyman spoke and published the slanderous words alleged in complaint, and denied any malicious intent, and in fact denied all the material allegations with reference to the charge of slander. It alleged in addition that the slander was unauthorized, that it was a privileged communication, and defendant also pleaded the truth of the statements alleged to have been made, and a settlement of the entire matter, and that the plaintiff was estopped; that the slander was the result of plaintiff’s own repetition and publication of an alleged slander of plaintiff’s own making; that a suit had been filed for the same slander against Wyman, and was still pending.
In addition to the answer the defendant filed a counterclaim and cross-complaint in which it alleged misconduct on the part of the plaintiff in numerous ways and numerous acts of improper conduct with reference to defendant’s property, alleging that defendant had wrongfully appropriated to his own use much of the money and property and many facilities of defendant without knowlege of said company; that an accounting which would involve many thousands of items to be found hidden in vast volumes of records and files covering a period of many years, complicated because of the wrongful action of plaintiff, was necessary; that it was necessary to appoint a master.
The defendant attached to his counterclaim and cross-complaint a motion to transfer to equity, setting up all the defenses mentioned in its counterclaim, and many others which it alleged entitled it to have the cause transferred to equity; asked for judgment against the plaintiff in damages, and the cause was, over the objection of plaintiff, transferred to the chancery court.
The plaintiff then in chancery court filed a motion to remand to the circuit court, which was overruled, and plaintiff required to go to trial.
The defendant’s pleadings in the circuit court, including the answer, counterclaim and cross-complaint, together with the motion to transfer to equity, consist of more than forty pages, and it would be useless to set out the pleadings in full.
The chancellor made lengthy findings. Among other things the court said in its findings that it was impossible to reconcile the testimony upon any point materially affecting the issues.
The court also said in its findings: “This court is not impressed with much of the allegations contained in the cross-complaint. Some of these allegations are frivolous and merely challenge conditions long acquiesced in by defendant corporation. Some are referable to faulty judgment rather than intentional wrongdoing on the part of the cross-defendant.”
The court then entered a decree that the court had full and complete jurisdiction of both the parties and the subject-matter and the issue, as made by the pleadings, and that the pleadings set forth matters cognizable exclusively in equity; that the appointment of a master was proper, and that the plaintiff’s request for a jury, and motion to remand to the circuit court were denied and overruled, to which plaintiff excepted.
There are many other specific statements in the decree which it is unnecessary to set out in this opinion. The court dismissed the complaint of plaintiff and dismissed the cross-complaint of defendant.
The court in its decree, names more than 150 witnesses who gave testimony.
The petitioner filed in this court, April 15, 1932, an application for writ of certiorari, and prays that the decree and judgment of the chancery court he quashed, and that an order be issued by this court directing that said cause of action be remanded to the circuit court for trial, and for other relief.
A response was filed by the chancellor and Southern Lumber Company in which they first demurred, stating that it is an effort to use certiorari as a substitute for appeal. They also contend that, unless all the pleadings filed in the lower court are printed in full, this court cannot exercise an informed and intelligent discretion; that the writ of certiorari does not properly lie to courts of chancery; that the petitioner is estopped. It is also stated in the response that the entire record is necessary to the exercise of an intelligent discretion, and that the petition was not filed in time, and the response then denies the allegations contained in the petition.
It is first contended by the respondents that the writ should be denied because it is obviously an effort to use certiorari as a substitute for an appeal, and they call attention to Adams v. Sub-Drainage District No. 3, 171 Ark. 802, 286 S. W. 962.
It is true that there is a statement in the opinion in that case that certiorari cannot be used as a substitute for appeal, and the orders are not brought up on appeal for correction of error.
It is the general rule, in this State, that the writ of certiorari cannot be used as a substitute for appeal.
As contended by the respondent, the writ of certiorari is not a writ of right, but is one of discretion. Many cases are cited by respondent to support this rule, but it may be said that the rule is well established in this State that the writ of certiorari is not a writ of right, but is a writ of discretion.
The petitioner cannot demand as a matter of right that the writ issue. On the other hand, the respondent cannot claim as a matter of right that the writ shall not issue. It is a matter, not of right, but of discretion, and that means of discretion to grant or refuse the writ.
Discretion of a judge or court, when called upon to grant or refuse a petition for a writ of certiorari, requires the judge or court to act according to the dictates of their own judgment and conscience, and it involves a fair consideration of all the peculiar features of the particular question involved.
“In a broad sense, the option which a judge may exercise, either to do or not to do that which is proposed to him that he shall do; choosing between the doing and not doing of a thing, the doing of which cannot be demanded as an absolute right of party asking it to be done; the exercise of the right legally to determine between two or more causes of action.” 18 C. J. 1135.
The respondent can no more demand that the court refuse to grant the writ than the petitioner can demand that it grant it, but the granting or refusing to grant the writ is within the sound discretion of the court.
In determining whether the writ should be granted or not, the court will look only to the face of the record, and will not consider questions of fact.
It is wholly unnecessary to call attention to or review authorities cited to support this proposition.
It is next contended by the respondent that the application for the writ should be dismissed unless all of the pleadings in the lower court, resulting in the transfer of the case to the chancery court are printed in full.
The complaint filed in the 'Bradley Chancery Court was a suit'for damages for slander, and the only court having jurisdiction to try an action for slander is the circuit court, and no pleadings filed by the defendant in such suit could authorize the transfer of the case to the chancery court, and thereby deprive the plaintiff of the right to trial by jury.
The statutes as to counterclaim and set-off referred to and relied on by respondent do not authorize a transfer of a lawsuit to the chancery court.
Section 1195 of Crawford & Moses’ Digest provides: 1 ‘ The counterclaim mentioned in this chapter may be any cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them.”
Prior to the enactment of this statute, the cause of action that could be pleaded in a counterclaim was some matter arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.
Under the law as amended, it is not necessary that the cause of action mentioned in the counterclaim arises out of the contract or transactions, or that it is connected with the subject of the action. In other words, it may be any cause of action in favor of the defendants against the plaintiffs, whether growing out of the contract or transactions or connected with the subject of the action or not.
This is the only change made in the law as to counterclaim, and the same change was made as to set-off, but, both before the amendment and since, the cause of action mentioned in the counterclaim must be within the jurisdiction of the court. It was not the intention of the Legislature in enacting these statutes to violate the Constitution. The presumption is that the Legislature did not intend to violate the Constitution, but, if these statutes are construed as contended for by respondent, they would violate the Constitution.
Section 7 of art. 2 of the Constitution of Arkansas, provides: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.”
The right to trial by jury would not remain inviolate if, in an action only cognizable in a court of law, the defendant could interpose defenses and cause a transfer to a court of chancery, and thereby deprive the plaintiff of the right to trial by jury, and the defendant cannot secure a transfer to chancery of a case of which the court of chancery has no jurisdiction.
Even if the transfer to the chancery court did not deprive the plaintiff of a trial by jury, still the judgment of the chancery court in the slander suit would be void, because such court has no jurisdiction in a slander suit, and it is the general rule that the judgment of a court having no jurisdiction over the subject-matter is void.
In speaking of the jurisdiction in Freeman on Judgments, it is said: “A lack of it, on the other hand, will lay the judgment open to successful impeachment if such fact is made to appear from the face of the record or by matters dehors where extraneous evidence is receivable for the purpose.”
“It is this jurisdictional element that differentiates a void from a voidable judgment, the distinction between them being that when a court attempts to render the former a jurisdictional fact is absent without the existence of which the court is without authority to act at all. A judgment, in fact, rendered by a court whose want of jurisdiction is made to appear is no judgment at all and binds no one.” 1 Freeman on Judgments 668.
Consent cannot give jurisdiction of the subject-matter, although it may of the person, and where the court has no jurisdiction of the subject-matter, the judgment is void, and a void judgment is a nullity. Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; Blanton v. Forrest City Mfg. Co., 138 Ark. 508, 212 S. W. 330; Oliver v. Routh, 123 Ark. 189, 184 S. W. 843; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39.
It is next contended by respondent that writs of certiorari do not properly lie to courts of chancery. This court has settled the question against the remonstrant in the case of Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596. It not only settled the question that certiorari will lie to courts of chancery, hut the opinion in that case stated: “Inasmuch as the orders of the court exceed its jurisdiction, certiorari is an appropriate way to bring before this court for review.”
This court is therefore committed to the doctrine, not only that the writ will lie to a chancery court, but that it is the appropriate method to bring void judgments before this court for review.
Where the chancery court has no jurisdiction to try the case before it, that is, no jurisdiction over the subject-matter, its judgment is void, and since the original suit, brought in the circuit court was for damages for slander, the chancery court had no jurisdiction, and no pleadings that could have been filed by the defendant in that suit would give the chancery court jurisdiction.
It is wholly unnecessary, and would be improper, to consider the evidence, because the circuit court alone had jurisdiction to try the slander suit.
As contended by respondent, it was evidently the intention of the Legislature, in adopting the provisions with reference to counterclaim and set-off, to permit persons to settle in a single suit all matters in dispute between them, but it was manifestly not the intention of the Legislature to violate the Constitution and deprive one of the right to trial by jury, nor to give the chancery court jurisdiction to try cases that were only cognizable in a court of law.
It is contended that the pleadings on the part of the defendant in the slander suit gave the chancery court jurisdiction. Section 1194, Crawford & Moses’ Digest, which provides that a defendant may set forth in his answer as many grounds of defense, counterclaim and set-off, whether legal or equitable, as he shall have, does not authorize equitable defenses in a suit for slander. All the defenses proper in a slander suit are legal defenses. Defendant in a slander suit may introduce evidence tending to show justification or partial justification.
Section 1229 Crawford & Moses’ Digest provides: “In the actions mentioned in-the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances legally admissible in evidence to reduce the amount of damages, whether he proves the justification or not, he may give in evidence the mitigating circumstances.” These defenses are legal defenses in a suit for slander.
Lengthy briefs have been filed by both parties, and many authorities cited. We do not deem it necessary to discuss or review all the authorities cited. We have reached the conclusion that the chancery court was without jurisdiction, and that its judgment is void.
The certiorari is sustained, and the judgment of the chancery court in the slander suit is set aside, and the chancellor directed to remand the slander suit brought by petitioner to the Bradley Circuit Court.
Smith and McHaney, JJ., dissent. | [
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Hart, C. J.,
(after stating the facts). Numerous persons, who were citizens of Fort Smith and property owners in the proposed improvement district, joined in the suit and attacked the validity of the assessment of benefits on the ground that it was so excessive and discriminatory as to render it arbitrary and void. The burden was upon them as attacking the validity of the assessment as a whole to prove that it was made upon the wrong basis or that it was arbitrary and void. Turner v. Adams, 178 Ark. 67, 10 S. W. (2d) 41, and Lenon v. Street Improvement District No. 512, 181 Ark. 318, 26 S. W. (2d) 572. In the latter case, it was said that there was a presumption in favor of the validity of the assessment of benefits, and that the burden was upon the property owners who assailed it to show that it was so excessive as to render it void.
Special assessments proceed upon the theory that, when a local improvement enhances the value of adjacent property, that property should pay for the improvement. Hence, special assessments are made upon the assumption that the land in the proposed district is to be actually benefited by the enhancement of its value. Local assessments can only be imposed to pay for local improvements clearly conferring special benefits on the property as sessed, and to the extent of those benefits only. This court has uniformly held, in a long- line of cases, that all assessments for local improvements in municipal corporations are based on the principle that the property subjected to the assessment is benefited by the improvement for which the assessment is made. Hence there is a constitutional limitation that the amount of the special assessment must not exceed the special benefit derived, and also that the imposition of the assessment must be uniform and free from unjust discrimination. Otherwise the special assessment would be invalid on the ground that it is an attempt to take private property without just compensation, in violation of the Constitution. Ahern v. Board of Improvement District No. 3 of Texarkana, 69 Ark. 68, 61 S. W. 575; Mullins v. Little Rock, 131 Ark. 59, 198 S. W. 262, L. R. A. 1918B, 461; Stevens v. Shull, 179 Ark. 767, 19 S. W. (2d) 1018, 64 A. L. R. 1258; and Thacker v. Paving Improvement District No. 5 of Mena, 182 Ark. 368, 31 S. W. (2d) 758.
The cases above cited, as well as many other cases decided by this court, establish the doctrine that special assessments cannot be levied in local improvement districts unless the property charged receives a corresponding physical, material and substantial benefit from the improvement.
It is first sought to set aside the assessment of benefits on the ground that it was so excessive as to be arbitrary. It is first pointed out that the total of the assessed benefits is $74,235, and that the estimated cost of the improvement is $47,763. This, of itself, could not constitute an arbitrary assessment of benefits. In the first place, interest on the amount of bonds to be issued to make the contemplated improvement would be necessary; and, when the testimony of all the witnesses on both sides is considered, it cannot be said that the assessment of benefits was made upon an arbitrary basis, so as to leave a large margin of benefits in favor of the bondholder.
It is next insisted that the assessment of benefits is so discriminatory and excessive as to render the assess ment arbitrary and void under tbe principles of law above announced. About eight witnesses were introduced by each party. So far as the record discloses, they were responsible citizens, property owners, and were more or less interested in the contemplated improvement. There is nothing- to impeach their integrity or veracity except that they wholly contradicted each other about the assessment of benefits made upon the property in the 'district.
On the part of the property owners, the testimony shows that the assessment of benefits was excessive, and that in many instances there was discrimination in the assessment of benefits between the property owners in the district. On the other hand, the testimony of the witnesses for the district shows that the assessment of benefits was made after due consideration of every element that should enter into it. The situation of the property and the condition surrounding it, as well as all other matters which might tend in a substantial way to increase its value, were given due consideration in the assessment of benefits, and the assessment was not void as being excessive or made in an arbitrary manner. The assessors had before them a map of the proposed district, showing the situation of the property and the physical material benefits that might accrue to it.
It is true that the testimony of the witnesses for the property owners tended to show that in many instances the assessment of benefits, as regarding the different' property owners, was unequal and discriminatory. This was a matter which would have entitled these individual property owners to relief, had they proceeded in the manner pointed out in the statute. The present suit, however, is an attack upon the assessment of benefits as a whole as being made on the wrong basis.
It is claimed that the assessment of benefits as a whole was excessive, and made in such a discriminatory manner as to render it arbitrary and void. The evidence tends to show that part of the streets in the district had already been paved and had become badly worn, but this matter seems to have been taken -into consideration by the assessors in making their assessment. It also claimed that some nf the property abutted the street, and some of it did not. This fact of itself would not render the assessment void, and the situation of the property appears to have been taken into consideration by the assessors in making the assessment of benefits. Cooper v. Hagen, 163 Ark. 312, 260 S. W. 25; and Little Rock v. Boullion, 171 Ark. 245, 284 S. W. 745, and cases cited.
To set out the testimony in detail and to review it would serve no useful purpose in this case, and would unduly extend this opinion. We deem it sufficient to say that it was fully abstracted by counsel for appellant, ¿nd that we have carefully read and considered it. We have also considered the brief of opposing counsel, and are of the opinion that the assessment of benefits was made in attempted compliance with the principles of law announced in the cases above cited. It is not within our province to say whether or not the chancery court should have reached a different conclusion upon the facts. Under our settled rules of practice, it is our duty to uphold the finding of facts made by a chancery court, unless it is against the preponderance of the evidence. It is true that we try cases ele novo upon the record made in a court below, but it is our duty to give due deference to the finding of facts made by the chancellor as above indicated.
It cannot be said that the finding of facts made by the chancellor in the court below is clearly against the weight of the evidence; and, under our settled rules of practice, it becomes our duty to affirm the decree. It is so ordered. | [
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Smith, J.
Appellee sustained a serious injury on May 28, 1930, by being thrown from an engine and being dragged by the engine along the track upon which the engine was being run. He recovered a judgment against appellant to compensate his injury, from which is this appeal.
No question is raised here as to appellant’s liability, it being- insisted only for the reversal of the judgment appealed from that appellee’s cause of action had been compromised and settled before the case was tried in the court below.
After his injury, appellee was treated at his home by a physician furnished by appellant, his employer, until June 2, when he was carried to a hospital, where, on June 4, he was operated on for double hernia. On June 13, which was nine days after the operation, appellant’s adjuster visited appellee at the hospital for the purpose of settling his claim for damages.
Appellee stated that he was not ready to settle and would not be until he had consulted his doctor. The adjuster said: “You see the doctor, and I will return next Friday,” which was June 20. On the 20th Dr. Tribble, who had performed the operation under employment by appellant, called on appellee at the hospital, and appellee said to him: “Doctor, the insurance adjuster was over Friday, and I would like to know how long it will be before I will be able to go back to work. ’ ’ According to appellee, the doctor answered: “You will be able to go back to work in three months. You will be just as good as you ever were, or may be stronger. ’ ’ Later in the day the adjuster called on appellee and asked: “Are you ready to settle?” and appellee answered: “I guess I am; I saw the doctor. ’ ’ The adjuster asked: ‘ ‘ Are you ready to leave the hospital?” and appellee answered: “I don’t know; I never asked about leaving the hospital.” The adjuster said he would see Dr. Tribble, and he left the hospital, but soon returned and reported to appellee that lie had seen Dr. Tribble and that the doctor had said that appellee would be all right in three months, and that appellee could leave the hospital, and he did leave the hospital on that day, having been in the hospital about sixteen days after his operation.
Dr. Tribble testified that the operation was a proper and perfect one, and admitted that he had told appellee that he would be all right in three months and able to do his work as well as ever, unless there was some complication, and that recovery from such an operation was usually complete in three months.
Appellee testified that he and the adjuster figured what his wages would be for three months, if he were working, and, as the amount was slightly less than $400, they agreed upon a settlement for that amount.
It was the insistence of appellee in the court below that he relied upon and was misled by the statement of appellant’s physician that he would be well and able to resume work within three months, whereas at the time of the trial from which this appeal comes in November, 1931, he was still suffering pain and was unable to work.
The jury returned a verdict for appellee in the sum of $3,000, less the $400 previously paid, and judgment was rendered accordingly.
The issue of fact in the case was submitted in an instruction given at the request of appellant, which reads as follows: “You are instructed that, before the plaintiff is entitled to recover in this ease, he must first avoid the release executed by him, and that to avoid that release the burden is on the plaintiff to show by a preponderance of the evidence that Dr. Tribble told him, as his unqualified opinion, that he would be fully recovered from his injuries in three months, and that at the end of three months he would be able to .go back to work, and that he had not so recovered at the end of that time; and, unless he discharges that burden, the release he executed is a valid release and your verdict must be for the defendant.”
This instruction was as favorable as appellant could ask, as this court has frequently held that a release is not binding on the releasor where the physician of the party responsible for an injury represents to the injured person that his injuries are temporary, when, in fact, they are permanent, and the injured person executes the release relying upon such statement of the physician of the party responsible for the injury. St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; Francis v. St. Louis, I. M. & S. Ry. Co., 102 Ark. 621, 145 S. W. 534; Kansas City Southern Ry. Co. v. Armstrong, 115 Ark. 128, 171 S. W. 123; St. L., I. M. & S. Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; C., R. I. & P. Ry. Co. v. Smith, 128 Ark. 223, 193 S. W. 791; F. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 124; St. L.-S. F. Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 81; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9; M. P. Rd. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528; K. C. S. Ry. Co. v. Sanford, 182 Ark. 484, 31 S. W. (2d) 963.
There is no contention that Dr. Tribble intentionally deceived appellee or practiced any fraud upon him., but the testimony supports appellee’s contention that he relied upon the doctor’s opinion as to his recovery, and that the doctor was mistaken in his prognosis.
The judgment of the court below must therefore be affirmed, and it is so ordered. | [
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George Rose Smith, Justice.
This suit was brought by the appellant, as administratrix of the estate of Oddie M. Anderson, deceased, to require the appellee, Gordon Brown, to contribute his proportionate share of the. federal and state estate taxes that had been paid by the administratrix upon the decedent’s estate. This appeal is from a decree holding that- Brown is under no duty to contribute to the payment of the taxes (except with respect to a small testamentary bequest not in issue).
The facts are not in dispute. On March 4, 1964, Mrs. Anderson gave Brown securities worth $22,000. The donor was then 86 years old and suffered from an incurable degenerative process of the spinal cord. Within a few months Mrs. Anderson was taken to a hospital, where she died in the following October. In an earlier declaratory judgment proceeding it was held that the gift to Brown was valid, as against an assertion that it had been procured by undue influence and by an abuse of a confidential relationship. Barrineau v. Brown, 240 Ark. 599, 401 S. W. 2d 30 (1966).
Thereafter the federal taxing authorities determined that the gift to Brown had been made in contemplation of death, so that the value of the gift was to be included in the decedent’s estate for tax purposes. That determination was accepted by the state revenue department and by the parties to the present dispute. Thus it is an uncontroverted fact that the gift to Brown was in contemplation of death.
The question now before us is whether the recipient of such a gift must bear his proportionate part of the estate taxes. That question turns upon the proper construction of our apportionment statute, § 1 of Act 99 of 1943, which reads as follows:
Except as otherwise directed by the decedent’s will, the burden of any State and Federal Estate, Death, and Inheritance Taxes paid by the executor or administrator shall be spread proportionately among the distributees, and/or beneficiaries of the estate, so that each shall bear his proportionate part of said burden. [Ark. Stat. Ann. § 63-150 (1947).]
When one studies the language of the apportionment act itself, and the language of the three prior decisions that are pertinent to the present problem, it is plain that the recipient of a gift which was includible in the decedent’s estate as having been made in contemplation of death, must bear his fair share of the estate taxes assessed by the federal and state governments.
It has long been the rule that state law — not federal law — determines the manner in which the burden of the federal estate tax is to be distributed among the beneficiaries of .an estate. At first Arkansas had no apportionment statute. That deficiency in our law led to the inequitable result that the court felt itself compelled to reach in the first of the three decisions to which we have alluded: Thompson v. Union & Merc. Tr. Co., 164 Ark. 411, 262 S. W. 324, 37 A. L. R. 536 (1924). There we held that the widow was not required to contribute to the payment of the federal estate tax, even though the value of her dower was included in the valuation upon which the tax was computed. We thought it appropriate to explain that we had no choice in the matter: “We have nothing to do with the justice or the policy of our laws in this regard, as that is a matter entirely for the legislative branch of government.”
Late in 1942 the Supreme Court of the United States handed down the next pertinent decision: Riggs v. Del Drago, 317 U. S. 95 (1942). That case involved a New York apportionment statute. The state trial court had held that under the statute the tax should be equitably apportioned among all the persons beneficially interested in the estate. The New York appellate court reversed that decision, under the mistaken impression that the federal estate tax law did not permit the states to accomplish such a fair and just distribution of the federal tax burden. That appellate decision was in turn reversed by the United States Supreme Court, which upheld the validity of the state statute.
The Riggs decision made it clear to the states that by appropriate legislation they could put into effect an equitable distribution of the tax burden. The Arkansas General Assembly at once acted upon that invitation by the adoption of the apportionment act now before us, Act 99 of 1943. That the act stemmed from the Riggs decision cannot be doubted, for the language of the act is almost a verbatim copy of the Supreme Court’s paraphrase of the New York law in the first paragraph of the Riggs opinion.
The apportionment act came before us for interpretation in the third pertinent case: Terral v. Terral, 212 Ark. 221, 205 S. W. 2d 198, 1 A. L. R. 2d 1092 (1947). There the widow argued, on the authority of the Thompson case, supra, that she ought not to be required to bear her fair share of the tax, even though the amount of the tax had been swelled by the inclusion in the tax base of the value of her dower and of her interest as surviving tenant by the entirety. We rejected that argument, pointing out that if the legislature had meant to continue in force the (inequitable) rule of the Thompson case it would have used appropriate language to accomplish that result.
Specifically, the widow in the Terral case insisted that she was not a distributee or beneficiary of her husband’s estate, within that clause of the apportionment act which directs that the tax burden be spread proportionately among “the distributees, and/or beneficiaries of the estate.” We found that argument unsound, holding that the words were used in a nontechnical sense to include all persons in whom the law might vest any part of the intestate’s property.
That decision is controlling here. Mrs. Terral’s dower and survivorship interests did not pass through the hands of her husband’s personal representative, but she was nevertheless a beneficiary of his taxable estate within the apportionment act. Similarly, the gift to Brown did not pass through the hands of Mrs. Anderson’s personal representative, but Brown was nevertheless a beneficiary of her taxable estate. The whole point and it is a simple one — is that both Mrs. Terral and the appellee Brown were the recipients of property which constituted a part of the decedent’s taxable estate and increased the amount of the tax. If the key word “proportionate” in our apportionment act means anything at all, it means that those who receive a portion of the decedent’s taxable estate must bear their just part of the tax burden. Here Brown received, we are told, 13.4906% of Mrs. Anderson’s taxable estate. The apportionment act achieves justice by requiring that he bear that same proportionate part of the estate ta?:es paid by the administratrix. Nothing could be more simple or more fair.
Reversed.
Fogleman, Jones and Byrd, JJ., dissent. | [
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Conley Byrd, Justice.
For reversal of the $13,000.00 award of compensation in this eminent domain action the Arkansas State Highway Commission relies upon three points:
“I. the trial court erred in not granting the appellant’s motion for change of venue.
“II. The trial court erred in not striking the testimony of witnesses for the defendant in regard to value and damages based upon a unity of use between the two separate parcels of land. Also the trial court erred in refusing to give plaintiff’s Instruction No. 1 and in giving defendant’s Instruction A.
“III. The trial court erred in giving the instruction as to ‘financial loss.’ ”
POINT NO. I. We find no merit in the contention that the trial court erred in failing to grant a change of venue. Appellant here made substantially the same showing upon the same pleadings that it made in Arkansas State Highway Commission v. Duff, 246 Ark. 95, 440 S. W. 2d 563 (1969). That decision is determinative of the issue here.
POINT NO. II. The record shows that appellees W. F. Lemley and Roy V. Jackson own the WV2 SE, SW NE of Sec. 33, and also the SW NW Sec. 34, T 7 N, R 17 W. The taking, for construction of interstate 40, totals 12.72 acres of the 120 acre tract in 'Section 33. There remains 40.8 acres south of the interstate. The 60.48 acres lying north of the interstate is without public highway access. The SW NE of Sec. 33 is timber land. One quarter mile east, separated by an intervening ownership, is the SW NW of See. 34, also timber land. After the Condemnation action was filed on the section 33 land, the appellees petitioned Chancery Court to enjoin construction of interstate 40 because it denied the landowners right of ingress and egress to and from the Section 34 property. This action was transferred to Circuit Court and the two causes were consolidated for trial.
At the trial it was shown that the landowners had an oral agreement with the intervening property owner for access to their land in Section 34 from the land in Section 33. Subsequent to institution of the eminent domain action, this agreement was reduced to writing. Thus appellees here had ingress and egress from Highway 64 across their lands in Section 33, across the intervening easement, to the lands in Section 34.
Witnesses for the landowners testified that there was unity of use for agricultural purposes between the lands in 33 and the lands in 34. However the witnesses on cross-examination admitted that the lands in Section 34 were timber lands and were not being used for farming operation at the time. Pursuant to such testimony the trial court submitted to the jury the issue of whether or not the lands in Section 33 and Section 34 constituted a unit, and denied the Highway Department’s requested instruction that the jury was to disregard any damages to the land in Section 34.
Obviously, the testimony here is woefully insufficient to show a unity of use for farming purposes between the 120 acre tract in Section 33 and the timbered lands in Section 34. Consequently the trial court did err in giving appellees’ requested Instruction A on the unit of value, but it does not necessarily follow that the trial court erred in refusing to give the Highway Department’s requested Instruction No. 1, that the jury should disregard any damage to the lands in Section 34. It is pointed out in an annotation in 49 A. L. R. 368 that a property owner may recover damages for the vacation or the closing of a street where his property is cut off entirely from access to the general system of streets by such vacation or closing, even though the street immediately in front of his property remains open, since the latter is of small, if any, consequence under these circumstances. In Cooke v. City of Portland, 136 Ore. 233, 298 P. 900 (1931), the proposition is stated in this language :
“Courts have been unable to announce any hard and fast rule to determine when owners may and when they may not recover compensation for injury to property by reason of the vacation of a street. However, it may be said with a degree of certainty that an owner whose property abuts upon that part of the street vacated is entitled to be compensated for deprivation of his right of access to his property. It is also a well-established general rule that those owners whose property does not abut upon the street vacated are denied compensation if they still have access to the general system of streets. See numerous eases in exhaustive note 49 A. L. R. 330. The mere fact, however, that the property does not abut on the street vacated does not preclude compensation if the owner has been deprived of all access to his property. This could be accomplished by the vacation of streets on both sides of a property or by closing all of the street except that part upon which the property abuts. The real test is not whether the property abuts upon the street vacated but whether a special injury has been sustained by reason of the vacation.”
Since there was testimony from which the jury might have found that the landowners had access to the tract in 34 by the easement mentioned and it is conceded that there was no other public ingress and egress to the property we cannot say that the trial court erred in refusing to instruct the jury to disregard any damages to the Section 34 property.
POINT NO. III. After the trial court had instructed the jury with reference to the before and after fair market value of the property and had defined the term “fair market value” he then instructed the jury as follows :
“What you are to determine in this case is what financial loss the defendants have sustained in this case by the taking of their lands; and if you do so find a financial loss, by a preponderance of the evidence, you are to return a verdict for just compensation for this taking, in-which verdict the indemnity must be real, substantial, and full.
“Less would be unjust to the landowners; more would be unjust to the public.” [Emphasis ours.]
The Highway Department objected specifically to the above instruction because it allowed the jury to consider elements of damages not properly a part of just compensation. We hold that the instruction given was erroneous. It permits the jury to take into consideration items not a part of market value, such as the landowner’s circuity of travel between the two tracts, and cost of acquiring new access. Such items are not necessarily recoverable in ah eminent domain action, for a market may otherwise exist for the land without regard to appellees’ access.
Reversed and remanded.
George Rose Smith, J., concurs. | [
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Robert L. Brown, Justice.
Appellant Kenneth R. Isom ^appeals from a judgment of conviction for capital murder, residential burglary, attempted capital murder, rape, and aggravated robbery. He was sentenced to death for capital murder and received additional sentences of life in prison for aggravated robbery and for rape, sixty years for attempted capital murder, and forty years for residential burglary, with the sentences to run consecutively. He raises multiple points on appeal. We hold that there is no merit to the points raised, and we affirm.
The facts are taken from testimony at trial. On April 2, 2001, Ken Oulette drove by Bill Burton’s residence in Monticello around 7:00 p.m. and saw Dorothy Lawson, age 72, standing in the yard in front of Mr. Burton’s trailer home, talking with a gentleman who was sitting on the front stairs of the house next door to Mr. Burton’s residence. Mr. Oulette later identified Mr. Isom from a photographic lineup and then in court without objection. Linda Kay Johnson, who lived across the street from Mr. Burton, also saw Mr. Isom and Mrs. Lawson talking outside Mr. Burton’s residence before 7:00 p.m. She had known Mr. Isom for a long time and had seen him at Alfred Collins’ house, which was next door to Mr. Burton’s trailer home, on previous occasions. She said that Mr. Isom was wearing a white tee-shirt and dark pants. Ms. Johnson later identified Mr. Isom in the courtroom at his trial without objection.
Dorothy Lawson testified that she had been assisting Bill Burton, age 79, her deceased husband’s brother-in-law, in his rehabilitation following hip surgery. Mrs. Lawson was at Mr. Burton’s trailer home the night of April 2, 2001, and was watching television with Mr. Burton when she heard someone knock on the door. It was about 7:45 p.m. but still light outside. She opened the front door, and a man pushed passed her. She recognized the man as the person she had seen next door. She later identified that person as Mr. Isom. He walked over to Mr. Burton and, standing near him, said, “I want some money.” Mr. Burton replied that he currently had no money but that his social security check was coming tomorrow.
Mr. Isom pulled a pair of broken scissors from his pants’ back pocket and threatened Mr. Burton. Mr. Burton gave him two $100 bills and another forty dollars. Mr. Isom became angry and said he wanted more. He made Mr. Burton stand up and walk towards the bedroom. He then made Mr. Burton lie down on the floor in the hallway. Mr. Isom next grabbed Mrs. Lawson and told her to remove her pants and underwear and lie down in the hallway near Mr. Burton. Mr. Isom raped her vaginally, forced her to have oral sex with him, and raped her anally. During the rapes, Mrs. Lawson testified that she could clearly see his face. When she complained about the pain, Mr. Isom said: “It’s going to be worse than this before the night’s over.” There was a knock at the back door, and Mr. Isom said: “Don’t say a word. If you do, I’ll kill you. I’ll kill you now.” Whoever was at the back door apparently left.
Mr. Isom forced Mrs. Lawson into a closet. When she later looked out and told Mr. Isom to stop' standing on Mr. Burton’s head because he was old, Mr. Isom forced her back into the closet and said: “I know he’s old. That’s why I want to hurt him.” She next saw Mr. Isom lying on top of Mr. Burton. She attacked Mr. Isom and in the process cut her hand on his scissors. She bled on Mr. Isom, which enraged him, and he said: “You’re going to get it now.” He demanded the diamond rings worn by Mr. Burton. Mrs. Lawson gave Mr. Isom her ring instead. Mr. Isom took her into the bedroom and knocked her unconscious. When she awoke, Mr. Isom was choking her. Mrs. Lawson testified that she could plainly see his face. She passed out again, and when she awoke some time later, she was alone. There was warm blood on the back of her head and rattling in her chest due to internal bleeding. She discovered that she was paralyzed on one side.
On April 3, 2001, Erma Shook, a neighbor and relative of Bill Burton’s, entered the side door of his trailer home after 8:00 a.m.'and heard Mrs. Lawson crying for help. Ms. Shook dialed 9-1-1 from Mr. Burton’s trailer home. Donald King, a patrol sergeant with the Monticello Police Department, was the first to arrive at the scene. He testified that he found Mr. Burton dead, lying on the floor in the hallway, and Mrs. Lawson lying on the floor in the master bedroom. The cause of death of Mr. Burton was later determined by associate medical examiner, Dr. Charles Kokes, to be multiple sharp and blunt force injuries. Mrs. Lawson told Sergeant King that a black male who lived next door was the assailant.
Shortly thereafter, Scott Woodward, who was a criminal investigator for the Arkansas State Police, Lieutenant John Dement, Chief of Police Sam Norris, and Monticello Police Officer Eddie Deaton arrived on the scene. Officer Woodward and Lieutenant Dement conducted an investigation of the scene. No fingerprints were found at the scene.
Officer Woodward failed to find any blood from Mr. Burton on the trailer walls and only saw what looked like blood that ran from Mr. Burton’s body and pooled on the carpet. Mr. Burton’s left pants pocket was slightly open, and his wallet without any cash inside was laying next to him. Officer Woodward did find a disfigured lamp near where Mrs. Lawson was lying. The lamp was wrapped with a cloth, and the top of the lamp was detached. The lamp and the cloth both had blood spatters or staining on them as did the wall and other areas near Mrs. Lawson. There also was a jewelry box that appeared to have been tampered with, because some of the drawers were askew. Mrs. Lawson told Officer Woodward that the man who lived next door knew her assailant.
Mrs. Lawson was transported to Drew Memorial Hospital later that morning where Dr. William W. Williams performed a rape-kit examination on her and where police officers asked her questions. Dr. Williams found a thick, black hair in Mrs. Lawson’s vaginal opening.
Lieutenant Michael Hall of the Arkansas State Police and Special Agent Dennis Duran, a criminal investigator supervisor with the Arkansas State Police, arrived at the hospital around 1:00 p.m. that same day to take a statement from Mrs. Lawson. Mrs. Lawson “did not appear to have any problem being precise about what she said. She was very coherent.” He added that she had “all her faculties about her.” Mrs. Lawson described her assailant as a black male, five feet and seven inches tall to six feet tall and of stocky, muscular build, who appeared dark-complected. She had seen him several times at a neighbor’s house before the attack and murder. She did not mention scars or tattoos on the face of her assailant.
Lisa Channell, the chief criminalist with the Arkansas State Crime Lab, testified at trial that on April 4, 2001, she compared the black hair found by Dr. Williams on Mrs. Lawson with a known sample of Mr. Isom’s hair. She stated that she found the black hair to be Negroid and not from Mr. Burton or Mrs. Lawson but microscopically similar to the known pubic hair sample from Mr. Isom. Melissa Myhand of the Arkansas State Crime Lab also analyzed the hair from the rape-kit for DNA. Her testing revealed that Mrs. Lawson and Mr. Burton were excluded as potential contributors to the hair sample. She stated that Mr. Isom had DNA bands not inconsistent with the known sample and that the likelihood of finding another person with the same consistent DNA bands was one in fifty-seven million in the African-American population.
On April 5, 2001, Lieutenant Dement visited with Mrs. Lawson in the hospital to see if she could identify her assailant from a photographic lineup. In creating the photographic lineup, Lieutenant Dement testified that he considered race, dress, and facial hair of the participants. He testified that before the identification, Mrs. Lawson was “coherent.” He stated that she was in her hospital bed, she wiped her eyes with a washcloth, and she wore her eyeglasses. She examined each picture, holding them closely to her face, without saying anything. After first focusing on photographs one and three, she selected photo three, which was Mr. Isom. Lieutenant Dement added that she expressed no uncertainty and was very adamant about her identification.
A criminal information was filed, accusing Mr. Isom of capital murder, aggravated robbery, theft, burglary, attempted capital murder, and rape. A motion to suppress the photographic lineup was filed by Mr. Isom and later denied by the circuit judge. On December 17, 2001, the prosecutor filed an amended criminal information against Mr. Isom, accusing him of capital murder, aggravated robbery, residential burglary, attempted capital murder, and rape.
The jury trial began on December 17, 2001, and lasted four days. Mr. Isom did not testify. Following the trial, the jury returned a verdict, convicting Mr. Isom of the crimes previously mentioned and sentencing him accordingly.
I. Insufficient Evidence
Mr. Isom contends that the State presented insufficient evidence to convict him of capital murder. Due to double jeopardy considerations, we review this issue prior to other issues raised on appeal. See, e.g., Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).
The basis for Mr. Isom’s contention is that the State presented no evidence to show that Mr. Isom committed murder “in the course of and in the furtherance of the felony,” as required in the capital murder and first-degree murder statutes. See Ark. Code Ann. _§§ 5-10-101(a)(l) and -102(a)(1) (Repl. 1997). In addition, he points out that law enforcement investigators searched for over five hours and failed to find any evidence at the crime scene linking him to the crimes committed. Specifically, Mr. Isom asserts that no fingerprints, no hairs, no skin, and nothing under Mrs. Lawson’s fingernails were found connecting him to the crime. He further underscores the fact that there was no testimony shown that he had any injuries on his body, as the police officers suspected the person who committed the crimes would have had. Also Mr. Isom emphasizes that the State’s.medical expert, Melissa Myhand, could not decipher whether one hair that was partially degraded, which was the only evidence found on Mrs. Lawson after Dr. Williams’s examination, belonged to a male or female. Yet Ms. Myhand testified that the likelihood that the hair belonged to someone other than Mr. Isom in the African-American population was one in fifty-seven million.
Mr. Isom also argues that Mrs. Lawson’s identification of him as the attacker was flawed in that she gave conflicting stories to police officers and failed to state that her attacker had a scar on his face or that he had gold teeth, which were two of Mr. Isom’s distinctive features. He adds that the neighbor’s description of him wearing a white tee-shirt conflicted with Mrs. Lawson’s description of her attacker, who she said was wearing a tee-shirt with an orange lightening bolt.
As an initial matter, we agree with the State that Mr. Isom only raised one issue under this point on appeal: whether the murder of Mr. Burton occurred “in the course of and in furtherance of” a predicate felony. See Ark. Code Ann. § 5 — 10—101 (a) (1) (Repl. 1997). All other points relative to his convictions for aggravated robbery, residential burglary, rape, or attempted capital •felony murder that were argued before the circuit judge appear to have been abandoned on appeal. Thus, we need not address them. See, e.g., Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003); Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002).
Our standard of review when considering whether substantial evidence exists is summarized as follows:
When reviewing the sufficiency of the evidence on appeal, this court does not reweigh the evidence but determines instead whether the evidence supporting the verdict is substantial. Substantial evidence is defined as direct or circumstantial evidence that is forceful enough to compel reasonable minds to reach a conclusion one way or another and that goes beyond mere speculation or conjecture. In determining whether there is substantial evidence, this court reviews the evidence in the light most favorable to the State. Only evidence supporting the verdict is considered. We will affirm if there is any substantial evidence to support the verdict.
Hale v. State, 343 Ark. 62, 74, 31 S.W.3d 850, 857, cert. denied, 532 U.S. 1039 (2001) (internal citations omitted).
Circumstantial evidence alone may be sufficient to support a conviction for capital felony murder since the law makes no distinction between circumstantial evidence and direct evidence. See Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 511 U.S. 1026 (1994); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). Recently, this court said in connection with circumstantial evidence in a death case:
Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Such a determination is a question of fact for the fact-finder to determine. The credibility of witnesses is an issue for the jury and not the court. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury.
Howard v. State, 348 Ark. 471, 484, 79 S.W.3d 273, 281, cert. denied, 537 U.S. 1051 (2002) (internal citations omitted).
We turn then to our Criminal Code. The Homicide section reads in part that a person commits capital murder if:
Acting alone ... , he commits or attempts to commit rape, . . . robbery, [or] burglary, . . . and in the course of and in furtherance of the felony, . . . he . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]
Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997).
A person commits rape under our Criminal Code if “he engages in sexual intercourse or deviate sexual activity with another person [b]y forcible compulsion.” Ark. Code Ann. § 5-14-103(a)(l) (Repl. 1997). A person commits aggravated robbery if “he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) Inflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103(a) (Repl. 1997). Section 5-12-102 states that a person commits robbery if “with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (Repl. 1997). Finally, a person commits residential burglary if he “enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(l) (Repl. 1997).
There was an abundance of evidence to support the conviction of Mr. Isom for capital murder. Mrs. Lawson identified him as her attacker in the attempted murder and rapes and as the person who was physically abusing Mr. Burton. She further testified that Mr. Isom demanded and received money and her ring, using the threat of the broken scissors. Fler testimony also is sufficient to support a burglary conviction in that she stated that he pushed his way into Mr. Burton’s trailer home and proceeded to commit rape and aggravated robbery. And, finally, her in-court identification of Mr. Isom, as well as the body hair found in her vagina connecting him to the rape, placed him at the scene where Mr. Burton was murdered. While Mrs. Lawson did not specifically see Mr. Isom stab Mr. Burton with scissors or beat Mr. Burton with a lamp, she saw Mr. Isom with the scissors standing on Mr. Burton’s head and then physically lying on top of him. She also heard his threats. She was then beaten, knocked unconscious, and choked by Mr. Isom. Mr. Burton’s body was discovered the next morning, and his death was caused by multiple sharp and blunt force injuries. We conclude that there was more than sufficient evidence, direct and circumstantial, that Mr. Isom caused the death of Mr. Burton in the course of committing several felonies under circumstances manifesting extreme indifference to the value of human life.
II. Voir Dire
Mr. Isom mounts several arguments contesting the manner in which the voir dire of the venire was conducted.
a. Rehabilitation of the Venire
During the course of voir dire, the circuit judge dismissed several potential jurors for cause, because they stated that they could never vote for the death penalty regardless of what the facts of the particular case might prove to be. This was in response to the circuit judge’s question of whether they could ever consider the death penalty. Mr. Isom first argues that the circuit judge’s denial of his request to rehabilitate the jurors was inconsistent with the due process clause of the Fourteenth Amendment. He contends that by denying him an opportunity to conduct in-depth questioning of prospective jurors, the defense was prohibited from producing different answers from prospective jurors than those originally stated. He particularly took issue with the circuit judge’s observation at one point that additional voir dire by the defense would be a “waste of time.”
The State responds that whether the circuit judge abused his discretion is the standard of review upon appeal and that there was no abuse of discretion by the circuit judge in conducting the voir dire. The State also objects to Mr. Isom’s aggregating his claims regarding voir dire without making a cumulative-error objection. The State further maintains that Mr. Isom failed to demonstrate how he was prejudiced by the circuit judge’s voir dire, because the judge followed the narrow excusal-for-cause standard set out by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968), rather than the broad standard established in Wainwright v. Witt, 469 U.S. 412 (1985).
The extent and scope of voir dire examination is within the sound discretion of the circuit judge, and the latitude of that discretion is wide. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). The judge’s restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Id. Abuse of discretion occurs when the circuit judge acts arbitrarily or groundlessly. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).
Arkansas Rules of Criminal Procedure provide the procedure for the conduct of proper voir dire in a criminal trial:
(a) Voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges. The judge shall initiate the voir dire examination by:
(i) identifying the parties; and
(ii) identifying the respective counsel; and
(iii) revealing the names of those witnesses whose names have been made known to the court by the parties; and
(iv) briefly outlining the nature of the case.
(b) The judge shall then put to the prospective jurors any question which he thinks necessary touching their qualifications to serve as jurors in the cause on trial. The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.
Ark. R. Crim. P. 32.2(a) and (b) (emphasis added). The fact that the Rules allow the circuit judge to permit such additional questioning as he or she deems proper underscores the discretion vested in the circuit judge.
This court has said that the proper test to be used in releasing a prospective juror for cause is whether the person’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with his or her instructions and oath. See, e.g., Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). Because Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors. Id. The circuit judge in Williams v. State, supra, correctly decided that jurors who could not consider imposing a death sentence were properly excused for cause, because they could not perform their duties. We have further said that the purpose of voir dire examination is to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges, not to attempt to commit the jurors to a decision in advance. See Nutt v. State, 312 Ark. 247, 848 S.W.2d 427 (1993).
In 1968, the United States Supreme Court reversed a petitioner’s death sentence in Witherspoon v. Illinois, 391 U.S. 510 (1968). The Court said:
[A] State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.
Witherspoon v. Illinois, 391 U.S. at 521-22. However, the Court added that if the State “had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply ‘neutral’ with respect to penalty.” Id. Failure of a prospective juror even to consider a verdict of death is what this court believes to be the permissible standard for excusal for cause under Witherspoon.
In 1985, the United States Supreme Court decided a second jury-selection case involving capital punishment. See Wainwright v. Witt, 469 U.S. 412 (1985). In Wainwright, the Court clarified its decision in Witherspoon v. Illinois, supra, regarding the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. The Court said that the standard is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright, 469 U.S. at 424 (internal quotations omitted).
We conclude that the circuit judge did not abuse his discretion in refusing to allow Mr. Isom’s counsel to attempt to rehabilitate prospective jurors by additional voir dire questions. Under Rule 32.2(b), the judge can allow questions from counsel as the judge deems reasonable and proper. Accordingly, it lies within the sound discretion of the circuit judge to disallow additional questioning as unreasonable or improper under the circumstances. The circuit judge had already posited the general question of whether the prospective jurors could consider the death penalty under any circumstances. A negative answer resulted in excusal for cause at times. At times, the judge clearly did not believe that additional questions would be productive or beneficial. In light of this, it was not an abuse of the circuit judge’s discretion to disallow further questions by defense counsel.
b. Death Penalty Verdict Form
Mr. Isom assigns additional error to the fact that the circuit judge allowed the prosecutor to ask prospective jurors whether they could commit to signing a death penalty verdict form rather than simply asking whether they could never under any set of facts consider the death penalty, which was the standard established in Witherspoon v. Illinois, supra. He argues further that it was error for the circuit judge to dismiss these individuals for cause when they answered that they could not sign such a verdict form. Finally, Mr. Isom argues that the judge erred in allowing the prosecutor repeatedly to ask potential jurors how they would vote if certain facts were proven at trial, which he maintains was prohibited questioning under Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).
The State responds that not only did defense counsel not object to the prosecutor’s asking potential jurors whether they could sign a death-verdict form, but defense counsel asked the same question to members of the venire. The State urges that this court will not consider an issue where the activity in contention was not objected to at trial. Moreover, the State contends that the prosecutor was justified in asking the question, because Arkansas law requires that all twelve jurors must sign the verdict form to impose a death sentence. See Ark. Code Ann. § 5-4-603(a) (Repl. 1997); Greene v. State, 343 Ark. 526, 37 S.W.3d 579, cert. denied, 534 U.S. 858 (2001).
We agree with the State that defense counsel failed to object to the prosecutor’s questioning about signing the death-verdict form. Thus, the issue is not preserved for our review unless it falls within the Wicks exception regarding a “trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself.” Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980). We conclude that this issue does not fall within that exception. Trial counsel, the judge, and the prospective jurors were all well aware that the issue was whether those persons could sign the death-verdict form. Hence, the matter is not preserved for our review. See, e.g., Howard v. State, supra.
c. Juror Schenk
Mr. Isom next posits that venireman James Schenk was excused for cause, “yet he never stated that he could not sign the verdict form.” The relevant colloquy follows:
Mr. Schenk: I could vote for it, but it comes up to the hang up, though, of signing your name. That’s —
Defense Counsel: Okay. What’s the problem with that?
Mr. Schenk: To me it, I guess, it’s my upbringing and everything. Now, I’m not against the death penalty and he may need it. I don’t know. I hadn’t heard the case yet. But to me it’s kind of just putting my seal that I approve of death. I don’t have control over death. God has that. And I don’t want to interfere with Him.
Defense Counsel: Okay.
Mr. Schenk: But, now, if it gets right down to it, I, you know, it could possibly go either way. But I’m not going to stand here and tell you I can sign, sign it and then get in the courtroom and can’t or get into a place where I can’t. So it’s a question.
Defense Counsel: Sure. It’s not something that we think about very often that, what we would do if we’re in that situation. But after you determined that he was guilty beyond a reasonable doubt of capital murder, and you determined that there is ample justification for imposing the death penalty, and the eleven other jurors plus you all agree, could you not then sign it?
Mr. Schenk: Possibly I could. I won’t guarantee that.
Defense Counsel: You know, it’s an extremely difficult job that you’re asked to do, and I don’t minimize it at all. But it seems to me if you can vote to impose it, signing your name if you believe that it’s appropriate, I don’t see where there’s that big a problem. But I want you to explain it to me other than when you think it seals their fate?
Mr. Schenk: It’s just kind of a seal to me when you, when you sign your signature, you’re just kind of a seal. And I, you know, it’s what the state law says. But when I have to sign my name to what the state law says, it is —Well, it’s confusing me and I probably can’t answer it.
Defense Counsel: You can’t say one way or the other then?
Mr. Schenk: No, I can’t.
Defense Counsel: So while you might lean toward not being able to sign, under certain circumstances you might be able to sign?
Mr. Schenk: You can leave it at that.
Defense counsel argued that Mr. Schenk wavered on his ability to sign the verdict form and should not be excused for cause. The circuit judge then said: “If someone says they do not know whether they could, it infers the possibility that they can’t, so I’m going to grant that on cause on Mr. Schenk.”
Again, this court’s focus must be on whether the circuit judge abused his discretion in excusing Mr. Schenk for cause. We conclude that the judge did not. This is not a case where Mr. Schenk was merely expressing “conscientious or religious scruples against capital punishment.” See Witherspoon v. Illinois, supra. Nor did Mr. Schenk typify a jury “organized to return a verdict of death.” See Morgan v. Illinois, 504 U.S. 719 (1992). Here, Mr. Schenk expressed reservations three times that signing a death-verdict form was akin to placing his seal on death. In response to defense counsel’s questions, he said “possibly” he could, but he would not guarantee it. There was a substantial question here as to whether Mr. Schenk’s views would impair his performance as a juror. Wainmight v. Witt, supra; Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011 (1990). There was not abuse of discretion by the circuit judge.
d. Batson Challenge
Mr. Isom next contends that the State improperly excluded venire persons on the basis of race and that the circuit judge erred by not conducting a reasonable and sensitive inquiry into the race-neutral reasons advanced by the prosecutor. Specifically, he points to the fact that he is African-American and the two victims were white. He then emphasizes that eleven African-Americans were excused for cause as being unable to consider death as a penalty. Two additional African-Americans were struck by the State as peremptory challenges. Mr. Isom urges once more that the State improperly crossed the line of neutrality by eliminating from the jury all who opposed the death penalty in principle, which violates Witherspoon v. Illinois, supra. He further argues that the circuit judge errantly failed to question the prosecutor’s initial encouragement to defense counsel to challenge a venire person, Dock Nelson, for cause, when later the prosecutor used a peremptory strike to remove that same juror. He adds that the composition of the jury violated the fair cross-section-of-the-community requirement of the Sixth Amendment to the United States Constitution, as well as the Eighth Amendment to the United States Constitution. In short, he contends that his jury was fundamentally defective.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court reversed and remanded an all-white jury’s conviction of an African-American defendant for second-degree burglary and receipt of stolen goods. The Court held: “If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed.” Batson, 476 U.S. at 100.
In MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), this court established three steps to be used outside the hearing of the venire when the opponent of a peremptory challenge makes a prima facie case of discrimination, with the burden of persuasion always resting on the opponent of the challenge. First, the opponent of the challenge must present facts to raise an inference of purposeful discrimination by showing (1) that the challenge’s opponent is a member of an identifiable racial group, (2) that the challenge is part of a jury-selection process or pattern designed to discriminate, and (3) that the challenge was used to exclude jurors because of their race. If the circuit judge determines that the opponent failed to present a prima facie case, the inquiry ends here. However, if the judge determines that a prima facie case exists, the inquiry continues to the second step.
The second step places the burden of producing a racially neutral explanation for the challenge on the proponent of the challenge. The proponent must offer “more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge.” MacKintrush, 334 Ark. at 398, 978 S.W.2d at 296. However, the reason given need not be persuasive or even plausible. See Purkett v. Elem, 514 U.S. 765 (1995) (per curiam). The reason will be deemed race neutral unless a discriminatory intent is inherent in the proponent’s explanation.
The third step involves the circuit judge’s decision on purposeful discrimination. The opponent to the challenge must persuade the circuit judge that the expressed motive of the striking party is not genuine but is the product of discriminatory intent. The circuit judge then must weigh and assess what has been presented in light of all the circumstances, including an assessment of credibility and whether the proponent’s explanation was pretextual.
Though we have some question as to whether Mr. Isom made a prima facie case of racial discrimination, we are convinced that the prosecutor offered race-neutral explanations for his two peremptory challenges. With respect to Dock Nelson, Mr. Nelson volunteered during voir dire that he had been taught “not to take another life.” That answer, in this court’s judgment, is a sufficient race-neutral reason for the challenge. Prospective juror Milton Jackson was struck by the State, and defense counsel objected. The prosecutor replied that Mr. Jackson had been sleeping during voir dire, had not shown up on time to the courthouse, and was known to be “strange.” Again, the prosecutor’s response qualifies as a race-neutral reason. There was no abuse of discretion by the circuit judge'in denying the Batson challenge.
e. Arbitrary and Capricious Strikes
Mr. Isom next claims that the circuit judge conducted voir dire arbitrarily and capriciously in violation of Arkansas Rule of Criminal Procedure 32.2 (1) by striking venire persons for cause who knew Mr. Isom and who expressed hesitancy or concerns about the death penalty, and (2) by not striking those prospective jurors who knew the Lawson family and who were prone to vote for the death penalty. At specific issue is the circuit judge’s handling of prospective juror Billie Handley and prospective juror Sanders Bealer. In the case of Ms. Handley, the judge inquired how she would lean and she answered: “Honestly, I think I’d lean towards Ms. Lawson.” The judge then asked whether she could set aside what she read in the newspapers, and she answered that she believed she could and that she would be fair. No request was made by defense counsel to remove her for cause.
Mr. Bealer, on the other hand, leaned toward Mr. Isom because he’d been associated with Mr. Isom for years. When asked by the judge whether he could be fair, he said: “I think I would probably lean his way.” The judge then excused him for cause. Defense counsel attempted to rehabilitate Mr. Bealer about whether he could fairly evaluate the evidence, but he said that his mind was “basically already set” and that even in the face of evidence he would still be thinking “another way.” The judge repeated his excusal for cause, and again, the defense counsel failed to object.
This issue is disposed of due to the defense counsel’s failure to object. Moreover, we fail to see how this scenario with Ms. Handley and Mr. Bealer qualifies under any Wicks exception to our contemporaneous-objection rule. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Certainly, it is not “a matter essential to [the jury’s] consideration of the death penalty.” Wicks, 270 Ark. at 785, 606 S.W.2d at 369. The issue is not preserved for our review. See Howard v. State, supra.
f. Family Wishes
Mr. Isom next maintains that the jury was tainted when the prosecutor was allowed to imply during voir dire what sentence the victims’ families wanted. The precise statement by the prosecutor was: “I need to know now if there’s anybody who’d have any reservations about [signing a death penalty verdict and individually stating aloud if that is your verdict], because I, the State and the people involved with the State in this case, feel very strongly that that is the appropriate sentence in this case.” Mr. Isom’s counsel promptly objected and stated that what the victim wanted was inadmissible. The circuit judge ruled that what the prosecutor said was “argument and we don’t need to get into that, stating a personal belief.” The judge then permitted questions to the jury about whether they could personally vote for the death penalty.
Mr. Isom presents no authority in support of this issue and merely concludes that the jury was tainted. When a party does not cite authority or provide convincing argument, this court will not consider the merits of the arguments. See, e.g., McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). Neither was done in this case, and this court will not do the research for Mr. Isom. There was no abuse of discretion by the circuit judge regarding this issue.
III. Photographic Lineup
Mr. Isom argues that the circuit judge erred in denying his motion to suppress the photographic lineup, because the other men in the photographs did not properly resemble him. Thus, the lineup was not reliable. According to Mr. Isom, the other men in the photographic display had facial hair and either had long hair or very short hair. Mr. Isom contends that he did not have facial hair and had medium-length hair. He also urges that the photographic lineup should have been suppressed, because Mrs. Lawson hadjust experienced a very traumatic act and had given a very general description of her assailant (black male, from five feet and seven inches tall to six feet tall) and had failed to include Mr. Isom’s gold teeth and facial scar. Plus, Mrs. Lawson did not recognize her eye doctor, whom she regularly visited, when she was in the hospital. He adds that Mrs. Lawson was initially uncertain of her choice, because she first focused on pictures one and three.
Although we question Mr. Isom’s premise that the lineup was unduly suggestive, we decide this issue on a procedural point. As the State points out, Mr. Isom failed to object to Mrs. Lawson’s in-court identification of Mr. Isom and, thus, failed to preserve this point for appeal. See, e.g., Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998); Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). We said in Kimble that this failure to object to an in-court identification has the effect of waiving any issue relating to an allegedly defective photographic lineup. Mr. Isom’s argument has no merit.
IV Closing Argument
Mr. Isom raises several claims of prejudicial error in connection with the prosecutor’s closing argument. We discuss those claims seriatim.
Mr. Isom first contends that in the prosecutor’s rebuttal closing argument during the sentencing phase, he impermissibly lessened the jury’s sense of responsibility for assessing the death penalty with two comments. First, the prosecutor argued:
The Defendant, by his actions, sealed his fate. Not by what you do. You’re just determining what he did. That’s your job. That’s what we talked to you about from the very beginning.
Later on, he argued: “Bill Burton, he had only one judge, one jury, and one executioner. There is no appeal for Mr. Burton.” Defense counsel objected to neither comment. Now, on appeal, Mr. Isom contends that prejudice resulted by lessening the jury’s responsibility, just as it did in Caldwell v. Mississippi, 472 U.S. 320 (1985).
We first consider whether the circuit judge had a duty to intervene and admonish the jury or declare a mistrial in light of these comments, even though defense counsel failed to object. See Wicks v. State, supra. In other words, does the contention that the prosecutor sought to lessen the jury’s responsibility in sentencing Mr. Isom to death rise to the level of a Wicks exception even without an objection by defense counsel. There are two Wicks exceptions that are pertinent. First, there is the Wicks exception already alluded to in this opinion, where the circuit judge fails to bring to the jury’s attention a matter essential to its consideration of the death penalty. Secondly, there is the Wicks exception for when a circuit judge fails in his duty to intervene and correct a serious error in the prosecutor’s closing argument either by admonition to the jury or by declaration of a mistrial. We conclude that when a prosecutor seeks to lessen the jury’s responsibility for rendering a verdict of death, this qualifies as a situation for when the circuit judge should intervene. Accordingly, we will address the issue of whether the prosecutor’s argument violated the Eighth Amendment and Caldwell v. Mississippi, supra.
In Caldwell v. Mississippi, supra, the United States Supreme Court vacated the petitioner’s death sentence for his murder conviction, because the jury in that case was led to believe that its responsibility for determining the petitioner’s fate lay elsewhere. During closing argument, the prosecutor had told the jury that its decision on death was not the final decision but was “reviewable.” After defense counsel objected to this argument, the trial judge ruled that the prosecutor was correct. The Supreme Court held that because it could not determine that the effort of the State to minimize the jury’s sense of responsibility for determining the appropriateness of death “had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.” Caldwell v. Mississippi, 472 U.S. at 341. The sentence was reversed, and this case was remanded for further proceedings.
In Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), the appellant argued to this court that the circuit judge should have intervened and stopped the prosecutor from arguing that the victim’s last sight before death was that of her strangled seven-month-old child dangling from an extension cord. The appellant invoked Wicks v. State, supra, in support of its argument. This court considered the question of prejudice to the appellant, even though there had been no objection by defense counsel, and we cited Wicks. We held, however, that the prosecutor’s argument did not rise to the level of seriousness where an admonition to the jury or mistrial was required. The same holds true in the instant case. In looking at the comments of the State, the comments of the judge, and the comments of the defense, we conclude that the prosecutor’s comments were not so flagrant as to require the judge to intervene sua sponte. That Mr. Isom sealed his fate by his own actions and that the jury must now do its duty does not appear to this court to be an impermissible shifting of the jury’s responsibility for fixing the penalty. Nor does the prosecutor’s argument that Mr. Burton had no right to appeal. Accordingly, though we choose to address the Caldwell issue even when no objection was made by defense counsel, we conclude that Mr. Isom’s Eighth Amendment rights were not violated.
The next argument of the prosecutor contested by Mr. Isom dealt with an escape and murder by a convicted murderer that was unconnected in any way to the instant case. The prosecutor’s argument was this: “Heard [defense counsel] say that he’ll never be a threat to you, never be a threat to [Mrs.] Lawson. Well, I think you remember a little over a year ago, the family of Cecil Boren wouldn’t look at it that way.” Cecil Boren had been the murder victim of a prisoner who had been convicted of a previous murder and who had escaped. Defense counsel immediately objected to this argument, and the circuit judge admonished the jury as follows:
This is argument, ladies and gentlemen. There’s been no evidence presented about either the cases Mr. Colvin [defense counsel] mentioned or this one that Mr. Cason [prosecutor] mentioned. So they really don’t have anything to do with this case. This case should be decided on its own facts.
The prosecutor’s reference to an unrelated case where an escaped convict murdered Cecil Boren was undoubtedly improper, and we do not in any wise condone such arguments. Nevertheless, it is apparent to this court that it was defense counsel who first went outside the record and referred to unrelated cases, including the Charles Manson case, the mother who drowned her two children in a car, and finally the two women who were slain at a Pizza Hut in Arkansas. In all these cases, the killers received a sentence of life without parole. That argument by defense counsel also was improper. However, it is the circuit judge’s immediate admonishment to the jury to disregard defense counsel’s and the prosecutor’s remarks that tempers the prosecutor’s reference to the Cecil Boren murder. Moreover, defense counsel made no request for a mistrial. And, finally, the jury had earlier been instructed that arguments of counsel with no basis in the evidence should be discarded. Any taint resulting from these arguments was substantially diminished by the circuit judge’s instruction and admonishment. We hold that Mr. Isom was not denied a fair trial because of the Cecil Boren comment.
V. Lesser-included Offense of Robbery
Mr. Isom contends that by failing to instruct the jury on the lesser-included offense of robbery and by instructing on theft for purposes of first-degree murder, the jury was limited in its consideration to the offense of capital murder, to the exclusion of first-degree murder. He contends that this was so because there was insufficient proof of theft to support the first-degree murder instruction, while there was sufficient proof of robbery. Mr. Isom, however, failed to preserve this point for appeal. Specifically, he failed to object to the first-degree murder instruction that included theft as the predicate felony. In short, he never mentioned robbery as a predicate felony for first-degree murder before the circuit judge. Rather, he raises it before this court for the first time on appeal. This he cannot do. See Willet v. State, 322 Ark. 613, 911 S.W.2d 937 (1995).
Mr. Isom further contends that the circuit judge erred in not instructing the jury on ordinary robbery as a lesser-included offense of aggravated robbery. Generally, this court will affirm a circuit judge’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. See, e.g., McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002); Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001).
A person commits § 5-12-103 aggravated robbery if “he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) Inflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103 (Repl. 1997). Section 5-12-102 of our Criminal Code defines what constitutes robbery and states that a person commits robbery if “with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102 (Repl. 1997). Thus, ordinary robbery involves the employment of physical force, while aggravated robbery entails being armed with a deadly weapon or the infliction of death or serious physical injury on another.
Ordinary robbery is generally a lesser-included offense of aggravated robbery, and more often than not a robbery instruction is required when the charge is aggravated robbery. See Brown, 347 Ark. 44, 60 S.W.3d 422. However, when the evidence is so conclusive as to show that only aggravated robbery was committed, the judge need not instruct the jury on mere robbery. Id. In the case at hand, we conclude that there was no rational basis for the circuit judge to instruct the jury on ordinary robbery. Mr. Isom pushed into Mr. Burton’s trailer home, demanded money, and pulled out a pair of broken scissors to enforce his demand. He later murdered Mr. Burton and inflicted serious physical harm on Mrs. Lawson. These facts support the circuit judge’s decision. There was no reversible error regarding this issue.
