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Ray Thornton, Justice.
The issue in this case is whether the statute of limitations bars the action for child-support arrearages brought by appellant Sharon Harris Cole on behalf of her child, Brian Lynn Harris. Brian was born on July 11, 1972. On July 9, 1974, the chancery court granted appellant a divorce from appellee Olen Dale Harris and awarded her weekly child support of $15.00.
Eleven months after Brian turned twenty-three years of age, appellant filed a notice of income withholding for child support. Appellee petitioned to terminate the child-support collections, claiming that appellant’s action was barred by the statute of limitations, which had run at Brian’s twenty-third birthday. The trial court granted the petition, and appellant brings this appeal. Appellant contends that the trial court committed reversible error in applying the wrong statute of limitations. We find no error and affirm.
We have recently addressed the question of what statute of limitations applies in actions to collect child-support arrearages. Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996). We interpreted Act 870 of 1991, codified at Ark. Code Ann. section 9-14-236 (Supp. 1995), as follows: “The statute of limitations for child support thus now commences with an initial order of support and extends until the child reaches the age of twenty-three.” Branch, 326 Ark. at 751, 933 S.W.2d at 807.
Appellant contends that the trial court erred in applying Ark. Code Ann. section 9-14-236 in this case. She argues that the 1987 legislative enactment of Ark. Code Ann. section 9-14-234 (Supp. 1995), stating that accrued child-support arrearages are enforceable as final judgments, makes Ark. Code Ann. section 16-56-114 (1987), a ten-year limitation period for general collection of civil judgments, applicable to actions to collect child-support arrearages. This is a novel argument, and we proceed with our review of the legislative actions and judicial principles that guide our analysis.
The general limitation for filing actions on all judgments and decrees, enacted in 1844, provides the following: “Actions on all judgments and decrees shall be commenced within ten (10) years after [the] cause of action shall accrue, and not afterward.” Ark. Code Ann. § 16-56-114. In Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957), we determined that this ten-year statute of limitations did not apply to child-support payments since the order for child support is not a final decree. Instead, we held that a general five-year statute of limitations applied. Id. at 243, 297 S.W.2d at 943 (applying Ark. Stat. Ann § 37-213, later replaced by Ark. Code Ann. § 16-56-115 (1987)).
In 1987, the legislature adopted the following language concerning child-support payments:
Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
1987 Ark. Acts 1057 (codified at Ark. Code Ann. § 9-12-314(b); readopted in 1989 at § 9-14-234(a)) (emphasis added). This Act was adopted to ensure that child-support programs of the State of Arkansas would qualify for future federal funding. Sullivan v. Edens, 304 Ark. 133, 137, 801 S.W.2d 32, 34 (1990). We note, however, that there was no expression of any legislative intent to contemporaneously revive the ancient, general ten-year provision that appellant urges us to adopt now.
The legislature then enacted “AN ACT to Set a Ten-Year Statute of Limitations on Collection of Child Support Arrearages; and for Other Purposes.” 1989 Ark. Acts 525, repealed by 1991 Ark. Acts 870 and 1995 Ark. Acts 1184, § 30. The legislature had never before specifically provided a limitation on child-support actions, and Act 525 provided the foEowing, in pertinent part:
In aE cases where the support of any chüd or children is involved, an action for the enforcement of chüd support or for judgment of arrearages shall be limited to ten (10) years prior to the filing of the action.
Id. § 1 (codified at Ark. Code Ann. §§ 9-56-129 and 9-14-236). This Act would have been redundant if the 1987 statute had revived the effectiveness of the ten-year general statute of limitations under Ark. Code Ann. section 16-56-114.
In Sullivan v. Edens, we stated that although the legislature had clearly extended the statute of limitations to ten years prospectively, the Act did not operate retroactively to extend the five-year limit on actions that were already barred because it did not repeal the former statute of Emitations provision. Sullivan, 304 Ark. at 135, 801 S.W.2d at 33. Of course, if the 1844 limitation had been revived, there would have been no issue of retroactive effect. Because of the issue of retroactivity, we held that the general five-year statute of limitations at Ark. Code Ann. section 16-56-115 was applicable to causes that had already accrued as of the date that the new statute was enacted. Id.
After Sullivan, the legislature enacted provisions repealing the ten-year statute of limitations and providing that chEd support actions can be “brought at any time up to and including five (5) years beyond the date the chüd for whose benefit the initial support order was entered reaches the age of eighteen (18) years.” 1991 Ark. Acts 870, §§ 1 and 2 (current version at Ark. Code Ann. §§ 9-14-105 and 9-14-236). Furthermore, the Act repealed aE laws in conflict with its provisions and included a clause for the changes to apply retroactively to aE chüd-support orders existing as of March 29, 1991. Id. §§ 1, 2, and 5. This expanded statute of limitations remains in effect.
It is clear to us that the legislative intent was not to revive the ten-year limitation under the 1844 general limitation statute. The rules of statutory construction give a result that is harmonious with this legislative history. The following rule of statutory construction is instructive on this point:
When two or more statutes of limitation deal with the same subject matter, the statute which is more recent and specific will prevail over the older and more general one. In fact it has been held that where two constructions concerning the limitation period are possible, the courts prefer the one that allows the longer period.
3A Norman J. Singer, Sutherland Stat. Const. § 70.03 (5th ed. 1992) (emphasis added).
By specifically repealing the ten-year statute of limitations that was previously enacted under Act 525 of 1989, the legislature made clear its intention that a ten-year statute of limitations should not apply to actions for child-support arrearages. The effect of the legislature’s action in adopting Act 870 of 1991 was to expand the time in which a cause of action could be maintained, thereby affording a greater opportunity for a parent or child to collect child-support payments than the ten-year statute that it repealed. Branch, 326 Ark. at 752, 933 S.W.2d at 808. We hold that the limitation period found at Ark. Code Ann. section 9-14-236 applies to the action before the court.
Appellant also contended before the trial court that her use of the 1844 general ten-year statute of limitations to collect payments eleven months after Brian turned twenty-three tolled the ten-year statute of limitations with respect to all other arrearages. Because we have determined that the ten-year statute, section 16-56-114, does not apply to actions for child-support arrearages, we do not reach this argument.
We conclude that the Chancellor applied the correct statute of limitations and that because appellant brought this cause of action after her child turned twenty-three, the decision of the chancery court was not in error.
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Ray Thornton, Justice.
This is a second review of this controversy. In 1991, George Hankins, appellant, obtained a default judgment against Larry McElroy for $25,869, on the basis of losses' sustained from unpaid promissory notes together with losses of $1,000 relating to-the sale of a Camaro and $1150 relating to the sale of a GMC truck. In an attempt to recover the McElroy judgment, Hankins sought a declaratory judgment against Lawyers Security Company, the surety, for a $25,000 bond required for McElroy as a motor-vehicle dealer. Lawyers offered to settle the claim by paying Hankins $2115 pursuant to Ark. R. Civ. P. 68. Hankins did not accept the offer. The trial court in its declaratory judgment ruled against Hankins, finding that the bond could not be used to satisfy appellant’s judgment.
On appeal, we reversed and dismissed without prejudice because Hankins had not exhausted available administrative remedies. We held that the appropriate remedy was to seek payment under the bond by presenting the default judgment to the Depart ment of Finance & Administration (DF&A) pursuant to Ark. Code Ann. § 23-112-603 (Supp. 1995). Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993) (Hankins I).
Hankins renewed his efforts to collect his default judgment by seeking administrative relief from DF&A and a hearing was held on September 7, 1994, before an administrative law judge. Hankins argued that Lawyers was liable on the bond because McElroy’s actions in incurring the debts were sufficient to warrant the suspension or revocation of his car dealer’s license under the provisions of Ark. Code Ann. § 23-112-302, which provides for recovery of such bonds. The ALJ found that the transactions between McElroy and Hankins were personal debts between businessmen and not sufficient reason to cause suspension or revocation of the license.
Hankins appealed the adverse decision to the circuit court, which sustained the agency decision. The court granted DF&A’s motion to be reimbursed for costs of producing the transcript pursuant to Ark. Code Ann. § 25-15-212(d)(2) (Repl. 1996). On August 13, 1996, Lawyers’ attorney moved to recover costs pursuant to Ark. R. Civ. P. 68, which allows recovery of costs by an offeror of judgment “[i]f the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer . . . . ” The court denied the motion.
While Hankins’s attorney was abstracting the record for review by this court, it was discovered that portions of it were missing. On March 3, 1997, the circuit judge issued an order settling the record and the ALJ’s order was added. The circuit judge noted in a cover letter that the transcript of the administrative hearing did not contain all of the testimony and that the missing portions of the record of the administrative hearing were not in the material considered by the circuit court; therefore, the record could not be completed from the circuit court. Hankins did not seek to settle the record at the agency level.
Hankins argues on appeal that the circuit court erred: (1) in failing to consider the entire record of the administrative proceeding; (2) in upholding the ALJ’s order; and (3) in granting DF&A judgment against him for costs in producing the transcript. Law yers cross-appeals the denial of costs. None of the arguments has merit, and we affirm.
We now proceed to review the issues before us in this appeal. Hankins argues that the circuit court erred in fading to consider the entire record of the administrative proceeding, and in upholding the ALJ’s order. These arguments appear to be based upon the premise that we review the circuit court’s decision in an appeal from a proceeding by an administrative agency. This premise is incorrect. In an appeal from an administrative order, our review is directed to the agency’s decision, not the circuit court’s. Brimer v. Arkansas Contractors Lic. Bd., 312 Ark. 401, 849 S.W.2d 948 (1993). However, we cannot review the agency’s decision in this case because we do not have the complete record before us. It is incumbent upon an appellant to bring up a record sufficient to show error. Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Our rules of appellate procedure provide a remedy for settling an incomplete or inaccurate record. Rule 6 of the Arkansas Rules of Appellate Procedure provides in pertinent part as follows, “If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.” Hankins did not avail himself of this remedy.
The portion of the record that we have before us indicates that there were exhibits and testimony that are missing. Hankins bases much of his argument for reversal of the agency’s decision upon these missing exhibits and testimony. It was his obligation to ensure that the record be made complete so that we could reach his arguments. Because he did not do so, he has not met his burden of producing a record sufficient for our review, Grinning v. City of Pine Bluff, 322 Ark. 43, 907 S.W.2d 690 (1995); therefore, we summarily affirm the agency’s decision.
We next address Hankins’s contention that the trial court erred in ordering him to pay the costs of the record. He argues that, although DF&A was the prevailing party, it did not transmit the entire record to circuit court. Arkansas Code Annotated § 25-15-212 provides in pertinent part:
(d)(1) Within thirty (30) days after service of the petition or within such further time as the court may allow, but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review.
(2) The cost of the preparation of the record shall be borne by the agency. However, the cost of the record shall be recovered from the appealing party if the agency is the prevailing party.
Id. § 25-12-212(d)(l)-(2) (Repl. 1996). The record shows that DF&A ordered and paid for a transcript of the entire record. Again, it was incumbent upon Hankins to ensure that a complete record was available for our review. The deficiency in the record was not called to DF&A’s attention before the circuit court had assessed costs, and DF&A’s offer to supplement the record, made after the decision of the circuit court, was not accepted. Because DF&A paid for a transcript and was the prevailing party, the circuit court did not err in ordering Hankins to reimburse the agency.
Lawyers argues on cross-appeal that the circuit court erred when it denied its motion for costs on an offer of judgment that it made during the first trial on this matter. The trial court stated tliat it was without jurisdiction to hear the motion because it was made during the first trial. Lawyers points out that our holding in Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), provides that such a motion could survive a previously dismissed action under Ark. R. Civ. P. 41(d). However, we affirm the trial court because we conclude that Lawyers reversed its position during the second trial and that the offer of judgment was effectively withdrawn.
On January 30, 1992, during the first trial, Lawyers made an offer of judgment in the sum of $2,115.00 to Hankins in full settlement of the claim. This sum represented the sale of the Camaro and the GMC truck. Hankins did not reply or accept the offer. The portion of the record that is before us reveals that at the administrative hearing on September 7, 1994, Hankins testified that he allowed Mr. McElroy to draft upon a line of Hankins’s credit to purchase these vehicles. During oral argument before this court, Lawyers’ attorney stated that after this testimony came out in the hearing before DF&A it reversed its position and took the stance that the sale of the vehicles was not covered by the bond, but was also merely a debtor-creditor issue.
We recognize that Ark. R. Civ. P. 68 requires the trial judge to order an offeree to pay the authorized costs after the making of a bona fide offer, if the judgment, exclusive of interest, is not more favorable than the offer. See Darraugh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). However, the trial court is not required to award costs to a prevailing party when no offer of judgment is made. Id. It appears that Lawyers did not continue the offer of judgment made during the first trial, and no specific offer of judgment was made in the case on retrial. We uphold the trial court’s denial of costs.
We summarily affirm the agency’s order in favor of Lawyers because the record was not complete enough to allow us to evaluate it. We affirm the circuit court’s order requiring Hankins to pay DF&A for the costs of producing the transcript and affirm on cross-appeal its denial of costs to Lawyers. | [
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Donald L. Corbin, Justice.
Appellant Monroe McGhee appeals the judgment of the Mississippi County Circuit Court, Chickasawba District, convicting him of possession of a controlled substance (cocaine) with intent to deliver, first-degree battery, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm. The trial court sentenced Appellant to a total of forty years’ imprisonment. In addition, the trial court revoked Appellant’s probation in a prior case and sentenced him to a concurrent term of ten years’ imprisonment. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises five points for reversal, none of which has merit.
The record reveals the following facts. On February 14, 1996, Appellant shot Clifton Robinson in the throat, apparently in retaliation for shots being fired approximately one hour earlier at a vehicle in which Appellant’s cousin was riding. Persons present at the scene informed police officers that Appellant was the person who shot Robinson. Robinson later confirmed that it was Appellant who had shot him. Officers arrested Appellant the following day and recovered a gun from him and numerous bags of marijuana and crack cocaine from his pockets.
Motions for Continuance and Severance of Offenses
Appellant’s first two points for reversal are that the trial court erred in denying defense counsel’s motions for a continuance and for severance of the offenses. Both of the motions were made by defense counsel during a pretrial hearing, and both were objected to by Appellant.
Defense counsel requested a continuance on the grounds that he had only recently been appointed to handle Appellant’s case and he wanted more time to prepare for trial. Counsel indicated that Appellant had given him a list of seven or eight witnesses and that he needed more time to interview them. Appellant informed the trial court that he was ready for trial and did not want a continuance. He stated that he had been in jail awaiting trial for nine months and that he did not want to wait any longer. He stated that he was pretty sure that he could explain his case to the jury in about one and one-half hours, and that if he was convicted, “just let it lie like that.” In response to inquiry by the trial court, Appellant stated that he was aware of the seriousness of the charges against him and that he knew he could receive a sentence of life imprisonment. He stated that he was willing to take that chance and proceed to trial. He also indicated that he really only needed three of the witnesses that he had listed for defense counsel. At that point in the discussion, defense counsel indicated that he could have the case ready to go as scheduled, and that he had a copy of the State’s file and he understood the State’s theory of the case.
As to the severance motion, defense counsel moved to sever the charge of first-degree battery, pertaining to the shooting of Robinson, from the remaining charges, which resulted from Appellant’s arrest the day after the shooting. Appellant again expressed his desire to proceed to trial as scheduled on all charges. He stated that the reason he was charged with the subsequent offenses was because of the shooting of Robinson, and that he wanted to have all the charges tried at the same time. In response to questions from the trial court, Appellant stated that he understood that being tried on five or six different charges at once may prejudice his case. He stated further that he understood that his punishment may be harsher, even if he was only convicted of one charge, because the jury would be aware of the other charges.
The trial court denied the motion for continuance on the ground that it was Appellant’s right to have a trial and that he had made the decision to proceed with the trial knowing that his counsel wished for more time to prepare. Likewise, the trial court denied the motion to sever on the ground that Appellant wanted all the charges tried at the same time and was willing to risk any prejudice to his case. Appellant now argues that the trial court erred in denying both motions. We disagree.
We adhere to the familiar principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996). Under the doctrine of invited error, one who is responsible for error cannot be heard to complain of that for which he was responsible. Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). Appellant chose to proceed to trial as scheduled, knowing that defense counsel wanted more time to prepare his defense. Appellant further chose to have all the offenses tried at once, after being warned of the potential consequences of being tried on multiple charges simultaneously. Appellant’s decision to be tried on all the charges at once, without delay, was thus made with the knowledge and understanding that he was facing serious felony charges and that he could receive a sentence of life imprisonment. Hence, we conclude that Appellant has waived any challenge on appeal to the trial court’s denial of both motions.
Suppression of Evidence
For his third point for reversal, Appellant argues that the trial court erred in denying his motion to suppress physical evidence, which he alleged was gathered as a result of the issuance of an invalid arrest warrant. He argues further that officers lacked the authority to enter Fred Gay’s residence to arrest Appellant. We do not address the merits of these arguments, as Appellant has faded to demonstrate that he obtained a ruling from the trial court on his motion to suppress.
Where the abstract does not reveal that a ruling was obtained from the trial court, this court will not address the issue on appeal. See Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996). The burden of providing a record sufficient to demonstrate that reversible error occurred is upon the appellant. Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995). Without the trial court’s ruling, this court has no basis for a decision and is, thus, precluded from a review of the issue. See Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). Appellant’s failure to obtain a ruling on his motion to suppress is fatal to this claim.
Simultaneous Possession of Drugs and Firearms
Appellant’s fourth and fifth points for reversal pertain to his conviction for the charge of simultaneous possession of drugs and a firearm. Arkansas Code Annotated § 5-74-106(a)(l) (Repl. 1993) provides that a person who commits a felony violation of § 5-64-401 (controlled substances) while in possession of a firearm is guilty of a Class Y felony. Appellant first argues that there was insufficient evidence to convict him of this crime because the State failed to produce evidence of gang-related activity. He argues that because the offense is situated within the subchapter known as the “Arkansas Criminal Gang, Organization, or Enterprise Act,” it is necessary for the State to produce evidence of gang-related activity for every offense contained within that sub-chapter. We recently disposed of this argument in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).
In Zawodniak, the defendant moved for a directed verdict on the ground that the State had failed to prove that he was involved in criminal gang activity. The trial court agreed and granted the motion. On appeal, we held that the defendant’s and the trial court’s reading of section 5-74-106 was contorted and failed to give the language of that statute its plain meaning. We stated that this court is very hesitant to interpret a legislative act in a manner contrary to its express language, where there is no drafting error or omission that may have circumvented the legislature’s intent. We held further that the statute not only serves the pur pose of deterring organized gang and criminal activities, but also serves the broader purpose of curtailing any person’s use of a firearm when he or she is involved in the illegal possession or trafficking of controlled substances. Accordingly, we conclude that the trial court did not err in denying Appellant’s motion for directed verdict on this charge.
Appellant’s second argument is that section 5-74-106 is unconstitutionally vague and is therefore void. We do not reach the merits of this contention, as Appellant’s abstract does not demonstrate that the argument was raised below. This court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997); Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996).
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David Newbern, Justice.
This is a slip-and-fall case. Floyd Wilson alleged he fell down in a Jr. Foods Store (“the store”), operated by J. Wade Quinn Company, Inc. (“Quinn Co.”). He alleged that he slipped on a foreign substance on the floor, fell into a soft-drink display, and sustained injuries. We are asked to review a summary judgment in favor of Quinn Co. We hold that summary judgment was improperly granted as conflicting affidavits left a genuine issue of material fact. Ark. R. Civ. Pro. 56(c).
Mr. Wilson alleged his fall was due to slipping on a liquid substance and mashed food particles. In support of its summary-judgment motion, Quinn Co. produced the affidavit of Christopher Ramsey, the store’s assistant manager. Mr. Ramsey stated that, after hearing a noise near the soft-drink display, he went to investigate. He did not see anyone there; however, Mr. Wilson came out of the restroom and informed Mr. Ramsey that he fell on a french fry but was fine. He inspected the area where Mr. Wilson allegedly fell, but he did not see and was not made aware of a french fly, foreign substance, or anything slippery in the area. He said that, to the best of his knowledge, a store employee did not place any foreign matter in or near the area where Mr. Wilson fell. No employee had been made aware of the existence of any foreign matter in this area nor had any employee been asked to remove any such matter. Mr. Ramsey said his duties included checking the floor for food, spilled drinks, debris, and other foreign matter. Employees are trained to watch for and clean up any such matters on the floor, and the floors are cleaned on an hourly basis. He said that, approximately thirty minutes before Mr. Wilson fell, the area where he fell was cleaned and that the store did not serve french fries on the day in question.
In his counteraffidavit Mr. Wilson stated that there was a “dirty looking liquid” mixed with food particles on the floor that “looked like it had been walked through for quite some time.” The substance spread over nearly four feet, approximately the width of the aisle. After being helped up by an unidentified person, he went into the bathroom to stop his chin from bleeding. Mr. Wilson stated that when he left the restroom, a store employee asked him if he would be alright, and that the employee then turned to another employee and said, “I thought you cleaned that up.” Mr. Wilson also stated that the store employees had a clear view of the aisles from their usual position at the cash register behind the counter. He said that he was not warned of a substance on the floor, and there were no barriers or signs preventing him from walking down the aisle where the substance was allegedly on the floor. He was using crutches at the time of the fall and the employees were present when he wiped the substance from the floor off of his crutch.
Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). A summary judgment should not be granted when reasonable minds could differ as to the conclusions they could draw from the facts presented. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). The burden of proving there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue of material fact. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).
A property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Kelley v. National Union Fire Ins. Co., 327 Ark. at 335, 937 S.W.2d at 663; Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994).
In order to prevail in a slip and fall case, the appellant must show either (1) that the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. The mere fact a person slips and falls does not give rise to an inference of negligence. Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence.
Kelley v. National Union Fire Ins. Co., 327 Ark. at 335, 937 S.W.2d at 663 (citations omitted).
Mr. Wilson’s statement that the dirty water and mashed food particles looked as if they had been walked through for some time and that they had spread over a wide floor area raises the specter of a foreign substance having been present long enough that store employees should have known of its presence. In addition, his statement that one employee remarked to another that he thought “that” had been cleaned up adds considerable weight to the possible conclusion that the store was negligent by virtue of knowledge of the presence of the substance and failure to act to remove it.
Quinn Co. argues the statement alleged to have been made by its employee could have referred to an employee mentioning to another that the floor should have been cleaned after the accident. While that is a possibility, so is the possibility that it meant before the accident occurred. At any rate, the matter is one for a fact-finder.
Unlike cases, such as Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993), and Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861, in which we have affirmed a summary judgment or directed verdict due to lack of a showing as to how long the substance was on the floor prior to the fall, the evidence here is such that a fact finder could determine that there was a foreign substance on the store’s floor and that it was known to employees but not removed or that it had been present for a time sufficient to require its notice and removal by employees.
As all doubts and inferences must be resolved in favor of the nonmoving party, Mr. Wilson’s affidavit was sufficient to raise a material issue of fact. See Kelley v. National Union Fire Ins. Co., 327 Ark. at 336, 937 S.W.2d at 663. The affidavits conflict as to whether the substance had been on the premises for such a length of time that the store employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. A genuine issue of material fact remains to be decided.
Reversed and remanded. | [
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Kirby, J.
Appellee brought this suit upon a $500' insurance policy upon the life of her husband issued by appellant company in which she was named beneficiary.
The complaint alleged that the policy was in full force when the insured died, that proof of death was duly furnished, and that demand had been made for one-half the face of the policy, the amount due under its terms, and that payment had been refused.
The insurance company denied indebtedness upon the policy, pleaded a compromise settlement, and ex hibited a release signed by the beneficiary, the consideration of the same being the snm of $62.50. It alleged that the release was obtained from appellee, the beneficiary, on the 6th day of May, 1930, and, before the company could issue a check in that amount in fulfillment of the compromise, it was notified by Talbert, the father of the insured, that he was claiming the money due under the policy on the life of his son.
Upon the trial in the municipal court the appellant company tendered the beneficiary in the policy, appellee, the sum of $62.50 in fulfillment of the compromise agreement, which said sum was refused. Judgment was rendered in the municipal court for $250 with penalty and attorney’s fee, and the case was appealed to the .circuit court.
There the appellant again tendered the beneficiary in open court the sum of $62.50, “in fulfillment of their previous compromise with said beneficiary,” which was again declined. Upon the trial of the case in the circuit court the judge instructed a verdict for appellee in the sum of $250 with 12 per cent, penalty and $50 attorney’s fee; and this appeal is from that judgment. ■
The undisputed testimony showed that the release pleaded in bar of the suit was executed by appellee, but also that the money agreed to be paid therefor had not been paid to appellee. It is true that appellant tried to explain as a reason for its nonpayment that other claimants to the insurance had developed and tendered the amount of the consideration for the release to appellee, both in the municipal and circuit courts, where it was declined. This was more than five months, however, after the release was procured, and certainly such instrument could not be binding on appellee nor a bar to her suit on the policy, since it was procured without payment of the money agreed to be paid therefor, as shown by the undisputed testimony. Appellant concedes this to be true, but appears to think its failure to comply with the terms of the agreement for the release was excused by demand of another claimant to the insurance due under the policy, and that it had the right later to tender the money and complete the satisfaction of the new agreement. This, of course, could not be done. It admitted that it had not paid the consideration, under which the purported release was obtained, and there was no question for determination by the jury. There are other questions that need not be determined in view of this holding.
We find no error in the record, and the judgment is affirmed. | [
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Butler, J.
The Litchfield Clothing Company, appellee, brought suit against John B. Shaver, appellant, under his trade name of Shaver Mercantile Company, for the amount due on a bill of merchandise, and from a judgment in favor of appellee Shaver has appealed.
The facts, as stipulated in the court below, are as follows: “That the defendant being justly indebted to the said plaintiff in the sum of $239.19 for goods sold and delivered to him by the plaintiff issued and delivered to the plaintiff his check in payment of said debt drawn on the Bandolph State Bank of Pocahontas, Arkansas, for said sum and forwarded said check to the plaintiff at Litchfield, Kentucky; that said check was postdated for September 1, 1930, and was sent to the plaintiff; that the plaintiff immediately delivered said check to its attorneys, Forgey & Verdier, of St. Louis, Missouri, who. had this claim for collection at the time, and that on the 30th day of August, 1930, said attorneys, Forgey & Verdier, sent said check by United States mail to the Randolph State Bank for payment by proper exchange if said bank had funds to pay the same, and if not payable that said check be returned to them immediately. That said check was received by the said Randolph State Bank, but the bank did not cash it and did not return it as directed; that on September 23, 1930, plaintiff’s attorneys wired the defendant herein that he would have to take up said check as the bank had not remitted. That on the 23rd day of September, 1930, plaintiff’s attorney wrote the Randolph State Bank asking for returns on said check and followed soon after with a wire threatening to take the matter up with the State Bank Examiner if it was not paid or returned to them; that, in answer to this, the Randolph State 'Bank replied that they did not have said check and knew nothing of it; that said attorneys for the plaintiff thereupon wrote the defendant advising him that the bank could not locate the check.
“A copy of the letter forwarding said cheek to the Randolph State Bank, and a copy of the letter of the Deputy Bank Commissioner notifying Forgey & Verdier that said check was in the files of the Randolph State Bank are attached herewith as Exhibits A and B. It is further stipulated that at all times from August 30, 1930, to November 5, 1930, the date the Randolph State Bank closed, Shaver Mercantile Company, the drawer of said check, had sufficient funds in the Randolph State Bank to pay the same; that neither the payee of said check nor its agents, Forgey & Verdier, ever requested that said check be protested for nonpayment and took no action against said bank to compel the payment of said check.
“That the Randolph State Bank became insolvent and was taken over by the State Bank Commissioner on the 5th day of November, 1930, and has been liquidated by said commissioner. That the check of the defendant was found in the files of said bank after it was taken over by said commissioner and now appears therein, but was not paid, and still remains unpaid. That the plaintiff has-not received payment for said debt in any other way than by said check above mentioned, and it is further agreed that said check has not been honored by said Randolph State 'Bank and remains unpaid in so far as this plaintiff’s account is concerned against the defendant herein.”
In 5 R. O. L. at page 514 is the following declaration: “According to the prevailing view, it is negligence in the holder of a check to send it direct to the drawee residing in a distant place for payment; and the holder is responsible for any loss occasioned by adopting such a course.”
In the case of Anderson v. Rodgers, 53 Kan. 542, 27 L. R. A. 248, where a check was mailed directly to the drawee bank on the 12th day of December and which remained open for business on the 13th and closed on the 14th, and where on the 13th the bank returned the check to the sender with a notation of “no funds,” but where it was admitted that the drawer hád more than enough funds in the bank to his credit to pay the check, the court, in reversing the judgment of the lower court against the drawer, said:
“The Hamilton County Bank, therefore, selected the drawee of the cheek as its agent for collection. That this was negligence is well settled by the authorities. It is said in Daniel on Negotiable Instruments (Yol. 1, § 328a) : ‘For the purposes of collection, the collecting bank must employ a suitable subagent. It must not transmit its checks or bills directly to the bank or party by whom payment is to be made, with the request that remittances be made therefor. It is considered that no firm, bank, corporation, or individual can be deemed a suitable agent, in contemplation of law, to enforce in behalf of another a claim against itself.’ This proposition is sustained by abundant authorities. Drovers’ Nat. Bank v. Anglo-American Packing & Provision Co., 117 Ill. 100, 7 N. E. 601, 57 Am. Rep. 855; German Nat. Bank of Denver v. Burns, 12 Colo. 539, 21 Pac. 714; Merchants’ Nat. Bank of Philadelphia v. Goodman, 109 Pa. 422, 2 Atl. 687, 58 Am. Rep. 728; First Nat. Bank of Evansville v. Fourth Nat. Bank of Louisville, 6 C. C. A. 183, 56 Fed. Rep. 967; Farwell v. Curtis, 7 Biss. 160, Fed. Cas. No. 4, 690.
“It is insisted that inasmuch as the check was forwarded in due time, and came into the hands of the drawee, which refused payment, and returned the check with the statement: “ ‘No funds in bank,’ the defendant was not injured by the mode of presentment; that an answer of ‘No funds’ sent by mail is as effectual as refusal to pay as though made across the counter at the bank. Where due presentment is not made, the burden of proof is upon the holder of the check to show that the drawer has not suffered injury. Little v. Phoenix Bank, 2 Hill 425; Ford v. McClung, 5 W. Va. 166; 2 Parsons, Bills & Notes, 71; 2 Dan. Neg. Inst. § 1588; Daniels v. Kyle, 1 Ga. 304.”
In closing the opinion, the court in that case said:
‘ ‘ The request in this case by letter was not an ordinary demand of payment, calling for current funds, but was a request for Kansas City Exchange, which the drawee would of course be at perfect liberty to refuse. In cases of this kind a hardship necessarily results to one party or another. Courts, in their decisions, must be guided by fixed rules. The plaintiff, having trusted in the good faith of the Ritchfield Bank by sending the check to it, must bear the burden of the loss occasioned by its failure occurring after the day on which regular presentment should have been made.”
It is the opinion of the majority that an application of these principles to the facts exonerates the appellant from the payment of the debt, and that the trial court erred in holding otherwise. The judgment will therefore be reversed, and the cause remanded with directions to enter judgment for the appellant.
The writer and Mr. Justice Smith do not agree with the opinion reached by the majority.. | [
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Humphreys, J.
This suit was brought in the chancery court of Ouachita County, Second Division, by appellee, who was a creditor of the estate of Abraham Lazarus, deceased, against appellant to recover the proceeds derived, and to be derived from certain policies o£. insurance in excess of what an annual premium of $300 would pay for and subject said proceeds to the payment of the balance due him by the estate of said Abraham Lazarus. The proceeds derived and to be derived were and are from policies of insurance procured and carried by Abraham Lazarus for the benefit of his wife, Eosa L. Lazarus. She was the beneficiary named in said' policies at the time of his death. The suit was based upon § 557:9 of Crawford & Moses’ Digest, which is as follows:
“It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured, for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and, in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her and for her use; and, in case of the death of the wife before the decease of her husband, the amount of said insurance may be made payable to his or her children, for their use, and to their guardian, for them, if they shall be under age, as shall be provided in the policy of insurance; and such sum or amount of insurance so payable shall be free from the claims of the representatives of the husband, or of any of his creditors; but such exemption shall not apply where the amount of premium annually paid out of the funds or property of the husband shall exceed the sum of three hundred dollars.”
In the recent case of Townes v. Krumpen, 184 Ark. 910, 43 S. W. (2) 1083, this court construed said section to mean that, in any event , a husband might expend as much as three hundred dollars annually out of his funds as premiums on life insurance protection for his wife, and that he might expend more than said amount for insurance if purchased in good faith and without an intent to cheat, hinder and delay his creditors. It was ruled in that case that the creditors of the deceased husband might subject any excess insurance carried for the benefit of his wife to the payment of their debts, provided it was alleged and proved that he made a gift out of his funds in order to' cheat, 'hinder and delay his creditors.
The record in the instant case fails to show that Abraham Lazarus expended more than $300 per annum in premiums out of his funds for life insurance for the benefit of his wife in order to cheat, hinder and delay his creditors. Appellee made no such allegation in his complaint and did not introducé any evidence to that effect. The allegation and facts in the instant case bring it within the rule announced in the case of Townes v. Krumpen, supra.
The decree rendered by the chancery court must therefore he reversed, and the cause dismissed, which is accordingly done. | [
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Butler, J.
The American Bank & Trust Company, a banking corporation doing business in the town of Palis, entered into a written lease contract by which it leased a certain building in said town for a term of ten years, the lessor to make certain improvements and the lessee to pay a yearly rental of $1,620 at $135 per month. The improvements were made according to the agreement, and the bank entered on the property and occupied the same, paying the rental as stipulated for about five years,' when it became insolvent and was taken over by the State Bank Commissioner for liquidation. For about a year the deputy bank commissioner in charge of the liquidation occupied the premises and paid the rent at the rate of $135 per month, until the first day of May, 1931, at which time, acting under instructions from the banking department, he notified the appellant, the executrix of the lessor (then deceased) of his intention to abandon the premises unless she would accept a rental of $35 per month. Upon her refusal to do this, he notified her of his intention to vacate, and advertised for sale the bank fixtures which had been installed in the building by the bank. The appellant thereupon brought this suit, denying the right of the Bank Commissioner to cancel the lease, and prayed for an order restraining the sale of the fixtures until the full rental for the ten-year period had been paid, and claimed a vault door as a fixture to the freehold.
A temporary restraining order was granted until the cause could be heard, and upon a hearing thereof the court found (1) that the appellant had no lien upon the fixtures; (2) that the appellee, if he found the lease burdensome to the bankrupt estate, had the right, within a reasonable time, to terminate the same; (3) that the appellant had not been damaged by appellee in vacating the premises; (4) that she was entitled to the rent at the contract price for the month of May, 1931; (5) that the appellant was entitled to a reasonable rent since June 1, 1931, upon which proof might be taken; and (6) that the vault door affixed by the appellee is personalty like other bank fixtures, and may be removed.
This appeal is from a decree setting aside and vacating the temporary restraining order and dismissing the petition.