VI. Aggravator for Avoiding or Preventing an Arrest
Mr. Isom claims that the circuit judge violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by allowing the submission of the aggravator that the capital felony murder was committed to avoid or prevent an arrest, because it failed to narrow the class of persons subject to the death penalty. According to Mr. Isom, the only way a defendant could rebut this aggravator would be to take the stand, admit to the killing, and say it had nothing to do with a desire to avoid arrest. He also invites this court to revisit its holding in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), because under that holding, the prosecution could always argue that the murder was committed to limit or eliminate eyewitness testimony.
Our Criminal Code limits the use of aggravating circumstances to ten, including: “The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.” Ark. Code Ann. § 5-4-604(5) (Repl. 1997). This court has held that this subsection is not unconstitutionally vague or overbroad and, further, that it does not fail to narrow and channel the jury’s discretion in deciding the propriety of punishment. See, e.g., Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996); Coulter v. State, supra; Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992), aff'd, 8 F.3d 614 (8th Cir. 1993). In Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983), this court expressly found that the aggravating circumstance in question was properly submitted to the jury and was not vague and overbroad where, under the facts of that case, the jury was justified in finding that the defendant shot the victim to increase his chances of avoiding arrest.
We decline Mr. Isom’s invitation to revisit Coulter v. State, supra. We have recognized that a consequence of every murder is the elimination of the victim as a potential witness. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982 (1996). However, we have added that avoiding arrest is not necessarily an invariable motive for killing. Id. Manifestly, there are multiple motives for murder. The jury in the instant case could readily have found that Mr. Isom sought to kill both Mr. Burton and Mrs. Lawson to eliminate them as witnesses and, thus, prevent his arrest. Whether the same holds true to other murder cases is irrelevant to this appeal and beyond the scope of our review. In addition, we disagree that this aggravator does not narrow the class of persons subject to the death penalty. The jury concluded that the aggravator applied, and the effect of that finding is to limit the class ofpeople for which the death penalty may be appropriate. We affirm the circuit judge on this point.
VIL Capital Murder Statute is Unconstitutional
For his last point, Mr. Isom claims that the capital murder statute is unconstitutional on its face and as applied, because there is no guidance provided in Ark. Code Ann. §§ 5-10-101 (capital murder) and -102 (first-degree murder) as to which statute applies in a homicide case. Accordingly, he maintains that the capital murder statute is void for vagueness and overlaps with the first-degree murder statute. Moreover, he argues that the statute wrongly places the decision of which charge to pursue in the hands of the prosecutor, which necessarily leads to inconsistent charges and convictions in different judicial districts based on the same facts. Thus, he maintains disparate treatment of defendants results, all of which is in violation of the Equal Protection Clause of the United States Constitution.
This argument was not made to the circuit judge and as a result does not qualify for this court’s review. Nor does it qualify, in our judgment, under the Wicks exception as a matter integral to the jury’s assessment of the death penalty. Furthermore, this issue has been raised and dismissed by this court numerous times. See, e.g., Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997); Jones v. State, 328 Ark. 307, 942 S.W.2d 851 (1997).
The record in this case has been reviewed for reversible error as required by Supreme Court Rule 4-3(h), Arkansas Code Annotated § 16-91-113(a) (1987), and Arkansas Rules of Appellate Procedure — Criminal Rule 10, and none has been found.
Affirmed.
Corbin, J., not participating.
Special Justice Kevin Crass joins.
Mr. Isom was charged and convicted of murder perpetrated while in the commission of a felony (Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997)), as opposed to deliberate and premeditated murder (Ark. Code Ann. § 5-10-101(a)(3)-(5) (Repl. 1997)).
We note on this point that the circuit judge did allow additional questioning of some potential jurors by defense counsel.
This court cannot discern from the record or arguments of counsel whether an African-American venire person actually sat on Mr. Isom’s jury. | [
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Donald L. Corbin, Justice.
Appellants Tyson Foods, Inc., and The Pork Group, Inc., which is a wholly-owned subsidiary of Tyson, appeal the order of the Pope County Circuit Court finding that an arbitration agreement in contracts they executed with Appellees, who are hog farmers, lacks mutuality of obligation and, thus, is unenforceable. This case was certified to this court as involving an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5). We find no error and affirm.
During a period from 1988 through 1991, Appellants actively recruited potential hog farmers. Appellees, the majority of whom are Arkansas farmers, entered into contracts, agreeing to raise live hogs for the exclusive benefit of Appellants. Pursuant to these “swine” contracts, Appellants provided swine, feed, medication, and other services to the Appellee farmers. In exchange, Appellees agreed to properly house and nourish the swine until such time that they were ready to be shipped to “finishing” plants, which were located outside the State. Appellants, however, retained title to the swine at all times.
Due to a decrease in profitability in the pork market in this area, Appellants decided to cease their operations and, thus, cancel their contracts with Appellees. Appellees were informed of this decision on or about August 18, 2002. As a result, Appellees filed suit in circuit court for fraud, deceit, and promissory estoppel on September 12, 2002. They sought both compensatory and punitive damages, alleging that they incurred substantial debt to build commercial hog farms that had now been rendered useless for any other purpose. According to their complaint, Appellees claimed that they were induced into incurring this debt by Appellants’ false misrepresentations that they were “in the hog growing business to stay” and “in it for the long term.”
On October 11, 2002, Appellants filed a motion to stay litigation and to compel arbitration. Therein, Appellants alleged that each Appellee operated a facility pursuant to a “swine” contract and that these contracts contained mandatory arbitration clauses. Appellants further alleged that the claims asserted by Appellees arose out of and were related to the “swine” contracts and, therefore, were subject to arbitration.
A hearing on Appellants’ motion was held on January 23, 2003. No witnesses testified at this hearing, but each side presented arguments regarding whether the arbitration agreement was enforceable. The trial court issued a written order, denying Appellants’ motion on February 21, 2003. As an initial matter, the trial court stated that the issue of whether the agreement was enforceable was to be decided under Arkansas contract law. In support of this finding, the trial court relied on this court’s decisions in The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002), and Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). The court then went on to find that the arbitration agreement was not enforceable, because it lacked mutuality of obligation, one of the elements required to establish a binding contract. From'that order, comes the instant appeal.
Pursuant to Ark. R. App. P. — Civ. 2(a)(12), an order denying a motion to compel arbitration is an immediately appeal-able order. See also E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001). This court reviews a trial court’s order denying a motion to compel arbitration de novo on the record. Barnes, 349 Ark. 411, 78 S.W.3d 714.
The sole issue presented in this appeal is whether the arbitration agreement found in the “swine” contracts is a valid and enforceable arbitration agreement. Appellants argue that the trial court erred in ruling that it was not enforceable because it lacked mutuality. According to Appellants, the arbitration agreement is mutual, as both parties are required to submit to arbitration. Appellees counter that the trial court correctly determined that there was a lack of mutuality, because in a preceding paragraph of the “swine” contracts, Appellants, in the event of Appellees’ default, retain the right to “pursue any other remedies at law or equity.” We agree with Appellees that there is a lack of mutual obligation in the arbitration agreement, thus, rendering it unenforceable.
This court has held that arbitration is simply a matter of contract between the parties. Showmethemoney, 342 Ark. 112, 27 S.W.3d 361. Stated differently, the question of whether a dispute should be submitted to arbitration is a matter of contract construction. Id. (citing International Union, United Auto., Aerospace, & Agri. Implement Workers of Am. v. General Elec. Co., 714 F.2d 830 (8th Cir. 1983)). In Harris, 347 Ark. 132, 60 S.W.3d 436, this court explained:
The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. 5 Am. Jur. 2d § 14; and see Prepakt Concrete Co. v. Whitehurst Bros., 261 Ark. 814, 552 S.W.2d 212 (1977). It is generally held that arbitration agreements will not be construed within the strict letter of the agreement but will include subjects within the spirit of the agreement. Doubts and ambiguities of coverage should be resolved in favor of arbitration. 5 Am. Jur. 2d § 14; Uniform Laws Annotated, Vol. 7, Uniform Arbitration Act, § 1, Note 53 (and cases cited therein).
Id. at 138, 60 S.W.3d at 440 (quoting May Constr. Co. v. Benton Sch. Dist. No. 8, 320 Ark. 147, 149, 895 S.W.2d 521, 523 (1995) (quoting Wessell Bros. Foundation Drilling Co. v. Crossett Pub. Sch. Dist. No. 52, 287 Ark. 415, 418, 701 S.W.2d 99, 101 (1985))). This court further stated in Harris, 347 Ark. 132, 60 S.W.3d 436, that the construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. See also Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001).
Thus, we must apply our rules of contract construction to determine whether the language of the present arbitration agreement constitutes a valid contract to arbitrate. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Barnes, 349 Ark. 411, 78 S.W.3d 714; Showmethemoney, 342 Ark. 112, 27 S.W.3d 361; Foundation Telecom., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). The only element at issue in the present case is that of mutual obligations. This court has recognized that mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. Barnes, 349 Ark. 411, 78 S.W.3d 714; Showmethemoney, 342 Ark. 112, 27 S.W.3d 361. A contract, therefore, that leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Id.; see also Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1962).
Before discussing the issue of mutuality as it applies to this case, we must note that our determination of whether an arbitration agreement is enforceable is a threshold issue to be determined under Arkansas law. See Barnes, 349 Ark. 411, 78 S.W.3d 714; Showmethemoney, 342 Ark. 112, 27 S.W.3d 361. Appellants’ contention that this case is governed by the Federal Arbitration Act is nothing more than a red herring. The applicability of the FAA only becomes an issue if this court determines that the arbitration agreement is valid and enforceable. In other words, this court is not restricted by the confines of the FAA in determining the validity of the arbitration agreement. With that said, we now turn to the issue of whether the arbitration agreement lacks the essential contract element of mutuality of obligation.
A review of the “swine” contracts reveals that there is indeed a lack of mutuality, as Appellees agreed to forgo their rights to pursue judicial actions, while Appellants retained their ability to pursue an action through the judicial process. The contracts provided in relevant part:
16. Arbitration. Any dispute or controversy between the parties hereto arising out of or relating to this Contract, including without limitation, a dispute or controversy relating to the construction of any provision or the validity or enforceability of any term or condition (including this paragraph) or of the entire Contract, or any claim that all or any part of this Contract (including this provision) is void or voidable, shall be submitted to arbitration in accordance with the Commercial Rules of Arbitration of the American Arbitration Association then in effect at an office of the American Arbitration Association. In any such arbitration proceeding, each party shall pay for its own costs and expenses of the arbitration, including its attorneys’ fees. The decision of the arbitrators shah be final and binding upon the parties and may be enforced in any court of competent jurisdiction.
Prior to this arbitration clause, however, is a provision detailing Appellants’ remedies in the event that a producer defaults on the contract. It states:
11. Remedies of Company on Default of Producer. Upon default of breach of any of the Producer’s obligations under this Contract the Company may immediately cancel this Contract by giving notice in writing, and the Company may, without further notice, delay or legal process, take possession of swine, feed or other property owned by the Company. The Company shall have the right to utilize, the Producer’s swine facilities until the swine reaches marketable weight. The Company may also pursue any other remedies at law or equity.
We are unpersuaded by Appellants’ argument that the trial court erroneously construed the default provision contained in paragraph eleven. Appellants argued that the provision simply reserved to them the right to pursue any remedies at law or equity, within the confines of arbitration. Appellants continue this argument on appeal and, thus, ask this court to read language into paragraph eleven that is simply not there. This court, however, will not read into a contract any such qualifying language. See Phi Kappa Tau Housing Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002). Appellants further argue that the phrase “any other remedies at law or equity” was simply included so that any action they took in protecting their property would not be deemed a waiver of their other rights in the event of a default. This argument is likewise unavailing, as paragraph twelve specifically protects Appellants from any waiver of default.
We also disagree with Appellants’ contention that the trial court erred in interpreting the contract, because it failed to harmonize paragraphs eleven and sixteen. According to Appellant, the rules of contract construction require that these paragraphs be construed in a manner that gives effect to all of its provisions. This court has recognized that different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). A construction that neutralizes any provision of a contract should never be adopted, if the contract can be construed to give effect to all provisions. Id. (citing Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611 (1929)). The problem in this case is that paragraphs eleven and sixteen simply cannot be harmonized. It is inconsistent to construe paragraph sixteen to mean that both parties are required to arbitrate any claim that may arise, when, in paragraph eleven, Appellants retain their right to pursue judicial remedies.
A similar situation occurred in Cash In A Flash Check Advance of Ark., LLC v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002), a case relied upon by the trial court in concluding that the present agreement lacked mutuality. In that case, the appellee was a consumer who obtained a cash advance from the appellant, a payday lender. As part of the transaction, the appellee signed a repayment agreement that contained an arbitration provision. That provision required the parties to the agreement to submit any controversy to arbitration. In a separate paragraph titled “Consequences of Default” the appellants, however, retained the right to pursue judicial remedies upon default of the appellee. This court concluded that the agreement contained inconsistent language with respect to the “Arbitration” provision and the “Consequences of Default” provision. According to this court, this inconsistent language resulted in a lack of mutuality, as the appellees were required to submit to arbitration, while the appellants could pursue judicial remedies.
We agree with the trial court’s application of Spencer and its predecessors in the present situation. Appellants’ claim that these cases are inapplicable because they represent a special breed of cases is of no merit. While it may be true that this court’s review of arbitration agreements has heretofore been focused on a particular set of cases, it does not follow that the black-letter law enunciated in those cases does not apply to other situations where we are called on to determine the enforceability of arbitration agreements.
Moreover, Appellants’ argument on this point ignores the fact that the trial court also relied in part on a decision by the Arkansas Court of Appeals in Hawks Enters., Inc. v. Andrews, 75 Ark. App. 372, 57 S.W.3d 778 (2001). In that case, which did not involve a payday lending scheme, the appellants contracted to sell the appellees a mobile home. The appellees signed both a sales contract and an installment contract. The installment contract contained an arbitration clause requiring the appellees to settle any “disputes, claims, or controversies arising from the contract or the relationships which result from this contract” by arbitration. Id. at 374, 57 S.W.3d at 779. The appellees subsequently filed suit against the appellants in circuit court for misrepresentation, negligence, and breach of contract. The appellants filed a motion to dismiss, or alternatively, to stay judicial proceedings and compel arbitration, citing the mandatory arbitration provision in the installment contract. The trial court denied the motions, and the court of appeals affirmed. Noting that it could affirm a lower court’s decision for any reason, the court of appeals held that the arbitration clause lacked mutuality. The court of appeals based this decision on the fact that the appellees were forced to arbitrate their claims, while the appellants retained the right to use judicial or nonjudicial relief to enforce its rights under the contract.
Finally, Appellants argue that the trial court’s ruling regarding the lack of mutuality is inconsistent with the majority of case law holding that mutuality of obligation is not required in an arbitration clause, as long as the contract is otherwise supported by adequate consideration. Appellant then cites a string of cases purporting to stand for the proposition that mutual promises are not required to enforce a contract. Appellants raise such an argument for the first time on appeal. It is well settled that this court will not consider arguments raised for the first time on appeal. Fields v. Marvell Sch. Dist., 352 Ark. 483, 102 S.W.3d 502 (2003); Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002).
Even if this issue were properly raised, we disagree with Appellants that the trial court committed any error in this regard. The trial court properly applied Arkansas contract law, which requires mutuality to enforce a contract. While Appellants are correct that no Arkansas case has required identical promises, it is clear from our cases discussing mutuality that one party cannot limit another party to the exclusive remedy of arbitration, while retaining the ability to pursue other judicial remedies for them selves. We have repeatedly stated that there is no mutuality where one party uses an arbitration agreement to shield itself from litigation, while at the same time reserving its own ability to pursue relief through the court system. Harris, 347 Ark. 132, 60 S.W.3d 436; Showmethemoney, 342 Ark. 112, 27 S.W.3d 361.
In sum, Arkansas precedent on mutuality requires that the terms of the agreement must fix a real liability upon both parties. Showmethemoney, 342 Ark. 112, 27 S.W.3d 361. No such liability exists for Appellants under the agreement at issue in the present case. Pursuant to those “swine” contracts, Appellees were limited to pursuing any grievance in the forum of arbitration. Appellants, however, retained the sole right to pursue legal or equitable remedies. Thus, the agreement lacks the necessary element of mutuality of obligations, and the trial court correctly denied Appellants’ motion to stay litigation and compel arbitration.
Having determined that the arbitration agreement is not enforceable, because it lacked the required element of mutuality, it is not necessary for this court to address Appellants’ argument that Appellees’ claims are arbitrable tort claims under the FAA. Likewise, we need not address Appellees’ argument that the arbitration agreements are unenforceable because arbitration is cost-prohibitive and because the agreements are unconscionable.
Affirmed.
Glaze, J., concurs.
Dickey, C.J., Thornton and Hannah, JJ., dissent. | [
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Tom Glaze, Justice.
Appellant Robert Robbins was convicted of capital murder and sentenced to death in 1998 for the murder of his ex-girlfriend, Bethany White. At trial, Robbins represented himself, with the assistance of court-appointed standby counsel, and he sought the death penalty for himself. Initially, Robbins was convicted and sentenced to death; he waived his right to appeal, and we held his waiver was proper. See State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) (Robbins I). In State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) (Robbins II), we clarified that Robbins had also waived his right to seek post-conviction relief under Ark. R. Crim. P. 37.5. Following a request by Robbins’s mother to re-examine the case, this court subsequently recalled the mandate, stayed Robbins’s execution, and ordered briefing in order to determine whether Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), should be overruled and whether the court should impose a mandatory review for trial error in all death penalty cases, regardless of whether the defendant desires such a review. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) (Robbins III).
Upon rebriefing, this court overruled the Franz case in part, and held that this court has an affirmative duty to automatically review the record in all death-penalty cases for egregious and prejudicial errors. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999) (Robbins IV). We remanded the case for preparation of the record, and appointed counsel to assist in our review. Id. Robbins’s appointed counsel filed a brief in compliance with this court’s direction, and in State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000) (Robbins V), we held that no prejudicial or plain error had occurred, and all fundamental safeguards had been followed. We affirmed Robbins’s conviction and sentence of death.
Robbins subsequently pursued federal habeas corpus relief. In his habeas proceedings, Robbins argued that he was entitled to relief because the jury rendered inconsistent findings regarding mitigating circumstances; the State responded that the claim was procedurally barred from habeas review because the issue was never raised in Robbins’s state court proceedings. The federal court ruled that Robbins’s claim that the jury returned inconsistent findings on its penalty-phase verdict had not yet been exhausted in state court. Because Robbins had not exhausted his state remedies, the federal court dismissed his petition for writ of habeas corpus.
Following the federal court’s dismissal of his petition, Robbins filed a motion to re-open his case in this court. In that motion, he argued that the case involved a violation of his rights under the Eighth and Fourteenth Amendments based on the jury’s inconsistent and irreconcilable findings regarding mitigating circumstances. Specifically, he claimed, on Form 2A of the verdict forms, the jury unanimously found that one mitigating’ circumstance existed; however, on Form 2C, the jury also unanimously found that this same nfitigator did not exist. In his motion, Robbins suggested that, despite this court’s stated intent to review the entire record of his trial and sentencing proceedings for prejudicial error, such a review had not occurred because neither the court nor his appointed counsel noticed this alleged error. We granted the motion to reopen the case and issued a writ of certiorari, ordering that the record be supplemented with the original verdict forms. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003) (Robbins VI). The original verdict forms and the briefs of the parties are now before us, and we are now able, to determine whether error occurred with respect to Robbin’s sentencing.
Following the sentencing phase of Robbins’s capital-murder trial, the jury completed the sentencing verdict forms that caused Robbins to be sentenced to death. The jury first completed Form 1, pertaining to aggravating circumstances, by checking off as an aggravator the fact that the “capital murder was committed in an especially cruel or depraved manner.” With respect to mitigating circumstances, the jury also filled in Form 2. The original verdict forms clearly indicate that the jury checked Form 2A, whereby the jurors “unanimously find that the following mitigating circumstance^) probably existed: (/) Robert A. Robbins has no significant history of prior criminal activity (at the time of the murder).” Form 2B was left blank. Form 2C then provides as follows:
There was some evidence presented to support the following circumstance(s). However, having considered this evidence, the jury unanimously agreed that it was insufficient to establish that the mitigating circumstance(s) probably existed.
( ) Robert A. Robbins has no significant history of prior criminal activity (at the time of the murder).
The space between the parentheses appears as though the jury either used “white-out” or an eraser to obliterate the check mark that was once there. This Form 2 instruction is appended to this opinion.
After Form 2, the jury then completed Form 3, which contains the following conclusions of the jury:
(a) (/) The State has proved beyond a reasonable doubt one or more aggravating circumstances.
(If you do not unanimously agree to check paragraph (a), then skip (b) and (c) and sentence Robert A. Robbins to life imprisonment without parole on Form 4.)
(b) (/) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by any juror to exist.
(If you do not unanimously agree to check paragraph (b), then skip (c) and sentence Robert A. Robbins to life imprisonment without parole on Form 4.)
(c)(/) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.
(If you do not unanimously agree to check paragraph (c), then sentence Robert A. Robbins to life imprisonment without parole on Form 4.)
The jury clearly checked each of the above three boxes.
For relief, Robbins relies heavily on Willet v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In Willett, the jurors unanimously found and checked three mitigating circumstances probably existed at the time of the murder. Fiowever, on Form 2C, the jurors found and checked the same three circumstances, but then unanimously agreed that they were not mitigating circumstances. In response to the State’s argument that such error was harmless, “because the jurors appeared in open court and orally confirmed their death-sentence verdicts,” this court first agreed with Willett that subsections A and C of Form 2 are mutually exclusive. Willett, 322 Ark. at 628. The court then held as follows:
We are somewhat inclined to conclude that the jury’s error in completing Form 2 was harmless for three reasons. First, in “Form 3 — Conclusions,” the verdict form pertaining to the weighing of aggravating and mitigating circumstances, the jurors concluded that the aggravating circumstance outweighed beyond a reasonable doubt any mitigating circumstance found by any juror to exist. Second, also in Form 3, the jury concluded the aggravating circumstance justified beyond a reasonable doubt the death sentence. Third, as the state contends, the jurors confirmed in open court that the two verdicts of death by lethal injection were indeed their verdicts.Therefore, even if we assume the jury concluded in Form 2 that the three mitigating circumstances probably existed, we could conclude, on the basis of Form 3, that they did not outweigh the aggravating circumstance. However, we are not aware of any authority that permits the application of a harmless error analysis to mitigating circumstances. See Skipper v. South Carolina, 476 U.S. 1 (1986) (indicating that errors relating to mitigating circumstances are prejudicial under any standard). Moreover, this court can perform the harmless error analysis in Ark. Code Ann. § 5-4-603(d) (Repl. 1993) only if the jury found no mitigating circumstances. Greene, 317 Ark. 350, 878 S.W.2d 384. On this record, it is impossible to discern whether the jury found any mitigating circumstances. Therefore, we reverse the ... sentence [of\ death and remand for resentencing.
Id. at 628 (emphasis added).
This court, in Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), subsequently retreated from Willett’s interpretation of Skipper. This court in Jones clarified its holding in Willett, stating that the parenthetical explanation of Skipper “went beyond the actual holding of the case.” In Jones, the jury also submitted conflicting verdict forms, but there the confusion was between Form 2B and Form 2C. On Form 2B, the jury had indicated that one or more of the jurors believed that five mitigating circumstances probably existed, but they did not unanimously agree that those mitigating circumstances probably existed. On Form 2C, the jury checked off three of the same factors, indicating that there was some evidence presented to support' the mitigating circumstances offered, but the jury unanimously agreed that the evidence was insufficient to establish that the mitigating circumstances probably existed. The Jones court held that, unlike Willett, it was not impossible to determine whether the jury found any mitigating circumstances; the jurors had found three, as indicated on Form 2A, and these did not conflict in any way with the confusing circumstances checked off on Forms 2B and 2C. Jones, 329 Ark. at 69-70.
The Jones court further took the opportunity to “clarify our previous interpretations of Ark. Code Ann. § 5-4-603(d) [(Repl. 1997)],” which provides as follows:
(d) On appellate review of a death sentence, if the Arkansas Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance or circumstances for any reason and if the jury found no mitigating circumstances, the Arkansas Supreme Court shall conduct a harmless error review of the defendant’s death sentence. The Arkansas Supreme Court shall conduct this harmless error review by:
(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and
(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.
(Emphasis added.) In readdressing § 5-4-603 (d), the Jones court wrote the following:
We have previously interpreted this provision to allow us to conduct a harmless-error analysis only if the jury found no mitigat ing circumstances. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Kemp v. State, [324 Ark. 178, 919 S.W.2d 943 (1996)]. However, a plain reading of this provision reveals that it applies when the jury makes an error in finding that an aggravating circumstance exists. There was no such error in this case. The statute simply prescribes a set of parameters where this court must engage in a harmless-error analysis. It does not preclude us from conducting harmless-error analysis in other situations.
Jones, 329 Ark. at 71 (emphasis added).
With respect to Willetts citation to Skipper, the Jones court also explained that, “[w]hile we agree that the rule in Skipper provides that the exclusion of relevant mitigating evidence from the jury’s consideration can never be harmless, we do not read Skipper to preclude the application of a harmless-error analysis to errors relating to the jury’s consideration of that evidence.” Jones, 329 Ark. at 70.
We further note our opinion in Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), which the Jones court found to be controlling. In Wainwright, this court was presented with a situation in which the jury, on one verdict form, had unanimously found a mitigating factor existed in the fact that Wainwright did not resist when arrested; on another form, it found that this same mitigating factor did not exist. In resolving the question, this court wrote the following:
Although the jury may have been inconsistent on this factor, it was clear in unanimously finding that three aggravating circumstances existed at the time appellant committed the murder. On the other hand, even giving the appellant the benefit of the mitigating circumstance discussed above, the jury only determined that two mitigating circumstances existed. Upon individual polling, each juror stated that he or she had voted for the death penalty. Obviously, the jury found the aggravating circumstances outweighed those mitigating factors, and the trial court was correct in so holding.
Wainwright, 302 Ark. at 387. The Eighth Circuit Court of Appeals ultimately affirmed this decision, holding that the jury’s inconsistent findings were not arbitrary or capricious, and therefore did not rise to an Eighth or Fourteenth Amendment violation, where the jury specifically found that three aggravators outweighed beyond a reasonable doubt all mitigating circumstances. See Wainwright v. Lockhart, 80 F.3d 1226 (8th Or.), cert. denied, 519 U.S. 968 (1996).
We conclude that both Jones and Wainwright are controlling here. Although there was apparently an unexplained partial “white-out” in one verdict form, even if we resolve the “white-out” in Robbins’s favor and conclude that the jury found one mitigating factor to exist, the jury nevertheless unanimously concluded that one aggravating circumstance existed, that the aggravating circumstance outweighed beyond a reasonable doubt the mitigating factor found to have existed, and that the aggravating circumstance justified beyond a reasonable doubt a sentence of death. To impose the death penalty, this court has held that a jury need only unanimously agree that one aggravating circumstance exists. Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); see also Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000) (affirming death sentence where jury found one aggravating factor and one mitigating circumstance, and concluded that the aggravator justified beyond a reasonable doubt a sentence of death). Whether the jurors found the mitigating circumstance to exist or not, they nevertheless unanimously concluded that a death sentence was appropriate.
We also hasten to point out that, following the reading of the verdict, the trial court polled the jurors, reading the verdict form aloud as follows:
Court: And form two on mitigating circumstance or circumstances, [the] findings are:
We unanimously find that the following mitigating circumstance or circumstances probably existed: That Robert A. Robbins has no significant history of prior criminal activity at the time of the murder, again signed by the foreman.
Are each of these findings in form one and two unanimous, that is all twelve of you agree?
Jurors: (Nodding heads up and down.)
After reading the verdict, the court again asked the jurors if “each of you individually, of your own free will, execute and sign — place your signature on form four?” The jurors said “Yes.” If there was any doubt as to what the jurors intended to mark on Form 2, that doubt was resolved by the jury’s answers' to the trial court. Because the jurors agreed that they had unanimously found o'ne mitigating circumstance to exist, but that the aggravating circumstance outweighed the miti gator beyond a reasonable doubt, we must conclude that any purported inconsistencies by the jury in the completing of Form 2 amounted to harmless error, and we affirm Robbins’s death sentence.
Thornton, J., dissents.
In an intervening per curiam, we relieved Jeff Rosenzweig as counsel and appointed Lea Ellen Fowler to perform the duties outlined in Robbins IV, directing her to abstract the record and assist the court in its determination as to 1) whether any errors raised in the trial court were prejudicial to Robbins,in accordance with Ark. Code Ann. § 16-91-113(a) (1987); 2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), had occurred; and 3) whether other fundamental safeguards were Mowed. State v. Robbins, 340 Ark. 255, 9 S.W.3d 500 (2000).
The facts of the case clearly supported the jury’s finding of this aggravator. For a discussion of those facts, see Robbins V, 342 Ark. at 265-67.
Section 5-4-603(d) is now found in the 1997 Replacement volume. | [
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Betty C. Dickey, Chief Justice.
Jay Abramson appeals from an Arkansas County Circuit Court order awarding appellee, Michelle Eldridge, $9,015 in attorney’s fees. We improvidently entertained this appeal because of the circumstances surrounding the companion case in Eldridge v. Abramson, Case No. 03-885, which had been certified to us by the Arkansas Court of Appeals. The appellant did not preserve the issue of attorney’s fees for appeal, and we affirm the trial court.
On July 11, 2001, following a long series of domestic disputes, appellee Michelle Eldridge obtained a temporary order of protection from appellant Jay Abramson. Because of numerous procedural delays by the appellant, both the hearing set for July 25, 2001 as well as subsequent hearings were continued. At the final hearing on November 6, 2002, Eldridge presented a revised bill for attorney’s fees, which was accepted into evidence without objection. The appellant was given a week to respond, and failed to do so. The court, on December 16, entered a two-year order of protection and gave the appellee’s attorney an opportunity to submit authority that would allow attorney’s fees in a domestic-abuse case. Appellee’s attorney provided the requisite authority to the court by letter. The appellant never responded to the letter, nor did he file any motion objecting to either the award of attorney’s fees or the amount awarded. On December 30, 2002, the trial court entered an order awarding Eldridge $9,015 in attorney’s fees.
On appeal, Abramson contends that the trial court erred in awarding attorney’s fees due to Eldridge’s noncompliance with Rule 54(e) of the Arkansas Rules of Civil Procedure. In addition, Abramson claims that the amount of the award was unreasonable. Because the appellant never raised these issues at trial, we do not address the merits of these claims on appeal.
It is well-settled law that for a trial court to have committed reversible error, timely and accurate objections must have been made so that the trial court was given the opportunity to correct the error. Holcombe v. Marts, 352 Ark. 201, 99 S.W.3d 401 (2003); John Cheeseman Trucking, Inc., v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). Because there is no indication that these issues were raised below, we will not consider them for the first time on appeal.
Affirmed.
Brown and Imber, JJ., dissent. | [
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Annabelle Clinton Imber, Justice.
This case arises from a collision between a train owned and operated by Appellant Union Pacific Railroad Company (Union Pacific) and a garbage truck occupied by Appellee Chris Barber. A jury returned a verdict that found Union Pacific negligent and awarded Mr. Barber and his wife $5.1 million in compensatory damages. In addition, the jury concluded that Union Pacific acted with malice or reckless disregard and awarded the Barbers $25 million in punitive damages. We affirm the judgment.
At about 9:15 a.m, on January 19, 1998, a garbage truck owned by Browning-Ferris, Inc., was struck in St. Francis County by one of Union Pacific’s freight trains. The garbage truck was traveling north over the railroad crossing as the train was traveling eastbound on the track. At the time of the accident, Charles Rolfe was driving the garbage truck while appellee Chris Barber sat in the passenger seat. The train struck the rear portion of the garbage truck on the driver’s side, killing Mr. Rolfe and injuring Mr. Barber.
On October 19, 1998, Mr. Barber and his wife, Claudette Barber (hereinafter “the Barbers”), filed a complaint against Union Pacific Railroad Company, L.E. Piper, Jr., the train engineer at the time of the accident (hereinafter referred to collectively as “Union Pacific”), and Asplundh Brush Control Company. The complaint alleged that the accident was caused by Union Pacific’s failure to control vegetation within its right-of-way in violation of Ark. Code Anri. § 23-12-201, failure to properly sound audible warning devices, failure to keep a proper lookout, and operating the train at an excessive speed for the conditions. In addition, the Barbers alleged that the crossing was abnormally dangerous. The Barbers later nonsuited the case against Asplundh pursuant to Arkansas Rule of Civil Procedure 41(a).
Meanwhile, Mr. Barber filed a workers’ compensation claim against his employer, Allied Waste Industries, Inc. In response to that claim, Mr. Barber was compensated in an amount exceeding $200,000.
Union Pacific answered the Barbers’ complaint, denying the material allegations, and affirmatively asserting that the claim of excessive speed was preempted by federal law. Soon thereafter, the parties entered into settlement negotiations. After mediation, Union Pacific and the Barbers agreed to “settle around” Allied’s workers’ compensation lien. The settlement called for Union Pacific to pay the Barbers $290,000 on or before February 18, 2000, and was contingent upon a court or the Workers’ Compensation Commission approving the “settle around” provision.
A notice of intent to settle was forwarded to Allied, and on February 10, 2000, the parties filed a joint petition to approve settlement around the workers’ compensation carrier. On February 28, 2000, Allied filed an objection to the parties settling around Allied’s statutory lien pursuant to Ark. Code Ann. § 11-9-410 (Repl. 2002), and asserted that it was entitled to a lien on the proceeds of any settlement. In addition, Allied sought to intervene in the matter pursuant to Ark. R. Civ. P. 24 and Ark. Code Ann. § 11-9-410. A hearing by telephone conference on the settlement was set for February 28, 2000. Prior to the hearing, the Barbers sent a proposed order by facsimile to Union Pacific. According to the facsimile, counsel for the Barbers intended to submit the proposed order to the court after the telephone hearing. The record does not indicate whether the order was ever presented to the court; but, on March 3, 2000, the court filed a letter order that stated as follows:
The court having considered Allied Waste Industries, Inc.’s objection to petition to approve settlement around workers’ compensation carrier and all matters finds:
That in accordance with Ark. Code Ann. § 11-9-410 and Arkansas case law that the Plaintiffs can settle around the WC.C. carrier if the settlement is approved by the court. However, the W.C.C. carrier will have a lien on the proceeds of the settlement.
In response to that letter order, the Barbers notified Union Pacific via facsimile of their intent to appeal the court’s order.
At that point, and without an appeal, the parties continued to litigate the matter in the circuit court. Allied filed a complaint in intervention, which was answered by Union Pacific and the Barbers. The Barbers continued with discovery, requesting a second set of admissions, which request elicited an objection by Union Pacific in a conjunctive-motion seeking a protective order. On June 23, 2000, the court set May 29, 2001, as the trial date.
On February 12, 2001, the Barbers filed an amended complaint. In their amended complaint, the Barbers alleged that Union Pacific failed to maintain the track at the crossing to the Federal Railroad Administration’s Class 4 standards, failed to issue a “slow order” calling for a speed restriction over that rail crossing, and requested punitive damages. Union Pacific filed a joint answer and motion to dismiss, denying the material allegations, and affirmatively pleading that the Barbers’ claims on track maintenance and “slow orders” were preempted by federal law.
In a letter dated March 13, 2001, counsel for the Barbers proposed to start deposing witnesses after acknowledging that “[s]ince March 12th has come and gone, it appears we will be trying this case.” On March 27, 2001, Union Pacific filed a motion to approve the settlement agreement procured on February 2, 2000. The Barbers responded by filing an opposing motion to withdraw their previous joint petition to settle around the workers’ compensation carrier. The circuit court set a new trial date for January 7, 2002, and, by order dated August 6, 2001, denied Union Pacific’s motion to approve the settlement agreement. On December 13, 2001, the court concluded that the case was not ready for trial because the case “had turned into, not an issue of what happened to whoever (sic) the poor party out there was, it’s turned into a fuss between the lawyers on evidentiary issues.” As a result, the trial was reset to begin on April 30, 2002.
Following several discovery disputes, the circuit court ruled on April 29, 2002, that the Barbers would be entitled to a jury-instruction on spoliation of evidence. On April 30, 2002, the circuit court ruled on Union Pacific’s various motions in limine, including a request that the court prohibit any evidence or argument that the train was traveling at an excessive speed. The court granted the motion in limine as to the Barbers’ excessive-speed claim on grounds of federal preemption, but denied the motion as to their claim of negligent failure to issue a “slow order.”
At the close of the Barbers’ case-in-chief, and again at the close of all the evidence, Union Pacific moved for a directed verdict on the Barbers’ claims that the crossing was abnormally dangerous, that Union Pacific negligently failed to issue or to disclose a “slow order,” and on the request for punitive damages. The court denied Union Pacific’s directed-verdict motions. The case was bifurcated with the jury first deciding the issues of liability for negligence, compensatory damages, and liability for punitive damages. The matter of negligence was submitted to the jury on a general verdict form.
While the jury was deliberating on the issues of negligence liability, punitive liability, and compensatory damages, counsel for Union Pacific observed Attorney B. Michael Easley, counsel for the Barbers, pressing his ear against the deliberation room. Although Union Pacific’s counsel promptly confronted Attorney Easley, causing him to remove his ear from the jury-room door, neither counsel for Union Pacific nor counsel for the Barbers brought the incident to the court’s attention at that time.
The jury returned a verdict in favor of L. E. Piper, the locomotive engineer, but found for the Barbers on their complaint against Union Pacific and awarded compensatory damages in the amount of $5,000,000 to Mr. Barber and $100,000 to his wife. In response to a special interrogatory, the jury found that Union Pacific acted with malice or in reckless disregard of the consequences, thereby establishing liability for a punitive damages award. The amount of punitive damages was set to be determined by the jury in the second phase of the bifurcated trial.
Once the jury verdict was returned and read by the court, Union Pacific informed the court of Attorney Easley’s conduct during jury deliberations and moved for a mistrial. The circuit court denied the request for a mistrial, but ruled that the only additional proof it would allow the Barbers to present during the second phase of the trial would be evidence of Union Pacific’s net worth. Without presenting argument of any kind, the parties stipulated to the net worth of Union Pacific at $9.6 billion. That figure was written on a board and displayed to the jury at which time the jury retired to deliberate on the amount of the punitive damages award.
While the jury deliberated, the trial judge called the attorneys into his chamber for a discussion off the record. Following that discussion, the court went on the record under a conditional seal, whereupon Attorney Easley expressed remorse for his conduct in pressing his ear to the jury-room door during deliberations and submitted himself to sanctions. After considering the events and the manner in which the punitive damages portion of the case had been handled, the court concluded that Union Pacific suffered no prejudice in the matter. Defense counsel made no comments on the record. The court reiterated that there would be no basis for granting a mistrial if Union Pacific renewed its motion.
The jury ultimately reached a verdict and assessed punitive damages against Union Pacific in the amount of $25,000,000. Union Pacific then filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial or a remittitur of the punitive damages award. The Barbers responded and also requested sanctions in connection with alleged discovery violations and spoliation of evidence. All motions were denied by the court, and the parties are now before this court on appeal.
I. Mistrial
Union Pacific’s first point on appeal stems from opposing counsel’s improper actions in pressing his ear to the door of the jury-rdeliberation room. After counsel for Union Pacific witnessed Attorney Easley’s misconduct, he withheld disclosure of the information until the jury returned an unfavorable verdict. At that point, Union Pacific brought the misconduct to the attention of the circuit court. The trial judge was stunned by counsel’s actions but ruled that the jury verdict had not been compromised. Union Pacific argued that because the trial would have to proceed into a second phase on punitive damages, a mistrial was necessary. The circuit court refused to grant a mistrial; instead, it attempted to avoid any prejudice by limiting the presentation of evidence during the second phase of the trial to a stipulation regarding Union Pacific’s net worth. Specifically, the circuit court instructed the jury that it would be considering the punitive damages award against Union Pacific. Counsel for the Barbers then explained to the jury that the parties stipulated that Union Pacific’s net worth was $9.6 billion. That figure was written on a board, and the jury was informed the net worth figure equaled Union Pacific’s total assets minus its total debts. Neither party made any other comments or arguments to the jury. With only the circuit court’s instructions, a figure of $9.6 billion, and an explanation of how that figure was calculated, the jury retired to deliberate. On appeal, Union Pacific argues that the trial court erred in denying its motion for a mistrial or, in the alternative, its motion for a new trial.
It is well settled in Arkansas that a mistrial is a drastic and extreme remedy that should be granted only when there has been error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). The trial judge is given wide latitude to determine whether a mistrial is warranted. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). The trial court has wide discretion in granting or denying a motion for mistrial, and that decision will not be disturbed on appeal absent an abuse of discretion or manifest prejudice to the movant. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (Sept. 25, 2003). In addition, to preserve a point for appeal, a proper objection must be asserted at the first opportunity. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Likewise, motions for mistrial must be made at the first opportunity. Id.
In Arkansas Central R.R. Co. v. Morgan, 129 Ark. 67, 195 S.W. 402 (1917), the jury had reached a stalemate in its deliberations, whereupon they were permitted to separate after the usual admonition of the court against talking to anyone about the case or permitting anyone to talk to them. One of the attorneys in the case escorted a juror to the attorney’s home, where the juror left his young unbroken horse, and the attorney loaned him an older, gentler horse. Id. Opposing counsel witnessed the events as they transpired, but made no complaint to the court until after the jury reached a verdict. Id. This court recognized that the attorney’s conduct was improper but declined to reverse stating:
The litigant should, in fairness, make his complaint to the court as soon as the information is obtained .... And if there is to be a mistrial in such cases, it should come when the prejudicial incident is discovered and the court has determined that the integrity of the trial has been destroyed.... Having taken its chance on the verdict of the jury by failing to speak when it should have spoken, we will not disturb the finding of the court, upholding the integrity of the verdict.
Arkansas Central R.R. Co v. Morgan, 129 Ark. at 73-74, 195 S.W. at 405 (1917). This court’s ruhng over eighty years ago comports with our current rule that mandates a motion for mistrial be made at the first opportunity.
In this case, the actions of counsel for Union Pacific were similar to those of appellant’s counsel in Arkansas Central R.R. Co v. Morgan, supra. That is, after witnessing the wrongdoing, counsel gambled on receiving a favorable jury verdict before informing the court of the misconduct. In oral arguments, Union Pacific conceded that it did not inform the trial court of the attorney misconduct at the first available opportunity. We explained that counsel is required to advise the court of an attorney’s misconduct as soon as the information is discovered so that the court may inquire into the incident and remove any prejudice. Arkansas Central R.R. Co v. Morgan, supra. Had counsel immediately brought Attorney Easley before the court and explained the situation, the court could have separated Attorney Easley from co-counsel for the Barbers, thereby insulating him from further participation in the case and removing any prejudice that may have resulted from his improper conduct.
Instead, as a result of Union Pacific’s decision to take a chance on the result of the verdict, the trial court concluded that the second phase of the trial needed to be cut short in order to prevent any possible prejudice. In the trial judge’s own words, “I really thought this thing needed to be pretty well shut down and no further arguments made.” The law is well settled that motions for mistrial must be made at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. We note that other jurisdictions have come to a similar conclusion when counsel gambles on a favorable jury verdict before bringing the issue to the court’s attention. See Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266, 1276-77 (5th Cir.1989) (failure to request a mistrial on claim of attorney misconduct before the jury deliberations showed that the appellants “gambled” on the jury verdict, and weighed against granting a new trial); Raymond v. Southern Pac. Co., 259 Or. 629 (1971) (holding that a party has no right to gamble on the outcome of the case and to avail himself of the irregularity or misconduct if a decision is adverse to him). The Oregon Supreme Court explained that the public’s interest in the efficient use of judicial time and in the finality of the judicial process does not permit a party to gamble on a verdict before making a motion for mistrial. Raymond v. Southern Pac. Co., supra. We hold that by waiting for the jury to return a verdict and failing to bring the matter to the circuit court’s attention at the first opportunity, Union Pacific failed to preserve this argument for appeal.
II. Prior Near Misses
In its second point on appeal, Union Pacific argues that the circuit court erred in admitting evidence of prior near misses at the track crossing where the accident occurred. Union Pacific makes a two-pronged attack on the use of the prior near-miss evidence. First, Union Pacific requests that we endorse a rule that prior near-miss evidence be excluded as a matter of law in railroad-grade-crossing cases. Second, Union Pacific contends that the circuit court erred in admitting the near-miss evidence because the Barbers failed to offer sufficient proof of substantial similarity in conditions. The Arkansas Trial Lawyers Association, through its amicus curiae brief, has urged us to decline Union Pacific’s request that near-miss evidence be declared inadmissable as a matter of law.
A. Exclusion as a Matter of Law
Union Pacific recognizes that we have already enunciated a rule that near-miss evidence is admissible “upon a showing that the events arose out of the same or substantially similar circumstances.” See Carter v. Missouri Pacific R.R. Co., 284 Ark. 278, 681 S.W.2d 314 (1984) (quoting Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971)). Nonetheless, we are asked to overrule that case because near-miss evidence is inherently unreliable and unduly prejudicial, and, thus, should be excluded as a matter of law.
No case has been cited, and we can find none, that supports a perse exclusion of near-miss evidence. The admissibility of prior similar occurrences has been commonly accepted in Arkansas for many years. See Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Westark Specialties, Inc. v. Stouffer Family, Ltd., 310 Ark. 225, 836 S.W.2d 354 (1992); Fraser v. Harp’s Food Stores, Inc., 290 Ark. 186, 718 S.W.2d 92 (1986); Carter v. Missouri Pacfic Railroad Co., 284 Ark. 278, 681 S.W.2d 314 (1984); Houston General Ins. Co. v. Arkansas Louisiana Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980); Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976); Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971). In addition, it is generally recognized that evidence of prior similar occurrences is admissible with a showing of sufficient similarity in circumstances. See McCormick on Evidence, 5th ed. 1999 p. 703-04 § 200. Thus, Union Pacific presses this court to pioneer a per se exclusion in the face of a sound majority position. While we are urged to adopt a per se rule in railroad-crossing cases, the supporting theory of unreliability is not so limited. Evidence of prior similar occurrences in railroad-crossing cases is not any less reliable than prior similar occurrences in any other context.
Furthermore, a necessary predicate to the adoption of a per se exclusion rule would be a decision by this court to break with our prior precedent in Carter v. Missouri Pacific Railroad Co., 284 Ark. 278, 681 S.W.2d 314 (1984). We have held that there is a strong presumption of the validity of prior decisions. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000). Although we do have the power to overrule previous decisions, it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result. Id. The policy behind stare decisis is to lend predictability and stability to the law. Id. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. Id. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Id.
Union Pacific asserts that “a near miss leaves no record of the incident.” We recognize that there are situations in which a near miss will occur leaving no tangible record of the incident. Yet, this does not mean that a near miss can never be verified or documented. For example, there will be occasions when the near miss is reported to the police, the railroad, or some other agency. Under the rule proposed by Union Pacific, near-miss evidence would be inadmissible regardless of its veracity. The admission of this evidence is considered on a case-by-case basis and the burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Westark Specialties, Inc. v. Stouffer Family, Ltd., 310 Ark. 225, 836 S.W.2d 354 (1992). Union Pacific has failed to demonstrate that allowing near-miss testimony into evidence gives rise to a result so patently wrong, so manifestly unjust, that a break in precedent is warranted. Accordingly, we decline to depart from our holding in Carter v. Missouri Pacific R.R. Co., supra.
B. Substantial Similarity of Conditions
Prior to trial, Union Pacific moved in limine to prevent any evidence of near misses at the crossing where the accident occurred. The court ruled that it would allow evidence of near misses provided that they occurred within months of the accident. At trial, the Barbers introduced testimony by four witnesses about prior near misses. Union Pacific contends that the prior near-miss testimony elicited at trial did not arise out of circumstances substantially similar to the circumstances of the accident on January 19, 1998, when the garbage truck occupied by Mr. Barber was struck by one of Union Pacific’s freight trains.
The general rule with respect to the admissibility of evidence of similar occurrences is that it is admissible only upon a showing that the events arose out of the same or substantially similar circumstances. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). The burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Id. The relevancy of such evidence is within the trial judge’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Id. In Carter v. Missouri Pacific Railroad Co., 284 Ark. 278, 681 S.W.2d 314 (1984), we upheld a trial court’s ruling to exclude evidence of two prior near-misses. We concluded that the circumstances were not substantially similar because the flashing lights at the crossing had changed. Id. In determining the admissibility of prior similar occurrences, the critical question is whether the similarity of the circumstances makes it reasonable and probable that the same cause existed to produce the accident as did the near misses. See, e.g., Chicago, R.I. & P.R. Co. v. Lynch, 246 Ark 1282, 441 S.W.2d 793 (1969).
Whether an occurrence is substantially similar to the matter at hand depends on the underlying theory of the case. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). For example, evidence submitted to demonstrate a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. Id. Flowever, the requirement of substantial similarity is relaxed when the evidence of other incidents is used to show notice or awareness of a potential defect in a product. Id. The theory of the Barbers’ case was that the crossing was so overgrown with vegetation to the east that drivers attempting to cross could not see to the east without placing their vehicles in the zone of danger immediately adjacent to the track.
According to the Barbers, the circumstances that caused the accident in this case are simple. As the garbage truck approached the crossing headed north, the driver looked eastward for a train. By the time the truck’s occupants were able to get a clear view to the east, the garbage truck was already at the crossing as a train came into view from the west. The Barbers asserted that, due to overgrown vegetation on the south side of the train tracks at County Road Crossing 123, a northbound traveler would be unable to check safely for trains before attempting to cross. They also claimed that the engineer’s failure to sound the train’s whistle and bell as it approached the crossing exacerbated the situation.
The near-miss evidence permitted by the circuit court may be summarized as follows. Susan Thweatt testified that she used the crossing every Sunday to get to church and occasionally to run an errand. Between November and December of 1997, Susan was traveling to church with her husband, Vernon Thweatt, and her two daughters. She was in the backseat with one of her daughters, and Vernon was driving the car southbound. As they approached Crossing 123, Vernon looked both ways and attempted to cross the tracks. At the same time, Susan looked to the east and saw a westbound train approaching. She yelled at her husband, he immediately braked, and then backed up until the train passed. Susan was unable to identify the train as either a Union Pacific or Burlington Northern train and never made a complaint to the railroad.
Vernon Thweatt testified about the same incident. He stated that the vegetation was overgrown at Crossing 123 and that he used it about four times per week. At the time of the incident, he was driving south towards the crossing with his wife and two children in the car. Vernon first checked to see that the east was clear and then turned to the west. As he was looking to the west, his wife screamed that a train was approaching from the east. He immediately applied his brakes at which point his bumper was within ten feet of the track. Vernon testified that the train did not sound its whistle or bell at the crossing. Vernon was also unable to identify the train as either a Union Pacific or Burlington Northern train and never made a complaint to the railroad.
Troy Meredith testified that he traveled north over Crossing 123 several times on his way to sites where he searched for arrow heads. Mr. Meredith confirmed that the brush and shrubbery on the south side of the track blocked his view to the east as he traveled north. He had an incident in the fall of 1997 at Crossing 123 while traveling north over the tracks where he had to “goose [his] car and jump across the track in order to keep from getting hit.” As he approached the crossing, he first looked to his west. When he looked to the east, the brush and shrubbery blocked his view. He continued to move forward looking to the east and by the time he could see the westbound train he was in a position where the train would have hit him if he did not continue across the tracks.
Lastly, Ray Thweatt testified that he had been using Crossing 123 for fifty to sixty years. Ray also confirmed that the vegetation to the east blocked his view of the track. Twice in 1997, while traveling north over the crossing, he got so close to the tracks that he was startled when he finally saw an eastbound train.
In this case, Mr. Barber’s accident resulted as the Union Pacific train traveled east and the garbage truck traveled north over the crossing. Susan and Vernon Thweatt’s near miss stemmed from a southbound approach to the crossing and a westbound train. Mr. Meredith’s incident, on the other hand, occurred while he traveled north over the crossing and the train traveled west. In First Security Bank v. Union Pac. R.R. Co., 152 F.3d 877 (8th Cir. 1998), the Eighth Circuit Court of Appeals concluded that the trial court did not err in excluding prior accidents where the drivers and the plaintiff were traveling in opposite directions, and, thus, had entirely different perspectives of the crossing. Likewise, Susan and Vernon Thweatt’s view of the crossing from the north side was entirely different from the garbage truck driver’s view on the south side of the crossing. The vegetation on the north side of the track has little relevance in determining a view from the south side of the crossing. We conclude that the trial court abused its discretion in admitting Susan and Vernon’s testimony.
Nonetheless, the danger complained of stemmed from overgrown vegetation on the south side of the track. The cause of the accident was impaired visibility to northbound travelers as a result of overgrown vegetation on the south side of the track. For both Mr. Meredith and Mr. Barber, the view to the east was obscured by the vegetation on the south side of the track as they approached the crossing heading north. One difference in the circumstances of the accident and Mr. Meredith’s near miss is that the trains were traveling in different directions. The issue here, however, is whether the vegetation on the south side of the track was a danger to northbound travelers regardless of which direction the train was traveling. Mr. Meredith’s testimony reveals that he and Mr. Barber were in a substantially similar circumstance ■ — - the drivers in both vehicles had to inch forward to look east down the track for a train. Likewise, Roy Thweatt’s near miss was caused by overgrown vegetation on the south side of the track obscuring his view to the east. Due to the high degree of similarity, we cannot conclude that the circuit court abused its discretion in admitting the near-miss testimony of Troy Meredith and Roy Thweatt.
Union Pacific also contends that the trial court erred because none of the parties could identify the near-miss trains as Union Pacific trains. As such, Union Pacific argues that the evidence is irrelevant to show notice of a defect or condition. Evidence of similar occurrences is admissible when the notice of a danger or defect is in issue. Fraser v. Harp’s Food Stores, Inc., 290 Ark. 186. 718 S.W.2d 92 (1986). Evidence of similar occurrences is also admissible to demonstrate a dangerous condition. Ford Motor Co. v. Massey, supra. As already stated, the theory of the Barbers’ case was that the crossing was so overgrown with vegetation on the south side of the track that drivers attempting to cross could not see to the east without placing their vehicles in the zone of danger immediately adjacent to the track. Under this theory, notice is not relevant; rather, the testimony of Troy Meredith and Roy Thweatt was properly admitted to demonstrate a dangerous condition.
In sum, while the circuit court abused its discretion in admitting Vernon and Susan Thweatt’s near-miss testimony, we will not reverse a trial court’s ruling on evidentiary matters absent a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430 47 S.W.3d 866 (2001). Evidentiary error may not be predicated upon a ruling that admits evidence unless it affects a substantial right of the party. Ark. R. Evid. 103(a) (2003); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996). We have repeatedly held that an evidentiary error is harmless if the same or similar evidence is otherwise introduced at the trial. Luedemann v. Wade, supra; Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990); Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968). In light of the other near-miss evidence that was properly admitted at trial, we cannot say that Vernon and Susan Thweatt’s testimony, which was merely cumulative, resulted in prejudice to Union Pacific. Accordingly, we affirm on this point.
III. Directed Verdict
For its third point on appeal, Union Pacific contends that the circuit court erred in denying its directed-verdict motions on the theory that Union Pacific negligently failed to issue a slow order and on the theory that the crossing was abnormally dangerous. At trial, the Barbers premised their claim of negligence on several theories:
(1) The violation of an Arkansas statute requiring a railroad to maintain its right-of-way free of vegetation;
(2) The presence of an abnormally dangerous crossing;
(3) The failure to sound the train’s audible warning devices;
(4) The failure to keep a proper lookout; and
(5) The violation of federal regulations requiring a railroad to instruct its employees concerning its code of operating rules, time tables, and time table special instructions.
With the five theories before them, the jury was given a general verdict form on the claim of negligence.
When the jury’s verdict is rendered on a general verdict form, it is an indivisible entity or, in other words, a finding upon the whole case. South Cent. Arkansas Elec. Co-op. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003). This court will not speculate on what the jury found where a general jury verdict is used. Id. When special interrogatories concerning liability or damages are not requested, and this court is left in t.he position of not knowing the basis for the jury’s verdict, we will neither question nor theorize about the jury’s findings. Hyden v. Highcouch, Inc., 353 Ark. 609, 110 S.W.3d 760 (2003).
In this case, Union Pacific does not challenge the sufficiency of the evidence to support the general verdict of negligence. Instead, it challenges the sufficiency of the evidence on two of several theories that support the general verdict. We cannot determine, and we will not speculate, upon which theory the general verdict of negligence was premised. The evidence in this case reveals that the vegetation at Crossing 123 was severely overgrown. The overgrown vegetation on the south side of the train tracks blocked the view of anyone driving north over the crossing. In addition, drivers had to inch forward to a point where their vehicles were almost touching the track in order to get a clear view down the track. Moreover, by the time a person was able to adequately check the track for trains, he or she was in the zone of danger. The testimony supports a finding that these conditions caused the garbage truck to be hit by the Union Pacific freight train. Here, the jury could have based its verdict of negligence on the Barbers’ theory that Union Pacific failed to properly maintain the vegetation at Crossing 123. Hence, we must affirm. See, e.g., Union Pacific R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); see also South Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102 (2003); Hyden v. Highcouch, supra.
When presented with this question at oral argument, Union Pacific cited our decision in Missouri Pacific Railroad v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988), for the proposition that a case must be reversed when a jury is presented with several theories and asked to render a general verdict. In that case, we found prejudicial error where the circuit court gave the jury an inapplicable instruction. Indeed, we have consistently held that we will presume prejudice from the giving of an erroneous instruction, unless rendered harmless by other factors. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996); Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993). However, we have made a distinction between contesting the trial court’s decision to give a jury instruction on ■ one particular theory of negligence, and challenging the sufficiency of the evidence to support a general verdict of negligence. See Union Pacific R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Here, Union Pacific challenges the sufficiency of the evidence to support two theories of negligence but does not challenge any of the jury instructions given by the trial court. Accordingly, we do not address the propriety of any instruction, and because we conclude that there was sufficient evidence of negligence, we are unwilling to speculate upon which theory of negligence the jury premised its verdict.
IV Punitive Damages
For its fourth point on appéal, Union Pacific attacks both the propriety of awarding punitive damages and the amount of punitive damages. As a threshold matter, the Barbers contend that Union Pacific waived any challenge to the sufficiency of the evidence on punitive damages because Union Pacific failed to move for a directed verdict at the close of all the evidence. We hold that Union Pacific properly preserved this point for appeal, that there is sufficient evidence to warrant an award of punitive damages, and that the award in this case is not excessive.
At the close of the plaintiff s case-in-chief, and again at the close of all the evidence in connection with liability, Union Pacific properly moved for a directed verdict on the issue of punitive damages. Union Pacific did not, however, move for a directed verdict at the close of the evidence in the second phase of the trial on punitive damages. This second phase occurred after the jury had determined that Union Pacific was negligent, that it acted with malice or reckless disregard of the consequences, and assessed compensatory damages. For support, the Barbers cite Advocat v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), where we stated “the conclusion of all the evidence” occurs after the plaintiffs rebuttal evidence. Here, there was no rebuttal evidence and Union Pacific moved for a directed verdict at the close of all the evidence in connection with liability for punitive damages.
The purpose of a motion for directed verdict is to provide a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). A plaintiff need not establish a prima facie case in second phase of a bifurcated trial where only the amount of punitive damages remains to be decided. Thus, it is unnecessary for a defendant to move for a directed verdict as to liability after a jury has determined liability. Union Pacific has preserved its challenge to the sufficiency of the evidence to support an award of punitive damages by properly moving for a directed verdict on that issue at the close of all the evidence submitted in the liability phase of the trial.
A. Sufficient Evidence of Punitive Damages
We review the denial of a motion for directed verdict to determine if the jury verdict is supported by substantial evidence. D’Arbonne Const. Co., Inc. v. Foster, 354 Ark. 304, 123 S.W.3d 894 (2003). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, and it must force the mind to pass beyond mere suspicion or conjecture. Id. When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and we give that evidence the highest probative value. Id. A motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Id. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions. Id.
We have recently set out the standard for determining whether there is sufficient evidence to support an award of punitive damages in a negligence case:
This court has said that an award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Missouri Pacific Railroad v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); National By-Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491, 731 S.W.2d 194 (1987). In other words, in order to support this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred. Mackey, 297 Ark. at 145, 760 S.W.2d at 63; National By-Products, Inc., 292 Ark. at 494, 731 S.W.2d at 196. In order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 364 (1982)(quoting Hodges v. Smith, 175 Ark. 101, 293 S.W.2d 1023 (1927)).
D’Arbonne Const. Co., Inc. v. Foster, 354 Ark. at 308, 123 S.W.3d at 898 (2003). The Eighth Circuit Court of Appeals has recognized that the critical inquiry is to determine whether there is evidence that a party likely knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury, and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. See Aircraft Accident at Little Rock v. American Airlines, Inc., 351 F.3d 874 (8th Cir. 2003) (citing D’Arbonne Const. Co., Inc. v. Foster, 354 Ark. 304, 123 S.W.3d 894 (2003)).
The evidence supporting an award of punitive damages, viewed in the light most favorable to the Barbers, is as follows. Willie Savage, a twenty-six year veteran of the railroad as a track-man, assistant foreman, and a foreman, testified for the Barbers at trial. Just before Southern Pacific Railroad’s merger with Union Pacific in September 1996, he was working for Southern Pacific as a tie-gang foreman. According to Mr. Savage, a track inspector or road master would mark railroad ties that needed replacement and then a tie-gang would follow up replacing the bad ties. Savage explained that the tie-replacement was done to keep the track maintained as a sixty-mile-per-hour track. However, after Union Pacific took over the tracks, and prior to reaching the 123 Crossing, the railroad had stopped replacing all the bad ties and instituted a “cluster-buster” tie replacement program. In a cluster-buster, the tie-gang would only replace one or two ties in a string of bad ties. Mr. Savage explained that the railroad then issued a “slow order” for the portions of track where the cluster-buster replacement was being performed.
In connection with his work as a tie-gang foreman, Mr. Savage complained to his supervisor, Mac McCartney, about the 123 Crossing. Mr. McCartney went to the crossing, but stated that he was not in charge of fixing crossings. Mr. Savage was concerned that the overgrown vegetation at the crossing would prevent his men from seeing a train and that one of his vehicles crossing the tracks would get hit by a train. Mr. McCartney suggested that Mr. Savage place a flagger at the crossing before they attempted to cross it. According to Mr. Savage, one or two men would stand at the crossing and direct the vehicles to cross when it was safe. He also testified that in working for Union Pacific there was never any response to complaints about overgrown vegetation.
Carl Jones, another garbage truck driver, testified that he had experienced problems with the overgrown vegetation at Crossing 123. Mr. Jones attempted to contact Union Pacific in April 1997 to inform them about the problem. He made between seven and ten complaints by phone to Union Pacific regarding the 123 Crossing. In addition, Mr. Jones flagged down a Union Pacific worker on the road and complained that the vegetation at Crossing 123 was life threatening.
Donald DePriest, a retired locomotive engineer, locomotive fireman, and brakeman also testified for the plaintiffs. He worked for the railroad from 1962 through 2000. Mr. DePriest testified that while he worked as locomotive engineer for Union Pacific he informed the train master, Tommy Stokes, and the train safety committee that the 123 Crossing was a hazard to the railroad employees and the public because there was a danger of hitting a vehicle at the crossing.
•Mayor Willetta Carroll of Palestine testified regarding her communications with Union Pacific. In 1997, Mayor Carroll contacted various personnel with Union Pacific concerning the track going through Crossing 123, including Vice President Jack Kyle, David Peterson, and Arkansas Grade Crossing Safety Coordinator Larry Hatley. She told these persons that Crossing 123 was overgrown and unsafe.
In addition to considering the direct evidence that Union Pacific was put on notice that a life threatening condition existed at Crossing 123, the jury in this case was given an instruction on spoliation of evidence, which stated in part as follows: “In this case, the plaintiffs contend that by intentional conduct the defendant railroad failed to preserve voice tapes and track inspection records that should have been preserved. Therefore, you may, but are not required, to infer that the contents of the voice tapes and track inspection records would have been unfavorable to the defendant.” In Arkansas, spoliation is defined as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its action.” Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 146, 27 S.W.3d 387, 388 (2000) (citing Black’s Law Dictionary 1401 (6th ed.1990)).
Alan J. Blackwell, a railway consultant, testified in the Barbers’ case-in-chief. Prior to becoming a consultant, Mr. Blackwell worked for Union Pacific in many different roles, including track inspector, track supervisor, road master, and assistant road master. After being hired by the Barbers’s counsel in this case, Mr. Blackwell asked counsel to get the Union Pacific Inspector’s records and the Federal Railroad Track Inspector’s records. Counsel, however, was unable to get those documents from Union Pacific. He was also unable to review Union Pacific’s dispatch tapes of communications between the dispatcher, the train crew, and the maintenance people. Union Pacific’s director of dispatching practices and quality assurance, John Reininger, testified as to the use of the dispatch voice tape. The voice tapes record conversations between a dispatcher and field employee. Mr. Reininger testified that Union Pacific retained the voice tapes for about ninety days, but that a claims representative could make a request to preserve the tape longer. According to Mr. Reininger, the tapes were recycled within ninety days even when people die. He also testified that the tapes would reflect reports from engineers of any dangerous condition experienced.
The discovery process in this case was the subject of testimony given by Patricia Long, a senior claims representative for Union Pacific. Ms. Long testified that she was involved as the claims representative and that she received the request for track records in October 1998 for the accident that occurred at Crossing 123 in January of that same year. She testified that the documents were retained for at least one year. Yet, according to Ms. Long, the track records in this case were no longer available when the request was made for them in October. She explained that her request for the track records was forwarded to Union Pacific’s Manager of Track Maintenance in December, but no response was forthcoming. When Ms. Long followed up on the earlier request, she was advised that the track inspection records were unavailable.
Mr. Blackwell eventually made a trip to Union Pacific’s headquarters in Omaha, Nebraska, and found a stack of “slow orders” concerning a different set of tracks in Louisiana that was subject to arbitration between Union Pacific and Burlington Northern Railroad. Mr. Blackwell discovered that “slow orders” for the 123 Crossing area were listed at the tail end of some of the Louisiana “slow orders.” Blackwell explained that in 1996, before Union Pacific owned the tracks, various “slow orders” had been issued for the track covering the 123 Crossing. Those “slow orders” reduced the train’s maximum speed from sixty miles per hour to forty miles per hour. As noted earlier, Union Pacific merged with Southern Pacific on September 11, 1996. Although Mr. Blackwell had experience at Union Pacific maintaining computerized records of “slow orders,” when he tried to find “slow orders” covering the 123 Crossing, Union Pacific told him the records did not exist. He was also unable to get Union Pacific’s track inspection records. Finally, Mr. Blackwell discovered that Union Pacific had entered into a contract to have the overgrown vegetation at Crossing 123 cut back in August 1997, but it did not allot money for the contract.
Union Pacific cites this court to Missouri Pacific Railroad v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988), as authority for its assertion that there is insufficient evidence to support an award of punitive damages. In Mackey, we held that while there was no question of the railroad’s negligence in maintaining its right-of-way, the evidence did not support an award of punitive damages. The Mackey court pointed out that there was no evidence that the crossing was hazardous or that the dangers had been presented to the railroad.
Based on the evidence detailed above, we conclude that there was ample evidence that Crossing 123 was hazardous and that Union Pacific was on notice of its condition. Here, direct evidence reflects that Union Pacific was notified of an imminent danger at Crossing 123. In addition, through the spoliation instruction, the jury was at liberty to infer that the destroyed voice tapes and track records contained remarks about the near misses testified to at trial and the dangerous condition presented by the overgrown vegetation. We conclude that the evidence in this case was sufficient to allow the jury to conclude that Union Pacific likely knew or ought to have known, in light of the surrounding circumstances, that allowing the vegetation to remain overgrown and allowing trains to pass through Crossing 123 at close to sixty miles per hour would naturally or probably result in injury, and that Union Pacific continued such conduct in reckless disregard of the consequences from which malice could be inferred.
B. Excessive Punitive Damages Award
In addition to arguing that there was insufficient evidence to support an award of punitive damages, Union Pacific argues the award given by the jury is excessive under either state or federal standards. We have recently explained the standard for reviewing a claim of excessive punitive damages:
We consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Punitive damages are a penalty for conduct that is malicious or perpetrated with the deliberate intent to injure another. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appellees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. It is important that the punitive damages be sufficient to deter others from comparable conduct in the future. The conscious indifference of the alleged wrongdoer to the wrong committed is a pertinent factor in assessing punitive damages.
Advocat Inc. v. Sauer, 353 Ark. 29, 50-51, 111 S.W.3d 346, 358 (2003) (citations omitted).
We start by examining the enormity of the wrong in this case. There is evidence that Union Pacific was on notice of the dangerous and life threatening nature of this crossing through the complaints of its own personnel and the complaints of the public. There is also evidence that several near-misses occurred at this crossing. Furthermore; the record reflects that Union Pacific destroyed important evidence directly related to this accident, including voice tapes and track inspection records. Viewing the proof and all the evidence in the light most favorable to the Barbers, we conclude that Union Pacific knew, or should have known of the extreme danger presented to the public at Crossing 123. In recognizing that danger, Union Pacific still consciously refused to remedy the situation. As such, Union Pacific’s conduct reflects that it intentionally put the traveling public in harm’s way. Under these circumstances, the enormity of the wrong is substantial.
There was also evidence to indicate a malicious intent perpetuated by Union Pacific. As noted by the Barbers in their brief, the record in this case reflects the development of a corporate policy at Union Pacific that put company profits before public safety. In addition to evincing that corporate policy through the handbooks given to claims representatives, the Barbers presented expert testimony from Dr. Harvey Levine who performed an economic study and opined that Union Pacific’s practices reflected that policy.
Lastly, we consider the financial and social condition and standing of Union Pacific. During the second phase of the bifurcated trial where the jury was called upon to determine the amount of punitive damages, Union Pacific stipulated that its net worth was $9.6 billion. Thus, there is no doubt that Union Pacific is in a strong financial and social condition. We note that the punitive damages award of $25 million amounts to 0.260% of Union Pacific’s net worth.
Taken together under all the circumstances, including the evidence that Union Pacific intentionally destroyed unfavorable evidence, we conclude that an award of punitive damages was appropriate in this case. Thus, we turn next to determine whether the amount of punitive damages shocks the conscience of the court. The United States Supreme Court has enunciated a three-factor test to determine whether an award of punitive damages is excessive. See BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). A Gore analysis is to be undertaken by the appellate court de novo. Advocat v. Sauer, supra.
Under Gore, to determine whether Union Pacific received adequate notice of both the conduct that would subject it to punishment and the magnitude of the sanction, we consider the following three factors:
(1) the degree of reprehensibility of the defendant’s conduct;
(2) the disparity between the harm or potential harm suffered by the plaintiff and his punitive damages award; and
(3) the difference between this remedy and the civil penalties authorized by statute or imposed in comparable cases.
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The three Gore criteria are to be given equal weight. Advocat v. Sauer, supra. We have employed the Gore test in three cases. See Advocat Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Routh Wrecker Service v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998).
(i) Degree of Reprehensibility
Between Gore and its latest decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), the United States Supreme Court has enunciated several factors to consider in examining the reprehensibility of the tortfeasor. The Court held in Gore that (1) where the harm inflicted by the tortfeasor was “purely economic in nature [,]” (2) there was no evidence that the tortfeasor had acted in bad faith, (3) there was no evidence that the tortfeasor had “persisted in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeated occasions[,]” and (4) the record failed to disclose any “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive,” the tortfeasor’s conduct was not sufficiently reprehensible to warrant the imposition of a $2 million award. In State Farm Mut. Ins. Co. v. Campbell, supra, the Court elaborated on factors for consideration when assessing reprehensi bility: “whether the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.”
In the case at bar, the injury inflicted by Union Pacific was physical and not merely economic. Mr. Barber, as the passenger in the garbage truck, was severely injured while the driver, Mr. Rolfe, was killed. As already explained, there was evidence that Union Pacific prioritized monetary gain over the personal safety of those crossing its train tracks. In addition, the record reflects that Union Pacific engaged in acts of affirmative misconduct after being notified of the accident and the lawsuit against it. The evidence shows that Union Pacific intentionally destroyed track records and voice tapes. Furthermore, there is evidence from which a jury would reasonably conclude that Union Pacific attempted to conceal “slow orders” issued for this portion of track. The record also supports a finding that Union Pacific manifested a reckless disregard for the health and safety of others. Specifically, Union Pacific ignored the dangerous condition of a crossing in the face of constant complaints and near misses. While this was the first time that an accident had occurred at this crossing, there was evidence of several prior near-misses. Under these circumstances, we conclude that Union Pacific’s conduct was indicative of a high degree of reprehensibility.
(ii) Ratio
The Gore analysis also requires the court to consider the ratio of compensatory damages to punitive damages. Here, the compensatory damages were set by the jury at $5,100,000 and the punitive damages were set at $25,000,000. The multiplier in this case is roughly 5. Most recently, the Supreme Court has held that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in the range of 500 to 1, ... or, ... of 145 to 1.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 425. The standard to be employed is whether the ratio is “breathtaking.” See Advocat, supra. Under the circumstances of this case, a multiplier of 5 is justified.
(Hi) Civil Sanctions
The final factor adopted by the United States Supreme Court in Gore for adequate notice is that of comparing the punitive damages award to the civil or criminal penalties that could be imposed for similar misconduct. See Advocat v. Sauer, supra. The Barbers point this court to 49 C.F.R § 213.5 (2003) and states that Union Pacific could have been fined up to $22,000 per day for each day of noncompliance. Union Pacific, on the other hand, directs this court to Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), for the proposition that a fine cannot be multiplied on the theory that each day was a separate violation because the accident only happened once. Although the Supreme Court indicated in Cooper v. Leatherman that it would view passing out promotional material as a single incident under the Oregon Unlawful Trade Practices Act, it made no ruling on the issue because the lower court did not apply the proper standard of review. Id.
A specific federal regulation governs vegetation on railroad property. 49 C.F.R. § 213.37 (2003) provides:
Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not • — ■
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signs and signals:
(1) Along the right-of-way, and
(2) At highway-rail crossings; (This paragraph (b)(2) is applicable September 21,1999.)
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
As noted earlier, Willie Savage testified that the vegetation at Crossing 123 caused his crew problems while they performed a cluster-buster repair on the railroad ties. Thus, there is evidence that the vegetation at Crossing 123 interfered with railroad employees performing normal trackside duties. The penalty provision of the federal code at issue states in pertinent part:
a) Any person who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $500 and not more than $11,000 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $22,000 per violation may be assessed.
49 CFR § 213.15 (2003). The regulatory provision at issue specifically contemplates recurring violations and increases the maximum penalty in those situations where a violation persists. In fact, the penalties provision of the code specifically states, “[e]ach day a violation continues shall constitute a separate offense.” 49 C.F.R. § 213.15(a). Here, the evidence clearly reflects that the vegetation at Crossing 123 was potentially out of compliance from the time Union Pacific took over the tracks in September 11, 1996. Under the federal code, Union Pacific could be fined for each day of non-compliance after September 11, 1996. As such, the maximum civil penalty in this case may be calcualted by multiplying $22,000 by each day of noncompliance. There were over 450 days between September 11, 1996, and the date of the accident at Crossing 123 on January 19, 1998. Accordingly, Union Pacific’s noncompliance made them potentially liable for about $9.9 million.
In addition, Union Pacific could have been potentially liable under Arkansas law. The pertinent statutory provision provides:
(a) (1) All railroad corporations operating in this state shall maintain their right-of-way at or around any railroad crossing of a public road or highway free from grass, trees, bushes, shrubs, or other growing vegetation which may obstruct the view of pedestrians and vehicle operators using the public highways.
* * *• *
(b) Any railroad corporation failing or refusing to comply with the provisions of this section shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.
Ark Code Ann. § 23-12-201 (a)(1), (b) (Repl. 2002). The plain language of the statute contemplates that a railroad will continue in noncompliance and will be assessed proportionally to the amount of time it fails or refuses to comply. At $500 per day, the railroad’s liability could approach up to $182,500 per year. We conclude that the total civil penalties authorized by law are comparable to the punitive damages award set by the jury in this case.
In Advocat v. Sauer, supra, we enforced a $21 million punitive damages award, based upon a wrongful-death claim stemming from the neglect of a nursing and rehabilitation center’s neglect of an elderly patient. Here, the punitive damages award of $25 million stems from a negligence action that resulted in one person’s death and caused severe and permanent injuries to another person. We will not substitute our judgment for that of the jury when there is basis in the evidence for the punitive award. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). In addition, the penalty needs to be sufficient to deter others of such conduct. Id. We have also recognized that punitive damages may validly amount to a windfall for the plaintiff. Missouri Pacific R.R. Co., v. Arkansas Sheriffs Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). Under these circumstances, where the award of punitive damages is appropriate and the net worth of the company is $9.6 billion, we cannot say that a $25 million punishment shocks the conscience.
V. The Settlement
In its last point on appeal, Union Pacific contends that the circuit court erred in refusing to approve and enforce the settlement agreement around the workers’ compensation lien of Allied Waste. This point is without merit.
After going through mediation, Union Pacific and the Barbers entered into a settlement agreement. The settlement specifically stated that it was contingent upon approval and payment by February 18, 2000. A hearing by telephone conference on the settlement was set for February 28, 2000, and the Barbers sent a proposed order by facsimile to Union Pacific with a notation that counsel intended to submit the proposed order to the court after the telephone hearing. The record does not reflect whether the proposed order was ever submitted to the court. It is clear, however, that the court did not sign the proposed order. Instead, the court filed a letter order on March 3, 2000, which stated as follows:
The court having considered Allied Waste Industries, Inc.’s objection to petition to approve settlement around workers’ compensation carrier and all matters finds:
That in accordance with Ark. Code Ann. § 11-9-410 and Arkansas case law that the Plaintiffs can settle around the WC.C. carrier if the settlement is approved by the court. However, the WC.C. carrier will have a lien on the proceeds of the settlement.
In response to that letter order, the Barbers notified Union Pacific via facsimile letter of their intent to appeal the court’s order. In fact, neither party appealed the order, or attempted to have the court reconsider its ruling. On March 27, 2001, or more than one year after the expiration of the settlement offer, Union Pacific sought to enforce the agreement against the Barbers.
The only substantive case that Union Pacific cites for the notion that the contract was enforceable one year after the stated expiration is Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994). Union Pacific cites Helms for the proposition that the fact a party-enters into a settlement that later appears to be improvident is no ground for relief. In that case, a spouse attempted to set aside a divorce settlement after admitting he consulted an attorney and nobody pressured him to sign the agreement. Id. Helms is inapposite.
Union Pacific sought to have the terms of the settlement agreement enforced. Specific performance is an equitable remedy which compels the performance of an agreement or contract on the precise terms agreed upon. City of Crossett v. Pacific Bldgs., Inc., 298 Ark. 520, 769 S.W.2d 730 (1989). The precise terms of the settlement agreement called for court approval prior to February 18, 2000. The circuit court ruled that the failure of the court to approve the settlement discharged the parties from their obligation to perform under the contract. The trial court’s ruling was correct.
VI. Motion To Strike
After the Barbers filed their brief on appeal, Union Pacific filed a motion to strike portions of the Barbers’ brief. That motion is still outstanding as we initially passed on it until the submission of the case. In their motion, Union Pacific requests that we strike three specific portions of the Barbers’ brief on appeal.
First, Union Pacific requests that we strike a “Table of Jurisdictions” included in the supplemental addendum to the Barbers’ brief on appeal. The “Table of Jurisdictions” is a list of cases from across the country that hold evidence of near-misses is admissible in railroad accident cases at the court’s discretion. Union Pacific contends that the list of cases should be stricken from the brief pursuant to Rule 11 of the Arkansas Rules of Appellate Procedure and Rule 4-2 of the Supreme Court Rules. In response, the Barbers explain that while the table was only pro-, vided as a research aid to the court, it may be disregarded./ Accordingly, as there is no dispute on the issue, we grant Union' Pacific’s request that we strike the “Table of Jurisdictions.”
Second, Union Pacific contends that we should strike a page in the Barbers’ supplemental addendum described as Plaintiff’s Exhibt 63-A because it is not part of the record. We note that while it appears Plaintiffs Exhibit 63-A may have been used at trial, it was never received into evidence and is not part of the record on appeal. This court will not consider a document which is included in the addendum and not in the record. Barnett v. Monumental General Insurance Co., 354 Ark. 692, 128 S.W.3d 803 (2003). Accordingly, we strike Plaintiffs Exhibit 63-A from the Barbers’ supplemental addendum.
Lastly, Union Pacific urges this court to strike a portion of the Barbers’ brief that purportedly accuses counsel for Union Pacific of suborning perjury. The pertinent section of the brief states:
Furthermore, while in Gore, at 579, the Court noted that the record failed to disclose any deliberate false statements, acts of affirmative misconduct, or concealment of evidence or improper motive, the record in this case reveals deliberate destruction of voice tapes, track inspection records, UP efforts to conceal evidence, and suborning perjury.
(Emphasis added.) At trial, the Barbers alleged that Union Pacific engaged in suborning pegury of key defense witnesses both before and during trial. The Barbers now assert that the statement in their brief on appeal was not an allegation of suborning perjury; rather, it was a statement of the issue before the court in upholding a punitive damages award. The Barbers then make allegations of fact which they contend support a good faith basis for the allegation. Specifically, the Barbers explain that certain crewmen recounted the accident in crew interview briefs, and then, after meeting with counsel for Union Pacific, changed their statements. The trial court was presented with the issue in the Barbers’ Response to Union Pacific’s posttrial motion for judgment notwithstanding the verdict. That argument was not pursued in the hearing on the motion and the circuit court never made a ruling on it.
Gibson v. Boling, 274 Ark. 53, 622 S.W.2d 180 (1981) is instructive on the issue. In that case, we granted an appellant’s request to strike a portion of the appellee’s brief which implied that the former solicitors for the appellants were dishonest and committed what amounted to subornation of perjury. Id. While we recognize that this case has been heated from start to finish, we think that the Barbers have gone too far in their brief on appeal by suggesting that Union Pacific and its counsel suborned perjury. Indeed, the Barbers concede that they are not asking this court to determine whether suborning perjury occurred. The claim of suborning perjury is tantamount to a claim that Union Pacific acted criminally. See Ark. Code Ann. § 5-53-110 (Repl. 1997). We grant Union Pacific’s request to strike that portion of the Barbers’ brief.
Affirmed.
Dickey, C.J., and Thornton, J., dissent.
At some point prior to Mr. Barber filing his workers’ compensation claim Browning-Ferris, Inc., merged into Allied Waste Industries, Inc.
To “settle around,” the setdement agreement expressly reserved Allied’s right to pursue its subrogation claim against Union Pacific to recover workers’ compensation benefits paid to Mr. Barber.
In addition to the briefs filed by Union Pacific as appellant, and the Barbers as appellees, amicus curiae briefs have been filed by the Arkansas Trial Lawyers Association, Railwatch, Inc., and The Kelly Waldron Memorial Foundation.
A motion for new trial is governed by Ark. R. Civ. P. 59 (2003).The rule specifically provides the grounds on which a new trial may be based. Ark. R. Civ. P. 59 (2003). Union Pacific fails to explain the basis, independent of its motion for a mistrial, for its motion for new trial. Accordingly, we treat this point on appeal as a claim of error with respect to the circuit court’s ruling on the motion for mistrial with the relief requested being a new trial.
In view of Attorney Easley’s conduct during jury deliberations, a copy of this opinion will be forwarded to the Committee on Professional Conduct.
We note that after submission of the appeal and oral argument, Union Pacific filed a motion to submit supplemental authorities. We denied the motion on February 5, 2004. Historically, we have been loath to entertain motions which directly affect a case after submission except in the most exceptional circumstances.We do not regard this situation to be so extraordinary as to warrant the special measures requested. See In re Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992).
The road master is also called the manager of track maintenance. | [
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Humphreys, J.
This is a petition by Sydeman Bios., Inc., to this court for a writ of prohibition to prevent the chancery court of the Ft. Smith District of Sebastian County from trying a suit brought by Mrs. Annie B. Whitlow to recover a personal judgment against petitioner for an alleged breach of a lease of her business building in Ft. Smith, and to enforce a lien for the payment of the amount claimed against trade fixtures owned by said petitioner in said city. It is alleged in- the petition that about four months before the institution of her suit in the chancery court, the petitioner, a foreign corporation, doing business by permission in the State, had withdrawn therefrom by discontinuing' its business therein and notifying the Secretary of the State of Ark ansas of such cessation of business, and of its retirement from the State, and that, on account of its withdrawal from the State, the chancery court acquired no jurisdiction of the petitioner by virtue of the summons issued out of said court and served upon the Secretary of State, who was designated by petitioner as its agent for service when it qualified under § 1827 of Crawford & Moses’ Digest to do business in the State.
An alleged lease and a breach thereof was made the basis of the suit by Mrs. Whitlow in the chancery court, in which she sought personal judgment against petitioner and a foreclosure of a lien provided for in the lease for rents upon trade fixtures it owned. A good cause of action was stated, but petitioner argues that the chancery court was without jurisdiction to render a personal judgment against it on account of the breach of the lease because service upon its designated agent when it entered the State is insufficient to give the chancery court jurisdiction of its person or corporate body. The solution of this question depends upon whether a foreign corporation may qualify to do business in this State and, after incurring obligations, can -withdraw from the State and defeat personal service on its agent in suits to enforce such obligations. According to the weight of authority, it cannot do so. The general rule is well stated in 12 Ñ. C. L., at page 1113, as follows:
“It is generally held that a foreign corporation, which has been admitted to do business within a State upon the condition that it execute a power of attorney for service of process to a general agent or State officer, cannot, after having designated some person for service of process and carried on business within the State, escape from the jurisdiction of the courts of the State over actions brought by residents thereof with whom it has contracted under the permission to do business therein by revoking the power of attorney for service of process and ceasing to do business within the State.”
The rule quoted above finds support in 14-A Corpus Juris, 1377.
The chancery court acquired jurisdiction over the petitioner by service upon the Secretary of State in the suit brought by Mrs. Whitlow against it, hence its application for a writ of prohibition is denied. | [
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Smith, J.
This suit was instituted by appellee, Mrs. Ola McArthur, for the purpose of having declared void a certain mortgage purporting to have been executed by her, in conjunction with her husband, W. R. McArthur, on July 13, 1929, to secure the payment of a note for $1,040, given to E. P. Walthall for the purchase of an automobile. The property described in the mortgage was the homestead of Mr. and Mrs. McArthur. An answer and cross-complaint was filed by Walthall, making Mr. McArthur a party, in which the execution and validity of the mortgage was alleged, and its foreclosure was prayed. The court found the fact to be that Mrs. McArthur had not signed or acknowledged the mortgage, and that it was void for this reason, and granted the relief prayed, and this appeal is from that decree.
The acknowledgment was in proper form, and purports to have been taken by W. D. Vance, a notary public, who testified that Mrs. McArthur appeared before him and acknowledged the execution of the mortgage. We do not give this testimony the weight it would ordinarily have for the following reasons: Mr. Vance was an abstractor of land titles, and knew full well the purpose and effect of acknowledgments, yet he admitted that Mrs. McArthur .did not appear before him at the time he fílléd in the certificate of acknowledgment and signed it and attached his seal thereto. He stated that he was unwilling to do this, but did do it at the request of Mr. McArthur only upon the promise that Mrs. McArthur would later appear before him and acknowledge the execution of the mortgage; that he kept the matter in mind, and that on September 20, 1930, Mrs. McArthur came to.his office, and, in response to his question as to whether she had signed the mortgage, she stated that she had. This was more than a year after the date of the alleged acknowledgment, and at that time the automobile, for the security of which the mortgage was alleged to have been given, had been taken out of McArthur’s possession. Vance testified that Dr. Berryman was present when Mrs. McArthur admitted signing the mortgage.
The note and mortgage in question were exhibited to M. A. Patrick and to Clarence E. Lemley, cashier and assistant cashier and paying teller, respectively, of the People’s Exchange Bank of Russellville, where Mrs. McArthur carried an account, and each stated that he would pay a check against her account on a signature similar to that appearing on the note and mortgage.
Mrs. McArthur testified that she did not sign either the note or the mortgage, and knew nothing of either until after the automobile had been taken from her husband’s possession, and that, when she had been advised that Walthall claimed to have a mortgage on her home, she consulted Dr. Berryman, who was her physician and financial adviser, and that they went together to the office of the clerk and recorder to examine the record, and that, when they found the mortgage of record, she called, with Dr. Berryman, at Vance’s office, and that she then men tioned the matter to Vance for the first time, and denied in his presence that she had ever signed either the note or- mortgage. She was fully corroborated by the testimony of Dr. Berryman.
Mr. McArthur testified that he signed the name of his wife to both the note and mortgage, and that, she had not authorized either signature. He also testified that he had on more than one occasion signed his wife’s name to checks on the People’s Exchange Bank against her account, which had been paid on presentation.
In response to a request so to do, both Mr. and Mrs. McArthur wrote the name “Ola McArthur” a number of times in the presence of the court, and the originals of these signatures have been brought before us. We are not handwriting experts, but we have carefully compared all these signatures with those appearing upon the note and mortgage, and those admittedly written by Mr. McArthur appear to resemble the signatures on the note and mortgage, as much so as those written by Mrs. McArthur in the presence of the court; indeed, they all look very much alike.
The law of the case is well settled. The property mortgaged being a homestead, it is essential to the validity of a mortgage thereon that it be both signed and acknowledged by Mrs. McArthur. Section 5542, Crawford & Moses’ Digest. Inasmuch as the mortgage was apparently signed and acknowledged by Mrs. McArthur, it was presumptively valid, and the burden was upon her to establish, by a preponderance of the evidence, that she did not sign and acknowledge it,. Eades v. Morrilton Lumber Co., 172 Ark. 52, 288 S. W. 1, and cases there cited.
The chancellor found the fact to be that Mrs. .McArthur did not sign or acknowledge the mortgage, and we are of the opinion that this finding is sustained by a preponderance of the evidence. As we have said, the testimony of the notary public does not, under the circumstances, carry much weight. Section 2472, Crawford & Moses’ Digest. He was, moreover, flatly contradicted ■by Dr. Berryman as to the alleged admission made more than a year after its purported date by Mrs. McArthur that she had signed the mortgage. Mr. McArthur wrote the name of his wife seventeen times in the presence of the court, and these signatures are strikingly similar to those appearing on the note and mortgage. It does not appear that either of the witnesses testifying as handwriting experts were examined as to these signatures, and we do not know what their opinion would have been in regard to them.
The court rendered a decree against McArthur for the balance due on the note, and declared this balance to be a lien on the automobile, from which decree there is no appeal, but canceled the mortgage as not having been signed and acknowledged by Mrs. McArthur. As we concur in this finding, the decree must be affirmed, and it is so ordered. | [
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Butler, J.
The appellant, W. H. Austin, and J. W. McAllister, entered into a contract with the J. R. Wat kins Company which was indorsed on the back of a contract entered into between the Watkins Company and one Hayes who had agreed to handle the goods of the •company. The contract made by Austin and McAllister, in so far as is material to an understanding* of the issues raised, is as follows:
■ - ■ “In consideration of one dollar to us in hand paid by the J. R. Watkins Company, receipt whereof is hereby acknowledged, and the execution of the foregoing agreement, which we have read or heard read and hereby agree and assent to, and the sale -and delivery by it to the party of the second part, as vendee, of goods and other articles as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, notice of default or non-payment, and diligence in bringing action against said second party, and jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles, and the prepaid freight, express, or postal charges thereon, at the time and place, and in the manner in said agreement provided. ’ ’
Hayes made default in the payment of sums due the company amounting to $437.10, with interest amounting to $483.67, for which the Watkins Company brought suit against Austin and McAllister. There was no controversy as to the amount due. After suit was brought McAllister paid the company $200, and the following written instrument was executed and delivered by the company to him:
“Whereas, J. R. Watkins Company, a corporation, has entered suit in the circuit court of Benton County, Arkansas, v. W. H. Austin and J. W..McAllister, defendants, seeking judgments against said defendants in the sum of $483.67, as sureties upon a certain bond that it is alleged that said defendants executed to plaintiff in behalf of Ernest' Chester Hayes on October 4,1927; and,
“Whereas, plaintiff and defendant McAllister have agreed upon full settlement of said suit, so far as the defendant McAllister is concerned,
“Now, therefore, the undersigned J. It. Watkins Company, in consideration of payment to it of the sum of $200 by the said J. W. McAllister, the receipt of which is hereby acknowledged, do hereby accept said sum in complete and full settlement of any and all claims that Watkins Company now have or claim by reason of the suit and bond herein mentioned, as against J. W. McAllister and agree to dismiss said suit as against this defendant with prejudice.”
At the conclusion of the introduction of testimony in the case, the defendant Austin requested, and the court refused, to charge the jury that a discharge by the creditor of one surety discharges all, and that, if the jury should find that McAllister and Austin were co-sureties and that the plaintiff received $200 from McAllister in consideration of which he was discharged, then a verdict should be rendered in favor of Austin’. The court, on the contrary, instructed the jury that the plaintiff had a right to release McAllister upon the payment of $200, and that in doing so did not release the defendant, Austin, from his obligation to pay one-half the amount due, if otherwise liable.
The case was submitted to the jury on the question of whether Austin did or did not cancel his contract with the company before the goods were shipped to Hayes. The evidence on this question was conflicting, and the instructions given by the court .on that issue appear to have been correct. The jury found in favor of the plaintiff in the sum of $200.
In appellee’s motion for a new trial, a number of errors are assigned, but none are urged -in his brief except the alleged error of the • court in refusing to give at his request, and giving at the request- of plaintiff, the instructions heretofore mentioned, by which the effect of the release given McAllister was submitted. Therefore all grounds of objections except the one relating to the effect of the release must be treated as abandoned. Shawmutt Lbr. Co. v. Waits, 122 Ark. 224, 182 S. W. 907; Fitzhugh v. Leonard, 179 Ark. 816, 19 S. W. (2d) 1010; Roath v. North Little Rock, 181 Ark. 1146, 28 S. W. (2d) 67.
We are of the opinion that the trial court correctly interpreted the effect of the release given McAllister, and it only exonerated Austin to the extent of one-half of the debt. This was the holding of the court in Gordon v. Moore, 44 Ark. 349, and Lashbrooke v. Cole, 124 Ark. 48, 186 S. W. 317. We find nothing in the cases cited by the appellant announcing a contrary doctrine. Therefore, on the authority of these cases we hold that there was no error committed by the trial court which has been urged upon our attention.
The judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). To sustain the judgment, counsel for appellees invoke the power given by the Legislature to municipalities to destroy buildings which have become nuisances. Special reliance is placed upon our former decisions to the effect that the rights of property, like other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislatures, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. McKibbin v. Ft. Smith, 35 Ark. 352. In that case it was claimed that an old building was being repaired. The undisputed facts, however, showed that the only integral portion of it remaining was part of the wall left standing which was used in the new building. The court said that, as under the facts the building was completely destroyed and another building had been erected on the lot, there was no liability against the officers of the city for razing the old building. This rule was under the well-established principle that, under the police power of the State given to municipalities, they might establish fire zones, and prohibit the construction of wooden buildings within such districts. It would naturally follow that new buildings of the prescribed character could not be constructed under the guise of repairing old ones.
The court reaffirmed the doctrine of Harvey v. Dewoody, 18 Ark. 252. In that case the officers of the town were sued for tearing down the plaintiff’s house. They justified under an ordinance declaring-the house to be a nuisance. They set up facts which tended to justify their plea. Among other things, it was alleged that the house had not been occupied by tenants for a long time, and that it was being used by the public as a privy; that its use, condition, and situation were such as to endanger the health and property of the citizens of the town. These facts were admitted to be true by a demurrer filed to the answer by the plaintiff. Proper notice was given the plaintiff under the ordinance to abate the nuisance. Therefore the court held that the matters set up in the answer demurred to were sufficient to bar' the action of the plaintiff. Consequently, it was held that the demurrer was properly overruled by the court below, and the judgment of the circuit court was affirmed.
In the case of McKibbin v. Ft. Smith, supra, the court recognized the law to be that, where a building has been removed by a police officer under an ordinance when, in fact, the owner had not in its erection violated any ordinance of the town inhibiting it, he may recover damages against the town for the removal, or have an injunction, "against the threatened removal, as the case may be.
In both the eases above cited, the facts were undisputed that the erection and use of the buildings constituted a nuisance, and the question was therefore one of law for the court.
Here the facts of the case as to whether the building constituted a nuisance are in dispute, and call for application of the well-established doctrine that no man can be summarily deprived of his property or the use thereof. The right to abate public nuisances is a common-law right, and is derived from the necessity of the case. It is akin to the right of destroying property for the public safety in ease of a devastating’ fire. Where the facts are in dispute, the authorities cannot justify on the ground of present necessity. Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 203; People ex rel., Copcutt, v. Board of Health of the City of Yonkers, 140 N. Y. 1, 35 N. E. 1, 23 L. R. A. 481, 37 Am. St. Rep. 522.
In the latter case, after reviewing the authorities on the question, the court said: “The result of these authorities is that whoever abates an alleged nuisance, and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril; and, when Ms act is challenged in the regular judicial tribunals, it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy, and is founded upon fundamental constitutional principles.”
This principle of law has been expressly approved by this court in Ward v. Little Rock, 41 Ark. 526, and Lonoke v. C. R. I. & P. Ry. Co., 92 Ark. 546,123 S. W. 395, 135 Am. St. Rep. 200. In both of these cases the court quoted with approval from the opinion of Mr. Justice Miller in Yates v. Milwaukee, 10 Wallace (U. S.) 497. After saying that the mere declaration by the city council that a certain structure was a nuisance did not make it so unless it in fact had that .character. The learned justice said further: “It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws, either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.”
In the present case the facts relative to whether the building was a nuisance or not were in sharp dispute, and the court should have submitted that question to the jury.
Inasmuch as the case must be remanded for a new trial, we call attention to the state of the record on the question of notice. No notice was ever served on the plaintiff, and no copy of the ordinance was posted on the premises. Giving- therefore to the ordinance its utmost legal effect, still the proceedings under it must be regarded as entirely void because it does not appear that jurisdiction was acquired over the plaintiff by giving the notice prescribed by the ordinance.
It follows that the court erred in directing a verdict for the defendants, and for that error the judgment must be reversed, and the cause remanded for a new trial. | [
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Butler, J.
This action is a proceeding for a writ of mandamus to compel the appellees to deliver to appellant’s deputy the tax hooks and other records belonging to the collector’s office in and for Stone County. From a denial of the prayer of appellant’s petition is this appeal.
We pass over the motion to dismiss the appeal for alleged failure to comply with rule 9 of this court, preferring to dispose of the case upon its merits.
The facts as stipulated in the court below are:
“That Sam Johnson is the legally elected and qualified sheriff of Stone County, Arkansas, having been elected at the November general election, 1930, for the term to expire December 31, 1932.
“That on the 19th day of November, 1931, the court made an order suspending the said Sam Johnson from office as sheriff and collector by the circuit court of Stone County, after five indictments had been returned against him by the grand .jury of said county. A copy of which order is attached hereto and made a part hereof.
“That the said Sam Johnson has never been tried on any of said indictments, but that the same are pending for trial at the May term, 1932, of said circuit court.
“That on the 25th day of November, 1931, after the suspension of the said Sam Johnson on the 19th day of said month, the Governor (of the State appointed and commissioned W. M. Brewer as sheriff and collector of ■Stone County, Arkansas, to serve as such during the suspension of the said Sam Johnson from the said office pending his trials on said indictments.
“That the said W. M. Brewer made his bond as sheriff and also made bond as collector, said bonds having been filed and approved on the 15th day of December, 1931. A copy of said bond being hereto attached and made a part hereof.
“That the said Sam Johnson, the duly elected collector, failed to file his bond as collector before or by the first Monday in January, 1932, as provided by § 19,031 of Crawford & Moses’ Digest, and has never filed any bond up to this time.
“That the plaintiff, Roy Y. Leonard, is the duly elected, qualified and acting Treasurer of State for the State of Arkansas.
“That the plaintiff, John B. Gower, was appointed by State Treasurer, Roy V. Leonard, in writing on the 21st day of January, 1932, as special deputy State Treasurer to collect the taxes of Stone County, Arkansas, for the current year, pursuant to § 10,034 of Crawford & Moses ’ Digest.
“That on the 22d day of January, 1932, the said Roy V. Leonard, as Treasurer of the State of Arkansas, made demand on the said T. E. Luther, the duly elected and qualified, acting county clerk of Stone County, Arkansas, and also the said W. M. Brewer, for all taxbooks, records, papers, receipts and moneys belonging to the collector’s office of Stone County, Arkansas, for the year 1932, upon which the taxes for the year 1931 had been extended, and from which the taxes for the year 1931 were to be collected, and that the said T. E. Luther and the said W. M. Brewer, each and both, refused said demand, and refused to turn over said records, books, papers and'moneys and still refuse to do so.”
In addition to this stipulation appellee Brewer testified as follows: “I was appointed sheriff and collector in November, 1931, and made a sheriff’s bond at that time. I didn’t make a collector’s bond until December 15th. That is the only bond I filed as collector. I was not reappointed collector after the first Monday in January. I have never filed another bond. I have never been reappointed collector.”
The validity of the appointment of the appellee Brewer by the Governor depends upon whether or not there was a vacancy in the office of collector of revenues for Stone County on the date of his appointment. The authority for the circuit court to suspend Sam Johnson from the performance of his duties as collector of revenues must be found in § 27 of art. '7 of the Constitution and in the enabling act to that section, now § 10,035 of Crawford & Moses’ Digest.
Section 27, art. 7, Constitution: ‘ ‘ The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office. ”
Section 10,335, Crawford & Moses’ Digest: “Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer shall be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant.”
It was decided in the case of Patton v. Vaughan, 39 Ark. 211, that “article 7, § 27, of the Constitution of 1874, empowering circuit courts to remove county and township officers upon indictment, etc., and the act of March 9, 1877, to regulate filling of vacancies in office', relate to the elective township and county officers provided for by the Constitution. * * * The only constitutional or statutory provisions to which we have been referred as bearing on this subject are § 27 of art. 7, of the Constitution of 1874, vesting jurisdiction in the circuit court to remove county and township officers upon indictment or information and the act of March 9, 1877, to resalíate the filling of vacancies in office. But these obviously relate to the elective county and township officers created by the Constitution itself.”
In Falconer v. Shores, 37 Ark. 386, it was said: “Before the adoption of the present Constitution the office of collector of taxes was statutory. The statute in force when the Constitution was adopted provided that the sheriff of each county should be ex-officio collector, and before entering upon his duties as collector should give bond before the first Monday of January of each year, etc. Gantt’s Digest, §§ 5157-9:
“Section 46, article 7, of the Constitution provides that the qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law, for the term of two years, thereby leaving the office of collector under legislative control.
“A person who is sheriff and collector, under existing laws, holds two distinct offices, and is required to give bond as sheriff and also to give bond as collector. Ex parte McCabe, 33 Ark. 396.”
“It is well settled that where the Constitution creates or recognizes an office, and declares that the incumbent may be removed in a specified manner or for specified reasons, the Legislature cannot constitutionally provide by statute for his removal for any other reason or in any other manner. ’ ’ Throop on Public Officers, p. 343-, quoted in Speer v. Wood, 128 Ark. 186, 193 S. W. 785.
In the case of Remley v. Matthews, 84 Ark. 598, 106 S. W. 482, the facts were that Strong, the regular acting-sheriff and ex-officio collector of Chicot County, was suspended from office on the 20th day of October, 1906, pending his trial on eighteen indictments which had been returned and filed against him charging him with malfeasance in office. The Governor appointed E. P. Remley as sheriff to act during the vacancy caused by the suspension of Strong. Remley filed his bond and oath of office and entered upon the duties thereof. He failed to make a collector’s bond prior to the first Monday in December, 1906. Strong also failed to give a collector’s bond within the time prescribed by law, and on March 8 following resigned his office as sheriff while still under indictment. On 'March 9, 1907, Remley was again appointed sheriff by the Governor and filed his bond as collector on the 13th of March, 1907. A special election was called for the election of sheriff to be held on April 15,1907, at which C. M. Matthews was elected sheriff and duly commissioned, and, having duly qualified on the 29th day of April, demanded of Remley the office of collector of Chicot County and the books and papers belonging thereto. This was refused, and the question before the court was, who was entitled to the office of collector— whether Matthews by virtue of his election at the special election, or Remley by virtue of his appointment on the 13th day of March, 1907 ?
In holding that Remley was entitled to the office, and not Matthews, this court said: “Strong failed to give the bond of collector within the time prescribed by law, and upon a certificate by the clerk to that effect the Governor appointed Remley to that office, pursuant to § 7042 of Kirby’s Digest. This was a valid appointment, for § 46, art. 7, of the Constitution leaves the office of collector under legislative control. Falconer v. Shores, 37 Ark. 386. In that case the court said: ‘Upon the failure of a sheriff to give bond as collector of revenue within the time prescribed by law, the Governor is required, upon notice of such failure from the county clerk, to declare the office vacant and fill it by appointment.’
“We are now brought to consider the length of his term. As we have seen, appellant was appointed pursuant to § 7042 of Kirby’s Digest. Section 7044 provides that he shall hold the office until the next general election, and until his successor is elected and qualified. In the case of Alston v. Falconer, 42 Ark. 114, it is held that where a person is appointed collector pursuant to the statutes, swpra, he is by law entitled to hold it until- the next general election and until his successor is elected and qualified.”
On the authority of these cases, it appears to be the contention of counsel for the appellant that the office of collector of revenues is not ari elective county office within the meaning of § 27, art. 7, and therefore a sheriff, acting ex-officio as collector, although suspended pending the hearing of indictments returned against him, may continue to perform the duties of collector of revenues during the time of his suspension as sheriff; that is to’ say, the order of the court temporarily removing him as sheriff does not remove him as collector, and consequently an appointment by the Governor of one to serve as sheriff does not carry with it the right to qualify and act as collector.
The cases heretofore cited are relied on to support this contention and especially that of Lemley v. Matthews, supra. In none of these cases was the point here involved before the court, and they do not justify the contention made. The language in Lemley v. Matthews thought to warrant the interpretation suggested by counsel is:
“Section 7993 provides for the removal of such officer upon conviction. It will be observed that Strong was not removed from the office of sheriff, but was only suspended pending the indictments against him. Remley was appointed sheriff on the 20th day of October, 1906, under § 7995 of Kirby’s Digest, authorizing the Governor to temporarily appoint an officer in the place of the suspended officer.
“This presents for our consideration the question, who was entitled to qualify as collector of the revenue of Chicot 'County in 1906, Strong or Remley"?
“In the case of Crowell v. Barham, 57 Ark. 197, 21 S. W. 33, Cockrill, C. J., said: ‘The offices of sheriff and collector, though usually exercised by the same person, are as separate and distinct as though held by different incumbents. Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 306. If the sheriff became collector by reason of qualifying as sheriff, there would be strong ground for contending that his general deputy was also deputy collector, as was held in the case of People v. Otto, 77 Cal. 45, 18 Pac. 869. But under our statute the sheriff becomes collector only when he qualifies as collector. He has the right by virtue of his office to become collector, but he may forfeit the right without forfeiting the office of sheriff. In that event the law authorizes the substitution of another in the office.’
“It seems clear then that Strong, and not Bemley, had the right to qualify as collector; for the reason that Strong was still sheriff. He did not cease to be sheriff because of his suspension pending the indictments against him.
“Strong’s suspension from the office of sheriff only disabled him from discharging the duties of the office, and did not take away the office itself. Only a removal from office could do that. He was still the sheriff, and by virtue of holding that office had the right to qualify as the collector of revenue.”
It is true the order of suspension did not remove the sheriff from office or divest him of any of its incidents among which was the right to act as collector of revenue (Vaughan v. Kendall, 79 Ark. 584, 96 S. W. 140), but it did serve to render the incumbent incapable of functioning for a time and until the disability was removed. As the giving of a bond is a prerequisite to the performance of the duties of collector (§ 10,028, Crawford & Moses’ Digest), and the failure to file it in the time prescribed works a forfeiture of the office (% 10,031, Crawford & Moses’ Digest), it was necessary, in order to preserve his right to resume his duties after the disability of suspension is removed, to make and file the collector’s bond. This he still had the right to do, although incapable of acting for a time, and this was all the court meant to say in the language quoted from Remley v. Matthews, supra, when interpreted in the light of the point decided. It did not intend to say that upon the filing of such bond he was entitled to perform the duties of collector, notwithstanding his suspension as sheriff, or that Remley, had he qualified as collector, could not.
The case at bar does not present the question of the power of the circuit court to remove a collector of revenue as such, but its power to suspend a sheriff under indictment. As the right to collect the revenues is an appanage of the office of sheriff, his suspension carries with it a vacancy for the time in the office of collector which he fills virtióte officii. Therefore, the order of suspension of the sheriff made by the court created a vacancy in the office of collector, because there remained no one authorized by law to perform its duties during the disability of the sheriff. In this situation § 10, 338, Crawford & Moses’ Digest, becomes effectual: “Whenever any officer shall be suspended from office on account of any presentment or indictment pending against him, the Governor may temporarily appoint an officer in his place, who shall hold until the disability of1 the officer so suspended is removed, or an election to fill the vacancy occurs, in case there is a judgment of removal.”
Johnson failed to make and file his collector’s bond, although he was entitled to do so after the order of suspension to preserve his rights as collector, in the event of the removal of his disability. The failure on his part ■ was not certified by the clerk to the Governor, and, no appointment being made to fill the vacancy occasioned by such failure, the Treasurer of State deemed the situation that contemplated in the second sentence of § 10,034 of Crawford & Moses’ Digest, which is as follows: “And if from any cause there shall be no collector of taxes in any county of this State, after the expiration of fifteen days from the time fixed by law for such collection to commence in any year, any taxpayer of such county, resident or nonresident, may, at any time before the time fixed by law for the regular collections to close, pay the amount of the State taxes, and of the general county taxes, poll taxes, district school taxes, taxes levied to pay interest on bonds issued, or to be issued, by a county, city or town in compromise of indebtedness existing at the adoption of the Constitution of 1874, road taxes, levee taxes and municipal taxes directly into the State Treasury, and the receipt of the Treasurer of the State therefor shall be as effective for all purposes as if made by a county collector. ’ ’
Appellant, State Treasurer, on this assumption, by special deputy, appellee Gower, demanded of the county clerk and W. M. Brewer, the taxbooks on the 22 day of January, 1932.
The appointment of appellee Brewer as sheriff during the disability of Johnson carried with it all the incidents appertaining to that office among which were the duties of collector and entitled him to perform the same upon the giving and filing of a collector’s bond, which he did. The failure of Johnson to file the collector’s bond, while working a forfeiture of the office as to him, did not vacate the appointment of Brewer, this appointment remaining effective during the disability of John- • son and until the vacancy was filled in the manner provided by law: §§ 10,031 and 10,038, Crawford & Moses’ Digest. There was, therefore, a collector of taxes on ' the 22d day of January, 1932, the date of appellant’s demand for the tax books, and there was no necessity for the evocation of § 10,034, supra,.
This case does not involve the question of removal or suspension of one holding the office of collector of county revenues by virtue of appointment when a vacancy occurs by the failure of the sheriff to make a collector’s bond, or where the office is created by the Legislature separate from the office of sheriff, and we are not required to say what authority would exist for the suspension or removal of the officer under that state of case.
It is suggested that we take judicial notice that the aggregate amount of the taxes to be collected in Stone County is greater than $15,000, and it is argued that since the collector’s bond filed by the appellee Brewer is for that amount only, it is therefore void on its face. This question appears not to have been raised in the court below, either on the trial or in the motion for a new trial, and therefore cannot be considered here. It may be observed, however, that if the bond was defective for any reason, the method is clear for its remedy. Section 10,028, Crawford & Moses’ Digest.
It is our opinion that the trial court correctly denied the appellants’ petition, and the judgment is affirmed. | [
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Kirby, J.
The appellees filed petitions with the Railroad Commission to require the Missouri Pacific to allow ,them $3 per car for switching cars by the gravel company’s locomotives in and between the gravel plants and the carrier for the transportation.
The gravel plants are at various distances from, and are connected -with, appellee’s railroad, by private spur tracks. Each of the gravel companies owns switch tracks and locomotives which they use in their plant, and which are also used in switching cars onto the tracks of appellant.
The spur tracks were constructed by the gravel company, the rails being leased from the carrier.
The gravel companies alleged that in their switching they were doing part of the line haul, which the carrier was obligated to do, and claimed that they should either have an allowance for that service performed for the carrier or that the carrier should he required to perform the switching.
The carrier contended that the service done by the gravel companies was a special service, and denied that the Railroad Commission had any jurisdiction to compel the service, or compensation in lieu of it. It claimed that it extended the service in so far as it participated at all under special contract for a private industry spur agreement, and that no part of the service was transportation service which it could be compelled to perform.
The Railroad Commission on its own motion instituted investigation into the question of reasonableness of requiring all carriers by rail either to perform the switching service, or to compensate the gravel companies for performing the switching service, and also to investigate questions of discrimination, and ordered other carriers to be made parties.
The carriers all filed responses, claiming that the Railroad Commission had no .jurisdiction, and that, if the Commission had jurisdiction, the switching for which allowance is claimed was no part of the transportation service, but was interplant operation for which no allowance should be made. The carriers also alleged that the enforcement of the allowances would work an illegal discrimination, and they also contend that the Commission’s order is void because its findings defeat instead of support the allowance.
Evidence was introduced, both by the appellees and appellant, and the Commission, after hearing the evidence, ordered that appellant either perform the service of delivering empty ears to the gravel pits of petitioners, and haul the loaded cars from the pits, or pay to the petitioners $2.50 per car for each loaded car handled, the order to become effective February 10, 1931.
The Missouri Pacific Railroad Company appealed to the Pulaski Circuit Court, where the case was heard, and the circuit court entered the following order:
“The court, being well and sufficiently advised as to all matters of law and fact arising’ herein, is of the opinion that the order of the Arkansas Railroad Commission should be in all things approved and affirmed.
“It is therefore considered, ordered and adjudged by the court that the order of the Arkansas Railroad Commission in this cause be, and the same is, hereby in all things approved and affirmed, and the defendant, Missouri Pacific Railroad Company, be, and it is hereby directed and ordered by the court to comply with the same.”
From this judgment of the circuit court the railroad company has appealed to this court.
It is contended by the appellant that the Railroad Commission was without jurisdiction to order the allowances for two reasons: first, because such allowances are not within any subject-matter over which the statute gives the Commission jurisdiction; second, the service is a special one, pursuant to contract, which contract the Commission has no jurisdiction to compel.,
The first question for our determination is whether, under the evidence in this case, the Railroad Commission had jurisdiction to try the case and make the order.
• Counsel on both sides have filed exhaustive briefs, and cited numerous authorities, which we have carefully considered, but which we do not deem it necessary to review here.
Our statute provides that the Commission shall make rules and regulations in respect to receiving, hauling, transporting and delivering of freight and express. Section 1649 of Crawford & Moses’ Digest.
Section 1650 of Crawford & Moses’ Digest authorizes the Commission to make and establish all needful rules and regulations, general and special, and for furnishing cars.
Act No. 124 of the Acts of 1921 also gives the Railroad Commission authority to regulate carriers.
These statutes were construed and the authorities reviewed in the case of Kansas City Southern Ry. Co. v. Ark. Railroad Commission, 175 Ark. 425, 299 S. W. 761. In that case the court, among other things, said:
“The comprehensive jurisdiction vested in the Railroad Commission by act No. 124, supra, which, as above set forth, extends to and includes all matters pertaining to the regulation and operation of trains and all other jurisdictions possessed by the Arkansas Railroad Commission under the Constitution and the laws of Arkansas in force on March 31, 1919, unquestionably confers jurisdiction on the Railroad Commission to correct all abuses that then existed, or might in the future obtain, by virtue of any act of the Legislature covering the special matters designated by act No. 149, as amended by act 338 of the Acts of 1907, and all other matters pertaining to the regulation of all common carriers, railroads, etc., set forth in act 124 of the Acts of 1921.”
The Railroad Commission would have the power to require the carrier to construct and maintain such switches and spur tracks as are reasonably necessary to properly serve the public, and if a carrier uses the private tracks of shippers for its purpose, the Railroad Commission would have the same right to regulate the switching on these tracks that it would on tracks which belonged to the carrier. The carrier, of course, could not be required to use the tracks of the shipper, nor could the shipper be required to permit the use of its tracks. That, as stated by the appellant, is a matter of contract between the parties. They, however, could not lawfully contract in such a manner as to discriminate against others. They could not so contract as to make the freight rates of the shipper either greater or less than the regular rates.
“The Commerce Act prohibits the payment of rebates, and its command cannot be evaded by calling' them differentials or concessions, nor by taking' the money from the railroad itself or from a company that is proved to be the same as the railroad.. Otherwise nothing would be easier than for lumber companies to charter a railroad, collect freight as a railroad, but pay it out as a lumber company to shippers.” Fourche River Rd. Company v. Bryant Lumber Co., 230 U. S. 316, 33 S. Ct. 887.
It is to prevent rebates, abuses and unjust discriminations that the Railroad Commission was created, and the laws creating the Commission and prescribing* its powers and jurisdiction are to be liberally construed to effect the purposes fur which they were created.
It is true that a common carrier cannot be required to receive freight on or along a private switch. The order of the Railroad Commission which was affirmed by the circuit court does not order the carrier to receive freight on a private switch. What the order does is to require the railroad company to do the switching, which is a necessary part of the transportation, or to pay the shipper for such service.
Appellant cites and quotes from Fairview Coal Co. v. Ark. Central Ry. Co., 159 Ark. 649, 252 S. W. 920, 32 A. L. R. 191, to sustain its contention that it cannot be required to receive freight on a private switch. The court in that case, however, said: “Where a railroad company furnishes sufficient facilities of its own for the receipt and delivery of freight, there is at common law no duty resting* upon it to receive or deliver freight upon a private siding or spur track. ’ ’
The carrier, however, must furnish sufficient facilities of its own, or it may use the facilities furnished by the shippers, but in either event it must either do that part of the switching which is a necessary part of the transportation, or pay the shipper a reasonable compensation for the switching.
In speaking of the power of the Commission, it has been said: “And in dealing* with the interest of the wider public we do not feel that the action of the Commission should be hampered or influenced by the necessity of considering* the effect of the improvement on the local public, when its effect on the wider public of which the local public is a part will be beneficial.” West v. Philadelphia-B. & W. Rd. Co., 155 Md. 104, 141 Atl. 509.
The Commission, before making the order in this case, on its own motion brought in the other railroads of the State so as to consider the entire question.
“The railway company owes a duty to the shipper, to the public, and to itself. The Commission is authorized by statute to supervise the practice and regulations of railroad companies, and make such orders in connection therewith as it determines to be reasonable.” Halliday v. Public Utilities Commission, 118 Ohio St. 269, 160 N. E. 713.
While there is some conflict in the evidence in this case, there is substantial evidence to show that the switching mentioned in the Commission’s order is a part of the line haul, and a service to be performed by the carrier, and while, as contended by appellant, the Railroad Commission would have no authority to compel it to use the private tracks of the shipper, the Commission does have authority to determine whether the public necessity and convenience requires the establishment of spurs and switches, and there is nothing in the law to prevent it from using the switches and spurs of others. It may either do this or provide facilities of .its own.
It is next contended by the appellant that, if the Commission had jurisdiction, the switching for which allowance was made is no part of the transportation service. As we have already said, while there is some conflict in the evidence, there is substantial evidence to support the finding that the switching was a part of the transportation service.
It is also contended by the appellant that the allowance will work an illegal discrimination. There is no evidence in the record, however, tending to support this contention.
It is finally contended that the order is void because the findings of the Commission defeat, instead of support, the allowance. We do not agree with appellant in this contention.
It is true that the Commissioner’s order stated that it was not clear how much of the service was plant faeil ity, etc. The Commission stated, however, that there was-enough service which should properly be done by the carrier to amount to $2.50 per car, and the evidence of appellant’s witnesses is to the effect that this is cheaper than the carrier itself could perform the services.
The Railroad Commission had jurisdiction; there is sufficient evidence to support its finding, and the judgment of the circuit court is affirmed. | [
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McHaney, J.
Petitioner is a foreign corporation, organized under the laws of Michigan, engaged in the casualty, fidelity and corporate surety business, and is so engaged in this State in compliance with its laws, with a general agency in Little Rock. It has in compliance with the law designated the Insurance Commissioner of this State, domiciled in Little Rock, Pulaski County, as its agent for service of process. On June 26, 1931, Fred Burnett, Jr., filed a suit against it in the circuit court of Yell County, Arkansas, Dardanelle District, alleging that prior to October 29, 1930, petitioner became surety for the completion of State Highway Project No. 4137 in Franklin County Arkansas; that subsequent to said date it took over the work of the principal, entered upon said work, became the principal contractor and completed same; that a part of the work to be done was the painting of a line down the middle of the highway constructed; that, after painting the line and in order to deflect traffic from the freshly painted line, it caused to be placed in the highway large rocks and neglected and failed to display warning lights for the safety of the public; that while riding- along- said highway as a guest in an automobile same was wrecked by coming in contact with one of said stones, and that he received painful injuries, for which he prayed damages in the sum of $2,990. Summons was issued on said complaint and service had on the Insurance Commissioner. On these facts petitioner alleges that the respondent as judge of the Yell Circuit Court has no jurisdiction to proceed in the premises for the reason that said court has no jurisdiction of the person of the petitioner and acquired none by service outside of Yell County. It states that it is not doing any business in Yell County, and that, it has no agent therein, and that, unless prohibited by this court, the respondent will proceed, assume jurisdiction of said cause, render judgment against it, and cause it irreparable injury, all in violation of the rights guaranteed to it by § 11 of article 12 of the State Constitution, and by the 14th Amendment to the Constitution of the United States wherein the equal protection of the laws are accorded it.
The respondent entered his appearance in this court, and agreed that he would take no action in the case pending- in his court until this court passes upon this petition.
Petitioner did not appear in the Yell Circuit Court and object to the jurisdiction of the court, nor did it move to quash the service had upon it for lack of jurisdiction. The respondent, however, appears here and has filed a brief asserting his jurisdiction. The general rule is .that objection to jurisdiction must be raised in the lower court and overruled before the writ of prohibition will issue, but this rule is subject to certain exceptions. It has been held by this court that objection in the inferior court to its exercise of jurisdiction is not a jurisdictional fact upon which the power to issue the writ depends, but is discretionary and is not necessary where it would obviously be futile and would result in unnecessary or hurtful delay. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S. W. 59. Also that where the respondent judge appears in response to the petition for prohibition and asserts jurisdiction of his court to proceed, it is unnecessary to await the making of formal objection in the court below. Nissen v. Elliott, 145 Ark. 540, 224 S. W. 958. See also State v. Martineau, 149 Ark. 237, 232 S. W. 609. We therefore follow these decisions and hold that it is unnecessary and would be futile to postpone the case for formal objection in respondent’s court to the jurisdiction, since he now appears and asserts jurisdiction of his court to proceed.
The principal question to be decided is that of the jurisdiction of the Yell Circuit Court over the person of petitioner. The applicable statute is that relating to guaranty and surety companies. Section 6132, Crawford & Moses’ Digest, provides that both domestic and foreign surety companies may transact a surety business in this State on compliance with this statute and not otherwise. Section 6133 provides: “No surety company incorporated under the authority of this State, or of any other State or foreign country shall, directly or indirectly, transact business in this State until it shall have first appointed in writing a duly authorized agent in this State to be the true and lawful agent of such company in and for the State, upon whom all lawful process in any action or proceeding against the company, which said action or proceeding may be instituted in the county in which the plaintiff resides or has its principal office if a corporation, may be served with the same effect as if the company existed in this State. Said appointment of agency shall stipulate and agree on the part of the company that any lawful process against the company which is served on said agent shall he of the same legal force and validity as if served on the company; and that the authority shall continue in force so long as liability remains outstanding against the company in this State. * * * Service upon such agent shall be deemed sufficient service upon the principal.”.
Petitioner complied with the above statute, and has named the Insurance Commissioner as its agent for service, and service was had upon such agent. Was the service good? The plaintiff in the suit below is a resident of Yell County. It will be seen that the above statute makes no discrimination between foreign and domestic surety companies. Both are treated exactly alike. Neither can do any business in this State except upon compliance with said section. It therefore appears to us that this statute does not offend against § 11 of article 12 of our Constitution which provides that foreign corporations may do business in this State under such restrictions as may be provided by law, and, among other things, “as to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State.” Nor does it offend against the equal protection clause of the 14th Amendment to the Constitution of the United States. Instead it provides for the equal protection of all surety companies, both domestic and foreign, and this is a proper classification, one within the power of the Legislature to make, as foreign surety companies are placed in the same class with “like corporations of this State.”
The case of Power Manufacturing Company v. Saunders, 274 U. S. 490, 47 S. W. 678, is relied upon by petitioner as supporting its contention. We think the rule announced in that case has no application here, for the reason that no discrimination is made under this statute in favor of domestic corporations. It is true that petitioner is not engaged in business in Yell County, and that the injury for which the suit was brought was received in Franklin County while petitioner was engaged in completing a highway for a person for whom it was surety. This was an incident of its surety company business. It had the authority under its contract to take over the work and complete it. In doing so, if it was guilty of negligence causing injury to another, an action thereon may be said to .grow out of its business as a surety company. The statute provides that lawful process may be had upon it “in any action or proceeding.” We are therefore of the opinion that the action was properly brought in the county of the residence of the plaintiff, and that the service had does not violate any constitutional right of petitioner. Compare Grand Court, etc., v. Carter, 184 Ark. 819, 43 S. W. 531.
The writ will be denied. | [
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Mehaffy, J.
On October 22, 1930, the appellant, J. B. Ross, filed a claim in the county court of Clark County for damages to his land and crop, caused by taking- land for right-of-way, damage to land other than that taken, and damage to crops, totaling $13,000. The claim was disallowed by the court, and an appeal was taken by Ross to the circuit court, where .judgment was rendered in favo! of Ross for the sum of $187.50.
Motion for new trial was filed and overruled, and the case is here on appeal.
Prior to filing the claim in the county court, Ross, the appellant, had signed the following agreement, with other landowners:
“We and each of us agree to the following-agreement, that if all fences are moved and replaced in the proper place necessary for the protection of our property caused by the building of the said highway at the expense of the county or State, and. all houses in or immediately adjacent to the proposed right-of-way are moved at the expense of the State or county and located on the spot of ground selected by the owner, to be a reasonable distance from the present site and from the proposed right-of-way across bur property, we will give the right-of-way across our property.” (Signed by appellant and others.)
The evidence does not show when this agreement was signed, but the State Highway Commission filed a petition in the Clark County Court for changing and widening State highways, and on September 25, 1930, there was an order of the county court of Clark County granting the petition of the Highway Commission.
It was after the filing of the petition by the Highway Commission and-the order of the county court thereon, that the appellant filed his claim in the county court of Clark County asking damages as above mentioned.
The evidence was in conflict as to the market value of the land taken and damaged, and was in conflict as to the amount of damages caused by the construction of the highway. It is not necessary to set out the evidence in this opinion.
The agreement set out ábove, which was signed by appellant, does not show either the location of the road or the width of the right-of-way donated, and it is impossible to tell from the record what changes were made, if any, through appellant’s land, by the order of the county court. This, however, is immaterial. The evidence shows that the right-of-way mentioned in the agreement was to be 100 feet wide. It also shows that the county was to pay all the damages caused by the construction of the road, and that the county was to remove and rebuild the fences, and it is claimed that this was not done.
The evidence that the county agreed to remove and rebuild the fences is undisputed. Ross testifies positively that it was agreed at the time the agreement above set out was signed that the county would build the necessary fences, and, if any damages occurred, the county would pay for them and leave the land in just as good shape as they found it; that it would be necessary to build about one-half mile of fence on both sides. He also testified that it would cost from $100 to $150 to build the fences.
It is true the county judge testified that he made no agreement outside of the written agreement, but he admitted that he had a conversation with Mr. Ross in regard to the matter, and said, if Mr. Ross spoke to him about the fences, he did not have any recollection of it. He therefore does not dispute Ross’ testimony, but simply says he does not remember it.
Wells testified that the right-of-way was to be 100 feet. ' This is not in the written agreement, and he therefore must have made some agreement in addition to what was written. The agreement to donate the land was never carried out.
At the request of the appellee, and over the objections of the appellant, the court gave the following instructions :
“No. 1. If you should find for the plaintiff, the measure of his damages is the fair market value of the land actually taken for the roadway, other than the amount of land donated by the plaintiff to sepure said roadway, plus the damages, if any, to the remaining land of plaintiff not taken, caused by the construction of the new highway, less the benefits to the land, if any, by reason of the construction of the new highway.
“No. 2. You are told that, in arriving at the amount of plaintiff’s damages, it is your duty to consider the benefits which have accrued to his land hy reason of the construction of the new highway, if you find that the land was benefited thereby, and that you should deduct said benefits, if any, from any damage you may find has been caused to plaintiff’s lands by reason of the construction of said highway. And, if you find that the benefits derived equal or exceed the damages, you should find for the defendant Clark County.”
These instructions were erroneous, and should not have been given, for the reason that the court told the jury that they could consider the market value of the land taken other than the amount donated, plus damages, if any, to the remaining land, not taken, caused by the construction of the road, less the benefits to the land, if any, by reason of the construction of the highway. The correct measure of damages is the market value of the land taken, including that donated, plus the damages, if any, to plaintiff’s land not taken, less the special benefits, if any, by reason of the construction of the highway. In other words, the appellant was entitled to recover the market value of all land taken, and the damage done to land not actually taken, less the special benefits to appellant’s land, if any, by reason of the construction of the highway.
The Constitution provides that private property shall not be taken for public use without compensation. It has, however, been settled by the decisions of this court that, in taking private property for public use, the benefits accruing to the owner’s land may be taken into account in measuring his damages. Holt v. Crawford County, 169 Ark. 1069, 277 S. W. 520; Hempstead County v. Huddles ton, 182 Ark. 276, 31 S. W. (2d) 300; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62; Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707.
The benefits mentioned in the decisions mean special benefits.
This court said: “The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken, so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar, and special to the owner’s land who has been required to yield a portion pro bono piMico.” Paragould v. Milner, 114 Ark. 334, 170 S. W. 78.
The State or county or any other agency taking private property for public use has no claim against the owner of such property because the improvement benefited the owner. It is only permitted to set off the benefits against the damages to the owner’s-land. Where a public improvement is made by assessing benefits against property, of course the benefits may be set off against any damages, but when private property is taken for public use, under power of eminent domain, it must, under the provisions of our Constitution, be paid for. The owner must be compensated for the property taken or damaged, and he is not compensated by benefits which all other landowners receive without any payment therefor. The benefits therefore which may be set off against the damages are special benefits accruing to the land of the particular owner.