The appellant states that “the only real question in the case is whether or not, under the allegation of the peti tion and under the proof, the petitioner has a lien for rent upon the property described. * * * It is our contention that Dr. Bennett, in his lifetime, had a lien upon these fixtures on the demised premises for the accruing rent on the premises, and that his executrix, the petitioner herein, has a lien upon the fixtures for the rent as it accrues, and that she is entitled to have these bank fixtures condemned and sold to pay the unpaid rent upon the premises, the rent that has accrued and the rent as it yet accrues, but certainly for the rent that has accrued. ’ ’ To sustain this contention, learned counsel calls attention to the provision in § 719 of Crawford & Moses’ Digest, to the effect that the- title of the State Bank Commissioner to, and his right of, possession of insolvent bank assets shall be subject to any and all equities in favor of third persons which have arisen or have been obtained as against said property or assets prior to the taking charge thereof by the said commissioner, and to the holding in the case of Funk v. Young, 138 Ark. 38, 210 S. W. 143, 5 A. L. R. 79, that the Bank Commissioner is not an innocent purchaser in taking possession of the assets of an insolvent bank, but takes them subject to the equities against the bank. He also relies on the landlord’s prerogative of distraint by which at common law the landlord may seize all chattels found on the demised premises for rent in arrears. It is insisted that this common-law rule is in force in this State by reason of the provisions of §1432 of Crawford & Moses’ Digest, by which the common law, so far as the same is applicable and of a general nature, shall be the rule of decision in this State unless repealed by the General Assembly and not inconsistent with the Constitution of this State or of the United States.
Learned counsel for the appellant concede this rule has never been invoked or applied in this State, but that, not having been changed by statute, it still exists, for the reason that it is not at all incompatible with our institution. We cannot assent to this conclusion for the very reason that, throughout nearly a hundred years of the history of this State, no court or Legislature has ever recognized the harsh and oppressive remedies of the landlord’s common-law right of- distraint, and, in the absence of a statutory direction, we are unwilling now to revive and apply that doctrine. It is a matter of common knowledge that the tenant class of this State are among the poorest and most helpless of our citizens, and, in the absence of a statute or contract authorizing it, we decline to say that a landlord may seize and dispose of the poor belongings of his tenant for rent in arrears, which, in many cases, are all they have. Indeed, we are of the opinion that the only common-law lien that has been recognized by the statutes or courts of this State is that which was recognized at common law as artisans’ lien, by which a chattel which had been improved or repaired was impressed with a lien in favor of the workman so long as it remained in his possession. Gardner v. First National Bank, 122 Ark. 469, 184 S. W. 51.
Li the early case of Barnett v. Mason, 7 Ark. 253, this court declared that even that lien would be lost where the chattel was once surrendered and could not be revived by any subsequently acquired possession. In the case of Alexander v. Pardue, 30 Ark. 359, where a landlord sought to have a lien declared on the corn and cotton raised by his tenant on the demised promises for food and other supplies advanced by the landlord to enable the tenant to make the crop, the court denied the landlord’s right to the remedy invoked and defined a lien at common law to be “a right in one man to retain that which is in his possession belonging to another until certain demands of him (the person in possession) are satisfied.” Continuing, the court said: “It does not appear that the plaintiff was in possession of the cotton and corn. No presumption of such possession can arise from the fact that the cotton and corn were raised on land belonging to him, for the defendant can be regarded in no other light than as a tenant, and his possession is exclusive of the plaintiff’s.”
To the same effect are the decisions of the court in Hamlett v. Tallman, 30 Ark. 509; Roberts v. Jacks, 31 Ark. 361; Burrow v. Fowler, 68 Ark. 178, 56 S. W. 1061.
Most of the cases in which the question of a landlord’s lien has arisen are those dealing with the right of the landlord to a lien on the products of the soil. But we can see no difference in principle between such chattels and the cook-stove and sewing machine of the housewife or the furniture in a bank. The court, in a number of cases, has indicated that landlord’s liens in this State arise only by operation of statute, and thus inferentially deny the common-law lien to be fixed by distraint.
In the case of Smith v. Meyer, 25 Ark. 609, it was held that the landlord’s lien in this State is a statutory lien; and in Rogers v. Cooper, 33 Ark. 406, 409, and Walters v. Meyer, 39 Ark. 560-567, it was held that the landlord’s lien is a creation of statute. Where a rent contract provides for a lien on certain chattels in default of the payment of the rent, it has been construed by this court in effect to be a chattel mortgage.
In the case of Hill v. Morris, 124 Ark. 132, 186 S. W. 609, the court, in denying the right of the landlord to a lien on the property of the tenant which he had put into the leased building, and which he held as assignee of the original lessee, held that, although the original contract of lease contained a stipulation which might be treated as an equitable mortgage binding the property of the lessees in the building for the payment of the rent, this could not bind the property of the assignee with the lien for the payment of the rent to the lessor as none was “allowed him by statute or under common law.” (Referring to §§ 4 and 5, page 136.) See also Grayson v. Mixon, 176 Ark. 1123, 5 S. W. (2d) 312, where it was held that a landlord had no lien for rent due on the furniture of a tenant in a hotel.
The trend of all the cases above cited justifies the conclusion we have reached that the landlord has no lien either by statute or under the common law, as recognized and applied in this State, on furniture or other property of the tenant in the demised premises for arrears of rent.
The vault door was installed hy the bank, and was necessary for the conduct of its business, and could be removed without damage to the building. There is no showing made that it was the intention that the vault door should remain in the building and become the property of the landlord at the expiration of the lease, and the modern trend of decisions is in favor of the removal of articles affixed to the free-hold by the tenant unless, from their very nature, it appears that the fixtures were intended to be permanent, or that such was the intention of the parties. Choate v. Kimball, 56 Ark. 55, 19 S. W. 108; Ark. Cold Storage Co. v. Fulbright, 171 Ark. 552, 285 S. W. 12; Barnes v. Jeffers, 173 Ark. 100, 291 S. W. 990; Rogers v. Vanderbilt, 175 Ark. 977, 1 S. W. (2d) 71; Bank of Mulberry v. Hawkins, 178 Ark. 504, 10 S. W. (2d) 898; Alwes v. Richheimer, ante p. 535. These authorities sustain the chancellor in his finding that the vault door was a trade fixture and removable.
Since we have disposed of the question as to what, by her, is regarded as the only real issue in the case, and adverse to her contention, it will be unnecessary to discuss the other questions raised by counsel for the appellant.
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Humphreys, J.
This suit was brought by appellant agáinst appellee in the circuit court of Desha County to recover possession of two Phonofilm sound reproduction boxes, two preliminary amplifiers and fader control, one “B” amplifier and power supply unit, one set of loudspeakers, and. tubes necessary to install same in the theatre owned by appellee in MoGehee. The things named and sought to be recovered constituted the equipment of a DeForest Phonofilm, or talking-picture machine. It was alleged that appellant was a nonresident corporation, and that the equipment was of the value of $5,000; that appellant was entitled to the immediate possession thereof, and that appellee was unlawfully detaining same, to Appellant's damage in the sum of $1,000. It was further alleged that on the 4th day of February, 1929, appellant leased and delivered to appellee the said property, as an exhibitor, giving appellee a personal, nonexclusive; indivisible license to . use said equipment in his theatre in the city of McGehee, for which he agreed to pay the sum of $3,180, evidenced by twelve promissory notes in the sum of $265 each, the first note to become due on April 20, 1929, and one note each month thereafter until the .twelve notes were fully paid; that appellee has paid the first two notes, but has failed and refused to pay the notes maturing up to and including March 20; 1930; that •appellant has complied with all the terms of the license agreement, and that, by reason of said failure or breach of the contract, it was entitled to recover $2,650; together with the right to the immediate possession of the equipment aforesaid, and damages in the sum of $1,000. The written contract sued upon and notes evidencing the unpaid rentals were attached to the complaint as exhibits.
Appellee filed a special demurrer questioning’ appellant’s legal capacity to sue, and also an answer and Cross-complaint in which he admitted that appellant was a nonresident corporation, and alleged'that this suit is an action to enforce a contract covering intrastate business •done and to be done by appellant in the State of Arkansas, and is a contract the execution of which by appellant constitutes doing business in the State of Arkansas, and that appellant had not complied with the laws of the State of Arkansas authorizing it to do business in this State, and therefore could not maintain this action. In his cross-complaint, he alleged that there was an implied warranty by appellant that the machine.was fit for the purposes for which it was leased, and that this warranty had been broken; that appellant had contracted,to service the equipment and to send its agent, expert in the mainte nance and repair thereof, to make all necessary repairs and replacements on same, which contract appellant had violated; and prayed judgment for $20,508.73 as actual damages sustained by appellee on account of the failure of the DeForest Phonofilm to function and the failure of appellant to service the equipment and to make necessary repairs and replacements on same.
Thereupon appellant amended its complaint by alleging that its place of business is in the city and 'State of New York; that a few days prior to February 4,1929', its representative called on appellee and interested him in obtaining from appellant, under its license agreement, the properties described in the original complaint, and that its representative forwarded to appellant, at its place of business in New York, appellee’s order for said equipment; that appellee prepared in New York the license agreement referred to in the original complaint, and forwarded it by United States mail to appellee at Mc-Gehee, Arkansas; that the same was duly acknowledged by appellee and by him forwarded by United States mail to the State of New York, where the contract was approved and acknowledged by appellant on the 13th day of February, 1929; that, pursuant to said agreement, the property described in the original complaint was shipped to appellee at McGeliee, f. o. b.., from New York, which transaction constituted interstate commerce, so that the statute of Arkansas relied upon by appellee can have no application; and that the transaction involved was not doing business in the State of Arkansas, but was an interstate commerce transaction.
Appellant filed an answer to the cross-complaint, denying the material allegations therein.
The trial court heard and sustained the demurrer to appellant’s complaint, and dismissed same over its objection-and exception, and proceeded with the trial of appellee’s cross-complaint and appellant’s answer thereto, over appellant’s objection and exception, which trial resulted in a verdict and consequent judgment in favor of appellee in the sum of $12,500, from which is this appeal.
Appellant contends that the court erred in sustaining the special demurrer to, and dismissing, its complaint, on the ground that it had not qualified to do business in' Arkansas. The effect of the court’s ruling was to invalidate the contract as being made in violation of § 1832 of Crawford & Moses’ Digest, which provides that a non-qualifying corporation cannot make any contract in this State which can be enforced by it in law or equity. Under the allegations of the complaint as amended, the transaction was interstate and not intrastate. The lease of the talking-picture machine in question was entered into between the parties in the State of New York on a rental basis covering a term of ten years with an undertaking on the part of appellant to ship and install same in appellee’s theatre in McGehee, Arkansas, and, after making a test of the proper operation thereof, to supply worn or broken parts and keep the machine in repair for proper functioning. The character of the transaction as to whether interstate or intrastate .is necessarily determined by the essence of the contract. The essence of the instant contract was the renting or leasing of a picture machine in New York for shipment to McGehee, Arkansas. The agreement was entered into in New York. It was clearly an agreement for an interstate shipment, and must be classed as interstate commerce, unless that portion of the contract providing for installation, inspection and repairs renders the transaction intrastate. The decided weight of authority is to the effect that an agreement to install machinery or other apparatus at the point of destination will not divest the sale of its character of interstate commerce. The authorities treat installation of the apparatus as a mere incident to the sale or transaction. Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403; Milan Milling & Mfg. Co. v. Gorten, 93 Tenn. 590, 27 S. W. 971, 26 L. R. A. 135; S. F. Bowser & Co. v. Schwartz, 152 Wis. 408, 140 N. W. 51; Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526, 114 N. W. 684; DeWitt v. Berger Mfg. Co., (Tex. Civ. App.) 81 S. W. 334; Wolf Co. v. Kutch, 147 Wis. 209, 132 N. W. 981; A. Leschen & Sons Rope Co. v. Moser, (Tex. Civ. App.) 159 S. W. 1018; Vulcan Steam Shovel Co. v. Flanders, 105 Fed. 102; York Mfg. Co. v. Colley, 247 U. S. 21, 38 S. Ct. 430. In principle, we cannot see why an agreement for inspection and repairs of the machinery after being installed would take the contract of sale or lease out of the protection of the interstate commerce clause of the Federal Constitution.
We are also unable to draw any distinction between a lease and a sale rendering the first an intrastate and the second' an interstate transaction. This court held, in the case of Linton v. Erie Ozark Mining Company, 147 Ark. 331, 227 S. W. 411, that a foreign corporation owning a mine in the 'State was not doing business in the State in violation of said section of the statute where it had leased the mine.
Appellee argues, however, that, if the court erred in dismissing the complaint of appellant, it was not prejudicial error. The contention of appellee that the only issues in the case were covered by the cross-complaint and the answers thereto is not sound. The issue tendered by appellant’s complaint that appellee had breached the contract, and that by reason thereof it was entitled to the balance of the rentals and to $1,000 damages, was not included in the cross-complaint and answer thereto. Had appellant’s contract been treated as valid, it might have proved that same was breached by appellee, and recovered the balance of the rents and any damages on account of the breach, and have set off them against any damages appellee might have recovered.
On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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George Rose Smith, Justice.
On October 22, 1966, Thelma P. Heskett, a widow, sold her one-half interest in the Grauman-Heskett farm in Phillips county to her older daughter and son-in-law, the appellees. The consideration was $22,000 and the grantees’ promise to provide Mrs. Heskett with the necessaries of life after the purchase price had been fully paid. Mrs. Heskett died a few months later, on March 11. 1967. Her son and her other daughter, the appellants, then brought this suit to cancel the deed for fraud, inadequacy of consideration, and abuse of a confidential relationship. After an extended trial the chancellor refused to set the deed aside.
We agree with the chancellor, because the proof shows with hardly any dispute that Mrs. Heskett, after having obtained full knowledge of all the facts now relied upon for a cancellation of the deed, voluntarily elected to abide by her contract with the appellees.
The record exceeds 350 pages, but the essential testimony, much of which comes from the lips of the appellants themselves, is singularly free from conflict. Mrs. Heskett’s husband operated the farm with the Grauman family until Heskett’s death intestate in 1962. The three children then relinquished their inherited interest in the property to their mother, who occupied a mobile home on the place. Later on Mrs. Heskett’s son-in-law, the appellee Kenny Bryant, gave up his job and began managing the farnff for one half of the Heskett share of the profits. The Bryants moved to a nearby residence on property owned by the Graumans. That arrangement had continued amicably for about two years when Mrs. Heskett sold the property to the Bryants.
The deed was made two days before Mrs. Heskett entered a hospital for the second of two operations for cancer. The appellants insist that their mother was especially subject to being overreached, owing to her physical condition and to the confidence that she placed in her daughter and son-in-law. They also assert that the Bryants falsely stated to Mrs. Heskett that her interest in the farm had been appraised by two impartial persons at a value of $22,000, when in fact there had been no such appraisal and the grantor’s interest was actually worth more than $100,000.
Mrs. Heskett, who was in her late fifties, seemed to recover from her surgery. She traveled to "Waco, Texas, on December 9 or 10 and visited in her son’s home there until Christmas. On the day after Christmas she went on to El Paso, where her younger daughter was living, and remained there until her death in March following renewed hospitalization in February. During those months she was mentally alert, in full possession of her faculties. In fact, she began teaching a Sunday School class in El Paso and presumably was active in other ways.
The appellant John P. Heskett, a Baptist minister, learned the details of the sale from his mother on the way to the hospital in October. Even before Mrs. Heskett loft that hospital in November he acquainted her with the truth .about the worth of the land and urged her to repudiate the transaction. With full knowledge of the facts, and with a clear understanding that she may have been defrauded, Mrs. Heskett firmly announced during the ensuing months that she would rather .abide by the contract, even at a loss of $100,000, than engage in a court proceeding (perhaps with some question about her own mental competency than lose the fellowship of her daughter. In a somewhat similar case we have held that the grantor’s inaction precludes his heirs from successfully .attacking the conveyance. Blackburn v. Nichols, 149 Ark. 669 (mem.), 234 S. W. 495 (1921).
Despite the facts that we have mentioned, the appellants earnestly argue that there could be no effective affirmance or ratification of the transaction .as long as the confidential relationship between Mrs. Heskett and the grantees continued to exist. The authorities cited, however, do not go that far. Of course an affirmance is ineffective when the defrauded person is still acting under the same undue influence that made the transaction voidable in the first place. But that was not the situation in this case. Neither of the Bryants is shown to have had any exceptionally strong influence over Mrs. Heskett even when they were living close to one another. Whatever influence there might have been was fully counteracted during the months when Mrs. Heskett went to Texas, lived with her other two children, and in that atmosphere of detachment was urgently importuned to .abrogate the sale of the property. By analogy, an insane person’s contracts, though voidable in their inception, may be effectively ratified when the person regains his sanity. Brandon v. Bryearns, 203 Ark. 1117, 160 S. W. 2d 205 (1942). A like principle controls this case.
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Geobge Rose Smith, Justice.
The appellee, South-land Racing Corporation, operates a greyhound race track in Crittenden county, with pari-mutuel betting, under the authority of Act 191 of 1957, as amended. Ark. Stat. Ann., Title 84, Ch. 28 (Repl. 1960). In 1969 the General Assembly amended the law to provide that all officers and directors of such greyhound dog tracks must be qualified electors of the State, must have resided in the county where the track is located for at least two years, and must maintain their residence in the county during their tenure in office. Act 285 of 1969; Ark. Stat. Ann. § 84-2823.10 (Supp. 1969).
Harry Latourette is Southland’s only officer and only director who is not a resident of Crittenden county. Southland brought this suit against the members of the State Racing Commission and the Attorney General for a declaratory judgment holding Act 285 to be unconstitutional and for an injunction restraining the Commission from enforcing the act. This appeal is from a decree holding the act to be invalid as a grant of special privileges and immunities that do not equally belong to all citizens upon the same terms. Ark. Const., Art. 2, § 18.
In assailing the validity of the act Southland relies not only upon the privileges and immunities clauses of the state and federal constitutions, but also upon the due process, equal protection, and interstate commerce clauses. We shall consider all those constitutional attacks together, for with respect to each one the controlling question is whether Act 285, with its residence requirements, is a reasonable exercise of the state’s police power.
We hold the act to be valid. The operation of a dog track, with legalized gambling, is unquestionably a privilege which the State might prohibit altogether if it chose to do so. Fortune telling and the sale of intoxicating liquors fall in that same category and may similarly be prohibited. White v. Adams, 233 Ark. 241, 343 S. W. 2d 793 (1961); Wade v. Horner, 115 Ark. 250, 170 S. W. 1005, Ann. Cas. 1916E, 167 (1914). That being true, the State may impose conditions upon the exercise of the privilege beyond those that might be imposed upon the enjoyment of matters of common right. As we said in the Wade case: “The State has this right, because the authority to sell liquor is a mere privilege, which the State may grant or withhold, as it pleases, or, if it grants this permission at all, it may do so under any conditions which it cares to impose; and this is true, as has been stated, even though these conditions are so onerous, as to amount to virtual prohibition of that traffic.”
Statutes restricting the issuance of liquor licenses to local residents have frequently been sustained. Well reasoned opinions include those in De Grazier v. Stephens, 101 Tex. 194, 105 S. W. 992 (1907), citing other cases, and Hinebaugh v. James, 119 W. Va. 162, 192 S. E. 177 (1937), which we approved in Brown v. Cheney, 233 Ark. 920, 350 S. W. 2d 184 (1961), cert. den. 369 U. S. 796. Such a statute is a permissible exercise of the State’s police power. The reason is that the residence requirement enables the licensing authority to determine in the first instance whether the applicant is of good moral character and to maintain thereafter the necessary surveillance over the conduct of a business that must be closely regulated in the interest of the public peace, health, and safety.
Those considerations apply with even greater force to an establishment, such as a race track, where gambling is permitted. It is common knowledge that underworld racketeers and criminal syndicates are constantly seeking to gain control of gambling enterprises and devices, whether legal or illegal. Our lawmakers were certainly justified in believing that a residence requirement such as that contained in Act 285 would assist local authorities in the necessary policing of establishments such as race tracks. The exact extent to which such establishments should be controlled by law is peculiarly within the province of the legislative branch of the State government. When we consider the broad power that the state has over such enterprises, extending even to the point of total prohibition, we certainly cannot say that the simple residence requirements set forth in Act 285 are so arbitrary or so totally without foundation as to be contrary to the constitution.
We have not overlooked Southland’s further contentions that Act 285 violates the obligation of its contractual franchise and that the act is a local or special measure simply because Southland happens to operate the only greyhound track in the state. We do not regard either contention as having sufficient merit to warrant discussion.
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John A. Fogleman, Justice.
This is an appeal from the denial of postconviction relief under Criminal Procedure Rule 1. Appellant asserts the following points for reversal:
“1. Petitioner was denied effective assistance of counsel at the post-conviction relief hearing since he was represented during same by an appointed attorney who had a conflict of interest prejudicial to petitioner’s cause.
2. Petitioner was denied the right to have a witness present who could have supported petitioner’s contentions for post-conviction relief in that the Circuit Court of Benton County, Arkansas, erroneously refused to allow Gene Leland McGahan to attend the hearing as a witness for petitioner.
3. Petitioner’s plea of guilty was erroneously entered and should be set aside for the reason that he did not understand its meaning and effect and it was not entered freely and voluntarily but yras unlawfully induced and coerced by threat of prosecution of another.”
Appellant, along with Gene Leland McGahan and Pauline McGahan Davis, was charged with two counts of forgery and uttering. He was also charged, along with Gene Leland McGahan with two counts of attempt to escape from the Benton County jail. J. L. Hendren was employed by appellant and his codefendants to represent them. On December 10, 1968, appellant entered a plea of not guilty on the charges of forgery and uttering but changed his pleas to guilty on January 29, 1969, when he also pleaded guilty to the escape charges. He was originally given a sentence of not less than five years nor more than ten years on the first two charges and a three-year sentence on the escape charges, to run concurrently with the other sentences. On February 20, 1969, the sentences on the charges of forgery and uttering were corrected to a minimum sentence in each case of three years and four months in compliance with Act 50 of 1968.
When the present petition was filed, the circuit judge appointed the attorney previously retained by appellant to represent him, in spite of this attorney’s expressed conviction that his interests conflicted with those of appellant.
Appellant testified that he recalled being questioned by the trial judge in connection with his pleas of guilty and his answers to these questions along with the court’s explanation that the pleas would not be accepted unless they were changed because of his guilt. He also recalled discussing these pleas with his attorney, and he admitted that he was advised of his right to a jury trial and that he should enter a plea of not guilty, if he so desired. He stated, however, that his pleas of guilty were induced by a threat that if he did not do so, his girl friend and codefendant, Pauline Davis, who had admitted her guilt, would not receive a suspended sentence, but would be sentenced and would lose her two small children. Mize testified that he had told his attorney he would rather be tried on each and every charge, until Pauline Davis received a phone call from her husband advising that if she were not “cut loose” her children would be taken from her, and she advised him that the prosecuting attorney had also told her this. Mize then told his attorney that he wanted to change his pleas. The attorney advised him that he had a right to do so if he wished, but also advised at all times that he had a right to continue his pleas of not guilty if he wished. He stated that the attorney did not, in any way, force him to plead guilty, or advise him that it would be in his best interest to do so, but left his plea up to him. He recalled that Hendren told him it was up to him if he wanted to plead guilty in order “to be a Sir Galahad for Pauline.”
The pleas of guilty were then entered. The trial court appropriately caused a record to be made of these proceedings. Hendren then stated that he had outlined to all three defendants their rights and possibilities with respect to a jury trial, requested permission to enter pleas of guilty and related that negotiations with the prosecuting attorney had resulted in recommendation of the sentences later imposed for appellant and McG-ahan and a suspended sentence of three years for Mrs. Davis. The attorney advised the court that restitution had been made to those who had suffered losses because of the forgery and uttering of the money orders. The trial judge questioned each of these defendants extensively concerning the pleas then entered. He ascertained that appellant had been previously convicted of larceny on a plea of guilty. When asked if he knew what the pleading was and the nature of it, Mize answered in the affirmative. He also stated “I did” when the circuit judge asked if he had forged and uttered an instrument or check purportedly signed by someone else. The judge, after having given an explanation in detail, ascertained that each of the accused understood the sentences negotiated and their effect. Thereafter, Mize asked no questions about the plea, the charge, the sentence or disposition of the case even though the court gave him an opportunity to do so. He did ask about the release of some money being held pending completion of restitution. Judge Enfield made a very firm statement to these defendants that the only reason he was accepting the recommendation as to sentence, in view of their records, was because of the restitution made.
Because we feel that an attorney might well be placed in an untenable position when relief such as this is sought on the grounds alleged, it might have been appropriate that he be relieved and other counsel appointed under similar circumstances. While it did not become necessary in this proceeding, Hendren might well have been called as a witness. If this had occurred, all parties would have been placed in a perplexing situation, Still, we find that appellant had effective assistance of counsel. An examination of the record reveals that Hendren vigorously and capably conducted the presentation of evidence by and on behalf of Mize, the cross-examination of state witnesses, the making of ob jections, argument of the case below and briefing on appeal. Appellant expressed his satisfaction with the appointment of Hendren to represent him in the post-conviction hearing. He testified that this attorney advised him that he could continue his pleas of not guilty, and did not advise him that it was in his best interest to plead guilty. He added that the only way that the attorney influenced him was in accepting the sentence negotiated. He recalled stating to Hendren on the day of his sentencing that he would plead not guilty if he had to pay $457 in court costs. The attorney, according to Mize, agreed that this was ridiculous and persuaded the circuit judge to direct a reduction to $112.60. Thus, there is no merit in Point 1.
Likewise, we find no merit in Point 2. There was no indication in appellant’s petition or by any other means that he desired the attendance of McGahan to attend the hearing as a witness. The record disclosed that appellant’s attorney advised the court promptly when he learned of his client’s desire to present Mc-Gahan as a witness in support of the petition. While the circuit judge refused to continue the hearing because of Mize’s failure to make an earlier request for the attendance of McGahan, the court admitted into evidence an unsworn statement made by the proposed witness which had been attached to the petition. In this statement McGahan asserted that neither Mize nor Pauline Davis had any part in his passing the forged money orders and that all three were “pressured” into entering pleas of guilty by being told that Mrs. Davis would lose her two little girls if they did not do so. It was not suggested either in the trial court or in this court that McGahan would have testified to any other fact, if he were present. Under these circumstances, appellant was not prejudiced by the absence of McGahan, even if the trial court could be said to have acted erroneously in denying the request because of appellant’s lack of diligence in the matter.
In addition to the matters hereinabove set out, Mize testified that he told Hendren he was going to tell the judge that he was pleading guilty only on account of Pauline Davis and her children and not because he was guilty. According to him, Hendren said that the judge would not accept such a plea and that Mrs. Davis would remain in jail. Thereafter, the pleas of guilty were entered under the circumstances set out above. The trial judge expressly found: that he did not believe petitioner’s testimony on the issue of voluntariness of his change of pleas; that he voluntarily, knowingly and unde rstandingly entered his pleas of guilty; and that, after advice of counsel and of the court concerning jury trial, he voluntarily waived such a trial. We find ample support for these findings. In so doing, we consider appellant’s testimony that he would not have gone through with his pleas of guilty if the court costs had not been reduced by $300 to be of some significance.
In view of the failure of the trial judge to believe petitioner’s testimony, we find the decision in Cullum v. State, 244 Ark. 290, 424 S. W. 2d 523, relied upon by appellant, not applicable, even if it might otherwise have been. In that case the trial court accepted at face value the positive and undenied testimony by the petitioner there relating to promises made to him by the arresting officer and prosecuting attorney as inducement to the plea of guilty. In this case, there was no direct evidence that the threat as to Pauline Davis was actually made by the prosecuting attorney. Pauline Davis was apparently the only source of appellant’s information on this subject.
We do not overlook evidence relating to alleged threats of physical violence to Mize by the sheriff and his deputy, but it is clear that these threats, if made, were connected with efforts of Mize and his codefendant to escape and not with the pleas made or to be made in the eases.
The judgment is affirmed.
It appears that Mize was brought to the Benton County jail in the late evening of the day preceding the hearing and that he first conferred with his attorney about 8:20 p.m. Hendren stated that he was first advised of Mize’s desire to have the attendance of McGahan on the morning of the hearing. | [
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George Bose Smith, Justice.
This is a condemnation proceeding in which the highway department is taking, as a right-of-way for Interstate 40, a strip of land comprising 14,09 acres along the southern edge of a 50-acre tract owned by the appellees. The appeal is from a verdict and judgment fixing the landowners’ compensation at $65,000.
The appellant first insists that it was entitled to a change of venue. The proof offered to support the motion was subject to the same defects as that offered in Arkansas State Highway Comm’n v. Leavell, 246 Ark. 1049, 441 S. W. 2d 99 (1969); so, for the reasons stated in that opinion, the motion for a change of venue was properly overruled.
The appellant’s principal arguments center upon the substantiality of the testimony adduced by the landowners. They first introduced two expert witnesses, C. Y. Barnes and Lloyd Pearce. Barnes valued the strip taken at $650 an acre and the tract as a whole before the taking at $550 an acre. He fixed the landowners’ total damages at $54,000, much of which derived from the taking of, or depreciation of, improvements. Pearce, whose conclusions were. essentially similar to those of Barnes, valued the land at $500 an acre and arrived at total damages of $56,450.
We need not discuss in detail the testimony of the two expért witnesses, for both of their estimates of the landowners ’ just compensation were substantially below the amount of the jury’s verdict. We should observe, however, that just as in Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808 (1969), the witnesses were unable to cite a comparable sale of land in the vicinity at a price sufficient to support the acreage values they attributed to the land. The only specific figures given by Barnes were involved in a sale of land that he admitted not to be comparable to the Coffman property. He stated, merely as ,a conclusion, that he had considered probably ten or twelve sales “which you would take into account with a greater degree of intensity with reference to the Coffman property.” He also stated as a conclusion that he had adjusted poncomparable sales as a basis for his opinion, but again no details were- supplied. When asked if he had any sale of comparable property at as much as $550 an acre, Barnes said that he knew of no such sale. A witness for the highway department testified about comparable sales at a much lower selling price.
As we have indicated, the verdict must rest only upon the testimony of the landowner Coffman, who alone fixed the damages at an amount equal to the actual award. Coffman went substantially above the estimates of his own expert witnesses by valuing the land at $1,-000 an acre. On cross examination, however, he was unable to give any reasonable basis for such an exaggerated valuation. Hence his testimony is not substantial proof. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966).
Coffman said that two or three years before the trial a 40-acre tract about a quarter of a mile south of his land had sold for $1,000 an acre. He gave no facts whatever to support a conclusion that the two tracts were comparable within the meaning of the law. See Arkansas State Highway Comm’n v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963). To the contrary, he admitted on cross examination that the other sale involved land that fronted on a paved highway and that was sold for a subdivision, while Barnes had testified that the highest and best use for the Coffman tract was as an agricultural unit, “with a potential for urban development.” The testimony offered by the highway department was to the effect that the land involved in the sale cited by Coffman was not comparable to the property being considered in the case on trial. According to that proof, which stands uncontradicted in the record, the elevation of the other property was more desirable, that property did not flood like the Coffman land, and it was bought basically for its commercial area fronting on the highway. We are compelled to conclude that Coffman’s testimony was not of such a substantial quality as to support the jury’s verdict.
Reversed and remanded for a new trial.
Fogleman, J,, dissents. | [
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John A. Fogleman, Justice.
We remanded this case to the chancery court with directions to determine the boundary line dividing lands owned by appellants and those owned by appellee. McEntire v. Robinson, 243 Ark. 701, 421 S. W. 2d 877. Pursuant to the mandate, the chancery court entered a decree. It was based upon an agreement between the parties that the line be established 10 feet west of appellee’s house and run at a right angle to the north boundary line between the lands of the respective parties. This decree directed that appellee Robinson remove the fence then existing on or before January 1, 1969, and relocate the same on the boundary line fixed by the court pursuant to the agreement of the parties. On February 21, 1969, appellants filed a motion that the court authorize them to have a survey made, at their expense, to verify a survey made by one E. A. Jack Harris at the instance of appellee. The significance of the motion lies in its allegation that appellants and their surveyor should be authorized' to enter upon appellee’s lands for the purpose of making this survey. Written notice of hearing on this motion at 3:00 p.m. on February 24, 1969, was given appellee by appellants’ attorneys. At this hearing, the chancellor denied appellants’ motion. This appeal comes from the order of denial.
Appellants’ sole point for reversal is that the denial of their motion was an abuse of discretion on the part of the chancellor. We do not agree.
None of the appellants appeared when the motion was called for hearing nor did they subsequently make any appearance or offer any excuse for their non-ap pearanee. The hearing was not commenced until the court had awaited their appearance for twenty minutes after the hour specified. At the outset, the court called upon appellants’ attorney to proceed, as the moving party, to offer evidence in support of the motion. When he did not do so, the chancellor examined appellee, who was subsequently cross-examined by appellants’ attorney and examined by his own attorney. Robinson testified that he employed Harris, the County Surveyor of Lincoln County, to survey the line in accordance with the court’s decree. The reason he gave for employing this surveyor was that he had been surveying for Mr. McEntire for about 25 years. According to Robinson, when Harris came down to make the survey he sent Harris to get McEntire and his son, and they went along on the survey. He also stated that McEntire furnished iron stakes and had his stepgrandson put them down after the line was run. These were placed in the ground under the direction of McEntire, and Robinson said they were still standing.
Appellant called Mr. John Harris Jones, one of the attorneys for the McEntires, as a witness. Jones testified that he received a call from McEntire and Harris on December 4, 1968, the date Robinson said the survey was made. He talked to both on the same telephone call. He related that he advised McEntire not to try to prevent the survey because Robinson had a right to survey his own boundary.
Since appellee was charged with responsibility of moving his fence to the correct line prior to January 1, 1969, since one of the appellants caused iron stakes indicating the line established by the Harris survey to be placed in the ground, and since appellants made no application to the court until two and one-half months after the survey was made and then failed to appear and show any cause why their motion should be granted, there was no abuse of discretion on the part of the chancellor.
This does not mean that appellants cannot cause whatever survey they desire to be made at their own expense, so long as it is done without trespass on the lands of the appellee, or that the line established by the Harris survey is necessarily correct.
The decree is affirmed.
This person is also referred to as McEntise’s "grandson-in-law.” | [
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John A. Fogleman, Justice.
Appellant sued appellee on account of a back injury allegedly sustained by Mm wMle assisting in moving a pump bouse on appellee’s farm. Appellee moved for a directed verdict upon the ground that appellant had failed to show actionable negligence and had shown by Ms own testimony that he had assumed the risk involved. The trial judge granted tMs motion, finding that appellant assumed whatever risk was involved and dismissed the complaint. Appellant objected upon the ground that he could not be charged with having assumed the risk because he was without knowledge of the risk.
Appellant Smith was the son-in-law of appellee Snider. Smith had full-time employment but on his day off worked for Ms father-in-law on the latter’s farm. Bill Holland, the only full-time employee on that farm, had worked there since 1951. Snider, when called as a witness for appellant, testified that he directed Holland and the latter’s father to take a flatbed truck and move a pump house. When the elder Holland said that his back was hurting, Snider told Bill to get Smith and that Floyd Silver might assist them in moving the structure. He gave no instructions as to the method of loading it and felt that Holland should know how to do so.
The pump house, built of cypress in 1962 or 1963, was about four feet wide, five or six feet long, and four to four and one-half feet high. It weighed 340 to 400 pounds. It was ceiled and insulated. It had only been moved on one occasion previously. Smith had assisted Holland on tMs previous occasion when the building was “rolled.” Smith testified that he was familiar with the pump house, knew how it was constructed and knew it was heavy. He stated that after he and Holland “kind of walked” the house up to the flatbed trailer, lifted one end np and put it on the trailer, they got hold of the other end and pushed and scooted it according to Holland’s instructions. "While he was engaged in the lifting thus involved, Smith was struck by a burning pain in his back. The pain was not sufficient to prevent him from continuing to work. The next day he consulted a physician.
Smith testified that he had no previous experience in moving or loading’ such things as pump houses and that he simply followed Holland’s directions. Snider had confidence in Holland’s ability to load the house. Holland stated that he had moved heavy equipment on the Snider farm many times. In retrospect, both Snider and Holland felt that there probably would have been a better and safer method for loading the house. Snider said that it might have been jacked up or skidded hut not rolled. He also thought that it might have been pulled onto the trailer by a tractor. Holland said that it might have been “skidded” or “rolled” onto the trailer. Smith did not object to helping on the project and he did not suggest that any method other than that employed he used. He admitted that he had stated that he supposed the method employed was the best way.
Appellant contends that Holland neglected to obtain the assistance of another man and that his knowledge of the risk was not equal to that of appellee or of Holland. The holding of the trial court was correct. This case is strikingly similar to Luten Bridge Co. v. Cook, 182 Ark. 578, 32 S. W. 2d 438. There a carpenter employed by the bridge company was sent to assist two other employees in the removal of heavy wooden forms supporting concrete bridge girders. He suffered a rupture while engaged in this task, which was later accomplished by him and the other employees by a method other than that being employed at the time of his injury. The injured carpenter had not previously done work of this sort and was given no instructions as to the manner of removal. He contended that the failure of the employer to furnish sufficient help made the work dangerous and caused his injury. There, we said:
“Liability on the part of the master, the bridge company, is predicated upon the proposition that appellee was directed to perform a service, which was made dangerous by reason of not having been furnished sufficient help, .and that the work could have been performed safely had sufficient help been supplied.
We have stated the testimony in the light most favorable to appellee, as we are required to do in testing its legal sufficiency; but, when thus viewed, it appears to us that appellee must be held, as a matter of law, to have assumed the risk of his injury. He did not act in an emergency. The case is not one where the form was about to fall and be damaged, or injure appellee or one of his fellow servants unless he attempted to support it. In fact, he sustained his injury in an unsuccessful attempt to remove the form. To use his own expression, he ‘surged’ against the form with a force so great that he ruptured himself. No one could know better than he what force might safely be applied, and the danger of injuring himself if he overtaxed his strength was an obvious one, the risk of which he must be held to have assumed.”
Certainly Smith knew the weight of the pump house and his own physical capacity. There were no concealed dangers. Under these circumstances, he certainly must be said to have assumed any risk involved in the undertaking to move the building. In Missouri Pacific Railroad Co. v. Vinson, 196 Ark. 500, 118 S. W. 2d 672, we said:
“* * * Two men performing the simple task of carrying and stacking crossties will be charged with knowledge that such ties possess weight, and that the law of gravity has not been suspended. Every man will be presumed to know more about his own strength and to.be better informed as to his ability to lift, than is a stranger; and every manual task, however menial, requires the exercise of some intelligence upon, the part of those who undertake to perform it.”
There is an unvarying pattern in all our cases of this type. We adhere to them.
Appellant suggested, for the first time, in oral argument, in rebuttal, that assumption of the risk is only a form of negligence which should be compared by a jury with the alleged negligence of the employer pursuant to our comparative negligence statutes. We do not consider this argument because it was neither raised in appellant’s objection to the directed verdict, nor asserted in the briefs in this case in any way.
The judgment is affirmed. | [
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Frank Holt, Justice.
This is an appeal from a probate court order in which it was determined that all of the property of Brady Franklin Nash, deceased, should be vested in his two adopted minor children, subject to the dower and statutory rights of his widow. The appellee, who is the surviving spouse and also the natural mother of the children adopted by the deceased, was appointed administratrix of his estate. The appellants are the collateral heirs of the deceased.
For reversal the appellants urge that a temporary order of adoption does not create the right of inheritance in the children sought to be adopted. Since we do not agree with this contention, it becomes unnecessary for us to consider the additional point urged by appellants that the final decree of adoption rendered in the case is void on its face and does not create the right of inheritance.
On December 13, 1966 Brady Franklin Nash filed his petition of adoption in the probate court. In his petition he stated, inter alia, that he was morally fit and financially able to care for and support his minor stepchildren whom he wanted to adopt; that the minor chil dren were residing with him and his wife, who is their natural mother; that she had consented to the adoption; and he desired that they have his- name and that substituted birth certificates be issued to that effect. On the same day the court rendered a temporary order of adoption. This order provided that: “ [F]rom this date the said G-atha Ruth Hood and Wanda Darlene Hood shall be to all legal intents and purposes the children of the petitioner; that their names be changed to Gath a Ruth Nash and Wanda Darlene Nash, respectively, and that substituted birth certificates be amended to show the name of the adopting parent. ’ ’ On March 3, 1967, or less than six months after the rendition of this temporary order of adoption, the petitioner died. On June 14, 1967, upon the petition of appellee as administratrix of his estate, the temporary order was made final, the court finding , that more than six months had elapsed since entry of the temporary decree and that no objections had been filed thereto by any person or agency.
Subsequent to this final decree the appellants, as collateral heirs, filed a petition to determine heirship of decedent’s property. The decedent left a will which predated his marriage to appellee. The appellee, individually and as guardian of the two minor children, filed an intervention alleging that the children were entitled to inherit the decedent’s estate, subject to her dower and statutory rights. The appellants responded and alleged that these children were not legally adopted by the- decedent and that the purported adoption should be annulled. The court found the two minor children were entitled to inherit from their adoptive parent, the decedent, and that appellants’ petition for determination of heirship was a collateral attack on the order of adoption which is not subject to collateral attack. The court-said:
* * I do not believe that it was the intention of our legislature to change the legal status of these children merely by reason of the death of the petitioner prior to the expiration of six months from the date the original Decree was entered. As children of the petitioner from the date of the entry of the original Decree, said children were entitled to inherit as children of the petitioner.”
The court then ordered that decedent’s property be vested in his two adopted children, subject to the dower and statutory rights of his widow. We agree with the trial court. Ark. Stat. Ann. § 56-108 (1947) provides that when a temporary decree is rendered in an adoption case, the court shall order “that from the date of the decree the child shall to all legal intents and purposes be the child of the petitioner. The court may decree that the name of the child be changed according to the prayer of the petition, and shall provide whether the child’s substituted birth certificate shall, show the name of its natural parents or its adopting parents. After six [6] months from the entry of said temporary decree the petitioner may apply for a final decree and if no objections be made thereto by any person or agency, the same shall be granted. Upon objections being made, however, the court shall hear the same and shall thereupon make such orders as may be necessary. [Acts 1947, No. 369, § 9, p. 820.]”
The appellants argue that the temporary decree did not create the right of inheritance. They insist that according to § 56-109, a later provision of the above quoted act, the right of an adopted child shall vest only upon a final decree. This section of the statute reads, in part, that upon entry of a final decree:
“The person adopted shall have every legal right, privilege and obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate or the distribution of personal estate on the death of the adopting parents as if born to them in legal wedlock.”
We have had occasion to consider the effect of a temporary decree of adoption. A. v. B., 217 Ark. 844, 233 S. W. 2d 629 (1950). This case involved the question whether the mother of an illegitimate child could revoke her consent to its adoption after a temporary order of adoption was granted and before a final order of adoption was made. The mother and the father of the illegitimate child married following her consent to the adoption and she sought to withdraw her consent before the final decree. It was argued that the subsequent marriage and a withdrawal of consent before the final order prevented a valid adoption. The court said:
“* * * The answer to this is that the adoption is effective as of the date of the interlocutory order, unless later set aside at the final hearing for good reason (§ 56-108), and the consent is required as of the date of the interlocutory order. At the relevant date in this case the child was illegitimate; and the adoption had already become effective, subject to the final hearing, when his natural parents married each other.”
Despite the fact that objection was voiced and an attempt made to withdraw consent before final rendition of the order, we held that the adoption was valid and effective upon the date of the interlocutory order.
We have also held that an adopted child who is later adopted by other parents has inheritance rights from both adoptive parents. Hawkins v. Hawkins, 218 Ark. 423, 236 S. W. 2d 733 (1951). See, also, Graham v. Hill, 226 Ark. 258, 289 S. W. 2d 186 (1956).
Our statute provides that a petitioner “may apply for a final decree” after six months and the court shall grant a final decree if no objections are made by any person or agency. This time limitation permits anyone or any agency to voice disapproval. Even if objections are made, it provides that “the court shall hear the same and shall thereupon make such orders as may be necessary.” In the case at bar no objections were made by any person or agency before the final decree was rendered. Although the final decree was granted at the request of the administratrix of the petitioner, the granting of the decree was a mere formality in the absence of any objections. In our view the stepchildren, whom petitioner desired to adopt, became his children “from the date of the [temporary] decree * * * for all legal intents and purposes.” The language in § 56-109, relied upon by appellants, is merely descriptive of these vested legal rights. It necessarily follows that decedent’s property is vested in his adopted children, subject to his widow’s dower and statutory rights. If the decedent had desired a limitation of these vested rights, he could have made appropriate provisions in a will as was done in Hawkins v. Hawkins, supra.
Affirmed.
Fogleman and Byrd, JJ., dissent. | [
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George Eose Smith, Justice.
In 1966 the appellants, H. K. Faulkinbury and a family corporation, were operating- a grocery store in Texarkana. Their public liability policy with the appellee included insurance against damage suits for false arrest. The question here is whether a suit which the insureds settled for $5,000 was actually an action for false arrest within the coverage of the policy. The trial court held that it was not and accordingly directed a verdict for the insurance company in this suit brought by the insureds to recover their outlay, with penalty and attorneys’ fees.
We agree with the trial court. On March 26, 1966, Faulkinbury’s 17-year-old daughter Sharon drove to the parking lot adjacent to her father’s store. She testified that as she was getting out of her ear a young man in a car next to hers made an insulting remark to her. She ran into the store and reported the incident to her father. Faulkinbury concealed a pistol in his shirt and went out to the parking- lot to investigate the incident.
According to Faulkinbury and his son, a car occupied by several youths was just beginning to pull out of the lot. We quote that part of Faulkinbury’s testimony that is pertinent to the controlling issue:
A. ... I stopped them — hollered for them to stop, and they stopped.
# * #
A. ... I went on out and stopped them, and asked them what they were doing. They said, well, they weren’t doing anything, and I said, “Did you say something to this girl standing in the door?” and they said, “No, sir, we didn’t say anything.” They said, “Call her out and we will prove it to you,” so I turned and motioned for Sharon to come out. I thought, you know, possibly they might be the wrong ones, or something. Well, when I did, he pulled his car in gear and started easing up, and I told him, “Well now, just wait a minute and let’s see what this is all about,” and so he used some pretty vile language at me, and started moving up, and I told him two or three times to stop, and he kept creeping off from me, and . . .
Q. Where were you, now, Mr. Faulkinbury, at this time?
A. I was leaning inside the car — had my arm over inside the car, holding on to the car, and him gradually trying to drive off. I asked him two or three times to stop, and he just kept getting a little faster. I told him he was going to have to stay there until I found out what was going on; and he cursed me a few more times and started — he really jerked me, you know, as he accelerated faster. After telling him to stop two or three times, I pulled my pistol out and told him I meant for him to stop, and he cussed me again and started on, so I shot him. I shot twice into that car.
# # #
Q. All right. Mr. Faulkinbury, what happened right after you fired?
A. He just showered down on the gas, and more or less jumped the car out into the street, and went across the street into a little side street over there, and I could see that they were changing drivers, and they went on, and I went back in the store and called the police and reported what happened.
Later on the driver of the car, whose legs were hit by the shots, brought suit for his personal injuries, alleging assault and battery and false arrest. The appellee denied its liability but offered to defend the suit at its own expense. The appellants, as we have said, settled the case for $5,000 and brought this action against their insurer.
Under the terms of the policy the appellants can recover only if Faulkinbury’s conduct amounted to a false arrest of the injured youth. We think it plain that it did not. An essential element of the tort of false arrest, which is basically the same wrong as false impris- , onment, is the unlawful detention of the plaintiff against his will. “. . . [I]f he agrees of his own free choice to surrender his freedom of motion, . . . then there is no imprisonment. ... It is not necessary that the defendant have a warrant, or even that he be an officer, so long as he asserts the legal power to detain the plaintiff, and the plaintiff believes that the authority exists, and yields to it against his will.” Prosser on Torts, § 12 (3d ed. 1964); see also Ark. Stat. Ann. § 41-1601 (Repl. 1964).
Giving the appellants’ testimony its most favorable construction, we find no substantial proof of a false arrest. During the occurrence Faulkinbury made no statement even suggesting that he was attempting to make a citizen’s arrest. Although the group of young men in the car at first stopped, they did so voluntarily rather than under any semblance of compulsion. Thereafter their freedom of movement was wholly uninhibited. They made their departure despite Faulkinbury’s demands that they stop and despite his eventual resort to gunfire in a vain effort to bring the car to a halt. Upon the undisputed proof the trial court was right in holding that the injured driver’s asserted cause of action against the appellants was for the tort of assault and battery rather than for that of false arrest. It was therefore not within the coverage of the policy.
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Lyle Brown, Justice.
The home of appellee, Margaret W. Toffelmire, is located in downtown Dardanelle and it is conceded that the highest and best use for her property at the time of taking by the State Highway Commission was for commercial purposes. The Commission acquired by eminent domain a portion of the front yard which moved the right of way line to a point close to the residence. The construction program was necessary to relocate the approaches of State Highway 7 to the new Dardanelle Bridge, which is a short distance from the Toffelmire home. The jury determined just compensation to be $30,000. On appeal the Highway Commission contends that the court erred in not striking the value testimony of three.of the landowner’s witnesses. The asserted contention is well taken and calls for reversal.
Witnesses Toffelmire, Ross, and Pledger committed the same error. They all testified that the highest and best use of the entire property at the time of the taking was commercial. Yet in arriving at just compensation they intermingled residential and commercial values. One example will suffice, being the figures of witness Pledger:
Before Values: Land (commercial) $40,964; Improvements (residential) $28,153. After Values: Land (commercial) $12,100; Improvements (commercial) $7,-850.
Clearly, in a commercial use evaluation, the value of the improvements, both before and after the taking, should have been based on commercial worth. Our case of Arkansas State Highway Comm’n v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967), sets out the rule. There we said “a verdict rendered by a jury which was partially based on testimony relating to commercial value of the land, and partially based on testimony relating to the land’s value for residential purposes, would not be proper ...”
The only other expert witness for the landowner was Merle Lemley and the Commission asks us to hold as a matter of law that his testimony was not based on substantial evidence. In view of the probability of another trial we should comment on the point. That testimony was so inherently weak as to make it insubstantial. For example, the witness valued the land at $5.00 per square foot without knowledge of any comparable sale, just his asserted general experience; in fact he testified that he saw no merit in the use of comparables; he admittedly did not know the meaning of a ‘ ‘ controlled-access facility”; and he insisted that the condemnor had permanently deprived Mrs. Toffelmire of frontage access to the highway, in which impression he was in error. Finally, in fixing the value before the taking, he placed no value on the residence, whereas he did give it a value after the taking.
If we offered a remittitur, which we are asked to do, we would need fix a figure which we feel certain the State should pay, and which the landowner is clearly entitled to recover. There is one element of damage on which there is an absence of evidence. The highway department has constructed a retaining wall along the entire front of the Toffelmire property with no allowance for ingress and egress. The department assumed Mrs. Toffelmire would continue to use the property for residential purposes and in that situation the wall would be of advantage to her. (The entrance used by her is on the side of the house.) In fixing damages for commercial use we have to say she has no frontage entrance and exit because that is in keeping with the plans and specifications. The highway department argues, and correctly so, that Mrs. Toffelmire can obtain a permit for ingress and egress since the area is not a controlled access facility. The type of access is in the discretion of the department and the bureau of public roads; so it would be entirely speculative as to what type of access would be granted. Nor does the present record afford us any estimate of damages peculiarly applicable to the retaining wall.
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Conley Byrd, Justice.
The record here shows that appellant Joe Cook, on Oct. 22, 1966, purchased a 1966 Ford Thunderhird automobile from Gerald Harris. He traded in a 1964 Thunderhird and agreed to pay an additional $3,700.00 to consummate the sale. On that date Joe Cook signed a blank conditional sales contract and note which he gave to Harris with the understanding that Harris would hold the contract and note until he could furnish Cook the registration title and pink slip for the 1966 automobile. After approximately three weeks Cook returned the automobile to Harris because Harris could not furnish the title and pink slip as he had agreed to do. When the ’66 Thunderhird was returned, Harris had already sold or given up possession of the ’64 Thunderhird. At that time Harris agreed that he would get Cook a cheaper automobile.
Cook says that to his knowledge the conditional sales contract and note were never filled out. It is admitted that on Oct. 22, 1966, Harris took Cook’s conditional sales contract and note signed in blank to the offices of Southern Credit Corporation where Harris procured the services of a secretary of Southern Credit Corporation to fill in the blanks. Henry McClure, the Vice President of appellee Southern Credit Corporation testified that he had no knowledge of any defense or claim against the note at the time his company obtained it in good faith and for value.
The trial court entered judgment for appellee Southern Credit Corporation on the conditional sales contract and note. For reversal Cook raises three points, all of which are premised on the fact that appellee was not a holder in due course because it was aware that Harris had used a typewriter and one of appellee’s secretaries to fill in the blanks in the signed contract and note. We find appellant’s contentions to be without merit. Ark. Stat. Ann. § 85-3-304 (4) (Add. 1961) provides :
“Knowledge of the following facts does not of itself give the purchaser notice of a defense or claim
(a) . . .
(d) That an incomplete instrument has been completed unless the purchaser has notice of any improper completion; ...”
The committee comment to the Uniform Commercial Code with reference to subsection (4) (d) points out that the policy of the statute is premised upon the fact that a person in possession of an instrument signed in blank has prima facie authority to fill in the blanks. Therefore as we interpret the statute a purchaser of a commercial instrument is entitled to the status of a holder in due course even though he knows that the possessor of the signed instrument filled in the blanks.
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Conley Byrd, Justice.
The only point raised in this eminent domain appeal by the Arkansas State Highway Commission is that the jury verdict is excessive and not supported by substantial evidence. Two expert witnesses on behalf of the highway department testified to damages of $8,750.00 and $8,175.00 respectively. Mr. Lloyd Pearce, an expert called by the landowner, testified to damages of $17,675.00 and appellee Virgil Wingo testified to damages of $30,453.00. The jury verdict is $19,-000.00.
The record shows that the taking for Interstate 40 enters Mr. Wingo’s 365 acre farm on the southern boundary, near the southeast corner, and proceeds west in such manner that 29.66 acres in the southwest corner is landlocked without access. The taking itself is irregular, with obtrusions both on the north and south sides for use as tourist rest areas. Because of the terrain the taking also isolates a portion in the southeast corner from the remainder of his farm. The undisputed testimony shows that it will cost $1,000.00 to build a road from his main farm area to the property in the southeast corner that is north of the interstate. The land condemned by the Highway Department comprises 46.93 acres.
Mr. Wingo testified that the land was located approximately three-quarters of a mile from the city limits of Conway and that its highest and best use was for inter-urban land and farm land. Mr. Wingo based his valuations upon his knowledge of land that he had bought and sold in the area. He gave a before valuation of $151,000.00 and an after valuation of $120,-547.00. His breakdown of the damage was $18,772.00 for the 46.93 acres actually taken; $10,381.00 damage to the landlocked 29.66 acres; $1,000.00 for constructing a road to reach the lands in his southeastern corner, north of the interstate; and $300.00 for a pond he said was filled up during the highway construction.
On cross-examination the following occurred:
“Q. Will you tell the jury that all this acreage was worth $400.00 an acre?
A. Yes, because — Now, this over here on this road was worth more than that.
Q. That is your opinion. What did you have to base that on? How many sales do you know of of property in this area on this highway?
A. I don’t know—
Q. Let me ask the question and then you answer. You say this land on this highway is worth a whole lot?
A. It is worth more than the land off the highway.
Q. How far is this point from the City of Morrilton, this area here?
A. I guess from the city about a mile and a half, where the house is.
Q. Do you contend that this property is worth as much as property in the city limits of Morrilton ?
A. I am valuing that—
Q. How many acres of cleared land do you have?
A. It is practically all cleared, except maybe 100 acres on this ridge.”
# # #
“Q. The only thing you have to base your before value on is the fact that you think this is what the property is worth? You can’t prove it to the jury?
A. I haven’t sold any of it, and I have had lots of chances, and I paid about $300.00 for some of that.”
“Q. Other than the fact that you made improvements on your pasture, have you actually sowed this and fertilized it?
A. Yes, sir, I have the figures.
Q. I don’t need the figures. You are not able to show me any sales anywhere in this county of 80 or 120 or 160 acres of pasture land at $400.00 an acre?
A. I told you on the stand I figured this two or three different ways. As a farm—
Q. The fact is, Mr. Wingo—
A. As inter-urban land (sic) and as farm land.
Q. You call this inter-urban land?
A. Yes, sir.
Q. You are entitled to your opinion.
A. My—
Q. Don’t argue with me.
A. I’m sorry.
Q. That will be all.”
Mr. Lloyd Pearce, the landowners ’ expert, arrived at total damages of $17,675.00 based upon before and after value. Coneededly in arriving at this value he did not consider the $1,000.00 necessary to construct the road nor any damages to the pond.
Witnesses for the highway department testified that the highest and best use for the proprety was for agricultural purposes. They denied that it had any potential value for residential development in the foreseeable future.
Mr. Wingo’s testimony on direct examination is obviously sufficient to sustain the jury’s verdict. The issue here is actually whether or not the cross-examination destroyed that substantiality. We find that it did not.
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J. Fred Jones, Justice.
The only question presented on this appeal is whether the trial court erred in rendering summary judgment and entering order of dismissal as to W. E'. Clark & Sons, one of the defendants in this lawsuit. We conclude that the trial court erred.
On March 2, 1966, Ralph Elliott, an ironworker employed by Bush Construction Company, fell to his death from the ninth floor of a building under construction in Pulaski County when a defective eye loop gave way on the end of a cable supporting a swinging scaffold on which Mr. Elliott stood while working. The scaffold was supported by two cables, one at each end. The upper, or hanging end of each cable had an eye loop formed by drawing the cable around a steel ring or “honda” and weaving the end of the cable back into the main body of the cable and wrapping with wire. The scaffold had an “axle” arrangement in a drum at each end of the scaffold and one cable was threaded through a hole in each axle and secured by a steel collar babbitted onto height above the scaffold. The scaffold was raised and lowered by turning the “axle” at each end of the scaffold and winding or unwinding the cable on the axle. The eye loop at the end of one of the cables gave way causing Mr. Elliott to fall to his death.
Mrs. Eloise Elliott, as administratrix of the estate of Mr. Elliott, filed suit in the Pulaski County Circuit Court against Patent Scaffolding Company, Lyons Machinery Company, Inc. and "W. E. Clark & Sons, Inc., referred to hereafter as Patent, Lyons and Clark. The complaint alleged that Patent negligently designed, constructed and sold the scaffold and cables; that the scaffold and cables belonged to Clark; that the cables on the scaffold had become damaged and that the defendants Clark and Lyons undertook to repair the cables and in doing so, had negligently spliced the cable in a defective manner and had concealed the defect with wrapping applied around the site of the defective splice. The complaint alleged that the defendant Clark was further negligent in furnishing the defective scaffolding equipment to the decedent Elliott. All the defendants filed separate answers. Patent admitted that it manufactured the scaffoid but denied the alleged negligence.
On January 6, 1969, Clark filed a motion for summary judgment supported by three affidavits and six depositions and the motion was granted on February 7, 1969. On February 11, 1969, Patent filed an amendment to its answer specifically denying that it furnished the cable which gave way and caused the accident in this case. On February 13, 1969, Mrs. Elliott filed motion to set aside the summary judgment on the grounds that the entire lawsuit was predicated on Patent’s admission in its original answer that it had manufactured the scaffold which included the specially designed eye loop cables as a part of the scaffold. As to Patent’s amendment, the motion to set aside states:
“* * * If this allegation made by Patent is true, a* * # j£ this allegation made by Patent is true, then the whole defense of a latent defect must necessarily fail since it would appear that the cable and its wrappings were provided by either W. E. Clark & Sons or someone acting for them. At any rate, they could not claim, as they have in the Motion for Summary Judgment, that there was a latent defect in the scaffold at the time they received it and that they could not therefore be held responsible for its existence. Such a defense would absolutely be untenable if they themselves or someone acting for them provided the cable and wrappings on the scaffold.”
On March 3, 1969, the trial court denied the motion to set aside by reaffirming the summary judgment under specific findings, as follows:
“* * * Specifically, the Court finds that the scaffold from which the deceased, Ralph Elliott, fell to his death on March 2, 1966, was in the exclusive possession of Bush Construction Company from October, 1965, to March 2, 1966, as the result of a gratuitous loan of the scaffold to Bush Construction Company by W. E. Clark & Sons, Inc.; that the defect which caused the scaffold to fall with Ralph Elliott on March 2, 1966, was so latent that inspection of the scaffold and cables by both Clark and Bush personnel failed to disclose any defects which may have existed at the time of the loan of the scaffold in October, 1965; that the deceased, Ralph Elliott, was a licensee with respect to his use of the scaffold owned by W. E. Clark & Sons, Inc.; that at the time of his fatal fall, the decedent, an employee of Bush Construction Company, was not using the scaffold for any benefit of W. E. Clark & Sons, Inc; and that the scaffold was equipped with a handrail at the time it fell with the deceased, Ralph Elliott.”
On appeal to this court Mrs. Elliott relies on the following points:
“The trial court was in error in holding as a matter of law that there was a gratuitous bailment of the scaffold by Clark.
The trial court was in error in holding as a matter of law that decedent was a licensee of the scaffold and not an invitee.
The trial court was in error in holding as a matter of law that the defect in the scaffold was so latent that a reasonable inspection would not have disclosed it.
It could be inferred from the pleadings, affidavits and evidence that appellee Clark was responsible for the defect in the scaffold.
The trial court’s decision was against the weight of authority.”
Both sides have presented excellent briefs and able oral arguments, but we agree with Mrs. Elliott that Clark’s motion for summary judgment should not have been granted. The record is clear that the eye loop at the end of the cable gave way causing the scaffold to fall. It is also clear that the eye loop gave way because it was negligently formed by simply bending the cable around a steel ring or eye bringing the loose end of the cable alongside the main cable and binding the loose end to the main cable by wrapping with wire instead of weaving the loose end into the main cable, then securing with babbitt and wrapping with wire as was done on the other cable furnished with the scaffold.
It seems admitted by all parties that the cables formed a part of the scaffold when manufactured. As described in the record, the cables were irremovable from the scaffold drums without cutting the cable or removing the permanent cuff from one end or the eye loop from the other. So in the light of Patent’s amendment, if Patent did not furnish the cable involved, then someone had substituted the entire cable for the one Patent had prepared and sold through Lyons as a part of the scaffold. The record is clear that the entire scaffold was sold new to the defendant, Clark, through the defendant, Lyons. Bush was the prime contractor and Elliott’s employer on the job where the accident occurred, and Clark was a subcontractor on the same job. Clark purchased the scaffold in 1954 and had owned it 11 years before loaning it to Bush in October, 1965. Bush had retained possession and control of the scaf fold and had used it regularly for the four or five months between October, 1965, and the date of the accident on March 2, 1966.
The main question prior to Patent’s amendment was who negligently formed or attempted to repair the eye loop at the end of the cable. Since Patent’s amendment, the main question is who replaced the original cable with a defective one or who negligently formed or repaired the eye loop at the end of the cable.
The main question, however, is not before us on this appeal. We are not concerned here with who was responsible for the defective eye loop at the end of the cable, nor are we concerned here with whether Clark is, or is not, liable. We are only concerned with whether there are any issues of fact to be determined as to whether Clark is, or is not, liable.
In the case of Bull v. Manning, 245 Ark. 545, 433 S. W. 2d 145, this court said:
“A motion for. summary judgment is similar to a motion for directed verdict, in that the testimony must be viewed in the light most favorable to the ' party resisting the motion, and if there is any doubt whether a factual question exists, motion for summary judgment should be denied. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261; Keely v. Lumberman’s Mutual Ins. Co., 239 Ark. 766, 394 S. W. 2d 629.”
In the case of Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435, this court said:
“A motion for summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646. Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable men might differ, then a motion for a summary judgment is not proper. Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F. 2d 341 (5th Cir. 1950).”
In Wittlin v. Giacalone, 154 F. 2d 20, the court said: “... [I] t is well established that one who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and that any doubt as to the existence of such an issue is resolved against the movant. The courts are quite critical of the papers presented by the moving party, but not of the opposing papers. Indeed, Professor Moore says in his work on Federal Practice Under the New Federal Rules:
‘Even if the pleading of the party opposing the motion is defective .and does not state a sufficient claim or defense, the motion will be denied, if the opposing papers show a genuine issue of fact.’ See Curry v. Mackenzie, 239 N. Y. 267, 146 N. W. 375.”
In the affidavit of James C. Clark, in support of the motion for summary judgment, he states that no Clark employee, to his knowledge, repaired or attempt ed to repair the scaffold or cables; that all Clark employees had been instructed not to repair or attempt to repair the cables, and that all repairs had been made through Lyons; that Ellis Rolax, a Clark employee, had been in charge of all of Clark’s equipment for twenty-one years; that the drum to which the cable was attached was purchased from Patent through Lyons, and that the drum was loaned to Bush in October, 1965, and was not used by the employees of Clark until after the accident; that the loan to Bush was gratuitous without contractual obligation and was for the sole benefit of Bush. The affidavit denied any knowledge of any defect in the drum.
In the affidavit of Ellis Rolax he stated that it was a part of his duties to care for, store, pick up and deliver all scaffold equipment owned by Clark; that he never made or attempted to make any repairs to the cable or drum and that to his knowledge no other Clark employee has ever made or attempted such repairs. He stated that when repairs were needed he took the equipment to Lyons for that purpose; that he delivered the scaffold to Bush and inspected the wrappings on all four cables; that the wrappings all appeared to be the same and in good repair.
Mr. B. J. Faulkner was the third affiant in support of the motion. He was the brick foreman for Clark on the construction where the accident occurred. His affidavit is somewhat garbled, perhaps by error in transcription, but in it he states:
“I am familiar with and have used most or all of the Gold Medal Junior Scaffolding drums owned by W. E. Clark & Sons, Inc., who has repaired or attempted to repair any of W. E. Clark & Sons, Inc.’s drums or cables .excepting for replacing the wooden handles on the raising and lowering arms.”
Faulkner stated that the scaffolding drums were loaned to Bush; that the scaffold was equipped with a handrail and that from October, 1965, to March 2, 1966, none of Clark’s employees used or handled the equipment.
On September 9, 1969, excerpts from depositions of Ellis Rolax, E. M. Bush, Eddie Coleman, B. J. Faulkner, James A. Bain and Bob Meredith were introduced into the record by stipulation. Mr. Rolax testified that he inspected the cables and that the eye loops and splices, including the wire wrapping around the splices, all looked alike and looked like the same kind of wire. Mr. Coleman, an insurance adjuster, testified that he inspected the cable after the accident:
“A. I don’t call myself a qualified man as to splicing a cable.
Q. What was the appearance?
A. It just came to an abrupt stop. It wasn’t raveled or no indication that it had been spliced back in the cable.
Q. Just like you had cut the cable in two?
A. Right. I guess you would say it was frayed just a little bit on the end.
Q. According to what Mr. Meredith told you, Bush had this scaffold from October to March?
A. To my knowledge, they had had it during this time.
Q. Do you know whether they were paying for it?
A. I believe they were swopping out. What I mean, they had this crane that carried supplies up.
Q. Bush did?
A. Bush did on the job to carry supplies up and materials on up to the fourth floor, and they were allowing W. E. Clark to use this crane to get their materials up and down at no charge. I mean, this is how he explained it to me, that W. E. Clark was loaning the scaffold to Bush at no charge. (Emphasis supplied) .
Mr. Faulkner testified that he did not loan the scaffold, but imagines that Jimmy Clark did. He says he had no occasion to inspect the scaffold but did see the wrapping wire from the cable splice after the accident and that it looked very similar to the wire on the other cable splices. Mr. Faulkner also testified as follows:
“Q. Mr. Faulkner, you say you’d never made any repairs on any of these cables, could someone else at Clark Equipment have made some repairs that you didn’t know about?
A. Clark Equipment?
Q. Clark and Sons, excuse me.
A. Well, anybody could have done anything as far as. . .
Q. Did you say anyone could have wrapped this cable in a fashion that it appeared to you?
A. I would say . . . no, I wouldn’t say anyone exactly, I would say someone that knew what they were doing could make it look like a factory job you might say.”
Mr. Bain, a state safety inspector, testified that the cable had not been spliced:
“A. * * * one cable, suspension cable, had been rigged through the clevis and around the eye and brought up with a loose end and a cover . wire had been tied around this loose end, it had not been woven into the cable as the other three were.”
Mr. Meredith, the job superintendent for Bush, testified that he borrowed the scaffold from Clark and had been using it for some time. Part of Mr. Meredith’s testimony is as follows:
“Q. How closely did you all inspect the eyes and the wrappings?
A. We didn’t cut them off. I mean we closely inspected them, as closely as a visual inspection would permit.
Q. You got down, picked them up and looked at them and see if they looked normal?
A. Yes.
Q. Were the wrappings all tight?
A. Yes.
Q. Could you see in between the wrappings?
A. No, thev were all dirty.
# # *
Q. Did the ends of the wrappings appear to be tucked in?
A. Everything seemed to be perfect.
Q. So the only difference that you could see would have been maybe the size of the wire on the one that gave way was a little different?
A. I didn’t state that there was any difference in the size, I stated that there was a difference in the wire itself.
Q. In the coating of the wire?
A. Well, yes. One wire is harder, was a little harder. This sixteen gange wire is a relatively soft wire that we nsed to tie reinforcing steel with, yon can wrap it and hend it and flex it more easily. This other wire appeared to he a harder annealed wire. I believe annealed may cover the same finish, I don’t know.
Q. Which wire do yon think was galvanized?
A. Beg yonr pardon?
Q. Which wrapping do yon think was galvanized?
A. The three that were on the spliced cable.
Q. Mr. Meredith, yon say yon borrowed these two swinging scaffolds and fonr drams from Clark. Am I correct that yon paid them nothing for that? They jnst loaned them to yon for gratis?
A. We paid them nothing. Let me clear that up. There are certain things ... I say we paid them nothing, maybe I paid them something in services. There is so much of that that goes on on these jobs. You scratch my bach and I’ll scratch yours. Yon know what I mean?