To hold that benefits that accrue to all landowners could be set off against the damages would not only be unjust, but it would violate the Constitution which prohibits the taking of private property for public use without compensation. The constitutional provision reads as follows:
“The right of property is before and hig’her than any constitutional sanction; and private property shall not be taken, appropriated, or damag’ed for public use without just compensation therefor.” Article 2, § 22, of the Constitution.
“And it has been held that the opinions of non-experts who have had an opportunity of special observation are admissible in cases where the facts are stated and are such as to permit a nonexpert to reach an intelligent opinion, and it appears that the opinions derived therefrom are more valuable to the triers than those of scientific men personally unacquainted with the facts. To preclude nonexpert opinion in such cases would be to close a wide and important avenue to the truth.” Jones on Evidence, vol. 3, 2294.
The general rule is that the opinion of a witness cannot be given — the witness relating the facts' from which the jury form their opinion. The rule, however, is not universal. Where the witness has had the means of personal observation, and the facts and circumstances which lead the mind of a witness to a conclusion are incapable of being detailed or described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is often allowed to add his opinion or the conclusion of his own mind. Lawson on Expert and Opinion Evidence, 2d ed. 509; Fort v. State, 52 Ark. 180, 11 S. W. 959; Galveston H. & S. A. Ry. Co. v. Daniels, 9 Tex. Civ. App. 253, 28 S. W. 548; McLeod v. Lee, 17 Nev. 103, 28 Pac. 124; 22 C. J. 531-561.
If there were crops growing on the land at the time it was taken or damaged, it would of course be proper to take into consideration the value of the crops destroyed or damaged.
We have not discussed the instructions requested because in another trial of the case the parties will be governed as to the measure of damages by the rule above announced.
The judgment of the circuit court is reversed, and the cause remanded for a new trial. | [
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Smith, J.
A petition for certiorari has been filed in this court, from which, with the responses thereto, the following facts are made to appear. On December 21, 1931, the county court of Crittenden County made five separate orders changing the lines between certain townships in that county, and one of the effects of each of said orders was to move a Democratic county central committeeman from his township into another. The changes made by these orders were as follows. By one of them the residence of Joe Summerville was changed from Mississippi Township to Proctor Township. The residence of E. D. Grooden was changed from Mound City to Jasper Township; the residence of P. J. Hixon was changed from Fogleman to Wappanocca Township; the residence of Les A. Barton was changed from Black Oak to Fogleman Township; and the residence of J. R. Hood was transferred from Tyronza to Black Oak Township.
On the same day on which these orders were made by the county court, the Democratic county central committee convened in special session, at which meeting the chairman of the committee refused to recognize the five committeemen hereinabove named, for the -reason that they, having been transferred out of the townships for which they had been elected, by the orders of the county court, were no longer members of the committee.
An appeal from this ruling of the chair was made, and nine committeemen, including the five sought to be disqualified, voted to sustain the appeal, and four committeemen voted to sustain the ruling of the chair. The chairman refused to- recognize the right of the five committeemen above-named to vote, and declared their offices vacant, whereupon these five, with fqur others; declared the office of chairman vacant, and by the same vote elected a new chairman, and the nine committeemen who voted to overrule the chair, including the old secretary of the committee, adjourned subject to the call of the new chairman. The old chairman and the four committeemen who voted to sustain his ruling remained in session and proceeded to elect successors to the five committeemen, whom they claimed had been ousted from office, together with a new secretary of the committee after which they sent a certified copy of their minutes showing such elections to the Democratic State Central Committee.
Thereafter these five committeemen whose residences had 'been changed from one to another township by the orders of the county court filed a petition in the circuit court for a writ of certiorari, praying that the orders of the county court he quashed. It was alleged by these petitioners that the purported orders of the county court were void for numerous reasons, among ■ others that they were made by the county judge, and not by the county court.
On February 1, 1932, an application was made to one of the judges of the circuit of which Crittenden County is a part for a temporary order preserving the status quo, and an order was made by the circuit judge which recited that a prima facie showing had been-made that the orders of the county court were void, and upon this finding it was ordered “that any and all persons are hereby restrained from recognizing any purported order of the Crittenden County Court purported to have been made on December 21, 1931, in the matter of changing township lines until the final hearing of this cause.”
Another proceeding of similar nature was filed, which included additional parties, in which the circuit judge made an order restraining the county clerk from entering’ the orders changing" the -boundary lines of the townships until the further order of the circuit court.
Thereupon this proceeding was begun in this court in the name of the chairman and secretary of the State Democratic Central Committee and the chairman and secretary of the Crittenden County Central Committee as reorganized, in which they prayed that a writ of certiorari issue directed to the clérk of the circuit court of Crittenden County commanding him to certify up to this court a certified transcript of all records in the Crittenden Circuit Court in the matter of changing township lines, and the two causes hereinabove referred to there pending, and “that, upon the coming in and inspection of said records, the orders therein made, to the extent they are beyond the jurisdiction of the circuit court as herein set out, be quashed, and that, pending the hearing upon such writ, a temporary restraining order issue prohibiting both the circuit judges of Crittenden County from proceeding further in either of said causes until the final order of this court, and for all other appropriate relief. ’ ’
The records referred to have been brought up on certiorari and are now before us, and it is insisted that the orders of the circuit court staying all proceedings in the matter of the changed lines of the townships were void as being in excess of his jurisdiction.
In support of this contention, it is argued that the effect of the orders of the circuit court is to assume jurisdiction of a contest for places on the Democratic County Central Committee, a subject over which the committees of the party, State and county have exclusive jurisdiction, and over which the courts have no jurisdiction.
It is our opinion, however, that the circuit court has not acted without jurisdiction or in excess of its jurisdiction, as petitioners contend.
It must be remembered that the circuit court has appellate jurisdiction to review all orders of the county court, and, in the exercise of this jurisdiction, the power inheres to make such orders as appear to be appropriate. The circuit court has the jurisdiction, for instance, to decide whether the orders in regard to the township lines were void as not having in fact been made by the county court, just as it has the jurisdiction to determine that these orders, even if made by the county court, were erroneous as being an abuse of the discretion vested in the county court in this behalf. The circuit court unquestionably has the jurisdiction, upon hearing the appeals which have been prosecuted from the orders of the county court, to vacate those orders and set them aside as being an abuse of the discretion of the county court, and pending the hearing* of the appeal the circuit court has the jurisdiction to 'preserve the status quo.
These are, of course, elementary principles, which petitioners concede to be true, but which they say do not apply here for the reason that they are concerned only in the membership of the county central committee, which question they say is purely political, and one over which the courts have no jurisdiction whatever, and the case of Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, is cited to sustain this contention.
The cáse just cited was brought to contest the election of a township committeeman, and the suit was dismissed by this court on the ground that “the courts will not assume jurisdiction of contests for the offices of committeemen or delegates of a political party” to a convention of the party, for the reason that the law governing the primary election out of which the contest arose had not conferred jurisdiction on the courts to hear contests over an election for 'places on county committees.
The history of our primary election law is a matter of common knowledge. The case of Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 180, was one in which there was an attempt to contest in the courts of the State the nomination of the Democratic •party for the office of 'Governor, and in that case we reversed the action of ‘the Pulaski Chancery Court, which had assumed jurisdiction of the contest. The decree of the chancery court’ was reversed, for the reasons stated, that the question involved was political, and not juristic. However, an act was initiated and adopted by the people, which is referred to as Initiative Act No. 1, which appears at page 2287 of vol. 2 of' the Acts of 1917, which conferred jurisdiction upon the courts of the State to enforce the provisions of this initiated act.
The validity of this act is not'questioned, and the jurisdiction there conferred has been frequently exercised iby the courts of the State, as appears from the numerous reported cases by this court which arose under that act.
Section 12 of this act conferred the right to contest nominations in certain cases, and this § 12 of the initiated act appears as §§ 3772 and 3773, Crawford & Moses’ Digest. Section 3772, Crawford & Moses’ Digest, was construed in the case of Tuck v. Cotton, supra, and it was there held that § 3772, supra, which authorized contests of elections in certain cases, did not embrace committee places, for the reason that such places were not offices within the meaning of the law. It was said, however, that “the Legislature has the authority to give the courts jurisdiction in those matters,” and that the courts would exercise such jurisdiction as had been conferred.
The case of Tuck v. Cotton, supra, does not apply here, for the reason that there is no contest over the election of these committeemen. That the committeemen were duly elected, and for a term of two years, and that their terms have not expired, are undisputed facts; and it is also undisputed that they are committeemen unless the orders of the county court removing them from one township into another have the effect of vacating their places.
The election law is not silent, however, upon the subject of vacancies in committee places. Section 8 of the act, which appears as § 3764, Crawford & Moses’ Digest, deals with the subject of vacancies in delegations to conventions and in county committee memberships. It is made optional with the political party to avail itself of the provisions of the primary election law. The party may employ this law or not in the selection of its candidates, but, when the option has been exercised to employ the law for the purposes intended, the act must be followed, and it governs in all situations to which its provisions are applicable. The case of Tuck v. Cotton, supra, expressly recognizes that the power inheres in the Legislature to enact legislation for such supervision and control.
It was contemplated by this act that vacancies might arise in delegations to conventions called pursuant to the act and in the membership of the county committees elected under the authority of the act.
The primary election law requires the election of the committeemen by the voters at an election, and provides that only names of those certified as required by the act shall be printed on the ballot, unless no name has been certified, and provides who shall be eligible to be voted for, and that the election of ineligible persons to those offices shall be void.
The opinion in the case of Tuck v. Cotton, supra, quoted with approval the statement of the law appearing' in the chapter on Elections in 9 R. C. L., page 1088, § 98. In the preceding section of the same chapter it was said: “The dormant idea pervading the primary law is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus be given effect, whether it is in accord with the wishes of the leader of his party or not, and so shall be put in effective operation in the primaries. In ether words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards. And, in order to accomplish this end, not only is it necessary to protect the right of party members to vote at the primary as ag’ainst unreasonable regulation, but also to protect the committeeman or other party officially elected thereat from being summarily ejected from his place in the party organization. So, where the primary law provides for party committees and the election of party committeemen, membership maybe gained in no way other than that provided by the statute, namely, by the suffrage of the party members at the'primary election. The committee cannot remove the committeemen so elected, and it is the duty of the court to give full force and effect to the legislative intent so manifested.”
As has been said, provision is found in the Initiated Act for filling vacancies, both in delegations to conventions and in committee memberships, and this provision is found in § 8 of the act, which appears as § 3764, Crawford & Moses’ Digest, and reads as follows: “The county conventions shall at said time declare the result of .said primary election and select delegates and alternates to all conventions. Provided, nothing in this act shall be construed to prohibit the State Central Committee from making any rules that it may think wise for the election of delegates to the National Convention, and said delegates may be elected before the primary election. No candidate for office, or office-holder, or deputy of an office-holder, shall be eligible to membership on county central committees, or as a delegate to county or district conventions, or as a. judge or clerk of any primary election. The selection of ineligible persons shall be void, and the vacancy filled as other vacancies are herein provided to be filled. Vacancies in the delegation to a convention, arising from death, absence, resignation or ineligibility, shall be filled by the alternates in the order of their selection, and, in absence of alternates, by the remaining members of the delegation. Vacancies in the central committee shall be filled by the committee.”
It thus appears that the statute has provided when vacancies can be said to exist and how they may be filled in either convention delegations or in committee memberships. There is no contention here that any vacancy has been created in the committee membership by death, absence, resignation or ineligibility. There has been only a change in the lines of the townships in which certain committee members resided at the time of their election, and no other question as to their eligibility is raised.
Under the statute the electors elect their committeemen, and they are elected for a definite time, and they have the right therefore to serve as such until, under the statute, conditions arise which constitute a vacancy. It is then and then only, that the central committee, as a body, is authorized to elect their successors.
While the members of the committee are elected in the township or city ward in which they reside, they become, upon their election, members of the county committee, and the authorities appear to be unanimous that after such election the right to discharge the functions of a committeeman is not affected by a subsequent change of boundary lines which would place the residence of the committeemen in another township or ward, and this change of lines does not automatically or otherwise affect the incumbent, but the committeeman, if he remains otherwise eligible, continues as such until his successor is elected pursuant to the provisions of the law regulating the election.
It is said that the changes of the township lines have removed certain justices of the peace, who are township officers, from the townships for which they were elected, into other townships, but this action did not operate to deprive them of their offices. Section 6395, Crawford & Moses’ Digest, reads as follows: “When a township shall be divided, and any justice of the peace of the original township shall fall into the new township, he shall continue to discharge the duties of a justice of the peace until his commission expires, in the same manner as if such township had not been divided, only his process shall be in conformity with the name of the township in which he resides. ’ ’
This statute, while applicable only to justices of the peace, is declarative of the principles of law which govern in the question here involved.
The case of State ex rel. Norwood v. Holden, 45 Minn. 313, 47 N. W. 971, arose under a statute of the State of Minnesota -which provided that the board of county commissioners should, after the Federal census of the population of the county, proceed to redistrict the county, and this action of the board, when taken, resulted in excluding certain commissioners from the districts of the county in which they had been elected as members of the county board before the census was taken. The question was raised whether the members who had been removed from the districts of the county in which they had been elected had ceased to be members of the board. In holding that these commissioners had not ceased to be members of the county board, the Supreme Court of Minnesota, speaking through Mr. Justice Mitchell, said: “In our opinion, an order redistricting a county is merely prospective in its operation as to the election and qualification of members of the board of commissioners, and iu no way affects the right to the office of those previously elected. There is’ nothing in the language of the statute to indicate that a redistricting is intended to have any retrospective operation. On the contrary, the language of § 94 favors the opposite view. The commissioner, it says, ‘must at the time of his election be a resident of said district and shall reside therein during his continuance in office.’ What this last clause has reference to is an actual change of residence, and not a change of district boundaries. The division of a county into districts is merely for election purposes. The duties of commissioners are not local, or to be performed in only a particular part of the county. On the contrary, they are merely members of an entire board which acts as such for the entire county. Any other construction would lead to the gravest abuses, and often entirely defeat the popular will as expressed at the polls. * * * It_seems that it was assumed that if relators had, by reason of the redistricting, become disqualified from taking their seats on the board in January, this created vacancies which the chairman and the boards of town supervisors were authorized to fill. But this was a mistake, for it would hot be one of the events the happening of which would create a vacancy under the provisions of Gen. St. 1878, C. 9, § 2. # * * The practical result, then, of respondents’ construction of the law is that it is in the power of a majority of the hoard of commissioners, by gerrymandering the county, to legislate out of office any two of their own number, or to keep out of office those who have been elected their successors, and hold onto the offices themselves for two years longer than the terms for which they were elected. There is nothing in the language of the statute which compels a construction leading to consequences so dangerous and unjust. ’ ’
A late case on the subject is that of Olsen v. Merrill, 5 Pac. (2d) 226, where, after an extensive review of the authorities, it was held by the Supreme Court of Utah that members of the board of education of cities of the second class are entitled to serve as members of the board for the remainder of their terms, notwithstanding an ordinance redistricting the city placed them outside the boundaries of the municipal wards for which they were elected.
See also, State v. Craig, 132 Ind. 54, 32 Am. St. Reps. 237; State ex rel. Atty. Gen. v. Board of Supervisors, 21 Wis. 449; State ex rel. O’Connell v. Nelson, 7 Wash. 114, 34 Pac. 562; People v. Markham, 96 Cal. 262, 31 Pac. 102; State v. Lake, 16 R. I. 511, 17 Atl. 552; State v. Swearingen, 12 Ga. 23; State v. George, 23 Fla. 585, 3 So. 81; State ex rel. Childs v. Marr, 65 Minn. 243, 68 N. W. 8; Standford v. Lynch, 147 Ga. 518, 94 S. E. 1001; State v. Craig, 132 Ind. 54, 16 L. R. A. 688, 31 N. E. 352, 32 Am. St. Reps. 237; Brungardt v. Leiker, 42 Kan. 206, 21 Pac. 1065; State ex rel. Connolly v. Haverly, 62 Neb. 767, 87 N. W. 959.
It is true these are cases where officers were removed by changes in lines from the ward or district or township in which they were elected, whereas in the instant case the committeemen are not officers, but that fact does not affect the legal principles which control. The controlling legal principle is that the committeemen were elected at an election made legal by the primary election law, and for a definite time not yet expired, and it is true also that upon their election they become county committeemen, although elected by townships or wards. Their functions are not confined to the township or ward in which they reside, but they, in conjunction with other committeemen similarly elected, are committeemen for the county, and changes in the lines of their townships or wards do not affect their eligibility, for the reason that such changes are prospective in their nature so far as the incumbents affected are concerned. We find no division in the authorities on this subject.
If, however, the rule were otherwise, the conclusion which we have reached would not be changed. It appears from the record before us that the circuit court found the fact to be, upon the applications for the orders preserving the status quo, that a prima facie showing had been made that the orders of the coiinty court were void, and for that reason all proceedings thereunder- should be stayed until the final determination of the validity of the orders on the appeals which have been prosecuted to the circuit court and which are there now pending and undisposed of. Certainly, if the county court had the authority to make the orders in question, the circuit court had the jurisdiction to review them. The circuit court has the same jurisdiction on appeal which the county court had originally, and the circuit court may make such orders as in its opinion the county court should originally have made. Horn v. Baker, 140 Ark. 168, 215 S. W. 600.
The appeals from the county court.to the circuit court are now pending and are undisposed of, and the orders of the circuit court which the petitioners here seek to quash are interlocutory and not final, and the practice has long been settled that an appeal does not lie from such orders.
In the case of Sanders v. Plunkett, 40 Ark. 507, it was held, to quote a headnote, that “The order of a chancellor at chambers, dissolving an injunction issued by him in vacation, is interlocutory and cannot be quashed by the 'Supreme Court on certiorari, nor appealed from until final judgment in the circuit court.”
In the opinion in this case Mr. Justice Eakin, for the court, said: “We cannot regard any mere interlocutory order of a judge at chambers, made in the cause, as final, in the sense of being subject to appeal. There must be a final order of the court itself upon the rights of the parties. Interlocutory orders are always subject to the control of the court, and remain so from term to term until a final adjudication upon the rights of the parties. Then the final order, perpetuating or dissolving them, becomes subject to appeal. The present application (for certiorari) is not an appeal.” For these reasons the writ of certiorari there prayed was denied. See, also, Mallett v. Hampton, 94 Ark. 119, 126 S. W. 92.
The case of Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596, is. cited and relied upon by petitioners for the writ here applied for. That was a case in which the chancery court, on complaint of owners of land in an improvement district, had removed the commissioners, and had directed the receivers to take charge of the affairs of the district and discharge the duties imposed by law upon the commissioners. We quashed this order of the chancery court for the reason, there stated, that the court was without authority to remove the commissioners and appoint receivers in their stead. In other words, the order was void on its face.
We have here an entirely different situation. The circuit court has the undoubted jurisdiction to review the action of the county court, and this jurisdiction has not yet been exercised. It may transpire that, when this jurisdiction has been exercised, the circuit court will vacate and set aside the orders of the county court, in which event they will be as if they had never been made, and the entire subject-matter of this litigation would in that event be a mere moot question.
For the reasons stated the writ of certiorari prayed for will be denied, and the petition dismissed. It is so ordered. | [
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Mehaeey, J.
The appellant, Tom Hill, was indicted by the Crawford County Grand Jury, the first count In tiie indictment charging him with the crime of burglary, and it is alleged that the burglary ivas committed by breaking into and entering box car No. A. R. T. 2.1404 of the Missouri Pacific Railway Company. The second couiit charged appellant with grand larceny.
He filed a demurrer-to the indictment which was overruled, and he was tried and convicted, and his punishment fixed at three years in the penitentiary. After the verdict, appellant filed a motion in arrest of judgment, which was overruled. He then filed a motion for new trial, which was also overruled. The case is here on appeal.
The motion in arrest of judgment and the motion for new trial alleged that the indictment was faulty; that it had been changed, amended and altered. The evidence showed that the original indictment charged appellant with breaking into car No. A. R. T. 41404, and that it was changed to A. R. T. 21404, and that the indictment was also amended by adding the words “a corporation” after the Missouri Pacific Railway Company. These changes were made by the prosecuting attorney after the indictment had been filed in court.
The evidence was sufficient to support the verdict of the jury, and the only question for our consideration is whether the change in the indictment by the prosecuting attorney rendered the indictment void.
The Attorney General argues that it was not necessary to allege the car number, and therefore changing it from 41404 to 21404 did not affect the substantial rights of the appellant, and that the change was immaterial.
It was not necessary to allege the car number, but, having alleged it, it becomes descriptive of the offense, and must be proved as charged. “It has been held by this court that it is unnecessary, in an indictment of larceny for money, to describe it as money of the United States, but, having alleged that it was money of that kind, it must be proved as alleged. The same degree of certainty in the proof has been held to be necessary under indictments for embezzlement, for obtaining property under false pretenses, and for burglary.” Value v. State, 84 Ark. 285; Carleton v. State, 129 Ark. 361; Bryant v. State, 62 Ark. 459; State v. Anderson, 30 Ark. 131; Shover v. State, 10 Ark. 259; Jenks v. State, 63 Ark. 312; Lee v. State, 114 Ark. 310; Adams v. State, 64 Ark. 188.
In the last case mentioned, it was said: “A description of the house in which the liquors were kept for sale is therefore descriptive of the offense, and material, and must be proved as alleged.”
This court has uniformly held that while not necessary to describe.the house or the car by number, yet where it is alleged that the offense was committed by breaking and entering a certain described house or car, the description of the house or car is descriptive of the offense, and is material. Therefore, the car number, having been alleged in the indictment, was material, and cannot be changed by the prosecuting attorney or any other person.
The indictment, when filed in court, became a record, and could not be withdrawn for amendment or any other purpose.
“When the original indictment was returned into the court by the grand jury, and filed, it became a part of the records of that court, and thereafter could not be withdrawn for amendment or for any other purpose, either by the grand jury or the prosecuting attorney. If the indictment was supposed to be insufficient, either for uncertainty or for want of proper legal words, the proper practice was to enter a nolle prosequi and have the grand jury find a second indictment on the original evidence. But there is no such thing known to our law as the amendment of an indictment, although an error as to defendant’s name will not vitiate the proceedings, and there are some formal defects which will be cured by verdict. In fact, there are constitutional objections to such amendments.” State v. Springer, 43 Ark. 91.
Our Constitution provides: “No person shall be held to answer a criminal charge, unless on the presentment or indictment of a grand jury.” Article 2, § 8, Constitution of Arkansas.
If the prosecuting attorney or any one else could change the indictment after it had been filed in court, it would no longer be the indictment presented by the grand jury, and no person could be held to answer a criminal charge under it after it had been changed.
In a note to 7 A. L. R. 1555, it is said: “The proposition that in the courts of the United States any part of the body of an indictment can be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being resubmitted to them for their approval, is one requiring’ serious consideration. Whatever judicial precedence there may have been for such action in other courts, we are at once confronted with the 5th of those articles of amendment, adopted early after the Constitution itself was formed, and which were manifestly intended mainly for the security of personal rights. This article begins its enumeration of these rights by declaring that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.”
There are many cases cited in the above note, and among others attention is called to the case of Henderson v. State, 91 Ark. 224, 120 S. W. 966, in which this court held that, to secure a conviction, the proof in a prosecution or an indictment must correspond with the allegations of the indictment, since the indictment cannot be amended to conform to the proof.
After the indictment was changed it was no longer the indictment of the grand jury which presented it, and as said in Ex parte Bain, quoted from in the above note, in 7 A. L. R.: “Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made, by the consent or order of the court, in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court in regard to the prerequisites of an indictment in reality no longer exists.”
The Wisconsin court said: “If the amendments were at all material, their allowance would he good cause for arresting the judgment. Indictments cannot he amended.” State v. McCarty, 54 Am. Dec. 150; Dickson v. State, 20 Fla. 800; Patrick v. People, 24 N. E. 619; 14 R. C. L. 192.
The motion in arrest óf judgment should have been granted.
The judgment is reversed, and the cause remanded with directions to quash the indictment. | [
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Kirby, J.,
(after stating the facts). Our statutes provide the procedure for the removal of property of a nonresident ward from this State, where the guardian and ward are both nonresidents. Sections 5054-5057, Craw.ford & Moses’ Dig-est. The first of said sections provides that, “on producing- satisfactorj^ proofs to the court of probate of the proper county according- to law that, he has given bond or security in the-State in which he and his ward reside, in double the amount of the value of the property as guardian, then such guardian may demand or sue for and remove any such property to the place of residence of himself and ward.” The undisputed testimony in this case shows that the appellant company had'given bond on its appointment as curator by the probate court of Jasper County, Missouri, where it was appointed, in the amount of 125 per cent, of the estimated value of the ward’s estate, the amount required given by the laws of Missouri; and also the value of the assets of the appellant trust company were shown to be about $8,000,000. It was contended, however, that it had not given bond or security in the State in which it and its ward reside “in double the amount of the value of the property,” as our statute requires should be done before application of removal of a ward’s estate from this State is granted.
The testimony relative to the improvident management and loss of some of her own estate by the ward’s mother by her management of it could not have effect to show that the Missouri curator would not control, conserve and manage the estate of the ward properly, in accordance with the laws of the State of its appointment and the minor ward’s residence, and this testimony should not have been admitted.
Since, however, bond in the amount required by our statute was not made by appellant curator upon its appointment, its application for removal of the ward’s property from this State to her residence in Missouri was properly rejected by the court, and, even though the bond had been regularly made, the court’s refusal to make the order of removal could not be held to be arbitrary and not made because the court was not satisfied that it was for the best interest of the ward that such removal should not take place, the law allowing the court such discretion, and there appearing to be no abuse of this discretion. Section 5056, Crawford & Moses’ Digest.
We find no error in the record, and the judgment must be affirmed. It is so ordered. | [
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McHaney, J.
Appellee holds two life insurance policies issued by appellant for $1,000 each, with like “total and permanent disability” provisions for the payment of $10 per month per $1,000 of insurance for total and permanent disability as defined in the policies. This disability is defined as follows:
“Total and permanent disability may be due either to bodily injuries or to disease, which must occur and originate while this policy is in full force after the first premium has been paid, and must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation. Total disability as defined above, which exists and has existed continuously for not less than three months shall be presumed to be permanent. At any time after approval by the company of the aforesaid proof and from time to time, but not oftener than once a year after disability has continued for two full years from the date of approval, it may demand of the insured proof of the continuance of such disability and the right to examine the person of the insured. Upon failure to furnish such proof or if it appears that the insured has recovered so as to be able to engage in any gainful occupation, the company’s obligations to pay further disability benefits shall cease and the insured shall be required to pay the premiums becoming due on this policy thereafter in accordance with the original terms hereof.”
In December, 1924, appellee became disabled by reason of ankylosis of the right hip. He filed a claim which was approved, and he was paid $20 per month to July 1, 1929, when payments were stopped because appellant concluded that he had recovered to such an extent that he was no longer totally and permanently disabled within the above quoted provision of the policies. This suit followed to recover the present value of such monthly payments over the period of his expectancy. A recovery was had, and this appeal comes from the judgment based thereon.
The first assignment urged for a reversal is that the court erred in refusing to direct a verdict for appellant at its request. This challenges the sufficiency of the evidence to support the verdict. We think this assignment must be sustained, as we are of the opinion that the undisputed evidence shows that appellee is not totally and permanently disabled as this term is defined in these policies. There can be no question that he is partially disabled, that he has a stiff hip which seriously impairs its usefulness, that he cannot stand or walk as he once could, but it does not follow from this that his disability is covered by the policies. The total and permanent disability therein defined “must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation.” That is the hazard insured against under this clause and against no other, except that certain injuries specified “shall be considered total and permanent disability within the meaning of this provision,” none of which were suffered by appellee.
By his own testimony appellee is shown to be performing the material and substantial duties of a “gainful occupation,” and that his disability is not such as to prevent him from engaging therein and has not been since July 1,1929, unless it may be said that the business of operating a country store with an average stock of $2,000 and the business of leasing and operating a 400-acre plantation near England, Arkansas, is not a “gainful occupation. ’ ’ Such an occupation has been regarded as “gainful” in the past, whatever might be said to the contrary in the last year or two: The proof shows that appellee does conduct the business of a country mer chant, with the assistance of his wife all the time or nearly all, and of his daughter a part of the time; that he drives his own automobile, purchases his goods in England and Little Rock, waits upon his customers and does all the work when his wife and daughter are out; that he is unable to do heavy lifting, but his goods are trucked to his store and delivered therein by the drivers; that in the year 1930 he farmed through tenants 80 acres of land and in 1931, 400 acres of land; that he furnishes his tenants and sharecroppers supplies, takes mortgages on their crops and other personal property, travels to Lonoke in his car to see the agent of his landlord and to record his mortgages and transact other business; and that in the farming end of his occupation he has no help from his wife, daughter or any one else. He attends to that himself. He says that he engaged in the farming business to help his store business, but that does not change the situation. It is also true that he cannot handle a plow, walk over the fields and see after his business as well as he could without the stiff hip, but he is able to drive along the turn-rows, direct the tenants as to how, when and what to do, and to give his farming business the same general care and management as do others. He was asked this .question: “Q. Hid you take 400 acres this year thinking you could attend to it yourself and that you would make a profit on it?” He answered: “A. I thought I could. Certainly I did.” The evidence further showed that the business of the store was such as to require help in its operation, and it appears certain that, with appellee away purchasing goods, or attending to his farming business, the store could not be kept open without some assistance in the capacity of clerk.
This, in substance, is appellee’s condition as testified to by himself, and we hold.that it shows conclusively that he was not totally and permanently disabled from “engaging in any gainful occupation.” It shows positively that he engaged in the farming business and attended to all the duties connected therewith without help, and that he engaged in the mercantile business and attended to all the substantial and material acts connected with that business. The rule in this State is. quoted from Kerr on Insurance, §§ 385 and 386, in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029, as follows: “Total disability does not mean absolute physical disability on the part of the insured to transact any land of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labor so long as was reasonably necessary to effect a speedy cure. ’ ’
This statement of the law has been followed many times since, the latest cases being Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, and Ætna Life Ins. Co. v. Spencer, 182 Ark. 486, 32 S. W. (2d) 310. Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.
As we have already seen appellee was not so disabled. There being no question of fact to be submitted to the jury, the request for a directed verdict should have been granted.
Reversed and dismissed. | [
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J. Fred Jones, Justice.
This appeal by American Insurance Co. of Texas is from a summary judgment in favor of the plaintiff appellee, Insurance Commissioner of Arkansas, for premium taxes on insurance premiums collected by the company in Arkansas during 1966 and 1967.
American is a foreign insurance company and held a certificate of authority to transact business in the state of Arkansas until the certificate was revoked May 1, 1967. In the trial court American contended that it owed no premium tax because of the revocation of its certificate. The Commissioner contended that the revocation had no bearing on liabilty for the tax he claimed was due and unpaid.
The trial court agreed with the Commissioner and rendered judgment against American for $8,804.11 plus interest for tax due on March. 1, 1967, for the calendar year 1966, and for $9,296.48 plus interest for the premium tax due on March 1, 1968, for the calendar year 1967.
American relies on the following points for reversal:
“The revocation of the appellant’s certificate of authority absolved it of liability for any premium taxes.
The imposition of a 1968 premium tax based on receipts for the calendar year 1967 is not authorized and would make Ark. Stats. § 66-2302 unconstitutional in application.”
On this appeal American argues that:
“The sole issue presented with respect to the premium tax due March 1, 1967, is whether the tax is to be paid in order to transact insurance business from May 1, 1967, to April 30, 1968, or, for having transacted insurance business from May 1, 1966, to April 30,1967. If the former is the proper construction, then the Appellant owes no premium tax since its Certificate of Authority for that period of time was revoked. ’ ’
We agree with the trial court, and hold that the premium tax due on March 1, 1967, was for the privilege exercised during 1966. Both sides have cited several cases from other jurisdictions bearing on the classification of premium taxes levied against insurance companies, but in arriving at the conclusion we have reached, we rely on the plain words of our own statute, Ark. Stat. Ann. § 66-2302 (Repl. 1966), the pertinent parts of which are as follows:
“(1) Each authorized foreign or alien insurer, and each formerly authorized foreign or alien insurer with respect to premiums so received while an authorized insurer in this State, shall file with the Commissioner on or before March 1 each year a report . . . showing . . . total direct premium income . . . received by it during the preceding calendar year on account of policies and contracts covering property subjects, or risks located, resident, or to be performed in this State. . .
(2) Coincident with the filing of such tax report each such insurer shall pay to the State Treasurer through the Commissioner, as a tax imposed for the privilege of transacting business in this State, a tax upon such net premiums and net considerations, such tax to be computed thereon at the following rates-
(a) As to life insurance and disability insurance the tax rate shall be two and one-half (2%%) per cent.
(b) As to all other kinds of insurance the rate of tax shall be two (2%) per cent, except as provided in subsection (4) of this section.”
It is plain to us that the statute refers to two classifications of insurance companies required to file their reports on or before March 1 each year; those companies still authorized to do business and those companies formerly authorized to do business. Each authorized company, as well as each formerly authorized company, must file their respective reports on or before March 1 each year showing premiums received during the preceding calendar year. There is only one distinction in what each company must report. The authorized company must report on all premiums received by it in the preceding calendar year, and the formerly authorized company is required to report only “with respect to premiums so received while an authorized insurer in this state,” or, in other words, premiums received by it while it was still authorized to do business in this state.
From the information in the record before us, American was a formerly authorized company on March 1, 1968. It was an authorized company until it became unauthorized by the revocation of its authority as of May 1, 1967. The record does not reveal when American first became authorized nor the length of time it remained authorized. The record does not reveal what tax, if any, American paid when it first became authorized or during the period of its authorization. The record is clear that American was authorized until May 1, 1967, and the statute is plain that it was liable for its privilege tax levied by statute on the premiums it collected during the period of time in each calendar year it was so authorized. When its authority was revoked, its liability for tax on premiums thereafter collected was revoked, but its liability for what it owed on premiums collected while it was still authorized to do business in Arkansas was not revoked.
The statute is plain, logical and fair. It authorizes the granting of a privilege to do business and for a tax based on the volume of business done under the privilege. No policies can be sold until authority to do business is granted. No premiums can be collected until policies are sold and no premium tax can be levied under the statute until after policies have been sold, premiums collected, and report made “with respect to premiums so received while an authorized insurer in this state.” What the statute actually authorizes, in plain everyday language, is a privilege to do business now, with the right to pay later.
The appellee seems to argue that by virtue of being once authorized to do business in the state of Arkansas, a foreign insurance company is fully apprised of the Arkansas statute and that such company which surrenders its charter, or has its charter revoked, continues to remain liable for an annual tax on premiums collected each calendar year as long as the policies remain in force and the premiums are paid. We reject this argument because the tax levied by the statute is based.on premiums received while an authorized insurer in this state and is not based on premiums received on policies sold while an authorized insurer in this state. If the statute permits an unauthorized foreign insurance company to continue collecting premiums without paying taxes, that is a legislative problem and not a judicial one. The tax levied under the statute as written is a privilege tax as above stated and is not an income tax.
The record indicates that the $9,296.48 judgment for premium tax due for the calendar year ending December 31, 1967, was based on premiums received by American during the entire calendar year of 1967, including such premiums that may have been received between May 1, 1967, when its authority was revoked, and December 31, 1967, the end of the calendar year. After May 1, 1967, American was no longer an authorized insurer in this state and was not required under the statute to report as to premiums received after that date. The judgment of the trial court is affirmed as to the tax for the calendar year 1966, and this cause is remanded to the circuit court for a determination of, and entry of judgment for, the tax due on premiums collected by American while it was authorized to do business in Arkansas prior to May 1 during the calendar year 1967.
Affirmed in part and remanded. | [
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Carleton Harris, Chief Justice.
Wayne J. Wylie and Winnie Bell Wylie, his wife, appellants herein, are the owners of certain land lying on the south side of a bay or inlet of Lake Hamilton near Hot Springs. Robert A. Wooldridge and Lois Y. Wooldridge owned property partly to the west and partly to the north of appellants’ property, the Wooldridge’s lake frontage being on the west end of the bay. In June of 1963 the Wooldridges began to dig a channel oí inlet along the south line of their property, filling in between the channel and the old shore line and to the north line of appellants’ property, and appellants contend that, as a result of the fill, they have been cut off from access to the water front along their north line. The Wylies instituted suit in the Garland County Chancery Court in August, 1963, against appellees and Arkansas Power and Light Company, seeking an order enjoining the Wooldridges from excavating, bulldozing, filling in, or changing the contour line of appellants’ property; damages were sought in the amount of $10,000.00. The complaint asserted that the Wylie land:
“* * * borders on and fronts the 400 foot contour line on Lake Hamilton and is separated from the defendants land by an inlet or channel of the backwater of Lake Hamilton. That the Defendants land is on the other side of said inlet or backwater channel of Lake Hamilton, being separated from the plaintiffs land by that portion of land between defendants and plaintiffs land below the 400 foot contour line.* * *
“That the defendants are claiming said strip of land and are trying to deprive the plaintiffs of the benefit of the waters of Lake Hamilton below the 400 foot contour line to which they are entitled.”
As to the Arkansas Power and Light Company, the complaint alleges that it:
“ * * * is the owner of the right to use and to flood any part of said lands by water or waters impounded by a dam or dams now or hereafter constructed and/or maintained across the Ouachita River under the authority of the Federal Power Commission. Said lands being the land in question below the 400 foot contour line between the property of the plaintiffs and the defendants, Robert A. Wooldridge and Lois V. Wooldridge, his wife.”
A demurrer was filed by the power company, and was sustained by the court on July 15, 1964, appellants consenting thereto. The case then proceeded to trial, and, at the conclusion of the presentation of evidence, was taken under advisement by the then Chancellor. However, no decree was rendered prior to the Chancellor’s death, and thereafter, the cause was assigned to the Circuit Judge, acting as Special Chancellor, who decided the case on the transcript of testimony, all of such testimony having been heard by the regular Chancellor, prior to his death. A decree was rendered for the Wooldridges, and from the decree, appellants bring this appeal. For reversal, it is first asserted that the decree is contrary to the evidence, and secondly, that the decree does not conform to the court’s finding of fact, and conclusions of law.
The actual question in this litigation is whether the appellees, in clearing and leveling their land while preparing a channel on their property, filled a portion of the area of Lake Hamilton at the west end of this bay below the 400-foot contour line, thereby cutting off the appellants’ lake frontage for a distance of approximate-225 feet at the west end of the Wylie property. The descriptions of the lands owned by the parties are not of a great deal of aid, because they are based on a 400-foot contour line along Lake Hamilton, and no contour map was offered in evidence. Accordingly, this litigation can only be determined on the basis of the evidence offered by those who were familiar with the area. A number of witnesses testified for each side, and the testimony appears to be in irreconcilable conflict. A detailed discussion of the testimony of .all witnesses would serve no useful purpose, appellants ’ evidence being largely directed to the contention that the area in dispute had previously contained water, prior to the fill-in. James Hall, a surveyor, testified that he took elevations around the land in question, noted a shght depression between the new fill and the old shore line, and found it to be the old 400 foot contour line, which compared favorably with an old Arkansas Power and Light Company map. A drawing, prepared by the witness, depicting elevations, was offered in evidence by the witness. Fred Thompson, ,a veterinarian of North Little Bock, testified that he owned a cottage in the area, and had been familiar with the property in question since 1959. He said that he had previously fished in the area, and had observed water 100 to 150 feet from Wylie’s west line. Mr. Wylie testified that he had placed a fence near the contour line to keep his cattle out of the shallow basin; that the fence was near the water line, all the way from his west line, and along the north line for a short distance. The area in the basin was covered with trees and brush, except for a creek bed. He said that the creek followed his shore line, and would be dry when the lake was down to the “395 level part * * * but when the lake was to standard level around 399 or 398,” the water stood in the creek bed. The witness added that the water extended beyond his west line when the lake was “at its full 400.” Mrs. Wylie testified that she had fished in the area as close as 50 feet from the west line. H. H. Wylie, a nephew, testified that in 1947 there was water in the bay to the Wylie fence line, and on a visit five or six years previously, he had observed the same condition. C. C. Wylie, a brother of appellant, testified that there was water west of the fence line in 1955, and there was a creek chánnel three or four or five feet wide; however, he did not know whether the water was higher than normal at the time. Olynda Bondurant, a daughter of appellants, testified that she fished near the fence line when a sma1! child. A sister, Waneta Morris, concurred with the testimony of her sister, .and she added that the area where she had fished had now been covered with dirt. Her husband, William R. Morris, agreed.
Luther Phillips, a former County Surveyor, testified that he surveyed the property when Meadows purchased it from the Arkansas Power and Light Company, and had also made a survey for Wylie in 1947. He said that the north line of Wylie’s property described in the deed as “thence west along this contour line 685 feet to a point,” tested out as 685 feet. The witness stated that it had been 17 years since the survey, and he could not remember any of the details. The testimony of other witnesses on behalf of the appellant relative to whether water was in the area, or whether it was creek or lake water, was rather indefinite.
On behalf of appellees, Irving Meadows, the common grantor of both Wylie and Wooldridge, testified that he had been over every foot of the territory numerous times, had seen the area twice after it was filled, and many times before, and that there had never been any water in the area in question. He said there was a “little bitty old crawdad ditch,” which ran only in wet weather, but that it didn’t run at the corner of the fence. “There’s no water up there where he filled in, there never has been and never will be, because the lake won’t put it there.”
Fred Buehheit, who helped with the original Arkansas Power and Light survey, testified that, in the late spring or early summer of 1960, he looked over the area, and at that time there were trees all over the creek area ; there was no water at all from the lake running back to the fence corner. He stated that, in the area filled by Wooldridge, there were pines, oaks, and gum trees, and that, based on his experience of over 20 years, he would say “no tree will live under water in this country except the willow. Pines dry (die) immediately or within two years.”
Ott Livingston, County Surveyor of Garland County, testified that he was familiar with the lands of both parties. He said that, from his examination of the property before the fill was made, the lake water never ran back to the fence corner. It was his opinion, as a surveyor (and former timber inspector for the Forestry Service), that the water could not have gone beyond that point at the 400-foot level, or below, the opinion being partly based on the fact that a flooded area would kill all timber except willow and cypress. He was also of the view that the description of Wylie’s property was incorrect in that the 400-foot contour line did not extend for the number of feet set out in Wylie’s deed. Livingston also testified that Wylie’s fence had been extended:
“There’s a new fence been added which went 15 feet north and circled around southeasterly, I’d say back around to the old line. There’s new posts and new fence, with a few wooden boards nailed on the new fence. There’s 34 feet east and west and 15 feet north, off of the old corner.”
Winthrop Ward testified that in 1962 he cleared underbrush for Wooldridge, and did not observe any water running back to Wylie’s fence corner. This testimony was concurred in by Bill Ward.
Raymond Bates, a sawmill operator, testified that he viewed the property in 1962; that there were many trees in the area, and there was no lake water back up to the fence corner. Wooldridge testified that Wylie had never indicated to him that the lake went. back to his fence corner, and he also testified that there had not been any lake water in the area in controversy.
It always seems strange when numerous people view the same property, and yet testify to opposite facts, though, of course, this is not really unusual in any type of litigation. Appellants first point out that, since the Special Chancellor did not see or hear the witnesses, and only decided the case on the basis of the record, this court and the trial court stand on the same level in determining this litigation de novo from the record. Though it is true that the case does not involve observation of the witnesses, and the manner in which they gave their testimony, we do not agree that the trial court’s findings have no persuasive value, for we will not reverse a Chancellor, unless it appears that his findings are clearly against the preponderance of the testimony.
Such a determination cannot he made in this case. The testimony offered by appellees is, at the very least, as strong as that offered by appellant; in fact, from the standpoint of interest in the litigation, appellees’ evidence is more impressive, because of the fact that several of appellants’ witnesses were closely related to the wylies, either by blood or marriage. Not only that, but appellees’ witnesses appear a little more positive in their statements. The witness who certainly should be in a position to know the real facts was Irving Meadows, the previous owner of the land, who testified there had never been any lake water in the area in dispute. Appellants’ only answer to this testimony w,as that Meadows Lad had trouble with Wylie, though the nature of the difficulty was never shown. Buchheit and Livingston were very emphatic in their testimony that the area was covered with a variety of trees which could not have lived if the area had been under water for a number of months.
Thomas Robertson, an employee of the Arkansas Power and Light Company who testified for appellants, made three trips to the area, the first in the spring of 1963 (prior to the dredging work by Wooldridge), and the second and third visits being made at a later date. On cross-examination, referring to the third trip, Robertson said there was approximately the same amount of water in the disputed area that there had been at the time of the first visit. Appellees’ Exhibit No. 5, a Soil Conservation Service aerial photograph taken on May 30, 1952, and appellees’ Exhibit No. 2, taken in April, 1962, are the most clear exhibits offered, and the area in question appears in both photographs to be . covered by timber and brush. Certainly, we are unable to say that appellees’ dredging operation deprived appellants of lake frontage.
As to the second point, appellants assert that the court’s findings, and the decree entered, in certain respects, do not conform. In its findings of fact, the court, inter alia, said:
“This court is not called upon to determine the ownership of the area between plaintiffs’ north line and the south line of the new channel dredged by defendants, but it is conceivable that the Arkansas Power and Light Company might own this area if the parties are confined to the original 400 foot contour as their boundary. There was no accretion, so this issue is not in controversy.
“Since the defendants ceased their dredging operation and have not moved fill dirt upon plaintiffs’ lands nor have the defendants, in this court’s opinion, damaged the plaintiffs, it is unnecessary to issue an injunction or to award damages.”
This language, say appellants, leaves the ownership of the area open. However, Paragraph 7 of the decree provides:
“The Court finds from the evidence contained in the Bill of Exceptions and the Exhibits thereto that the area in question at all times prior to the Defendants’ fill and construction work in the year 1963 was at or above the 400 foot contour line and was not a part of the bed of Lake Hamilton, and did not constitute usable lake frontage adjacent to the Plaintiffs’ North boundary. ’ ’
This paragraph, say appellants, has the effect of placing the ownership of the disputed area in appellees. Prom appellants’ brief:
“The findings of fact, standing alone, would permit of a reopening of a waterway along the south 400 foot contour line, either independently or in conjunction with an agreement with Arkansas Power & Light Company (which appellants would like to do), while the decree prohibits such action.
“The appellants, therefore, contend that the decree and the findings of fact do not conform.”
The need to discuss this alleged inconsistency is obviated by the fact that appellees, in their brief, concede that the issue of ownership of the property was not in question.
Prom the brief:
“* * * The precise issue of the ownership of the property, and of the property, was not in question. The sole question presented in the lower court concerned the loss of water front footage on the part of the appellants, allegedly because of actions by the appellees. The Paragraph seven (7) of the decree merely recites that the court found, from the evidence, that the appellees did not fill in a part of the bed of Lake Hamilton or usable lake frontage adjacent to appellants’ property on the north, and therefore appellees did not take away or infringe upon any lake frontage of the appellants. The ownership of the various pieces of property was not in direct issue in the lower court, even though the findings of the court may necessarily indicate where the boundary lines of the parties are.”
It is certainly correct that the ownership of the property was not in question, the court not being asked to make that determination, and, from the findings rendered prior to the entry of the decree, it does not appear that there was an intent to make a determination of ownership. In view of the court’s findings, and the concession by appellees that the ownership was not in question, we make it clear that, in affirming the' trial court decree, we are not holding that the Wooldridges are the owners of the land in controversy.
For the reasons herein set out, the decree is affirmed.
Robert Wooldridge died subsequent to the trial, and Mose M. Holiman was named administrator of the estate, who, together with the widow, is one of the appellees in this case. However, for convenience, the term appellees may be used when referring to Mr. Wooldridge, as well as Mrs. Wooldridge.
Wylie purchased his property from Meadows in 1947, and Wooldridge made his purchase in 1962.
In the decree the court found:
“The Court finds that the Plaintiffs, immediately prior to the filing of this action, extended their existing fence line at the Northwest corner of their property approximately ten feet North of the original corner, and that this extension of the fence should be removed.”
It will be remembered that appellants alleged that the Arkansas Power and Light Company was the owner of the area here involved, but the company was removed from the litigation by the sustaining of its demurrer before any testimony or evidence was given. The demurrer was properly sustained, since it was not even alleged that the company had committed acts which damaged appellants, nor was any relief sought against it. Not having been a party when the case was heard on its merits, it has not had its day in court, as far as the company’s rights in the land are concerned. After all, in filing a demurrer, the company only admitted the allegations of appellants’ complaint, i.e., that it “is the owner of the right to use. and to flood any part of said lands by water or waters impounded by a dam.” In their answer, the Wooldridges denied that they had infringed upon Wylie’s property, or the property rights of the Power and Light Company, and affirmatively stated that all excavations performed, and dirt moved, had been placed on their own property. However, the prayer of the answer was simply that the complaint be dismissed as to them. Also, just prior to the commencement of the taking of evidence, counsel for the Wooldridges stated:
“If the Court please, it was agreed beforehand that plaintiff had made Arkansas Power and Light Company a party to this action; that Arkansas Power and Light Company filed a demurrer; and I believe, if I’m correct, Mr. Glover, that you consent to the granting of the demurrer and the dismissal of the Arkansas' Power and Light Company?
“[Mr. Glover] Yes.”
It is thus made clear that the Wooldridges were not seeking an adjudication of their rights in the property as against the Power and Light Company. | [
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Frank Holt, Justice.
The appellants brought this action for specific performance of three written instruments which they contend constitute a “Bill of Sale.” Appellants alleged that these instruments were executed by Mrs. Jeannette Connelly, who is now deceased. She was the proprietor and later majority shareholder of Connelly Press, Incorporated.
Appellants, Bonnie C. Hunter and Bonnie Jo Connelly, are respectively the widow and adult daughter of Joseph Connelly who died on April 28, 1959, subsequent to the date of these written instruments. His widow, appellant Bonnie C. Hunter, was convicted of involuntary manslaughter as a result of his death. Appellees are the surviving three children of Jeannette Connelly.
Appellants base their cause of action on three instruments, one dated July 31, 1954, and two dated October 27,1958. The appellants contend these instruments are bills of sale executed by Jeannette Connelly conveying a one-third interest in her business and a one-fourth interest in the balance of her property to her son, Joseph Connelly, and his wife and daughter, the appellants, as joint tenants. Appellants brought their cause of action on June 14, 1967, for the specific performance of these three instruments and for a transfer to them of their alleged ownership interest. The appellees controverted appellants’ claim, alleging that the signature of Jeannette Connelly was a forgery and invoked other affirmative defenses such as statute of limitations, laches, etc. The trial court dismissed appellants’ complaint for want of equity specifying the grounds for the dismissal of their complaint.
For reversal the appellants urge that the trial court erred in finding that: Appellants’ cause of action is barred because of their failure to assert a claim against the estate of Jeannette Connelly; their claim is barred by laches; their claim is barred by the statute of limitations; and the appellants failed to prove their cause of action by a preponderance of the evidence. Since we agree with the chancellor that the appellants’ cause of action is barred by our five-year statute of limitations, Ark. Stat. Ann. § 37-209 — 10 (Repl: 1962), it becomes unnecessary for ns to discuss the correctness of the other findings of the chancellor.
■ 'According to the appellants, Joseph Connelly, in 1954, was considering leaving his job in his mother’s printing business on account of discord within the family. Appellant Hunter testified that to alleviate the family discord, Mrs. Jeannette Connelly, on July 31, 1954-, by a written Bill of Sale and Ownership Agreement, which was introduced into evidence, sold and conveyed to her son Joseph, with full survivorship rights in the appellants, a one-third interest in the business and a one-fourth interest in all her other property in recognition of his years of service and in return for her son’s promise to remain as a linotype operator in the printing business. There was a joint covenant to keep the agreement confidential. Mrs. Connelly covenanted that the conveyance of this interest could not be altered or changed by her through a will or in any other manner. This instrument admittedly was written by appellant Hunter and her husband.
However, strife within the Connelly family continued. In March 1958 appellant Hunter and her then husband, Joseph Connelly, filed a $100,000.00 lawsuit against Jeannette Connelly and Arthur Connelly as a result of a family altercation in which appellant Hunter claimed she was struck by her mother-in-law and brother-in-law, Arthur-. Then followed the two written agreements dated October 27, 1958. By these instruments appellant Hunter and her then husband, Joseph, agreed to discontinue their lawsuit and in return Mrs. Jeannette Connelly again recognized that the business “legally belongs to Joe, Art and John Connelly” and each should have a one-third interest. Further, that “[i]t is agreed by both Joseph E. Connelly and Mrs. J. M. Connelly to full co-owner and survivorship rights from either one’s estate to Bonnie and Bonnie Jo Connelly, not to void or change this by divorce, separation, other partner ships or incorporation or by Will and Testament. This is recognized as a Bill of Sale and Transfer, as co-owner, to Bonnie Connelly, $10.00 and other consideration, and is legal and binding. No transaction shall be made without my signature as co-owner. Should I die first,, or Joe and I die, ownership reverts to Bonnie Jo Connelly. Should discord at the shop continue, Mrs. J. M. Connelly and Joe Connelly both agree to cash settlement immediately.” There was a provision in which appellant Hunter’s husband, Joe, agreed to refrain from any act that would alter appellants’ survivorship rights. These instruments were also written by appellant Hunter and her husband, Joe Connelly, and signed by them and Mrs. Jeannette Connelly. There was no covenant to keep these agreements confidential.
In December 1958 appellant Hunter and her husband separated and he instituted a suit for divorce. They were estranged at the time of his death in April 1959.
Assuming, without deciding, that these instruments are valid, it is undisputed that the last two agreements were breached four months after their execution when the business was incorporated in February 1959. All of the assets together with Mrs. Connelly’s title and interest in the printing business were transferred to Connelly Press, Inc. Mrs. Connelly received a majority of the issued stock. A portion of the authorized stock was distributed in equal shares to appellees. Joseph Connelly received no stock in the corporation. However, he was elected to the board of directors. Joseph Connelly understood that he was not receiving stock. He disclaimed interest in any ownership saying that he was only interested in having a job. The evidence shows that he affixed his signature as a director to the minutes of the first business meeting on February 25, 1959.
Following Joseph Connelly’s death on April 28, 1959, an administrator of his estate was appointed on October 12, 1959 upon the petition of his mother and the appellees. Appellant Hunter unsuccessfully sought appointment as administratrix of her husband’s estate. She testified that she exhibited the three written instruments to the administrator in December 1959 and he rejected them saying that she “had no interest whatsoever.” Appellants never filed any claim to this estate based upon the instruments now relied upon.
Appellant Hunter testified that in November 1959 and again in June 1961 she wrote to her mother-in-law, Mrs. Connelly, asserting her rights according to “these Bill of Sales” and asking that she and her daughter be given “what is ours.” She stated there was no compliance with the request in these letters.
The will of Mrs. Jeannette Connelly dated May 22, 1959, was admitted to probate on November 12, 1963. She had died in September 1963. Her stock certificates and other property were distributed according to the terms of her will to the appellees. It appears undisputed that appellant Bonnie Jo Connelly, the granddaughter, received a copy of the will with a $1.00 bequest and that appellant Hunter was aware of the will and its provisions. The estate was closed and the executor dismissed in December 1964. Appellant Hunter testified that in October 1963 she asserted her rights in a letter to John Connelly and received no response. The appellants made no demands on the executor, Arthur Connelly, nor presented any claim to the shares of stock or the property listed in the inventory of the Jeannette Connelly estate.
There was evidence presented by the appellees that during the lifetime of Joseph Connelly he never made any claim to any ownership interest in the business and that the mother, Jeannette Connelly, never indicated to her other children that her son Joseph had any interest in the business. According to the public accountant who had performed all of the accounting work for the firm since 1947, all the records reflected the business as an individual proprietorship in the name of Mrs. Jeannette Connelly until it was incorporated in 1959. There was nothing in the business records that indicated any right or claim in favor of Joseph Connelly or the appellants before or after the incorporation of the business.
Assuming, without deciding, as we have indicated, that the written instrument dated in 1954 and the- two written instruments dated in 1958 are valid, it must be said that two months before Joseph Connelly’s death in 1959, his ownership rights under these agreements now sought to be enforced were breached by the incorporation of his mother’s business. A cause of action definitely accrued at that time on his behalf if he so desired. Instead, it appears he was content with being made a member of the board of directors and receiving no stock in the corporation which became the owner of all the assets of his mother’s printing business. In fact, he affixed his signature to the minutes of the initial meeting of the board of directors.
The general rule as to when a cause of action accrues is well stated in 34 Am. Jur., Limitation of Actions, § 113, p. 92. There it is said:
“* * * It may be stated as a sound general proposition that a cause of action accrues the moment the right to commence an action comes into existence, and the Statute of Limitations commences to run from that time * *
See, also, § 137, p. 110.
In Rawlings v. Ray, 312 U. S. 96, 61 S. Ct. 473, 85 L. Ed. 605 (8th Cir. 1941), it is said:
“The words ‘after the cause of action shall accrue’ in the Arkansas Statute have their usual meaning and refer to ‘a complete and present cause of action.’ ”
The statute of limitations begins to run when there is a complete and present cause of action. Holloway v. Morris, 182 Ark. 1096, 34 S. W. 2d 750 (1931).
Certainly, under the terms of these written agreements and the attendant facts of family strife and violence, appellants’ rights vested and their present cause of action accrued at the latest upon Joseph Connelly’s death in 1959.
Appellants assert they first discovered in 1966 that in 1959 Mrs. Connelly transferred her interests to the corporation. Even though that be true, the ignorance of a cause of action does not prevent the running of the statute of limitations unless there has been fraudulent concealment on the part of- those invoking the statute. Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521 (1938), and Arkansas Power & Light Co. v. Decker, 181 Ark. 1079, 28 S. W. 2d 701 (1930). See, also, 54 C.J.S., Limitation of Actions, § 205, p. 216. In the case at bar it appears the appellants were neither ignorant nor unaware of the existence of the claims they now assert, nor is there any evidence of fraudulent concealment on the part of the appellees. The written instruments relied upon by appellants were in their exclusive possession for more than five years before this action was instituted.
The chancellor was correct in finding that appellants’ action was not commenced within five years after their cause of action accrued and is, therefore, barred by the statute of limitations.
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Lyle Brown, Justice.
Nudie Mae Welder, appellant here, instituted this suit against her attorney, Christopher C. Mercer, Jr., charging him with neglect of duty with respect to lodging an appeal in this court from an adverse judgment in the White County Probate Court. The trial court, sitting as a jury, absolved Mercer of any liability for damages and Nudie Mae Welder appeals. We shall refer to the parties as they appeared in the trial court.
The purported will of W. F. Caruth bequeathed his entire estate to plaintiff. A contest of the will developed and in that litigation Mr. Mercer represented Miss Welder. The probate court adjudged the will invalid on a finding that Caruth’s signature was not authentic. Plaintiff and defendant entered into an agreement whereby the defendant was employed to perfect and process an appeal to this court. Of the agreed fee of $700, plaintiff paid defendant $400, whereupon defendant filed and served his notice of appeal and ordered the transcript. It is not disputed that the partial payment was more than sufficient to defray those expenses. The transcript was never lodged with this court. Plaintiff sued defendant for $400 and $12,000, the latter being the alleged value of the estate of W. F. Caruth. Additionally, plaintiff prayed for punitive damages. On appeal the prayer for judgment for the value of the Caruth estate is abandoned. That leaves the issues of whether plaintiff is entitled to recover $400 and punitive damages.
The proof in the record before us consists, in addition to the pleadings, of the discovery deposition of the defendant. That deposition was read in evidence at the triai and we perceive it composed the entire evidence in the case; in any event the defendant designated no additional record. From the deposition, and accompanying exhibits, we find this chronology of events:
1. In April and May 1963, defendant receipted plaintiff for a total of $400, each of the two receipts being marked “Expenses on appeal of Estate of W. F. Caruth.” The transcript was ordered.
2. The clerk of the probate court wrote from Searcy to defendant in Little Eock, on May 8, 1963, concerning the status of the transcript: “The transcript is-being prepared and, of course, we will want payment of those costs before the transcript is delivered.”
3. The next letter from the clerk was dated July 18, 1963, and a bill for the cost of the transcript was included. “Enclosed please find a cost bill for $149.55. We are awaiting your instructions on delivery.”
4. The time for lodging the transcript expired July 25, 1963. It never reached the clerk of the supreme court. It is admitted it was never delivered in person, nor was it mailed with the required filing fee.
5. It was almost a year after the time for lodging the transcript had expired that the trial court reporter and the probate clerk were paid by defendant for their services.
Of course the related facts, standing alone, call for these conclusions: Plaintiff and defendant entered into a contract whereby the defendant was to proceed with the appeal; plaintiff made partial payment of a sum satisfactory to- defendant and sufficient to pay the current expenses; defendant gave notice of appeal and ordered the transcript; defendant was notified by the clerk that the cost of the transcript would have to be paid “before the transcript is delivered”; defendant did not pay the required fees and did not obtain the transcript; and defendant did not cause the transcript to be delivered to the clerk of this court.
Defendant did not deny the occurrences which we have recited. In response to the prima facie case established by the documented facts he testified entirely from memory (and three years after the recited incidents) that he relied on the telephoned assurance of the deputy probate clerk that the transcript would be by her mailed to the clerk of our court and also a verbal extension granted him over the telephone by the clerk of our court. More specifically, he related that upon receipt of the probate clerk’s letter of July 18, the defendant called from Little Rock to Searcy and talked to the deputy clerk; that she offered to mail the transcript to the clerk of the supreme court; that on the last day for the appeal to be lodged he again called the deputy clerk, who assured him she would place the transcript in the mail that day; that he immediately called the clerk of our court who informed defendant “it would be all right” if the transcript was placed in the mail that day.
Taking the defendant’s testimony at face value, the deficiencies are at once apparent. Having had written notice from the probate court clerk (not the deputy clerk) that the cost of the transcript would have to be paid before delivery of the record, was it due diligence to rely on the assurance of an office deputy that the transcript would be released before payment? We think not. Surely the defendant must have misunderstood the clerk of this court when he says the clerk waived the rule of our court and granted an extension. Additionally, defendant does not purport to explain just how the record would be filed here unaccompanied by the required filing fee.
The customary procedures taken by an attorney when he is pressed for time include an application to the trial court or to this court for extension, or the filing of a partial record. Admittedly defendant did not resort to any of those approaches.
“Reasonable diligence and skill constitute the measure of an attorney’s engagement with his client.” Pennington’s Ex’rs. v. Yell, 11 Ark. 212. We think the evidence shows gross dereliction of duty which caused plaintiff’s advancement of $400 to go for naught. She is entitled to judgment in that amount. With respect to the claim for exemplary or punitive damages, we find no merit. Punitive damages, if allowable under any circumstances in a case of this nature, would require a shoAving of more than gross negligence, such as the element of intentional wrong or conscious indifference. The evidence does not reach that proportion.
The facts were fully developed and Ave see nothing to be gained by ordering a new trial. We therefore reverse and remand with directions to enter judgment for plaintiff for $400. | [
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Frank Holt, Justice.
In this action the appellee was awarded a divorce from the appellant, custody of their minor children and title to certain real and personal property.
On appeal the appellant asserts error by the chancellor with respect to the award of custody of the minor children to the appellee and in divesting the appellant of her rights in certain real and personal property. Ap pellant designates, on appeal, the entire record of all proceedings, including a transcript of all testimony-heard. documentary evidence, exhibits and pleadings.
We cannot reach the merits of this case and must affirm the chancellor because of the requirements of our Rule 9(d). Succinctly stated, this long established rule requires an abridgment of the record that will sufficiently enable us, from reading the appellant’s abstract, to understand all questions presented or the points relied upon for reversal. Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452 (1956); Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260 (1956); Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636 (1965); Routen v. Duyse, 240 Ark. 825, 402 S. W. 2d 411 (1966); Tucker v. Haskins. 243 Ark. 826, 422 S. W. 2d 696 (1968).
In the case at bar there is no abstract of the pleadings, exhibits, decree or the individual testimony of the numerous witnesses. And further, when there is reference to a part of the testimony of a witness, it is in the third person rather than in the first person. The latter is required by our rule. It is necessary for the appellant to abstract the essential portions of the proceedings relied upon for appeal purposes. Otherwise, all seven members of the court would have to explore the transcript in each case to enable each of them to understand the issues presented. We have no alternative in the case at bar other than to affirm the decree of the chancellor.
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Carleton Harris, Chief Justice.
This is a highway condemnation case. On June 30, 1966, 18.40 acres were taken in fee by the Highway Department for Interstate Highway No. 40 from an 80-acre parcel owned by Jewell T. Bane, appellee herein, the result being that her remaining property was divided into two parts, approxi mately 18 acres being located north of the Interstate, and approximaely 43 acres being located south of the Interstate. A jury trial to determine Mrs. Bane’s damages resulted in a finding of $11,000.00 damages, and from the judgment entered in that amount, appellant brings this appeal.
Appellant attacks the testimony of Mrs. Bane as lacking substantiality, and also contends that the evidence of Mr. Forrest Griswood, manager of the Central Arkansas Production Credit Association, who testified on her behalf, is in the same category.
As to Mr. Griswood, this witness testified that the before condemnation value of the property was $22,-500.00. and the valuation after the taking was $12,535.00, leaving total damages in the amount of $9,965.00. The department moved to strike Griswood’s before value, because it contended that this value was based on a 1968 sale of land nearby, rather than 1966, the witness testifying that the land sold was comparable to that here in litigation. The taking having occurred in 1966, it is, of course, proper that 1966 sales be used for comparison. However, the court instructed the jury that it should disregard any sales mentioned by the witness which occurred after June 30, 1966; furthermore, the witness mentioned one 1966 sale where the property was sold for $200.00 an acre (which was the same figure per acre as the 1968 sale which the court held inadmissible). It is thus seen that Griswood did have a proper basis for reaching his before value, and the jury, having twice been told to disregard testimony relative to 1968 sales, we conclude that the denial of appellant’s motion was not prejudicial. The testimony of this witness was not particularly impressive, but we are unable to say that it did not constitute substantial evidence.