Q. Yon may have loaned them something?
A. No monetary, we didn’t give them any money for the nse of the scaffold.
Q. You. think you loaned them any of your equipment?
A. I’m not sure of that. I mean he might have had to use an air compressor or something. You just don’t keep up with those things.
Q. Did you inspect the wire wrappings on the broken cable?
A. Yes.
Q. Could you tell anything by looking at it?
A. Clarify this. Could I tell anything by looking at it?
Q. Well, did it appear to be a different type wire?
A. It was a different type wire.
Q. It was a different type wire?
A. It was a different type wire.
Q. How can you say that?
A. Because after we cut the wire off of these other cables it was a, oh, I think I use the correct word in saying, an annealed wire.
Q. I don’t know what you mean.
A. Well, I believe that it’s almost a certainty that the wire that was on this particular end of the cable was a simple sixteen gauge tie wire as used on any construction job in the state.
Q. What type of wire was the other wire that was wrapped on the other end of the cable?
A. An annealed, probably galvanized. I mean it was old with mortar droppings and so forth and stained, but it was a harder wire.”
One of the issues between Mrs. Elliott and Clark, made up by the pleadings in this case, is whether the decedent Elliott w.as a licensee on the scaffold and the only duty owed by Clark was to refrain from willful or wanton injury, or whether Elliott was an invitee and Clark owed him the duty to provide a reasonably safe scaffold. Whether Elliott was an invitee or a mere licensee of Clark on the scaffold belonging to Clark, would depend to a great extent on the arrangement under which Elliott was using Clark’s scaffold. Both sides recognize the existence of a bailment. Clark says the arrangement was a gratuitous bailment, making Elliott a mere licensee in the use of the scaffold, and making Clark under no duty to inspect the scaffold and liable only for its failure to disclose such dangerous defects in the scaffold as were known to Clark.
Mrs. Elliott contends that the bailment was for hire and that Clark owed a duty to exercise reasonable care in furnishing a safe scaffold to those expected to use it and to discover any dangerous defect in the scaffold and either cure the defect or inform the bailee of such defects.
The appellee Clark invites us to define the care ewed by gratuitous bailors to their bailees and other foreseeable users of chattels bailed, but that question is not presented to us on this appeal. Indeed we are not presented with the question of whether the bailment in this case was gratuitous or for hire. The only question presented on this appeal as to the nature of the bailment, is whether there was any genuine issue of fact as to whether the bailment was gratuitous or for hire at the time the motion for summary judgment was granted.
In St. Louis & C. R. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079, a bridge foreman employed by the railroad was furnished with a railroad car designed for boarding the employees under the foreman’s supervision. The car was moved from place to place as bridge repair work demanded, and the foreman lived in the car and boarded the other employees. The car was derailed through a collision and the foreman’s personal property in the car was damaged. In a suit by the foreman the railroad denied liability on the theory of gratuitous bailment. In passing on a bailment instruction, this court said: “If the property of the plaintiff was carried solely for the carrier’s benefit, then the carrier was liable for slight negligence. If the plaintiff and the defendant derived a reciprocal benefit from the carriage, the defendant carrier was liable for ordinary negligence; if the transportation was exclusively for the benefit of the plaintiff, then the defendant was liable for gross negligence. ’ ’
The parties seem to agree on oral argument that the bailment in the case at bar was gratuitous if it was for the sole and exclusive benefit of Elliott or his employer Bush, and that it was for hire if it was for the mutual benefit of Clark and Elliott or Elliott’s employer Bush. See Pacific Fire Ins. Co. v. Murdoch Cotton Co., 193 Ark. 327, 99 S. W. 2d 233, and Warren v. Geater, 206 Ark. 518, 176 S. W. 2d 242. See also Bill Bell v. Ramsey, (Texas), 284 S. W. 2d 244; Meny v. Carlson, 77 A. 2d 245.
It is obvious from the record before us that if Patent did not furnish the cable on which the defective eye loop was found, that cable was later installed in the scaffold drum in the process of replacement or repair. We hold, therefore, that if Clark derived a benefit from Bush in exchange for the use of the scaffold, then the evidence of such benefit should be considered in determining the liability of Clark as a bailor of the scaffold. It is true that Clark in his affidavit said: “I lent the aforesaid drum to Bush Construction Company upon request of' Bob Meredith, a Bush job superintendent, and such loan was gratuitous and for the sole benefit of Bush Construction Company.” If this affidavit had stood alone, then there might have been no genuine issue of fact to be resolved on this point, but it did not stand alone. Eddie Coleman testified in his deposition that Mr. Meredith explained to him that Bush was allowing Clark to use a crane for lifting materials up and down at no charge, and that Clark loaned the scaffold to Bush at no charge. Mr. Meredith testified: “We paid them nothing. Let me clear that up. There are certain things. . . I say we paid them nothing. There is so much of that that goes on on these jobs. You scratch my back and I’ll scratch yours.”
In 8 C. J. S., Bailments, § 8, subsection b, p. 352 is found the following:
“In determining whether a bailment is lucrative or gratuitous, the nature and amount of the compensation are immaterial, and in order to constitute one a bailee for hire it is not necessary that the benefits be large, certain, or of any particular nature.”
We conclude, therefore, that the pleadings, affidavits and depositions still leave material facts for determination as to Clark’s liability in this case and that the trial court erred in granting Clark’s motion for a summary judgment. The judgment of the trial court is reversed and this cause is remanded for trial on the issues.
Reversed and remanded. | [
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John A. Fogleman, Justice.
This appeal is from a judgment of the Pope County Circuit Court which held void an order of the county court incorporating approximately 925 acres of land, near Russellville in Pope County, into the town of Ouita. The circuit court enjoined the incorporators from proceeding further with organization of the town under the county court order, and the incorporators prosecute this appeal under the name “Town of Ouita.”
Approximately 80 resident landowners in the area involved filed their petition and plat in the office of the Pope County Clerk; the petition named Alfred B. Hettel, Jim Parrish and four other individuals to act in behalf of the petitioners, and the other preliminary statutory procedure for incorporation was carried out. No one appeared in opposition to the petition at a hearing held by the county court, so the petition was granted and an order of incorporation was entered by the county court under authority of Ark. Stat. Ann. § 19-103 (Repl. 1968).
John Heidgen and J. Madison White filed this action to have the order of incorporation declared invalid. They alleged that the petition and notice in the incorporation proceeding did not accurately describe the area or territory proposed to be included within the corporate limits, which is a ground for injunctive relief under the provisions of Ark. Stat. Ann. §§ 19-105 and 19-106 (Repl. 1968). They also alleged that the petition for incorporation was not filed with a good-faith intention of establishing a town or city, but only for the purpose of preventing the territory from being annexed to the city of Russellville, which had already commenced annexation proceedings. Additional allegations were: the nature of the land and terrain was not of such character as to form an incorporated town, so that taxation levied for municipal purposes would constitute the taking of private property without mailing just compensation to the owners; the proposed incorporated town would be incapable of affording them with municipal services, thus depriving them of protection of life, liberty and property.
The circuit court found that the description of the proposed limits of the town of Quita was vague and indefinite. 'That court also found that, from the testimony offered by the incorporators, it was apparent that there was no actual desire on the part of the residents living within the area proposed to reside in a municipal corporation. The court further found that the evidence showed conclusively that the proposed incorporation would be unable to offer any services as a city, the anticipated annual income from a five-mill general purpose tax amounting to less than $500. The cir- cu.it judge based Ms concMsions that the order of incorporation was void and that the complaining parties were entitled to an injunction upon our decisions in Waldrop v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S. W. 369 and Arkansas and Ozark Ry. Co. v. Town of Busch, 223 Ark. 27, 264 S. W. 2d 54.
Appellant relies on the following points for reversal:
“The Court erred in admitting the plat (Tr. 47) attached to Plaintiff’s Exhibit No. 1 and in finding that the limits of the Town of Ouita are vague and indefinite.
That the incorporation was not in good faith; that the Town of Ouita would not be able to offer services as a city; and that the property of Plaintiff, John Heidgen, would he taken by taxation without protection or just compensation.
That the Court erred in declaring the Order of the County Court of Pope County, Arkansas, entered on June 11, 1968, null and void and in enjoining the incorporators of the Town of Ouita from further proceedings.”
We find no reversible error on the latter two points for reversal and consequently affirm the judgment. Although it appears that there is error in the court’s finding that the description of the proposed corporate limits was vague and indefinite, this would not call for a reversal since our holding on the other two points would require affirmance of the judgment regardless of whether the description in the petition was totally void or was perfect.
It would only prolong this opinion to set out in detail the testimony adduced at the hearing before the circuit court, but Mr. John Heidgen testified that he is an owner of an undivided interest in nine acres included within the designated limits of the proposed corporation and that none of the benefits usually derived from a municipal corporate entity such as streets, sewers, water mains, fire and police protection, is available, or likely to become available, if the town of Guita is incorporated.
We have sustained attacks on orders of incorporation on the grounds relied upon by appellees and the trial court. See Waldrop v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S. W. 369; McCarroll v. Arnold, 199 Ark. 1125, 137 S. W. 2d 921, Arnold v. McCarroll, (same case) 200 Ark. 1094, 143 S. W. 2d 35.
The Waldrop case was a suit for injunction against the collection of taxes from a railroad in the purported town of Ogden, alleged by the taxpayer to be nonexistent. The trial court found the order of incorporation to be void. One of the bases for this finding was that the land was not of such character as could form an incorporated town. Since it was manifest that the owners of the lands involved could not derive any benefit from being placed within the limits of the town, and that the town was only incorporated for the purpose of organizing a school district, we said that the attempted organization was void as an arbitrary and unreasonable exercise of power. This, we held, constituted, insofar as a property owner and taxpayer was concerned, the taking of private property for public use in the form of taxation without giving any compensation, by way of protection to life, liberty, property, or otherwise. Similarities in this case and Waldrop are so great that it constitutes binding precedent here.
It is admitted by appellants that: the 925 acres sought to be incorporated as the Town of Ouita are either open farmland, pastureland or timberland, on which there are rural homes; there are no platted areas other than a few lots on one corner; and the area is not generally what one would think of as urban territory. There is testimony by one of the representatives of the incorporators which supports the trial court’s findings. He said that the people in the area involved were interested in agricultural pursuits and decided upon a movement to incorporate the Town of Ouita to avoid restrictive municipal ordinances such as would be imposed upon them if a proposal to annex the territory to the City of Russellville were effectuated. The testimony of the only other incorporator called as a witness was of the same tenor. He stated that he would rather be in Ouita than in Russellville. There was also substantial testimony that an incorporated town with the revenues that could be anticipated by Ouita could not furnish any municipal services. Closely parallel factors were considered in Waldrop to render the order of incorporation void. Upon similar evidence the incorporation of Omaha was held void in Arnold v. McCarroll, 200 Ark. 1094, 143 S. W. 2d 35.
We do not say that a desire for corporate government and services by a new municipal corporation rather than by annexation of the territory to an existing municipality could not be a legitimate reason for incorporation. We do say that the evidence that petitioners did not desire corporate government was substantial, and that a preponderance supports the findings made.
The circuit court’s finding, that the proposed incorporation was not in good faith, did not reflect on the personal honesty and integrity of the petitioners. As a matter of fact their recorded testimony compliments their personal honesty and integrity. "While, at best, their testimony is vague and indefinite as to why they do want to incorporate the town of Ouita, it is amply clear that they simply do not want their lands annexed to Russellville where their property would be subject to corporate taxes and ordinances regulating the use of their property. It is obvious from the record that the incorporators concluded that they could best remove the threatened annexation to Russellville by incorporating their own town where their own town ordinances, if any, would not interfere with their rural farming operations. In other words, they sought incorporation to avoid municipal handicaps rather than to obtain municipal benefits.
The judgment is affirmed.
No question was ever raised here or in the trial court as to the propriety of the exercise of this jurisdiction by the law court, rather than the chancery court, by objection, motion to transfer or otherwise. Since the trial court reached a correct result, there would be no basis for reversal even if the case should have properly been filed in or transferred to the equity court. Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67; Shaphard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A. L. R. 247. This is not a case in which the circuit court is without any power to act on the subject matter. Furthermore, no question was raised as to the standing of appellees to bring this action. | [
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Lyle Brown, Justice.
Skerczak sued Henderson for personal injuries arising out of a vehicular collision. The jury found in Henderson’s favor. Twenty-four days after the jury returned its verdict, Skerczak filed a motion for new trial which was granted. Henderson appeals from that order, contending (1) the motion was filed out of time, and (2) there was no showing justifying a finding of unavoidable delay in filing the motion.
With, respect to the issue over the timely filing of the motion, Skerczak contends it was actually filed in time. Skerczak interprets the statute to mean fifteen days after judgment. The jury verdict was returned on November 26; a signed judgment was entered on December 11; and the motion for new trial was filed on December 18. (These dates are all in the same court term.) So if the time starts running from the date of judgment, rather than the date of the jury verdict, Skerczak is correct. The applicable statute is Ark. Stat. Ann. § 27-1904 (Repl. 1962). The portion here pertinent provides that an application for a new trial (excepting one based on newly discovered evidence) shall be made within fifteen days “after the verdict or decision was rendered, unless unavoidably delayed; ...”
We cannot read “judgment” into the quoted statute. The drafters of our Civil Code had a number of occasions to use the words “verdict” and “judgment.” They are not used interchangeably. For example, in one instance we find the phrase, “judgment must be entered by the clerk in conformity with the verdict. ’ ’ Ark. Stat. Ann. ^ 29-109 (Repl. 1962). Then in § 29-111 it is stated that “judgment shall be so entered by the court, though a verdict has been found against such party.” The distinct difference between the two words is almost universally recognized in jurisprudence. City of Aurora v. Powell, 383 P. 2d 798 (Colo. 1963); Schofield v. Baker, 242 F. 657 (1917). It was aptly said in the Powell case:
The jury made these findings of fact. Such findings do not constitute a judgment. The verdict is not a judicial determination, but rather a finding of fact which the trial court may accept or reject and utilize in formulating a judgment. To constitute a judgment, there must be a judicial act.
We also think it is. of some significance that the two words are treated in our Criminal Code as being distinct. We refer to the section governing the applica tion for a new trial, Ark. Stat. Ann. § 43-2202 (Repl. 1964). There it is said, among other things, that the application must be made “at the same term at which the verdict is rendered, unless the judgment is postponed to another term . . . .”
This brings us to the second point on appeal. Appellant contends there was no substantial evidence of unavoidable delay as found by the trial court. Counsel for Skerczak moved to strike the motion for a new trial and the court conducted a hearing. The reporter testified and counsel for Skerczak made a statement. That evidence showed that counsel for Skerczak ordered Henderson’s testimony transcribed. The order was placed “within a week or ten days” after the trial on November 26. Counsel desired to attach a copy of Henderson’s testimony to the motion for new trial to support his point that Henderson’s testimony itself was sufficient to establish a jury question on negligence. The transcribed testimony was delivered on December 8, the twelfth day after the trial. A few days thereafter Skerczak’s counsel delivered the transcript to the clerk and it was there discovered that the reporter had not signed the certificate. On that same date the reporter’s signature was obtained. Some four days thereafter, on December 18, the motion for new trial was filed. Skerczak’s counsel stated that he was out of town during the four-day interval because of the serious illness of his mother.
The untimely filing of the motion could easily have been avoided. In the face of the fifteen-day statute, counsel waited a week or ten days before ordering the testimony transcribed. The transcription was actually delivered before the fifteen days expired. The certificate of the reporter was a formality which could have been cured at any time before the hearing on the motion. Actually, it was not necessary to delay the filing so that Henderson’s testimony could be attached to the motion; that evidence could have been filed at any time before the hearing on the motion. It is not even contended that a transcription of Henderson’s testimony was necessary in order to apprise counsel of its contents, which might have been the case had there been a change in attorneys.
We are not unmindful of the general rule that a trial court may during the same term set aside a judgment without stating any cause. An exception to that rule is recognized in cases of jury verdicts or judgments based thereon; in those situations they cannot be set aside in the absence of the timely filing of the proper motion unless a late filing is caused by unavoidable delay. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S. W. 2d 585 (1961); Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S. W. 2d 724 (1969).
Reversed. | [
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Lyle Brown, Justice.
Appellee brought suit asserting that appellant, a Conway, Arkansas, druggist, owed a balance of $558 on a contract and note. It was stipulated that appellee, Universal Plastics, Inc., was a foreign corporation not qualified to do business in Arkansas as required by Ark. Stat. Ann. §§ 64-1201 et seq. (itepl. 1966). Appellant Goode contended before the circuit court that appellee had no standing to sue because the contract was made and performed in Arkansas and that such a contract made by a nonqualifying foreign corporation cannot be enforced in Arkansas courts. The circuit court, sitting as a jury, found as facts that (1) the contract sued on was a Tennessee contract, and (2) the transaction was in interstate commerce. Judgment was entered against Goode and he appeals.
Universal Plastics has the right to maintain an action on a contract made in Tennessee although it has not qualified to do business as a corporation in Arkansas. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S. W. 2d 284 (1967). Also, § 64-1202 is not applicable to contracts in which the transaction is wholly in interstate commerce. W. T. Rawleigh Medical Co. v. Rose, 133 Ark. 505, 202 S. W. 849 (1918). The facts convincingly demonstrate (1) that the contract was made in Tennessee, and (2) that its performance was wholly in interstate commerce.
Appellee has its plant and office in Cookeville, Tennessee, where it is engaged in manufacturing advertising covers for telephone books. In 1966 appellee’s agents solicited orders in Conway, Arkansas. Appellant signed an “Application for membership and Contract for Tel-A-Guide advertising.” The contract provided for appellee to manufacture 5,000 telephone book covers to be distributed in the Conway area containing an advertisement for appellant’s drugstore. On the face of the contract below appellant’s signature iis the statement, “All applications subject to acceptance by Universal Plastics, Inc.” Immediately above appellant’s signature is the phrase, “see reverse side for terms and conditions,” and on the reverse side is the following statement:
1. This application is subject to acceptance and performance by Universal Plastics, Incorporated of Tennessee at its home office, hereafter known as UNICORP. Upon such acceptance without further notice to the customer, this application becomes valid governed by the laws of Tennessee.
Appellee’s area sales manager testified that approval of contracts at the home office was necessary to insure that enough orders had been received from a particular locality to make it profitable to manufacture the covers. The completed contract contained advertisements from Goode and eleven other Conway merchants, all spaces being subscribed. The covers were manufactured and mailed by appellee from its Cookeville plant directly to 5,000 telephone subscribers in Conway.
The contract and note were executed by appellant on the same date and at the same place. They both relate to the same transaction and it is conceded they should be considered as one instrument. Gowen v. Sullins, 212 Ark. 824, 208 S. W. 2d 450 (1948).
The trial court was correct in its finding that the contract was made in Tennessee. The rule is stated in Leflar’s American Conflicts Law (1969), § 144 at page 353:
The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done — that is, where the contract first creates a legal obligation.’
The solicitor of a contract may by its terms dictate the mode of acceptance by which legal obligations will arise thereunder. Mechanics’ Lumber Co. v. Yates American Machine Co., 181 Ark. 415, 26 S. W. 2d 80 (1930). The terms of the instrument before us make it clear that no contract came into being until acceptance by appellee at its home office in Tennessee. Upon approval in Tennessee “the last act necessary to completion of the contract was done.” The contract was therefore a Tennessee contract and appellee may enforce it in the Arkansas courts despite its status as a nonqualifying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., supra.
The evidence also supports the trial court’s determination that the performance of the contract involved an interstate transaction. The terms of the contract clearly indicated that appellee was to mail the book covers from its plant in Cookeville, Tennessee, to telephone subscribers in the Conway area. The 5,000 covers were so distributed. Thus appellee, a consignor outside the State, shipped goods directly to consignees within Arkansas. This action places the transaction between appellant and appellee wholly in interstate commerce. Hogan v. Intertype Corp., 136 Ark. 52, 206 S. W. 58 (1918); McLeod v. J. E. Dilworth Co., 205 Ark. 780, 171 S. W. 2d 62, 322 U. S. 327 (1943). A contract calling for a transaction wholly in interstate commerce is enforceable in Arkansas courts by a corporation not qualified under § 64-1202 to do business in Arkansas. W. T. Rawleigh Medical Co. v. Rose, supra.
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Frank Holt, Justice.
Appellant brings this appeal from the imposition of a sentence which followed a delayed acceptance of his plea. On December 2, 1968, he appeared with his .attorney and entered a plea of nolo contendere to a charge of possession of stolen property. The trial court followed the state’s recommendation that the acceptance of appellant’s plea be postponed for a period of one year, conditional upon appellant’s good behavior. About two months later the appellant was charged with burglary and grand larceny. After conducting evidentiary hearings upon the state’s petition to revoke appellant’s probation, the court accepted the plea appellant had previously entered and sentenced him to the penitentiary for a period of twelve years with six years suspended.
On appeal the appellant contends that the trial court could not sentence him for more than one year when the court accepted his plea during this probationary period. Appellant urges that since the acceptance of his plea was postponed for a period of one year, based upon his good behavior, it follows that his sentence could not exceed one year. Appellant cites Ark. Stat. Ann. § 43-2324 (Repl. 1964) and Canard v. State, 225 Ark. 559, 283 S. W. 2d 685 (1955). Appellant relies upon that part of the above cited statute which reads:
“* * * Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence.”
We cannot .agree with appellant. He overlooks the first part of this statute which reads:
“Whenever, in criminal trials in all courts of record, .a plea of guilty shall have been accepted * * *, the Judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case.”
Thus, it is readily seen that the legislature has provided that whenever a plea is accepted, the trial court has the authority to impose a suspended sentence. We perceive no language in this statute nor in any case cited to us that limits the power and the discretion of the trial court to delay the acceptance of a plea. In the case at bar we cannot say that one year is an unreasonable length of time to defer .acceptance of a plea. We cannot accept the argument of the appellant that his one-year probation before accepting his plea amounted to a sentencing of one year within the meaning of § 43-2324. Nor do we construe this procedure to be an invasion of any of his constitutional rights.
In the case at bar the postponement of acceptance of appellant’s plea for a period of one year was on the recommendation of the state with the .approval of the appellant and his attorney. The trial court clearly detailed the conditions and benefits of probation in writ ing. The appellant was advised that upon his good behavior for a year, the charge of stolen property would be dismissed pursuant to the agreement with the prosecuting attorney. The court thoroughly explained to the appellant, who is 32 years of age, the benefits of not having a record of a felony conviction. It was outlined to the appellant how a felony conviction would result in tainting his future .and his citizenship rights. The conditions of his probation were in the form of a letter which appellant read and signed in the presence of his attorney acknowledging that he understood and accepted the conditions. Should we accept appellant’s argument we would circumscribe .and severely handicap our trial judges in their efforts to determine when their trust and compassion should be exercised for the ends of justice and the best interest of the public as well as the defendant. The future of deserving individuals, especially youthful offenders, who come before our sentencing courts should not be jeopardized by such a narrow construction as urged by the appellant. Nor do we agree with the appellant that the sentence imposed is excessive since it exceeded one year. The sentence was within the statutory limits which .are from' 1 to 21 years. § 41-3938 (Eepl. 1964).
Appellant also contends that the judgment is contrary to the evidence and, therefore, the trial court abused its discretion in granting the petition to revoke appellant’s probation. We cannot agree. Appellant’s one-year probation was given to him on December 2, 1968, upon condition of good behavior. The written conditions of his probation provided in part:
“You are to understand that until you have appeared before this court and have been officially released that you are under control of this court. If you fail to appear as scheduled, or if at any time you are found to have violated any of the conditions of your probation, the court may then reopen the proceedings, find you guilty ás charged, and issue an order to have you picked up and returned for sentencing.”
At the evidentiary hearings, the state adduced proof that on the night of December 2nd a local motel was burglarized and two color television sets were stolen from it. A twenty-year-old boy testified that he perpetrated this alleged offense after it was planned the night before by the appellant and himself. The manager of a nearby nightclub or private club testified that he is an ex-convict and that appellant was a patron and member of the club. He related that on the night of the alleged burglary of the motel and theft of the color television sets, the appellant and this twenty-year-old boy approached him at the club about a loan of $50 upon a television set. He said that he loaned $35 to them and received as security a black and white television set. This set had been recently stolen. He further testified that following this transaction, the appellant approached him about purchasing a color television set for $150 and that both the appellant and the boy told him there were two color sets for sale. Another witness, who worked for the club manager, stated that appellant and this boy were present in the club that night and the young boy appraoached her about buying a color television set. The next day these color sets were discovered in the boy’s car by his parents and they took him and the property to the police. The appellant denied complicity.
The appellant argues that the testimony of the individuals who implicated him is insufficient .and uncorroborated and that the court grossly abused its discretionary powers in the revocation of appellant’s proba tion.
In Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353 (1940) we approved the rule that:
“The behavior of the defendant is a question of law to be passed on by the court, and the exercise of its discretion in this matter cannot be reviewed in the absence of gross abuse.”
See, also, Gross v. State, 240 Ark. 926, 403 S. W. 2d 75 (1966) and Smith v. State, 241 Ark. 958, 411 S. W. 2d 510 (1967).
In the case at bar we are of the view that the court did not .abuse its discretionary powers in the revocation of appellant’s probation.
Affirmed.
Byrd, J., dissents. | [
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Carretón Harris, Chief Justice.
On March 20, 1963, Zane Beaton, appellee herein, and the owner of the Shugtown Gin Company, agreed to purchase from Continental Moss-Gordin, Inc., appellant herein, a machine to be used in ginning operations. The agreed purchase price was $3,200.00, payable as follows: a $1,600.00 down payment was to be made when the'machine was delivered, and Beaton executed two promissory notes for the remaining balance of $1,600.00, each in the amount of $800.00, the first being due on October 15, 1964, and the second due on December 15, 1964. The two notes were admittedly paid, but on February 17, 1967, appellant instituted suit against appellee for the $1,600.00 down payment, alleging that this payment had never been made, despite repeated demand for same. Beaton answered, denying that he had failed to make the down payment, and a counterclaim was filed, seeking damages in the amount of $4,137.50, appellee asserting that the machine was defective, had never functioned properly, and there was a bréach of warranty. At the conclusion of the evidence, appellant moved for a directed verdict, and this was denied as to the complaint, but granted as to appellee’s counterclaim. The jury then returned a verdict for appellee on appellant’s complaint. From the judgment so entered, the company brings this appeal. Appellee cross-appeals from the action of the court in directing a verdict on its counterclaim.
Ben Harpole, a salesman for appellant company, handled the Beaton sale, and this witness testified that, on June 22, 1963, he took the promissory notes and financing statement to appellee for his signature, and he said that he suggested to Beaton that he (Beaton) could give the down payment at that time, rather than waiting until delivery of the machine. This was not agreeable to Beaton, and Harpole marked through “cash before shipment,” and the requirement was “cash on delivery,” meaning that the down payment was to be paid when the machine was delivered.
Beaton testified that he made the $1,600.00 down payment in June, 1963, at the time of signing the notes, and financing statement:
“* * * I said something about giving him a check, but I didn’t know how much rubber it would have in it, and chuckled about it, and my daddy took a check out of his pocketbook and handed it to me and said, ‘We might as well pay with this.’ I took it and endorsed it on the back and said, ‘Ben, I know this is not good business to pay like this, but I know you are not going to steal the check anyway.’ ”
Beaton testified that he did not remember who had written the check, or the name of the bank, and did not recall whether the check was written to his father, or to the Earl Beaton and Son Gin Company. He said the check was given to Harpole, and the latter accepted it; that subsequently, the machine was delivered, and no demand for down payment was made by the company.
Appellant’s entire argument is based on the premise that tender of a check does not constitute payment of a debt, the presumption being that the check is accepted on condition that it will be paid. The company contends that, since appellee offered no evidence that the check was ever paid or honored by any bank or any other drawee, and Beaton admitting that he did not know whether the check was ever paid by any bank, appellant was entitled to a directed verdict. It is true that we have held that the burden of proving that payment was made is on the person asserting such payment. Blass v. Lawhorn, 64 Ark. 466, 42 S. W. 1068; Smith v. J. M. Taylor and Company, 144 Ark. 569, 222 S. W. 1062. But that does not mean that the cancelled check, or proof of its existence, must be shown before one can successfully assert that the indebtedness has been paid. Of course, a cancelled check would establish the payment — just as a receipt generally (except where one is obtained by fraud or mistake) establishes a payment by cash; certainly, however, it could not be contended that one could not prove payment of an indebtedness because be bad lost bis receipt. Accordingly, tbougb cancelled checks, receipts, or notes, or obligations marked “paid,” are, of course, the best evidence of payment, we know of no requirement that makes this type of evidence mandatory. In fact, in the course of trade, debts are paid every day by third party checks which the payor endorses. If such checks are turned down when presented for payment, they are returned to the payor, who is then required to make the check good. In the case before us, there is no contention that Beaton gave a “bad check;” the contention is, in effect, that he gave no check at all.
If the above were all the proof in the case, appellant might well have a more justifiable complaint on the verdict — but other evidence adduced, clearly, we think, made a case for the jury. For instance, the contract very definitely calls for a $1,600.00 payment on delivery. If Beaton did not make this payment, why did the company permit delivery to be made? Further, though this record is not at all clear, it does not appear that any complaint (that the down payment had not been paid) was made to Mr. Beaton for, at least, a long num ber of months after the delivery of the machine. Needless to say, it would appear that, if no down payment were made, company officials would have contacted Beaton within a few days after the delivery, particularly when the record discloses that Beaton was constantly making complaints that the machine was not performing satisfactorily.
An even more pertinent fact is that, on two occasions, the company sent Beaton a bill for $1,664.00, the bills referring to the charge as a “past due repair account. ’ ’
It might be said that bookkeeping methods, as reflected by various statements sent by appellant to Beaton, and offered into evidence by him, were not such as to inspire confidence in the accuracy of the Beaton account.
We find no merit in the cross-appeal, and this can be disposed of briefly. Though maintaining that the machine was defective, and that the warranty had been breached, appellee paid the two remaining notes on the purchase price after discovering the alleged defects, used the machine from time to time over a three-year period, made no effort to return it and rescind the sale, and offered no evivdence of damages for which recovery is permitted under Ark. Stat. Ann. §§ 85-2-714 and 85-2-715.
Affirmed on both direct and cross-appeal.
The agreement to purchase was actually with Gordin Unit System, the company later changing its name to Moss-Gordin Company. Subsequently, Moss-Gordin Company merged with the Continental Gin Company, and became known as Continental Moss Gordin, Inc. The accounts receivable were transferred to the company after the merger, the acquisition being completed on September 22, 1964.
The complaint sought $1,664.00, the $64.00 representing Louisiana sales tax; this tax evidently was not paid, but the matter is not mentioned in appellant’s argument.
The contract listed three methods of settlement, viz., cash with order, cash before shipment, and cash against B/L on delivery. This last was filled in $1,600.00.
In August, 1963.
In its brief, appellant states: “It is settled that mere tender of a check does not constitute payment of a debt, the presumption being that the check is accepted on condition that it will be paid. See Fletcher v. Ray, 220 Ark. 844, 250 S. W. 2d 734, and authorities cited therein.” The law is stated correctly. Fletcher v. Ray, supra, concerns a check given by a candidate for office which was turned down because of insufficient funds. However, the present transaction is not in the same category as where an individual gives a check, and payment is refused because of insufficient funds or no account with the bank. We have many times held that such a check does not constitute cash payment, and only becomes payment when the check is honored by the bank; that is not the situation in the instant litigation. Appellant’s statement from the brief, quoted in this footnote, would hardly seem to be correct under all circumstances. For instance, many persons, when receiving payment for goods or services from a celebrity by check, frame the check, rather than cash it. Could it be maintained that the celebrity did not pay? | [
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Oarleton Harris, Chief Justice.
Linda Kaye Emerson and her father, Carl W. Emerson, appellees herein, instituted suit against Hickory Springs Manufacturing Company of Arkansas, Inc., and Billy Smith, Jr., for damages allegedly sustained in a collision between a Volkswagen automobile driven by Linda, and owned by her father, and a 1967 International truck and trailer, which was being leased by Hickory Springs Manufacturing Company, and driven by Smith. The accident occurred about 10:00 P.M. on the night of June 20, 1968. Negligence was asserted against Hickory Springs and Smith, such negligence being the proximate cause of the damages sustained. Appellants denied negligence, and asserted that Linda’s own negligence was the proximate cause of the collision and resulting damages. On trial, the jury returned a verdict for Miss Emerson in the amount of $50,000.00, and for her father in the sum of $600.00. From the judgment so entered, appellants bring this appeal. Appellants list three points for reversal, which we proceed to discuss, though not in the order set out by appellants.
It is asserted that appellants’ motion for a directed verdict should have been granted, the contention being that there is no evidence of negligence by the truck driver. It is contended that the collision was caused by Miss Emerson’s negligence, principally because she (it is contended) ran a stop sign, but it must be remembered that it is not within the province of this court to determine the degree of negligence on the part of the drivers involved; rather, that is a function of the jury. We are only concerned with whether there was any substantial evidence of negligence on the part of Smith, thus creating an issue for jury determination.
According to the evidence, Smith and Tom McBride were co-drivers of the truck for Hickory Springs Manufacturing Company, and were returning from a trip to Tupelo, Mississippi. Smith commenced driving the truck at Brinkley, and the men were returning to the home terminal at Fort Smith when the collision occurred. The location of the accident was the intersection of Highways 71 and 64, within the city limits of Alma. Miss Emerson was traveling east on Highway 64, and was in the process of making a left turn onto Highway 71 north at the time of the collision. The truck was proceeding west on Highway 64 when it struck the Volkswagen. Appellants contend that Miss Emerson ran the stop sign as she entered Highway 71, but appellee stated that she stopped at the sign, started up again, but her car stalled as she entered the intersection. According to her testimony, she was trying to start it when struck by the truck.
We think the evidence was sufficient to go to the jury on the question of appellant’s negligence, particularly as to whether a proper lookout was being maintained; there was also evidence which could indicate to the jury that the truck was traveling too fast at the time of the mishap. Ed Blackard, with the Arkansas State Police for 21 years, testified that he went to the scene of the accident after receiving a call, and arrived there some seven or eight minutes after it occurred. He said that there were 144 feet of solid skid marks extending back east from the debris, left by the truck brakes’ being applied on asphalt, and 50 or 55 feet more on the other side of the debris. He also testified that there were some skip marks (not solid skid marks) before the solid marks commenced, and counting these, he observed total skid marks of approximately 240 or 245 feet. The officer was not positive of the speed limit at the point involved. The City Marshal of Alma stated that the speed limit at the intersection was 35 miles per hour, though the sign had been torn down, but at another point (evidently meaning the approach), was 40 miles per hour.
The testimony of Smith and the co-driver, McBride, was somewhat confusing, and at times, conflicted not only with the testimony of the fellow driver, but even with prior statements of the witness himself. McBride testified that the truck was traveling at 40 to 45 miles per hour as they approached the intersection (according to this witness, the speed limit was 50 miles per hour). He said that when he first saw the Emerson Volkswagen approaching the stop sign, the truck was 150 to 200 feet from the intersection, and traveling about 35 miles per hour. Smith applied the brakes immediately; the truck was empty. When asked for how long a distance it would take to stop the truck when empty at a speed of 35 miles per hour, the witness replied that it would probably take 100 feet. He thereafter stated that the truck traveled about 50 feet after he applied the brakes, and before the collision occurred; that it traveled between 10 and 20 feet after the collision. It will be observed that McBride testified that the brakes were first applied when the truck was from 150 to 200 feet from the intersection, and then stated that it would take about 100 feet for it to stop traveling at the speed he testified to (35 miles per hour). This being true, it would appear that the truck would have stopped 50 feet before it struck the automobile. Of course, this testimony is very much in conflict with that of Blackard, who testified to approxi mately 200 feet of skid marks before the point was reached where the collision took place.
Smith stated that he first put on his brakes “possibly 200 feet up there,” when he saw that the Emerson car “was not going to stop,” but he subsequently stated that he first saw the Volkswagen about 100 feet from the intersection. The witness said that, at 35 miles per hour, it took about 100 or 150 feet to stop the truck. According to Smith, the Volkswagen was knocked for about 50 feet, and his truck traveled for about 50 feet after the collision. Certainly, under the testimony of the State Policeman, and these two witnesses (even ignoring other testimony on behalf of appellees which is discussed under the next point), the jury would have been justified in finding either that the brakes were not applied as soon as the peril was discovered (from which it could well appear that a proper lookout was not being maintained) or that the truck was traveling at a much greater speed than that given by appellant’s witnesses, and thus could not be stopped within the distance mentioned by the witnesses.
It is asserted that the court erred in permitting Carl Emerson to testify as to alleged skid marks, and to give his opinion as to other facts. "We do not find any “opinion” evidence in the testimony of this witness; Emerson simply testified relative to the length of skid marks which appellees contended were made by the truck after it applied its brakes. The cases cited by appellant are not in point, since they deal with opinions given by experts (State Police) concerning the speed of automobiles at the time of a collision, these opinions being based upon findings at the scene (debris, skid marks, damage to and location of vehicles, etc.) rather than actual observance of the speed of the cars when the accidents occurred. Here, only physical facts were testified to, and there was no attempt to reconstruct the accident. Emerson, assisted by friends, measured the skid marks purportedly made by the truck when it first applied its brakes, and he testified that, counting “solid” skid marks, and “bouncing” skid marks, the total was 419 feet. This testimony was verified by Eddie Beilis, who assisted in making the measurements. The collision occurred on a Thursday night, and these measurements were not made until the following Sunday morning. The testimony was objected to, but the court overruled the objection, telling the jury, however:
“Ladies and Gentlemen of the Jury, you will not give any consideration to the testimony of Mr. Emerson with reference to the skid marks unless there is other evidence indicating to your satisfaction that the skid marks were in fact made by the truck and trailer driven by the defendant at the time of the collision.”
There was other evidence relative to this 400 feet of skid marks. Wayne Broyles, a wrecker operator, who removed the Emerson vehicle from the scene, testified that he observed skid marks. He described some of them as “solid,” and some as “bouncing.” While he took no measurements and did not know the exact distance, he said that they started at the break of the highway where the right lane turned north. Billy Bay Smith, Jr., testified that this “turn-off” was about 400 feet east of the intersection. We think this evidence was sufficient to make the question as to the identity of the skid marks one for jury determination under the court’s instruction.
It is contended that the court erred in instructing the jury, as follows:
“If you find that Linda is entitled to recover in this case then you may take into consideration the following elements of damage; any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future, any loss of earnings, the nature, extent, duration of any injuries and whether it is temporary or permanent, and any scars or disfigurements and visible results of her injuries, the reasonable expense of any medical care and treatment reasonably certain to be incurred in the future.”
An objection was made, based upon the fact that there was no evidence concerning the loss of future earnings, and appellants are of the opinion that the questioned instruction permits the jury to make such an award, or the instruction is, at the least, ambiguous. We agree that the phraseology used could be improved upon, but we do not agree that error was committed. A careful reading of this instruction makes clear that the jury is not told that Miss Emerson is entitled to recover for loss of future earnings, the language simply stating, “any loss of earnings.” It is true that prior to this language, and subsequent to it, the jury is told that the plaintiff can recover for various elements of damage which are reasonably certain to be incurred in the future, but this is not true with regard to the loss of earnings.
Though not entirely clear, it also appears that the objection to the instruction was not made until after it had been given, and the jury had retired. When this objection was made, the court said:
“Let the record show that the instruction complained of instructed the jury that they may consider any loss of earnings, and there was no testimony to any loss of earnings except during the summer immediately after the injury; and that this instruction was made known to the defendants prior to the giving of it to the jurv; that there was no pointing out that the defendant had any objection to it as possibly permitting the jury to allow for loss of earnings in the future, and the Court does not so construe this instruction.”
The proper time to take exceptions to instructions is before the jury retires. Hall v. Aetna Life Insurance Company, 85 F. 2d 447.
On the whole case, we find no error.
Affirmed.
There was no contention that the verdict is excessive.
Smith and McBride testified that the Volkswagen struck the truck.
McBride said that a loaded truck could be stopped more easily than an empty one; Smith said that an empty truck could be stopped more quickly.
After making this statement, McBride said that the truck only traveled 20 or 25 feet after the brakes were applied. | [
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Carleton Harris, Chief Justice.
This is a highway condemnation case. The Arkansas State Highway Commission, appellant herein, instituted an eminent domain action against Mackie L. Taylor, and his wife, Vemie Taylor, for the acquisition of lands needed for the construction of Interstate 40 and its facilities in Conway County. The property condemned consisted of 2.75 acres taken from a 3.1 acre parcel. The property had frontage of 343 feet on Highway 9, and a depth of 390 feet. The property remaining consisted of approximately one-third of an acre in a triangular shape, the condemnation taking all access to this area, and for all practical purposes leaving this last property landlocked. On trial, Mr. Taylor testified that his damages were $27,975.00.
Lloyd Pearce, an expert appraisal witness on behalf of appellees, testified to damages of $19,100.00, and Mr. Charles Lewis Ormond, also an expert appraiser for appellees, testified that the damages amounted to $23,-950.00. The jury returned a verdict of $23,500.00, and from the judgment so entered, appellant brings this appeal. For reversal, it is urged that the trial court erred in refusing to strike the value testimony of Mr. Taylor, and also erred in refusing to strike the value testimony of Mr. Pearce.
The commission recognizes that Mr. Taylor, as an owner of the land, was entitled to give his opinion of the value thereof. It points out, however, citing Arkansas State Highway Commission v. Darr, 246 Ark. 201, S. W. 2d 463, that an owner’s conclusion as to damages must be satisfactorily explained; if not, the testimony does not constitute substantial evidence. It might be well at the outset to point out that Mrs. Darr’s testimony in that case, and Mr. Taylor’s testimony in the instant litigation, can hardly be compared. In Darr, we mentioned that it was not disclosed when she resided on the land, if ever; that she was never asked if she had an opinion as to the fair market value of the property, but was merely asked the worth of the land; that it was apparent that she had a sentimental attachment for the farm, because her husband had told her to keep it, and further, she showed no reasonable knowledge of market values of lands in the community. Here, Mr. Taylor bought the property in 1957, finished a house that was being constructed, and lived on the property for more than 10 years. He appeared to be familiar with the location of the highways, utilities, easements, and city limits, with reference to the property and the surrounding area. All improvements were taken by the commission; in fact, as already pointed out, everything was taken except the approximate .3 of an acre, which was valued at $25 by Taylor, and $50 by Pearce, Ormond, and the appraisers for the state. The Taylor home was a one-story building, 28 x 38 feet, with five rooms, modern bathroom, and hot water heater in the bath. There was a septic tank, and a deep well with a pump in it, a glass screened-in porch and a picture window in the front of the house. There was quite a bit of shrubbery on the premises. A trade school was located about % of a mile from the home. Admittedly, two sales that he mentioned were much lower than the value he placed on his own lands, but he endeavored to show that the condemned property- had advantages not found with the land that had been sold. Appellant’s principal argument for striking the value testimony relates to the assertion that Taylor considered offers that had been made to him to purchase his land, or parts of it, in reaching his conclusions. On direct examination, appellee was asked if his opinion was based on what other land was selling for, and offers he had had for it, and the witness stated that both his before the taking value and after the taking value were based on what other property was selling for. However, the commission moved to strike his value testimony previously because he had said that he considered offers that had been made to him. The court denied this motion, but told the jury:
“Ladies and gentlemen of the jury, this witness has testified with reference to offers that people had made him regarding his property. You are now told by the Court that an offer for this property is not proper and should not be considered by you at all.”
Appellee contended that the testimony was .admissible as a means of showing that the property was desirable, though he agreed that the amount of any offer could not be given. Appellant relies upon Arkansas State Highway v. Elliott, 234 Ark. 619, 353 S. W. 2d 526, and Arkansas State Highway Commission v. Jackson County Gin Company, 236 Ark. 761, 376 S. W. 2d 553. In these two cases the amounts of the offers were given by the witnesses. In Elliott, a witness was brought into court by Mrs. Elliott, this witness testifying that he had offered to purchase the condemned property for $5,-000.00, and a letter written sometime before (the filing of the suit) from the witness to Mrs. Elliott, was offered in evidence. The letter advised that he would pay her $5,000.00. We held that this was not admissible, and reversed the judgment. In the Jackson County Gin Company case, there was testimony that the sales price of certain property between individuals had been reduced by $10,000.00, because the highway department had filed a condemnation action. In the case before us, no figure was ever mentioned, but there is no need to discuss appellee’s contention, since the court very plainly told the jury that it should not consider this testimony. There was no error in refusing to strike the evidence of appellee Taylor.
As to the second point, we .also disagree with appellant that the value testimony of Lloyd Pearce should be stricken. This contention is based on the fact that Mr. Pearce gave this particular property .a much higher value per acre than the sale price obtained per acre for the comparable sales mentioned by the witness. Pearce said that the highest and best use of the north 100 feet of the Taylor property, where the home was located, was for a rural homesite, and that the best use for the south 243 feet was for commercial property. The latter portion is right across the highway from property that is zoned for commercial use. He agreed with other witnesses that the landlocked triangle, heretofore mentioned, was practically worthless, valuing it at $50.00. In using comparable sales, Pearce stated that he considered several factors, such as location, the availability of utilities for servicing the property, access to and from the area, access to the city of Morrilton, proximity to schools and churches, and the topography of the lands. It is true that he gave a higher value to the Taylor property, both for residential and commercial use, than had been received by the seller in the comparable sales used, but the witness explained his reasons for doing so, which were based upon the factors just mentioned. For instance, one sale used in comparison of residential use, was on a gravel road; another had frontage on Highway 9, but there was a large capital outlay expended in order to bring utilities to the property. Another sale made in the same vicinity did not have water and sewer available. According to the evidence, sewer and water were less than a half mile from the Taylor property. Pearce said that one of the factors affecting the value of property around Morrilton is that the land is tightly and closely held; that there is not a lot of property for sale in the area. He explained that the city is expanding to the north, expansion to the south being limited by the Arkansas River, and expansion to the west being limited by Point Remove Creek and overflow lands in the general area. Expansion of Morrilton would therefore normally take place to the north .and the east. As to topography, the land is level, cleared, and could be easily developed. Both of the appraisers for the state gave the highest and best use of all the property as residential, although Mr. J. C. Merritt admitted that property across the highway (west of the Taylor property) was zoned commercial.
It must he remembered that, though we have held that a non-expert witness must state the facts upon which his opinion is based before giving that opinion, there is no similar condition attached to the admissibility of an expert’s opinion, provided, of course, that the expert demonstrates his familiarity with the subject of his evidence. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436. The very fact that the witness is an expert (and Pearce’s qualifications are not questioned) permits him to express an opinion, though the sales mentioned are not comparable in every respect to the property under discussion. The court did not err in refusing to strike the testimony of Pearce.
The testimony of appellees’ other expert witness, Charles Lewis Ormond, is not under attack, and it would accordingly have to be presumed that there was no question as to the basis used for the before and after values given by this witness. The appraisal of Ormond was considerably higher than that of Pearce; in fact, it would really appear that the jury was more impressed by this witness than any other, since the verdict arrived at was much nearer to the figure given by Ormond than the figure given by either Taylor or Pearce. Ormond, who according to his evidence, sold an average of two pieces of property .a month in and around Morrilton, testified that there was a good demand for property of the Taylor type, and he was definitely of the opinion that this land could have a greater demand as commercial property, rather than for any other use. Not a single objection was made to any part of Ormond’s testimony.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
From the cross examination of Merritt:
“Q. I am talking about the Leavels to Leisure Lodge in 1962,i with frontage on Highway 9, $10,000.00 for an acre and a quarter, approximately $8,000.00 an acre in 1962.
A. I believe you will find that in a more dense built up residential and commercial area than subject property. I do have market data on that, yes, sir, but just because it is the same distance from Morrilton as subject property is—
Q. You didn’t consider that at all in trying to fix the fair market value of this property?
A. I considered it to be very excessive to the value of this property. To me it is ridiculous to try to use that sale. First of all, I think it is a different highest and best use.
Q. Where is the cotton gin?
A. Pardon?
Q. You say this is a more desirable location where the cotton gin is located with reference to the Leavels property that sold to Leisure Lodge?
A. It is in that area.
Q. Isn’t there a little grocery store across the street from the property?
A. Yes, sir.
Q. Isn’t there a drive-in theater next to it?
A. If you are speaking of that sale — This is in a built up commercial and residential area, and consequently would have much greater value.
Q. Isn’t the area across the highway from the Taylor property commercial?
A. There will be. There has been special purpose back from the highway.
Q. I am talking about the west of the Taylor property at the Hawkins addition. Isn’t that zoned commercial?
A. I understand it is, since the highway was put there.
Q. Wasn’t it zoned commercial prior to that time?
A. Yes. People have a little forethought and look to the future.” | [
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J. Feed Jones, Justice.
This is a workmen’s compensation case involving a claim for hernia. John Willie Turner was the claimant before the Workmen’s Compensation Commission; A. G. Haygood was the respondent employer and Operators Casualty Company was the respondent insurance carrier. The claim was filed under Ark. Stat. Ann. § 81-1313 (e) which provides as follows:
“In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of ,a licensed physician within forty-eight (48) hours after such occurrence. .
The Workmen’s Compensation Commission denied the claim under our decision in Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S. W. 2d 659. Turner appealed to the Bradley County Circuit Court where our decision in Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929, was considered as controlling, and the order of the Commission denying Turner’s claim was reversed. On appeal to this court, the employer and his insurance carrier rely on the following point for reversal :
“Appellee is barred from seeking Workmen’s Compensation benefits because of his failure to comply with the requirements of Arkansas Statutes 81-1313 (E).”
The appellee is not barred from seeking compensation benefits because of Ms failure to comply with the requirements of the statute, but we agree with the Commission that this case is controlled by our decision in Miller, supra, and that Turner failed to show that the physical distress following the occurrence of the hernia was such as to cause him to cease work immediately and to require medical attention within forty-eight hours.
Turner was employed by Haygood as a log cutter. About February 8, 1968, while he was cutting a log with a power chain saw, the saw bar became stuck in the log and when Turner “snatched” it loose, the saw “kicked back” and the handle of the saw struck Turner in the lower right side of the abdomen. The evidence of record would have sustained a finding that the first, second and fourth requirements of § 81-1313 (e), supra, were met. As to the third and fifth requirements, however, Turner testified:
“A. ... I had to sit down a little while.
Q. Did it make you sick?
A. Yes, sir, I was pretty sick for awhile.
Q. Did you stop working then?
A. Yes, sir.
Q. And sit down?
A. Yes, sir, and I sat down around thirty minutes. Seems like it got a little bit easy, and I got back up and started again.
# # *
Q. I wish you would tell the referee, please, how you got along after that saw hit you in the stomach. Did you continue to get worse or better or what happened?
A. No, it just continued to get worser all the time, kept getting sorer and the knot getting bigger and bigger, until it got to where I had to go on to the doctor.
Q. Did you keep on working during most of the days during this time?
A. Yes, sir, I worked most of them.
* * #
Q. Now, didn’t Mr. Haygood tell you ybu could go see a doctor if you wanted to?
A. Yes, sir, I think he did, hut what, I mean, I didn’t think I was hurt quite as bad as I was right at the time.
Q. Then, you continued to work fairly regularly?
A. Yes, sir.
Q. Until you had to go see Doctor Miles on August the Seventh?
A. Yes, sir.
Q. He says that is the first day he saw you. Is that right?
A. Yes, sir.”
Turner’s foreman, Mr. Haygood, testified as follows :
“Q. Do you recall him [Turner] reporting the incident to you?
A. Yes, sir.
Q. What did you tell him?
A. I told him that he could see the doctor or take off or whatever he wanted to do.
Q. And I believe he indicated that he rested may be thirty minutes or so and, then, went on working?
A. Yes, sir.
Q. And did he continue to work on up into August until he was hospitalized for this surgery? 51
A. Yes, sir.
Q. He indicated he may have missed some days. Do you recall?
A. I am not exactly — He might have lost a day or two.
Q. But he was working pretty regularly for you?
A. Yes, sir.
Q. Do you recall, Mr. Haygood, whether Mr.— whether John Willie kept on. complaining about this at times during, well, up to August the Seventh?
A. Oh, very little to me, if any.
<J. He did tell you, though, the same day that it happened?
A. Yes, sir.
Q. What did he tell you about it?
A. He just told me he had got hit in the side with the saw, and I asked him if he wanted to go to the doctor or set down or do whatever he wanted to do, take it easy, and he said he thought he could make it.
Q. And he did go ahead and work the rest of the day?
A. Yeah.”
Dr. Dallas D. Miles, under date of September 27, 1968, reported as follows:
“John Willie Turner consulted me in my office on August 7, 1968, concerning knot in right inguinal region with associated pain. Examination revealed right inguinal hernia. Patient stated he had suffered a blow by a power saw while on his job (unknown exact date) at which time he reported it to his foreman, but symptoms did not warrant his seeking medical advice. However, on August 2, 1968, pain in involved area became worse.”
It is true that Turner testified that his condition kept getting worse, “kept getting sorer and the knot getting bigger and bigger” until he had to go to a physician. This occurred over a period of six months from February 8, 1968, to August 7, 1968, rather than forty-eight hours as required by statute; and during all this period of time, with the exception of one or two days, Turner continued his regular work at cutting logs without requiring the attendance of a licensed physician.
This court reached opposite conclusions in the Prince and Miller cases but those cases were distinguished on their facts, as is the case at bar. We sustained an award in Prince but reversed an award in Miller, wherein we distinguish Prince in the following language :
“We are unable to say that the Prince case can be extended to reach the fact situation here. There the workman was injured on Thursday, but at his employer’s request he worked on Friday and Saturday despite the fact that he was in pain. He tried to call a doctor on Friday but failed to reach him. On Monday the claimant finally saw a physician, who found an inguinal hernia. In sustaining the award we were of the opinion that the facts justified the Commission in excusing the claimant’s failure to consult a doctor until about two days after the expiration of the time allowed by the statute. We followed a very similar Mississippi case, where the court reasoned that for an injury ‘to require’ a physician’s attendance within a certain number of days does not invariably mean that the physician must actually be consulted within that time. A substantial compliance may be sufficient.”
In Miller the claimant was picking up a heavy sack of feed on March 6, when he felt a sharp pain in his side. He rested for twenty or thirty minutes and then felt well enough to resume comparatively light tasks. He reported his injury to his employer and intended to consult a physician but put off doing so. He continued to work, avoiding heavy lifting, until early in July when he was forced to consult a physician who diagnosed and repaired an inguinal hernia. The Commission awarded compensation benefits and the circuit court affirmed the award. In reversing the circuit court judgment, we said:
“The appellee’s position really narrows down to the contention that since he suffered severe pain on March 6 his condition therefore ‘required’ the attendance of a physician within forty-eight hours. The fallacy in this argument lies in its disregard of the fact that severe pain must exist in every instance of a compensable hernia, for that condition is the second of the five statutory requirements. Hence, if the appellee is right, the fifth requirement — that the attendance of a physician be required within forty-eight hours — adds nothing whatever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning and effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case.”
Three of the five requirements under the statute relating to claims for hernia have to do with pain. The plain wording of the statute practically eliminates subjective symptoms in claims for hernia. Not only must the claimant prove severe pain in the hernial region, he must prove that the severe pain caused him to quit work immediately. Not only must he show that the pain caused him to quit work immediately; he must also show that the physical distress was such as to require the attendance of a physician within forty-eight hours.
It might be logically argued that this statute penalizes an industrious employee who is willing to bear some pain and continue working as Turner apparently did in this case. It might also be argued that small and undramatic herniation was never intended to be covered by the Workmen’s Compensation Act. But, in any event, it cannot logically be argued that this court has the authority to completely nullify, by liberal interpretation, any provision of a constitutional legislative act.
We conclude that the judgment of the trial court must be reversed and the order of the Commission, dismissing the claim, reinstated.
Reversed. | [
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Lyle Brown, Justice.
This action was instituted by Johnny Riley against Missouri-Pacific Truck Line because of an accident said to have resulted when the latter’s truck struck two neon signs in front of Riley’s place of business in Harrisburg. The truck was traveling in the street at the time of the accident. At the close of the testimony introduced by both parties, the trial court directed a verdict for Riley. Missouri-Pacific appeals, contending the evidence was disputed and should have been submitted to the jury.
Johnny Riley testified that he was not present when the incident occurred. He stated he replaced the smaller sign át a cost of $229.44 and had the larger sign repaired for $210.60. Both signs, so he said, were about two years old and in good condition at the time of the accident. Counsel for Missouri-Pacific questioned the witness concerning the location of the supporting pole with reference to the street because defendant contended that the signs protruded over the street and at a height lower than authorized by law. Riley did not know the distance of the pole from the street, nor was he aware of the height from the street to the contact point with the lower sign. He did concede that a similar incident damaged the signs about one year previously.
The only other witness testifying for appellee was his employee, Imogene Douglas, the manager of the liquor store at the time of the accident. She said she saw a truck with Missouri-Pacific’s name on it strike the signs; that the same truck traveled in front of the store at least three times a week; that the driver did not stop; that one of her patrons saw the incident and unsuccessfully tried to stop the truck; that Malcolm Rupphen made a delivery to her for Missouri-Pacific later and she informed him that he had damaged the signs; and that Rupphen disavowed any knowledge of having struck the signs. On cross-examination Mrs. Douglas said the truck driver veered his truck to miss a car that came into his path and that the back of the truck hit the lower sign.
The single witness for Missouri-Pacific was the truck driver, Malcolm Rupphen. He testified that he had been passing the area for seven or eight years; that Riley’s signs constituted a hazard in that they were considerably lower than twelve feet, six inches, the highest point of his truck; that he regularly veered from his course of travel to miss hitting the signs; and that he was not aware that he did hit the signs but he could not say he did not hit them. He testified that the supporting pole was three feet from the street and that the signs extended over the street.
In considering Johnny Riley’s testimony in relation to the motion for a directed verdict it was the duty of the court to treat it as disputed. That is because he was the plaintiff; Little v. George Feed & Supply Co., 233 Ark. 78, 342 S. W. 2d 668 (1961); and Skillern v. Baker, 82 Ark. 86, 100 S. W. 764 (1907). It was pointed out in Hales & Hunter Co. v. Wyatt, 239-Ark. 19, 386 S. W. 2d 704 (1965), that “a directed verdict for the plaintiff is a rarity.” That same case is authority for the rule that Riley’s testimony should not have been regarded as undisputed in testing it on his motion for a directed verdict. Also, see Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959).
We also think there was a jury question with reference to the testimony of Mrs. Douglas. She was Riley’s store manager and might have been biased. Sykes v. Carmack, 211 Ark. 828, 202 S. W. 2d 761 (1947); Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829 (1969). To say the least, it is not shown that she was wholly disinterested. The jury could also have considered as significant the fact that a patron of the store was allegedly an eyewitness, yet he was not called to corroborate Mrs. Douglas, nor was his absence explained.
In urging the trial court to permit the case to go to the jury, Missouri-Pacific pointed out that it had asserted negligence on the part of Riley in allegedly erecting his signs in such manner as to encroach on the traveled portion of the street and at a height which constituted a hazard. When the evidence is weighed with all reasonable inferences in a light most favorable to Missouri-Pacific, we conclude that Riley’s alleged negligence in that respect was a question for the jury. Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043 (1933). We refer to the evidence which we have summarized and to repeat, except by reference, is not necessary. Suffice it to say that if the jury believed that appellant’s truck did not exceed permissible height, and that Riley maintained his signs at such heights that a reasonable person should have anticipated danger to the motoring public, the trier of facts could have placed fault on Riley.
Reversed.
Byrd, J., concurs. | [
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Conley Byrd, Justice.
Appellant Marie Bradford was a passenger in an automobile that was rear-ended by a taxi-cab owned and operated by appellee, Checker Cab Co., at 6th and Main Sts., Little Rock, on Sept. 21, 1965. From a jury verdict in favor of appellant for her personal injuries for $600.00, she appeals alleging: (1) that the verdict was contrary to the law and evidence because her special damages amounted to $2,411.82 and (2) that the trial court erred in denying appellant’s request to examine jurors individually on voir dire.
The record shows that the trial court called in forty-five new jurors on June 3, 1968, to serve through June 15, 1968. Appellant’s case came on for trial on the morning of June 4. At the trial appellants council stated:
“Second, we request the right to examine them one at a time and I want to say this to the Court, that I don’t know any of these jurors personally, with the possible exception of three or four out of the list of forty-five that was handed me yesterday, so in order to find out exactly who they are and what they do I want to examine them one at a time. . .”
The Court in overruling appellant’s request to examine the jurors individually stated:
‘ ‘ Overruling that request in the absence of any specific showing of need and I want to call your attention and for the benefit of the record, to the fact it has been the policy of this court now for many months to obtain from the jurors an answered questionnaire available and which is made available to the bar of this district setting forth most of the pertinent information. I’d like to read into the record what it contains.
“Containing the name of the juror, home address and phone number of juror. Marital status, number of children of juror. Occupation and employment of the juror, and employer, the phone number of juror’s occupation or employer. The question if you are' not now employed give your last occupation, employer. If married, name and occupation of husband or wife. If you have ever served as a juror before. If you have a claim for personal injuries, if a claim for personal injuries has ever been made against you or any member of your family, and if any member of your family has ever made a claim for personal injuries which is signed by the juror and is available for the bar of this district. The motion or request to Voir dire the jury individually is overruled. ’ ’
The rights of counsel to examine jurors individually was recently stated in Tatum v. Rester, 241 Ark. 1059, 412 S. W. 2d 293 (1967), in this language:
“It has long been recognized in this State that ‘litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the court to control the extent of such examination, acting in its sound discretion.’ ”
The concurring opinion in Tatum v. Rester expressed it this way:
“Lawyers have the right to question jurors, separately and individually, to determine whether they are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge. But all this is subject to the right of the court, acting in sound discretion, to control the extent of the examination. Then, too, the court would seem to have the responsibility of moving forward on questions concerning statutory qualifications. See Ark. Stat. Ann. § 39-226 (Repl. 1962).”
We recognize that the trial court here was attempt ing to expedite the litigation in his court and that in this endeavor he should be encouraged. However, reluctantly, we find that under the record here, in view of the short notice to counsel of the . new jurors called in the evening before, that he abused his discretion in refusing counsel an opportunity to examine the jurors individually. In so holding, however, we do not intimate that .a trial court in a civil case must permit counsel to ask the same question of twenty-four jurors.
We find no merit in appellant’s contention that the verdict was contrary to the evidence.
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PAUL E. DANIELSON, Justice.
liAppellant Angie Fletcher appeals from the circuit court’s order appointing appel-lee Kevin Scorza guardian of J.F., a minor. Ms. Fletcher first appealed the circuit court’s decision to our court of appeals, which reversed the order of guardianship. See Fletcher v. Scorza, 2009 ArkApp. 372, 2009 WL 1232100 (unpublished). Mr. Scorza petitioned this court for review, which we granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886. Ms. Fletcher’s sole point on appeal is that there was insufficient evidence to support Mr. Scorza’s third-party petition for guardianship. We affirm the circuit court’s order.
On January 3, 2008, Mr. Scorza filed an amended petition for the appointment of a guardian over the person and estate of J.F. The petition stated that J.F. was ten years old and that Mr. Scorza was “interested in obtaining guardianship of the named incapacitated person 12by reason of the petitioner’s eight (8) year in loco par-entis relationship with the incapacitated person and because the biological parents of the incapacitated person have not been able to care for him or have not been willing to care for him.” On January 7, 2008, Mr. Scorza filed a petition for ex parte emergency relief, and that same day, the circuit court entered an order appointing Mr. Scorza temporary guardian of J.F. and scheduling a hearing on whether the temporary guardianship would continue.
On January 10, 2008, the circuit court held that hearing. Mr. Scorza testified that J.F. was the son of Ms. Fletcher, who was the mother of his two other children. He testified that he, along with J.F. and his other two children, first came to Arkansas from New Orleans in 2005, due to Hurricane Katrina, and stayed because they could not return after the hurricane. He testified that in December 2007, Ms. Fletcher called him, told him that she had finished school, and requested that the children come back to New Orleans to be with her. He further testified that J.F. had lived with him since August 2005 and that he had been J.F.’s sole provider since then. He stated that although Ms. Fletcher had not provided any financial support to him, she had purchased gifts for the children at Christmas and on their birthdays. He further stated that he had been paying Ms. Fletcher child support since 2005 for their two children, but that the payments had recently ceased.
Mr. Scorza testified that two or three weeks after his child-support obligation ceased, |HMs. Fletcher asked for the children to come back to New Orleans and, then, she came and got them. Mr. Scorza testified that Ms. Fletcher then called him and asked him to “pack up all their clothing.” He further testified that Ms. Fletcher refused to tell him where she was living or where the children would be going to school.
With respect to J.F.’s natural father, Mr. Scorza testified that he did not know who he was, had never met him, nor did he know his name. He testified that to his knowledge, J.F.’s natural father had never provided any support for J.F., nor attempted to contact him. Mr. Scorza stated that he came into J.F.’s life in 1999, when J.F. was slightly older than one year.
Mr. Scorza testified that he lived with Ms. Fletcher and J.F. from 1999 until the beginning of 2005. He testified that after moving out, he had all three children on the weekends and overnight, because Ms. Fletcher had started working overnight. He stated that the arrangement continued until he moved out of New Orleans because of the hurricane.
Mr. Scorza testified that J.F. had never lived apart from his half-siblings and that the three children had a close relationship. He testified that J.F. was currently en rolled in school and was battling a learning disability, for which he was receiving special tutoring. Mr. Scorza further stated that J.F. had medical insurance coverage here in Arkansas, through ARKids, and that Mr. Scorza had covered all remaining expenses. He also testified that he and his mother provided J.F.’s religious instruction, although he was unable to recall the name of the church that they attended. On cross-examination, Mr. Scorza testified that the last order entered in Louisiana gave Ms. Fletcher custody of the children and required him to pay child support to |4her; however, the circuit court clarified that there was no order in place for J.F.
Ms. Fletcher also testified. She stated that she currently lived in Metairie, Louisiana, and that she had not previously provided that information to Mr. Scorza. She testified that the child support she had received from Mr. Scorza had been returned to him by means of purchasing items for the children or by transfer into one of his bank accounts. She further testified that she would send items for J.F. that she knew were needed on a regular basis, such as clothing, shoes, and money. She testified that when Mr. Scorza called her to request extra money, she would do her best to send it.
She also testified that she spoke with Mr. Scorza’s mother about coming to pick the children up in December. She stated that she often tried to call the house to speak to the children, but no one would answer. She testified that when she then called from a different number than her own, someone would answer the phone. She stated that she did not need Mr. Scor-za to serve as a guardian of J.F. and that J.F. did not need Mr. Scorza to be his guardian. She testified that she was in a position to provide for J.F., as she had recently graduated from nursing school and had accepted an offer as a beginning registered nurse. On cross-examination, Ms. Fletcher testified that she had been to Arkansas nine or ten times to see the children. She testified that she was currently living with her fiancé and that they slept in the same room together when the children were there.
At the conclusion of the hearing, the circuit court continued the order of temporary guardianship in favor of Mr. Scorza for ninety days. On April 15, 2008, the circuit court held |fia hearing regarding a permanent order of guardianship. During that hearing, Mr. Scorza’s mother, Barbara, testified that Mr. Scorza and Ms. Fletcher moved in together in 1998 or 1999 in New Orleans, Louisiana. She testified that Mr. Scorza moved back in with her in 2005 and that, at that time, the children would spend the weekends with them. She testified that, several months later, they also started spending the nights throughout the week with them. She testified that this arrangement continued for a few months until they fled New Orleans.
Mr. Scorza testified that he “broke up” with Ms. Fletcher in 2003. He testified that, at that time, the children came over for the weekends, but, in 2005, the children began coming over at night, when Ms. Fletcher started working overnight. He stated that Ms. Fletcher would pick the children up in the morning, take them to school, pick them up from school, and bring them to him around 9:00 p.m. Mr. Scorza acknowledged that Ms. Fletcher sent birthday and Christmas gifts to J.F. and that she called the children “every single day.” He further testified that it was about six or seven months prior to Katrina that he began watching the children overnight while Ms. Fletcher worked.
Ms. Fletcher also testified, stating that she was a lifelong resident of New Orleans and that both she and Mr. Scorza lost their respective homes during Katrina. She testified that because she was in law enforcement at the time of Katrina and was required to stay, she and Mr. Scorza agreed that he would take the children and flee the city. She testified that they thought that the relocation ]vould be temporary, but that Mr. Scorza found somewhere to live |fiand somewhere for the children to go to school. She stated that because the children’s school in New Orleans had been destroyed and its school system was in disarray, she agreed with Mr. Scorza that it was in the best interest of the children to be in school in Arkansas.
Ms. Fletcher testified that while Mr. Scorza was with the children in Arkansas immediately following Katrina, she lived at New Orleans’s City Hall for a week and a half and then lived on a cruise ship for approximately seven months. During that time, she said, she received a letter from a nursing school notifying her of her admission thereto in April. She testified that she and Mr. Scorza agreed that he would keep the children until she was able to finish school “to better the situation for the children.” She testified that she graduated in December 2007 and that when she asked Mr. Scorza to prepare the information needed to register the children in the New Orleans schools, he refused.
Ms. Fletcher testified that she was currently an orientee staff nurse and that she worked three days a week in twelve-hour shifts. She testified that she would adjust her schedule as needed when J.F. was returned to her. She testified that she referred to Mr. Scorza as J.F.’s father and that J.F. considered him his father.
On April 17, 2008, the circuit court issued a letter opinion, setting forth the issues and its determination thereof. On May 2, 2008, the circuit court memorialized that letter opinion in its order appointing Mr. Scorza guardian of J.F.’s person and estate. In it, the circuit court made the following pertinent findings:
8. Angie Fletcher is the natural mother of [J.F.]. Petitioner, Kevin Scor-za, is not related by blood to [J.F.], but stands in loco parentis to [J.] having acted as the only |7“father figure” [J.] has ever known. Mr. Scorza is not a true third-party petitioner seeking guardianship of [J.]. Kevin Scorza treats [J.] as his son, and [J.] views Mr. Scorza as his father. Angie Fletcher acknowledges this relationship. Mr. Scorza is not someone who can provide extra financial benefits and a lifestyle in excess of that offered by the natural mother. Mr. Scorza and Ms. Fletcher are on equal footing financially. This Court considers Mr. Scorza as an equal to the natural mother in his relationship with [J.].