We agree with appellant that the judgment must be reversed because of the testimony of Mrs. Bane, the landowner. Mrs. Bane gave the before taking value of her property as $27,500.00, and the after the taking value as $9,990.00, leaving her figure for damages at $17,510.00. The before value was reached by considering the land to be worth $20,000.00, or $250.00 per acre, .and the building and improvements were placed at $7,500.00.
Mrs. Bane was the only witness who testified to damages of more than $9,965.00, and it is thus apparent that if the $11,000.00 verdict is sustained, it must be on the basis of her testimony. While we have many times said that a landowner is entitled to testify to the value of his or her property, still the basis of the’ value reached should lie shown. Mrs. Bane was not testifying that the subject property had a peculiar value to her, because of sentiment, or like reasons; rather, she professed to know the market value of property in the area. It definitely appears that several matters mentioned by the witness, which contributed to the damage figure reached, were not known to her, but were based purely on hearsay; apparently, information on one of the main items depended upon in her estimate was erroneous.
A great deal of uncertainty clouds Mrs. Bane’s testimony. When asked if there were metal structures on the property, she replied, “I think there is two or three for beans.” Interrogated as to what they are used for at the present time, she replied that she did'not know, as she had not looked lately, nor did she know whether any bins had been placed on the property after the condemnation. She did admit that “maybe” a couple had been placed on the premises recently. Mrs. Bane said that water would no longer flow to the lands to the south through the culvert in quantities as large as before the culvert was built (the water being essential to the raising of cattle), and it would be necessary to build a pond. However, when questioned, it developed that the statement was based purely on what someone had told her: “I haven’t been over there recently, only everyone has said there would be no water over there, so there will be no cattle over there.” When asked as to the size of the culvert, she gave an answer, but on further examination, stated, “I didn’t measure it, but that is what I have been told.” Although she had earlier stated that the improvements on the place amounted to $7,500.00, she could not, or did not, specify the manner in which this figure was reached.
The witness said that she had arrived at her figures on the basis of her knowledge of what other lands in the near vicinity had sold for. The lack of substantiality of this testimony is reflected in her testimony on cross-examination. From the record:
“Q. In arriving at $250.00 per acre, Mrs. Bane, you said you were familiar with what land was selling for in 1966, similar type land, and I believe you mentioned the Starkey property?
A. I know this. I know it was really high. It would be $250.00 an acre.
.Q. I thought I heard your testimony on that. Think back carefully. Do you know of your own knowledge that Mr. Starkey paid $250.00 an acre for that?
A. I imagine he paid more than that. I’m not sure. I do know we have figured it out a time or two, thinking about when I was asked the price, and how much it was an acre.
* * #
Q. * * * It was my understanding you based your opinion of $250.00 per acre on the fact that Mr. Starkey paid $250.00 an acre for his?
A. It has come from two or three different people, and I don’t just exactly know what Starkey p,aid, but I know it was a high price.”
The state’s evidence, subsequently offered, reflected that the Starkey property sold for approximately $79.00 per acre in June of 1963, and, according to one of the state’s expert witnesses, would have sold for approximately $100.00 an acre in June of 1966. Be that as it may, the point is that Mrs. Bane admittedly did not know what the Starkey property sold, for, and she had no knowledge of other sales in 1966, i. e., she said there had been sales, hut she did not know the amounts required for purchase. It might be mentioned that Mrs. Bane does not live on the property.
This case bears a striking similarity to Arkansas Highway Commission v. Darr, handed down on February 24,1969. There, Mrs. Darr owned certain land which had been condemned by the Highway Department. Two appraisers testified in her behalf, and gave their opinions as to the amount of damages she had suffered. She also testified, fixing her damages at more than twice as much as either of these witnesses. The jury returned a verdict in her behalf for damages in an amount that was greater than that fixed by either of her experts. Accordingly, there, as here, the award had to stand on the strength of the landowner’s testimony. This court held that her testimony on damages was not substantial. She did not live on the land, and showed no reasonable knowledge of market values of lands in the community, and we commented that it was apparent that she had a sentimental attachment for the farm. It was pointed out that, while a landowner is permitted to testify, because of his or her status as the owner, her conclusion on damages had to pass the substantial evidence test, and it was necessary that her testimony be examined to see if she gave a satisfactory explanation for her conclusions.
Here, Mrs. Bane did not give satisfactory reasons for her conclusions, and it is necessary that the judgment be reversed. We know of no way to fix an amount as just compensation for the damages occasioned by the taking of her lands. It is certain that the jury gave consideration to her testimony, else it could not have reached its verdict; for that matter, we do not know that it considered the testimony of Griswood. The award could have been based solely on the testimony of the owner. With her testimony out of the way, it might be that the jury would have taken the appraisal of one of the state’s two experts, both of which were considerably less than that of Mr. Griswood. Accordingly, as in Darr, we reverse and remand.
It is so ordered.
Fogleman, J., dissents.
These beans, according to the witness, are not grown on the farm, but on lands of a neighbor which are rented by her brother.
“Q. How much were they, considering their age and everything, how much did they contribute to the property out of the $27,500.00? How much of that was due to the barns and fences? A. How much were they worth to the place? Q. Yes, mam. A. 1 don’t know.” | [
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Lyle Brown, Justice.
Appellant Emery Berryman Bagley was convicted of first degree murder and sentenced to death. Bagley and a companion hitchhiked a ride out of Memphis, Tennessee, and their benefactor was fatally shot as the three men drove through St. Francis County. Two written confessions of Bagley were introduced at his trial, both of which iinplicated him. The State’s evidence was clearly sufficient to sustain a first degree murder conviction. However, there were errors committed by the trial court which call for reversal. We shall discuss those errors and, because of the probability of a new trial, comment on most of the other points advanced by appellant.
The court examined the jury on voir dire but first explained the nature of the charge, the degrees of homicide, and the punishment. Comment was made on the nature of the punishment for first degree murder in these words:
The law fixes the punishment at death by electrocution unless the jury finds that there ,are extenuating circumstances which would justify life imprisonment instead of the death penalty. If the jury does not find extenuating circumstances it simply returns a verdict of guilty of murder in the first degree, and then the law requires that the court pronounce the sentence. If the jury finds extenuating circumstances they will return a verdict of guilty and fix the punishment at life imprisonment in the State Penitentiary.
Bagley’s counsel timely objected (in chambers) to the statement as being a prejudicial misstatement of the law and requested that the court correct it in the presence of the jury. The court, in denying the request, took the position that its formal instructions which would follow the testimony would leave no doubt with the jury that it could “certainly return any verdict they see fit.”
The court told the jury that if the defendant was guilty of first degree murder the punishment was death by electrocution unless the jury found extenuating circumstances which would justify the substitution of a penalty of life imprisonment. Ark. Stat. Ann. § 43-2153 (Repl. 1964) says the jury “shall have the right” in all capital cases to fix punishment at life imprisonment instead of death. The statute contains no such words or phrases as “discretion” or “extenuating circumstances.” When the Legislature created two forms of punishment for first degree murder it did not create two grades of the offense; it merely created a choice of punishment, that choice to be made by the jury. The only responsibility imposed on the court is that the jury is to be advised of its duty to select which of the punishments shall be imposed. When the court so advises the jury it “has exhausted its powers in the premises, and any attempt on its part to go further and inform the jury that under certain circumstances it might impose death and under others life imprisonment would in effect usurp the prerogatives of the jury and be wholly improper.” Hernandez v. State, 32 P. 2d 18 (1934).
The State argues that if the trial court’s remarks were erroneous, it is not shown that those members of the panel who heard the remarks actually sat on the jury. We concede that it cannot be determined with certainty just which jurors heard the remarks but it is clear to us, after careful perusal of the record, that a majority of the jurors who tried the case heard the court’s statement about extenuating circumstances.
Additionally the State contends that any error was cured when the court explained the forms of verdicts and advised the jury to fill in the blanks as the jury saw fit. We cannot agree. The damage could have been removed only by an equally positive statement of correction. The court’s statement that extenuating circumstances must be produced to avoid the death penalty was clear and unequivocal; only a corrected statement of equal stature could have erased it.
Appellant contends that the court and prosecuting attorney, to appellant’s prejudice, propounded an unnecessary number of inquiries to prospective jurors concerning their views on capital punishment. We cannot say the court abused its discretion. Some repetition was necessary because the first list of jurors was exhausted and additional jurors were necessarily called. Had the proper objection been made it is possible that the court would have reduced to some extent the number of repetitions. The attitude of the jurors toward capital punishment was needed for two purposes. First there were the challenges for cause, based on the decision in Witherspoon v. Illinois, 391 U. S. 510 (1968). On the basis of Witherspoon, those jurors who would not consider returning a verdict of death could be removed for cause. Secondly, there was the responsibility of the prosecuting attorney for wisely making peremptory challenges. To so act he would naturally need to identify those jurors who had conscientious or religious scruples against the death penalty. Although Wither-spoon held that such general objections to the extreme penalty were not grounds for challenging for cause, it certainly did not restrict the prosecutor in considering those factors in evaluating his peremptory challenges.
The widow of the victim testified that at the time of her husband’s death she was pregnant and suffering from pneumonia. Appellant argues that the testimony was irrelevant and prejudicial. Clearly that testimony would only serve to arouse the sympathy of the jury. "We suggest that it be avoided on retrial.
In one of the instructions the trial court read to the jury Ark. Stat. Ann. § 41-2246 (Repl. 1964):
Burden of Proof. — The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.
The giving of that instruction is asserted as error which allegedly calls for a new trial. The statute has been held to be applicable only where there is a claim of self-defense. Where the instruction is given in other cases we have said it is only a statement of an abstract proposition of law and may be harmless error. Wilson v. State, 126 Ark. 354, 190 S. W. 441 (1916); Easter v. State, 96 Ark. 629, 132 S. W. 924 (1910). We have also held that when an instruction based on § 41-2246 is accompanied by an instruction on presumption of innocence which goes with the defendant throughout the trial unless overcome beyond a reasonable doubt, any error in the reading of § 41-2246 is harmless. Brown v. State, 231 Ark. 363, 329 S. W. 2d 521 (1959). Yet, each case is governed by its own record and the law applicable to that record. The case before us is different in essential respects from the cited cases and the many other precedents concerning the application of § 41-2246. Here is the record upon which our disposition of appellant’s challenge is based:
It is important to note that Bagley was charged with a willful, premeditated, and deliberate killing, as opposed to a charge of murder while in the perpetration of robbery; had the latter charge been filed there could have been only the highest degree of homicide involved. No witnesses were called in Bagley’s behalf. Before the court read § 41-2246 to the jury, Bagley’s counsel objected (1) that the killing was admitted and there was no contention of mitigating circumstances, and (2) the instruction “amounts to a comment on the fact that the defendant has not testified in this case.” Under further instructions of the court, the jury was privileged to find Bagley guilty of first degree murder, second degree murder, or manslaughter. Since Bagley called no witness the instruction could have discouraged the jury from considering a verdict less than that of first degree murder. That was because the jury was told the defendant had a duty to come forward with proof of mitigating circumstances. Since Bagley stood silent, as of course he had a right to do, the jury could have given damaging weight to his inaction.
Appellant next attacks the constitutionality of two of our statutes, Ark. Stat. Ann. § 41-2227 and § 43-2154 (Repl. 1964). Respectively those statutes fix the death penalty for first degree murder and establish an alternate penalty of life imprisonment. It is argued (a) that the death penalty is allowed to be imposed by the jury without any guidelines and (b) that the jury which fixes guilt determines the punishment at the same time. Identical challenges to Arkansas law were raised in Maxwell v. Bishop, 398 F. 2d 138 (1968). The arguments were rejected by a unanimous court and we agree. Also, see Spencer v. Texas, 385 U. S. 554 (1967) for that court’s comment on two-part jury trials.
In his closing argument the prosecuting attorney discussed capital punishment as a deterrent to others similarly inclined. Defendant’s attorney contends he was improperly denied appropriate rebuttal when he was told he could not refer to certain statistics which he contended proved the death penalty was not a deterrent. We cannot say the trial court abused its discretion in that respect in that the statistics were not in the record nor were they asserted to be a matter of common knowledge. Furthermore, the defense attorney immediately argued the same point by a different approach and without objection.
Other points for reversal which are argued are without merit and a discussion of them would serve no useful purpose. We have examined other objections made in the record but not argued and find no error. The record does reveal one incident which requires comment because of a probable new trial. In the course of its deliberations the jury inquired “as to the minimum time that a man would have to serve if he was sentenced to a life sentence in prison.” The court explained that the question could not be answered because of the recent enactment of what was considered a complex new law difficult of interpretation; and because no statistics had yet been made available based on the new law. It would not have been improper for the trial court to respond to the question by an explanation of the law applicable to paroles; but the giving of statistics on the subject to the jury resulted in a reversal in Bell v. State, 223 Ark. 304, 265 S. W. 2d 709 (1954).
It is our conclusion that the case must be reversed and remanded for new trial. We are well aware of those many instances in homicide cases wherein error has been corrected either by reducing the punishment or by entering a conviction for a lesser degree of the charged offense; hut there are two reasons which, when combined, preclude those alternatives. First, the evidence here would clearly support a conviction of first degree murder; .and second, the error in giving an instruction based on § 41-2246 could well have influenced the jury to return the recorded verdict in lieu of a conviction for a lesser degree of homicide.
Reversed and remanded.
Holt, J., not participating. | [
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John A. Fogleman, Justice.
The sole question to be determined is whether an instrument executed by Otey R. Vaught on January 11, 1951, in his own handwriting is entitled to probate as his holographic will. Appellant contends that the trial court erred in denying probate of the instrument as being based on a contingency which did not occur. We find that the instrument was not contingent or conditional and that it should be admitted to .probate.
Otey R. Vaught died June 5, 1966. He left only collateral heirs at law surviving him. Appellant Marie Vaught, a sister-in-law in whose home the decedent had lived on various occasions for many years and who had cared for him during various illnesses was the proponent of the will. Probate was opposed by the collateral heirs. The will bears the date of execution and signature of the testator. Its text is reflected in the record as folIoavs :
This is my will if I should die at once. I want Marie Vaught, to have my land and personal property. Sign by. /s/ Otey R. Vaught
This purported will was never revoked by the decedent. The denial of probate would result in intestacy and' the .descent .and distribution of his property to numerous collateral heirs.
The rules governing determinations of this sort are easier to state than to apply. The particular question depends upon whether the contingency is referred to as the occasion of, or reason for, making the will at the time of execution, or is referred to as the reason for making the particular disposition of property which would be disposed of thereby and is intended to specify the condition upon which the will is to become operative. In the latter case, the will is contingent or conditional. In the former it is not. 1 Page on Wills (New Rev. Treatise), 418, 423, §§ 9.1, 9.5; Annot. 1 A. L. R. 3d 1048, 1050; 57 Am. Jur. 453, 456, §§ 671, 674; 94 C. J. S. 939, Wills § 152; In re Taylor's Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953).
It is when the contingency and the disposition of the property are so related to each other that the one is dependent on the other that the will is contingent. Barber v. Barber, 368 Ill. 215, 13 N. E. 2d 257 (1938); Capps v. Richardson, 215 S. C. 34, 53 S. E. 2d 876 (1949).
Unless the terms of the will clearly show that it was intended to be contingent it will be regarded as absolute and unconditional. 1 Page on Wills (New Rev. Treatise), 423, § 9.5; 94 C. J. S. 940, Wills § 152; 57 Am. Jur. 454, Wills § 672; In re Desmond’s Estate, 223 Cal. App. 2d 211, 35 Cal. Reptr. 737, 1 A. L. R. 3d 1043 (1963); Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919); Skipwith v. Cabell, 19 Gratt. 758 (Va. 1870); In re Moore’s Estate, 332 Pa. 257, 2 A. 2d 761 (1938). If the language used can reasonably be construed to refer to a possible danger or threatened calamity only as a reason for making a will at the time, rather than as a condition precedent to the will becoming operative, it will not be construed to render the will conditional. Annot. 40 A. L. R. 2d 698, 731 et seq.; 57 Am. Jur. 454, Wills § 672; 94 C. J. S. 940, Wills § 152; Walker v. Hibbard, supra; In re Taylor’s Estate, supra; Skipwith v. Cabell, supra. See also 1 Page on Wills (New Rev. Treatise) 424, § 9.5; Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904).
As a corollary of the rule requiring that a will be given an interpretation which avoids intestacy, long recognized in Arkansas, a will must be construed as unconditional in case of doubt. 57 Am. Jur. 454, Wills § 672: Walker v. Hibbard, supra; Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937); In re Trager’s Estate, 413 Ill. 364, 108 N. E. 2d 908 (1952); Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944).
Appellees rely upon Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855, to sustain the judgment of the trial court. The language contained in the instrument in that case was very different from that involved here. In one sentence the testator there stated, “Now Lillie since I have made you my beneficiary in all my insurance, I want you, in the event I should die anytime soon, to collect all my insurance and if I have any money left anywhere I would want you to get it all together and divide it equally among your mother, Eddie, Mattie, Myrtise’s heirs, Bill, Lauree and yourself.” In another sentence, he said, “Now in case of my death anytime soon, I would want Myrtise’s part or part of it anyway to go towards paying some of the expenses of her sickness and death, but should these bills be already paid I -would want it to go to Ned and Olive...” The writer of that letter certainly did not desire that the addressee collect his insurance and money and make the division directed unless he died “anytime soon.” Nor did he intend for his other desires to be carried into effect except in case of his death soon. In other words, the conditions there stated could have only been construed as stating the conditions under which the testamentary document became operative and not as the reason for making a will. On the other hand, the language “'This is my will if I die at once” can be construed as stating the reason for the making of the will, i. e., that possibility of impending death which provokes much testamentary action. Since it can be so construed, it should be.
The decision in the Wilson case is not contrary to the rules for determining whether a will is contingent or absolute. Most of these rules are specifically stated or recognized in Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919), cited as authority in the Wilson opinion, as will appear from citations above. Walker v. Hibbard is also cited in Kentucky as authority for most of these rules. See, e. g., Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937).
In resolving doubtful cases, parol evidence of ex trinsic circumstances is admissible to show that the testator’s intention was to make an absolute, rather than a contingent will. In re Desmond’s Estate, 223 Cal. App. 2d 211, 35 Cal. Rptr. 737, 1 A. L. R. 3d 1043 (1963); In re Moore’s Estate, supra; In re Trager’s Estate, supra; Barber v. Barber, 368 Ill. 215, 13 N.E. 2d 257 (1938); 57 Am. Jur. 457, Wills § 677; 94 C. J. S. 940, Wills § 152; Annot., 1 A. L. R. 3d 1048, 1051. Such evidence may be considered in interpretation of wills, not to show what the testator meant as distinguished from what his words express, but for the purpose of showing the meaning of the -words used. Eagle v Oldham, 116 Ark. 565, 174 S. W. 1176. Extrinsic circumstances which may be considered include: (a) those surrounding execution and delivery of the document In re Del Val’s Estate, 159 Cal. App. 2d 600, 323 P. 2d 1011 (1958)] (b) instructions upon delivery of the instrument [In re Del Val’s Estate, supra; In re Taylor’s Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953)] (c) subsequent declarations of the testator (In re Del Val’s Estate, supra; In re Taylor’s Estate, supra) (d) lack of a subsequent will or revocation [In re Del Val’s Estate, supra; Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944); In re Taylor’s Estate, supra] (e) lack of any alternative disposition of his property (In re Del Val’s Estate, supra) (f) whether disposition is of entire estate or part thereof (In re Del Val’s Estate, supra).
Delivery of a will to someone for preservation is evidence a testator intended it to be unconditional. In re Taylor’s Estate, supra. The fact that a long term of years passed between the writing and the testator’s death without revocation is significant. Succession of Gurganus, supra.
It is not inappropriate that we also take into consideration the fact that appellant was a natural and proper object of the decedent’s bounty. Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904); Skip- with v. Cabell, 19 Gratt. 758 (Va. 1870). Previous association of the testator and the beneficiary of the will indicating that the former desired the latter to be the recipient of his property whenever death occurred tends to show that testator’s statements concerned the reason for making a will. Wood v. Greimann, 165 F. 2d 637 (1948);
If resort is had to the extrinsic evidence offered, there is ample support for a finding that it was absolute, in spite of the fact that Fannie Vaught, one of appellees, testified that Otey told her in 1960 that he had never made a will.. Bob Vaught, son of appellant, testified that he took Otey Vaught to a hospital on two different occasions, the first time for surgery and the second because of a stroke. Bob said that on the first occasion his uncle told him to get the instrument in question and a certain deed from a trunk and to take them to appellant. On the second occasion (apparently in 1959), according to this witness, he asked Otey Vaught if this instrument should not be “notarized,” but the latter said that it was all right and to tell appellant to just keep it. Appellant testified that her son brought the paper to her after Otey’s first hospitalization and told her to keep it and not let anyone have it. Willard R. Bowling testified that when he attempted to purchase a 40-acre tract of land from Otey Vaught, Mr. Vaught stated that he had “willed” the property to appellant and wanted her to have it when he died. When this testimony is considered along with evidence showing that appellant, her deceased husband and their two sons, cared for and provided a home for the decedent on various occasions, the length of time intervening between the writing,of the will and Otey’s death without revocation or attempt to recover the instrument, and the fact that the will disposed of all his property, the conclusion that the will is absolute rather than contingent is amply supported.
We reverse, with directions to admit the paper writ ing to probate as tbe last will .and testament of Otey E. Vaugbt.
George Eose Smith, Brown and Byrd, JJ., dissent.
See Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014; Bradshaw v. Pennington, 225 Ark. 410, 283 S.W. 2d 351. | [
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Donald L. Corbin, Justice.
Appellant Justin Porter was convicted in the Baxter County Circuit Court of driving while intoxicated (DWI), third offense, and sentenced to twelve months in the county jail, with all but sixty days suspended. Porter was also placed on supervised probation for one year and ordered to pay a fine and court costs totaling $1,800. He appealed to the Arkansas Court of Appeals, which reversed his conviction for insufficient evidence. See Porter v. State, 82 Ark. App. 589, 120 S.W.3d 178 (2003). We granted the State’s petition for review of this decision, pursuant to Ark. Sup. Ct. R. 2-4. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003); Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We affirm the judgment of conviction.
The record reflects that on May 20, 2001, around 6:30 a.m., Porter was involved in a one-vehicle accident, for which he was charged with DWI. Porter initially pled guilty in the district court in Mountain Home. He then appealed to the Baxter County Circuit Court, where he was tried by the bench. At trial, the prosecutor presented testimony from Trooper Jim Brown, of the Arkansas State Police, and Deborah Williams, director of laboratory services at Baxter Regional Hospital.
Trooper Brown testified that he arrived on the scene as Porter was being attended to by emergency medical technicians. While there, Porter told Brown that he was the only occupant of the vehicle and that the wreck had occurred as he was on his way to work. At that time, Brown smelled a strong odor of intoxicants coming from Porter. Porter was subsequently taken to the hospital, where he was treated for his injuries. While there, around 9:00 a.m., Trooper Brown arranged for blood to be drawn from Porter by a lab technician. The blood was later sent to the Arkansas State Crime Laboratory, where it was determined to show a blood-alcohol content of 0.05%. When asked by the prosecutor whether anything had occurred at the hospital that might have reduced Porter’s blood-alcohol content, Brown stated that he believed that Porter had been given fluids during his treatment.
Williams-testified that on the date of the accident, blood had been drawn from Porter on a physician’s order, at around 7:00 a.m. That sample was later tested at the hospital, where it was determined that the blood-alcohol content was 0.0904%. The hospital’s blood test was admitted into evidence without objection.
After the prosecution rested, defense counsel made a motion to dismiss on the ground that the prosecution had failed to prove that Porter was intoxicated at the time of the accident. Counsel argued that Porter’s blood-alcohol content was less than the legal limit at the time, 0.10%, even considering the earlier test showing an alcohol content of 0.0904%. The trial court denied the motion, and the defense then rested. Thereafter, the trial court found Porter guilty of DWI.
On appeal, Porter argues that the evidence is insufficient to prove that he was intoxicated under the Omnibus DWI Act. Chiefly, he argues that the evidence was insufficient because (1) neither blood test showed a blood-alcohol content of 0.10% or more, and (2) there was no additional evidence, apart from the fact of his wreck, to show that he was intoxicated at the time. He also argues that the trial court erred in admitting into evidence the test performed by the hospital, as he contends that the test was not done in compliance with the procedures set out in Ark. Code Ann. § 5-65-204 (Repl. 1997). This second argument may be summarily disposed of, as it was not preserved below. This court has consistently refused to hear arguments raised for the first time on appeal. See, e.g., Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003); Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). We turn then to the remaining point on appeal.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. If material and relevant evidence is not in dispute or there is a conflict in the evidence to the extent that fair-minded persons might draw different conclusions therefrom, the evidence is substantial. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only that evidence tending to support the verdict. Johnson, 337 Ark. 196, 987 S.W.2d 694.
At the time of Porter’s accident, Ark. Code Ann. § 5-65-103 (Repl. 1997) provided:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
This court has consistently recognized that this statute provides two different ways to prove the offense of DWI: (1) proving a blood-alcohol content greater than the limit provided in subsection (b), or (2) proving intoxication under subsection (a). See, e.g., State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995); Yacono, 285 Ark. 130, 685 S.W.2d 500.
In the present case, the court of appeals erroneously held: “In order to convict, the State must prove all elements under both subsections of Ark. Code Ann. § 5-65-103.” Porter, 82 Ark. App. at 594, 120 S.W.3d at 181 (citing Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988)). However, a close examination of Neble reveals that the court of appeals misinterpreted that holding. In Neble, the appellant was charged under subsection (a) of section 5-65-103. On appeal, he challenged the sufficiency of the evidence to convict him. The Neble court held that under subsection (a):
The state must prove beyond a reasonable doubt every element of the crime charged. Therefore, the state must prove not only that appellant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated.
Id. at 166-67, 762 S.W.2d at 395 (citation omitted). Clearly, this holding does not support the court of appeals’ position in this case that the State is required to prove all elements under both subsections of section 5-65-103.
In the present case, the State did not present evidence showing that Porter had a blood-alcohol content of 0.10% or greater. As such, there was not substantial evidence to convict Porter under section 5-65-103(b). The question then is whether there was substantial evidence to convict under subsection (a). Viewing the evidence in a light most favorable to the State and considering only that evidence that supports the verdict, we conclude that there is substantial evidence that Porter was intoxicated and that he was operating a vehicle while intoxicated.
“Intoxicated” is defined in Ark. Code Ann. § 5-65-102(1) (Repl. 1997) as meaning:
influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians[.]
Proof of the motorist’s blood-alcohol content is not necessary for a conviction of DWI on the ground of intoxication. Stephens, 320 Ark. 426, 898 S.W.2d 435; Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). However, such proof is admissible as evidence tending to prove intoxication. Id.; Yacono, 285 Ark. 130, 685 S.W.2d 500. In deciding whether there is substantial evidence of intoxication, this court takes notice of the unquestioned laws of nature, mathematics, and physics. Stephens, 320 Ark. 426, 898 S.W.2d 435; Yacono, 285 Ark. 130, 685 S.W.2d 500. Consistent with this principle, this court has repeatedly observed that blood-alcohol content decreases with the passage of time. Stephens, 320 Ark. 426, 898 S.W.2d 435 (citing State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985)).
The evidence in this case demonstrated that Porter was involved in a one-vehicle accident at around 6:30 a.m. Trooper Brown testified that when he spoke with Porter at the scene of the accident, Porter stated that he had been the only occupant of the vehicle at the time. Thus, by Porter’s own admission, he was operating or in actual physical control of the vehicle at the time of the crash. Trooper Brown also testified that Porter had a strong odor of intoxicants on or about his person while the officer spoke with him at the crash site. Shortly thereafter, Porter was transported to the hospital, where blood was drawn pursuant to a physician’s orders around 7:00 a.m. The sample was tested at the hospital’s lab and revealed a blood-alcohol content of 0.0904%, which is just under the legal limit in effect at the time. It is reasonable to infer from this evidence that Porter’s blood-alcohol level at the time of the crash was above 0.0904%. It is likewise reasonable to infer that Porter was intoxicated at the time of the accident, given his blood-alcohol content and the facts that he was in a one-vehicle accident and had a strong odor of intoxicants on or about his person at the time.
We disagree with both Porter and the court of appeals that substantial evidence of intoxication requires proof of glassy, watery eyes, slurred speech, or some other physical impairment, beyond the evidence that Porter’s driving ability was impaired to the extent that he was involved in a one-vehicle wreck. While we agree that evidence of a one-vehicle wreck, standing alone, is not substantial evidence of intoxication, we conclude that this evidence of driving impairment coupled with the evidence of Porter’s blood-alcohol level and the strong odor of intoxicants is substantial evidence of intoxication.
.[9, 10] We also disagree with Porter’s argument that he was entitled to a presumption that he was not intoxicated, based on the test that showed his blood-alcohol content to be 0.05%. He relies on Ark. Code Ann. § 5-65-206 (Supp. 1999), which, at the time of his accident, provided in pertinent part:
(a) In any criminal prosecution of a person charged with the offense of driving while intoxicated, the amount of alcohol in the defendant’s blood at the time or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant’s blood, urine, breath, or other bodily substance shall give rise to the following:
(1) If there was at that time one-twentieth of one percent (0.05%) or less by weight of alcohol in the defendant’s blood, urine, breath, or other bodily substance, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
(2) If there was at the time in excess of one-twentieth of one percent (0.05%) but less than one-tenth of one percent (0.10%) by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
Porter’s argument on this point fails to take into account the blood, test that was drawn some thirty minutes after the wreck, which showed a blood-alcohol content of 0.0904%, and Trooper Brown’s testimony that Porter had been given fluids prior to the time that the second blood sample was drawn. Variances and discrepancies in the proof go to the weight or credibility of the evidence, and it is for the factfinder to resolve any conflicts and inconsistencies. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998); State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Where, as here, the trial is before the bench, the trial judge sits as factfinder. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000); Gray v. State, 311 Ark. 209, 843 S.W.2d 315 (1992). The trial judge in this case obviously resolved the conflicting evidence in favor of the State, and we will not substitute our own resolution for his. Accordingly, we affirm the circuit court’s judgment of conviction, and we reverse the decision of the court of appeals.
Thornton, J., dissents.
Hannah, J., not participating.
Subsection (b) was amended by Act 561 of 2001 to change the blood-alcohol level required for intoxication to .08 grams of alcohol per either 210 liters of breath or 100 milliliters of blood. That amendment was not in effect at the time of this incident. | [
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Betty C. Dickey, Chief Justice.
Appellant Jack Gordon Greene was convicted in Johnson County Circuit Court of the capital murder of Sidney Jethro Burnett and was sentenced to death in 1992. This court affirmed the conviction for capital murder but reversed and remanded for resentencing because the North Carolina Supreme Court had reversed a previous murder conviction, which the Arkansas trial jury had considered as an aggravating circumstance. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (Greene I). In 1996, Greene was again sentenced to death and this court again reversed and remanded for resentencing because (1) the State had not offered proof that Greene’s bad act in North Carolina constituted a felony under North Carolina law, and (2) Greene was entitled to a hearing relating to his objections to his mental evaluation. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (Greene II). On remand, Greene was sentenced to death and this court affirmed. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001) (Greene III). Appellant then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition without a hearing. From that order Greene now appeals, asserting seven points on appeal, none of which has merit. We affirm the order of the trial court.
Appellant alleges two procedural and five substantive errors: (1) the trial court’s order denying postconviction relief fails to comply with the written findings requirement of Rule 37; (2) the trial court erred in failing to conduct a hearing on the petition; (3) trial counsel was ineffective for failing to seek live testimony in the penalty phase instead of submitting transcripts; (4) trial counsel was ineffective for failing to object to State’s closing argument; (5) trial counsel was ineffective for failing to make a proper objection to an improper interpretation of Arkansas law; (6) trial counsel was ineffective for failing to challenge the testimony of the medical examiner; and, (7) trial counsel was ineffective for failing to make a constitutional objection to introduction of a T-shirt inscribed “If you love someone, set them free. If they don’t come back, hunt them down and shoot them.”
Standard of Review
The standard of review for claims of ineffective assistance of counsel is well settled in Arkansas. This court has recently stated:
In reviewing a claim of ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002); Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. McGehee, supra. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). To prevail on a claim of ineffective assistance of counsel, Scott must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors, the result of the trial would have been different. McGeHee, supra; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003).
I. Written Findings under Rule 31
Appellant claims that the trial court’s order fails to comply with the “written findings” requirement of Rule 37, which has two separate provisions that deal with petitions where the trial court does not hold a hearing. These rules state in pertinent part:
37.3(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
37.5(i) Decision. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions oflaw with respect to each legal issue raised by the petition.
Ark. R. Crim. P. 37.3, 37.5 (2003). This court has recently reconciled these two rules and their relative case law. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).
Prior to the enactment of Rule 37.5, Rule 37.3 covered cases where the death penalty was imposed. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Under Rule 37.3(a), the trial court is required to make written findings specifying any part of the files or records that are relied upon to sustain the court’s findings. Ark. R. Crim. P. 37.3(a) (2003). This court has held it can affirm a trial court’s order notwithstanding the failure to comply with Rule 37.3(a), if it can be determined from the record that the petition is wholly without merit, or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted, even in death cases. Wooten, supra; see also Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997).
Rule 37.5 mandates that the trial court make “specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions oflaw with respect to each legal issue raised by the petition,” but the Rule does not require the trial court to specify any parts of the files or records that are relied upon to sustain the court’s findings. This court has explained that in death cases covered by Rule 37.5, it will remand a case when the trial court fails to make sufficient written findings of fact and conclusions oflaw. Echols v. State, 344 Ark. 513, 516, 42 S.W.3d 467, 470 (2001)(postconviction claims are governed by Rule 37.5., which provides the postconviction procedure.to be applied in death-penalty cases for defendants who became eligible to file a Rule 37 petition on or after March 31, 1997).
In Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003), this court said when a trial court makes written findings of fact and conclusions oflaw as required by Rule 37.5, but fails to specify the parts of the record that form the basis of the trial court’s decision under Rule 37.3(a), we will still affirm if the record conclusively shows that the petition is without merit. Id.
The appellant contends the trial court’s order is deficient in the following ways:
The order (i) does not cite the files or records used to sustain the court’s findings; (ii) does not make specific findings of fact; (iii) omits some conclusions of law; and, (iv) does not assert that the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief.
The State contends the order issued by the circuit court complies with the mandates of Rule 37. We agree. The trial court’s order specifically addressed each argument presented by Greene independently with a finding of relevant facts and conclusions of law. The allegations of ineffectiveness were legal in nature, therefore, the trial court had no duty to cite to files or records used in making its findings. Appellant fails to explain which conclusions of law are missing. Finally, Greene seems to assert that the trial court must certify the “petition and the files and records of the case conclusively that show the petition is entitled to no relief.” Rule 37 makes no requirement of certification. We conclude that the trial court’s order is sufficient for this court to review.
II. Rule 31 Hearing
In his second point, Greene claims that the trial court should have conducted a hearing on his petition. We disagree. This court recently addressed a petitioner’s right to an evidentiary hearing in a death-sentence case, Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003), where we explained that Rule 37.3 clearly grants the trial court discretion to decide whether the files and records are sufficient to address the petition without a hearing. We have previously interpreted Rule 37.3 to “provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and records of the case conclusively show that the prisoner is entitled to no relief.” Id.
We have acknowledged that due to the finality of the punishment, death-penalty cases are different than other criminal cases. Id. However, this court has recognized that the trial court is not required to hold an evidentiary hearing, even in death-penalty cases. Id.; Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). The trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Sanders, supra. Moreover, conclusory allegations that are unsupported by the facts do not provide a basis for either an evidentiary hearing or post- conviction relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). A Rule 37 hearing is not available to a petitioner in hopes of finding grounds for relief. Id.
III. Use of Trial Transcripts
After Greene was initially sentenced to death, we affirmed his guilt but reversed his death penalty for a new hearing. Greene I, supra. After being resentenced to death, we again found error in the proceedings and reversed Greene’s death penalty for a new hearing. See Greene II, supra. At his rehearing, Greene’s counsel submitted transcripts of prior testimony as mitigating evidence pursuant to Ark. Code Ann. § 5-4-616(a)(4) (Repl. 1997). Greene now argues that counsel’s decision to use the transcripts and failure to seek live mitigating testimony constituted ineffective assistance of counsel. The trial court ruled that counsel’s decision was a matter of trial strategy and that there was no reasonable probability that live testimony would have resulted in a different result. That ruling was not clearly erroneous, and we affirm.
Greene argues that he was clearly entitled to the physical presence of mitigation witnesses by virtue of his Sixth Amendment right of compulsory process, along with the analogous state guarantees in Article 2, § 10, of the Arkansas Constitution and the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, codified at Ark. Code Ann. § 16-43-401-409 (Repl. 1999). Counsel suggests that “[h]ad counsel made the proper request, it would have been granted or the sentence would have been summarily reversed.” Then, Greene explains the substance of the mitigating testimony submitted by transcript and the jury’s conclusions with respect to aggravating and mitigating circumstances. Nevertheless, after trumpeting the constitutional guarantees, Greene concedes that trial counsel was permitted to use the transcripts, but contends that counsel should not have made that choice.
It is clear that in Arkansas, matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for finding ineffective assistance of counsel. Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003). In Greene’s second punishment hearing, the testimony from his mitigation witnesses was elicited with virtually no cross-examination by the State. In preparing the mitigating evidence for Greene’s third punishment hearing, coun sel may have considered the potential that the State would more vigorously cross-examine the mitigation witnesses. Of particular note was the State’s prior inability to cross-examine the witnesses concerning allegations that Greene murdered his brother in North Carolina.
Furthermore, the record reflects that counsel did attempt to secure live testimony. Specifically, counsel filed a motion to subpoena ten out-of-state witnesses pursuant to Ark. Code Ann. § 16-43-403. The jury unanimously found that two mitigating circumstances probably existed, and mitigating evidence presented by Greene’s counsel was clearly considered by the jury without the live testimony.
Greene has failed to meet the first prong of the Strickland test requiring a showing that counsel’s representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Additionally, it cannot be said that, had the jury heard live testimony from the witnesses, the outcome of the hearing would have been different. Furthermore, mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice to require an evidentiary hearing. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).
IVFailure to Object During Closing Argument
In closing arguments at Greene’s final sentencing hearing, the State asked the jury to send a message. The prosecutor stated:
If someone comes into our community from off somewhere and does this to one of our citizens, I think we should tell them, “You get the maximum penalty here.” Giving the maximum penalty discourages and deters other people from doing things like this to sixty nine year old retired ministers in Johnson County.
Greene’s counsel did not object to this argument at trial. Now Greene says the prosecutor’s argument was an improper expression of personal opinion, a violation of his due-process and fair-trial rights, and a violation of his constitutional right to travel. In denying postconviction relief, the trial court denied the claim citing trial strategy and noted that “[s]ome lawyers might refrain from objection to prevent additional attention begin [sic] drawn to the argument, while others might feel it necessary to obtain a ruling by the trial court.” The trial court concluded that counsel’s conduct fell within the range of permissible legal conduct and that Green failed to demonstrate any prejudice by the State’s argument or counsel’s failure to object. Ordinarily, the failure to object during closing argument is within the wide range of permissible professional legal conduct. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). This court has held that experienced counsel in any case could disagree to the influence a particular closing argument had on the jury’s verdict. Id. Before petitioner can prevail on an allegation that counsel was wrong in not objecting during closing argument, he must establish that he was denied a fair trial by the failure to object. Id.
Greene’s argument that he was denied a fair trial by counsel’s failure to object is followed by an allegation that the State’s closing comments aroused the passion and prejudice of the jury by unconstitutionally characterizing him as “an outsider.” For support of this claim, Green cites to United States v. Cruz-Padilla, 227 F.3d 1064 (8th Cir. 2000), where the Eighth Circuit Court of Appeals held that the State improperly tied an allegation that the defendant was a liar to her status as an illegal alien. Id. The court explained that the Constitution prohibits racially biased prosecutorial arguments. Id. Here, the prosecutor did not draw on Greene’s ethnicity. The prosecutor’s statement only identified that Greene was not from Johnson County. However, unlike the prosecutor in Cruz-Padilla, the prosecutor in this case did not link Greene’s place of residence to a propensity to lie or commit a crime.
Below is the “overwhelming evidence of guilt” noted in Greene I:
The facts show that appellant knew the Burnetts and was familiar with their home. He went to their home with handcuffs, a .25 caliber pistol, and filament tape. He bound Sidney Burnett’s hands, feet, and mouth. Over a period of time, appellant beat Burnett in the head, probably with a can of hominy; bruised his back, probably by stomping him with his heel; brutally stabbed him in the back; committed even more horrible torture when he cut the victim from mouth to ear; and ultimately shot him in the chest and in the head. Even though this description of butchery and torture sounds horrible, it does not fully describe the effect of macabre horror shown in the photographs of the crime scene. Appellant said, “I’m tired of being treated like shit. I was going to take out people that fucked with me. It’s like chaining up a dog and treating it like shit. Sooner or later he goes crazy.”
The evidence of a premeditated and deliberated murder is overwhelming, and, under such circumstances, the trial error was harmless. Consequently, we affirm the conviction for capital murder reached in the first phase of the trial.
Greene I at 357-378, 878 S.W.2d at 389. Given the above evidence, appellant cannot show that he was prejudiced by counsel’s decision not to object. The failure to make a meritless objection is not ground for ineffective assistance of counsel. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).
The prosecutor’s comments were nothing more than a call to the jury to enforce the law, which is permissible. See Muldrew v. State, 331 Ark. 519, 524, 963 S.W.2d 580, 582-83 (1998). In Muldrew, appellant argued that the prosecutor appealed to the jury’s passions by improperly including in his closing statement a “send a message” theme. Id. at 523, 963 S.W.2d at 582. This court has continually affirmed the State’s ability to use a “send a message” theme in closing arguments. Muldrew at 524, 963 S.W.2d at 582; See Lee, supra.
Greene contends that the remarks also violated Rule 3.4(e) of the Model Rules of Professional Conduct which states that a lawyer shall not, in trial, state a personal opinion as to the justness of a cause, the credibility of a witness, or the. guilt or innocence of an accused. However, Greene fails to cite authority that holds a prosecutor’s statement to “send a message” violates the Model Rules of Professional Conduct. Such a holding would be contrary to this court’s approval of such statements. Lee, supra. Furthermore, Greene fails to explain how an alleged violation of the Model Rules of Professional Conduct translates into ineffective assistance of counsel. Without citation to authority or convincing argument, we do not consider claims of error made on appeal. Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003); See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002); Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002).
VFailure to Object to Comment Regarding Appellant’s Possible Release from Prison
During closing arguments, in pleading for the jury to sentence Greene to life imprisonment, his counsel argued that a life sentence would keep Greene from ever getting out of prison. The State objected, arguing that Greene could be released pursuant to commutation, pardon, or reprieve of the Governor. This court addressed the colloquy in Greene III as follows:
Greene next contests a comment made by the prosecuting attorney regarding the potential for Greene’s release should he be sentenced to life in prison without the possibility of parole. The sequence of events and the colloquy between the judge and counsel follows:
Defense Counsel: He’s exhibited remorse for the death of Sydney Burnett I think Mr. Wilson argued that,“Well, he’s in prison over this thing now.” Well, he’s in prison. He’s not getting out. He’s never getting out of Tucker Maximum Security Unit at Tucker, Arkansas.
Prosecutor: Judge, I’m going to object to that. That’s misleading to the Jury.
The Court: The Jury has heard the evidence. If Counsel misquotes the evidence, they can disregard it.
Prosecutor: I’m talking about the situation about not getting out of the penitentiary. That’s not the law and it’s misleading.
The Court: Well, I’ll sustain that.
Prosecutor: Thank you, sir.
Defense Counsel: Well, I would submit then that the only way he would ever get out would be a Governor’s Pardon, if that helps Mr. Prosecutor Wilson.
Prosecutor: Well, Judge, it doesn’t. The law is clear that he maybe released pursuant to commutation, pardon or reprieve of the Governor.
The Court: That’s correct. .
Prosecutor: Thank you, sir.
Greene III, 343 Ark. at 539, 37 S.W.3d at 588. According to this court:
Greene’s counsel made no objection to this colloquy but now contests the prosecutor’s summary of the law for the first time on appeal. As authority, counsel cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and directs our attention to the exception to our contemporaneous rule relating to a trial court’s duty to intervene and correct a serious error. Absent the trial court’s intervention, Greene claims that he was highly prejudiced. We disagree that the trial court had a duty to step in under Wicks, because in our view no serious error was made. Indeed, the prosecutor correctly quoted the law. The apposite statute reads:
A person sentenced to life imprisonment without parole shall be remanded to the custody of the Department of Correction for imprisonment for the remainder of his life and shall not be released except pursuant to commutation, pardon, or reprieve of the Governor.
Ark. Code Ann. § 5-4-606 (Repl. 1997). This point has no merit.
Greene III, 343 Ark. at 539-540, 37 S.W.3d at 588.
Greene now submits that counsel at the sentencing hearing was ineffective for failing to object, and that appellate counsel was ineffective in failing to properly frame the Wicks exception. Nonetheless, Greene concedes that the court would have to overrule its decision in Greene III that prosecutor’s comments were proper.
Greene cites two cases to support his contention that the prosecutor’s statements were improper and to persuade this court to overrule its decision in Greene III. In Simmons v. South Carolina, 512 U.S. 154 (1994), the United States Supreme Court found error in the trial court refusing to instruct the jury consistent with the law that a sentence of life imprisonment, as an alternative to the death sentence, did not include the possibility of parole. In Caldwell v. Mississippi, 472 U.S. 320 (1985), the United States Supreme Court held that it was constitutionally impermissible to rest a death-sentence determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests on an appellate court. Here, no such assertion was made by the State These cases are inapposite and do not relate to the State seeking to inform the jury of the full status of the law.
In ruling that Greene’s claim had no merit, the trial court cited Hill v. State, 347 Ark. 441, 65 S.W.3d 408 (2002). In Hill, appellant claimed that trial counsel was ineffective for failing to appeal the trial court’s denial of a proffered jury instruction informing the jury that Hill would not be eligible for parole if he were sentenced to life imprisonment without the possibility of parole. This court held:
[T]he trial court was on sound ground in rejecting the proffered parole instruction, which contemplated an absolute prohibition against parole, since the governor could always commute a sentence of life imprisonment without parole. Because this court has held that there is no error in refusing an instruction which may have misled or confused the jury, see Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992), counsel would not have been ineffective for failing to raise such an issue on appeal.
Id. at 452, 65 S.W.3d at 416. Hill also cited Simmons in support of his argument; however, this court found that the circumstances in Simmons were “manifesdy not the same as what occurred at resentencing [in Hill].” Hill 347 Ark. at 452, 65 S.W.3d at 416.
In Simmons, the trial court refused to inform the jury that state law prohibited the defendant’s release on parole, whereas in Hill, the trial court specifically instructed the jury that, if they did not sentence Hill to death, they would sentence him to life imprisonment without parole. According to this court, “[t]he fact that the life imprisonment was without parole was specifically communicated to the jury.” Id. The same is true in this case. Given this court’s holding in Hill, there was no basis upon which to make an objection. Counsel cannot be ineffective for failing to make a meritless argument. Sandford v. State, 342 Ark. 22, 28-29, 25 S.W.3d 414, 420 (2000). In sum, this court has already ruled on the propriety of the prosecutor’s statements, and Greene now unsuccessfully attempts to have that decision reviewed and overruled.
VI. Failure to Impeach the State Medical Examiner
For his fourth point of substantive error, Greene contends that trial counsel was ineffective in failing to challenge the testimony of Dr. Malak concerning aspects of death. At his third sentencing hearing in 1998, the State used deposition testimony of Dr. Fahmy Malak taken in 1992. In Greene III this court held that Ark. Code Ann. § 5-4-616(a)(4) entitled the State to use the testimony. The substance of Greene’s Rule 37 argument is that counsel was ineffective for failing to impeach Dr. Malak in light of other evidence that Dr. Malak had a history of controversial and inaccurate determinations. Greene adds that there is a reasonable probability that another examiner would have disagreed with Dr. Malak’s conclusions. Nonetheless, neither Greene’s Rule 37 petition, nor his argument on appeal identify a doctor that would have disagreed with Dr. Malak, or even the evidence that would indicate Dr. Malak’s determinations were faulty and subject to different interpretation. When an allegation rests on whether a witness should have been called, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Malone v. State, 294 Ark. 127, 132, 741 S.W.2d 246, 249 (1987).
Greene fails to cite one piece of authority for the proposition that counsel was ineffective in this case. Greene merely makes conclusory allegations that there may have been some medical examiner that would have disagreed with Dr. Malak. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). This court will not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was, and how it would have changed the outcome. Id. In the absence of any showing of what the evidence concerning Dr. Malak’s examination might have proven, this court affirms.
VII. Failure to Make a Constitutional Objection to the Introduction of a T-shirt
Greene’s final argument is that original trial counsel was ineffective in failing to frame a constitutional objection to the t-shirt having the inscription, “If you love someone, set them free. If they don’t come back, hunt them down and shoot them.” At trial, Greene’s counsel objected to the admission of the t-shirt arguing that it was irrelevant and unduly prejudicial. The trial court admitted the t-shirt over Greene’s objection. Although the objection was overruled, this court held the trial court’s error to be harmless and refused to reverse appellant’s conviction. Greene I, 317 Ark. at 335, 878 S.W.2d at 387. According to this court, “after a detailed review of the evidence, we hold that the evidence of guilt of capital murder was overwhelming, and, in view of that evidence, the error was slight.” Id.
Now Greene argues that counsel should have objected on the grounds that the admission of the t-shirt violated the First and Fourteenth Amendments. According to appellant, even if the trial court had overruled such a constitutional objection, this court would have found constitutional error had occurred, using a “different, stricter standard” pursuant to Chapman v. California, 386 U.S. 18 (1967). In denying postconviction relief, the trial court noted this court’s ruling in Greene I and stated it could not conclude that, had counsel made a constitutional objection, a different result would have been reached by the jury. Greene is correct that the United States Supreme Court held that before a federal constitutional error can be declared harmless the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. Id. Greene is also correct that this court did not hold that the admission of the t-shirt was “harmless beyond a reasonable doubt.” However, Greene has failed to indicate what federal constitutional error arose out of the admission of the t-shirt.
Greene now argues that the inscription of this t-shirt was protected under the First Amendment to the United States Constitution. Nonetheless, it is unnecessary to analyze the doctrine of free speech in this context. Greene makes no assertion that the evidence which constitutes free speech is inadmissible at trial. The United States Supreme Court has concluded that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive of intent. Wisconsin v. Mitchell, 508 U.S. 476 (1993). Therefore, Greene’s argument is meritless. Accordingly, the trial court’s ruling is affirmed.
Affirmed. | [
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Per Curiam.
We grant the motion to expedite this court’s review. We deny, however, the motion to remand for limited purposes, as a remand is unnecessary. This court has said that matters collateral or supplemental to a trial court’s judgment, such as attorney’s fees, are left within the trial court’s jurisdiction even though an appeal to this court has been docketed. See, e.g., Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995); Alexander v. First Nat’l Bank of Ft. Smith, 278 Ark. 406, 646 S.W.2d 684 (1983). Accordingly, the trial court may consider and resolve matters pertaining to attorney’s fees ordered by this court in the instant case regardless of the fact that this court has reestablished jurisdiction over the matter.
Imbek, J., not participating.
Special Justice Carol Dalby joins. | [
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Betty C. Dickey, Chief Justice.
This is a dispute between two families over controlling interest in Lonoke Bane-shares, Inc. (LBI), an Arkansas bank holding company. Appellants, the Wayne Bennett family, maintain that the Arkansas Banking Code of 1997, codified at Ark. Code Ann. § 23-48-101, et seq., controls whether LBI is required to use cumulative voting. Appellees, the Neil Bennett group, assert that the Arkansas Business Corporation Act of 1987, codified at Ark. Code Ann. § 4-27-101, et seq., controls whether LBI is required to use cumulative voting. Both parties filed summary judgment motions, and appellants filed a request for additional discovery under Ark. R. Evid. 56(f). The trial court granted appellees’ motion for summary judgment and denied appellants’ discovery request. We affirm.
Wayne Bennett Sr. formed LBI in 1989 under the Arkansas Business Corporation Act of 1987. The Wayne Bennett family collectively own approximately 45% of LBI. LBI owns 100% of the stock in First State Bank of Lonoke. At a shareholder meeting on January 11, 2000, Wayne Bennett Sr. attempted to expand the 2000 LBI Board from six members to seven members by adding his son, Mac Bennett, to the Board. At that meeting, they discussed LBI’s by-laws as to cumulative, non-cumulative, and plurality voting in the election of directors. The Wayne Bennett family left the meeting, and the Neil Bennett Jr. motion to maintain the Board at six members was approved by the remaining shareholders.
On February 7, 2002, the Wayne Bennett family filed a complaint in the Lonoke County Circuit Court, alleging the Arkansas Banking Code of 1997 mandated cumulative voting for LBI shareholders. They also argued that Neil Bennett’s amendment eliminating cumulative voting in any form, is unlawful, invalid, and has no force nor effect. Appellants argued that the Neil Bennett Amendment should be declared illegal and that the Wayne Bennett Amendment be deemed valid and effective as consistent with the Arkansas Banking Code of 1987. On March 1, 2002, appellees answered the complaint stating that the Arkansas Banking Code of 1997 does not create a right of cumulative voting in this case because: (1) LBI was incorporated under the Business Corporation Act of 1987, Ark. Code Ann. § 4-27-101, etseq., and (2) the definition of “bank” in the Arkansas Banking Code'of 1997 does not include bank holding companies, which are separately defined.
On April 4, 2002, appellants, the Wayne Bennett family, served their initial discovery on the appellees, and on April 12, 2002, appellees filed a motion for summary judgment arguing that LBI was a bank holding company organized under the Arkansas Business Corporation Act of 1987; therefore, it was not required to elect directors using cumulative voting. On April 19, 2002, appellees responded to the interrogatories and requests for production. The appellants then filed a cross-motion for summary judgment. The Neil Bennett group delivered a letter to the trial court requesting a hearing. The trial court conducted a hearing on July 2, 2002, in which the trial court authorized the parties to file additional briefs.
On October 29, 2002, the trial court granted appellees’ motion for summary judgment. The trial court found “that the 1997 Banking Code, as it applies to Lonoke Bancshares, Inc., does not mandate that bank holding companies permit cumulative voting for corporate directors nor does it mandate that LBI change its bylaws to allow cumulative voting for its directors.” The Wayne Bennett family bring three points on appeal: (1) the trial court erred in denying appellants’ motion for continuance and stay pursuant to Ark. R. Civ. P. 56(f); (2) the Arkansas Banking Code of 1997 applies; and (3) the trial court erred in granting appellees’ motion for summary judgment because appellees’ construction of the Banking Code would violate Article 12, § 6, of the Arkansas Constitution.
Rule 56(f)
Appellants argue that the trial court erred in denying their separate motion for continuance and stay pursuant to Ark. R. Civ. P. 56(f). Rule 56(f) states:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
A trial court has broad discretion in matters pertaining to discovery and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appeal party. Loghry v. Rogers Group, Inc., 348 Ark. 369, 72 S.W.3d 499 (2002); Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Rankin v. Farmers Tractor & Equipment Co., Inc., 319 Ark. 26, 888 S.W.2d 657 (1994); Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). In order for this court to reverse the trial court’s denial of a continuance, the appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case. Alexander, supra.
The Wayne Bennett family argue that the trial court erred in denying the motion for continuance because there were issues of material fact to be resolved; however, they also filed a cross-motion for summary judgment. Appellants focus on the pace of the case and the fact that within sixty days the trial court determined that the case was ready for trial.
Appellants cite to First National Bank v. Newport Hospital, 281 Ark. 332, 663 S.W.2d 742 (1984), where the defendants moved for summary judgment on the basis of the pleadings, a deposition from a physician, and affidavits of physicians that they had used their best judgment and the same care and skill of other doctors in similar localities in their diagnosis and treatment. The defendants objected to the plaintiffs’ interrogatories on the grounds that they were entitled to summary judgment which would render the plaintiffs’ discovery moot. Id. The trial court found no genuine issue of material fact remained and granted summary judgment. Id. On appeal, this court held that the trial court erred in granting summary judgment before the appellant was able to complete discovery and develop, if obtainable, the necessary proof. Id.
However, in this case, there was no indication that the question before the trial court necessitated any further inquiry into the surrounding facts and circumstances. The facts are different from those of First National Bank v. Newport Hospital, supra, in that here appellants have failed to demonstrate how the additional discovery would have changed the trial court’s ruling. Therefore, the trial court did not abuse its discretion in denying appellants’ motion for continuance pursuant to Rule 56(f).
Cumulative Voting
The Wayne Bennett family argue that the Arkansas Banking Code of 1997 requires that all financial institutions be operated in accordance with the Banking Code which, under Ark. Code Ann. § 23-45-102(21), includes all bank holding companies and state banks. The trial court found in part:
Thus, LBI had previously accrued the right of non-cumulative voting under the Business Corporation Act at the time of its incorporation in 1989 and the 1997 Banking code did not repeal or remove that right. The Court believes that a [sic] institution is permitted to change its by-laws to permit cumulative voting. Here, LBI had not changed its 1989 by-laws or articles to permit cumulative voting.
The trial court also stated that it believed that, “although the Arkansas Banking Code of 1997 was an effort to ‘clean up’ banking legislation over the past fifty years or more, it was not intended to make drastic changes or amend the general rule of non-cumulative voting under the Business Corporation Act of 1987.” Appellants argue that, in interpreting the Arkansas Banking Code, the trial court violated the “most basic tenets of statutory construction” and should have considered public policy, legislative intent, and the comprehensive language of the statute. We disagree and affirm the trial court.
The Arkansas Banking Code of 1997, Ark. Code Ann. § 23-45-103(a), mandates that all financial institutions must be operated in accordance with the Banking Code. Ark. Code Ann. § 23-45-102(21) includes all bank holding companies and state banks. Appellants contend that this requires LBI and First State Bank, Lonoke, to implement and enforce cumulative voting in accordance with Ark. Code Ann. § 23-48-320(2)(A). However, LBI was organized under the Business Corporation Act of 1987, which does not require cumulative voting unless provided for in the articles of incorporation.
We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fields v. Marvell School District, 352 Ark. 483, 102 S.W.3d 502 (2003); Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Fields, supra; Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000).
The basic rule of statutory construction is to give effect to the intent of the legislature, and, when a statute is clear, it is given the plain meaning. City of Dover v. City of Russellville, 352 Ark. 299, 100 S.W.3d 689 (2003). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Arkansas Department of Human Services v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Appellants, the Wayne Bennett family, argue that mandatory cumulative voting rights of shareholders of both “banks” and “bank holding companies” were acknowledged in Ark. Code Ann. § 23-30-101 (Supp. 1987) (repealed). However, Act 89, § 3, of 1997 repealed Chapters 30-34, Title 23 of the Arkansas Code of 1987 in its entirety. Appellants further assert a mandatory statutory shareholder right to cumulative voting under Ark. Code Ann. § 23-48-320(2)(A), applicable to LBI, which would allow a shareholder to cumulate his votes for any one candidate.
The Arkansas Banking Code, Ark. Code Ann. § 23-48-320(a)(2)(A)&(B), provides:
(2)(A) Subject to the provisions of subsection (d) of this section, in electing directors at meetings of stockholders, each stockholder of a state bank shall have a right to vote the number of shares owned by him for as many persons as there are directors to be elected, or to cumulate the shares so as to give one (1) candidate as many votes as the number of directors multiplied by the number of shares of stock held by him shall equal.
(B) The stockholder may distribute his votes on the same principle among as many candidates as he shall see fit, unless it is provided otherwise in the articles of incorporation or the bylaws of the state bank.
Further, Ark. Code Ann. § 23-45-102(a)(39) defines a “state bank” as:
(A) A corporation created pursuant to either Acts 1913, No. 113, or Acts 1969, No. 179, or pursuant to any predecessor or successor act or acts of either of the foregoing, and existing and authorized under the laws of this state on May 30,1997, to engage in a general commercial banking business; and
(B) A corporation organized under the provisions of this chapter and authorized thereunder to engage in a general commercial banking business.
An Arkansas “bank holding company” is separately defined as “a bank holding company that controls one (1) or more state banks.” Ark. Code Ann. § 23-45-102(a) (3).
Because “bank holding company” was not included within Ark. Code Ann. § 23-48-320 governing cumulative voting, bank holding companies are not subject to the cumulative voting provision of that section. Had the General Assembly intended to subject bank holding companies to cumulative voting, it could have included the term “bank holding company” in § 23-48-320, or included a similar provision in the Arkansas Business Corporation Act, subchapter 4, dealing with bank holding companies.
Here, LBI was organized under the Arkansas Business Corporation Act of 1987, which does not require cumulative voting unless provided for in the company’s articles of incorporation. LBI is not a state bank because LBI was not created pursuant to either the Banking Code of 1997 or any of the listed acts in § 23-45-102(a)(39). LBI has never been authorized under Arkansas law to engage in the “general commercial banking business.” In addition, LBI’s articles of incorporation specifically state the nature of LBI is to “engage in the business of the bank holding company.”
Therefore, LBI’s voting procedure is governed by the statutory provision under which it was created, the Arkansas Business Corporation Act of 1987. The relevant provision states, “shareholders do not have a right to cumulate their votes for directors unless the Articles of Incorporation so provide.” Ark. Code Ann. § 4-27-728. Here, LBI’s Articles of Incorporation contain no such provision for cumulative voting. Appellants’ complaint for declaratory judgment was, therefore, properly dismissed.
Arkansas Constitution Article 12, § 6
The Wayne Bennett family argue that the trial court’s reading of Ark. Code Ann. § 23-48-320 unconstitutionally deprived them of a vested right to cumulative voting. Ark. Const. Article 12, § 6, provides:
Corporations may be formed under general laws, which laws may, from time to time, be altered or repealed. The General Assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this Constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens of this State, in such manner, however, that no injustice shall be done to the corporators.
In considering constitutional issues, this court is obligated to make independent examination of the entire record to assure constitutional compliance with a heightened standard. Southall v. Little Rock Newspapers, 332 Ark. 123, 964 S.W.2d 187 (1998). All doubts pertaining to a statute are resolved in favor of constitutionality. Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002); Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999). Where a constitutional construction is possible, we are compelled to uphold the validity of the statute under attack. Skelton, supra.
According to the Wayne Bennett family, Ark. Code Ann. § 23-45-103(a) requires that all “financial institutions” be operated in accordance with the 1997 Banking Code, without exception. Appellants cite to Trustees of Darmouth College v. Woodward, 17 U.S. 518 (1819), where the United States Supreme Court ruled that the charter between the state and a corporate entity represents a binding contract, whereby the state cannot amend it by subsequently changing the law unless the state reserves the right to make amendment and changes. However, most states, including Arkansas, have adopted a constitutional provision granting the state the power and authority to amend the business laws and effectively change the charters of corporations. Ark. Const. Art. 12, § 6, Ark. Code Ann. § 4-27-102. In Phillips Petroleum Co. v. Jenkins, 297 U.S. 629 (1936), the United States Supreme Court concluded that Arkansas’ Article 12, § 6, gives the General Assembly great leeway to amend corporate charters through new legislation. The United States Supreme Court stated, “[t]he reservation of power to amend is a part of the contract between the state and the corporation .’’Jenkins, 297 U.S. at 634.
In this case, eliminating a requirement for cumulative voting does not render LBI ineffectual nor does it substantially impair the object of LBI’s incorporation. The General Assembly has substantial leeway to amend charters even if the public interest is not threatened. Arkansas Stave Co. v. State, 94 Ark. 27, 125 S.W. 1001 (1910). Therefore, the reservation-of-powers clause becomes a part of every corporate charter by operation of law, and every shareholder implicitly consents to the state’s ability to amend, alter, or repeal any corporate law. Furthermore, according to . its articles of incorporation, LBI was organized under the Arkansas Business Corporation Act; therefore, repealed provisions of the Banking Code are not relevant.
Affirmed.
Thornton, J., not participating. | [
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Jim Hannah, Justice.
Appellant Clifford Allen appeals the summary judgment order entered against him in his suit against appellees Muriel Allison, Pat Merry, George Fitzsimmons, and Gray & Ritter, P.C., seeking damages for civil conspiracy, breach of fiduciary duty, outrage, fraud, and breach of warranty. In addition, Allen appeals a ruling by the trial court that the Arkansas Model Rules of Professional Conduct are inadmissible in this action. We affirm the trial court’s grant of summary judgment on all claims. We also affirm the trial court’s ruling that the rules of professional conduct are inadmissible in this case. This case involves an issue of first impression; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) (2003).
We begin by noting that the appellant failed to include the motion for summary judgment and the response to the motion for summary judgment in the addendum. The appellant’s brief shall contain an addendum which shall include “any . . . relevant pleadings, documents, or exhibits essential to an understanding of the case. . . .” Ark. Sup. Ct. R. 4-2(a)(8) (2003).
Rule 4-2(b)(3) provides, in part:
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 ... 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. . . .
Ark. Sup. Ct. R. 4-2(b)(3) (2003).