4. In August 2006, due to the threat of Hurricane Katrina, Kevin Scorza evacuated New Orleans with [J.F.] and two other minor children born to Angie Fletcher and him, namely, [A.S.] and [K.S.]. Ms. Fletcher agreed that Mr. Scorza should leave New Orleans with [J.]. Initially, the parties believed the evacuation would only be for a few days, but after Hurricane Katrina struck New Orleans, it became apparent to the parties that the evacuation would be for an extended period of time. [J.F.] remained in Petitioner’s care by agreement of Angie Fletcher.
5. Angie Fletcher worked in law enforcement at the time of Hurricane Katrina and as a condition of her employment, was required to remain in New Orleans after the hurricane. By the end of 2005, Ms. Fletcher could have come to Arkansas and retrieved her children but chose to remain in New Orleans and leave [J.] to the care of Mr. Scorza.
6. Ms. Fletcher left [J.] in Mr. Scor-za’s care by agreement from August of 2005 until December of 2007 when she came to North Little Rock and took all three children from Mr. Scorza’s home. Ms. Fletcher took [J.] with no notice to Mr. Scorza but with the understanding [J.] would be returned to Arkansas after the Christmas Break from school. Ms. Fletcher informed Mr. Scorza shortly after Christmas 2007 that the children would not be returning to Arkansas.
7. From August 2005 to the present, Kevin Scorza has provided and met [J.]’s educational needs and his medical and dental needs. Mr. Scorza and his mother, Barbara Scorza, have provided [J.] with religious training and have attended church regularly with him since January 2007.
8. Prior to August 2005 and until late fall, 2007, Kevin Scorza paid child support of $367.00 a month to Angie Fletcher for the support of [A.S.] and [K.S.]. Ms. Fletcher provided money for birthdays, Christmas presents, and on occasion at the request of Mr. Scorza, money for the needs of the children. Ms. Fletcher bought clothing, toys and gifts for [J.] for birthdays, Christmas and on other occasions. There is no court order for the support of [J.] between Angie Fletcher and Kevin Scorza. | sThere is no proof that Ms. Fletcher provided any support for [J.] to Mr. Scorza on a regular basis. Mr. Scorza has provided the majority of support for [J.] from August 2005 to date. Ms. Fletcher has provided no support to Kevin Scorza for [J.] since the temporary hearing in this matter on January 10, 2008.
9. Kevin Scorza initiated action in September 2007 to terminate his child support obligation owed to Angie Fletcher. Child support payments from Mr. Scorza to Ms. Fletcher were terminated in December 2007. Two weeks after the child support payments were terminated, Ms. Fletcher came to Arkansas and picked up all three children.
10. Kevin Scorza is qualified and suitable to serve as [J.]’s guardian pursuant to Ark.Code Annot. § 28-65-210. Angie Fletcher delegated her parental responsibilities to Kevin Scorza for the care, custody and control of [J.F.] from August 2005 until December 2007.
11. While Ark.Code Annot. § 28-65-210(a) grants preferential status to the parents of a child, this preference is only one factor that the court must consider in determining who will be the most suitable guardian for the child. Any inclination to appoint a parent must be subservient to the principal that the child’s best interest is of paramount consideration. Freeman v. Ruston [Rush-ton], 360 Ark. 445, 202 S.W.3d 485 (2005). The child’s best interest is of paramount consideration, both in custody and in guardianship situations. Freeman, supra.
15. In Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991), the Arkansas Supreme Court cited Black’s Law Dictionary (5th ed.1979) defining “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties and responsibilities.”
16. The key issue before the Court and the Court’s primary concern in this case is [J.]’s best interest.
17. Although the parties initially thought the arrangement would last for only a few days or weeks, this arrangement has lasted now for well over two years. Kevin Scorza has adequately provided for the needs of [J.] since August 2005.
18. Mr. Scorza, his mother, Barbara Scorza, Mr. Scorza’s 85 year old grandmother and the two Scorza children have been the family [J.] has known and 13loved for the last two years. Separating [J.] from this family environment and his two half siblings is not in [J.]’s best interest.
19. Ms. Fletcher is not suitable to serve as the parent having custody of [J.]. She has made a conscious decision to delegate her parental responsibilities, duties and obligations to Kevin Scorza. When Mr. Scorza took steps to and finally did stop paying child support for the children, only then did Angie Fletcher seek to regain custody of her son, [J.]. The timing of the termination of child support and the taking of [J.] from the family and the home he had known for the last two plus years, cannot be overlooked by this Court.
20. Angie Fletcher has not demonstrated, even by a preponderance of the evidence, that she has contributed significantly to the financial support of [J.] since he has been in Kevin Scorza’s custody. Although Ms. Fletcher purchased clothing and gifts and she did provide money for these items, at Christmas and on other occasions when Mr. Scorza made requests of her for financial assistance, testimony before this Court reveals that she did so with money provided her by Mr. Scorza in the form of child support he was paying to her for the two children who were actually in his care. There is no proof that Ms. Fletcher contributed to the support of [J.] with any funds of her own. Every parent has a moral and legal obligation to support a child, even absent a court order to do so.
21. A fit parent would not delegate her parental responsibility to someone only so long as it benefitted her financially. A fit parent would not seek to regain custody of the child only when the financial benefit terminated, all to the detriment of the child. Angie Fletcher is neither fit nor suitable to serve as [J.]’s guardian or custodial parent.
22.A guardianship is necessary to protect the health, safety and welfare of [J.F.].
Specifically noting that it was in the best interest of J.F., the circuit court granted Mr. Scorza’s petition for guardianship. Ms. Fletcher now appeals.
Ms. Fletcher argues that the circuit court erroneously entered the order of guardianship without sufficient evidence that she, the natural parent, was unfit or that the guardianship was necessary. She states that she in no way abandoned J.F., as she fully intended to retrieve her hochildren once she reestablished her life in New Orleans. She disputes the circuit court’s finding that she could have retrieved her children as early as the end of 2005, stating that the city was not a suitable place for children to live at that time. She further disputes the circuit court’s findings that she was not suitable to serve as a parent because she delegated her parental duties to Mr. Scorza and that she was unfit because she did not contribute financially.
Mr. Scorza responds that significant evidence was presented to the circuit court that Ms. Fletcher delegated her parental duties to Mr. Scorza. He further states that no evidence was presented to support a finding that Ms. Fletcher contributed significantly to the financial support of J.F. from August 2005 until December 2007. He maintains that, after considering the presumptions and protections afforded parents, the circuit court correctly found that any presumption that Ms. Fletcher was the preferred guardian was rebutted by her failure to discharge her parental duties. Finally, he asserts the circuit court correctly found that it was in J.F.’s best interest that Mr. Scorza be appointed his guardian.
This court reviews probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. See Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. See id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. See id.
|nArkansas Code Annotated § 28-65-210 (Repl.2004) provides:
Before appointing a guardian, the court must be satisfied that:
(1) The person for whom a guardian is prayed is either a minor or otherwise incapacitated;
(2) A guardianship is desirable to protect the interests of the incapacitated person; and
(3) The person to be appointed guardian is qualified and suitable to act as such.
Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. See Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). Preferential status in a guardianship proceeding may be given to the natural parents of a child pursuant to Ark. Code Ann. § 28-65-204(a) (Repl.2004). See id. That section provides that “[t]he parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” Ark.Code Ann. § 28-65-204(a). A plain reading of that section demonstrates that only a natural parent who is both qualified and, in the opinion of the circuit court, suitable, shall be preferred over all others to be the child’s guardian; however, the natural-parent preference does not automatically attach to a child’s natural parents. See Blunt, supra.
It is within the circuit court’s discretion to make a determination as to whether a parent is qualified and suitable. See Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005). Moreover, the natural-parent preference is but one factor that the circuit court must consider in determining who will be the most suitable guardian for the child. See Blunt, supra. Any inclination to appoint a parent or relative must be subservient to the principle that the child’s interest is of paramount consideration. See Blunt, supra.
|12As an initial matter, we note that Ms. Fletcher’s arguments are premised in part on the idea that a natural parent must be proven unfit before a guardianship may be entered in favor of someone other than the natural parent. Indeed, this court has previously observed, in the context of a guardianship case, that “[t]he law prefers a parent over a grandparent or other third person unless the parent is proved to be incompetent or unfit.” Devine, 371 Ark. at 71, 263 S.W.3d at 523 (citing custody cases). And in this case, the circuit court found Ms. Fletcher neither fit nor suitable to serve as guardian of J.F.
However, as already noted, section 28-65-204(a) provides a natural-parent preference if the natural parent is qualified, and in the opinion of the court, suitable. The statute makes no mention of whether the natural parent is “fit” or “unfit,” as those terms have been used in custody cases. Moreover, we have previously attempted to distinguish guardianship cases from custody cases:
The natural-parent preference referred to by appellant derives from our long-established caselaw in custody matters and from Ark.Code Ann. § 28-65-204(a). While the two preferences are similar, the preference at issue here is the statutory preference, Ark. Code Ann. § 28-65-20I(a).
Freeman, 360 Ark. at 449, 202 S.W.3d at 487 (emphasis added). In Freeman, we rejected Freeman’s argument that “the natural-parent preference must prevail unless it is established that the natural parent is unfit,” observing that “[Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), relied on by Freeman,] is a modification-of-custody case, not a guardianship case, governed by the case-law preference, not the statutory preference found in Ark. Code Ann. § 28-65-204(a).” Id. at 451-52, 202 S.W.3d at 488. We, therefore, take this opportunity to | ^clarify that the sole considerations in determining guardianship pursuant to Ark.Code Ann. § 28-65-204(a) are whether the natural parent is qualified and suitable and what is in the child’s best interest. To the extent that any of our prior cases suggest a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, we overrule them.
We turn, then, to the merits of the instant case. In order for Ms. Fletcher, as a natural parent, to be preferred over all others for appointment as guardian of J.F., section 28-65-204(a) required that she be qualified, and, in the judge’s opinion, suitable. In addition, J.F.’s best interest was to be considered. Here, the circuit court found that, not only was Ms. Fletcher not suitable, but it was also not in J.F.’s best interest that she be appointed guardian. Specifically, the circuit court found that: (1) Mr. Scorza, his mother, his grandmother, and his other two children were the “family [J.F.] has known and loved for the last two years;” (2) separating J.F. from that family environment and his half-siblings was not in his best interest; (3) Ms. Fletcher made a conscious decision to delegate her parental responsibilities, duties, and obligations to Mr. Scorza; (4) Ms. Fletcher only sought to retrieve J.F. after Mr. Scorza stopped paying child support; (5) Ms. Fletcher had not contributed significantly to J.F.’s financial support since he had been with Mr. Scorza; (6) while Ms. Fletcher purchased clothing and gifts and provided money when requested to do so by Mr. Scorza, she did so with the child-support funds paid to her by Mr. Scorza for the two children actually in his 114care; and (7) Ms. Fletcher was neither fit, nor suitable to serve as J.F.’s guardian.
Based upon the evidence before it, the circuit court found that Ms. Fletcher was not suitable and that it was in J.F.’s best interest for Mr. Scorza to be appointed guardian. After taking into account all of the testimony presented and the circuit court’s superior position to weigh and assess the credibility of witnesses and their testimony, we are not left with a definite and firm conviction that a mistake was made by the circuit court. Again, in guardianship matters, the natural-parent preference is but one consideration, which is subservient to the principle that the child’s best interest is the paramount consideration. In light of our standard of review, we affirm the circuit court’s order.
Affirmed; court of appeals reversed.
CORBIN, WILLS, and SHEFFIELD, JJ., dissent.
. The record reflects that J.F., who is not Mr. Scorza’s biological child, has two half-siblings, whose father is Mr. Scorza and whose mother is Ms. Fletcher.
. While the circuit court found Ms. Fletcher unfit, which we today acknowledge is not the requisite consideration under the statute, we need not remand this matter because it is clear that the circuit court also found Ms. Fletcher unsuitable, which was the requisite determination under Ark.Code Ann. § 28-65-204(a). | [
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MOTION FOR RULE ON CLERK.
PER CURIAM.
Appellant, Shannon David Ray, by and through his attorney, Winston C. Mathis, has filed a motion for rule on clerk. The clerk refused to docket his appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure-Civil 5(b)(1)(C) in that the record does not reflect that all parties have had an opportunity to be heard on appellant’s motions to extend time for filing the transcript.
In McDonald v. State, 356 Ark. 106, 146 S.W.Sd 883 (2004), this court clarified our treatment of motions for belated appeals and motions for rule clerk. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes there is good reason the appeal was not perfected, then the case for good reason can be made in the motion, and this court will decide if good reason is present.
Id. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Mathis has candidly admitted that it was his responsibility to assure compliance with Rule 5(b)(1)(C) and that this was not done. The motion is, therefore, granted. While we note that Mr. Mathis has submitted a copy of his motion for rule on clerk to the Ethics Committee for their review, a copy of this opinion will also be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Ray Thornton, Justice.
This case presents an issue of first Jmpression whether a determination of damages on the basis of tortious conversion and conspiracy to convert and to use trade secrets and confidential information is displaced or preempted by the language of the Arkansas Trade Secrets Act (“Trade Secrets Act”), codified at Ark. Code Ann. § 4-75-601 et seq. (Repl. 2001). Because we conclude that the Trade Secrets Act prescribes an exclusive remedy for damages for misappropriation of trade secrets, we hold that the trial court’s award of damages for tortious conversion and conspiracy was reversible error, and we reverse and remand.
Appellees, Pro-Comp Management, Inc., an Arkansas corporation, together with DLJ Wright Industries, Inc., an Oklahoma corporation, and Amedistaff, LLC, a Delaware limited liability company, owned and controlled by Diana Wright, were each doing business as The Right Solutions (“TRS”). TRS had commenced nurse-staffing services in 1996, and entered the business of providing travel nurses to facilities in Arkansas, Oklahoma, and adjacent states in August of 2000.
Appellant, Katherine Hefley, was designated as manager of TRS’s Harrison office in April, 2000, and appellant, Mary Burks, was hired by TRS on October 20, 2000. Both Ms. Hefley and Ms. Burks resigned their positions on April 20, 2001. Ten days later, they were hired by appellant, R.K. Enterprise, LLC, a Nevada limited liability company formed in April of 2001 by appellant, Raymond Hefley, for the purpose of providing travel nurses under the name, Nationwide Nurses, LLC (“Nationwide”). Before Nationwide was formed, appellant, Traca Lane, had been fired by TRS onMarch 15, 2001, and was hired by Nationwide in late May of2001.
During the time that Ms. Hefley, Ms. Burks, and Ms. Lane were TRS’s employees, each of them had access to confidential information of TRS. Each of them executed separate confidentiality and non-compete agreements with TRS.
On April 25, 2001, Diana Wright, TRS president, became aware that Ms. Hefley and her ex-husband, appellant Raymond Hefley, were starting a medical staffing agency in Marble Falls under the name of Nationwide. Shortly thereafter, Ms. Wright learned that the office of Nationwide was located in Mr. Hefley’s apartment. A TRS employee obtained the phone number of Nationwide, called the office, and learned that Ms. Burks and Ms. Lane worked for them.
Upon investigation, TRS learned that a number of confidential documents had been removed from the TRS offices in Tontitown and Harrison, including original documents from the individual nurse employee files, other files containing social-security numbers and bank account numbers, pre-paid phone cards, travel packets and travel folders, tests developed by TRS to be administered to potential nurse employees, and a computer program generated by and for the exclusive use of TRS. Additionally, it was discovered by TRS that appellants Hefley, Burks, and Lane had individually solicited TRS employees to become the employees of Nationwide.
Ms. Wright, as president of TRS, filed complaints with the Washington County prosecuting attorney for theft of property, a class B felony, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1997), against Ms. Hefley and Ms. Burks. On May 23, 2001, those arrest warrants were issued.
On May 30, 2001, the Newton County Sheriffs Department executed a search warrant for Nationwide’s office. The search was conducted in the presence of appellants, and many documents, such as numerous lists of nurses, and Nationwide’s computer, were seized. All material, including any confidential information, was impounded, and was not available for any of the parties until it was returned to Nationwide by a court order dated December 11, 2001. Criminal charges against Ms. Hefley and Ms. Burks were subsequently dismissed.
Nationwide had its first travel nurse in the field on June 27, 2001, and did not regain access to the seized material until December 14, 2001, when it was returned by court order.
On January 22, 2002, TRS filed an amended complaint against all appellants, alleging fraud, breach of noncompetition/confidentiality contracts, misappropriation of trade secrets in violation of the Arkansas Theft of Trade Secrets Act, conversion, and civil conspiracy. In its complaint, TRS made allegations against appellants Hefley, Burks, and Lane for breach of fiduciary duty and for breach of duty of loyalty. TRS requested both actual and punitive damages, as well as injunctive relief.
Following three days of a bench trial, the trial court concluded that appellants, Katherine Hefley, Mary Burks, and Traca Lane did not breach the non-competition provision of their contract with TRS, but found that they breached the confidentiality and trade-secret provisions of the contracts by removing from TRS confidential information, property, and trade secrets of TRS, and disclosing that information to Nationwide and its agents.
The trial court ruled that appellants had misappropriated trade secrets in violation of the Trade Secrets Act, and required appellees to elect whether to seek recovery under the provisions of the Trade Secrets Act or to seek recovery for misappropriation of trade secrets on the basis of tort claims of conversion and conspiracy for misappropriation of trade secrets. Appellees did not contest or perfect an appeal or cross-appeal from the trial court’s order requiring the election of remedies, but chose to rely upon the evidence of damages under tort claims of conversion and conspiracy. The abstract before us does not reflect that TRS established its lost profits or Nationwide’s gain resulting from misappropriation of trade secrets. The trial court awarded damages of $262,303.00 based upon the market value of the trade secrets, including databases, tests, lists, and computer programs, and appellants bring this appeal from that order.
On appeal, appellants argue that the trial court erred in awarding damages based on tort claims, a remedy that appellants contend is displaced or preempted by the plain language of the Trade Secrets Act. Appellants also raise additional points on appeal, arguing that the trial court erred in finding that the items found in appellants’ possession were trade secrets, that the trade secrets were misappropriated by appellants, that appellants Hefley, Burks, and Lane had breached a contract with appellee, and that a conspiracy was established.
With regard to the trial court’s finding that the items at issue are trade secrets that were misappropriated, we note that our standard of review is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Finagin v. Arkansas Development Finance Authority, 355 Ark. 440, 139 S.W.3d 797 (2003). In this instance, we cannot say that the trial court was clearly erroneous. Accordingly, based upon our standard of review, we affirm the trial court’s finding that there was a misappropriation of trade secrets.
We turn to appellant’s first point on appeal, namely that the trial court erred in allowing the recovery of damages for tort claims of conversion and conspiracy. Appellants contend that the language of the Trade Secrets Act relating to displacement of other relief for misappropriation of a trade secret raises an issue of statutory construction, and that the remedy provided by Ark. Code Ann. § 4-75-606 excludes recovery on other grounds sounding in tort.
This issue requires us to interpret provisions of the Trade Secrets Act, codified at Ark. Code Ann. § 4-75-601 et seq. Because the issue now facing this court is one of statutory interpretation, our review is de novo, as it is for this court to decide what a statute means. Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003).
When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 21-22, 89 S.W.3d 884 (2002); Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Cave City, supra; Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). 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). 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.
We turn to our interpretation of the Trade Secrets Act in light of the applicable standard of review. Appellants argue that the Trade Secrets Act preempts other relief, particularly damages in tort, when trade secrets are involved. Appellants cite the provisions of Ark. Code Ann. § 4-75-602 (2001) as the basis for the trial court’s error.
The Trade Secrets Act, which was adopted in 1981, is based on the Uniform Trade Secrets Act. See Saforo & Assoc., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). Arkansas Code Annotated § 4-75-602 provides:
(a) This subchapter displaces conflicting tort, restitutionary, and other law of this state pertaining to civil liability for misappropriation of a trade secret.
(b) This subchapter does not affect:
(1) Contractual or other civil liability or relief that is not based upon misappropriation of a trade secret; or
(2) Criminal liability for misappropriation of a trade secret.
Id. (emphasis added).
While the statutory language appears to be plain and unambiguous, we note that we have not interpreted or applied this displacement provision of our Trade Secrets Act. However, the United States District Court for the Eastern District of Arkansas considered that issue in Vigoro Industries, Inc. v. Cleveland Chemical Co., 866 F. Supp. 1150 (E.D. Ark. 1994) (affirmed in part; reversed in part on other grounds in Vigoro Industries, Inc. v. Crisp, 82 F.3d 785 (8th Cir. 1996)). The federal district court stated:
The Court notes that the Arkansas Trade Secrets Act (“the Act”), Ark. Code Ann. § 4-75-601 et seq., is Vigoro’s exclusive remedy for the Defendants’ alleged misappropriation ofVigoro’s trade secrets____Accordingly, were the Court to determine that the information Vigoro seeks to protect as a trade secret qualified as such, and that the Defendants misappropriated those trade secrets, thenVigoro’s exclusive remedy for improper use of that information would be pursuant to the Arkansas Trade Secrets Act. In that situation,Vigoro would not be able to rely on the acts constituting misappropriation of a trade secret to support its other causes of action. That situation does not arise here, however, because the Court concludes that the information thatVigoro seeks to protect as a trade secret is not entitled to protection as such under the Arkansas Trade Secrets Act.
Vigoro, supra.
Other jurisdictions have interpreted statutory provisions similar to our own. See also Penalty Kick Management Ltd. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003) (interpreting Georgia law and holding that the Georgia Trade Secrets Act superseded claims for conversion, breach of confidential relationship and duty of good faith, unjust enrichment, and quantum meruit); Savor, Inc. v. FMR Corp., 812 A.2d 894 (Dela. 2002) (holding that the Delaware Trade Secrets Act precluded plaintiffs common law unfair-competition and conspiracy claims); Tronitec v. Shealy, 547 S.E.2d 749 (Ga. App. 2001) (holding that Tronitec’s claims for conversion and theft were superseded by the Georgia Trade Secrets Act); Frantz v. Johnson, 999 P.2d 351 (2000) (holding that the Nevada Uniform Trade Secrets Act displaced common law.tort claims); Micro Display Systems, Inc. v. Axtel, 699 F. Supp. 202 (D. Minn. 1988) (holding that the Minnesota Uniform Trade Secrets Act displaced common law causes of action for misappropriation of trade secrets).
As a general rule, courts examine whether the claim is based upon the misappropriation of a trade secret. If so, the displaced claim must be dismissed. Bliss Clearing Niagra, Inc. v. Midwest Brake Bond Co., 270 F. Supp. 2d 943 (W.D. Mich. 2003). The South Dakota Supreme Court has succinctly summarized the displacement analysis in Weins v. Sporleder, 605 N.W.2d 488 (2000), where it stated:
South Dakota’s adoption of the Uniform Trade Secrets Act, SDCL 37-29-7, prevents a plaintiff from merely restating their trade secret claims as separate tort claims. In analyzing claims for the purpose of applying the displacement provision, the issue is not what label the plaintiff puts on their [sic] claims. Rather the court is to look beyond the label to the facts being asserted in support of the claims. A plaintiff may not rely on acts that constitute trade secret misappropriation to support other causes of action.
Weins, supra (citations omitted).
Informed by the analysis of the South Dakota Supreme Court and other jurisdictions, as well as that articulated by the United States District Court for the Eastern District of Arkansas, we rely upon our own interpretation of the plain meaning of our Trade Secrets Act. Here, Arkansas Code Annotated § 4-75-602 applies to the present case because appellees’ tort claims of conversion and conspiracy stem from the same acts constituting a violation of the Trade Secrets Act. Therefore, based upon the plain language of Ark. Code Ann. § 4-75-602, we conclude that the statutory language of the Trade Secret Act displaces or preempts the award of damages based upon tort claims for conversion of trade secrets, as well as other tort claims such as conspiracy, that may arise under a claim for misappropriation of trade secrets. Accordingly, the trial court committed reversible error in its award of damages for tortious conversion and conspiracy.
We now turn to an analysis of what proof of damages TRS is required to show under the Trade Secrets Act. Under the provisions of our Trade Secrets Act, the exclusive method by which damages are measured is stated in Ark. Code Ann. § 4-75-606, which provides:
(a) In addition to or in lieu of injunctive relief, a complainant may recover damages for the actual loss caused by misappropriation.
(b) A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.
Id. Arkansas Code Annotated § 4-75-606 includes the recovery of actual loss plus any unjust enrichment when the misappropriation of trade secrets is involved.
In Saforo, supra, we declared this statute ambiguous, as the General Assembly did not define “actual loss,” and we construed it to mean that damages are calculated by determining either the plaintiffs lost profits or the defendant’s gain, “whichever affords the greater recovery.” Id. The court of appeals has interpreted the statute on the basis of net profits. See Brown v. Ruallam Enterprises, Inc., 73 Ark. App. 296, 44 S.W.3d 740 (2001).
In the present case, the trial court, having concluded that there was a trade secret, required appellees to elect whether to seek recovery under a breach-of-contract claim and a violation of the Trade Secrets Act or, in the alternative, to seek recovery for misappropriation of trade secrets on the basis of tort claims of conversion and conspiracy. Appellees elected to recover under the tort claims of conversion and conspiracy, and the trial court awarded damages of $262,303.00 based upon the market value of the trade secrets.
The abstract before us does not establish TRS’s lost profits or Nationwide’s gains resulting from the misappropriation of trade secrets. Instead, TRS, through the testimony of Diana Wright, put on testimony of the fair-market value of the property that was converted. The trial court’s order states:
The court finds that there was sufficient evidence of fair market value and that it came from two sources. First, Diana Wright testified that she had previously owned such a business and had sold such a business and testified regarding the profits of that business and the sale of the business produced. Secondly, Plaintiffs Exhibit #40 provided Diana Wright’s summary of the fair market value of nurse databases, the conversion of tests developed in house for verifying the competency of nurses, the labor costs of developing client hospitals, and the computer program developed, namely Staff Pro. The court finds that Diana Wright’s testimony, coupled with her experience in the field, supports [a $262,312.00 award.]
Such a computation of damages did not address the measure of lost profits suffered by TRS or the gain realized by appellants as result of the misappropriation of trade secrets as required by Ark. Code Ann. § 4-75-606. With regard to the specific remedy authorized by the statute, we note that appellees admitted at the conclusion of the trial that the remedy for “the theft of trade secrets . . . would be some sort of disgorgement of profits, which would be difficult, if not impossible, for the court to determine on the three individual defendants [Hefley, Burks, and Lane].” To the same effect, the trial court found that the appropriate remedy of damages under the Trade Secrets Act is “to disgorge profits made by the relevant Defendants and the [trial] court finds that the three female defendants [Hefley, Burks, and Lane] have no profits to disgorge.”
The abstract before us does not reflect a determination of the issues relating to disgorgement of profits by Nationwide or the recovery ofTRS’s lost profits, whichever affords the greater recovery, as articulated in Ark. Code Ann. § 4-75-606 and Saforo, supra. Accordingly, we reverse and remand for a determination of damages under the statutory provisions of our Trade Secrets Act.
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Betty C. Dickey, Chief Justice.
This case essentially presents one issue on appeal: whether our materialmen’s lien statute, Ark. Code Ann. § 18-44-101 (a) (Repl. 2003) , controls over a forum-selection clause in a contract. We accepted certification from the Court of Appeals pursuant to Sup. Ct. R. 1-2(b)(1) and (4) as presenting an issue of first impression involving a substantial issue of public interest. We affirm.
Appellant RMP Rentals, LLC d/b/a RMP Developments, Inc., hereafter RMP, is a general contractor with its corporate office located in Louisiana. RMP is in the business of constructing post office buildings on property it owns, which it then leases to the United States Postal Service. The appellees are subcontractors Metroplex, Inc., and Bobby Joe Williams. Metroplex is an electrical subcontractor located in Arkansas, engaged in the business of installing electrical services, including wiring panels and fixtures. Williams is an Oklahoma subcontractor who is in the business of pouring concrete slab, curbing, and parking lots. After contracting with the Postal Service to construct a post office in Greenwood, Sebastian County, Arkansas, RMP contracted separately with the appellees to provide electrical and concrete services, respectively, to the Greenwood post office. RMP executed the contracts in Louisiana. Each contract contained identical forum-selection clauses, which read as follows:
The parties agree that the sole and exclusive forum for any civil suit arising out of obligations created by this Agreement shall be the Ninth Judicial District Court in the Parish of Rapides, State of Louisiana.
This Contract and any actions arising therefrom must be interpreted and construed solely in accordance with the laws of the state of Louisiana. (Emphasis added).
The relevant, procedural facts are as follows. In December of 2000, Metroplex filed a foreclosure complaint in the chancery court of Sebastian County, against RMP for failure to pay on a percentage of the work completed. Based on a previously filed materialmen’s lien in Sebastian County, Metroplex sought a judgment on the lien for $17,963.86, and foreclosure of RMP’s Arkansas property. Metroplex named Williams as a separate defendant and a potential lienholder, and claimed priority over the Postal Service and equal priority with Williams. In response, RMP filed a motion to dismiss, challenging inter alia the court’s subject-matter jurisdiction, Ark. R. Civ. P. 12(1), based on the forum-selection clause in its contracts. In addition to copies of the contracts with Metroplex and Williams, RMP attached two orders of dismissal from the county’s separate circuit courts, enforcing the forum clause against Williams and another subcontractor for the same building. Williams then filed a cross-claim against RMP, asserting claims similar to those of Metroplex and seeking $18,825.06 on its lien and foreclosure. RMP filed a similar motion to dismiss Williams’s foreclosure complaint.
Following the issuance of a letter opinion, the trial court entered an order denying BMP’s motions to dismiss, and the parties proceeded to a bench trial on the appellees’ claims. Subsequently, the trial court entered judgment on behalf of the appellees in the amounts sought on their liens, subject to the superior priority of Red River Bank on its construction-money mortgage in the sum of $1,279,028.41. Further, the court awarded each of the appellees prejudgment interest, $6,000 in attorney fees, all costs, and ordered foreclosure on the property. In granting the judgment, the trial court relied on § 18-44-127(a), which provides that “the court shall ascertain by a fair trial, in the usual way, the amount of the indebtedness for which the lien is prosecuted and may render judgment therefor in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs.” The court found that it would be neither fair nor reasonable to require the subcontractors seeking to proceed on a materialmen’s lien under Arkansas law on property located in Arkansas to first litigate the amount of the claim in Louisiana, and then come back to an Arkansas court for execution against the land. In sum, the trial court found that in the interest of substantial justice, the matter should be heard in Sebastian County.
When a party appeals an adverse ruling on a motion brought under Ark. R. Civ. P. 12, this court treats the facts alleged in the complaint as true and views them in a light most favorable to the party who filed the complaint. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996). Chancery cases are tried de novo on appeal, and the appellate court is free to affirm for a different reason. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995). Where the facts are not in dispute and the issue is one of law, we determine whether the appellant was entitled to judgment as a matter of law. Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).
Choice-of-forum clauses in contracts have generally been held binding, unless it can be shown that the enforcement of the clause would be unreasonable and unfair. Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991); SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). Nonetheless, the determination of subject-matter jurisdiction is paramount. Parties may by agreement consent to personal jurisdiction in a given court, but subject-matter jurisdiction cannot be conferred merely by agreement of the parties.. See Hardy Construction Co., Inc. v. Arkansas State Highway & Transportation Dept., 324 Ark. 496, 922 S.W.2d 705 (1996) (chancery court had jurisdiction to enforce contracts pursuant to the Uniform Arbitration Act). While a forum-selection clause implies consent as to personal jurisdiction, SD Leasing, Inc., supra; St. Paul Fire & Marine Ins. Co. v. Courtney Enter., Inc., 270 F.3d 621 (8th Cir. 2001), it cannot confer subject-matter jurisdiction over in rem proceedings. Publix v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th Dist. Ct. App. 1987).
Here, RMP argues extensively that under International Shoe Co. v. Washington, 326 U.S. 310 (1945), its forum-selection clause meets the requirements for minimum contacts. But that is not the issue here, nor do we disagree with RMP’s argument. It is correct that under the clause, the Louisiana court may have subject-matter jurisdiction to award the appellees an in personam judgment equal to the amount of their liens, but that is not what the trial court determined and that is not what we decide here. Only an Arkansas court has subject-matter jurisdiction to enforce the liens and to order foreclosure on real property located within its borders. Specifically, “[t]he chancery court of the county where the property is situated and on which a lien created under § 18-44-101 et seq. is attached shall have exclusive jurisdiction to enforce the lien.” § 16-13-304(c) (Repl. 1999, repealed 2003).
An in rem action is one in which the court is required to act directly on property or on title to property. Id. In Publix SuperMarkets, Inc., supra, the Florida court was faced with a similar issue. There, a roofing subcontractor had entered a contract containing a clause establishing a specific county as the forum for “any action” brought under the contract. Subsequently, the subcontractor filed to enforce its mechanic’s lien and to foreclose in the county where the land was located. In affirming the denial of the land owner’s motion to transfer to the county specified in the contract, the Florida court held that pursuant to statute, an agreement that has the effect of placing venue in a county, other than the one in which the land to be foreclosed is located, is ineffective because such an action requires in rem court jurisdiction, and only a court with geographic jurisdiction over the county where the land is located has in rem jurisdiction. In so holding, the court noted that foreclosure of land based on a mechanic’s lien is analogous to foreclosure of a mortgage on land by seeking to judicially convert a lien interest against title to land, into a legal title to land. The result, the court found, is that the court is required to act directly on the title to the property. Id. We agree. Under our statutes, a judicial proceeding on a materialmen’s lien as to land is an in rem proceeding.
RMP characterizes the cause of action against it as one for breach of contract and for damages “arising out of obligations created” by the contract. However, a review of the appellees’ complaints shows that the appellees filed a “foreclosure complaint.” While the claim had its genesis in the contract with RMP, the appellees, as materialmen, had a statutory right to seek in rem relief: that is judgment on their liens previously filed pursuant to Arkansas law, and foreclosure on RMP’s real property located in Arkansas. Section 18-44-101 (a) gives the appellees an absolute right to file such a lien. RMP argues that by limiting the jurisdiction to a particular “venue” (Louisiana), the forum clause does not eliminate the appellees’ right to redress, but that it merely establishes the forum where redress can be sought. But RMP ignores the fact that the property is not located in Louisiana. Nor does RMP claim that the appellees have a right under Louisiana law to file a materialmen’s lien in that forum, nor a right under Louisiana law to seek enforcement of their liens that are filed in Arkansas. Cf. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002) (Louisiana court had both subject and personal jurisdiction to determine whether a contract existed to purchase leases on oil wells located in Arkansas, and if so, to grant specific performance). In sum, as to the appellees’ liens, the choice-of-law provision in RMP’s contract is meaningless.