In the present case, the appellant’s addendum is deficient as it does not include the summary judgment motion and the response to the summary judgment motion. In order to decide if the trial court properly granted summary judgment, we must be able to determine the specific claims and issues that were presented and resolved by the motions. Although the appellant’s addendum is deficient, since we affirm the trial court’s grant of summary judgment on all claims and affirm the trial court’s ruling concerning the admissibility of the Rules of Professional Conduct, we find it unnecessary to afford the appellant the opportunity to cure the deficiencies in his addendum. We have stated that we may go to the record to affirm. Mobley Law Firm, P.A. v. Lisle Law Firm, P.A., 353 Ark. 828, 120 S.W.3d 537 (2003); Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).
Facts
On November 6, 1998, Angela Allen and her sister were killed when the car Mrs. Allen was driving was struck by a train owned by Burlington Northern Railroad. Mrs. Allen was the wife of the appellant. Information provided by eyewitnesses indicated that Mrs. Allen failed to stop at a stop sign and proceeded across the track, even though the train was apparently blowing its whistle and had its lights on.
Approximately two weeks after the accident, Muriel Allison knocked on Mr. Allen’s door and was invited in by Mr. Allen and his son. Mr. Allen stated that Allison identified himself as an investigator for Gray & Ritter, a law firm that specializes in railroad cases. In addition, Mr. Allen stated that Allison produced a business card which identified Allison as investigator for Gray & Ritter. While at Mr. Allen’s home, Allison showed Mr. Allen pictures of the accident scene, copies of the accident report, and photographs of Mrs. Allen’s vehicle. Mr. Allen stated that Allison encouraged him to hire Gray & Ritter to represent him in a suit against Burlington Northern, informing him that he had a “good case” against the railroad company.
Allison told Mr. Allen that if he wanted Gray & Ritter to represent him in a suit against the railroad company, he should contact Pat Merry, an employee of Gray & Ritter’s North Little Rock office. Mr. Allen thanked Allison and told him that he was still in too much of a state of shock to consider filing suit. Allison left one of Merry’s business cards that identified Merry as “Legal Administrator” for Gray & Ritter. Later that day, Allison telephoned Mr. Allen and encouraged him to hire Gray & Ritter to represent him in a suit against the railroad company. Again, Mr. Allen informed Allison that he was still in too much of a state of shock to consider filing suit.
Sometime in December 1998, Mr. Allen visited his niece — the daughter of his wife’s sister who was killed in the accident with his wife. Mr. Allen’s niece told him that she intended to sue the railroad company, and she encouraged Mr. Allen to do the same. Mr. Allen contacted a couple of law firms. One of the law firms declined to represent Mr. Allen because the firm was representing the family of his wife’s sister in their action against Mrs. Allen’s estate.
In January 1999, Mr. Allen called Merry to discuss possible representation by Gray & Ritter. On January 12, 1999, Merry and Allison visited Mr. Allen at his home. Allen stated that Merry told him that he thought Mr. Allen had a good case against the railroad company. Allen also stated that Merry told him that he thought the case against the railroad company was worth “big bucks.” After agreeing to allow Gray & Ritter to represent him, Mr. Allen signed an employment contract Merry carried in with him in a briefcase. Mr. Allen stated that he thought Merry would sign the contract later.
Mr. Allen testified that he thought Merry was a lawyer since his title was “Legal Administrator,” so he was surprised when he received a copy of the contract, and it had been signed by attorney George Fitzsimmons rather than Merry. Fitzsimmons is an attorney with Gray & Ritter’s St. Louis, Missouri, office.
Pat Hagerty, an attorney with Gray & Ritter, testified that after he received the file on the Allen case, he obtained police reports and photographs from the accident scene. He also stated that he reviewed Arkansas law regarding private crossings, as well as Arkansas law regarding comparative fault. He stated that he obtained general information about Mrs. Allen and notified the railroad company of the firm’s intent to represent Mr. Allen. Hagerty also stated that he communicated with Mrs. Allen’s niece’s attorney. Hagerty testified that he did not hire an investigator to investigate the accident.
In July 1999, Hagerty met with Troy Traylor, an adjuster with Burlington Northern. Though the meeting was set up to discuss a case other than Mr. Allen’s, Traylor asked Hagerty if they could discuss the Allen case at the meeting. During the meeting, Traylor told Hagerty that the railroad’s investigation revealed that the train’s speed was within the legal limits and that the train’s lights were on and functioning at the time of the accident. In addition, Traylor told Hagerty that the train was blowing its whistle prior to the accident, though the accident occurred at a private crossing where the railroad was not obligated to blow its whistle. Traylor told Hagerty that the railroad company was not at fault; however, Traylor stated that since the accident involved a death, the railroad company was prepared to offer a $10,000 settlement without admitting liability.
On July 27, 1999, Hagerty wrote a letter to Mr. Alen informing him of the $10,000 settlement offer. Mr. Alen rejected the offer because he thought it was insulting. Mr. Alen telephoned Hagerty, and Hagerty told Mr. Alen that he might be able to get a little bit more money from the railroad company; however, Hagerty told Mr. Alen that he would likely be unable to get much more because it appeared that the railroad was not at fault.
On November 2, 1999, Hagerty again wrote a letter to Mr. Alen and informed him that if he was unwilling to accept the railroad company’s offer, then Gray & Ritter would send Mr. Alen’s file back to him and he could find another attorney if he decided to proceed with the lawsuit. Mr. Alen called Hagerty and told him to send the file.
Mr. Allen filed suit against the defendants, now appellees, asserting claims for breach of fiduciary duty, outrage, intentional infliction of emotional distress, fraud, and breach of warranty. Mr. Alen alleged that agents of Gray & Ritter contacted him and represented that they had conducted an investigation of the accident and believed Mr. Allen could recover damages from the railroad for the death of his wife. In addition, Mr. Alen alleged that this contact had taken place within two weeks of his wife’s death. Mr. Alen contended that the defendants knew at the time they approached him about filing suit that there was little chance of success in the case, and that the defendants had no intention of pursuing the case vigorously, filing suit, or conducting any further investigation. He alleged that he was insulted and extremely upset by the offer of $10,000, but was further distressed and upset by the defendants’ demand that he either accept the offer or they would withdraw from representing him on the case they encouraged him to take.
In pleadings and depositions, Gray & Ritter stated that Alison was not an employee of the firm, and that they did not know how Alison obtained business cards identical to those used by their firm. Allison also stated that he did not know where the cards came from, and that he never identified himself as an investigator for Gray & Ritter. In response to Gray & Ritter’s claim that Allison was not an employee or agent of Gray & Ritter, Mr. Allen amended his complaint to include a claim for civil conspiracy.
The defendants filed a motion for summary judgment on all claims and contended that even if their actions violated the professional rules, they did not give rise to civil liability. On March 1, 2002, the trial court entered an order granting partial summary judgment in favor of the defendants on the claims of outrage, intentional infliction of emotional distress, fraud, and breach of warranty. After further discovery and a renewed motion for summary judgment, the trial court granted summary judgment on the claims of civil conspiracy and breach of fiduciary duty.
On appeal, Mr. Allen argues that the trial court erred in granting summary judgment on his claims of civil conspiracy, breach of fiduciary duty, outrage, fraud, and breach of warranty. He further argues that the trial court erred in ruling inadmissible the Model Rules of Professional Conduct, which Mr. Allen attempted to introduce as proof of civil conspiracy.
Summary Judgment
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Jackson v. City of Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts. George, supra.
Civil Conspiracy and Admissibility of Model Rules of Professional Conduct
To prove a civil conspiracy, a plaintiff must show that two or more persons have combined to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive or immoral, but by unlawful, oppressive, or immoral means, to the injury of another. Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). A civil conspiracy is not actionable in and of itself, but a recovery may be had for damages caused by acts committed pursuant to the conspiracy. Id. A civil conspiracy is an intentional tort which requires specific intent to accomplish the contemplated wrong. Id.
To support his claim of civil conspiracy, Mr. Allen contended that the appellees’ direct, in-person solicitation of him within thirty days of his wife’s death was a violation of Rule 7.3 of the Arkansas Model Rules of Professional Conduct. Mr. Allen also contended that Rule 7.1 was violated by the allegedly false statements made to solicit him as a client. The appellees filed a motion in limine to exclude any reference to the Rules, and the trial court granted their motion.
The trial court makes the determination as to the admissibility of testimony. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 883 S.W.2d 366 (1992). The trial court must determine the relevancy, competency, and probative value of the testimony. Id. The admissibility of testimony is within the trial court’s discretion, and the trial court will not be reversed absent an abuse of that discretion. See id. In Orsini, a trucking company brought a legal malpractice action against its attorney and attempted to introduce the Model Rules of Professional Conduct as evidence. The trial court refused the introduction of the Rules, and we found no error, stating:
The Rules are not designed for a basis of civil liability, but are to provide guidance to lawyers and to provide a structure for regula tory conduct through disciplinary agencies. No cause of action should arise from a violation, nor should it create any presumption that a legal duty has been breached.
Orsini, 310 Ark. at 184-184A (citing “Scope,” Model Rules of Professional Conduct, by per curiam order of Supreme Court of December 16, 1985).
Mr. Allen contends that his case is distinguishable from Orsini, in that Orsini was a legal malpractice case in which the Rules were being offered to prove standard of care. Mr. Allen states that he is attempting to use the Rules to prove an element of the civil conspiracy, but he claims that the violation of the Rules, in and of itself, is not being used to establish civil liability. However, Mr. Allen concedes that without the violation of the Rules, he cannot show that the purpose of the appellees was unlawful. Therefore, Mr. Allen is attempting to use the violation of the Rules as a basis for civil liability. As previously stated, the Rules are not designed for a basis of civil liability. Orsini, supra. The trial court did not abuse its discretion in refusing the admission of testimony concerning the Model Rules of Professional Conduct.
Additionally, Mr. Allen argues that “prohibiting introduction of the rules violates equal protection,” in that the exclusion of the Rules exempts attorneys from civil conspiracy cases. Mr. Allen offers no support for this proposition. Where no citation to authority or convincing argument is offered, we decline to address the issue on appeal. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002).
Finally, Mr. Allen argues that even without evidence of a violation of the Rules, there is a jury question concerning whether the appellees’ actions constituted oppressive conduct. However, Mr. Allen failed to raise this issue below. An appellant may not change the basis for his or her arguments or raise issues for the first time on appeal. T & T Chem., Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003). Because Mr. Allen failed to properly preserve his “jury question” argument, we do not consider it on appeal. We affirm the trial court’s grant of summary judgment on the claim of civil conspiracy.
Breach of Fiduciary Duty
Mr. Allen contends that the appellees breached their fiduciary duty when they approached him and told him that they had already investigated the case, that they had already determined that the case was a good case of liability, and that the case was worth “big bucks.” Mr. Allen contends that the purpose of the appellees’ statements was to induce him to sign an employment contract, and that the appellees’ statements were not made in good faith. He further contends that although it was the appellees’ duty to pursue the case with the “utmost care and investigation,” after the appellees “enticed” him to sign the employment contract, they conducted no further investigation of his case and failed to interview an eyewitness to the accident. According to Mr. Allen, the appellees induced him to sign an employment contract for the “sole purpose of settling for a nuisance value or whatever the railroad would offer and to collect an attorney fee.”
The question as to what duty is owed is always a question of law. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). See also Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997). A person standing in a fiduciary relationship may be held liable for any conduct that breaches a duty imposed by the fiduciary relationship. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); Milligan, supra. It follows that regardless of the express terms of an agreement, a fiduciary may be held liable for conduct that does not meet the requisite standards of fair dealing, good faith, honesty, and loyalty. Cole, supra; Milligan, supra. A fiduciary relationship exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in utmost good faith. American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, Inc., 237 Ark. 407, 373 S.W.2d 148 (1963) (citing Norfleet v. Stewart, 180 Ark. 161, 20 S.W.2d 868 (1929)).
Mr. Allen concedes that his case is different from other cases involving an attorney’s breach of fiduciary duty to a client, in that, in his case, the alleged breach of fiduciary duty occurred before he entered into an attorney-client relationship with the appellees. However, Mr. Allen contends that “[b]ecause the relationship was procured by Gray & Ritter through misrepresentations by Allison . . . the fiduciary duty should be ruled by this Court to have merged with the signing of the contract so that the fiduciary duty began with the solicitation and misrepresentations.” We first note that Mr. Allen offers no citation to authority for the proposition that an attorney owes a fiduciary duty to a client prior to the existence of an attorney-client relationship. Assignments of error which are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002).
Moreover, in Mr. Allen’s response to the appellees’ motion for summary judgment, he did not argue that the fiduciary duty “merged” with the signing of the contract so that the duty began when the appellees first contacted him. Rather, he argued that “at the very least, there is a factual question as to whether a fiduciary duty existed, when it arose, and whether it was breached by the defendant.” An appellant may not change the basis for his or her arguments or raise issues for the first time on appeal. T & T Chem., supra.
Alternatively, Mr. Allen argues that the appellees breached their fiduciary duty when they did not, upon signing the-contract, reveal to him that they had made misrepresentations concerning his case. Mr. Allen did not raise this argument below; therefore, we will not address it for the first time on appeal. T & T Chem., supra. We affirm the trial court’s grant of summary judgment on the claim of breach of fiduciary duty.
Outrage
To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his or her conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Angle, supra.
In Crockett, we further stated:
The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).
Crockett, 341 Ark. at 564 (citing McQuay v. Guntharp, 331 Ark. 466, 470-71, 963 S.W.2d 583, 585 (1998)).
In addition, this court has recognized that in some cases the existence of a special relationship between the parties can justify a finding of outrage where “the gist of the claim arose out of the violation of that relationship. ...” McQuay v. Guntharp, 331 Ark. at 474. Mr. Allen contends that the attorney-client relationship is a “special relationship,” and that the appellees “violated the attorney-client relationship in such a way that the tort of outrage should be allowed to be tried.”
In McQuay, female patients alleged that a physician improperly touched, examined, and fondled their breasts during physical examinations, and that as a result of the trauma, they have suffered and continue to suffer from extreme mental anguish. We agreed with the female patients’ contention that it was not the fondling itself that gave rise to a claim of outrage, but in the physician’s violation of the trust the women had placed in him.
In Crockett, supra, the family of a decedent brought suit against a funeral home and funeral director, alleging, inter alia, a claim of outrage. In that case, the family alleged that the burial service and burial orchestrated by the funeral home was conducted in a harried manner, that the hearse was driven too fast to the grave, that a disabled family member was taken by car over the graves of unknown persons, and that the funeral director talked on his cellular phone for an extended period of time during the funeral. We stated that while the conduct “may have been rude and illustrative of a lack of professionalism, we cannot say that the conduct was so extreme and outrageous as to be beyond all possible bounds of decency, and to be utterly intolerable in a civilized society.” Crockett, 341 Ark. at 566.
Mr. Allen argues that he presented evidence that:
Allison, at the behest and request of Pat Merry and Gray & Ritter, P.C. hunted down Mr. Allen and encouraged him to undertake a lawsuit, which he would not ordinarily have done, pumping him by stating that it was a good suit and would make him big bucks. But they did this while either having no knowledge as to whether it was a good suit worth money, or knowing in fact that it was not a good suit. He placed his trust in the law firm, and their response was to field one offer, and then send his file back when he refused to settle the case they had solicited and encouraged him to undertake. This is a breach of the relationship under McQuay, and established a cause of action for the tort of outrage.....
We disagree. While the conduct of the appellees may have been unprofessional and insensitive, we cannot say that the conduct was so extreme and outrageous as to be beyond all possible bounds of decency, and to be utterly intolerable in a civilized society. We believe that the alleged conduct in this case comes closer to the actions in Crockett, supra, than those in McQuay, supra. As we stated in Crockett:
We do acknowledge that family members of a deceased person are understandably more sensitive and vulnerable following the death of a close relative, rendering them more susceptible to outrageous conduct. But the facts asserted in this case simply cannot support an action for outrage.
Crockett, 341 Ark. at 566. We affirm the trial court’s grant of summary judgment on the claim of outrage.
Fraud
To establish a claim of fraud, a plaintiff must prove the existence of the following five elements: (1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that the representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable reliance by the plaintiff; and (5) resulting damage to the plaintiff. Wiseman v. Batchelor, 315 Ark. 85, 88-89, 864 S.W.2d 248, 250 (1993).
In his brief, Allen states that “[t]he material fact which was falsely represented occurred with Gray & Ritter’s first contact with Allen through Muriel Allison.” He states that Allen’s false representations are: (1) that Gray & Ritter had already completed a proper investigation; (2) Gray & Ritter had already determined from that investigation that this was a good case ofliability; (3) that Gray & Ritter had already determined that the case was worth “big bucks” if Allen hired Gray & Ritter; and (4) that Allison was an “investigator” for a law firm which could make such a determination.
Allen contends that the appellees knew that the case had not been investigated. He also contends that he was approached by Allison, “who had a business card and held himself out to be an expert in railroad accident investigation working for a law firm that was an expert in railroad litigation, and was told he had a good case.” Allen argues that he “had every reason to rely on their opinion,” and that he would never have filed suit if it had not been for the assurance of Allison and Merry that he had a case. Finally, Allen states: “The damages to Allen are the increase in his mental suffering and depression caused by this entire incident.”
Damages for mental anguish due to fraud are not cognizable in Arkansas. See Higginbottom v. Waugh, 313 Ark. 558, 560-61, 856 S.W.2d 7, 9 (1993). See also Gilmer v. Walt Disney Co., 915 F. Supp. 1001, 1011 (W.D. Ark. 1996); Howard Brill, Arkansas Law of Damages § 4-7 (4th ed. 2002). There is no legal basis for the damages Mr. Allen claims to have suffered; thus, Mr. Allen has failed to prove the existence of an essential element of fraud: damages suffered as a result of the reliance. If a respondent to a motion for summary judgment cannot present proof of an essential element of the claim, the movant is entitled to summary judgment as a matter of law. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). We affirm the trial court’s grant of summary judgment on the claim of fraud.
Breach of Warranty
Mr. Allen contends that the trial court erred in granting summary judgment on his claim for breach of warranty. To support his claim of breach of warranty, Mr. Allen cites Schmidt v. Pearson, Evans, and Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996), where this court held that an attorney is not a guarantor that his or her judgment is infallible and is not liable for an error made in good faith. Mr. Allen claims that the appellees’ errors were not made in good faith. He claims that when Gray & Ritter presented its request to be hired, through Allison, the firm repre sented to Mr. Allen that Mr. Allison had conducted an investigation and that he had a “good case” worth “big bucks.” Mr. Allen states that “[w]hen an employment contract is entered upon this basis, a lawyer is warranting a result.”
The Schmidt case was a legal malpractice case, not a breach of warranty case. The appellees contend that there is no case that supports a cause of action for a cause of action for attorney-client breach of warranty. It appears that the appellees are correct; therefore, the issue of whether Arkansas recognizes a cause of action for attorney-client breach of warranty is an issue of first impression.
The appellees cite to a South Carolina case, Holy Loch Distributors v. Hitchcock, 340 S.C. 20, 531 S.E.2d 282 (2000), in which the South Carolina Supreme Court, declining to adopt a breach of express warranty claim, stated:
[T]he breach of express warranty theory would change the current standard of care for attorneys. Attorneys would be held strictly hable for failing to satisfy the alleged warranty, no matter how much care, skill, knowledge, and diligence was exercised in attempt to achieve the result. An express warranty cause of action would also adversely affect the attorney-client relationship by inhibiting the frank discussion between attorney and client concerning the merits of the case. The fear of an express warranty claim would discourage attorneys from advising clients of the potential for victory in their case because this advice might be construed as a guarantee or a warranty.
Holy Loch, 340 S.C. at 27; 531 S.E.2d at 287. Further, the Holy Loch court noted that Louisiana is the only state which recognizes a breach of express warranty to obtain a specific result against an attorney. Id.
We conclude that the reasoning of the Holy Loch court is sound. Accordingly, we hold that there is no cause of action in Arkansas for breach of warranty to obtain a specific result when an attorney advises his or her client regarding the outcome of a case. The trial court’s grant of summary judgment on the claim of breach of warranty is affirmed.
In sum, we affirm the trial court’s grant of summary judgment for the appellees on the claims of civil conspiracy, breach of fiduciary duty, outrage, fraud, and breach of warranty. We also affirm the trial court’s ruling that the Arkansas Model Rules of Professional Conduct are inadmissible in this case. Finally, given that the circumstances of this case involve allegations of violations of professional rules concerning direct, in-person solicitation of clients, a copy of this opinion will be forwarded to the Committee on Professional Conduct.
Affirmed.
Glaze, J., concurs.
Mr. Allen does not appeal the trial court’s grant of summary judgment on the claim of intentional infliction of emotional distress.
We note that in Higginbottom, we stated: “We recognize no legal basis for the damages claimed for mental anguish in connection with deceit.” 313 Ark. at 560 (emphasis added). We have not expressly stated that damages for mental anguish due to fraud are not cognizable in Arkansas. However, research of our case law shows that we have stated that the tort of deceit is also known as the tort offraud. See Calandro v. Parkerson, 327 Ark. 131, 137, 936 S.W.2d 755, 759 (1997). In addition, we have made no distinction between the claim offraud and the claim of deceit, in that the elements for proving either fraud or deceit are the same. See, e.g., Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999); Butler v. Comic, 323 Ark. 725, 918 S.W.2d 697 (1996). | [
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Jim Hannah, Justice.
Wal-Mart Stores, Inc., appeals the order of the Garland County Circuit Court reinstating the jury verdict and judgment in favor of Regions Bank Trust Department, guardian of the estate of Michael Burkeen, and Linda Burkeen, individually, and as guardian of the person of Michael Burkeen. This case was previously before this court. See Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, et al., 347 Ark. 826, 69 S.W.3d 20 (2002) (Wal-Mart I). Since this case is a subsequent appeal following an appeal which has been decided in this court, we have jurisdiction of the case pursuant to Ark. Sup. Ct. R. 1-2(a)(7) (2003).
Facts
In Wal-Mart I, Wal-Mart appealed a jury verdict in favor of Michael and Linda Burkeen in their negligence action against Wal-Mart. In that case, Wal-Mart raised three issues on appeal. First, Wal-Mart argued that the trial court erred in denying Wal-Mart’s motion for directed verdict; this court affirmed on that issue. Second, Wal-Mart argued that the trial court erred in excluding evidence of Linda’s felony theft conviction, which had been expunged on June 30, 2000. We reversed and remanded on that issue, holding that the trial court erred in ruling that the felony conviction was inadmissible because there was no finding that Linda had been rehabilitated as required by Ark. R. Evid. 609(c). Wal-Mart’s third point on appeal was that the trial court erred in excluding an audiotape and transcript of a 1993 interview that Michael gave to a police officer regarding the investigation of Linda. This court held that since Linda’s felony conviction should have been admitted, then the audiotape and transcript of Michael’s interview concerning the investigation of Linda should have also been admitted.
This court’s mandate was issued on March 27, 2002. On April 15, 2002, Linda obtained an “Amended Order to Expunge and Seal with Express Finding of Rehabilitation.” The order provided that Linda “has satisfactorily complied with the orders of this Court, and that this Court make an express finding of Petitioner’s rehabilitation and that an Amended Order to Expunge and Seal with Express Finding of Rehabilitation should be granted.” In addition, the order stated that the original order to expunge and seal was “reaffirmed to the extent consistent herewith and modified to the extent inconsistent herewith.”
After obtaining the amended order, Linda filed a “Motion to Reinstate the Jury Verdict and Judgment for Plaintiff.” Over Wal-Mart’s objection, the trial court granted the motion and reinstated the jury verdict and judgment.
On appeal, Wal-Mart argues that after this court reverses and remands a case to the trial court due to the trial court’s abuse of discretion in an evidentiary ruling, a party cannot “cure” the abuse of discretion and avoid a new trial, thereby circumventing this court’s mandate. Wal-Mart also argues that the Yell County Circuit Court had no jurisdiction to enter an amended order of expungement; thus, the amended order was void.
Motion Reinstating the Jury Verdict and Judgment
In its order reinstating the jury verdict and judgment in favor of the Burkeens, the trial court stated, in part:
... the Court finds that the Plaintiffs Motion to Reinstate the Jury Verdict and Judgment is granted, the Court finding that if the instant case was re-tried, the Court would make the same exclusionary rulings made at the original trial which resulted in the verdict and judgment of February 2, 2001; said exclusionary rulings barred the use by Defendant of an expunged conviction of Linda Burkeen and an audiotape of Michael Burkeen; the Court finds that the Amended Order to Expunge and Seal with Express Finding of Rehabilitation compels this result; in sum, re-trial in this case is unnecessary as the issues are identical; the Court finds nothing in the mandate or appellate opinion which requires a second trial under these circumstances.
* * *
Wal-Mart contends that the trial court’s actions were in direct conflict with the opinion and mandate of this court in Wal-Mart I. We have long held that the trial court, upon remand, must execute the mandate. In Fortenberry v. Frazier, 5 Ark. 200 (1843), this court held:
The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated, by the Supreme Court.
Fortenberry, 5 Ark. at 202. In Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998), we adopted the Third Circuit Court of Appeals’ rules regarding a trial court’s treatment of a case on remand. We stated:
The history of the mandate mle was reviewed recently by the Third Circuit Court of Appeals. See Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994). In Casey, the Third Circuit observed:
Of these rules, the most compelling is the mandate rule. This fundamental rule binds every court to honor rulings in the case by superior courts. As the Supreme Court has stated, “In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948).
Casey, 14 F.3d at 856. Quoting from Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985), the Third Circuit went on to underscore the deference a trial court must give to the mandate:
A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.
Casey, 14 F.3d at 857.
In Dolphin, supra, we also cited with approval a few of the major precepts regarding mandates, stating:
A “mandate” is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed.
5 Am.Jur. 2d, §776.
However, the lower court is vested with jurisdiction only to the extent conferred by the appellate court’s opinion and mandate. Therefore, the question of whether the lower court followed the mandate is not simply one of whether the lower court was correct in its construction of the case, but also involves a question of the lower court’s jurisdiction.
5 Am.Jur. 2d, § 784. . . .
Any proceedings on remand which are contrary to the directions contained in the mandate from the appellate court may be considered null and void.
5 Am.Jur. 2d, § 791.
Dolphin, supra.
Regions contends that a new trial is unnecessary because Linda has “cured” the deficiency in her expungement order. Regions argues that there are no issues remaining between the parties because Linda “literally complied with the mandate” and “presented proof of her rehabilitation.”
Regions’s argument is without merit. It is clear that Regions ignores the fact that the mandate is not directed to Linda. Rather, the mandate is directed to the trial court, and it instructs that court to recognize, obey, and execute the appellate court’s decision. Barclay v. Farm Credit Servs., 340 Ark. 65, 68, 8 S.W.3d 517, 579 (2000) (citing 5 Am. Jur. 2d, § 111 (1995) (emphasis added)).
In Wal-Mart I, we reversed and remanded the jury verdict and judgment of the trial court. In reinstating the jury verdict and judgment, the trial court failed to recognize, obey, and execute our decision. In its order reinstating the jury verdict and judgment, the trial court stated that it was unnecessary to try the case for a second time because the trial court would make the same evidentiary rulings as it had in the first trial, i.e., the trial court would exclude evidence of Linda’s felony conviction and Michael’s interview. Despite our mandate directing the trial court to execute our order of a new trial, the trial court instead reinstated the same judgment we had just reversed.
Directions by an appellate court to the trial court as expressed by the opinion and the mandate must be followed exactly and placed into execution. Dolphin, supra. The trial court’s authority was circumscribed in this case, and the trial court was empowered only to hold a new trial. The trial court’s reinstatement of the jury verdict and judgment unquestionably exceeded those bounds. The trial court erred in reinstating the jury verdict and judgment. Accordingly, we reverse and remand for á new .trial. Having decided that the trial court failed to follow our mandate, it is not necessary for us to address the issue of whether the Yell County Circuit Court lacked jurisdiction to amend Linda’s order of expungement.
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Per Curiam.
Today, April 2, 2004, the Masters filed their report in this matter with the Supreme Court Clerk as directed by our per curiam order of February 3, 2004. See Lake View Sch. Dist. No. 25 v. Huckabee, 356 Ark. 1, 144 S.W.3d 741 (2004) (per curiam). Pursuant to Ark. R. Civ. P. 53(e)(2) (2003), within twenty days after being served with notice of the filing of the report, any party may serve written objections to the report upon the other parties. The rule further provides that application to the court for action upon the report and objections shall be by motion and upon notice as prescribed in Ark. R. Civ. P. 6(c). Accordingly, should the parties wish to do so, they may file written objections in accordance with our Rules of Civil Procedure within the twenty-day time frame. This court will then take the matter under advisement, either on motion by the parties or on our own motion.
Imber, J., not participating.
Special Justice Carol Dalby joins. | [
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Annabblle Clinton Imber, Justice.
This case arises out of a lawsuit that includes both wrongful death and survival claims. The appellants, co-administrators of the estate of Amanda Lynn Durham, sued appellees Harold D. Marberry and Advantage Mobile Homes, Inc., for damages incurred when a mobile home transport vehicle collided with the vehicle driven by Miss Durham. It is undisputed that Miss Durham was killed instantly in the accident. The trial court granted partial summary judgment to the appellees with regard to claimed “loss of life” damages, finding that at least some period of life between injury and death is a condition for recovery of loss-of-life damages by a decedent’s estate. Pursuant to Arkansas Rule of Civil Procedure 54(b), the trial court then certified its order regarding the loss-of-life damages claim as final for purposes of appeal. The appellants contend on appeal that no period of life between injury and death is required to recover loss-of-life damages. We agree with the appellants and reverse.
As a point of order, we note that both the appellants and the appellees have provided notice to this court that they have arrived at a contingent high-low settlement agreement. The settlement amount is contingent upon our decision in this appeal; therefore, we agree with both parties that the contingent agreement does not moot this appeal. Because this appeal involves the construction of a statute and is an issue of first impression before this court, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (6).
Constitutionality Issue
In the hearing below, the appellees contended that the appellants’ interpretation of § 16-62-101(b), if held to be the correct interpretation, would result in an unconstitutional provision for a punitive penalty without due process and would render the statute unconstitutionally vague. On appeal, the appellees limit their constitutional argument to one sentence: “The Circuit Court did not hold the statute unconstitutional, and [the appellees] make no argument that the statute is unconstitutional, if read correctly.” The appellees have abandoned their constitutional argument on appeal; therefore, we do not address it.
Interpretation of Ark. Code Ann. § 16-62-101(b)
The Arkansas survival statute provides for the recovery of loss-of-life damages and reads as follows:
16-62-101 Survival of actions — Wrongs to person or property.
(a) (1) For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts.
(2) Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions of slander or libel.
(b) In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damages.
Ark. Code Ann. § 16-62-101 (Supp. 2003) (emphasis added). The issue in this appeal is the interpretation of subsection (b), which was added by the Arkansas General Assembly in Act 1516 of 2001. As we stated in City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003):
We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002). The purpose of statutory construction is to give effect to the intent of the General Assembly. Williams v. Little Rock School District, 347 Ark. 637, 66 S.W.3d 590 (2002). In doing so, we give the words of the statute their ordinary and usually accepted meaning in common language. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Id.
City of Maumelle v. Jeffrey Sand Co., 353 Ark. at 691, 120 S.W.3d at 57.
Prior to the passage of Act 1516' of 2001, Arkansas had no statutory provision for loss-of-life damages, nor was there any such provision in our case law. Historically, damages recovered by a decedent’s estate under the survival statute, with the exception of funeral expenses, compensated the decedent and were incurred pre-death. These include damages for medical expenses due to the injury, lost wages between injury and death, pain and suffering, etc. See, e.g., Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); New Prospect Drilling Co. v. First Commercial Trust, N.A., 332 Ark. 466, 966 S.W.2d 233 (1998). The appellees argued below that the General Assembly’s amendment, did not add a new element of damages, and that loss-of-life damages are merely a type of pain and suffering. However, subsection (b) states that loss-of-life damages are “in addition to all other elements of damages provided by law.” Therefore, logically, they must be new, because the phrase “all other elements of damages provided by law” would encompass every element of damages — including pain and suffering — that was already recoverable under both statutory and case law. Indeed, the Arkansas Model Jury Instructions — Civil were re-written to include loss of life as a separate element of damages recoverable by an estate in a wrongful death action. See AMI Civ. 4th 2216 (2004).
On appeal, the appellees concede that loss-of-life damages are a new element of damages, but they now argue that damages for loss of life are the equivalent of, and synonymous with, damages for the loss of enjoyment of life, and these types of damages are incurred pre-death and require a period of conscious life between injury and death.
There is some confusion amongst both case law and legal scholarship as to the definition of “loss of enjoyment of life” damages. Some cases and scholars have used the term “loss of enjoyment of life” to describe damages that compensate a predeath loss of the ability to enjoy life’s activities while still living. Still others have used this term to mean the loss of the enjoyment of being alive that is incurred at the point of death forward. So the term “loss of enjoyment oflife” is confusing and, at times, has been used in a way that is equivalent to “loss oflife.”
In support of their contention that “loss of life” damages are equivalent to “loss of enjoyment of life” damages, the appellees cite to several cases. Among them are Sterner v. Wesley College, Inc., 747 F. Supp. 263 (D. Del. 1990) and Willinger v. Mercy Catholic Medical Center, 393 A.2d 1188 (1978). However, these cases do not support the appellees and, in fact, Sterner and Willinger both indicate the difference between damages for loss of enjoyment of life and damages for loss of life itself as follows:
. Even where the victim survives a compensable injury, this Court has never held that loss of life’s pleasures could be compensated other than as a component of pain and suffering. Indeed, the two types of loss are interrelated.... Thus, to a large extent it has been the plaintiffs consciousness of his or her inability to enjoy life that we have compensated under the rubric of “loss of life’s pleasures.” Unlike one who is permanently injured, one who dies as a result of his injuries is not condemned to watch life’s amenities pass by. Unless we are to equate loss of life’s pleasures with loss of life itself we must view it as something that is compensable only for a living plaintiff who has suffered from that loss. It follows that... damages for the pain and suffering that may flow from the loss of life’s pleasures should only be recovered for the period of time between the accident and the decedent’s death.
Sterner v. Wesley College, Inc., 747 F. Supp at 272 (citing Willinger v. Mercy Catholic Medical Center, 393 A.2d at 1191) (emphasis added).
After examining this citation from Willinger, the Sterner court concluded “plaintiffs in the present action may not recover for the hedonic value of the decedent’s lost life as a distinct basis for recovery under the Delaware survival action statute.” Id. at 273. The federal district court based this holding on Delaware’s survival statute and the fact that the case before it was a diversity action. However, the Sterner court recognized that, in a federal § 1983 action, the value of a decedent’s lost life is recoverable even if state law does not allow for it. At the time Sterner was written, federal courts had begun to allow for loss-of-life damages in cases where police officers had shot and killed suspects in violation of their constitutional rights. The Sterner court cited to a decision by the Seventh Circuit Court of Appeals in'a § 1983 action:
Where the constitutional deprivation sought to be remedied has caused death, state law that precludes recovery on behalf of the victim’s estate for the loss of life is inconsistent with the deterrent policy of section. 1983 .... Such restrictive state laws must give way to federal common law rules that permit recovery. In sum, in a section 1983 action, the estate may recover damages for loss of life, conscious pain and suffering experienced by the decedent prior to death, and punitive damages.
Sterner v. Wesley College, Inc., 747 F. Supp. at 273-74 (citing Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985)) (emphasis added).
Clearly, then, loss-of-life damages and damages for loss of enjoyment of life are not the same, though some courts and scholars have used the term “loss of enjoyment of life” to mean both. It is also apparent from the Seventh Circuit’s decision in Bass by Lewis v. Wallenstein, supra, that federal common law allows for the recovery of loss-of-life damages and that restrictive state survival statutes that do not allow for these damages will be overruled in cases that implicate federal constitutional violations.
It is not just the federal courts that have allowed for loss-of-life damages. Several states also allow recovery of these damages. In Montalvo v. Lapez, 77 Haw. 282, 884 P.2d 345 (1994), the Hawaii Supreme Court noted, “Hedonic damages are damages ‘for the loss of enjoyment of life or for the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had.’ ” Id. at 284, 884 P.2d at 347, n. 2 (citing Black’s Law Dictionary 391 (6th ed. 1990)). Though Montalvo was a personal injury case, the Hawaii Supreme Court used this reasoning to allow loss-of-life damages in Ozaki v. Association of Apartment Owners of Discovery Bay, 87 Haw. 273, 954 P.2d 652 (1998).
New Mexico’s statutes allow for “fair and just” damages in wrongful death cases brought by a decedent’s estate:
Every such action as mentioned in [the New Mexico Wrongful Death Statute] shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they deem fair and just....
N.M. Stat. Ann. § 41-2-3 (Michie 1978) (emphasis added). In interpreting this statute, the New Mexico Supreme Court held that “the value of life itself is compensable under the Act.” Romero v. Byers, 872 P.2d 840, 847 (N.M. 1994).
Likewise, Connecticut has recognized damages for the loss of the value of a decedent’s life in Katsetos v. Nolan, 368 A.2d 172 (Conn. 1976):
In actions for injuries resulting in death, a plaintiff is entitled to “just damages together with the cost of reasonably necessary, medical, hospital and nursing services, and including funeral expenses.” “Just damages” include (1) the value of the decedent’s lost earning capacity less deductions for her necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of her capacity to carry on and enjoy life’s activities in a way she would have done had she lived, and (3) compensation for conscious pain and suffering.
Id. at 183 (emphasis added). The defendants in Katsetos had appealed as excessive the amount of damages awarded for the wrongful death of a mother during childbirth. In upholding the jury award to the estate for the decedent’s damages, the Connecticut Supreme Court stated:
There was evidence from which the jury could have found that the decedent was 41 years of age at the time of her death and had a life expectancy of about 32 years. She was happily married and had four children including the child born on the day of her death. She was a very happy person and in good health before the delivery of her last child. She was a dedicated mother and homemaker and active in many outside activities. She was a state-licensed hairdresser and also had experience in office work. In 1962, she and her husband established a pizza business where she worked until she temporarily discontinued work because of her pregnancy.... The defendants argue that the verdict constitutes an award of an annuity of at least $20,000 a year and that it is excessive when one considers that the best indication of a possible salary for the plaintiff s decedent, if she ever returned to hairdressing, was $125 a week plus tips and that any wages she would have earned in the pizza business were limited. The defendants’ argument takes into consideration only an evaluation of the destruction of the decedent’s earning capacity and gives no consideration to the award of an amount based on the destruction of the capacity to carry on life’s activities as well as compensation for pain and suffering.
Id. at 184 (emphasis added).
It is apparent from this quote that the Connecticut Supreme Court recognized “the destruction of the capacity to carry on life’s activities” began at death and went forward through the duration of the decedent’s life expectancy. This was not an amount recovered for damages suffered by a wrongful-death beneficiary, but was an amount awarded for damages suffered by the decedent herself. Though covered in the Connecticut statutes as “just damages,” these were damages for the loss of the decedent’s life, which, in turn, led to the destruction of her ability to carry on life’s activities.
In short, our review of case law from other jurisdictions shows that some jurisdictions award damages for loss of the enjoyment oflife that are pre-death, while others award damages for loss oflife that begin at death and run forward until the end of life expectancy. This distinction between damages for “loss oflife” and those for “loss of enjoyment oflife” is borne out by the legal scholarship written over the last quarter-century. Contrary to the appellees’ assertion, although damages for “loss oflife,” and “loss of enjoyment oflife” are both hedonic, “loss oflife” damages are not the equivalent of those for “loss of enjoyment oflife.” See Cindy Domingue-Hendrickson, Wrongful Death — New Mexico Adopts Hedonic Damages in the Context of Wrongful Death Actions: Sears v. Nissan (Romero v. Byers), 25 N.M. L. Rev. 385 (1995); Maurice B. Graham & Michael D. Murphy, Hedonic Damages — Where Are We?, 51 J. Mo. B. 265 (1995) (Graham and Murphy point out that damage awards for loss of enjoyment oflife are much less controversial than loss-of-life damages).
This history is important, because it is with this backdrop that our legislature amended the Arkansas survival statute in 2001. Interestingly, the appellees cite Evans v. United States, 504 U.S. 255 (1992) for the proposition, “It is a familiar ‘maxim that a statutory term is generally presumed to have its common-law meaning.’” Id. at 259 (quoting Taylor v. United States, 495 U.S. 575, 592 (1990)). The General Assembly presumably understood the difference between “loss oflife” damages and “loss of enjoyment oflife” damages, and they chose to allow for the recovery of loss-of-life damages in the Arkansas survival statute.
The appellees contend that only those damages suffered by a decedent between injury and death are compensable under the Arkansas survival statute. Thus, their argument is that Miss Durham’s estate is not entitled to loss-of-life damages, since she was killed instantly in the accident and there was no period of time between her injury and death. In short, her injury was her death.
In Ark. Code Ann. § 16-62-101(b), the Arkansas General Assembly chose to use the term “loss of life damages” in its amendment to the survival statute. Thus, the appellees’ arguments regarding the meaning and inception of the term “loss of enjoyment of life damages” is irrelevant. Relevant to our inquiry instead is the plain language of the statute as amended. If the statute’s language is clear and unambiguous and conveys a clear and definite meaning, we do not resort to rules of statutory interpretation. Williams v. Little Rock School District, supra. By its ordinary meaning in common parlance, “loss of life” cannot occur prior to death because it necessarily presupposes death has occurred. One cannot both live and experience loss of life simultaneously.
Loss-of-life damages seek to compensate a decedent for the loss of the value that the decedent would have placed on his or her own life. “Survival” actions have traditionally included those damages suffered by the decedent between injury and death. Nonetheless, Ark. Code Ann. § 16-62-101 makes no distinction between “personal injury” or “death” when it speaks of the term “injury.” In other words, when a person is killed instantaneously, as was Miss Durham, her injury is her death, which is compensated by loss-of-life damages.
In sum, because the legislature chose to amend the survival statute to add loss-of-life damages as a separate and independent element in addition to all other elements of damage already allowed by law, the appellants are correct that loss-of-life damages are a new element of damages. Moreover, because the phrase “loss of life damages” as used by the legislature in § 16-62-101(b) is clear and unambiguous, and, since loss-of-life damages can only begin accruing at the point when life is lost, at death, there is no reason to believe the legislature intended to require the decedent to live for a period of time between injury and death. Therefore, we hold that it is not necessary for a decedent to live for a period of time between injury and death in order to recover loss-of-life damages under Ark. Code Ann. §. 16-62-101(b). Accordingly, we hold that the trial court erred in granting partial summary judgment to the appellees on the loss-of-life damages claim, and we reverse and remand.
Evidentiary Issue
Though the appellants do not argue this point on appeal, the appellees have noted that the appellants retained an economist to provide expert testimony about loss-of-life damages. This expert testimony was the subject of a motion in limine filed by the appellees, requesting that the expert testimony be excluded. However, the trial court did not reach the issue of the motion in limine because it granted summary judgment on the claim for loss-of-life damages. In a case decided three decades ago by this court, we determined that there is no hard and fast rule to determine compensatory damages for non-pecuniary losses:
No rule has been established — and in the nature of things none can be • — • for determining what compensation should be paid for loss of life, for pain and suffering, for loss or decrease of earning power, for mental anguish accompanied by physical injury, for loss of companionship, and for the various elements entering into damage actions.
Clark & Sons v. Elliott, 251 Ark. 853, 857, 475 S.W.2d 514, 517 (1972). While we do agree with the appellees that the determination of damages is within the purview of the jury, without a trial court ruling or order before us on the issue of expert testimony, this issue is not ripe for consideration.
Duplicate Recovery
The appellees also assert that the “threat” of duplicative damages is a reality because, they contend, the appellants’ theory is that loss-of-life damages include the value of future lost earnings in addition to non-pecuniary loss. The appellees point out that future lost earnings are specifically recoverable by statutory beneficiaries under the Arkansas Wrongful Death Statute, Ark. Code Ann. § 16-62-102 (Supp. 2003). However, the appellants have argued that they are making no wrongful death claim for pecuniary damages in this case and, therefore, there can be no double recovery for those damages. Again, without a ruling or order squarely before us, this issue is not ripe for consideration at this time. t
Reversed and remanded.
See, e.g., Kirk v. Washington State Univ., 746 P.2d 285 (Wash. 1987); Virginia Smith Gautier, Hedonic Damages: A Variation in Paths, the Questionable Expert and a Recommendation for Clarity in Mississippi, 65 Miss. L.J. 735 (1996).
See, e.g., Katsetos v. Nolan, 368 A.2d 172 (Conn. 1976) (a plaintiff is entitled to “just damages” which include “compensation for the destruction of her capacity to carry on and enjoy life’s activities in a way she would have done had she lived” (emphasis added)) Jennifer L. Jones, Hedonic Damages: Above and Beyond Section 1983, 31 Santa Clara L. Rev. 809 (1991) (using the phrases “loss of the pleasure of being alive” and “lost value oflife” interchangeably to describe post-death damages). | [
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Donald L. Corbin, Justice.
Appellant Lon Weigel has filed an interlocutory appeal from the order of the Benton County Circuit Court disqualifying his attorney, Jason Hatfield, and the Niblock Law Firm from representing him at trial in his suit against Appellee Farmers Insurance Company, Inc. For reversal, Appellant argues that the trial court erred in finding that Hatfield was a necessary witness under Model Rule of Professional Conduct 3.7. Specifically, Appellant argues that (1) Rule 3.7 only applies to attorneys who voluntarily give testimony on behalf of their clients; (2) any matter to which Hatfield could testify is uncontested; and (3) Hatfield’s disqualification would work a substantial hardship on Appellant. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(b)(5), as it raises significant issues needing clarification or development of the law. We affirm the order of disqualification.
This case stems from an accident that occurred on May 16, 1996, involving Appellant and Donna Knutson.' At the time of the accident, Appellant’s vehicle was insured by Farmers, while Knutson’s vehicle was insured by Allstate Insurance Company. Over the next two years, Farmers paid approximately $6,000 in medical payments for Appellant. In May 1999, Appellant filed suit against Knutson for his injuries. He sought the full amount of Knutson’s policy limits, which was reportedly $100,000. He was represented in that suit by Hatfield and the Niblock Law Firm. A jury trial was set for October 31 through November 2, 2000.
One month prior to trial, on September 29, 2000, Appellant notified Farmers of the possibility of an underinsured-motorist claim, stating that he had already incurred medical bills exceeding $64,000. Six days before the trial, Knutson’s attorney asked Hatfield if Appellant would sign a full release of Knutson in exchange for a check for $100,000. Hatfield communicated the offer to Farmers’ branch claims supervisor, Matt Bamber. Bamber advised Hatfield that if Knutson’s insurer made a policy-limits offer, Hatfield should make a formal demand for underinsured-motorist benefits pursuant to Ark. Code Ann. § 23-89-209(c) (Repl. 1999). One day before trial, Hatfield again contacted Bamber and asked Farmers to agree to allow Appellant to sign a full release of Knutson in exchange for $100,000, purportedly the full policy limits. Bamber indicated that Farmers would not permit Appellant to sign a release at that time.
Following Farmers’ refusal to release the tortfeasor, Appellant proceeded to try the case against Knutson. The jury returned a verdict in favor of Appellant, but for only $5,000. Thereafter, in May 2001, Appellant filed suit against Farmers, alleging breach of contract, breach of fiduciary duty, bad faith, and deceptive trade practices. The crux of Appellant’s suit was that Farmers’ refusal to allow him to sign a full release of Knutson “forced” him to go to trial, where he received $95,000 less than the offer made by Knutson.
In response, Farmers moved to depose Hatfield as a material witness to its defense. Specifically, Farmers alleged that Hatfield’s testimony was necessary on the following issues: (1) whether he complied with section 23-89-209(c); (2) whether he was familiar with that statute; (3) whether he had complied with that statute before; and (4) whether he knew the rules of civil procedure that would have allowed him to nonsuit the case or seek a continuance. This last issue was relevant to Farmers’ defense that it was Hatfield’s actions or inactions, not Farmers’ bad faith, that “forced” Appellant to try the case against Knutson. Farmers subsequently moved to disqualify Hatfield from representing Appellant at trial pursuant to Rule 3.7 of the Model Rules of Professional Conduct, which prohibits an attorney from being both an advocate and a necessary witness.
Farmers’ motions were discussed during two hearings. At the December 19, 2001, hearing, the trial judge indicated that the motions might have merit, stating: “But as I read the Complaint and these, uh, these motions, I had the very distinct impression that [Mr. Hatfield] may very well wind up being a witness in the case through some of these verbal things, compliance things.” Before ruling on the motions, however, the trial court instructed Farmers to file a written motion specifically setting out how Hatfield’s testimony was necessary. The trial judge then acknowledged the magnitude of Farmers’ motions, indicating that while he was reluctant to deprive Appellant of his chosen attorney, he was likewise reluctant to deprive Farmers of an affirmative defense.
As instructed, Farmers filed a written motion to disqualify Hatfield, setting out the specific reasons why Hatfield’s testimony was necessary. Thereafter, a hearing was held on February 6, 2003, during which the trial court granted the motion. The trial court explained:
I have, uh, I have determined, Mr. Hatfield, that the motion must be granted. I think that as I read this case you are — your role in the discussions and other things attempting — the attempts to work the case out, ultimately, uh, the things that took place during the course of the trial ... all are pivotal, could be, to the issues, in determining the issues that are going to be addressed in this case. And this isn’t a decision I am making lightfly] as obviously, I have been very reluctant to do this, but I am gonna do that.
A written order of disqualification was entered on March 5,2003, and this appeal followed.
We note at the outset that disqualification of an attorney is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship; yet it is a drastic measure to be imposed only where clearly required by the circumstances. Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). This court reviews a trial court’s decision to disqualify an attorney under an abuse-of-discretion standard. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001); Craig, 340 Ark. 624, 12 S.W.3d 229. An abuse of discretion may be manifested by an erroneous interpretation of the law. Id. The Model Rules of Professional Conduct are applicable in disqualification proceedings. Id. However, a violation of the Model Rules does not automatically compel disqualification; rather, such matters involve the exercise of judicial discretion. Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). With this standard in mind, we turn to the issues raised on appeal.
I. Application of Rule 3.7
For his first point, Appellant argues that under Rule 3.7 of the Model Rules of Professional Conduct, an attorney should only be disqualified when he voluntarily acts as advocate and witness, not when opposing counsel forces him to be a witness. For his second point, Appellant argues that even if Rule 3.7 is applicable, Hatfield is not a necessary witness, because his testimony is either uncontested or cumulative of other witnesses’ testimony. We discuss these points together, as they are interrelated.
This court adopted the Model Rules of Professional Conduct, including Rule 3.7, in a per curiam opinion delivered on December 16, 1985. See In the Matter of Arkansas Bar Ass’ n: Petition for the Adoption of Model Rules of Professional Conduct, 287 Ark. Appx. 495, 702 S.W.2d 326 (1985). The Model Rules became effective on January 1, 1986, and they replaced the Code of Professional Responsibility, which was adopted by per curiam order on June 21, 1976. See id. Rule 3.7 provides:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
Since its effective date, this court has had only four occasions to interpret Rule 3.7 in the context of an attorney’s testimony being sought by the opposing party. In two of those cases, this court did not specifically discuss the applicability of the rule; rather, the issue was disposed of by holding that there had been no showing that the attorney’s testimony was necessary. See Utley v. City of Dover, 352 Ark. 212, 101 S.W.3d 191 (2003) (holding that attorney’s testimony was not relevant to any issues contained in the appellant’s pleadings and that the appellant had failed to demonstrate that the attorney’s testimony could not be gained from any other witness or source); City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001) (holding that attorney’s testimony would only be cumulative to evidence offered by some nineteen other persons). The remaining two cases, Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994), and Chelette v. State, 308 Ark. 364, 824 S.W.2d 389 (1992), discussed the rule’s application to cases where the opposing party seeks to offer the attorney’s testimony. Those cases, however, reached different conclusions.
In Chelette, the appellant argued that the trial court erred in denying his motion to have the prosecutor disqualified because he had been called as a witness for the defense. This court ultimately rejected the appellant’s argument on the ground that the prosecutor’s testimony was uncontested and cumulative and thus permissible under the exception set out in paragraph (1) of Rule 3.7. However, in so doing, this court acknowledged that Rule 3.7 would apply to a situation where the prosecutor testified for either the state or the defense. This court explained: “We have held that when a prosecutor undertakes an active role in the investigation of a crime so that he potentially becomes a material witness either for the State or the defense, he ho longer may serve as the advocate for the State.” Id. at 369, 824 S.W.2d at 391-92 (emphasis added) (citing Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)).
Two years later, in Purtle, 317 Ark. 499, 879 S.W.2d 401, this court reached the opposite conclusion. There, the trial court disqualified counsel on the grounds that (1) his prior representation of two of the parties created a conflict of interests, and (2) one of the opposing parties intended to call counsel as a witness at trial. On appeal, this court affirmed the attorney’s disqualification on the ground that his previous representation created a conflict of interests; however, this court rejected the notion that the attorney should be disqualified because the opposing party wished to call him as a witness. In so holding, this court interpreted Rule 3.7 as only pertaining to “situations where the lawyer is to be a witness on behalf of his or her client — not when called as a witness by the opposing party.” Id. at 503, 879 S.W.2d at 403. This court explained:
The first paragraph of the comment to this rule makes that clear: “Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.” Moreover, the cases cited by B.J. McAdams in his brief are concerned with situations where the attorney seeks to testify on behalf of his or her own client. See, e.g., McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Calton Properties, Inc. v. Ken’s Discount Building Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983) (supp’l op.).
That is clearly not the situation here. Moreover, the obvious danger from allowing an adversary to call opposing counsel as a witness and disqualify that counsel as a result is the potential for subterfuge. It could easily be used as a ploy to cripple a party from effectively presenting a case. Finally, we discern no prejudice to John Purtle’s clients at this stage from his being called as a witness by the McAdamses. Without discernable prejudice to his clients by his testimony, there is no basis for disqualification. See Rule 3.7 of the Model Rules of Professional Conduct (Code Comparison, DR5102(B)); see abo Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992); McCoy Farms, Inc. v. McKee, 263 Ark. 20, 563 S.W.2d 409 (1978).
Id. at 503-04, 879 S.W.2d at 403-04.
Appellant argues that Purtle requires reversal in this case. Farmers, on the other hand, argues that, at best, the discussion of Rule 3.7 in Purtle was dicta, as it was not necessary to the result in that case. Farmers also contends that Purtle misstated the scope of Rule 3.7 by ignoring the plain language of the rule and by attributing to Rule 3.7 the characteristics of its predecessor, Code of Professional Responsibility DR 5-102(B).
We agree with Farmers that, on its face, Rule 3.7 does not limit its application to cases in which an attorney testifies on behalf of his or her client. Rather, it plainly states that an attorney shall not act as advocate at a trial in which he or she is likely to be a “necessary witness,” unless the attorney’s testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case or the attorney’s disqualification would work a substantial hardship on the client. Although the rule does not define “necessary witness,” it is difficult to see how the term can only mean a witness for the client.
Indeed, courts from other jurisdictions have concluded that Rule 3.7 is applicable to cases where the attorney will be called to testify for the opposing party, provided that the opposing party demonstrates three things: (1) that the attorney’s testimony is material to the determination of the issues being litigated; (2) that the evidence is unobtainable elsewhere; and (3) that the testimony is or may be prejudicial to the testifying attorney’s client. See Klupt v. Krongard, 126 Md. App. 179, 728 A.2d 727, cert. denied, 355 Md. 612, 735 A.2d 1107 (1999); LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, 876 P.2d 184 (1994); Smithson v. United States Fidelity & Guar. Co., 186 W. Va. 195, 411 S.E.2d 850 (1991); Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 624 P.2d 296 (1981). Courts have viewed this three-pronged test as being necessary to prevent Rule 3.7 from being used as a sword or a tactical measure to hinder the other party’s case. See Klupt, 126 Md. App. 179, 728 A.2d 727; Cottonwood, 128 Ariz. 99, 624 P.2d 296. In this respect, the test “strikes a reasonable balance between the potential for abuse and those instances where the attorney’s testimony may be truly necessary to the opposing party’s case.” Smithson, 186 W. Va. at 201, 411 S.W.2d at 856.
We conclude that the foregoing test is sound, and we hereby adopt it. The test is consistent with our previous holding in Chelette, 308 Ark. 364, 824 S.W.2d 389, that the rule applies regardless of which side seeks to present the attorney’s testimony. The test is also consistent with our decision in Purtle, 317 Ark. 499, 879 S.W.2d 401, to the extent that the opposing party must demonstrate that the attorney’s own client will or may be prejudiced by the attorney’s testimony.
Additionally, the test takes into consideration many of the reasons for prohibiting an attorney from being both advocate and necessary witness: (1) an advocate who becomes a witness may be in the unseemly position of arguing his own credibility; (2) the roles of advocate and witness are inconsistent and should not be assumed by one individual; and (3) the attorney should not act as both trial counsel and a material witness because of the appearance of impropriety. See Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995) (citing Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982)).
Applying the test to the facts of this case, we affirm the trial court’s order of disqualification. As to the first prong, whether Hatfield’s testimony is material, Appellant’s complaint contains allegations of breach of contract, breach of fiduciary duty, bad faith, and deceptive trade practices. The crux of the suit is the allegation that Farmers refused to permit Appellant to sign a release of the tortfeasor in exchange for a settlement with the tortfeasor’s insurer, and that such refusal cost Appellant $95,000 plus the potential for underinsured-motorist benefits. Farmers maintains that Hatfield’s testimony is necessary to refute the allegations in the complaint and to establish its affirmative defense of noncompliance with the underinsured-motorist statute, section 23-89-209(c).
Appellant does not dispute that Hatfield’s testimony is material; rather, he disputes the second prong of the test, which is that the evidence must be unobtainable from other witnesses or sources. Particularly, Appellant contends that any evidence that Hatfield could supply, i.e., what information he did or did not provide to Farmers; the fact that there was only an oral offer of the tortfeasor’s policy limits; and the fact that he did not strictly comply with the requirements of section 23-89-209(c), could also be offered by Farmers’ employees.
Farmers counters this argument by stating that Hatfield’s testimony is the only way to prove its affirmative defense of noncompliance with section 23-89-209(c). Farmers also asserts that Hatfield’s testimony is necessary to refute the allegation in the complaint that Farmers’ refusal to permit Appellant to release the tortfeasor forced him to go to trial, where he ultimately received a verdict that was ninety-five percent less than the settlement offer. In this respect, Farmers asserts that Hatfield’s testimony is crucial as to his awareness that he had the options of either continuing the trial or taking a nonsuit to allow Farmers more time to evaluate the claim. In essence, Farmers’ defense is that Hatfield’s negligence, not Farmers’ bad faith, forced Appellant to decline the settlement offer and proceed to trial. We agree that Hatfield’s testimony is both material and necessary in this case.
The complaint reflects no less than four paragraphs describing conversations that “Plaintiff Weigel’s attorney” had with the tortfeasor’s attorney and with Farmers’ claims supervisor:
16. That on or about October 25, 2000, Donna Knutson’s attorney, John Moore, asked Plaintiff Weigel’s attorney, Jason Hatfield, if Plaintiff Weigel would sign a full release for Donna Knutson in exchange for a check for $100,000.00.
18. That Plaintiff Weigel’s attorney then contacted Defendant Farmers and discussed the oral offer with Branch Claims Supervisor, Matt Bamber. That Mr. Bamber indicated that the Knutsons had assets available and that Farmers would substitute the $100,000.00 if a formal offer was made pursuant to Ark. Code Ann. Sec. 23-89-209(c)....
19. That Plaintiff Weigel’s attorney discussed the offer several times with Allstate’s attorney, John Moore, and Mr. Moore made it clear that an offer of $100,000.00 was contingent on PlaintifFWeigel signing a full release of the Knutsons.
20. That Plaintiff Weigel’s attorney called Matt Bamber at Farmers on October 30,2000, and asked Farmers’to agree to allow PlaintifFWeigel to sign a full release in exchange for the policy limits of $100,000. That Matt Bamber said that Farmers would refuse coverage under Plaintiff Weigel’s underinsured motorist coverage if he signed the release, conversely Mr. Bamber said that Farmers would not substitute limits since any offer made was not in accordance with Ark. Code Ann. Sec. 23-89-209(c).That further, Mr. Bamber said that he owed a duty to his policyholders and that PlaintifFWeigel could not have his cake and eat it too.
These oral conversations, especially those between Hatfield and Bamber, are the centerpiece of Appellant’s claims, as pled in the complaint, and Farmers should be permitted to question Hatfield in order to respond to the allegations in the complaint. We agree with Farmers that its defense will be hampered if Hatfield is allowed to cross-examine its employees about the substance of those conversations, but Farmers is not, in turn, permitted to question Hatfield about them. We also agree that Hatfield is the only witness who can testify as to whether he was aware of the provisions of section 23-89-209 (c), whether he complied with them, and whether he considered taking a nonsuit or asking for a continuance to give Farmers additional time to investigate and evaluate the claim. One court has concluded that an attorney’s testimony about his strategy and what transpired during settlement negotiations was crucial to prove bad faith. See Warrilow v. Norrell, 791 S.W.2d 515 (Tex. Ct. App. 1989). It logically follows that such testimony may well be crucial to defend against a claim of bad faith.
Before we leave this issue, we must address the statement made during oral argument before this court, that Appellant may be willing to stipulate that Hatfield failed to provide Farmers with the items listed in section 23-89-209(c) and that Hatfield was aware that he could have advised Appellant to take a nonsuit or seek a continuance rather than force the jury trial. Appellant implies that such a stipulation renders Hatfield’s testimony unnecessary. We do not agree. Regardless of whether Hatfield testifies in person or through a set of written stipulations, he is still a witness, and he will be in the unseemly position of arguing his own credibility, notably in opening and closing statements. Similarly, his credibility will be an issue in cross-examining Farmers’ employees about what he told them or what information he supplied them.
Finally, as to the third prong of the test, we conclude that Hatfield’s testimony will or may be prejudicial to his client. In his deposition, Hatfield conceded that he did not give Farmers the information listed in section 23-89-209(c), such as medical records, medical bills, or even a copy of the tortfeasor’s Insurance policy, prior to his attempt (one week before trial) to get Farmers to permit his client to sign a release of the tortfeasor. He also agreed with Farmers that such information was necessary for Farmers to properly evaluate Appellant’s claim before it made a decision to allow him to release the tortfeasor. He further conceded that he could have taken a nonsuit or sought a continuance, rather than forcing the case to trial. It is difficult to see how this testimony is not prejudicial to Appellant’s case.
In sum, we hold that Rule 3.7 prohibits an attorney from being an advocate where he or she is likely to be a necessary witness. The rule’s prohibition is not limited to cases in which the attorney will give testimony on behalf of his client. The plain language of the rule only requires a showing that the attorney is likely to be a “necessary witness.” We thus overrule Purtle, 317 Ark. 499, 879 S.W.2d 401, to the extent that it purported to create a bright-line rule limiting application of Rule 3.7 to those cases where the attorney will testify on behalf of his or her client. Notwithstanding, we are mindful of the legitimate concern raised in Purtle that Rule 3.7 might be used as a ploy by an opposing party to delay or otherwise hinder the other party’s case. However, we are also mindful that in some instances, like the preseiit case, the attorney’s testimony may be truly necessary to the opposing party’s case. By adopting the three-pronged test set out above, the potential for illegitimate use of Rule 3.7 is minimized considerably. Because Farmers has demonstrated each prong of the test, we conclude that the trial court did not abuse its discretion in disqualifying Hatfield as Appellant’s counsel under Rule 3.7.
II. Substantial Hardship on Appellant
For his final point, Appellant argues that it would work a substantial hardship on him if Hatfield and the Niblock Law Firm are disqualified. He thus contends that the exception in Rule 3.7(3) is applicable. Particularly, Appellant argues that he has years of experience with Hatfield and his firm, and that the firm has “extensive knowledge of appellant’s injuries, doctors, disability, family, person, etc.” He then asserts that Hatfield’s, and thus his firm’s, disqualification “forces appellant to hire another attorney who would have hours of documents, depositions, manuals, and records to review.”
Farmers counters that if disqualification in Appellant’s case is a “substantial hardship,” then every case would fall into that category and the exception would swallow up the rule. Farmers also argues that Hatfield is partly to blame for this hardship, as he should have known from the moment he drew up the complaint that he would likely be a necessary witness in the matter. Farmers points to the trial judge’s observation that as he read the complaint and the motions, he was immediately struck with the thought that Hatfield may be a necessary witness in the case.
In deciding to disqualify Hatfield and his firm, the trial court considered the hardship that may befall Appellant. Indeed, the trial court assumed, for the sake of argument, that Appellant would just as soon lose his right hand as to lose Hatfield as his attorney. Notwithstanding, the trial court concluded that any hardship to Appellant was outweighed by Farmers’ right to present a defense to the allegations. The trial court was correct in applying such a balancing test, as the official Comment to Rule 3.7 states:
[Paragraph (3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.
We conclude that the trial court did not abuse its discretion in concluding that the hardship to Appellant was not substantial, in light of Farmers’ need of Hatfield’s testimony to defend the allegations and the fact that Hatfield could have reasonably foreseen that he would likely be a necessary witness.
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Per Curiam.
On June 28, 1996, judgment was entered in the Circuit Court of Clark County reflecting that Altricia Muhammed had been found guilty by a jury of possession of a controlled substance and sentenced to 120 months’ imprisonment. Her retained attorney, Gregory Bryant, filed a timely notice of appeal from the judgment on July 8, 1996. Counsel subsequently sought in the trial court to have Ms. Muhammed declared indigent, or, in the alternative, to be relieved as counsel. The trial court declined to declare Muhammed indigent. The court also declined to relieve counsel, correctly noting that any motion to be relieved which Bryant desired to file must be addressed to this court because a notice of appeal had been filed in the case.
Mr. Bryant did not proceed here to be relieved, and the appeal has gone unperfected. Ms. Muhammed now seeks by pro se motion to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk rather than a motion for belated appeal and grant it.
The direct appeal of a judgment of conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to permit an appeal when the defendant’s counsel has failed to follow mandatory appellate rules. Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). Rule 16 of the Rules of Appellate Procedure— Criminal provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
Once the notice of appeal was filed, attorney Bryant was obligated to perfect the appeal. If he desired to ask to be relieved of responsibility for the appeal or to have his client declared indigent, his course of action was an appropriate motion filed here with a partial record. In no event may counsel simply abandon an appeal, and Bryant remains responsible for representing the appellant. See Atkins v. State, 308 Ark. 675, 827 S.W.2d 636 (1992).
Attorney Bryant is directed to appear before this court on Thursday, January 8, 1998, at 9 a.m. and show cause why he should not be held in contempt for failure to perfect this appeal.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion for rule on clerk granted.
Arnold, C.J., not participating. | [
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Donald L. Corbin, Justice.
Appellant John Phillip Ponder appeals the order of the Union County Circuit Court denying his motion to transfer the charge against him to juvenile court. We have jurisdiction of this interlocutory appeal. Ark. Sup. Ct. R. 1-2(a)(11); Ark. Code Ann. § 9-27-318(h) (Supp. 1995). We cannot say the trial court’s decision to retain jurisdiction of the case was clearly erroneous, and therefore we affirm.
Pursuant to the prosecutor’s discretion in section 9-27-318(b)(1), Appellant was charged in circuit court with one count of capital murder for the death of seventy-five-year-old Violet Willett. The information alleged that Appellant was born February 6, 1981, and that the crimes occurred on June 21, 1995. Appellant was thus fourteen years old when the crime was committed.
Appellant filed a motion to transfer the charge to juvenile court. During the April 1, 1996 hearing, Deputy Michael Fife, of the Union County Sheriffs Department, described the crime scene to the court and testified as to portions of two statements given by Appellant to police. Appellant admitted to entering Violet Willett’s home two times on June 21, 1995, with the intention of taking items. While he was there the second time, he took a watch, a necklace, and some guns. After Appellant had remained at the home for approximately one hour, Willett returned. As she entered her home, Appellant stated that he hid next to a chair.
As to what happened after Willett returned and the actual cause of her death, Appellant’s two statements differ. In his first statement, he stated that he stood up with Willett’s .22 calibér rifle in his hands. Fie indicated that he had previously unloaded the gun and then reloaded it with different ammunition. He then told Willett to give him her truck keys, when the gun went off. In the second statement, however, he contended that the gun went off when he placed the barrel of the rifle on a wall partition, striking Willett and causing her death. Appellant stated in both interviews that he then threw down the gun and another shot fired. He admitted to looking in Willett’s pocket for her keys while she lay bleeding on the floor. He also took two guns and seized money from Willett’s purse before driving off in her truck. After wreck ing the vehicle, he was found wearing the stolen watch and was charged with capital murder.
The State also provided testimony from Dr. Frank Peretti, an associate medical examiner who performed the autopsy on Willett. Dr. Peretti testified that the trajectory of the bullet went from the front part of Willett’s skull to the back in a downward path. Fie stated that the cause of death was a gunshot wound of the head, with neck injuries.
Phillip Taylor, a juvenile probation officer, testified that Appellant had been involved in the juvenile court system three times prior to the incident. On April 26, 1994, he was involved in the unauthorized use of a vehicle in which he took a truck without permission. The victim did not wish to pursue charges, as long as restitution was paid for the damage done to the truck. On May 12, 1995, after skipping school, Appellant was charged with arson for setting fire to a wooden podium in a shower stall of the boy’s locker room at Barton Middle School in El Dorado. Also in May 1995, he damaged the front and rear windshield of a vehicle owned by a school teacher at Barton Middle School. After Appellant pleaded “true” to the charges of criminal mischief and arson, the juvenile court judge ordered that Appellant be placed on six months’ probation and sent to South Arkansas Youth Services Center. The present incident occurred while Appellant was waiting for an available space at the youth facility.
Appellant presented the following testimony. Joe Ogden, the director of the Central Arkansas Serious Offender Program for juveniles, testified regarding the fact that out of the twenty-four males in the program, five, between the ages of fourteen and one-half to seventeen years of age, had committed the offense of capital murder. Jan Nelson, a clinical social worker from the South Arkansas Regional Health Center, testified that her initial diagnosis of Appellant was adjustment disorder with mixed conduct and emotional features. She also stated that Appellant was not mature for his age because of his impulsiveness. On cross-examination, she stated that Appellant’s age was a factor in determining that he could be rehabilitated. She admitted, however, that she could not be considered an expert in the rehabilitation of juveniles. John Huey Ponder, Appellant’s father, confirmed the incidents dealt with in juvenile court and acknowledged that he and his wife had left Appellant by himself on the day of the shooting.
After hearing all the testimony, the trial court denied the motion to transfer the case to juvenile court. In a written opinion, the court stated that “the offense charged is a serious one and was committed in a violent manner while in the process of a burglary of the victim’s home.” The court also noted that Appellant was on probation for arson and criminal mischief at the time of the murder, and he was therefore beyond rehabilitation in existing juvenile programs. Consequently, the court found clear and convincing evidence to retain the charge in circuit court.
Pursuant to section 9 — 27—318 (f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). Clear and convincing evidence is defined as that degree of proof that will produce in the trier of fact a firm conviction regarding the allegation sought to be established. Id. The supreme court will not reverse a circuit court’s denial of a juvenile transfer unless the denial was clearly erroneous. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).
Section 9-27-318(e) provides in part the factors to be considered in a juvenile transfer hearing as follows:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
A circuit court is not required to give equal weight to each of these statutory factors. Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996). Proof need not be introduced against the juvenile on each factor. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996).
Appellant asserts that the trial court erred in denying the motion to transfer because of the juvenile’s age and his probability of rehabilitation. He also argues that the trial court erred because he contends the crime was accidental and did not involve the employment of violence. In support of this argument, he relies heavily on this court’s decision in Green, 323 Ark. 635, 916 S.W.2d 756. The facts present in this case are distinguishable from those in Green, where the appellant was charged with manslaughter. Here, the evidence demonstrates that Appellant was involved in the serious offense of capital murder and that he employed a gun in committing the offense. The fact that the offense charged was serious in nature and was accomplished with the use of violence is enough to warrant a denial of transfer of Appellant’s case to juvenile court. No element of violence beyond that required to commit the crime is necessary under section 9-27-318(e)(1). Lammers, 324 Ark. 222, 920 S.W.2d 7.
Notwithstanding the violent and serious nature of the offense, the trial court’s decision is further supported by the fact that Appellant had committed two prior adjudicated offenses, approximately one month before the murder, and had been placed on juvenile probation. Where there is evidence that the current felony charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation in the juvenile court system have not been successful, and that the pattern of offenses has become increasingly more serious, these factors alone prevent a holding that the trial court’s ruling on the transfer motion was clearly erroneous. Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). Thus, the trial court did not err by concluding that Appellant was beyond rehabilitation.
Based upon the foregoing reasons, we conclude that the decision of the trial court denying Appellant’s motion to transfer the charge to juvenile court is supported by clear and convincing evidence.
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W.H.“Dub” Arnold, Chief Justice.
The appellant, Jeffrey Davis, was sentenced to concurrent life sentences' for three counts of rape and ten years’ imprisonment for firstTdegree sexual abuse, for which he was also fined $10,000.00. He raises seven issues on appeal, none of which has merit. We affirm.
The State alleged that the 'appellant thrice raped his' seven-year-old daughter by engaging in oral sex with her, by penetrating her vagina with his penis, and by penetrating her vagina with a foreign object. It was also alleged that appellant engaged in sexual contact with his daughter. A fifth charge, endangering the welfare of a minor, was dismissed at trial.
During the appellant’s jury trial, the victim testified that, on several occasions, her father “took his private part and stuck it in my private part,” but “it wouldn’t fit in all the way.” When the appellant was “through,” “white stuff would come out” on the victim’s leg that she described as “gooey.” According to the victim, the appellant also “made me put his private part in my mouth and suck on it.” He touched her “private” with his tongue and stuck the tip of a lotion bottle and a vibrator into her “private part.” The victim further described how she would rub on the appellant’s “private.” It was the victim’s testimony that the appellant kept ladies’ slips and “all kinds of stuff” under his bed. He would tie the slips in a knot to keep them from falling down because they were too big for the victim. The appellant would also make the victim look at dirty magazines and watch pornographic movies. According to the victim, these acts occurred in her parents’ bedroom while her mother was gone. On cross-examination, the victim admitted to recanting the allegations to her foster parent, Ms. Ward, because, according to her, “it wasn’t her business,” and she “wouldn’t leave me alone.”
In addition to the victim’s testimony, the State also offered the testimony of Tammy Coney, a family service worker for the Arkansas Department of Human Services, who testified that it was not unusual for child sexual-abuse victims to recant their allegations. The victim’s elementary school counselor, Melissa Cox, related that the victim had emotional problems at school. Nurse Paula McAlister and Dr. George Richison saw the victim at St. Mary’s Hospital on January 5, 1996. While Dr. Richison testified that the victim’s exam was normal, he also stated that the victim’s account would be consistent with her hymenal ring being intact. Officer Bryce Davenport testified that suggestive pictures and pornographic magazines and movies were found at the appellant’s residence. According to the officer, a bag containing white lace material and a small night shirt was located under the appellant’s bed.
The appellant testified in his own defense and denied the charges. His wife and the victim’s mother, Tracy Davis, testified on her husband’s behalf that the victim “always acted like a grown up” and had emotional problems with adjusting to a new school that caused her to make the allegations. At the close of all the evidence, the jury found the appellant guilty as charged.
1. Sufficiency of the evidence
At the close of the State’s case in chief, the appellant moved for a directed verdict as follows:
Your Honor, at the end of the State’s testimony the defendant, Jeff Davis, moves for a directed verdict on all the remaining counts of the information.
After the trial court denied this motion, appellant presented his case to the jury. At the close of all the evidence, the appellant made the following motion:
At the conclusion of all the evidence, the defense evidence and the State’s evidence, the defendant renews his motion for directed verdict on the ground that there is insufficient evidence to make a prima facie case.
The trial court again denied the motion. On appeal, the appellant complains that the only evidence to support the State’s charges of rape against him was the testimony of the child-victim, who had earlier recanted her allegations.
A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Arguments not raised at trial will not be addressed for the first time on appeal, and parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial. Id. In the present case, the appellant’s directed-verdict motion was not specific. Under these circumstances, we will not address the merits of appellant’s argument. In any event, even if we were to address the merits of his argument, it would fail. We have held many times that the uncorroborated testimony of a rape victim is sufficient to support a conviction. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997).
2. Prosecutorial misconduct
In his opening statement to the jury, the prosecutor remarked that the case involved “a man who delights and takes pleasure in the sexual perversion of children.” When appellant objected to this statement and requested that the trial court admonish the jury, the trial court agreed and issued the admonishment. Later, during the appellant’s case-in-chief, he testified as follows:
I can’t stop being her father, not for her — not only for her but for me; and if everything goes, I’m not quitting. I feel like I’ve got a problem that needs to be solved; and if permitted, I want to fix it. Whatever it is; and I’ll say it again, the first I . . .
During his initial cross-examination of the appellant, the prosecutor stated, then asked, “You’ve got a problem that needs to be fixed. How long have you been a pervert?” Before the appellant could respond, his attorney objected to the question. The trial court sustained the objection and agreed to the appellant’s request to admonish the jury. The appellant made a motion for mistrial, which the trial court denied. After the jury returned a guilty verdict, the appellant renewed his motion for mistrial and asked the trial court to set aside the verdict on the ground that the prosecutor’s comment during opening statement, when taken together with his improper question asked during cross-examination, amounted to prosecutorial misconduct. The trial court again denied the motion.
A mistrial is a drastic remedy that is granted only where the error is so prejudicial that justice cannot be served by continuing the trial or where the fundamental fairness of the trial itself has been manifestly affected. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The trial court is afforded broad discretion in making its ruling, and a mistrial will not be declared when the prejudice can be removed by an admonition to the jury. Id.
It is obvious to us that the prosecutor’s object in the present case was to label the appellant as a “pervert.” While we may not approve of this trial tactic, we cannot say that the prosecutor’s conduct was so drastic as to warrant a mistrial. See Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). When viewing the strong admonitions the trial court issued at the time the prosecutor’s remarks were made, we hold that any potential prejudice was cured and that the trial court did not abuse its wide discretion in denying the motion for mistrial.
3. Testimony of Tammy Coney
Next, the appellant contends that the trial court erred in allowing Tammy Coney, a family service worker for the Arkansas Department of Human Services, to offer expert testimony that it was not unusual for child sexual abuse victims to recant their allegations.
We recently summarized the law regarding the qualifications of an expert witness in Smith v. State, 330 Ark. 50, 55-56, 953 S.W.2d 870 (1997):
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. A.R.E. Rule 702; Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In addition, expert testimony must be relevant and not misleading or confusing to the jury. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
In the case at bar, Ms. Coney testified that she had been involved in investigating child-abuse cases for six and one-half years and had received eight weeks of new-worker training that covered different aspects of abuse, neglect, and family dynamics. Three years prior to trial, Ms. Coney had received one hundred-fifty hours of additional training. In view of Ms. Coney’s training and experience, we cannot say that the trial court abused its discretion in qualifying Ms. Coney as an expert and allowing her testimony, as it is appar ent that she had knowledge of child-abuse cases beyond that of an ordinary person. See Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).
The appellant also complains that the trial court should not have permitted Ms. Coney’s testimony because “there was no strong record before the court which indicated that a child abuse case was before the court and that there was no need for the testimony of Tammy Coney to be made at that time.” This specific objection was not made at trial and is thus not preserved for our review. See Stewart v. State, supra.
4. Juror Lindsey ■— Motion for mistrial
After the jury returned a guilty verdict on three counts of rape and one count of sexual abuse, it recessed for the evening. The next morning, the bailiff approached the trial court with information that juror Jonathan Lindsey was having a “problem” with the guilty verdict.
When questioned outside the presence of the other jurors, juror Lindsey advised the trial court that he had never been a juror before and that he felt that he should have “stood up and stayed strong . . . instead of giving in to everybody else (on the jury).” He related that he became troubled during his drive home from the courthouse and “had just this real bad feeling in me that I had made a bad decision.” The colloquy between the trial court and juror Lindsey continued as follows:
TRIAL COURT: Now, yesterday when the jury returned to the courtroom and I asked you if you had reached your verdict and then I read off your verdicts, then I asked if this was the jury’s verdicts.
JUROR: And, I agreed with everybody, yes, sir.
TRIAL COURT: And, at that time did you have some reservations that you needed to advise the court of?
JUROR: Not really because we had just walked out of the jury room and I’m not saying that they intimidated me. I’m not saying that I felt intimidated by the other jurors or anything; and I’m not saying that the decision I made was because of their decision, really; but I mean it’s just that I didn’t feel like I should lay down a guilty verdict; but after sitting there talking to them and, you know, they were all telling me all the reasons why I should say he was guilty and all the reasons why they felt he was guilty, and it was just more than —■
TRIAL COURT: At the time you heard all that how did you feel?
JUROR: At the time they were telling all that I thought, “Well, okay, then he’s guilty of all this stuff”; and, you know, “If ya’ll feel this way and this is why y’all feel this way, then I should feel this way, too”; but then after I left the courtroom, it was a totally different feeling so far as I was concerned and I didn’t feel that way at all.
The attorneys were permitted to question juror Lindsey as follows:
ATTORNEY FOR APPELLANT: Your Honor, I think before we go any further that we ought to ask him this question. Did you have an abiding conviction — were you satisfied beyond a reasonable doubt that Jeff Davis was guilty?
JUROR: No.
ATTORNEY FOR APPELLANT: You did not have an abiding conviction of his guilt?
JUROR: No.
PROSECUTOR: Did you tell the court you did when he asked you?
JUROR: Yes, I did.
PROSECUTOR: I believe earlier you made the statement that at first you had doubts and then the other eleven jurors said to you to look at this and look at this and look at this, and then you
JUROR: And, after looking at that I was in agreement; but later when I left I was thinking, “I don’t like what I just did,” and doubt started to creep in.
PROSECUTOR: On your way home?
JUROR: That’s correct.
PROSECUTOR: But, after deliberating with the other eleven jurors and after the other eleven suggested to you that you look at “A,” “B,” “C,” and “D,” you began thinking that based upon their life’s experiences and what they’ve been through and what they are saying, “I can see that”?
JUROR: Right.
ATTORNEY FOR APPELLANT: At that point were you convinced beyond a reasonable doubt of the guilt of Jeff Davis?
JUROR: Beyond a reasonable doubt?
PROSECUTOR: At that point.
ATTORNEY FOR APPELLANT: At that point did you have an abiding conviction in the truth of the charge?
JUROR: Yes, I did at that point.
ATTORNEY FOR APPELLANT: All right.
After the questioning of juror Lindsey concluded, the appellant moved for a mistrial on the ground that the verdict was not the result of an impartial consideration and that the reason given by the juror as to how he reached his verdict was unfair in nature.
Before addressing the precise issue before us, we must emphasize that A.R.E. Rule 606(b) only permits inquiry into whether any external influence or information could have played a part in the jury’s verdict. The purpose of this rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). While the appellant did not object to the testimony regarding juror Lindsey’s mind and emotions, it is apparent when reviewing the excerpted colloquy above that the inquiry at times delved into the improper area of juror Lindsey’s mind and emotions. However, for purposes of our reviewing the appellant’s argument on appeal, it is clear from juror Lindsey’s testimony that no other juror “intimidated” him and that no extraneous prejudicial information influenced his decision.
Arkansas Code Annotated section 16-89-130(3) (1987) provides that the trial court may grant a new trial when a verdict rendered against the defendant has been decided by “lot” or chance. We have held that a verdict reached by the jury through a compromise of their views is not a verdict by lot but is a fair expression of their views. Blaylack v. State, 236 Ark. 924, 370 S.W.2d 615 (1963). The reasoning of the Eighth Circuit Court of Appeals is particularly helpful on this point:
Persuasion and compromise are the processes by which juries are intended to reach their decisions. Otherwise, jurors would be polled directly after the close of trial — not allowed to discuss the case among themselves to arrive at a verdict acceptable to them all.
Smith v. Lockhart, 946 F.2d 1392, 1395 (8th Cir. 1991).
When making its ruling on this issue, the trial court observed that juror Lindsey had stated that, at the time the verdict was returned, he had an abiding conviction of the truth of the charge. When considering all the circumstances, the trial court did not abuse its discretion in denying the motion for mistrial.
5. Juror Lindsey ■— new jury
The appellant also argues, with respect to juror Lindsey, that the trial court should have dismissed the jury and impaneled a new jury for sentencing. He did not obtain a ruling on this request and thus has not preserved this argument for appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997).
6. Witness Steve Brown
Next, the appellant asserts that the trial court erred in permitting Steve Brown, Coordinator of the Fifth Judicial District Drug Task Force, to offer opinion testimony during the sentencing phase that a substance he identified as Super Manitol, a Vitamin B supplement commonly used to increase the yield of methamphetamine and cocaine, along with what he believed to be methamphetamine, were found in appellant’s home. Particularly, appellant disputes Brown’s qualifications to offer this testimony.
We initially observe that appellant has offered no case law to support his argument. We do not consider arguments that are unsupported by authority or convincing argument. Hicks v. State, 327 S.W.2d 652, 941 S.W.2d 387 (1997). In any event, Officer Brown had five years with the task force and as coordinator, was responsible for initiating major crime and narcotics inves tigations, and coordinated these investigations with state, local, and federal agencies. In view of his experience, the trial court did not abuse its discretion in permitting the officer to testify as to what he believed to be methamphetamine, for it is apparent that he had knowledge in this area beyond that of an ordinary person. See Poyner v. State, supra.
7. Other crimes evidence
Finally, the appellant maintains that the trial court erred in allowing Officer Brown’s testimony during the sentencing phase about the appellant’s pending drug charges. At trial, the appellant argued that, if the State were permitted to offer this evidence, he would be “required to offer some response or evidence ... or even testify in order to refute those allegations.” He further claimed that this evidence would be “highly prejudicial.” While the trial court overruled the appellant’s objection and permitted the State to present this evidence, the appellant did not testify during the penalty phase. On appeal, he asserts in a conclusory manner that this evidence was not independently relevant and that its probative value was substantially outweighed by the danger of unfair prejudice. He does not state, however, how he was prejudiced by the admission of this evidence. We will not reverse the trial court’s ruling on evidentiary matters absent a demonstration of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S.Ct. 246 (1996). In view of the graphic testimony offered by the appellant’s seven-year-old daughter describing how he repeatedly raped her, we cannot say that the appellant was prejudiced by the admission of the testimony at issue.
8. Ark. Sup. Ct. R. 4-3(h)
We have reviewed the record in accordance with Ark. Sup. Ct. R. 4-3(h) for adverse rulings objected to by the appellant but not argued on appeal. We have found no such errors that would mandate reversal.
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W.H. “Dub” Arnold, Chief Justice.
Appellant Sterling Boston was convicted in violation of Ark. Code Ann. § 5-73-120 (Supp. 1995), the unauthorized carrying of a weapon. An officer approached Boston while he was sitting in his taxicab and asked for his license and registration. The officer requested that Boston get out of the vehicle; upon getting out, Boston informed the officer that he had a weapon in his back pocket. The officer arrested Boston for carrying a weapon without a license. Boston appeals the conviction claiming that the statutory defense for carrying a weapon in one’s place of business authorized Boston’s carrying the weapon in his taxicab because this was his place of business.
This case involves interpretation of the Arkansas Code and whether the term “business” includes a taxi cab or any motor vehicle used for commercial purposes. Specifically, Ark. Code Ann. §5-73-120 provides:
(a) A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.
(c) It is a defense to a prosecution under this section that at the time of the act of carrying:
(1) The person is in his own dwelling, place of business, or on property in which he has a possessory or proprietary interest.
There is no definition of the term “place of business” in this statute.
Appellant contends that a vehicle should be considered a “business” in certain instances for purposes of §5-73 — 120(c)(1); although this specific code section does not define the term “place of business,” appellant contends that a definition in the commercial burglary statute should be persuasive. Ark. Code Ann. § 5-39-101 (2) (A) criminalizes commercial burglary; this statute defines “commercial occupiable structure” as any “vehicle where any person carries on a business or calling.” Relying upon the definition contained in the commercial burglary statute, appellant argues that his cab should be considered a business for Ark. Code Ann. §5-73-120(c)(l).
In subsection (a) of §5-73-120, the legislature clearly criminalized the carrying of a weapon in “a vehicle.” Appellant relies on the term “business” in the exemptions to the rule found in subsection (c)(1). However, the specific language of that section exempts certain areas clearly relating to real property. Specifically, (c)(1) excludes from criminal prosecution the carrying of a gun in a person’s “own dwelling, place of business, or on property in which he has a possessory or proprietary interest.” The plain meaning of this exception does not include automobiles, nor is there general language which suggests that the list is expandable.
The fundamental rule in considering the meaning of a statute is to construe the meaning of the statute just as it reads, giving the words their ordinary and usually accepted meaning. Rush v. State, 324 Ark. 147, 151, 919 S.W.2d 933 (1996). The rule of construction applicable in this case is nonscitur a sociis. This doctrine means “it is known from its associates.” The practical application means that a word can be defined by accompanying words. See, McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502, citing Weldon v. Southwestern Bell Telephone Co., 271 Ark. 145, 607 S.W.2d 395 (1980).
The exemption for a “business” is contained in a subsection of the statute which pertains to real property; therefore, we conclude that the legislature did not intend for this exception to include automobiles. In three of the other exemption sections, the legislature created exceptions in instances where a person was in an automobile. In §5-73-120 (c)(8), a person is free to carry a weapon in an automobile if he or she has a license to carry a concealed weapon. In §5-73-120 (c)(4) persons may carry weapons when on a journey and in §5-73-120 (c)(6) while traveling to and from hunting. It is clear that the legislature considered vehicles when it crafted the exemptions. If the legislature had intended for a vehicular business to be included, it would have specified. This is particularly clear given the fact that the legislature has utilized such a definition before, in the commercial burglary section.
We apply the principle of construction nonscitur a sociis, and we hold that the word “business” does not include vehicular businesses. Therefore, the statute does not provide a defense to Boston, and the trial court is affirmed.
Affirmed. | [
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W.H.“Dub” Arnold, Chiefjustice.
This is a termination-of-parental-rights case. Appellants Norma and Larry Brown are the parents of a daughter who was born in 1992. They appeal an order of the Benton County Chancery Court terminating their parental rights with respect to their daughter. Their attorney, David B. Fuller, filed a no-merit brief in the Arkansas Court of Appeals, which certified the case to this court to answer the question of whether the provisions of Anders v. California, 386 U.S. 738 (1967), which protect a criminal appellant’s right to counsel on appeal, apply to cases involving the termination of parental rights.
The issue of whether Anders applies to these cases is not addressed in appellants’ brief. Nor has the Department addressed this issue, and it has not submitted a brief in this case. The certificate of service contained at the close of the brief filed by appellants’ attorney indicates that he mailed a copy of the brief by first class mail, with restricted delivery to appellants. Though appellants received notice that their attorney had filed a no-merit brief, they have not filed a response. Under these circumstances, we treat this no-merit appeal as a motion to dismiss and grant the motion.
Appeal dismissed.
Newbern, Brown, and Imber, JJ., dissent. | [
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Butler, J.
The executors of the estate of J. E. Hicks, deceased, in the early part of 1930, had no cash on hand or personal property out of which anything might be realized to pay the inheritance tax due on the estate of their testate amounting to $9,021.54, or with which to pay the State and county and improvement taxes amounting to $3,617.15. They also deemed it necessary to continue the policies of fire insurance on the improvements, the premiums on the same amounting to $1,203.73. This situation was presented to the Lonoke County Probate Court, in which court the will was probated, and the executors were authorized by an order of that court to borrow the above sum from the People’s Trust Company, empowering them to execute their note as executors with interest at the rate of six per cent, per annum from date until paid. On April 29, 1930, the executors secured a loan from the trust company for $12,638.69, which was applied to the payment ■ of the taxes and a note evidencing this transaction was signed by the said executors. The note becoming due and remaining unpaid, this suit was instituted to recover .a .judgment against the estate.
It was allegéd in the complaint that the executors had no money ánd no personal property belonging to' the éstate of any value except stock in a bank which was in the process of liquidation, the value of which stock was so small and uncertain that nothing could be secured by sale of it or otherwise. It was further alleged that the executors had no power under the will to sell any of the real-estate to pay plaintiff’s claim; that the executors were entitled to a lien for the money used in paying taxes on the real estate paramount to all other claims and were subrogated to the liens of the State, county, and improvement districts for the taxes discharged by them because they were proper expenses of administration, and that the trust company, in lending the money to the executors for the purpose of enabling them to discharge the tax liens, was subrogated to the liens of the executors and trustees. The prayer of the complaint was for judgment for the sums named with interest, and that it be declared a lien on the real estate belonging to the estate prior and superior to the rig-hts, etc., of any of the defendants, and for sale, etc.
The executors of the estate, the heirs of the decedent, and the beneficiaries under the will were named as defendants, all of whom are sui juris except the appellants, who. are minors. In addition to the heirs and beneficiaries, certain other persons who it was thought might have a claim to some interest in the estate were made parties, and within apt time a guardian ad litem was duly appointed for the minor defendants. Certain of the defendants 'did not. file any answer or other plea, and as to them judgment was rendered by default. All of the other adult defendants answered specifically admitting the allegations of the. complaint and joining in its prayer. An answer was filed by the guardian ad litem specifically denying each allegation of the complaint and praying that the complaint he dismissed. The cause came on to be heard in the Lonoke Chancery Court, and the court heard the testimony of witnesses and rendered a decree granting the relief prayed. ' The court found that due service of process was had upon all of the defendants and specifically against the minors for the time and in the manner prescribed by law, and made special findings of fact in detail that each of the allegations of fact made in the complaint were true, and also made special findings of law and found that the executors and trustees had a lien on all of the real estate for expenses incurred and money advanced in paying the taxes; that the money was properly borrowed and expended as expenses of administration, and was necessary to save and preserve said estate; and that the lien was prior and paramount to all of the rights and interest of all of the parties to the suit and to any creditors of the estate or to any attorney’s fees or other expenses of administration; that they were subrogated to the liens of the State, county and improvement districts to which said taxes and assessments -were paid, and that plaintiff bank, in lending the money to be used for those purposes, became subrogated in turn to the liens of the executors and trustees.
The court further found that by the-order of the probate court the executors were duly and legally empowered to borrow the money to pay the liens aforesaid and to incumber the said real estate, for that purpose, and to execute the note sued on, and that said note constituted an equitable lien on the real estate. The court decreed ‘that the plaintiff was entitled to foreclose its liens and to sell any part of the real estate to satisfy them, and that, if the sums adjudged due were not paid, within twenty days from the date of. the decree, the commissioner named should - proceed to make sale on certain terms and in a certain manner. From this decree the guardian act, litem of the minor defendants has appealed, but it is obvious that it is only for the purpose of com plying with the legal and moral obligations due them and to submit to the court of last resort the findings of law made by the chancellor.
The testimony was undisputed and amply sustains the findings of fact. The debt sued for is admittedly just, and the method adopted in the order of the court is conceded to be most advantageous to the minors; the attorney and guardian for the minors submitting only the question as to whether or not the plaintiffs are entitled to a lien under the doctrine of subrogation or otherwise as decreed by the court. He suggests that in lending the money the appellee bank was a volunteer and not entitled to subrogation under the doctrine announced in Hughes Co. v. Callahan. 181 Ark. 733, 27 S. W. (2d) 509. The suggestion is further made that the order of the probate court does not entitle the appellee to a lien because the probate court did not authorize, nor did the executors execute, any mortgage as provided in act 195 of the Acts of 1927. It is shown that the estate consisted almost exclusively of real estate in several counties, a large part of which being farm lands and some city property, and there were valuable improvements on the property, the estimated value of the property as improved at the time the proceeding was instituted being $125,000. Most of the property was located in Lonoke County. There was no personal property of any value, and the income from the property had been so depleted by drouth and reduced values of farm products that the executors had no income with which to discharge the taxes due; that, with the exception of these taxes, there were no other debts due by the estate, and it was necessary that the taxes be paid in order to prevent a forfeiture and sale of the property for delinquent taxes. With this situation confronting them and after having secured the authority of the probate court, the executors borrowed money in the manner above described.
It is clear that the chancery court had jurisdiction, because, as suggested by counsel for the appellee, the case involves the foreclosure of a lien and the exercise of the equitable doctrine of subrogation, and, as it was proved that the executors had no personal property belonging to the estate of any value in their possession, and that there was no income from the property, it was entirely proper for the court to make ah order for a sale of the property, as this was necessary to the execution of the purposes of the trust and protection of the estate and beneficiaries thereunder. The executors and trustees were under a duty to pay the taxes to prevent forfeitures and tax sales, and the payment of these taxes was an expense of administration for which the executors were entitled to reimbursement. Section 10,053 Crawford & Moses’ Digest; 39 Cyc. 337-45. As stated by counsel for the appellee, it is the general rule where one lends money to an- executor which money is applied to pay debts or otherwise for the benefit of the estate, he takes the place of the executor in so far as his right to be subrogated to the representative’s lien and to his right of reimbursement from the estate. 24 C. J. 71; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593. The facts in the case show that the appellee in lending the money to the executors did not act as a volunteer. It was understood between the representative of the appellee and the executors that the money was loaned for the purpose of paying the taxes, and that it was to be subrogated to all the rights and liens that the executors had in paying the taxes, and' to evidence this the appellee required the physical delivery of the tax receipts to it for the purpose of attaching them to the note.
In Hughes v. Callahan, supra, cited by the appellants, a mortgage debt was paid off at the request of the mortgagor, the court holding that under these circumstances the one paying the debt was not a volunteer, and that he was entitled to be subrogated to the mortgage lien. In Rodman v. Sanders, 44 Ark. 504, 507, cited by appellee, the court adopted the principles stated in Sheldon on Subrogation, §§ 243-247, to the effect that one who pays a debt at the instance of the debtor is not a volun teer, and if, when he makes the payment, he manifests an intention to keep the prior lien alive for his protection, he will bo deemed in equity a purchaser of the incumbrance. And in Stephenson v. Grant, 168 Ark. 927-931, 271 S. W. 974, the rule is stated as follows: “One who advances money to pay off an incumbrance on realty at the instance either of the owner of the property or the holder of the incumbrance either on the express understanding- or under circumstances from which an understanding will be implied that the advance made is to be secured by a first lien on the property, is not a mere volunteer.” See also Davis v. Pugh, 81 Ark. 253, 99 S. W. 78; Stoops v. Bank, supra.
We are of the opinion, therefore, that the trial court properly decreed that the appellee was subrogated to the tax liens and that the same were prior and paramount to all other claims against the estate and it was entitled to have the said liens fixed upon the lands of the estate and that the same be sold to satisfy said lien’s.
It is unnecessary to decide the legal effect of the order of the probate court, and the action taken pursuant thereto, as the appellee is entitled to the relief prayed under the general rule and independent of the statute.
The decree is affirmed. | [
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Kirby, J.,
(after stating the facts). The larv designates all creditors of a failed bank, of which the bank commissioner has taken charge, as either “secured creditors, prior creditors or general creditors;” and in act 107 of 1927, § 1, defines a prior creditor as follows:
“(5) The beneficiary of an express trust, as distinguished from a constructive trust, a resulting trust, or a trust ex-maleficio, of which the said bank was the trustee, and which was evidenced by a writing signed by said bank at the time thereof.” The instrument cre-^ ating the express trust of the funds deposited in the bank and naming the American Trust Company as trustee, defining its powers and duties as such, was accepted in writing by said American Trust Company in accordance with the terms thereof, and the bank’s record of the transaction shows it as a trust fund, and that the trust was being executed by the trustee in accordance with the terms of the instrument creating it.
It is true the amount of money set aside for this trust was already in the bank at the time of the execution of the agreement creating the trust duly accepted by the bank, but the instrument was as effectual to create an express trust as though the money had been checked out and redeposited. It is likewise true that this trust fund was not a special deposit within the meaning of the provisions of said act classifying creditors entitled to a preference, but neither was it required to be such in order to entitle the beneficiaries to a prior claim, since the express trust constituting the bank trustee was evidenced by a writing signed by the bank at the time prescribing the duties of such trustee.
Taylor v. Street Improvement District, 183 Ark. 526, 37 S. W. (2d) 84, furnishes no authority for holding otherwise, that case being easily distinguishable from the instant case. There the money was placed in the bank to its credit as treasurer of the districts, the districts being allowed to check it out without restrictions, and the districts were not entitled to priority in payment of their claims because no express trust in writing was created at the time, and neither was any special deposit of the funds made within the meaning of the act; the chancellor there having found that they were entitled to such priority because the funds were trust funds of which special deposit was made.
The act provides all prior creditors as defined in the act, not specified in the exception, “shall have such priority to the extent that they, respectively, may specifically identify their property in its original or traceable form into the hands of the Commissioner, and, if unable so to identify such property, to the extent that the assets in the hands of the Commissioner, in the form of the lowest amount of cash on hand, exclusive of deposits in other banks and all other assets, remaining in said bank continuously after their said respective priorities arose, where necessarily increased by such property, such cash on hand being deemed to have been so increased to the extent of any priorities which may be acquired under classification number (7) as hereinabove set forth, and if such cash on hand is not sufficient to pay all such prior creditors in full the same shall be prorated among them.” The balance of any such claims that can not be so paid in full to be paid as the claims of general creditors of the bank. Act 107 of 1927, p. 301.
The trust fund was not a special deposit, the actual cash being used by the bank as other funds regularly deposited therein, and could not be specifically identified in the hands of the Commissioner, and is to be paid along with the claims of such other prior creditors out of the fund as designated in the statute, and the balance, if said fund is not sufficient to pay all such claims, to be paid as the claims of the general creditors of such bank.
It necessarily follows that the court erred in holding otherwise, and the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion holding said claims entitled to prioritv of payment along with such other prior claims or creditors under the terms of said act. | [
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Butler, J.
This suit was brought in the Phillips Circuit Court by the appellee, as administratrix of the estate of T. S. Mason, for the benefit of herself as widow and for the minor children to recover damages arising from the death of the intestate, which occurred while he was in the employ of appellant and while engaged in the performance of his duties. On a trial of the case the appellee recovered verdict in the sum of $25,000, and from the .judgment entered in accordance with the verdict this appeal has been duly prosecuted.
The court gave nine instructions at the request of the plaintiff, the defendant (appellant) contenting itself with the request for a peremptory instruction. The principal ground urged for reversal and argued by the appellant is for the failure of the court to direct a verdict in its favor, the contention being that there was no substantial evidence to sustain the allegations of the complaint or to warrant the instructions given to the jury at 'the request of the plaintiff.
The following facts were either admitted or established by the undisputed testimony: T. S. Mason was a veterinary surgeon, 42 years old, living in Helena, where he had practiced his profession for a number of years until some time in 1930, when, owing to the general business depression, his practice fell off so much that he was forced to do something else for a living. Before this time he had done a lucrative business, and for the seven years preceding 1930 his income from the practice of his profession had averaged in excess of $5,000 a year, all of which he contributed to his family except about $25 or $30 a month which he used for his personal expenses. 'Sometime in September, 1930, Dr. Mason secured employment with the appellant company as a helper to the night engineer in charge of the boiler room. Among other things it was his duty to keep the boilers properly supplied with fuel. This fuel consisted of sawdust and ground up shavings and refuse lumber accumulated from various parts of the plant and blown into a large cylindrical-shaped bin about fifty feet high, twenty-six feet in diameter at the bottom and twenty-two feet at the top. The bin terminated at the bottom in a hopper with the sides of the same sloping upward to where it met the cylinder at an angle of 45 degrees. This hopper was about eight feet square at the bottom. Seated in the bottom of the hopper were three troughs, in which large iron screws or augers revolved, which were about 12 inches in diameter and so arranged that the tops of the screws were about six inches above the floor of the hopper. These troughs and screws extended into another and larger trough, the top of which was covered, and in this top were two doors, which could be lifted up when occasion demanded, and were large enough for a man to enter. At one end of this large trough and right at the hopper was a fan. The other end of the trough extended beyond the bin to the furnace. The fuel accumulated from other parts of the mill was conveyed by large pipes to the top of the bin and blown into it. As it fell to the bottom of the hopper, the fan and screws were put in operation by electric power, the revolving screws carrying the sawdust into the larger trough, where the fan blew it with great force throug’h the large trough to the furnace where it was burned to create steam. At times, when the sawdust was damp and shavings which had not been ground up were conveyed into the bin, the fuel would stick to the sides of the bin and gradually increase in quantity until it would “arch” and prevent the sawdust coming in from the tbp from falling to the bottom of the hopper. Below this “arch” the fuel would fall and be conveyed out, so that frequently a cavity would occur between the fuel accumulated and clogged in the bin above and the floor of the hopper. In order to dislodge this fuel so that it might fall, several plans were adopted; one, to descend from the top of the bin by means of a chair attached to a rope and pulley and loosen the sawdust with a pole; another, to pound the outside of the bin with a hammer which would sometimes dislodge the sawdust; another, to push iron rods from the outside of the bin through small apertures made for that purpose into the sawdust; and still another, to enter the bin from below by raising the doors on the top of the fan trough, crawling in through that trough between the screws into the bottom of the hopper, and from that point to dislodge the sawdust from above by punching it with a pole. To loosen the sawdust by entry from the top of the hopper required two men— one to g'o down in the chair and the other to lower him by means of the rope and pulley.
On the night of October 26, 1930, the fuel in the bin ceased coming through the augers into the furnace, and to unclog the fuel so that it might fall and be conveyed out, Dr. Mason entered the bin from below. He was given a pole by the night engineer, and all of the fuel became dislodged,'falling upon him and completely covering him. An alarm was given, and a rescue was attempted, but before he could be reached and uncovered he had died from suffocation. Dr. Mason had been work-in about six weeks before this occurrence, and it was alleged and admitted that he had had no experience in that kind of work. It was also alleged that it had been the practice in dislodging' the fuel from the bin to direct an employee to enter through the opening at the bottom of the conveyor (or fan trough), and that this was so small that it could not be entered without assistance; that this method of dislodging the sawdust was more expeditious 'but was highly dangerous, and known to be so by the engineer in charge, but not known by Mason. It was alleged that on the night of his death Mason was directed by his superior, the night engineer, to enter through the small opening at the bottom of the bin to relieve the congestion of the fuel for the purpose of enabling it to be fed to the furnace, and that, relying upon the knowledge of his superior, and without appreciating the risk, he entered the bin; that, while inside the bin, he was caught in a slide of sawdust and killed; that his death was caused by the negligence of the defendant’s servant, the night engineer and superior of the deceased, in failing to warn Mason of his danger in entering the hopper, that his death was caused thereby, and that defendant was further negligent in putting the screws and fan in operation while Mason was in the bin, causing them to revolve and grasp his left foot and trouser leg, crushing the foot and preventing him from escaping from the falling sawdust.
• While admitting the tendency of the sawdust to become impacted and to “arch” in the bin, and that entry at the bottom of the bin was dangerous and known to be so by the night engineer, and that it was the duty of Mason to keep the fuel moving toward the furnace, the appellant denied that the deceased entered at the bottom at the invitation or direction of the night engineer or that the latter had put in motion the fan and screws, but contended that the deceased hád been expressly warned of the dangers incident to his work, and had entered the bin from the bottom without the knowledge of the night engineer and in violation of the express command of his superiors, and that, therefore, his death was occasioned by his own negligence and not through any negligence of the appellant.
Boss Smith, appellant’s chief engineer who had employed Mason, testified that he had explained in detail the manner in which the fnel was to be fed to the furnace and the construction of the bin, and had instructed Mason that the congestion of the fuel in the bin was to be relieved only by entering from above in the chair; that he must not enter from below and had warned him of the danger.
John (Monty) Smith, the night engineer under whom Mason was worldng on the night of his death, testified that he had also warned Mason of the danger of entering the bin from below and had directed him not to do so; that he was not present when Mason entered the bin and did not know that he had done so until witness discovered him within the bin at the bottom just before the sawdust fell upon him.
The testimony of Ross Smith was corroborated by that of an employee of appellant who testified that he had heard the warning given by .Smith to Mason regarding the danger attendant upon the bill.
To contradict this testimony and to establish her allegation, the plaintiff relied largely on circumstances proved. The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. St. Louis, I. M. & So. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171; St. Louis, I. M. & So. Ry. Co. v. Owens, 103 Ark. 61, 145 S. W. 879; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S. W. (2d) 383.
The circumstances relied on by the appellee are as follows: Cooper, the employee whose testimony corroborated that of Ross Smith as to the warning given, stated that when Ross Smith and Mason went up together on the day of the latter’s employment to the top of the bin, witness was at the bottom hammering on the bin to loosen the sawdust, and when they had descended, Mason came to where witness was and inquired how they got the sawdust down, and was told, “We beat it down, if we could. If we could not, we go up on top and work it down.” Mason asked if that was the place that had been shown him, and was told, “Yes, that is the only place that you can get into the sawdust, ’ ’ and then Mason said, “Do you reckon I will have to go into it?” and was answered, “No, I don’t reckon you will.” These questions were significant of the question whether or not he had beén warned of the danger and had the methods of unclogging the fuel explained to him, and was a circumstance indicating that he had not.
The night engineer and Mason were the only ones who were shown to have been engaged in the operation around the furnace on the night of Mason’s death. The testimony of a witness who had worked for several months in the performance of the same work that Mason did, and who was shown to have been familiar with the situation, was to the effect that it was impossible for one to enter the bin through the fan trough without assistance; that it was necessary for one to hold up the doors of the fan trough when another crawled through; that these doors would fall immediately on being released; that, even with assistance, one could not enter at all when the screws were in motion and the fan operating; that the force of the air from the fan was so strong that it would blow one entering the trough under the boilers. When the body of Mason was uncovered, there was a quantity of sawdust and shavings between it and the bottom of the bin. By the side of the body was the flashlight of the night engineer, and there was a pole in the hands of the dead man. He had on two pairs of coarse trousers or overalls, and both pairs at the bottom of the left leg were torn in several places and hanging in fragments to the remainder of the fabric. When the body was prepared by the undertaker, it was discovered that the big and second toes of the left foot were mashed flat — the nail of the big toe was mashed completely off and that of the second toe nearly so. The foot was bruised, and a quantity of blood had escaped sufficient to soak through the leather of the shoe. There was also testimony to the effect that frequently men would be - sent in at the bottom to dislodge the fuel from above, and that while the employee would be in the bin the fan and feed screws would be put in operation to remove the sawdust as it fell.
According to the familiar rule, this court must give to these circumstances their highest probative value in favor of the appellee and indulge every inference which is reasonably deducible from them in support of the finding of the jury. Gaster v. Hicks, 181 Ark. 297, 25 S. W. (2d) 760. Giving to the above circumstances the force prescribed by the rule stated, we conclude that they come within the principles heretofore'announced, and that there was sufficient evidence to warrant the submission of the'issues to the jury. It is true that John Smith, the night engineer, denied helping Mason into the bin, but there was no one else to help him, and he could 'not have got in without assistance. Therefore the jury might have reasonably concluded that the circumstances refuted the testimony of John Smith, especially when he admitted that he discovered the man inside, and, instead of ordering him out, he gave him a pole with which to dislodge the fuel, and failed to give any satisfactory explanation as to why his flashlight was found in the possession of the deceased. There was no direct testimony as to whether or not the fan and screws were put in motion after Mason entered the bin, but, as it was impossible for him to enter while they were in motion, the injury to his foot must have happened after he. had entered the bin, and the jury might have reasonably inferred that these screws and fan were put in motion after Mason’s entry, and that in endeavoring to escape from the falling sawdust his foot and trouser leg were caught in the revolving screws, which prevented his egress through the point of entry. In removing the body, care was taken not to injure it, and it might be well believed from the quantity of sawdust found between the body and the floor of the bin that, when Mason’s injury occurred, he began struggling upward in an effort to rise above the sawdust, in which effort he almost succeeded, for it is shown that there was only about three or four feet of sawdust above him and almost an equal amount below.
Instructions Nos. 4, 6 and 7 for the appellee are the only ones of which appellant complains in its brief, on the ground that they were “not supported by any testimony of any character.” Instruction No. 4, in effect, told the jury that if the deceased entered the fuel container, and while therein the screws and fan were started in motion, and this was in any manner the proximate cause of the death, and this could have been foreseen in the light of the attendant circumstances, and the deceased at the time was not guilty of contributory negligence and had not assumed the risk, the verdict of the jury should be for the plaintiff.
Instructions Nos. 6 and 7 were on the doctrine of assumed risk, and in these instructions it was left to the jury to say whether Mason was acting under the direction of his superior, and they were told that, if this were true, Mason had a right to rely upon the judgment of his superior unless the risk was so obvious that no prudent man would have obeyed the command.
Prom what we have already said, it follows that in our judgment these instructions were not abstract, but had substantial evidence upon which to base them.
It is also urged that the court erred in admitting the testimony of five witnesses, each of whom was called in rebuttal, and it is argued that the purpose for which these witnesses were introduced was to prove the declarations of the employees as to who was responsible for the injury, and that such testimony was incompetent under the rule that “declarations of an employee as to who was responsible for any injury made after its occurrence is incompetent as against his employer, for the reason that his employment does not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his duties of employment.” Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. (2d) 406; River R. & H. Const. Co. v. Goodwin, 105 Ark. 247, 151 S. W. 267.
An examination of the record discloses the fact that this testimony does not violate the rule. John Smith was the first witness called by the appellee. He was asked to tell how and why Mason happened to go inside the bin, and, after denying any knowledge of it, he was asked if it were not a fact that he had told Mason to enter the bin and assisted him to do so. He denied this. He was then asked if he had not made statements of that nature to and in -the presence of various persons who were named. He answered that he had not. He was then excused, and the attorney for the appellee made this announcement to the court: “I presume it would be proper at this time — if not, I want to make it clear — that in view of the fact that five or six people — reputable people — have told me of statements that this witness has made that he denied, 1 feel that I have been surprised by his statements, and I expect to introduce these witnesses to impeach him at this time.” No objection was made to this statement or to the indicated conduct in calling witnesses for the purpose of impeachment, and, after having called several witnesses who testified for the appellee, five witnesses were called in rebuttal of the testimony of John Smith and to impeach his testimony. The testimony of these witnesses was expressly introduced for, and limited by the court to, purposes of impeachment only, and the jury was instructed not to consider the evidence as affirmative testimony on the part of the plaintiff, but only as to the credibility of the witness whose testimony was sought to be impeached. It is the contention of the appellant that the testimony of these witnesses was improper, first, “for the reason that it tended to impeach the testimony of a witness called by the plaintiff herself; in the next place, it contradicted a witness on a matter of evidence that was wholly inadmissible for any purpose.” We do not agree with the appellant, bnt think that, since John Smith was the only person who was at or in the vicinity of the bin at the time of the accident, the appellee might well have thong'ht his testimony was indispensable, and from information he had received believed that he wonld testify to a state of facts which wonld impose liability on the appellant, and, when appellee’s counsel discovered that he would not testify as thought, the appellee was then justified in introducing other witnesses to show that he had made statements different from his present testimony. Section 4886, Crawford & Moses’ Digest, provides: “The party producing a witness is not allowed to impeach his credit by evidence of bad character unless it is a case in which it was indispensible that the party should produce him, but he may contradict by other evidence and by showing that he has made statements different from his present testimony.” The testimony offered in rebuttal was therefore competent. Ward v. Young, 42 Ark. 553; Roy v. State, 102 Ark. 691, 145 S. W. 190; Midland Valley R. R. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250; Jonesboro-Lake City R. R. Co. v. Farner, 112 Ark. 447, 166 S. W. 571; Graves v. Gardner, 137 Ark. 197, 208 S. W. 785. There can be no doubt that the testimony sought to be elicited from the witness was competent. It was not a declaration sought to be established by the testimony of another, but merely the narration of what the appellee had been led to believe had actually occurred.
■ Since all the questions were fully and fairly submitted to the jury by proper instructions, and there is substantial testimony to sustain the verdict, the judgment must be affirmed. It is so ordered. | [
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McHaney, J.
These separate appeals have been consolidated in this court, as they involve substantially the same questions for determination. . In each case there was a verdict and a judgment for $2,000 with interest, 12 per cent, penalty and an attorney’s fee of $500 on certificates of life insurance containing a clause providing that sum would be paid in case of total permanent disability of the insured before arriving at a certain age. In case 2366 the questions presented are (1) that the hypothetical question asked certain expert witnesses was improper; (2) that no penalty and attorney’s fee should have been assessed; and (3) that the attorney’s fee allowed was excessive. In case 2365, the questions argued are the same with the exception that no hypothetical question is involved. No question is raised as to the sufficiency of the evidence to support the verdict nor as to any instruction. We will discuss the issues in the order above stated.
Relative to the hypothetical question propounded to the expert witnesses, several objections were made to it, some of which the court sustained, and others overruled. We think it unnecessary to copy the question in this opinion as it is lengthy. It recites a history of his physical condition and seeks the opinion of the expert witnesses as to the character of ailment from which appellee is suffering. In the history of the case recited in the question, the following was objected to: “That examining physician suspected plaintiff was suffering from toxic poison from some source, caused by an infected tooth, and suspected he suffered from myocarditis, and treated him for same, prescribing digitalis, a heart stimulant.” This was based on the testimony of a non-expert physician, and was his diagnosis of the trouble. We think this not objectionable on the ground that it called for the opinion of the witness based on suspicions and conclusions of other witnesses or of other expert witnesses. Of course, it is not proper to incorporate in hypothetical questions the opinions of other expert witnesses, as facts and not opinions must be assumed in them. It is necessary to include the undisputed facts, and the facts assumed to have been established by the party propounding the question may be included, if relevant. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120. Dr. Atkinson testified to the above facts, but not as an expert. The experts were not asked to base their opinion on the opinion of Dr. Atkinson, but on the facts as related by him. We think the other objection relating to an examination of appellee in the Missouri Pacific Hospital in 1925 is without merit. This fact was established by evidence not objected to, and could not have been prejudicial because too remote. It does not appear from appellant’s abstract that objection was made to the question on this ground, and, therefore, it is unavailing here. We conclude that the objections made to the question were properly overruled.
It is contended in both cases that the 12 per cent, damages and attorney’s fee were erroneously assessed, and that under § 6155, Crawford & Moses’ Digest, no damages and attorney’s fee should be assessed where defense is made in good faith and refusal to pay is based upon an honest and fairly debatable difference of opinion as to the law involved. It is conceded by appellant that this court has already taken a contrary view of the matter in Security Ins. Co. v. Smith, 183 Ark. 254, 35 S. W. (2d) 581, and, it is insisted, as thus construed, the above statute runs counter to,, the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. "We do not ag-ree with appellant in this reg-ard, and we think the Supreme Court of the United States has decided the question adversely to appellant’s contention. Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308. 22 Sup. Ct. 662; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126. Both of these cases construed the Texas statute, which is substantially the same as ours — requiring- life and health insurance companies who shall default in payment of their policies to pay 12 per cent, damages, together with reasonable attorneys’ fees, not to be in violation of the Fourteenth Amendment. In the latter case, Mr. Justice McKenna, sneaking- for the court, said: “Notwithstanding our decision in Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308, 46 L. Ed. 922, 22 Sup. Ct. 662, the plaintiff in error urges the unconstitutionality of the Texas statute, authorizing the recovery of damages and attorneys’ fees for failure of life and health insurance companies to pay losses. We are, however, entirely satisfied with the case and its reasoning. ’ ’ See Hartford Fire Ins. Co. v. Wilson & Toomer Fertilizer Co., 4 Fed. (2d) 835, certiorari denied 268 U. S. 704, 45 S. Ct. 639.
Moreover, this statute is a part of the insurance laws of this State and has been since 1905. It is one of the conditions under which insurance companies are author ized to do business in this State, and, by transacting business here, such companies impliedly at least agree to be bound by the act. Fidelity Mutual Life Ins. Assn. v. Mettler, supra; American Fire Ins. Co. v. King Lbr. Co., 250 U. S. 2, 39 S. Ct. 431.
In case 2365 appellee prayed judgment for $2,000 and interest from April 18, 1930. There was a judgment for $2,000, and the court allowed interest from December 3, 1930. Appellant contends that, since the demand was for more than the recovery, no damages and attorney’s fee should be assessed under the rule announced in Pac. Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, and numerous other cases since that time. We think the court correctly allowed the damages and fees in this case, as appellee recovered the full amount of the policy, the amount demanded, and-the court determined the amount due as interest. Interest followed as a matter of law on the amount recovered from the date appellant should have paid.
We think the allowance of attorney’s fees in both cases excessive when considered in comparison with allowances made in former similar cases. See Mut. Life Ins. Co. v. Owen, 111 Ark. 554,164 S. W. 720; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310. Numerous other cases might be cited. The rule has been to allow about 10 per cent, of the amount of the recovery, but here there appears to have been considerable work done in the preparation and trial of the cases and we have reached the conclusion that 15 per cent, of the recovery, or $300 in each case, will be reasonable compensation.
We therefore modify the judgment in each case in this respect, and, as modified both will be affirmed. | [
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Smith, J.
On February 27,1928, the probate court of Sevier County, Arkansas, appointed L. D. McCown as guardian of Helen Marjorie Kiser and Elmer Kiser, minors. On March 28, 1928, McCown received $1,500 for the'use of each ward, which he deposited on the same day in separate savings accounts with the Bank of DeQueen, of which institution he was the president. The money remained on deposit, less certain expenses of maintenance and support of the minors, until October 4, 1929, when McCown applied for authority to lend the money to a bank on interest at four per cent., to be paid semiannually. The petition for this order recited the inability of the guardian to obtain satisfactory loans to be secured by real estate, and, upon hearing the petition, the probate court found and ordered “that it would be better and safer for the guardian to continue for the present and until the further orders of this court to lend the money of his wards to a bank at the customary rate of 4 per cent, per annum, and that such disposition of such funds would be more profitable to the estate than the purchase of government bonds.” Upon this finding it was ordered that the guardian lend the money to a bank at four per cent, “until such time as the court may by proper order direct him to invest the same in real estate, as provided by law.”
Thereafter the guardian appears to have allowed the money to remain on deposit in the bank of which he continued to be president, and upon which he regularly collected interest, calculated at four per cent., semi-annually. He made reports thereof in his annual settlements, which were approved by the probate court.
These deposits remained in the bank until it closed its doors on July 15, 1930, -when it was taken over by the State Banking Department as an insolvent institution.
On September 8, 1930, the probate court made an order removing McCown as guardian of each of the wards, and appointed E. K. Edwards as his successor, and, after ascertaining the amount due each ward, respectively, directed McCown to pay over the money so found due to his successor. McCown failed to comply with this order, whereupon suit was brought by Edwards as guardian for the use of each minor against McCown and the surety on the guardian’s bonds.
An answer was filed by McCown and his surety, which did not question the amounts alleged to be due the respective wards, but which did deny any liability therefor, for the reason that the guardian had disposed of the money as directed by the probate court, and he claims immunity from liability by virtue of the orders of the probate court.
Conflicting testimony was offered at the trial from which this appeal comes as to whether safe loans of this money might have been obtained with real estate as security, and McCown testified that he considered the deposit of this money in the bank as the safest and best disposition he could make of it. He testified that he regarded the bank as solvent,- even at the time the decision was reached by himself and other officers of the bank to close its doors. He testified that the depositors commenced withdrawing their deposits in an unusual manner, and that this run continued in increasing volume for several days, and that the bank was unable to meet these unusual withdrawals, and that on the afternoon of July 14, 1930, the decision was reached not to reopen the bank on the following day, and it did not reopen the next day. At the time the bank closed its doors there was on hand in cash a sum of money in excess of the joint'deposits of his two wards, but Mc-Cown did not withdraw these deposits, for the reason, as stated by him, that he believed the bank would later be able to reopen for business.
Judgment was rendered in the court below against McCown and his surety for the amount of these deposits, and this appeal is from that judgment.
Various reasons are assigned for the affirmance of this judgment, but we discuss only one of them, as, in our opinion, it is conclusive of this case. McCown deposited this money as soon as he received it, and allowed it to remain on deposit until October 4,1929, when he obtained the order to lend it to the -bank, yet nothing was done to change the relation of the bank to this money. It continued as an ordinary deposit. Of course, this deposit created the relation of debtor and creditor, but the court’s order -contemplated something more should be done, and that was that a loan of this money should be made to the bank. There is a vital distinction between a loan to a bank and a deposit with a bank. In one ease security may be, and usually is, exacted. In the other security may not be given by the bank. The power of a bank to borrow money and to give security for it is unquestioned; while the power of a bank to give security for an ordinary deposit has been expressly denied. The difference between the power of a bank to secure a loan as distinguished from the power to secure a deposit was pointed out in the case of Arkansas-Louisiana Highway Imp. Dist. v. Taylor, 177 Ark. 440, 6 S. W. (2d) 533. We there quoted from Divide County v. Baird, 55 N. D. 45, 212 N. W. 236, 51 A. L. R. 296, as follows: “The doctrine that there is no difference between a loan and a deposit we cannot accept in all its implications. It is true that in law the two transactions have many characteristics in common; but so have other business deals which, nevertheless, are not identical in all their legal incidents. The striking fact remains, a fact which this court cannot ignore, that a real difference between a deposit and a loan has always been assumed, as a matter of custom, in the banking business itself, and in all legislation dealing with the subject since statehood.”
We do not again review the authorities, as the conclusion of the court is declared in the fourth headnote in the case above cited, which reads as follows: “While a bank may pledge its bills receivable to secure loans, it may not do so to secure deposits.” That holding was reaffirmed in the case of Arkansas County Road Imp. Dist. No. 5 v. Taylor, ante p. 293.
It is not the policy of the law to permit a guardian to loan the money of his ward without security. There is a mandatory statute to the contrary. By § 5059, Crawford & Moses’ Digest, it is provided that “* * * such guardian shall, under the direction of the court, loan the same to such person as will give good security therefor, and such money shall be loaned on such time as the court shall direct.”
Preference is given by § 5061, Crawford & Moses’ Digest, to loans on real estate, and direction is there given to make loans that “can be obtained on unincumbered real estate security, and then not more than to the extent of one-half of the value thereof.”
If such loans, approved first by the guardian and thereafter by the court, cannot be obtained, the guardian may, if so directed by the court, deposit the funds of his ward in a bank, provided interest is agreed to be paid at a rate which is as high or higher than can be obtained- on bonds of the United States. Lee v. Beauchamp, 175 Ark. 716, 300 S. W. 401.
The guardian must not only act in good faith, but he must act pursuant to the orders of the probate court. In discussing this duty, it was said in the case of Parker v. Wilson, 98 Ark. 55-3, 136 S. W. 981, that: “The statute contemplates that it shall be done under the direction and orders of the probate court. It is true the guardian may assume the responsibility and loan it without an order of the court, but in such case he acts at his own peril. If he imprudently loans the ward’s money upon inadequate security, without having first procured an order of the court to loan it, he must suffer the loss occasioned thereby, even though he may have -acted honestly in the matter.” See also Alcorn v. Alcorn, 183 Ark. 342, 35 S. W. (2d) 1027.
In the case of Lee v. Beauchamp, supra, where the guardian was held liable only for the amount of interest received from a bank upon the deposit therein of his ward’s money, the facts were that the guardian had endeavored to obtain real estate loans for his ward, and the court had refused to approve applications for real estate loans which he had received, and, failing to obtain such loans, the guardian had deposited the money in bank, upon which the interest paid “was as high, or probably higher rate of interest than would have been obtained if the funds had been invested in United -States bonds.” Section 5066, Crawford & Moses’ Digest.
In the case of Harper v. Betts, 177 Ark. 977, 8 S. W. (2d) 464, 60 A. L. R. 484, the facts were that the deposit in a bank believed to be solvent was made “until he (the guardian) could obtain an order of court with reference to the disposition thereof.” But within three weeks after the deposit was made, and before any other disposition of the funds could be made and approved by the court, the bank failed. Under those circumstances, we held it would be unreasonable to charge the guardian with neglect of duty or failure to comply with the law.
Here, however, the guardian made an ordinary deposit of the money of his wards in a bank of which he was president, where it remained without any authority of the probate court from March 28,1928, the date of the deposit, until October 4,1929, when he obtained the order of the court to lend the money to the bank. Thereafter the character of the transaction as a deposit, and not a loan, as the probate court had directed, remained unchanged, and the guardian- — the president of the bank— allowed the deposit to remain in the bank, although he knew its failing circumstances and did not withdraw the deposits after the decision had been reached not to reopen the bank the following day, although the bank had sufficient funds on hand the day before it closed to have paid these deposits.
Under these facts we conclude that the court below was warranted in finding, as it did find, that the guardian had not sufficiently complied with the law and the orders of the probate court to be granted immunity from the loss of the money of his wards, and the judgment of the court below must be affirmed, and it is so ordered. | [
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Butler, J.
In 1925, W. O. Perkins & Son brought suit against Evelyn S. Wilson, who at that time was the owner of a parcel of land, alleging that the defendant was justly indebted to them in the sum of $56.86 for lumber and building material sold and delivered to the defendant and 'used in the repair and improvement of the parcel of land, and that within ninety days from the date of the last item purchased they had filed a lien on the property and prayed for judgment for the amount of the debt, and that the property be ordered sold in satisfaction of the judgment. Answer was fileid by Evelyn S. Wilson, and at the trial of the case the court rendered a decree adjudging the defendant indebted to the plaintiff in the sum sued for, and further that the suit was not filed within the time prescribed by law for the enforcement of liens, and denied that part of the prayer of the complaint asking that the property be sold. The judgment remaining unsatisfied, a writ of garnishment was issued on September 14,1931, and properly served on the Southwestern Gas & Electric Company, but no allegations or interrogatories were filed at that time or thereafter.
The garnishee answered stating that it did not have in its hand or possession on or after service of the writ any moneys, goods, chattels or any other property of any kind, nature or description belonging to the defendant, Evelyn Wilson, and, continuing, it answered that ‘ ‘ said garnishee states, however, that the records of said company show that the said Evelyn S. Wilson owns nine shares of the par value of $100 each preferred stock of said company with no maturity date; that, so far as the records of said company shoAV, said stock is still OAvned by the said defendant.”
No denial to the answer was filed by the garnisher and on the 19th day of January, 1932, in the case of W. O. Perkins & Son v. Evelyn S. Wilson, defendant, and Southwestern Gas & Electric Company, garnishee, the court entered the folloAving- judgment:
' “ On this day this canse came on to be heard upon the interrogatories propounded to garnishee by plaintiff and upon the answer herein filed by garnishee showing that defendant held preferred stock in defendant garnishee company of the par value of $900 and that said stock was issued in her name. The court finds that a writ of garnishment was issued against defendant garnishee at the instance of plaintiff, and that defendant garnishee’s answer is filed in response to said writ.
“Upon the proof adduced, and upon the answer of defendant garnishee herein filed, the court finds that defendant garnishee has in its hands personal property belonging to defendant in the sum of $900, and that by reason thereof plaintiff is entitled to judgment against defendant, and that, upon payment of said judgment to plaintiff by defendant garnishee, defendant garnishee shall be entitled to reimburse itself out of said personal property so held by it.