RMP argues that the forum clause is reasonable and fair because the appellees could litigate on the contract in Louisiana and then seek to enforce their liens in Arkansas. First, this ignores our holding that the Sebastian County court had sole jurisdiction over the res of the appellees’ complaint. Second, the argument ignores the fact that the appellees have fifteen months from the time the lien is filed to institute an action on the lien as required by § 18-44-119. As the appellees point out, even if they could register a foreign judgment obtained in Louisiana and then execute on it in Arkansas, it is highly probable that, in the interim, the land could be transferred to a third party or further encumbered, thereby defeating the immediacy of their lien. Additionally, RMP’s argument disregards our well-established policy that piecemeal litigation is to be avoided. Fisher v. Chavers, 351 Ark. 318, 92 S.W.3d 30 (2002). Finally, under the cleanup doctrine, the chancery court had subject-matter jurisdiction over the entire action. Burns v. First Nat'l. Bank, 336 Ark. 406, 985 S.W.2d 747 (1999); Riggin v. Dierdorff, 302 Ark. 517, 790 S.W.2d 897 (1990).
The dissent cites A.C.E. Elevator Co., Inc. v. V.J.B. Construction Corp., 192 Misc.2d 258, 746 N.Y.S.2d 361 (N.Y. Sup. Ct. 2002), in support of its position that the forum clause should be enforced. But that case is distinguishable because the language in the New York statute provided that the place of trial in actions affecting title, possession, use, or enjoyment of real property “shall” be in the county where the property is located. Notwithstanding the “seemingly mandatory nature” of this statute, the New York court relied instead on another statute providing that a written agreement fixing the place of trial “shall be enforced upon a motion for change of place of trial.” There, the New York court found that the parties’ agreement to venue “trumped” the statute placing venue in the county where the land was located. In our case, § 16-13-304(c) was clear that the court of the county where the property is situated “shall have exclusive jurisdiction to enforce the lien.” RMP cites to no other statute that would allow jurisdiction outside of Sebastian County. Further, unlike the present case, in none of the cases cited by the dissent was the issue of subject-matter jurisdiction raised.
RMP makes much of the fact that two circuit courts in Sebastian County had previously dismissed Williams’s and another subcontractor’s complaints, enforcing the forum-selection clause. But a review of those orders shows that the cause of action there was for breach of contract. There, the subcontractors sought only damages based on the terms of the contract. No in rem action or remedy was sought.
As noted above, the trial court specifically found that it was neither fair nor reasonable to require the appellees seeking to proceed on materialmen’s liens under Arkansas law against real estate located in Arkansas to first litigate the amount of their claim in Louisiana, and then to come back to court in Arkansas for execution against the land. A contractual choice of forum should be held unenforceable if enforcement would contravene a strong public policy of forum, whether declared by statute or by judicial decision. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). For the reasons cited above, we agree with the trial court’s results, and reaffirm this court’s precedent that parties to a contract may agree as to personal jurisdiction if fair and reasonable, but that they cannot agree as to subject-matter jurisdiction. As a matter of law, we hold that the mechanics’ and materialmen’s lien provisions of §§ 18-44-101 — 135, as to real property located within Arkansas, control over a forum-selection clause.
In so holding, we emphasize that we are not in any way overruling Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991) and SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). Where the court has subject-matter jurisdiction, forum-selection clauses are enforceable if enforcement would be fair and reasonable.
Affirmed.
Corbin and Hannah, JJ., dissent.
Every contractor, subcontractor, or material supplier ... who supplies labor, services, material, fixtures, engines, boilers, or machinery in the construction or repair of an improvement to real estate ... by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to (1) acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected or repaired. § 18-44-101(a).
This cause of action was filed prior to the effective date of Amendment 80, which merged courts of equity and law.
RMP concedes in its brief that seeking a materialmen’s lien and breach of contract are two separate causes of action.
RMP also makes much of the fact that the appellees did not attach copies of the contracts to their foreclosure complaints.The appellees complied with § 18-44-117 by filing an account of the demand due or owing ....” See also § 18-44-122. In sum, as to the lien and foreclosure, attachment of a contract was unnecessary to the appellees’ filings. | [
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Donald L. Corbin, Justice.
This appeal was certified to us by the Arkansas Court of Appeals as presenting an issue of substantial public.interest needing further development of the law: Whether an insurance policy providing for uninsured-motorist coverage in a hit-and-run situation only if there is an actual collision between the vehicles violates our statutory law or public policy. Appellant State Farm Mutual Automobile Insurance Company argues that the Columbia County Circuit Court erred in granting summary judgment to Appellee Wilfer Henderson on the ground that the policy issued to him by State Farm was invalid under Ark. Code Ann. § 23-89-403(a)(1) (Supp. 2003) and was against public policy. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(4) and (5). We reverse and dismiss.
The pertinent facts are not in dispute. On April 16, 2000, Henderson was involved in a single-car accident, when an oncoming vehicle crossed the center line and forced him off the road and into a guardrail. There was no physical contact between the Henderson vehicle and the other vehicle. The other vehicle was never identified, nor was i'ts driver. Notwithstanding, the parties stipulated that the accident was proximately caused by the negligence of the unknown driver, and it resulted in bodily injuries to Henderson. Henderson was insured with State Farm on the date of the accident, and his policy included uninsured-motorist coverage. Henderson made a claim with State Farm for uninsured-motorist benefits, and the claim was denied by State Farm due to the lack of physical contact between the vehicles. Based on these facts, both sides sought summary judgment, averring that the issue to be determined was one of law. The trial court granted summary judgment to Henderson, and State Farm brought the instant appeal.
Summary judgment, although no longer viewed as a drastic remedy, is to be granted 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. Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003); Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002); Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). Summary judgment was appropriate in this case, as both parties concede that there are no issues of material fact left to be resolved and the issue on appeal is purely one of law, involving the interpretation of section 23-89-403(a)(1). See id. We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fields v. Marvell Sch. Dist., 352 Ark. 483, 102 S.W.3d 502 (2003); Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002). 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. Id.
The policy purchased by Henderson defined uninsured-motorist coverage, in relevant part, as:
2. a “hit and run” land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured; or
b. the vehicle the insured is occupying
and is the proximate cause of bodily injury to the insured.
State Farm averred that this provision clearly reflects that uninsured-motorist coverage is available in a hit-and-run accident only if the unknown vehicle strikes, or makes physical contact with, the insured or the insured’s vehicle.
The trial court found that the policy’s coverage for hit-and-run drivers was contrary to section 23-89-403(a)(l), which provides in pertinent part:
No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state . .. unless coverage is provided therein or supplemental thereto ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.
The trial court found that the policy’s requirement that the hit-and-run vehicle actually strike the insured before uninsured benefits will be paid contravened the statute because it essentially added an element of proof to a tort claim. The trial court reasoned that a plaintiff is “legally entitled,” as provided in section 23-89-403(a)(l), to recover in tort by proving three elements: negligence, proximate cause, and damages. These elements, the trial court found, may be proven without evidence of physical contact between the vehicles. As such, the trial court concluded that the policy’s requirement is “a Hmitation on an otherwise provable legal entitlement, is unduly restrictive and contrary to the statute.”
The trial court also found that the policy’s requirement of physical contact violated the public policy in three ways. First, it penalizes those persons who drive defensively and avoid any actual collision. Second, it is contrary to the duty of a plaintiff to mitigate his or her damages. Third, it renders the insured’s ability to recover dependent upon the conduct of an unknown third party, who did not fulfill his or her legal obligation to stop at the scene of the accident, as required by Ark. Code Ann. § 27-53-103 (Supp. 2003). The trial court then concluded that under the stipulated facts of this case, the physical-contact requirement was contrary to public policy and was, therefore, void.
For reversal, State Farm argues that the trial court erred in granting summary judgment to Henderson, because its policy provides more uninsured-motorist coverage than section 23-89-403(a)(1) requires, and thus cannot be viewed as contravening the statute. State Farm also argues that the physical-contact requirement does not violate public policy. State Farm relies heavily on this court’s previous holding in Ward v. Consolidated Underwriters, 259 Ark. 696, 535 S.W.2d 830 (1976).
In Ward, the appellant suffered physical injuries when he was forced off the road by an unknown driver of a vehicle. He invoked the uninsured-motorist coverage of his policy, which included coverage for injuries caused by a hit-and-run vehicle “arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying,” provided that the identity of the owner or driver of the hit-and-run vehicle cannot be ascertained. Id. at 697, 535 S.W.2d at 831 (emphasis added). The insurer denied coverage on the ground that there was no physical contact between the appellant’s vehicle and the unidentified car. The trial court found in favor of the insurer, and this court affirmed. Interpreting Ark. Stat. Ann. § 66-4003 (Repl. 1966), the predecessor to section 23-89-403(a)(1), this court held:
Plainly, the statute only requires that coverage be provided for the protection of persons who are legally entitled to recover damages from the owners of uninsured motor vehicles. As indicated, we have interpreted this statute as requiring that the plaintiff has the burden of shewing that the other vehicle is uninsured. South. Farm Bur. Cas. Ins. v. Gottsponer, [245 Ark. 735, 434 S.W.2d 280 (1968)]. Here the policy does not require this burden of proof when there is physical contact and “the operator or owner of such ‘hit-and-run automobile’ ” cannot be ascertained. Therefore, it appears the policy in question is a liberalization of the coverage required by our statute. See Amidzich v. Charter Oak Fire Insurance Co., 44 Wis.2d 45, 170 N.W.2d 813 (1969); Phelphs v. Twin City Fire Insurance Company, 476 S.W.2d 419 (Tex. Civ. App. 1972); and Ward v. Allstate Insurance Company, 514 S.W.2d 576 (Mo. 1974). In the case at bar, in our view, the physical impact provision in the policy is valid and does not contravene public policy. Appellant recognizes that if the physical contact requirement of the policy is not against the public policy, it is a legitimate objective and contractually binding.
Id. at 698-99, 535 S.W.2d at 832 (emphasis added). State Farm contends that the holding in Ward is binding precedent. We agree.
Since our holding in Ward, the legislature has not made any material change to our uninsured-motorist statute, which was originally enacted by the General Assembly in Act 464 of 1965. Thus, our holding in Ward, that the statute requires the plaintiff to prove that the other vehicle was uninsured, and that a policy that relieves the plaintiff of that burden in hit-and-run cases where there is physical contact exceeds the statutory requirements, continues to be viable precedent. Indeed, the fact that the legislature has made no material change to section 23-89-403(a)(l) since 1976 may be construed as acquiescence to our construction of the statute. See, e.g., Moix-McNutt v. Brown, 348 Ark. 518, 74 S.W.3d 612 (2002); Chamberlin v. State Farm Mut. Auto. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001); Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). Applying Ward to the facts of this case, we conclude that State Farm’s policy exceeded the coverage mandated by that statute in that it disposes of the plaintiffs burden of proving that the other vehicle was uninsured in hit-and-run cases in which there is physical contact between the vehicles. We therefore reject the trial court’s conclusion that the policy is contrary to and restrictive of the language in section 23-89-403.
We likewise reject the trial court’s conclusion that the physical-contact requirement contravenes public policy. The points of public policy cited by the trial court, i.e., encouraging defensive driving and mitigation of damages, and not penalizing an insured by making his recovery dependent upon the driver of the other vehicle adhering to the legal obligation to stop and render aid, are not new or novel ideals. As such, our holding in Ward that a physical-contact requirement in an hit-and-run situation “does not contravene public policy” is still binding precedent. 259 Ark. at 699, 535 S.W.2d at 832. Moreover, if there is to be a departure in the public pohcy since Ward, it is an issue that should be left to the General Assembly. This court has repeatedly held that the determination of public policy lies almost exclusively with the legislature, and the courts will not interfere with that determination in the absence of palpable errors. See, e.g., Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001); Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). Similarly, this court has long held that a cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation, and when a statute has been consistently construed in one way for many years, that construction should not be changed by the courts. Moix-McNutt, 348 Ark. 518, 74 S.W.3d 612 (citing Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992)).
This court has also held that a state’s public policy is best evidenced by its statutes; hence, an insurance provision that is in accordance with a statute cannot run contrary to public policy. Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002); Jordan, 344 Ark. 81, 40 S.W.3d 254; Majors v. American Premier Ins. Co., 334 Ark. 628, 977 S.W.2d 897 (1998). Accordingly, it is of no significance that the particular public-policy arguments presented in this case may not have been presented in Ward. The bottom line is that the uninsured-motorist statute is the same now as it was then; hence, State Farm’s coverage, which exceeds the statutory requirements, cannot be viewed as a violation of public policy.
Both Henderson and the Arkansas Trial Lawyers Association (ATLA) raise some persuasive arguments to support a change in our law. For example, they contend that the justification for drawing a line between hit-and-run accidents with physical contact and those without, i.e., to discourage fraudulent claims of collisions with “phantom vehicles,” is not persuasive, especially in light of the fact that State Farm agreed that there was no fraud in this case, when it stipulated that the unknown vehicle proximately caused Henderson’s injuries. They also contend that State Farm’s policy has the unwanted effect of penalizing those persons who practice defensive driving and are successful in avoiding actual collisions. As persuasive as these arguments may be, however, they are more appropriately addressed to the legislature, not this court.
Additionally, Henderson urges us to consider a recent act of the legislature, Act 1043 of 2003, which amended Ark. Code Ann. § 27-19-503 (Repl. 2004) to provide a presumption that both a motorist and the vehicle itself are uninsured if the motorist fails to file a certificate of insurance within ninety days of an accident. Prior to that change, section 27-19-503 only provided such a presumption to the motorist, but not to the vehicle. Henderson asserts that this change relieves him of the burden to prove that the other vehicle was uninsured, as required in Ward, 259 Ark. 696, 535 S.W.2d 830. We do not address this argument, as the amendment to section 27-19-503 was not made until some three years after the issuance of Henderson’s policy and the date of his accident. This court has previously recognized that an insurance policy is governed by statutes in effect at the time of its issuance. See Nixon v. H & C Elec. Co., Inc., 307 Ark. 154, 818 S.W.2d 251 (1991) (citing Appleman, 12 Insurance Law and Practice § 7041 at 171-176 (1982)); M.F.A. Mut. Ins. Co. v. McKinley, 245 Ark. 326, 432 S.W.2d 484 (1968). As this court explained in McKinley, “we cannot give the statute a retroactive effect that would cut off a valid defense available to the insurer before the passage of the act.” Id. at 328, 432 S.W.2d at 485.
In sum, our holding in Ward, 259 Ark. 696, 535 S.W.2d 830, that our uninsured-motorist statute requires a plaintiff to prove that the other vehicle was uninsured, is still valid precedent. Applying that holding to this case, we conclude that State Farm was not legally obligated under section 23-89-403(a)(l) to provide any coverage for hit-and-run accidents where the plaintiff could not prove that the other vehicle was uninsured. Thus, its policy that relieved an insured of that burden where there is physical contact between the vehicles exceeded the requirements of our uninsured-motorist statute. The fact that it chose to draw a line in its coverage between those hit-and-run accidents where there is actually a “hit” or physical contact and those where there is no such contact does not violate the law and, therefore, is not in contravention of the public policy. While the public-policy arguments made by Henderson and ATLA raise valid concerns that should be addressed by the legislature, we are duty bound to follow our precedent. We thus reverse the trial court’s grant of summary judgment to Henderson and dismiss the suit, as the matter was submitted on cross motions for summary judgment. Additionally, it is not necessary to reach the merits of State Farm’s alternative argument regarding prejudgment interest.
Reversed and dismissed.
Brown, J., concurs.
This court has not heretofore determined whether the presumption in section 27-19-503, which is part of the Motor Vehicle Safety Responsibility Act, is applicable to a civil suit to collect uninsured-motorist benefits. In Throesch v. United States Fidelity & Guar. Co., 100 F. Supp. 2d 934 (E.D. Ark. 2000), the federal district court held that the statutory presumption did apply to such a suit and that the presumption extended to both the driver of the other vehicle and the vehicle itself. The Eighth Circuit reversed this latter holding on the ground that the plain language of the statute, as it was written prior to the 2003 amendment, only provided such a presumption to the driver or operator,but not to the vehicle. See Throesch v. United States Fidelity & Guar. Co., 255 F.3d 551 (8th Cir. 2001). The Eighth Circuit then ruled in favor of the insurer because the plaintiff had no other proof regarding the insurance status of the vehicle itself. In so holding, the court noted that “[u]nder Arkansas law, the distinction between an uninsured motorist and the vehicle he was driving is critical.” Id. at 554. The court relied on our decisions in Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978), and Southwestern Underwriters Ins. Co. v. Miller, 254 Ark. 387, 493 S.W.2d 432 (1973), wherein it was held that the fact that the driver was uninsured was insufficient where there was no proof that the vehicle was uninsured. | [
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Ray Thornton, Justice.
On August 9, 2000, the Department of Human Services [DHS] received a report that D.J., the thirteen-year-old biological daughter of appellant, Pamela Jefferson, had been sexually abused by her older brother and her cousin. At the time the report was made, D.J., who lived with her grandmother, was visiting relatives in Michigan, and appellant was living in Georgia.
After Michigan Protective Services interviewed D.J., and after she returned to Arkansas where she was temporarily placed in foster care, DHS filed a petition seeking emergency custody of D.J. The petition was granted, and the trial court set a probable cause hearing. Appellant did not participate in these proceedings. Following the hearing, the trial court concluded that there was probable cause to remove D.J. from appellant’s custody.
On October 13, 2000, an adjudication hearing was held to, determine whether D.J. was dependent-neglected. Appellant was served with a copy of the petition filed by DHS when she arrived at the adjudication hearing. At that time, she was advised of her right to have legal representation during the proceedings. After briefly discussing the issue with the trial court, appellant chose to proceed with the hearing without an attorney.
On November 1, 2000, an order adjudicating D.J. dependent-neglected was entered. The trial court ordered that D.J. was to remain in the custody of DHS until appellant completed certain requirements. These requirements included entering a residential treatment facility for drug and alcohol abuse, locating housing and employment, and participating in therapy and parenting classes. The trial court in its order also appointed an attorney to represent appellant in future proceedings.
On March 22, 2001, August 9, 2001, February 28, 2002, and August 1, 2002, hearings were held to review the circumstances of the case and to determine proper placement for D.J. After each of the hearings, the trial court determined that returning D.J. to appellant’s custody was contrary to D.J.’s welfare and that it was in her best interest for DHS to have continued custody.
On December 6, 2002, DHS filed a petition seeking to terminate appellant’s parental rights to D.J. pursuant to Ark. Code Ann. § 9-27-341 (Repl. 2002). On January 30, 2003, a hearing was held on DHS’s petition. Thereafter, the trial court granted DHS’s petition and terminated appellant’s parental rights.
It is from this order that appellant appeals. She raises four points for our consideration, and we affirm the trial court.
In her first point on appeal, appellant argues that the trial court erred when it conducted an adjudication hearing without appointing an attorney to represent her. Appellant argues that the trial court’s actions deprived her of her statutory right to counsel. Appellant also argues that to the extent that a person may waive this statutory right to counsel her waiver was not knowingly or intelligently made.
Arkansas Code Annotated § 9-27-316 (Repl. 2002) provides:
Upon request by a parent or guardian and a determination by the court of indigence, the court shall appoint counsel for the parent or guardian in all proceedings to remove custody or terminate parental rights of a juvenile.
Id. We have explained that:
Whether due process requires the appointment of counsel in a particular parental-termination proceeding is a matter for the trial court to determine, subject to appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, (1981). Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Id., 452 U.S. at 33-34. Consequently, according to the to the Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Id. Rather, it is an issue that must be addressed on a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. § ACA 9-27-316(h) (Supp. 1999). However, this is a State- conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel.
Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
In Bearden, we also held that a parent involved in a termination of parental rights proceeding may waive his right to counsel. However, we noted that the waiver should be voluntarily, knowingly, and intelligently made. We further noted that every reasonable presumption should be indulged against the waiver of such rights. Id. Finally, we explained:
A waiver of the fundamental right to the assistance of counsel is valid only when:
(1) the request to waive the right to counsel is unequivocal and timely asserted;
(2) there has been a knowing and intelligent waiver of the right to counsel; and
(3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.
Id.
In Bearden, applying the forgoing principles, we determined that the trial court did not err when it refused to allow a parent to waive her right to counsel and proceed pro se during parental-termination hearings. Our conclusion was based on a review of a colloquy between the parent and the trial court. We concluded that the parent’s waiver was “far from unequivocal.” Id.
In Battishill v. Arkansas Dep’t of Human Servs., 78 Ark. App. 68, 82 S.W.3d 178 (2002), our court of appeals was asked to consider a case in which the parents, who were involved in a termination of parental rights case, argued that the trial court erred when it found that they had waived their rights to counsel. The court of appeals discussed the principles articulated in Bearden, and adding to our analysis, noted:
In order to effectively waive counsel the parent must be ‘made aware of the dangers and disadvantages of self-representation, so that the record-will establish that he knows what he is doing and that he has made his choice with his eyes open.’
Id. (quoting Bledsoe v. State, 337 Ark. 403, 406, 989 S.W.2d 510, 512 (1999)).
After reviewing the facts surrounding the parents’ waivers, the court of appeals concluded that the trial court erred when it accepted their waivers. Specifically, the court of appeals concluded that the parents’ waivers were not voluntarily or intelligently made because the trial court did not explain to them the desirability of having the assistance of an attorney during the proceedings or the disadvantages of not having an attorney during the proceedings. Battishill, supra.
In the case now before us, the following colloquy occurred:
Trial court: So legally, since you’re the person from whom custody was removed, Ms. Jefferson, you have a right to an attorney.
* * *
Appellant: I talked to one of the attorneys, and since I wasn’t here at the first hearing, they said that, you know, that they didn’t know whether or not I wanted legal representation because they thought my family was going to hire an attorney.
* *. *
Trial court: You’re supposed to give [appellant] a copy of the petition that tells her all her rights [remarks addressed to DHS’s attorney].That is why I said to serve her with a copy, not when she got to court. I mean, it does little good to give people their rights when they get to the court when we had a hearing awhile back.
* # *
Trial court: You have got a right to an attorney. Did you know that you had a right to an attorney before now, Ms. Jefferson?
Appellant: Well, I didn’t know that this state was going to. give me an attorney, because we had attempted to hire one, but then we just — I don’t know what happened with that. They did — I mean, before I even got here, but then he didn’t even show up, so I don’t know what’s the deal with that.
Trial court: Do you have the money to hire one?
Appellant: I didn’t have a dime to hire one.
*• * *
Trial court: Are you employed?
Appellant: No, ma’am.
H» «f*
Trial court: Any money at all coming in?
Appellant: No, ma’am.
Trial court: Okay. Do you want the(do you want the court to appoint an attorney for you?
Appellant: Yes, ma’am. Here is a piece of paper that they gave me for — just a few minutes ago I was filing it out for an attorney.
Trial court: Do you want to proceed without a lawyer, or do you want me to appoint an attorney for you before we have this hearing?
Appellant: Will I see him this morning[?]
* * *
Trial court: The lawyer?
Appellant: Yeah.
Trial court: No, ma’am. I don’t even know who that will be yet. We have a list of lawyers that we call. I’m asking you: Do you want me to appoint a lawyer for you? We’ll have to put off this hearing and we’ll have to squeeze it in because we cannot have the hearing past fifty days from the time we had the first hearing.
Appellant: Okay.
Trial court: But, I’m saying, it’s your call. Everything will stay like it is now, and we’ll have a hearing within the time frame. Or do you want to proceed today with the hearing without the lawyer? Those are your two options. You can proceed today and represent yourself and I can appoint a lawyer for you later if the—
Appellant: Okay. We’re going to proceed.
Trial court: —court finds dependency-neglect or—
Appellant: We’re going to proceed.
Trial court: —you can put it off.
Appellant: We’ll proceed.
Trial court: Proceed?
Appellant: And you will appoint one for me later?
Trial court: If we keep the case. If I dismiss the case, you won’t need one, but, yes, ma’am.
Appellant: Okay.
In light of the relevant case law and the foregoing colloquy, appellant asserts that the trial court erred when it failed to appoint counsel to represent her during the adjudication hearing and that the trial court further erred by accepting her waiver of her right to counsel during the hearing. Before addressing the merits of appellant’s arguments, we must consider a jurisdictional issue raised by DHS. Specifically, DHS asserts that we cannot consider errors resulting from the adjudication hearing in this appeal because the order from that hearing was final and appellant failed to appeal from its entry. DHS’s assertion is correct.
Rule 2 of the Arkansas Rules of Appellate Procedure — Civil in relevant part provides:
(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the circuit court;
* * *
(c) Appeals in juvenile cases shall be made in the same time and manner provided for appeals from circuit court.
* * *
(3) In juvenile cases where an out-of-home placement has been ordered, orders resulting from the hearings set below are final appealable orders:
(A) adjudication and disposition hearings.
Id.
On October 13, 2000, a hearing was held to adjudicate a petition filed by DHS alleging that D.J. was dependent-neglected. During the hearing, the trial court also considered whether D.J.’s out-of-home placement was to continue. Appellant was present at the hearing. An adjudication order was entered on November 1, 2000. In that order, the trial court found that D.J. was dependent-neglected and that she should remain out of appellant’s home and in the custody of DHS. Additionally, in that order, the trial court appointed an attorney to represent appellant.
Pursuant to Ark. R. App. P. — Civ. 2, the adjudication order was a final, appealable order. Appellant failed to file a timely notice of appeal from that order. Such a failure deprives this court of jurisdiction to consider the issues raised in that order. See Hawkins v. Sate Farm Fire and Insurance Casualty, Co., 302 Ark. 582, 792 S.W.2d 307 (1990); Moore v. Arkansas Dep’t of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000). Accordingly, we cannot consider appellant’s arguments relating to errors made during the adjudication hearing.
Although we have concluded that a challenge to the order adjudicating D.J. dependent-neglected is not timely, we will consider whether the failure to provide counsel to appellant during the adjudication proceeding permeated or tainted the remainder of appellant’s case so as to deprive appellant of fundamental fairness in subsequent proceedings. After reviewing the record, we conclude that the fundamental fairness of the proceedings leading up to the termination of appellant’s parental rights was not jeopardized based on the trial court’s failure to provide legal representation to appellant at the adjudication hearing. We note that the order entered after the hearing appointed an attorney to represent appellant during the remaining proceedings. Indeed, appellant had several attorneys during this case and was represented by an attorney at the hearing on DHS’s petition to terminate her parental rights. Finally, although the issue raised by appellant is procedurally barred, we note that it implicates important safeguards imposed with respect to termination of parental-rights proceeding. For that reason, and out of an abundance of caution, we have decided to give no consideration to the testimony given by appellant at the adjudication hearing because such testimony was given without legal representation or a proper waiver thereof.
In her second point on appeal, appellant asserts that the trial court erroneously withheld custody of D.J. from her until she paid outstanding district court fines. Appellant contends that the trial court’s actions were “tantamount to placing [her] in ‘debtor’s prison.’ ” In support of her contention, appellant cites several occasions in the record where the issue of her unpaid fines were discussed. The issue of appellant’s unpaid fines was discussed at various review hearing because DHS was attempting to offer financial assistance to appellant. The parties entered into an agreement in which DHS paid appellant’s rent in order to free up appellant’s finances to pay her fines. The issue was also discussed during the review hearings because nonpayment of the fines resulted in warrants for appellant’s arrest, and the trial court was concerned that appellant would be arrested while D.J. was in her custody. Although the issue was discussed, a review of the record and the order terminating appellant’s parental rights reveals that the trial court did not withhold custody of D.J. from appellant or terminate appellant’s parental rights to D.J. based on her failure to pay district court fines. Accordingly, appellant’s contention that custody of D.J. was withheld from her because she had outstanding district court fines is without merit.
In her third point on appeal, appellant argues that the trial court improperly considered D.J.’s wish to be adopted as the “controlling factor” in its determination that appellant’s parental rights should be terminated. Appellant’s contention is misplaced. Throughout the proceedings, the trial court took into consideration D.J.’s wishes concerning the proper goal for her case. At the time of the termination hearing, D.J. had been in foster care for approximately two-and-one-half-years. She testified at the hearing that she wanted to be eligible for adoption by her foster parents so that she could be in a stable environment. A review of the order entered following the hearing indicates that the trial court considered D.J.’s wishes when it terminated appellant’s parental rights. We have previously held that a trial court can consider a child’s wishes when it is making custody determinations. See Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634 (1973). However, further review of the order also shows that D.J.’s wishes were not the “controlling factor” in the trial court’s decision. Specifically, the order provides:
From the testimony, exhibits, statements of the parties and counsel, the record herein, and other things and matters presented, the court noting the best interests, welfare, case plan, health and safety and appropriate placement alternatives does hereby find, order and adjudge:
* * *
The mother has appropriate services offered to her, yet she has not complied with all the court orders and services offered. This court has repeatedly found that the mother was not in a position of emotional and mental stability to have [D.J.] returned to her custody.
* * *
[D.J.] has been in DHS custody for two years and five months and needs a safe and permanent home with parents who can provide for all of her needs.
‡ * *
The court, however, will note that the relatives were not always willing to step forth and provide a placement for [D.J.]
* * *
The court must view what is best in these matters from the child’s point of view. [D.J.] deserves a safe, permanent home where she can be assured of continuity and stability. It is not fair for [D.J.] to require that she continue to have court hearings and have her case goal remain independence when there is another goal-that of adoption-which meets her needs. The foster parents want to adopt [DJ-]
After reviewing the facts surrounding the case and the foregoing order, we conclude that the trial court gave proper weight to D.J.’s wishes when it was considering DHS’s petition to terminate appellant’s parental rights. We further conclude that D.J.’s wishes were not the “controlling factor” in the trial court’s decision to terminate appellant’s parental rights. Accordingly, we cannot say that the trial court erred.
In her last point on appeal, appellant contends that the order terminating her parental rights was not based on clear and convincing evidence. We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Ullom, supra.
The facts warranting termination of parental rights must be proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341. When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Larscheid v. Arkansas Dep’t of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dinkins, supra. In resolving the clearly erroneous question, we give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Baker, supra.
DHS sought termination of appellant’s parental rights pursuant to Ark. Code Ann. § 9-27-341. Specifically, DHS alleged that:
(2) That the juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parents.
(3) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parents’ circumstances, which prevent return of the juvenile to the family home.'
(4) At the permanency-planning hearing on August 1, 2002, this court found that mom has not gotten herself in an appropriate position mentally and emotionally to be able to properly provide for [D.J.’s] needs. The court also found that [D.J.] made a reasonable request not to return to her mom’s house.
To determine whether the trial court’s order terminating appellant’s parental rights was supported by clear and convincing evidence, we must review the facts of the case. In August of 2000, DHS took D.J. into custody based on allegation of sexual abuse. When DHS filed the petition seeking to gain emergency custody ofD.J., appellant had legal custody ofD.J. and appellant’s mother had physical custody ofD.J.
After D.J. was placed in DHS’s custody, a hearing was held to determine whether she was dependent-neglected. At the close of the hearing, the trial court found that D.J. was dependent-neglected and instructed appellant to: (1) enter a drug treatment program; (2) find housing and employment; (3) attend counseling; (4) participate in random, drug testing; (5) refrain from using drugs or alcohol; and (6) participate in parenting classes. The goal of the case at the conclusion of the adjudication hearing was reunification of appellant and D.J.
On August 9, 2001, a permanency planning and review hearing was held. At the hearing Deirdra Notto, a DHS employee testified that appellant had some “legal problems,” including outstanding district court fines and several warrants for her arrest. DHS agreed to provide monthly financial assistance to appellant to enable her to use the money that she received from her job to resolve her legal problems. Subsequent to this hearing, appellant was arrested.
On February 28, 2002, another review hearing was held. Appellant did not attend this hearing. During the hearing, Ms. Notto informed the trial court that DHS had provided appellant with four months of financial assistance, but that appellant had failed to pay the outstanding court fines and that she was facing an additional arrest warrant. Ms. Notto also informed the trial court that D.J. had reluctantly been visiting appellant and that she wanted to change the goal of the case to relative placement.
Missy Chism, an employee with SCAN, also testified at the hearing. She explained that appellant was not regularly attending her counseling appointments. Ms. Chism further testified that appellant had either quit her job or was fired from her job.
After hearing the testimony, the trial court made the following findings:
Mom’s behaviors don’t indicate that she’s willing to work towards accepting services from the department and doing the things that she should do on her own to have [D.J.] returned to her custody. She’s not present today. She’s not made herself available for services from SCAN and DHS as required.
She has not made efforts to pay the outstanding court fines in Maumelle and Little Rock District Courts. She’s not attending therapy on a regular basis.
Thereafter, on March 25, 2002, the trial court entered an order changing the goal of the case from reunification to relative placement with a concurrent goal of independence. This order was entered approximately seventeen months after the order adjudicating D.J. dependent-neglected was entered. Appellant was represented by counsel at all hearings held after October 2000.
At the permanency-planning hearing held August 1, 2002, Ms. Notto advised the trial court that she had not had contact with appellant for approximately six months. She further testified that appellant had not taken advantage of the services offered by DHS during the preceding six months. Ms. Notto described appellant’s actions as “noncompliant” or “uncooperative.”
Appellant also testified at the hearing. She stated that her visits with D.J. were sometimes troubled. She also testified that she was unable to work. Finally, Janice Simmons, appellant’s mother, testified. She stated that she did not think that appellant’s home was the proper home for D.J. At the close of the hearing, the trial court found:
[I]t’s in [D.J.’s] best interest for the permanency plan to be independence. Mom has not, at this point in her life, gotten herself into an appropriate position mentally and emotionally to be able to properly provide for [D.J.’s] needs.
On January 30, 2003, a hearing was held to consider DHS’s petition to terminate appellant’s parental rights. At the hearing, Ann Brown, D.J.’s therapist testified. She stated that she and D.J. had discussed the issue of appellant’s parental rights being terminated. Ms. Brown testified that D.J. told her that she wanted the termination to go forward. Additionally, D.J. told Ms. Brown that she had “a need for more stability in her life and planning for her future, and [that] she [felt] that [the termination] would be a positive step towards those things.” Ms. Brown further testified that D.J.’s relationship with her mother was a “source of stress and frustration.”
At the hearing, Ms. Notto reviewed the history of the case, outlined the services provided to the family, and discussed the failed attempts to identify a relative suitable for D.J.’s placement.
Appellant also testified. She stated that she was not employed and that she was receiving assistance from her family.
On February 20, 2003, the trial court entered an order terminating appellant’s parental rights. In its order, the trial court found:
[T]hat the petition to terminate parental rights should be granted. ...[.] [T]hat [D.J.] has been in the custody of DHS since August 21, 2000, when she was removed from her mother’s legal custody and her grandparent’s physical custody due to allegations of sexual abuse by her brother. She was found to be dependent neglected on October 13, 2000 and has continued out of her mother’s custody since she was removed on August 21, 2000.
* * *
The mother has appropriate services offered to her, yet she has not complied with all the court orders and services offered. This court has repeatedly found that the mother was not in a position of emotional and mental stability to have [D.J.] returned to her custody.
After reviewing the foregoing facts, we conclude that the trial court’s order is supported by clear and convincing evidence. The evidence established appellant did not have custody of D.J., who was adjudicated dependent-neglected, for more than twelve months. During that time, DHS provided numerous services to appellant and to D.J. in an effort to correct the conditions that led to D.J.’s removal from the home. Specifically, DHS provided housing assistance, parenting classes, transportation assistance, therapy, substance abuse counseling, financial assistance, drug and alcohol testing, and other supportive services. Notwithstanding the efforts made by DHS and the trial court, appellant repeatedly failed to take appropriate actions to provide a stable home environment for D.J. Specifically appellant: (1) was evicted from her home; (2) was frequently unemployed; (3) was forced to rely on relatives for assistance; (4) was inconsistent in attending her therapy sessions; (5) was arrested and had outstanding court fines and arrest warrants; and (6) failed to follow the trial court’s orders. We conclude that appellant manifested an incapacity or indifference to correct the conditions that led to D.J.’s removal from her home. Upon considering the evidence in this case, the trial court concluded that there was clear and convincing evidence to support an order terminating appellant’s parental rights. We cannot say that its decision was clearly erroneous. Accordingly, we affirm the trial court.