“Wherefore it is the judgment of this court that plaintiff have judgment against defendant garnishee in the sum of $99.47 with interest thereon at the rate of 6 per cent, from September 14, 1931, until paid; that defendant garnishee have judgment against defendant in the same amount; that, in order to collect its said judgment, defendant garnishee is hereby authorized to deduct the amount of same from the value of the personal property held in its hands belonging to defendant.”
The record in that case has been certified to this court for review, it being insisted by the appellant that the judgment is void for three reasons which appear on the face of the record, as follows:
“1. That the original ‘ judgment upon which the judgment by garnishment against appellant was rendered is void for want of jurisdiction.
‘‘ 2. That the judgment by garnishment against appellant is erroneous because it was rendered without allegations and interrogatories.
“3. That the judgment is void and reversible because on its face it appears that it was rendered solely on the garnishee’s (appellant’s) answer.”
We are of the opinion that the first and second grounds urged for reversal are without merit, but, since we think that the third ground is well taken, it is unnecessary to state our reasons for our conclusion as to the first and second grounds.
It is insisted by the appellee that, because of the recitals in the judgment that the court based its finding <£upon the proof adduced and upon the answer of the defendant garnishee filed herein,” the case must be affirmed, as it is here without a bill of exceptions or a record of the evidence, and therefore the conclusive presumption is that there was evidence to support-the finding and judgment of the court. Appellee argues that this court cannot know what the evidence was, but the judgment shows upon its face that there was some evidence, and that it must be presumed that this evidence showed that the garnishee (appellant) had in its hands and possession personal property belonging to the defendant of the value of at least $99.47, and that by reason thereof the plaintiff was entitled to a judgment against the garnishee, notwithstanding the garnishee answered that it had no such money or property in its possession belonging to the defendant.
Appellee overlooks the fact that they did not file any denial to the answer. If they had deemed the answer untrue or insufficient, they might have denied the same and caused such denial to be entered on the record, § 4912, Crawford & Moses ’ Digest, and, having failed to do this, the garnishee’s answer is conclusive of the truth of its allegations. Beasley v. Haney, 96 Ark. 568, 132 S. W. 646. Hence no proof could have been adduced tending to controvert the answer or to show that appellant had in its hands any goods, chattels, moneys, credits and effects or other property belonging to the defendant. In fact, when the judgment is scrutinized considering all of its parts, the inference is inescapable that the court based its judgment on the information contained in the answer that the records of appellant company showed that Evelyn S. Wilson owned nine shares of the preferred stock of the company of the par value of $100 each, and this must have been the property it found to be in the hands of the appellant belonging to the defendant, Evelyn S. Wilson.
The statute prescribes the manner in which shares of stock belonging to a judgment debtor may be reached by the creditors. This appears to us to be the exclusive remedy, and garnishment will not lie.
If the appellee is so advised, it may proceed against the shares of the stock in the method pointed out by the statute for the collection of its debt. The decree of the trial court is reversed, and the garnishment is dismissed. | [
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McHaney, J.
Appellees, twelve separate and distinct landowners, brought this suit in one action for the cancellation of twelve separate and distinct conveyances of mineral rights under their respective parcels of land situated in Johnson County, Arkansas, on the ground of misrepresentation and fraud in the procurement thereof. The conveyances were made at different times by separate instruments. Eleven of them were made to appellant Catlett, and one to appellant Vance. They were procured by the other appellants acting separately. Appellants filed a motion to strike improperly joined causes of action and to require appellees to elect, which the court overruled. They then demurred on several different grounds, which vas also overruled. They then filed a motion to dismiss for misjoinder of cause of action, which was also overruled. Thereafter appellant Catlett filed a separate answer, denying that any fraud was practiced on any of the appellees, in procuring- the conveyances, by him or his codefendants, - and alleged that each of the grantors in the instruments of conveyance had full knowledge of the nature of the instrument executed by him, and that it was executed voluntarily' for the purpose of conveying the rights purported to be conveyed by such instrument, and that it was a valid instrument in his favor. The case was submitted to the court upon the pleadings, and the depositions taken on behalf of appellees, from which the court found in their favor and entered a decree canceling all the separate instruments mentioned in the complaint.
The record in this court is incomplete. The decree of the court recites that it was heard upon depositions taken on behalf of appellees. These depositions are not brought into the record by bill of exceptions or otherwise. There is a conclusive presumption therefore that the evidence before the court was sufficient to support the findings and decree of the court. Dumas v. Crowder, 178 Ark. 143, 10 S. W. (2d) 43; Franklin County v. Smith, 178 Ark. 666, 11 S. W. (2d) 446.
It is urged, however, that the court erred in failing to dismiss the complaints on their motion so to do on misjoinder of causes of action, and that the demurrer was improperly overruled. Conceding for the sake of argument that the causes of action were improperly joined, such misjoinder did not and could not prejudice appellants in any manner, since, if separate causes of action had been instituted, it would have been proper to have consolidated them for trial and heard them together. Section 1081, Crawford & Moses’ Digest, provides: “When causes of action of a like nature or relative to ' the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”
These actions, if they had been brought separately, were against the same parties, were of a like nature, and all related to the same question, and would therefore have been subject to consolidation for trial. St. L., I. M. & S. R. Co. v. Broomfield, 83 Ark. 288, 104 S. W. 133; Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225; Van Troop v. Dew, 150 Ark. 560, 234 S. W. 992. In the two cases last cited it was held that it was not prejudicial error to join several causes of action having sufficient identity to justify consolidation under § 1081 of the Digest, supra. Many other cases might be cited to the same effect.
As to the demurrer, it is argued that the allegations of the complaint were insufficient to show fraudulent misrepresentation in law. The complaint alleged in each case that the appellants represented to each grantor that he was signing a lease for oil and gas to the tract of land conveyed and persuaded them to sign an instrument which turned out to be a mineral deed and not an oil and gas lease. It was further alleged that the conveyance was wholly without consideration. We think this was sufficient allegation to state a cause of action for fraud and deceit in procuring the execution of the instruments, and not open to demurrer. Appellants answered, denying any fraud or misrepresentation, but the proof in this regard is not before us.
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¡Butler, J.
On January 17,1931, petitions were filed with the county board of education of Miller County, signed by 2,858 persons purporting to be qualified electors of the territory affected, asking- that the boundaries of Texarkana Special School District'be so changed and extended as to bring within the boundaries of said district all of the territory comprising- and constituting Consolidated School District No. 2, Rural Special School District No. 19, and Common School District NA. 12. On the same day a remonstrance to the petitions was filed with the board, and on that date by consent of all parties the matter was passed until January 24, 1931. On that day, at the request of the petitioners, the board passed said matter and set it for hearing and trial for the 7th day of March, 1931. The notices required by law to be given in such proceeding’s were first posted on the 29th day of January, 1931. It is conceded that the notices were in proper form and posted in the manner required by law.
On appeal to the circuit court from the order of the county board of education granting- the prayer of petitioners, the petition was dismissed, and the order of the court directed to be certified to the county board of education to the end that the order of consolidation theretofore entered by it be set aside and annulled. On appeal to this court, there is but a single question presented: was the notice posted within apt time? It is the contention of the appellants that the notice required can be given either before or after the filing of the petition, while the appellees urge, and the circuit court found, that the notice must be posted before the filing of the petition asking for the consolidation.
The law making provision for the giving of notice is found in § 8821 of Crawford & Moses’ Digest, and is as follows: “"When a change is proposed in any school district, notice shall be given by parties proposing* the change by putting up handbills in four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district. All of said notices to be posted thirty days before the convening of the court to which they propose to present their petition. Said notices shall give a geographical description of the proposed change.”
This statute was written at a time when the jurisdiction relating to the dissolution or change of boundaries of school districts lay in the county court. The act creating the county board of education changed the tribunal authorized to act and not the method of procedure. Therefore, the requirements of the notice remain now as before, the only difference being that “county board of education” is to be substituted for “court.” Mitchell v. Directors School Dist., 153 Ark. 50, 239 S. W. 371.
It is insisted by the appellants that this court has virtually construed § 8821, supra, in conformity with their view. They cite Rural Special School District No. 11 v. Baker, 144 Ark. 397, 222 S. W. 732; Acree v. Patterson, 153 Ark. 188, 240 S. W. 33; Nathan Special School Dist. No. 4 v. Bullock Springs Special School District No. 36, 183 Ark. 706, 38 S. W. (2d) 19, and Priest v. Moore, 183 Ark. 999, 39 S. W. (2d) 710; and call attention to the facts of those cases by which it appears- that the notice was given after the filing of the petition, and they argue that, since each of these cases held that the notice was sufficient and properly given, the question in the case at bár was settled by the court according to their contention now made. On the .contrary, the- appellees take the position that the question was settled according to their view in the case .of Lewis v. Young, 116 Ark. 291, 171 S. W. 1197. A careful review of these- cases and the points therein decided does not sustain either the appellees or the appellants in their respective views.
The point for decision in the case of Rural Special School District v. Baker, supra, was the sufficiency of the petition, and the question of the time in which the notice - should be filed was not involved. So, in Mitchell v. Directors, etc., supra, there was no question before the court as to the time when notice should be given. In that case the court merely held that the section requiring notice to be given was not repealed by subsequent legislation, and that the notice required was jurisdictional. In Acree v. Patterson, supra, practically the same question relating to- the notice was before the court as in the Mitchell case. In Nathan Special School District v. Bullock Springs Special School District, supra, the sufficiency of the notice was questioned merely on the ground that it was signed by four only of those who- had signed the petition, the contention being that the notice to meet the requirements of the law should have been signed by all of the petitioners. In Priest v. Moore, supra, the question -of notice did not arise at all,,the court in that case merely holding that more than one petition on the question of consolidation of school districts might be circulated, and the county board of education might hear them together, and it was within the sound discretion of the board to determine matters necessary to the formation or consolidation of school districts, and its order is subject to review only when arbitrary or unreasonable.
These are the decisions relied upon by the appellants, and it will be observed that in none of them was the- point presented which is now before us.
The case of Lewis v. Young, supra, was an appeal from the order of the circuit court sustaining that of the county court creating a new district from portions of the territory of two districts, No. 3 and No. 64. The notice prescribed by the statute was posted in District No. 3, but there was no notice posted in District No. 64, but all of the electors in District No. 64 signed the petition. The question was, did the fact that all of the electors of District No. 64 signed the petition give the court jurisdiction to take a part of the- territory embraced in that district and transfer it to another district, although no notice had been posted as required by the statute? The court held that the giving'' of the notice was a prerequisite to the exercise of jurisdiction by the county court and must be given, even when all of the electors had signed the petition.
We have been unable to find any ease where we have been called to pass upon the question we are now asked to decide. Therefore, none of the cases cited are controlling in the instant case, and we are remitted to the statutes providing for the change, dissolution or consolidation of school districts for a determination of the proposition now involved. 'Section 8821 of the Digest was a part of the act of April 8, 1891, which provided that “the boundaries of school districts in counties shall ■be and remain as now established except that [the] county court shall have power to alter the same whenever a majority of the citizens residing therein shall petition the court so to do; but in all changes due regard shall be had to the convenience of the citizens and all the territory in the county shall be embraced in said school districts.”
By act of April 1,1895, the county courts were given power to dissolve any school district and attach the territory of the same in whole or in part to an adjoining district or districts “whenever a majority of the electors residing in such district shall petition the court so to do.” In the following section of the act it was provided that, “when such dissolution is proposed, notice shall be given by those proposing the same by posters in four public places in the district, said notices to be posted thirty days before the meeting of the term of the court at which such petition is proposed to be presented.”
The act of March 11, 1919, conferred upon county boards of education {% 8823, Crawford & Moses’ Digest), the right to form new school districts or to change the boundaries thereof upon a petition of a majority of all of the electors residing upon the territory of the districts to be divided. At the 1927 session of the General Assembly act No. 156 was enacted amending § 8823, supra, and providing that, “upon a petition being filed with the county board of education signed by a majority of the qualified electors in the territory to be affected, said county board of education of any county within the State of Arkansas shall have the right to form new school districts and to change the boundary lines between any school district heretofore formed where, in the judgment of such board of education, it would be for the best interest of all parties affected, provided, however, that no change shall be made that would impair any outstanding indebtedness of any school district now formed.”
The only requirements for notice are those provided for in the act of April 8, 1891 {% 8821) and in the act of April 1, 1895 (§ 8870) which have been quoted above. It is pointed out by the appellants that in neither of the sections requiring* the giving of notice is there any provision for giving* or posting the notice prior to the filing of the petition, and it is contended that, since the giving of the notice is jurisdictional, if the Legislature intended the notice to be given prior in point of time to the circulation and filing of the petition, it would have so stated in plain words, and, because this was not done, it must be presumed that no such requirement was intended. It will be observed, however, that in none of the legislation providing for dissolution, change or consolidation of school districts is there any time mentioned at or in which the petition shall be filed in the court or before the board, or any specific provision made regarding the time in which the petitions .should be circulated for the signatures of the electors. In order, therefore, to determine the meaning of the provisions of the law requiring the posting of the notice, the; fact that no specific time is fixed for the circulation and filing of the petition becomes important when the purposes for which a notice is given are considered.
The effect of our decision in Williams v. Citizens, 40 Ark. 290, and McCulloch v. Blackwell, 51 Ark. 164, 10 S. W. 259, is that the signing of petitions, such as the one in the instant case, is in the nature of an election an*l equivalent to a vote cast which, after the filing of the petition, becomes irrevocable except for deception and fraud. Nathan Sp. School Dist. v. Bullock Springs Sp. School Dist., supra. In tfiat case we said: “The only purpose the notice serves is to inform those interested of the nature and effect of the proceeding and the date upon which it would be submitted for hearing.” The persons interested are not only those who reside in the territory affected, but those who. might reside elséwhere and own property within the affected territory whose interest may be even greater than many of the electors who actually live therein. Of course, all those who have children are interested and all persons, whether electors or not, who reside within the territory affected.
In the case of Lewis v. Young, supra, after having held that the notice prescribed by the statute was a prerequisite to the exercise of jurisdiction, the court said:
. “This principle of law is recognized by counsel for appellee, but they contend that it is not applicable under the facts in the present case because all of the electors residing in District No. 64 signed the petition and to have given notice would, they say, have been a useless thing. But it may be that property owners within District No. 64 did not reside within the district, and therefore did not sign the petition. They were interested in the question as to whether or not a school district in which their property was situated should be dismembered, and for that reason notice should have been given, so that, in the event they saw fit to do so, they might have used whatever influence they might have had with their tenants and other electors residing within the district to cause them not to sign the petition.”
It appears from this language that the court attached great importance to the right of those interested to prevent, if they saw fit and could do so, the signing of the petition by those with whom they might have influence, and, of course, they would be deprived of this right if the petition had been signed and filed before they had notice that such would be circulated; and, as the filing of the petition concludes the right of with drawal by the signer. except for fraud, his vote would have become irrevocable^ and the notice would be useless for the purpose indicated in the ease last cited. Also,, as the board had discretion to deny the prayer of the petition, although a majority might have signed it, the notice of the date upon which it would be submitted would also be important.
The question presented is one which we find difficulty in answering, but we have concluded that, since the statutes are silent as to the date on which the petition should be filed, the better view is that the Legislature intended that it be not filed before its presentation, and the words “present their petition” were equivalent to the words “filing their petition.” It is argued that the language of the act regarding notice is unambiguous, but we think, when the statute of 1891 is considered as a whole, there is an ambiguity which requires construction, and that we must read the section applicable to the notice in the light of the section preceding. State v. Hanna, 131 Ark. 129, 198 S. W. 881; Rayder v. Warrick, 133 Ark. 491, 202 S. W. 831; Gardner v. Hughes, 136 Ark. 332, 206 S. W. 678.
The decisions of this court in the cases of Williams v. Citizens and McCulloch v. Blackwell, supra, had been rendered prior to the passage of the act of 1891, and the Legislature, in passing this act, is presumed to have known -these decisions, and that the act of signing the petition after the same was filed was irrevocable, and that they acted in the light of those decisions. Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752; Merchants’ T. & W. Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, and intended that the petition be filed as of the date of its presentation and the notice be given thirty days before.
It is argued by the appellants with much force that, since the statement of facts in the cases cited and relied on by them show that the notice was published after the filing of the petition, those decisions inferentially held that the notices with respect to the time limit and the relation they bore to the filing of the petition were sufficient. But, as we have seen, the point in issue here was not before the court in those cases and was not considered or decided. “It is a maxim not to be disregarded that general expressions in every opinion are to be talcen in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Marbury v. Madison, 1 Cranch 137, cited with approval in Cooper v. Freeman Lumber Co., 61 Ark. 36, 31 S. W. 981, 32 S. W. 494.
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Kirby, J.
Appellants brought this suit for the balance claimed to be due under a lease-with-option-to-purchase contract and asked for a receiver to take charge of a crop of corn raised on the premises and sell same, and out of the proceeds pay the debt to plaintiff with costs, etc.
The lease or rent contract was filed as an exhibit to the complaint, and the testimony shows that the lessees had not attempted to carry out the option contract, and it was undisputed that $185 was due under the rent contract. Defense was made on the ground that the lessors had agreed to accept in payment of the rent com at $1 per bushel, and a written memorandum, signed by the lessor, was introduced in evidence, which reads as follows:
“I will pay J. H. Surratt $1 per bushel for good, sound corn delivered to my barn in Conway on this land payment contract to 1933. 4-12-28. W. B. Mills.”
The appellees contended that they had the right to pay the rent in corn, and offered the memorandum in support of it. Appellants denied having given him any such right, and insisted that the memorandum was only an agreement to accept corn at $1 per bushel “on this land payment contract to 1933”; that no corn had been tendered upon the contract for payment of the land, nor had any payments thereon ever been made. There was some other testimony introduced about the meaning of the contract, which was objected to as an attempt to change or vary the terms of a written contract by parol testimony.
The memorandum does not appear to be ambiguous, nor uncertain in meaning, and the court should have construed it in accordance with its obvious meaning, an agreement to accept the corn on the land payment contract. The uncontradicted testimony shows that no payments were made on “the option-to-purchase contract,” nor was any tender made of the corn under said option contract; and the court erred therefore in holding that the memorandum signed by the lessor bound him to the acceptance of corn at $1 per bushel in payment of the rent for the land, and in effect requiring a specific performance of it by him.
The burden of proof was upon appellees, and the court’s finding was contrary to the weight of the testimony.
There is no merit in appellees’ contention that the record does not contain all the testimony heard in the trial. According to the decree and the chancellor’s certificate, it contains the evidence taken in open court in the hearing of the cause, and “the same is by the chancellor found correct” and signed and approved as constituting the bill of exceptions and transcript in the case. It makes no difference that this certificate of the chancellor appears below his signature to the decree and order granting the appeal, since it is in the transcript before the clerk’s certificate of authentication thereof.
The decree is accordingly reversed, and the cause remanded with directions to enter a decree in accordance with this opinion for the amount of the rent due, less the proceeds of the sale of the corn attached. It is so ordered. | [
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Butler, J.
Suit was brought in the municipal court of Hot Springs by the appellee against the appellant to recover on two insurance policies issued by the appellant on the life of Elnore Brooks, appellee being the beneficiary named in the policies. The appellee recovered judgment in that court on June 17,1931, and on the same day the appellant filed its motion and bond for an appeal to the circuit court. The transcript of the proceedings in the municipal court was not lodged in the circuit court until October 30, 1931. A motion to dismiss the appeal was filed, and, upon hearing, the court sustained the motion and dismissed the appeal. The action of the court in this respect is here for review.
The suit was brought in the municipal court under act No. 2 of the Acts of 1917, creating the municipal court in and for Garland County, which act, by § 7, provided that appeals from the municipal court should be taken and the transcripts of appeal lodged in the office of the clerk of the circuit court within thirty days after judgment was rendered, and not thereafter; and by § 8 of said act, the general laws relating to procedure in justices of the peace courts, not inconsistent with the provisions of the act or of the general laws, should apply to proceedings in the municipal court.
One of the prerequisites for an appeal is that the applicant, or some person for him, shall make and file an affidavit that the appeal is not táken for the purpose of delay, hut that justice maybe done him. No such affidavit was made, and the court properly. dismissed the appeal. Merrill v. Johnson, 19 Ark. 647; Middleton v. Clardy, 166 Ark. 342.
The judgment is affirmed. | [
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Hart, C. J.
W. H. Elsass prosecutes this appeal to reverse a judgment on a directed verdict against him in favor of the Southwestern Transportation Company and Jimmie Creason. According to the evidence on behalf of the appellant, he and his son lived about a mile west of Rector, Arkansas, and had a dog killed by a bus belonging to the 'Southwestern Transportation Company which was being driven by Jimmie Creason at the time of the accident on October 24, 1930. The appellant and his son were engaged in driving a cow from, one place to another. They carried along a collie dog to help them. The dog had been trained to. drive stock and was worth $100. Near the scene of the accident the main highway ran parallel with the track of the Cotton Belt Railroad. They drove the cow along- the main highway until they reached a byroad where they desired to cross the railroad. The crossing at that place was blocked by a freig-ht train. The son and the cow remained on one side of the highway, and the father went across the public road to talk with a neighbor who was in a wagon and also waiting to cross the railroad. The dog followed the father and took his place under the wagon. They saw the bus which killed the dog cross a railroad spur and approach them at the rate of ten or twelve miles an hour. After the bus crossed the railroad spur, it traveled somewhat slower. When it was opposite the place where the wagon was on one side of the road and the cow on the other, the dog started back across the highway, and, when near the middle of the hig-hway, was struck by the bus and killed.
The testimony on behalf of the father and son was substantially as above stated. The driver of ’the bus testified that he was driving a Buick coach which was about 18 feet long and 7% feet wide inside the body. It was a twelve-passenger bus. He slowed down after crossing the railroad spur, and saw the cow and boy on one side of the road and two men with a wagon on the other. The dog was under the wagon, and the driver of the bus did not see it any more until it was struck. He slowed down to pass between the cow and the wagon because he didn’t know what the cow or the team, would do. He could not see on the ground near the bus on account of the size of his motor. The dog must have darted suddenly from under the wagon as the bus passed between the wagon and the cow. The wagon was only a few feet away from the side of the road.
The law of the case is stated in Harris v. Hicks, 143 Ark. 613, 221 S. W. 472, where it was held that, in addition to the requirements of o.ur statute limiting the speed of motor cars and requiring the driver to stop on approaching a frightened horse, an automobile driver need exercise only ordinary care in operating his car. In the application of this settled principle of law to the facts of the instant case, we do not think the trial court erred in directing a verdict in favor of the appellees. The undisputed evidence shows that, as^the driver of the bus approached the place on the highway between where the wagon with the team of horses was on one side of the road and the cow on the other, he slowed down in order to prevent an accident from the horses becoming frightened or the cow coming- into the road in front of the bus. When he saw the dog, it was under the wagon, and he could not reasonably anticipate that it would dart suddenly into the road ahead of the bus.
We are of the opinion that the undisputed evidence shows that the killing of the dog was an accident, and that there was no fault on the part of the driver of the bus or on the part of the owner of it. It follows that the judgment of the trial court is correct, and it is therefore affirmed. | [
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McHaney, J.
Appellants and appellee entered into an oral agreement for the handling of cattle in February, 1930, by which appellants were to furnish money to buy cattle and the pasture land for grazing and fattening the cattle on, and appellee was to buy them, put them on the pasture, butcher and sell them as beef on the local market, all at his own expense, and turn the sale price over to appellants, until they were refunded the money paid out for cattle. Thereafter the sales were to be divided equally, and, on a termination of the agreement, no definite time for which being agreed upon, appellants and appellee were to divide the property on hand equally. Acting under this agreement, appellee purchased with funds supplied by appellants some sixty odd cattle, put them on the pasture, fattened, butchered and sold a sufficient amount by November, 1930, to repay appellants all the funds advanced and a small sum in addition thereto. A disagreement arose between them, because of an order appellants gave their agent not to let appellee butcher any more cattle or to remove same from the pasture without an order from them. Thereupon appellee demanded his half of the remaining cattle, which was refused, and this suit followed. A receiver was appointed to take charge of the property, which was by consent ordered sold, and the proceeds deposited in the registry of the court. On a trial the court found that the contract between them was a partnership contract, and that each was entitled to one-half the proceeds of sales including hides, after appellants had been paid the sum advanced, and that each party was entitled to one-half the proceeds of the sale of the remaining cattle which the receiver was ordered to make, each party to pay one-half the costs in that court. Decree was accordingly entered.
For a reversal of the judgment, appellants first insist that the agreement did not constitute a partnership, but only a working agreement or employment of appellee by them, under the decisions of this court in Rector v. Robbins, 74 Ark. 437, 86 S. W. 667, and Kent v. State, 143 Ark. 439, 220 S. W. 814. We think it unnecessary to determine this question, as we are of the opinion that the case was correctly decided by the trial court, whether they were partners or not. All the parties agree that the above-mentioned agreement was entered into, and no time was fixed for the termination thereof. They did operate under it for about ten months during which time appellants were paid back all their investment in money. Thereafter each party had and owned a half interest in the property, and either could terminate the agreement on reasonable notice to the other and divide the remaining property. Whether the -venture turned out to be profitable or otherwise is of no concern to the courts. Nor does it matter who first broke the contract, as either had the right to terminate it at any time.
In this view of the matter, it becomes unnecessary to determine whether the contract was one of partnership or employment, as in either case appellee is entitled to one-half the funds in the registry of the court.
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Kirby, J.,
(after stating the facts). Appellant contends that the verdict is not supported by the testimony, that the court erred in the giving’ and refusing* of certain instructions, and especially in not setting the verdict aside as having been arrived at by lot.
The testimony is in conflict on certain points, but from it the jury could have found that appellee was the guest riding in the car with the negro, and also that the appellant was negligent in not keeping a proper lookout and giving the signals as required by law at the cross ing, notwithstanding the weight of the evidence supported its contention that the usual signals were given. There is no dispute as to the injury or damage, and the testimony is sufficient to support the verdict.
It is next contended that the court erred in not giving appellant’s only requested instruction, which reads as follows:
“You are instructed that, if you find from the testimony in this case that the automobile, on the front seat of which the plaintiff was riding, passed over the track of the defendant ahead of the approaching train in safety, but that the plaintiff, John Steele, jumped out of the automobile on the track of the defendant in front of an approaching train and so near to it that the train could not have been stopped in time to avoid injuring him, the negligence of said Steele in so jumping out of said automobile in front of the moving train was such that it was the sole cause of his injury, and he cannot recover in this action, and your verdict will be for the defendant. ’ ’'
The testimony showed that-appellee was riding in the car with the negro as a guest by his own invitation, it is true, but any negligence of the owner or driver of the car cannot he imputed to him, although he was bound to the exercise of ordinary care for his own safety under the circumstances, and a failure to exercise such care contributing to his injury would have constituted contributory negligence barring a recovery. Graves v. Jewell Tea Co., 180 Ark. 981, 23 S. W. (2d) 972. The requested instruction was virtually a peremptory one, and the court did not err in refusing to give it.
Appellee was required to exercise ordinary care for his own safety under the circumstances, and, if it appeared to him, as it evidently did, that the car was going to be struck by the train, he had the right, of course, to make the effort to get out of the car and avoid the danger, and was not necessarily negligent in attempting to do so, and certainly not guilty of contributory negligence as a matter of law that would bar his recovery, or of negli gence at all, if the jury found, as they might have done, that a person of ordinary care and prudence might have made such an attempt in the emergency. No error was therefore committed in the giving of instruction No. 7.
No error was committed in instructing the jury as to comparative negligence, the instruction given being a correct declaration of the law. Section 8575, Crawford & Moses’ Digest.
Instruction No. 10 is a correct declaration of the law that the negligence of the driver of the car in which appellee was riding as a guest, if the jury found him to be such, could not be imputed to appellee, nor was error committed in the giving of instruction No. 12, which is not in conflict with instruction No. 10, as contended by appellant. No. 10 was given on the theory that appellee was the guest of the driver of the car, as the jury could have found, while No. 12 was on the theory that he was engaged in a joint enterprise, leaving the .jury, to determine the question, and was as much bound to the exercise of ordinary care for his own safety as was the driver of the car to the use of such care.
The jury was directed not to take any one of the instructions as the law of the case, but to consider them all as such, etc.
Neither is there merit in the assignment that the verdict was arrived at by lot. Three of the jurors, who did not sign the verdict, which was made by nine of the jurors returning it, testified that each of them was unwilling to return a verdict for appellee, that the nine jurors who agreed to the verdict were in favor of returning a verdict for appellee in different amounts, and that said jurors set down the different amounts each was willing to allow the plaintiff and divided it by nine, and the result was the amount of the verdict returned into court by the nine jurors signing it, $1,737.50. A. C. Oliver, the foreman of the jury, testified that he had no recollection that each of the nine jurors favorine: the verdict wrote down the amount he thought should be returned, the total of which amounts was divided by the number of jurors returning- the amount so reached as the verdict; said, he did not hear the matter mentioned, but, if any such sug-g-estion was made, it was not carried out. It was suggested but was not taken into consideration. He stated that, in the consideration of the matter, some of the .jurors increased their estimate while others lowered theirs, and the verdict was finally reached. In any event, their testimony tends to show it was a quotient verdict, and it could not be impeached by the testimony of any of the jurors, whether they agreed to it or not, as having been reached by lot. Speer v. State, 130 Ark. 457, 198 S. W. 113; Steed v. Wright, 179 Ark. 812, 18 S. W. (2d) 340; Chess & Wymond Co. v. Wallis, 134 Ark. 136, 203 S. W. 274.
A juror cannot be examined to establish a ground for a new trial, except it be to establish as such ground that the verdict was made by lot, and, although the law has been changed allowing a verdict to be returned by nine jurors, the prohibition of the statute against its being impeached by a juror still applies, although the juror so attempting to impeach it did not sign the verdict. Section 3320, Crawford & Moses’ Digest; Southern Ry. Co. v. Simpson, 140 Tenn. 458, 261 S. W. 677.
We find no error in the record, and the judgment is affirmed. | [
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Mehakky, J.
This suit was begun by property owners in Paving District No. 11 of the city of Fort Smith against the Board of Improvement and Henry C. Lane, as collector of the district. The appellees who brought this suit are owners of real property in the district, and .brought the suit for themselves and others similarly situated.
The appellants, who were defendants below, are Fag*an Bourland, mayor; Earl Henderson, commissioner No. 1, and W. H. Vaughan, commissioner No. 2, of the city of Ft. Smith, who constitute the board of improvement for said district.
The district was organized to pave certain streets, and benefits were assessed and levied against the property of appellees and others, and appellees have paid all their assessments.
The bonds which were sold have all been paid, the district does not owe any debts, and it has on hand $1,200 or more which belong to the taxpayers of the district who paid the last assessment, among whom are the appellees.
It was alleged that the appellants had failed and neglected to make this distribution, and failed and neglected to petition the chancery court for an order directing* what disposition to make of said funds. Appellees alleged that the appellants had wrongfully and illegally expended certain funds of the district amounting to $300. It was alleged that the accounts of the district were complicated, and the amount of funds which should remain in the district could not be correctly determined without an accounting. It was also alleged that the appellants, unless restrained, would continue to wrongfully expend the funds of the district to pay the general expenses of the city.
The appellees asked for an accounting and a refund of the money belonging to the taxpayers, an injunction against further expenditures, and appellants be required to distribute the amounts due to taxpayers. The answer denied all the material allegations of the complaint as to liability.
Fort Smith has a commission form of government, organized under act No: 13 of the Acts of 1913. That act provided for the election of a mayor and four commissioners. In 1917 there was an amendment reducing the number of commissioners to three.
The act providing for commission form of government, among other things, provides that the mayor and commissioners elected shall constitute the respective boards of improvement for any and all improvement districts in the city operating under the provisions of the act, and shall discharge and perform all duties required of any board or boards of any improvement district or districts, but shall receive no compensation as members of such board or boards.
They are required to take separate oaths as members of the boards of improvement, and each of them is also required to make a bond for the benefit of all improvement districts. The act also requires that the records, papers and contracts of the improvement district shall be kept separate from the records, papers, contracts and property of the city, and that the funds, accounts, and deposits of the improvement districts shall be kept separate.
It is also provided in act No. 13, supra, that every board of improvement district shall quarterly print in pamphlet form a detailed and itemized statement of all receipts and expenditures of each respective district with proper vouchers for all payments, and cause to be filed with the clerk of the circuit court not less than 100 copies of such report, 10 copies of which the said clerk shall furnish to the city library, 5 to each daily newspaper published in the city, and retain 5 in his office.
The same section which provides for this detailed and itemized statement also provides that any taxpayer may, within six months, file exceptions to such report in the chancery court. It provides for an examination of such report and account, and that the chancery court shall disallow any and all unjust, illegal, or improper charges and credits.
The chancery court found that there were $1,300 of the funds of the district in the hands of the commissioner that should be distributed to the taxpayers, and directed that said amount be distributed to the taxpayers who had paid the last and final assessment of benefits, in such proportion as said sum of $1,300 bears to the amount of the last and final assessment of benefits, less a reasonable sum to be charged for the distribution thereof, and less cost of the action.
The chancellor also found that the appellants owed $216 of money wrongfully expended by the commissioners.
There was no appeal taken from the order and decree of the court for a distribution of the funds on hand, but this appeal is prosecuted to reverse the judgment for $216.
Since there is no appeal from the decree for the distribution of the $1,300, this part of the decree is not before us for consideration. The only question for our consideration being whether appellants were liable for the $216 which they were adjudged to pay.
The authority to levy and collect assessments on real property in towns and cities, is found in § 27 of article 19 of the Constitution. That section reads as follows : “Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such as-’ sessments shall be ad valorem and uniform.”
Numerous questions are discussed by counsel which are not now properly before this court for consideration. The right of the taxpayers to a distribution, the time within which the court should close the affairs of the district and order a distribution, the power and right of the board after the lapse of a reasonable time, are all settled by the decree of the court ordering a distribution from which there is no appeal.
The question for us to determine is whether the commissioners had the right to expend any of the funds of the improvement district to pay a part of the salaries of certain officers in the employ of the city or to expend the funds for any purpose other than the cost of con-' struction, engineering and legal services.
The provision of the Constitution above referred to authorizes assessments on real property under such regulations as may be prescribed by law.
Section 5656 of Crawford & Moses’ Digest provides for the plans for improvements, and, among other things, provides: “For this purpose said board may employ
such engineers and other agents as may be needed, and may provide for their compensation, which, with all other necessary expenditures, shall be taken as a part of the cost of improvement.”
The commissioners could not lawfully expend any money collected from the taxpayers except that which was necessary, as a part of the cost of construction. When Improvement District No. 11 was formed under the Constitution and laws, a majority of the taxpayers agreed to it. A majority must have consented in order to form a district.
Under the law existing at that time they consented to assessments which were necessary in the cost of the construction of the improvement, and the taking or appropriating of any part of the assessments collected for any other purpose would be a violation of the Constitution.
This court, in discussing a special act of the Legislature, with reference to funds of an improvement district, said: “The majority of the court are of the opinion that the special act of the General Assembly is unconstitutional, as authorizing a diversion of funds collected for one purpose to be appropriated to another use, as an improvement district organized to construct streets has no authority to use funds collected for that purpose to thereafter appropriate any portion thereof for purposes of repair, and the special act did not confer that authority because it was not based upon the consent of the taxpayers of the city, as required by the Constitution. In other words, to create an improvement district for the purpose of building or repairing streets in a city, the consent of the taxpayers must first be obtained in the manner provided by law, and the authority conferred by the original petition under which the district was formed could not be subsequently enlarged by legislative enactment to which the taxpayers had not consented.” Paving Dist. No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795. This same case was before this court again where the question of distribution was discussed at length, but that question, as we have said, is not involved here.
While this court has held that the provision of the Constitution that no money arising from a tax levied for one purpose shall be used for any other purpose has no application to assessments in improvement districts, it is stated: “The 'basis of our decision in that case was that the consent of owners of property to the construction of the original improvement being necessary under the Constitution (art. 19, § 27), funds arising from taxes levied on benefits could not be used for any. other purpose without the consent of the owners of the property.” McAdams v. Henley, 169 Ark. 97, 273 S. W. 355, 41 A. L. R. 629.
This court held that the property owners in a local improvement district had interest in the funds of the district, and that it was an impairment of their vested rights for the Legislature to enact a law to divert the funds to uses other than for the benefit of the owners. Of course, if the Legislature could not pass such a law, the law-making body of the city could not.
Again this court said: “In short, improvement district taxes can only be levied to the extent that the benefits conferred are equal to or exceed the amount of the special taxes levied. Therefore, so far as improvement districts are concerned, we conclude that the individual landowners have vested rights which cannot be impaired by subsequent legislative enactment.” Bauer v. North Ark. Highway Imp. Dist. No. 1, 168 Ark. 220, 270 S. W. 533.
This court has many times held that the only theory justifying local assessments on real property is that the real property assessed is benefited in an amount equal to or greater than the assessment. There is therefore no authority for collecting assessments for any purpose other than the construction of the improvement, and this includes incidental expenses that are necessary to making the improvement.
The commissioners cannot therefore lawfully expend any of the money of the improvement district for general expenses of the city or for paying employees or officers of the city. If they could require the improvement district to pay any part of the expenses of the city, they could require it to pay all. The taxpayers of the district can be required to pay the assessments only because their property is benefited equal to the amount they have to pay.
It is contended by the appellant, however, that the appellees were guilty of laches in failing to take timely exceptions to the report of the board. The law requires the board of improvement to cause to be filed with the clerk of the circuit court certain numbers of copies as mentioned above, of the report, and the same section provides that any taxpayer may, within six months, file exceptions to such report. Acts 1913, p. 82, § '23.
The evidence shows that the report was not filed with the clerk of the circuit court, and it is sufficient to say that the taxpayer had a right to assume that he could file any exceptions or bring a suit within six months after the filing of the report at the place where it was required to be filed, and, as no such report was filed with the cleric of the circuit court, the taxpayer would not be required to file exceptions to said report.
This court has said that notices of this kind are for the benefit of the landowners, and that giving of the notice is jurisdictional. The giving of the notices provided for in the act authorizing a commission form of government is for the benefit of the landowner, and he is not guilty of laches in failure, to bring a suit within the time mentioned in the statute, when the report was not filed with the clerk as required by law. See Sudberry v. Graves, 83 Ark. 344, 103 S. W. 728.
It is finally contended that the chancellor gave judgment for two or three small items improperly, and that the decree for $216 should have been for not more than $191. The amount of the money erroneously expended was a question of fact, and we cannot say that the finding of the chancellor was against the preponderance of the evidence.
It is urged that the method employed by the commissioners in the city of Ft. Smith is reasonable and economical. This appears from the evidence to be true, and, so far as the evidence shows, the affairs of the district have been properly administered with the exception of appropriating certain sums of money belonging to the district for the payment of city expenses, and this, as we have already said, it could not lawfully do.
The decree of the chancery court is affirmed. | [
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Mehaffy, J.
The appellee, Harvey McLendon, filed a complaint in the Crawford Circuit Court on January 3,1931, against Sullivan, Long & Haggerty Company. He alleged that the defendants were a construction company operating under the firm name and style of Sullivan, Long & Haggerty Company; that they were nonresidents of the State of Arkansas, and had property in the possession of the Missouri Pacific Railway Company about to be shipped out of the State.
Allegations and interrogatories were filed and a writ of garnishment was issued and served on the garnishee the same day.
Plaintiff alleged that the defendants were indebted to him in the sum of $1,500. The pleadings were not verified, and no affidavit was filed.
The defendant, at the same time, filed a bond in the sum of $3,000, the defendant’s name being signed to said bond by one of his attorneys, and the attorney signed it as surety.
The Missouri Pacific Eailroad Company, on January 22, filed its answer, denying that it had any goods, wares, chattels, moneys, credits, or effects in its hands at the time of the service or at any time thereafter.
On February 3, McLendon filed an affidavit for a warning order and on February 5, the warning order,' was issued and was published, the first insertion being the 6th day of February.
On March 5, the appellee filed a response to the answer of the garnishee denying the allegations in said answer. On March 9 the garnishee filed an amended answer.
Eeport of attorney ad litem was filed on March 10, and also a motion to strike the answer of the garnishee from the files. The report of the attorney ad litem was to the effect that on February 18, he addressed a stamped envelope with his return address printed thereon to the defendants at Birmingham, Alabama, inclosing defendants a copy of the complaint, but that he had received no reply.
On the same day appellee filed a motion to strike appellant’s amended answer from the files, and on the same day, February 18, the garnishee made an oral motion for an order discharging the garnishee, and this motion was overruled by the court.
The garnishee then filed an application to be permitted to defend in the case. In this motion, as well as in its answer, it was stated that on January 5, the defendant tendered shipment of eight cars of second-hand road and paving equipment to the garnishee at Mulberry, Arkansas; that said garnishee issued a bill of lading for the property, which was to be shipped to Lake Providence, Louisiana.
On March 19, the garnishee filed a demurrer to the jurisdiction of the court, alleging that at the time of the issuance and service of the writ of garnishment no suit' had heen commenced, and also that the bond filed by appellee was signed by one of the attorneys of appellee without getting the permission of the court to ber come surety.
The jury returned a verdict for the sum of $750, for which sum judgment was entered against the garnishee. Motion for new trial was filed within the time allowed by the court, which was by the court overruled, exceptions saved, and an appeal prosecuted to this court.
Evidence was taken tending to show the indebtedness of defendants to appellee; and it was agreed by counsel for the parties that there was no original process for the purpose of securing service on the defendant, and it was also agreed that the property shown in the bill of lading exceeded the amount sued* for, including costs.
Appellant discusses several questions, but we find it necessary to' decide but one question, and that is, whether the writ of garnishment was void because at the time it was issued no action had been commenced against the original defendants.
The statute authorizing writs of garnishment reads as follows: “In all cases where any plaintiff may begin an action in any court of record,, or before any justice of the peace, or may have obtained a judgment before any of such courts, and such plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment, setting forth such claim, demand or .judgment, and commanding the officer charged with the execution thereof to summon the person therein named, as garnishee, to appear at the return day of such writ, and answer what goods, chattels, moneys, credits and effects he may have in his hands or possession belonging to such defendant to satisfy said judgment, and answer such further interrogatories as may be exhibited against him; provided, if the garnishment be issued before the judgment, the plaintiff shall give bond in double- the amount for which the garnishment is issued, that he will pay the defendant all damages that he may sustain by the wrongful bringing of his suit or the issuing of the garnishment.”
It will be observed that this'Statute says that, when the plaintiff may begin an action, a writ of garnishment may be issued.
Was any action begun against the defendants in this case before the writ of garnishment was issued?
Section 1049 of Crawford & Moses’ Digest is as follows: “A civil action is commenced by filing in the
office of the clerk of the proper court a complaint and causing a summons to be issued thereon.”
■ No summons' was ever issued against the defendant in this case, the defendants being nonresidents. No affidavit for a warning order was filed until February 3, a month after the writ of garnishment had been issued.
This court has said: ‘ ‘ There is no statutory provision defining the commencement of a suit where service is constructive and made pursuant to §§ 6055-6 of Kirby’s Digest. But by analogy it seems clear that a suit commenced by constructive service, as authorized by §§ 6055-6, is commenced when the proceedings therein provided for are complied with. In fact, this is a method of summons fitted to a case where-the defendant is a nonresident.” Boynton v. Chicago Mill Lumber Co., 84 Ark. 203, 105 S. W. 77.
Sections 6055-6 of Kirby’s Digest, which were construed by the court, are §§ 1159-60 of Crawford & Moses’ Digest.
The remedy given by garnishment is purely statutory, and the statute must be strictly construed. Beasley v. Haney, 96 Ark. 568, 132 S. W. 646; Trowbridge & Jennings v. Means, 5 Ark. 135; 9 Enc. Pleading & Practice 809; Rood on Garnishment, § 352.
The Michigan court said: “All the proceedings in this case are special and statutory, and must be strictly construed. To entitle the defendant to the benefit he claims under them, he must show they are clearly within the provisions of the statute. Statutes of garnishment, at best, give a “harsh and peculiar remedy,” and ought not to be resorted to when the redress sought may be obtained through common-law proceedings. * * * It further appears from the record in this case that there was not any legal service, actual or substituted, of the process in the principal case. Clearly there was no legal service of any kind of either summons against the principal defendant. The only attempt at service, as returned by the officers, was a copy, and made several days before the return day in the one case, and the adjourned day in the other. This rendered the proceeding void, and gave the court no jurisdiction of the principal defendant.” Iron Cliffs v. Lahais, 52 Mich. 394, 18 N. W. 121.
In the case of McDonald v. Alanson Mfg. Co., 107 Mich. 10, 64 N. W. 730, the garnishment was held valid, although issued after the complaint was filed, but before service, but the court expressly held in that case that under the statute of Michigan a suit is commenced so as to authorize the issuance of a writ of garnishment when the declaration is filed, though the defendant has not been served with process.
Our statute authorizes the writ of garnishment only after an action has been commenced, and this court has expressly held that, where there is constructive service, the action is commenced when the proceedings provided for in the statute are complied with. There is no claim in this case that the statute was complied with before the writ of garnishment was issued and served. The proceeding’s therefore were void. First Nat. Bank of Huttig v. Rhode Island Ins. Co., 184 Ark: 812, 43 S. W. (2d) 535.
Until the affidavit provided for in § 1159 of Crawford & Moses’ Digest has been filed, the court had no jurisdiction, and there was no authority prior to this time to issue a writ of garnishment, and-the writ issued with out a compliance with this statute was void. The statute only authorizes the writ of garnishment where an action has been begun, and one would have no more right to a writ of garnishment after filing his complaint but before the action was commenced, than he would have if no complaint had been filed. In order for the writ of garnishment to be valid, the statute must be complied with. The action must have been commenced before the writ can be issued.
The authorities are not in entire harmony, some courts- holding that, if summons is served on the principal defendant before there is any motion made by the garnishee to quash the writ or discharge the garnishee, the garnishment is valid, but under our statute the writ cannot be issued until the action is commenced.
‘ ‘ There must be a strict compliance with the requirements imposed by statute in order that garnishment proceedings may be -sustained, but, conversely, such a compliance with the statute is sufficient.” 28 C. J. 189; Schiele v. Dillard, 94 Ark. 277, 126 S. W. 835.
“A strict compliance with the statutory prerequisites is essential to support the jurisdiction of garnishment proceedings as has already been noted. No presumption of jurisdiction is indulged, particularly as against direct attack, or where there is no personal service, and authority must be found in the law providing for the proceeding for every step taken until jurisdiction is acquired.” 28 C. J. 190.
“ It -follows from the ancillary character of garnishment proceedings that, in order to support them, there must be jurisdiction of the proceeding against the principal defendant. * * * “Where the court has failed to acquire jurisdiction of defendant in the principal action by any of the methods authorized by the statute, garnishment proceedings based on the principal action are void.” 28 O. J. 191-2.
The appellee argues that the garnishment writ would be the beginning of an action, but the action must be begun against the principal defendant. Appellee calls attention to the case of Austin v. Goodbar Shoe Co., 60 Ark. 444, 30 S. W. 888, but the only thing the court held in that case was that the failure of an attaching creditor to file an attachment bond is an irregularity which may be waived by the appellant, and cannot be availed of by a junior attaching creditor to defeat the lien of the prior attachment.
Appellee also calls attention to the case of Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84, but in that case action was commenced before the garnishment was issued. It was commenced against several parties as partners, and one of them was actually served before the garnishment was issued. The action was commenced in that case, because under the express terms of the statute, an action is commenced when complaint is filed and summons issued, but this court has never held that a garnishment may be issued before the action is commenced.
Appellee also calls attention to Johnson v. Foster, 69 Ark. 617, 65 S. W. 105, but in that case the court states that the complaint was filed and at the same time affidavit, bond and interrogatories for garnishment. The court also states that the defendant, Foster, was duly summoned by warning order.
While the statute must be strictly construed, there is no difficulty in complying with its provisions and commencing the action before the writ of garnishment is issued. At the time a plaintiff files his complaint, he can cause summons to be issued and thereby commence the action, or if the defendant is a nonresident, he can file his affidavit and cause a warning order to be issued, and in either event he can comply with the statute without difficulty.
It follows from what we have said that the judgment of the circuit court must be reversed, and the cause of action against the garnishee is dismissed. | [
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Humphreys, J.
This is an appeal from a judgment of the circuit court of Poinsett County dismissing appellants’ petition for a writ of mandamus to compel the commissioners of Drainage District No. 7 of Poinsett County to pay appellants’ judgment against it out of the revenues of said district.
The only two questions of importance involved on the appeal under the pleadings and testimony are: First, whether appellants’ right to have their judgment satisfied out of the revenues of said district is superior and paramount to liens created on said revenues for money with which to construct levees and other improvements incident to said district; second, whether mandamus is an available remedy.
Appellants’ judgment was obtained for the value of lands taken by the district under the power of eminent domain vested in it. For a full statement of the facts under which said judgment was based and the judgment itself, reference is made to the case of Keith v. Drainage District No. 7 of Poinsett County, reported in 183 Ark. 384, 36 S. W. (2d) 59. Compensation for lands thus appropriated is guaranteed by the Constitution of 1874, art. 2, § 22, which is as follbws:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without .just compensatibn • therefor. ’ ’
This provision of the Constitution is impliedly written into and becomes a part of every mortgage, bond, or conveyance of real estate thus acquired for the purpose of obtaining money to make improvements incident *to any district. • The property and revenues arising therefrom by taxation or otherwise carries the burden of paying the owners for real estate thus appropriated. This rule or principle of law was announced in the case of Organ v. Memphis & Little Rock Railway Co., 51 Ark. 235, 11 S. W. 96, which principle finds support in the great weight of authority.
The trial court found in the instant case that the commissioners had revenues sufficient to pay the judgment of appellants, but that they had been pledged to the payment of bonds issued and sold to procure money with which to build levies and make other necessary improvements, and declared as a matter of law that the bondholders were preferred on account of such pledge over the judgment obtained by appellants. The finding of fact that there are sufficient revenues to pay the judgment of appellants is supported by the weight of the testimony. The finding of fact that the commissioners of the district pledged the revenues to the payment of the bonded indebtedness is also supported by the weight of the evidence. The declaration of law by the court to the effect that the bondholders’ lien on the revenues of the district were superior to appellants’ judgment claim was erroneous. In so declaring, the court disregarded the constitutional guaranty, as well as the rule announced in the Organ case, supra. Appellants ’ judgment was a lien on the revenues of the district paramount to the lien of the bondholders,
It clearly appears from this record that the remedy now invoked is the only adequate remedy available to appellants. According to the record before us, the remedy by execution proved fruitless and will continue to do so. The only lands owned by the district are tax title lands that no one seems willing to buy. It is argued, however, that mandamus will not lie against the commissioners because it is discretionary with them as to which claimants they will prefer and pay out of the revenues. They have no such discretion. It was their duty to pay for lands taken for the purposes of the dis trict out of the revenues derived by taxation in the district, under the constitutional provision quoted above, to the exclusion of all claimants thereto not in their class.
On account of the error indicated, the judgment dismissing appellants’ petition is reversed, and the cause is remanded with direction to the circuit court to issue a writ of mandamus compelling the commissioners to pay appellants ’ judgment out of the revenues of the district.
Smith and McHaney, JJ., dissent. | [
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Humphreys, J.
This suit was brought by appellant against appellee to recover damages for injuries received to his shoulder and back through the alleged negli gence of appellee’s truck driven, with whom he was riding by permission of appellee. Two separate acts of negligence were alleged as follows: That at the time of the injury the truck was being driven at a reckless, negligent and dangerous rate of speed; and that the driver failed to sound any alarm before trying to pass a truck traveling in the same direction, in violation of paragraph “B,” § 12 of act 223 of the Acts of 1927.
Each allegation of negligence was denied, and the cause was submitted upon the pleadings, testimony and instructions of the court, resulting in a dismissal of appellant’s complaint, from which is this appeal.
Appellant’s main contention for a reversal of the judgment is that the right to recover was limited by instruction No. 8, given by the court at the instance of appellee, to the sole issue whether appellee’s driver failed to blow the horn when attempting to pass the truck in front of him. Appellee admits this was the effect of the instruction, but attempts to justify it upon the ground that there was an entire failure of any substantial evidence upon which to submit the issue whether the driver was negligent in the rate of speed he was driving at the time of the injury. We cannot agree with appellee in this conclusion. When the driver passed the truck in front of him, he was traveling at a speed of thirty-five miles an hour and within a narrow space due to the load on the truck in front sticking over the left side. Appellant testified that he requested the driver not to attempt to pass the truck in front, but that, without giving any signal, he attempted to do so and was forced into the ditch, where the truck they occupied turned over several times, injuring and rendering appellant unconscious. We think these facts sufficient to warrant a submission of the issue of whether appellee’s truck was being driven at a reckless, negligent or dangerous rate of speed when attempting to pass the truck in front.
Appellant also contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 10, which is as follows:
“You are instructed that, before you can find for the plaintiff in this action, you must find that the driver of defendant’s truck negligently attempted to pass the truck traveling in the same direction, and negligently failed to sound any alarm before trying to pass a truck traveling in the same direction, and, unless you so find, the court tells you that the plaintiff cannot recover, and you will find for the defendant.”
The effect of this instruction was to tell the jury to find for appellee unless appellant established by the weight of the testimony both allegations of negligence set out in the complaint, whereas it was sufficient for him to establish either by a preponderance of the testimony.
This, as well as the first instruction referred to, was inherently wrong as applied to the facts and subject to a general objection. It was not necessary to point out either defect by specific objection as contended by appellee.
Appellant also contends that there was no evidence upon which to base instruction No. 6 given by the court at the request of appellee. The instruction objected to is as follows:
“You are instructed that it was incumbent upon the plaintiff to use reasonable care to avoid unnecessary aggravation of his injuries; and if you believe from the evidence that the plaintiff did not use reasonable care in following the advice of his physician, and if you further believe from the evidence that, because of his failure to observe such reasonable care, his collar-bone was deformed, then the court tells you that the plaintiff cannot recover in this action for such deformity.”
The evidence relied upon by appellee in support of said instruction is as follows:
“Q. At that time you informed him (appellant) that he would have to have that kind of an operation, to have a proper union? A. No, sir, I told him at the time that it would be one that I thought advisable in order to have proper position. Mr. Burnett asked me, if I thought we could get a union without an operation. I told him. I thought we could, but that we would have a deformity. Q. You told him that to start with? A. Yes, sir. Q. And he didn’t have you to perform that operation? A. No, sir, he said he would rather not have to be cut on if he didn’t have to be. Q. And he would take the chances of the deformity? A. No, he didn’t say he would take the chances of any deformity. Q. Did you tell him that he probably would have a deformity if he didn’t do it A. Yes, sir, I told him that he might have a deformity; yes, sir. Q. And he didn’t have you perform that operation? A. No, sir, he said he would rather not be cut on, if he didn’t have to be. Q. And he said he would take the chances on the deformity? A. No, he didn’t say he would take the chances of any deformity.”
This piece of evidence does not show that appellant was guilty of negligence in failing to follow the advice of his physician. The most it shows is that he did not want to submit to an operation unless it was absolutely necessary. The effect of this testimony was not as contended by appellee that appellant took the chance of a deformity rather than submit to an operation.
On account of the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Conley Byrd, Justice.
The Arkansas State Highway Commission appeals from a verdict and judgment of 45,300 for a taking of 24.09 acres from 334.9 acres owned by appellees Mary Raines Johnson and the heirs of the D. H. Raines Estate for interstate highway construction in Hempstead County.
Initially appellant condemned 11.06 acres of appellees’ land and by amendment increased the taking to 24.09 acres, to accommodate rest areas on the interstate highway. At the time of the taking, all of appellees’ 334 acres was subject to a timber contract covering all timber eight inches and over. Appellant, not wanting the timber cut on the proposed rest areas, contracted to pay the timber contractor the value of the uncut timber. It was stipulated at trial that the before and after valuations would be based on the assumption that all timber eight inches and .above had been cut and removed at the time of taking.
For reversal appellant relies on the following points:
“I. The opinion of Dorsey McRae, appellees’ only value witness, was based on erroneous assumption and not upon fact, and his testimony should have been struck upon appellant’s motion.
II. There is no substantial evidence to support the verdict.”
Appellant’s first point is two-pronged, i. e., (1) Mr. McRae valued the property as though the timber had not been removed, and (2) he erroneously damaged part of the property, referred to as Tract 2, as being landlocked because the access wa's destroyed. So far as Mr. McRae’s value testimony is concerned, a careful review shows that he consistently based his valuations on the assumption that timber eight inches and over had been removed. Appellant’s complaint with reference to McRae’s testimony arises out o£ the following question and answer:
“Q. This is cut over timber land?
A. No, it’s not all. No, you’ve got some there that you found a little later and took for a park, which I guess is the prettiest land on the highway, that ain’t cut over.”
We do not interpret Mr. McRae’s .answer as being an assertion that he valued the land on the basis with the timber in place, but rather a truthful answer to the question asked. For this reason we hold this contention without merit.
The access to the land referred to as Tract 2 had been by a road from the southernmost part of the property, which road was completely severed by the controlled-aecess interstate. Shepherd Road, which was made into an overpass over the interstate, crosses the southwestern corner of Tract 2. The taking in fee included .09 acre for straightening or widening Shepherd Road. The highway department fenced its right of way along Shepherd Road and the. approaches to the overpass. McRae ascribed $2,000 as damage to Tract 2 for loss of access. Appellant argues that McRae’s testimony is valueless because he did not study appellant’s plans and specifications and thus determine that the fenced approach was not a controlled access area, insinuating that the landowners could have access through this fenced area, as .appellant’s appraiser testified. This argument is without merit. This court has recently con sidered the effect of a fee simple taking on the matter of access and specifically held:
“We hold that a fee simple taking under Act 419 [Ark. Stat. Ann. § 76-544 (Repl. 1957)3 places the predominant control of all lands within the right-of-way in the Commission; that the utilization of the acquired property for highway purposes and for such purposes as are delegated to political subdivisions and utilities will as a matter of law take precedence over all other uses; and that Mrs. Wallace’s [the landowner’s] use of the highway for going in and out of her property can reasonably be expected to be affected.
. . .“From what has been said it is apparent that the nature of Mrs. Wallace’s access may well be substantially impaired; certainly the right of ingress and egress was not established as a matter of law.” Ark. State Highway Comm’n v. Wallace, 247 Ark. handed down Sept. 22, 1969, 444 S. W. 2d 685.
On the question of substantiality of the evidence, Mr. McRae’s testimony of $7,000 was sufficient to support the jury verdict of $5,300.
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Frank Holt, Justice.
This is an action to recover damages for breach of a contract. In February 1967 appellee entered into a landclearing contract with the owner of certain lands. Appellee agreed to clear 1,800 acres for agricultural purposes by July 15, 1967, unless prevented by weather conditions. The contract price was $70,000. Thereafter, the appellants purchased the land with an assumption of the grantor’s obligation under the contract. On July 1, 1967, the appellants ordered the appellee to remove himself, his employees and equipment from the property. The appellee brought this action against the appellants alleging that he had performed his obligation under the contract up until that date; that appellee had been paid only $13,000; that appellee had cleared approximately 50% of the acreage and that as a result of appellants’ breach of the contract, appellee had been damaged in the sum of $39,697. The appellants entered a general denial and counterclaimed for $37,150 in damages based upon the allegation that appellee had breached the contract. These issues were presented to a jury which returned a verdict in favor of the appellee and assessed his damages at $17,000. The jury found against the appellants on their counterclaim.
For reversal appellants ’ sole contention is:
“The Court erred in giving Appellee’s Requested Instruction No. 3, which related to anticipated profits, in that the testimony regarding profits was too speculative to warrant the giving of such an instruction.”
The legal principle controlling here was recently reannounced .in the case of Farmers Cooperative Assn. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939 (1966), where we said:
“We are committed to the rule in Black v. Hogsett, 145 Ark. 178, 224 S. W. 439 (1920) and subsequent cases, to the effect that where one party to a contract is prevented from performing by the fault of the other party, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made had the other party carried out his contract.”
See, also, Brodie et al v. Watkins and Wife, 33 Ark. 545 (1878). In Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936 (1947), we said:
“* # * When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.”
There appears to be no dispute between the parties as to the rule of law which governs in the case at bar.
Appelee and other witnesses, who were experienced in clearing land, testified that 850 to 900 acres or approximately 50% of the land was cleared and made fit for agricultural purposes at the time of the breach of the contract by appellants. An employee of a lumber company who had had 26 years experience in measuring or cruising timber and surveying land made his measurements by chain and stated that 845 acres or 47% of the 1,800 acres were cleared in accordance with the terms of the contract. Appellants presented evidence that appellee had cleared only the “easy part” of the land and that the expense to appellee in clearing the remainder would have been much greater. The appellee adduced evidence, however, that the land he had already cleared was a more difficult task than clearing the remainder of the acreage. It is undisputed that appellee’s expenses for the work performed as of the date of the cancellation of the contract totaled $21,478.28. Based on a 50% completion, appellee testified that he would have incurred additional expenses of $17,302.12 in completing the contract. This represented the same amount of expenses previously incurred for clearance of half of the land, less the expense of hauling equipment to the job-site. According to appellee’s computations or evidence, the contract price of $70,000, less the total of the incurred and projected expenses [$21,478.28 and $17,-302.12] would leave a profit of $31,219.60. When the $13,000 which appellee had received from the appellants is subtracted from this profit figure, there would remain a balance of $18,219.60 owing to the appellee. The jury awarded $17,000.
In 22 Am. Jur. 2d, Damages, § 172, after enunciating the general rule, with which Arkansas is in accord, it is said:
“* * * While lost profits will not be allowed as damages if the trier of fact is required to speculate as to the fact or amount of profits, courts state that less certainty is required to prove the amount of lost profits than is required to show that the profits were lost.”
When we review the evidence which is most favorable to the appellee, as we must do on appeal, the appellee’s proof was sufficient-to take the question of profits out of the realm of speculation and conjecture and presented to the jury a reasonably complete set of figures to support the jury’s finding as to anticipated profits.
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Lyle Brown, Justice.
This is a highway condemnation case wherein the taking and construction for widening of an existing highway by the Arkansas State Highway Commission took most of the landowners’ frontage. The Commission appeals the award principally on the basis that access actually remained after the taking, therefore the blocking of the remaining access was not a compensable item.
• The subject property consists of a 25-aere tract adjoining State Highway 247 on the east side. The highway frontage is 808 feet.' The property is owned by the widow and children of O. E. Billingsley. It was the home place of the family. The children are grown and Mrs. Billingsley still resides there. It is an urban homesite, located approximately two miles north and east of the Morrilton business district. It was also used for pasturing and the growing of hay. The improvements are located in the extreme northwest corner, consisting of a sizable frame dwelling with modern conveniences, an old barn, fences, and cross fences. Along the north boundary line is a lane extending eastward from Highway 247 to a new subdivision. Caney Creek runs in an east and west direction, entering the land by crossing Highway 247. Approximately fifteen acres are on the north side of the creek. The land has a desirable rolling topography, with the highest point being at the home-site.
Interstate 40 runs in an east and west direction a short distance south of the Billingsley tract. A portion of the Billingsley lands was acquired by the State for the purpose of building an overpass north and south over Interstate 40 and on State Highway 247. The Highway Commission condemned a strip north and south completely across the Billingsley frontage. The widest point of the taking is at the south end of the tract, being approximately 125 feet in width. The taking gradually narrows to fifty feet at the north property line. Additionally, the Commission took an easement on a small tract east of the taking in fee for the purpose of changing the channel of Caney Creek. That easement begins approximately seventy-five feet south of the north property line and near the homesite, and extends south to a point near the center of the tract. Construction plans call for the building of a diversion channel on the easement. That channel would be some ten feet deep and fifty feet wide and would be permanent. Most of the Billingsleys’ frontage, after construction, will be under controlled access.
The Commission contends that the landowners still ‘.■have access to the highway in a reasonable amount, seventy-five feet of usable frontage.” The landowners dispute the existence of reasonable access after the taking, offering evidence that a change in grade, the alteration of the boundary line, the building of a diversion ditch, and the existence of a control-of-access line “effectively prevents” access all along the frontage. However, the landowners concede that it is “technically possible” to cross to-and-from the highway by utilizing the extreme north seventy-five feet for that purpose. If as a result of the composite changes related the freedom of access has been so substantially affected as to diminish the fair market value of the tract then compensable damages arise. We have no hesitancy in concluding that there is substantial evidence establishing considerable diminution of ingress and egress.
The right to recover in the circumstances is well established by a number of authorities. Perhaps the leading authority of this court is Campbell v. Arkansas State Highway Comm’n., 183 Ark. 780, 38 S. W. 2d 753 (1931). There a change in grade of the highway was said to have substantially impaired ingress and egress, which latter right was one of property:
Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself; and any subsequent act by which that easement is substantially -impaired for the benefit of the public is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation.
The facts in the case .at bar are even stronger than those in Campbell. Here there was an actual taking, the establishment of a diversion ditch on appellees’ property, and a control-of-access line, all in addition to a change in grade. Also, the easement initially extended as a matter of law along the entire frontage; see Arkansas State Highway Comm’n. v. Kesner, 239 Ark. 270, 388 S. W. 2d 905 (1965). As was said in Kesneer, destruction of access or substantial impairment thereof may form a basis for recovery.
Finally, the Commission contends that a change of venue should have been granted. The form of the motion and the evidence supporting the motion were the same as in Arkansas State Highway Comm’n v. Duff, 246 Ark. 922, 440 S. W. 2d 563 (1969). There we held adversely to the Commission and we adhere to that holding.
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