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Ray Thornton, Justice.
On May 5, 1999, a vehicle driven by appellant, Jerry Carlew, collided with an automobile driven by appellee, Evie Wright. The accident occurred when appellant pulled out of a parking lot and attempted to cross two eastbound lanes of Race Street in Searcy in order to complete a left turn into two westbound lanes. After exiting the parking lot, appellant’s vehicle was struck in the second eastbound lane by appellee’s automobile. A truck was traveling in the first eastbound lane beside, appellee’s automobile. Because the truck was between them, neither appellant nor appellee saw each other until the vehicles were close together in appellee’s eastbound lane.
On August 11, 2000, appellee filed a negligence action against appellant. In her complaint, appellee alleged that appellant’s negligence during the accident caused her to suffer injuries and to incur damages. In August of 2002, a jury trial was held to consider appellee’s complaint. After hearing the evidence, the jury found in favor of appellee and awarded her $72,000 in damages. In its apportionment of liability, the jury found appellant to be sixty percent at fault and appellee to be forty percent at fault. Based on this apportionment, appellee’s damages were reduced to $43,200.
On August 21, 2002, appellee filed a motion seeking a new trial. In her motion, appellee argued that the jury’s verdict was not supported by a preponderance of the evidence. After holding a hearing on appellee’s motion, the trial court entered an order granting the request for a new trial.
It is from this order that appellant appeals. We affirm the trial court’s order granting a new trial.
In his first point on appeal, appellant asserts that the trial court abused its discretion when it granted appellee’s motion for a new trial. Rule 59 of the Arkansas Rules of Civil Procedure governs motions for a new trial. The Rule provides:
A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any' of the following grounds materially affecting the substantial rights of such party: ... (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.
Id. We have explained that when determining whether a new trial is merited pursuant to this rule, the trial court has limited discretion because it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). The trial court may grant a new trial when a miscarriage of justice has occurred. Id. In reviewing the trial court’s granting of a motion for new trial, the test is whether the judge abused his or her discretion. Id. We have explained that this standard requires a showing of “clear” abuse, or “manifest” abuse by acting improvidently or thoughtlessly without due consideration. Id. Finally, we have noted that a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.
Mindful of the applicable standard of review, we must consider, whether the trial court abused its discretion when it granted appellee’s motion for a new trial. In its order granting appellee’s motion, the trial court wrote:
After hearing the arguments of counsel, carefully considering all applicable pleadings, attached exhibits, and the evidence as adduced at the time of trial, the court makes the following findings:
(1) That the verdict of the jury was clearly contrary to the ■ preponderance of the evidence, to the degree that it shocked the court, and resulted in a miscarriage of justice.
A review of the evidence presented at trial is useful in our determination of whether the trial court abused its discretion in granting appellee’s motion for a new trial. At trial, appellant explained how the accident occurred. He testified that prior to the accident, he was at a stop sign attempting to turn left out of a parking lot, and that he was planning to travel in a westbound direction. Appellant characterized the traffic as heavy and explained that he could not see appellee’s car because a truck was in a lane between the two vehicles. After waiting briefly, he pulled out into traffic and encountered appellee’s vehicle, which was traveling in the eastbound inside lane. Appellant noted that appellee’s automobile was “very close” before he saw it and that appellee did not have an opportunity to avoid the collision. He testified that the accident was an “error in judgment” on his part. Appellant also testified that he believed that appellee “did nothing wrong in the operation of her vehicle.”
Officer Charlie Perry, from the Searcy Police Department, investigated the accident and testified about his findings during the trial. At the scene of the accident, appellant informed Officer Perry that the accident occurred when he was attempting to make a left turn out of the parking lot. Appellant told Officer Perry that when he turned into the eastbound traffic, his view was obstructed and that he did not see a vehicle in the inside lane. Officer Perry also testified that the debris from the accident was found in the inside eastbound lane.
Appellee also described the accident. She testified that prior to the accident she was traveling eastbound at a rate of thirty-five miles per hour. Appellee was driving beside a truck, which was in the outside eastbound lane, and explained that she did not see appellant’s automobile until it was “directly in front” of her, immediately before the collision occurred.
At the close of the evidence, the trial court gave the following jury instructions:
In determining whether the driver of a motor vehicle was negligent you may consider the following rules of the road:
It is the duty of the driver of a motor vehicle to keep a lookout for other vehicle or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case.
A failure to meet the standard of conduct required by this rule is negligence.
There was in force in the State of Arkansas at the time of the occurrence a statute which provided:
The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on the highway.
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.
After reviewing the evidence presented at trial, and after considering the foregoing jury instructions, we conclude that the trial court did not abuse its discretion in granting appellee’s motion for a new trial and in finding that the verdict was clearly contrary to the preponderance of the evidence. The trial court did not abuse its discretion because the overwhelming evidence established that appellant’s negligence was the cause of the accident. Specifically, the evidence established that appellant’s failure to maintain a proper lookout and his failure to yield the right-of-way to appellee’s vehicle caused'the accident. No evidence was presented that would have attributed any of the liability to appellee . In fact, appellant testified that appellee was not at fault and that an error in his judgment led to the accident. Notwithstanding this lack of evidence, the jury apportioned forty percent of the fault for the accident to appellee. Under these circumstances, we cannot say that the trial court abused its discretion in granting appellee’s motion for a new trial. See Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987) (holding that a new trial was properly granted when the verdict was clearly against the preponderance of the evidence in a case in which the jury was given a comparative-fault instruction); see also Connor v. Bjorklund, 833 A.2d 825 (R.I. 2003); Jones v. Idles, 114 S.W.3d 911 (Tenn. 2003); Barnard v. Himes, 719 N.E. 2d 862 (Ind. 1999) .
In his second point on appeal, appellant contends that the trial court erred when it entered an order making certain findings. Appellant asserts that these findings were erroneous because they were entered “without conducting a hearing and based solely on comments made by [appellee’s] counsel.” The challenged findings were made in an order granting appellant’s motion for a continuance. Appellant requested a continuance because Farm Bureau did not enter its appearance as appellant’s counsel until approximately one month before the case was scheduled for trial. Farm Bureau’s late entry into the case was based on a prior erroneous determination that appellant’s policy did not cover the accident. When Farm Bureau discovered the error, an entry of appearance was filed by appellant’s attorney, who also filed a motion seeking to continue the trial. A hearing was held on the motion. During the hearing, appellant’s attorney outlined the events surrounding Farm Bureau’s actions. Thereafter, the trial court granted appellant’s motion for a continuance and made findings that criticized Farm Bureau’s delay in not timely acknowledging coverage, and suggested that a hearing on sanctions could be held.
A review of the hearing held on appellant’s motion for a continuance demonstrates that appellant’s attorney was able to adequately explain the circumstances surrounding Farm Bureau’s actions and its late entrance into the case. Additionally, we note that there was no hearing held or order entered in which sanctions were imposed upon Farm Bureau. Moreover, there was no evi-' dence to establish that the challenged findings impacted the trial in any respect. Based on appellant’s failure to show that the trial court’s findings were prejudicial, and noting that the continuance requested by appellant was granted, we affirm the trial court. See Robinson v. Abbott, 292 Ark. 630, 731 S.W.2d 782 (1987) (holding that absent a showing of prejudice we will not reverse).
In his third point on appeal, appellant argues that there was not substantial evidence to support the jury’s verdict on the issue of whether appellant was acting within the scope of his employment at the time of the accident. This issue is based on language found in Ark. Code Ann. § 21-9-301 (Supp. 2003), which provides that appellant, as a county judge, is entitled to immunity from liability and from suit for damages except to the extent that he is covered by liability insurance. We have applied this immunity to employees of political subdivisions who were performing their officials duties at the time the alleged acts of negligence occurred. See Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989). Thus, if it was determined that the accident occurred while appellant was performing his official duties as a county judge, he would be immune from liability and damages beyond the limits of the liability insurance. Evidence was presented to the jury regarding appellant’s actions prior to the accident and the issue was submitted to the jury. The jury concluded that a preponderance of the evidence did not establish that at the time of the accident appellant was acting within the scope of his employment as a county judge.
Appellant’s challenge to the jury’s verdict was not properly preserved for our review because he failed to move for a directed verdict on this issue during or after the trial. We have held that the appropriate time to challenge the sufficiency of the evidence to support each element of a cause of action is by a directed-verdict motion. See Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). The failure to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence, will constitute a waiver of any question pertaining to the sufficiency of the evidence to support a jury verdict. Id.
In this case, appellant’s attorney made general motions for directed verdicts on the issues of liability and damages at the close of his case-in-chief, and he renewed those motions at the close of appellee’s case-in-rebuttal. These general motions did not address the issue of appellant’s statutory immunity. Because appellant failed to make a motion for a directed verdict on the issue of appellant’s immunity pursuant to Ark. Code Ann. § 21-9-301, this issue has been waived, and we do not consider it on appeal.
Appellant also contends that the trial court erred by-refusing to allow a proffer of certain evidence. Rule 103 of the Arkansas Rules of Evidence governs the proffer of evidence. A trial court’s failure to allow a proffer of excluded evidence has been held to be erroneous. See Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987). However, wé have noted that the trial court may control the form and the time of the proffer. See Arkansas Valley Electric Cooperative Corp. v. Davis, 304 Ark. 70, 800 S.W.2d 420 (1990).
In the case now before us, appellant identifies two occasions in which the trial court ‘.‘refused” to allow proffers. First, appellant argues that the trial court refused to allow a proffer of testimony from several nurses, who worked with appellee, and who had encountered medical problems, but were able to continue working as nurses. The trial court did not permit their testimony because it concluded that the testimony would be irrelevant and that it was more prejudicial than probative. When the trial court made this determination, appellant’s attorney requested to proffer the proposed testimony and the trial court denied the request, but noted that it would allow the proffer at a later time. At the conclusion of the trial, appellant’s attorney was permitted to proffer the excluded testimony. Because appellant was permitted to proffer the testimony, and because he has failed to establish that a delay in the proffer was prejudicial, we affirm the trial court.
Next, appellant argues that the trial court erred by refusing to allow him to state his specific objections to the holding of a pretrial hearing. The hearing was held to determine the admissibility of medical evidence. A review of the relevant colloquy establishes that while the trial court declined to allow appellant to present verbal arguments in support of his objections to the pretrial hearing, the trial court gave appellant’s attorney the opportunity to put his objections in written form and to submit them to the trial court. The record reveals that appellant’s attorney failed to file a written objection to the trial court’s decision to hold the pretrial hearing.
The record also reveals that appellant’s attorney participated fully in the pretrial hearing. Because appellant has failed to demonstrate that the trial court’s action caused him to suffer prejudice, we affirm the trial court on this issue.
The remaining allegations of error raised by appellant involve various evidentiary rulings. In our review of such issues, we are asked to determine whether the trial court abused its discretion. See Columbia National Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002). A determination of whether the trial court abused its discretion on an evidentiary matter is factually intensive. Because we recognize that the facts surrounding these matters may change during the new trial of this case, we decline to review the trial court’s evidentiary rulings in this appeal.
Affirmed.
Dickey, C.J., and Hannah, J., not participating.
We note that appellant argues that the jury’s apportionment of fault was correct because appellee testified that she was born “legally blind,” a condition that has been corrected by prescription lenses since appellee was in the second grade. However, no evidence was presented to establish a link between appellee’s eyesight and the accident.
On November 24,2003, appellant’s attorney filed a motion requesting that we take notice of Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003), in our consideration of this appeal. We have reviewed Dovers, and have determined that it is not dispositive of any issue involved in this case. | [
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Humphreys, J.
Appellants, resident citizens and taxpayers of the city of Siloam Springs, Arkansas, instituted this suit on the 24th day of August, 1931, in the chancery court of Benton County to enjoin appellees from carrying out a contract entered into on the 6th day of August, 1931, between said city, with the approval of the board of improvement of Electric Light District No. 1, and the Trans-American Construction Company and Seymour 'Corporation as guarantor, to construct a powerhouse and install all necessary equipment therein, including Diesel engines to generate power to operate the light plant, water plant, and current for other purposes, upon the alleged ground that said contract is null and void because made by said city without statutory authority, and in contravention of amendments Nos. 10 and 13 to the Constitution of Arkansas, and because same is improvident.
The material allegations of the complaint were denied, and the cause was submitted upon the issues joined and evidence introduced, resulting in a finding and decree that the contract is valid and in a dismissal of appellants ’ complaint, from which is. this appeal.
The record made in the case is voluminous, and to attempt a detailed statement of the facts would unduly extend this opinion. The substance of the facts necessary to a determination of the issues involved is as follows: Immediately after the electric light plant was constructed, in 1898, under a bond issue by Electric Light District No. 1, it was turned over to the city council for operation and maintenance, under § 5739 of Crawford & Moses’ Digest, which is as follows: “In case of the construction of waterworks or gas or electric light works by an improvement district or districts, the city or town council, after such works are constructed, shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners, and said city or town council may supply water and light to private consumers and make and collect uniform charges for such service, and apply the income therefrom to the payment of operating expenses and maintenance of such works.”
The bonds were all paid long before the execution of the contract sought to be enjoined. The electric light system consisted of machinery and equipment in the powerhouse, twenty-five miles of poles and wires, transformers, meters, and much other apparatus necessary to a going light and power system. During the operation of the system by the council, something’ like $30,000 was expended out of the earnings of the system for new machinery and equipment in the maintenance thereof. After being used for about thirty years, the machinery and equipment in the powerhouse, in the opinion of competent experts, had become inefficient, uneconomical, obsolete, and hazardous. After investigating many modern powerhouses and equipment, the council concluded to install Diesel engines and other modern equipment in a new powerhouse on a small tract of land purchased by the city. In .keeping with this purpose, the council advertised for bids, and let a contract for the construction of the powerhouse and installation of Diesel engines and other equipment to the Trans-American Construction Company, the lowest bidder, for $80,425, in monthly payments of $1,218 each, covering a period of about five and one-half years with no interest on the evidences of indebtedness or pledge orders until the maturity of each. It was also provided that, upon default in the payment of any pledge order, the Trans-American Construction Company might repossess the particular property sold or might operate the plant as the agent of the city until the pledge orders were paid out of the net earnings of said system. It was also provided that the city was not obligated to pay for the machinery or equipment out of any fund except the net earnings from said light plant.
A reversal of the decree is urged upon the ground that “operation and maintenance” used in the section of the statute quoted did not confer authority on the city council, acting in its capacity as trustee for Electric Light District No. 1, to abandon the old powerhouse and the old machinery and equipment therein and construct a new powerhouse on another tract of land and install therein modern, efficient, and more economical machinery and equipment. Appellant interprets the word “maintenance,” as used in the statute, as synonymous with the word “repair,” and contends that “repair” does not mean to reconstruct the system. This court, in construing the statute in question in the case of Arkansas Power & Light Company v. Paragould, 146 Ark. 1, 225 S. W. 435, gave the word “maintenance” a much broader meaning than the word “repair” by saying that the purpose and meaning of the statute was to authorize the council to keep the system up to an established standard, and, in its sound discretion, to determine the way in which the standard of efficiency should be maintained. In the recent case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 44, in construing the scope of the word “maintenance” in a similar statute, it was ruled that authority was conferred on the county court to purchase a tractor on the theory that it was impossible to maintain highways without machinery.
A reversal of the decree is also urged on the ground that the contract is an improvident one. The chancellor found that the improvement was necessary, and that the contract was awarded to the lowest bidder for a fair price upon reasonable terms, and that it was in no sense improvident. After a careful reading and analysis of the testimony, we think his finding is supported by the weight of the evidence.
A reversal of the decree is also urged upon the ground that the contract is prohibited by constitutional amendments Nos. 10 and 13.
Amendment No. 10 forbids cities from making contracts in excess of their revenue for the current year. The city incurred no liability payable out of its revenues on account of the instant contract. The contract specifically provides to the contrary. Under the act for operation of the system by the council, none of the proceeds therefrom became the city’s funds until expenses of operation and maintenance had been fully paid. The consideration for this contract or the purchase price' must and can only be paid under its terms as maintenance charges out of the gross receipts derived from the operation of the system after operating expenses have been paid, and not out of funds belonging to the city; hence the amendment referred to is not applicable to the instant contract, and not inhibited by it under the ruling announced in the case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. (2d) 444.
Amendment No. 13 provides the manner in which cities may purchase, extend, improve, enlarge, build or construct light plants and distributing systems. According to the amendment, it must do so by a bond issue and special assessment after a majority of the qualified electors shall vote in favor of the project. Appellants contend that, since the adoption of the amendment, this is the exclusive method by which a light system may be acquired for or by a city. This section can only apply where a city acquires or already owns a plant in its own name, and not to a system which it has taken over for the purposes of operation and maintenance only in trust for an improvement district.
No error appearing, the decree is affirmed. | [
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'Kirby, J.
This appeal is prosecuted from a judgment upon a petition for certiorari for review of an order of the county superintendent revoking appellee’s license to teacli in the public schools. The court sustained the petition, overruling the demurrer, and holding that the license to teach was wrongfully revoked by the superintendent, and set his order aside.
It is contended here that error was committed by the superintendent upon the hearing in refusing to disqualify himself, because of interest in the matter, and because of his testifying at the hearing of the proceedings.
Appellee was charged with not possessing the requisite moral character to teach, and cited for re-examina tion to show cause why his license should not he ■ revoked. Upon the hearing, the license was revoked, and a petition for certiorari was filed in the circuit court asking a review of the proceedings, and alleging that the license was erroneously revoked, and that the superintendent was disqualified to hear and determine the matter, because he was an interested party and prejudiced against the petitioner, and further because he erred in testifying in the hearing in regard to admissions of immorality made by appellee to him. A demurrer was interposed to this petition, and a temporary order overruling the demurrer was made, and finally the order óf the superintendent canceling the license was revoked, from which order this appeal is prosecuted.
Our statute provides for revocation of a license to teach by the county superintendent upon a citation for re-examination of the person holding such license upon his being satisfied by such re-examination that such person does not sustain a good moral character, etc. Section 8897, Crawford & Moses’ Digest.
The statute clothes the county superintendent with special powers, and charges him with certain duties, giving him exclusive authority to hear and determine these matters and makes no provision for a hearing before any other agency or tribunal; and no error was committed therefore in overruling the objection to the competency of the examiner to conduct the hearing and make the proper order of revocation of the license upon his determination that it should be done.
Neither was error committed in the examiner being a witness in the hearing and testifying about the matter. He was only a ministerial officer, and not clothed with judicial power within the meaning of our statutes relative to disqualification of a .judge called as a witness in matters before this court, and besides no objection was made to the introduction of this testimony. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; 24 R. C. L., § 70, page 615; Lee v. Huff, 61 Ark. 949, 33 S. W. 846; Stone v. Fritts, 169 Ind. 361, 82 S. W. 792, 15 L. R. A. (N. S.) 1147, citing Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. ed. 148; Smith v. Farmers’ Bank of Newport, 125 Ark. 549, 188 S. W. 1167.
The county superintendent being given exclusive jurisdiction of the matter, the allegations of the petition relative to his bias and interest and want of judicial capacity are without force. He must answer, of course, to the body responsible for his election for the manner in which he discharges his duties, so long as he keeps within his legitimate sphere, and his arbitrary and unwarranted actions are' subject to review and correction upon certiorari.
The demurrer to the petition for certiorari should have been sustained, and, there appearing to be substantial testimony in support of the superintendent’s finding, his decision and order revoking the license of appellee should not have been canceled and revoked by the lower court upon the certiorari, and its judgment is erroneous, and must be reversed, and the case dismissed. It is so ordered. | [
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McHaney, J.
The State of Arkansas, on the relation of her Attorney General, Hal L. Norwood, brought this action against appellants, Boy Leonard, State Treasurer, and Oscar Humphrey, State Auditor, to enjoin the Auditor from issuing State warrants on certain vouchers of the State Highway Commission, and the Treasurer from paying such warrants, on a complaint as follows: ‘ ‘ That during the years 1930, 1931 and 1932 the Arkansas State Highway Commission entered into purported agreements with certain contractors to build and repair certain State highways in the State of Arkansas; that said purported agreements consisted of propositions made by contractors to the chief engineer, or the chairman of the Arkansas State Highway Commission, in which the contractor proposed to do certain work and furnish certain material at unit prices set up and described in said propositions. That said propositions were accepted by a notation at the foot thereof in these words, ‘Accepted, Arkansas State Highway Commission, by Dwight H. Blackwood’, the said Dwight H. Blackwood being the chairman of the Arkansas State Highway Commission. Said propositions were duly filed in the office of the State Highway Commission and are now on file in the office of said Commission. A copy of said purported agreement is filed herewith, marked Exhibit A and made a part of this complaint.
“Plaintiff further states that during said years of 1930, 1931 and 1932, the said Arkansas State Highway Commission entered into other purported agreements whereby certain contractors were engaged to build and repair certain State highways in the State of Arkansas, and in which propositions said contractors agreed to furnish .on a rental basis certain equipment for unloading and storing materials, manufacturing and transporting, laying and rolling paving mixture together with the required materials, labor, fuel, lubricants, repairs, hand tools, barricades, and lights and other necessary materials and equipment, and in which propositions said contractors offered said equipment to the Arkansas State Highway Commission upon a rental basis of a certain amount per calendar day. In such propositions said contractors also agreed to furnish necessary labor and materials at actual cost to the contractor plus fifteen per cent. Said purported agreements, or contracts, provided further that the cost of paving mixture laid on the road would not exceed a certain amount per ton. Such propositions were accepted by the following notation at the foot thereof, ‘Accepted, Arkansas State Highway Commission, by D. H. Blackwood, Chairman. ’ Said propositions were duly filed in the office of the State Highway Commission and are now on file in said Commission, a copy of this proposition is filed herewith and marked Exhibit B and made a part of this complaint.
“Plaintiff states that the defendants, Roy Leonard, as State Treasurer, and Oscar Humphrey, as State Auditor, are charged with notice that the said purported contracts have been entered into by the Arkansas State Highway Commission and all of the contractors who have been working under such agreements.
‘ ‘ Plaintiff further states that neither of said propositions was advertised as required by law, or at all, and neither of said purported contracts was let on competitive bidding, and each proposition called for payment by the State of more than one thousand dollars.
“That each of said purported contracts requires the payment by the Arkansas State Highway Commission out of funds belonging to the State of Arkansas of labor and material and rental that are in excess of the actual cost and value thereof.
“Plaintiff further states that the Arkansas State Highway Commission has issued vouchers to said contractors for payment of amounts alleged to be due upon the basis of unit prices, rental prices and cost plus prices mentioned in said propositions; that said vouchers, issued in payment of amounts for alleged unit prices as set out in said contracts, of which Exhibit A is an example, are in excess of the actual cost and value of labor, equipment and materials used, and that said vouchers, issued in payment of amounts for rental of equipment though issued for the designated rental in said contracts, are in excess of the actual rental value of such equipment, and that said vouchers issued in payment of amounts claimed to be due the contractors under the form of contract represented by Exhibit B, are fifteen per cent, in excess of the cost of labor and materials, and, although said vouchers do not exceed in amount the maximum guarantee mentioned in said proportions, they do exceed the actual cost of material, rental, labor, repairs, fuel and freights and superintendence of work.
“Plaintiff states that said purported agreements entered into between said contractors and said State Highway Commission are null and void, and that the vouchers issued to said contractors are null and void.
‘ ‘ That said vouchers will be presented to the Auditor of State and demands made upon him for the issuance of warrants upon the State Treasury, and that, unless restrained, the State Auditor will issue warrants upon the State Treasury for the amounts mentioned, and, unless restrained, the State Treasurer will pay the money of the State of Arkansas to the holders of said warrants, and the State of Arkansas will have to suffer great and irreparable damages.
“Wherefore plaintiff prays that the defendants be restrained from issuing and paying warrants that have been, or may be in the future, issued by the State Highway Commission upon the kind of contracts herein set out, and that plaintiff have any and all other proper and equitable relief.”
Exhibit A mentioned in the complaint consists of a form of proposal made by contractors to the State Highway Commission, hereinafter referred to as the Commission, and, omitting formalities, is as follows: “We will remove dust and dirt from existing road surface, true up old base with additional gravel where needed (State Highway Commission to furnish said gravel on the road); then furnish and apply a prime coat of cut-back asphalt át the rate of one-half gallon per square yard, then blade, shape and roll the surface. When the surface is bonded and set, we will furnish and apply an application of hot asphalt averaging one-half gallon per square yard, furnish and apply and roll a covering of pea gravel. The gravel to be furnished and applied by us at the rate of thirty-five pounds per square yard.
“For the above work and materials furnished, we shall be paid the sum of twenty-seven cents per square yard.
“When additional gravel is added to bring up this base, the one-half gallon application of cut-back prime coat will not be sufficient to bond and incorporate the loose gravel with the old base, and where the additional amount of cut-back asphalt is needed and required, we will furnish and apply same as directed by your representatives.
“For all cut-back asphalt furnished and applied in excess of one-half gallon per square yard, we shall receive nine cents per gallon.” Such proposals were accepted as follows: “Accepted; Arkansas Highway Commission, by Dwight H. Blackwood.” Such contracts were those referred to as having been made on a unit basis.
Exhibit B, mentioned in the complaint, being the form of proposal made by contractors on the rental and the cost plus basis, follows: “We beg to submit, for your consideration, the following proposition for furnishing on a rental basis the necessary equipment, completely installed at our expense, for unloading and storing ma terials, manufacturing and transporting, laying and rolling the paving mixture, together with the required materials, labor, fuel, lubricants, repairs, hand tools, barricades and lights.
“We will furnish the following equipment completely installed on the job in first class working condition:
“One asphalt mixing plant, complete with power, having a capacity of not less than 150 tons paving mixture per ten-hour day.
‘ ‘ One 10-ton 3-wheeled roller, steam powered;
“One 8- or 10-ton tandem roller, steam powered;
“One 2-car capacity asphalt storage tank, equipped with steam coils for heating;
‘ ‘ One 1-car capacity fuel oil storage tank;
“One asphalt pump with all necessary connections;
“One fuel oil pump, with all necessary connections;
“One- clam shell outfit for unloading and handling materials.
“All necessary hand tools for operating asphalt plant and laying asphalt surface on the road.
“All necessary forms and steel pins for laying asphalt surface on road.
“All necessary trucks, equipped with steel bodies and hydraulic hoists for transporting paving mixture from the asphalt plant to the line of work.
“All necessary trucks for moving forms, transporting labor, fuel, water, etc., to all points along line of work.
“All necessary automobiles to transport superintendent and foreman over the line of work.
“All necessary barricades, light and danger signs, necessary to protect the public and employees while the work is in progress.
“We will also furnish all necessary fuel, lubricants, oils, gasoline and tires, necessary for the satisfactory operation of all equipment and trucks.
“We will also make promptly and pay for all necessary repairs on all equipment and tools furnished.
“For the above the Arkansas Highway Commission shall pay us as a rental the sum of $500 per calendar day, rental to start when above equipment arrives on the job.
‘ ‘ The Commission may reserve and have the right at its option to take over said equipment, or any other equipment furnished for the work, at a price represented by the difference in its agreed value, plus six per cent, interest for the period used, less the amount of rental paid to the date of exercising said option.
“In case the Commission desires us to furnish additional equipment on the work, we will do so at an agreed rental, or the commission may furnish such additional equipment as it may desire.
“We agree to furnish the Commission a list of all equipment furnished with the type, capacity and condition set out with an agreed appraisal of value set out for each unit furnished.
“We further agree to furnish all necessary labor and materials to manufacture, transport and lay the asphalt paving mixture at actual cost to us, plus fifteen per cent.
“Original invoices, freight bills and payroll sheets shall determine the labor and material costs.
“Figuring on the above basis, we guarantee the cost of Amiesite paving mixture per ton laid on the road will not exceed $11.94.
“Should the work be delayed by bad weather, or other conditions, and if, in the opinion of the Commission or its chief engineer, the rental set out, together with the cost of materials and labor, will exceed our estimate of $11.94 per ton for paving mixture in place, they can pay said rental, including labor, materials, repairs, fuel and freights, in an amount equal to $11.94 per ton for the asphalt paving mixture actually laid as full compensation to us.
“For any labor, or materials, or work that the Commission may desire or require in addition to the unloading of materials, manufacture, transport and laying the asphalt paving mixture, we will furnish same for actual cost, plus fifteen per cent.
“Payment for equipment rental, labor and materials furnished shall be due and payable on or about March 1, 1931, and monthly or semi-monthly thereafter.”
A like acceptance was made to this form of contract.
To this complaint appellants interposed a general demurrer, which was overruled by the court. They declined to plead further, and a decree was entered enjoining them from issuing and paying warrants on vouchers issued by the commission pursuant to such contracts which were not advertised as required by law and which involved the payment by the State of more than $1,000, and which were not let on competitive bidding, or were based on a unit price or on a cost plus basis. This appeal followed.
The complaint alleges, and the demurrer admits, that during the years 1930, 1931 and 1932 the Commission entered into purported contracts with various persons not named to build and repair certain State highways on a basis of cost to the State at unit prices, and also entered into purported contracts with various persons not named for the same purpose on a rental and a cost plus basis, in which the cost of laying the paving mixture should not exceed a certain amount per ton; that said purported contracts were not signed or executed by the Commission as required by law, but in its name by its chairman only; that neither of said proposals or purported contracts was advertised as required by law, or at all, and that neither was let on competitive bidding, and that each called for payment by the State of more than $1,000. It was further alleged that vouchers had been issued by the Commission to such contractors in payment of amounts alleged to be due thereunder which are in excess of the cost of the material, labor and rental value of equipment.
Appellants seek to reverse the judgment on the ground that the Commission has and had the power and authority to enter into the contracts referred to in the complaint, such power and authority being expressly conferred or necessarily implied. On the other hand, the State, by her Attorney General, contends that such contracts are null and void, not merely voidable, for these reasons: 1st, that they were not advertised as required by law; 2d, that they were not let on competitive bids to the lowest responsible bidder; 3d, that they were not signed and executed as required by law by three members of the Commission and attested by the secretary ; and, 4th, that the vouchers issued on such contracts are in excess of cost of labor and material and of rental value of equipment. Three excellent and persuasive briefs have been filed by counsel, amici curiae, who seek a reversal and dismissal of the judgment principally on the ground that there is a defect of necessary parties defendant — the holders of vouchers issued by the Commission, of more than 3,000 in number of vouchers, it is stated — and on the further ground that the Commission had the power it assumed to exercise and properly exercised it, and that, even though the contracts mentioned be held void, the contractors should not be precluded from setting up whatever rights they may have based on quantum meruit.
The only question presented by this appeal, the only one urged by appellants, and the only one we do decide, is the validity of the contracts mentioned in the bill of complaint. We now proceed to a determination of that question.
The latest act of the Legislature prescribing the general duties and limiting the powers of the Commission is act 65, Acts 1929, p. 264, entitled “An Act to Amend and Codify the Laws Relating to State Highways.” Section 18 thereof makes it the duty of the Commission to begin as soon as practicable and continue the maintenance of State highways, and so far as practicable do so according to what is known as the “Patrol System,” and to employ such laborers and use such equipment and materials as may be necessary. “The Commission may make all necessary contracts, purchase all necessary equipments, supplies and materials and employ all necessary labor, and is hereby given all other necessary powers to provide for maintenance, and shall pay for same out of the State Highway Fund. Provided, however, that all contracts so let in excess of $1,000, so made by said Commission, shall be let on a competitive basis, and to the lowest responsible bidder; provided, the Commission may reject all bids, and provided further that-all bids shall be sealed bids and shall be filed with the Commission in open session and opened and tabulated during the said session of the Commission. No such contract shall be valid unless signed by at least three members of the Commission and attested by the secretary.” This section refers to maintenance of State Highways.
Section 21 of said act relates to new construction and is as follows: “All new construction work shall be done by contract, and all contracts for such work shall be let to the lowest responsible bidder. The Commission shall have the right to reject any or all bids. No contract in excess of $1,000 shall be let without advertising for bids. Successful bidders shall be required to furnish a surety bond by a surety company to be approved by the Commission, in a penal sum of at least one-fourth of the amount of the contract price, conditioned as the Commission may require. The Commission may, however, accept personal bonds, but in every case in which a personal bond is accepted the contractor shall be required to deposit United States Government bonds or notes or valid bonds of any road improvement district referred to in § 19 of this act, in an amount equal to twenty-five per cent, of the amount of the contract, to be held in escrow as collateral security for the performance of the contract.
“The Commission may let contracts for the construction of necessary bridges on the State highways, to be paid for out of the State Highway Fund. It may make contributions to other bridges which it deems necessary on the State highway that may be constructed by bridge districts.
“Provided that where the Commission is of the unanimous opinion that any particular piece of work may be done more economically with State forces, the Commission may proceed to do said particular construction work with State forces.”
Other sections, notably 53, of said act confer broad powers on the Commission, but none of them change, limit, modify or alter the provisions of §§ 18 and 21 relative to the limitations on the powers of the Commission to contract in the matter of construction, reconstruction and maintenance of State roads. Analyzing these sections, 18 and 21, we find the following limitations on the powers of the Commission: § 18, relating to contracts for maintenance of State roads, plainly provides first, that any contract made for maintenance in excess of $1,000 “shall be let on a competitive basis, and to the lowest responsible bidder,” in the manner therein provided; and, second, that “no such contract shall be valid unless signed by at least three members of the Commission and attested by the secretary.” Section 21, relating to new construction, plainly provides, first, that: “All new construction work shall be done by contract,” and, second, that: “all contracts for such work shall be let to the lowest responsible bidder,” and, third, that “no contract in excess of $1,000 shall be let without advertising for bids.” At the end of that section it is provided “that where the 'Commission is of the unanimous opinion that any particular piece of work may be done more economically with State forces, the Commission may proceed to do that particular piece of work with State forces.” Whether this proviso relates to the paragraph of said section immediately preceding it authorizing the Commission to let contracts for the construction of necessary bridges on State highways, or whether it relates to all new construction work mentioned in the first line of said section, we think it unnecessary to decide, as we are of the opinion that the contracts mentioned in the complaint cannot, with any reasonable stretch of the imagination, be said to have been performed with “State forces.” We think doing the work by “State forces” means the use of labor in the employ of the State, under supervisors and engineers of the State, with State equipment and materials. It cannot reasonably be said that when a contractor is doing the work with his own men, equipment and materials, whether in maintenance or new construction, and either upon a unit price basis, a cost plus basis, or a rental basis with a maximum unit cost, the work is being done with ‘ ‘ State forces.”
The limitations on the power of the Commission to contract above set out in §§ 18 and 21 are too plain to admit of construction. The same power that created the Commission and gave it such broad and comprehensive powers, including the power to spend millions of dollars, thought it wise to provide these safeguards. They are plain, unambiguous and mandatory, not directory merely, and were not complied with. 44 C. J. 324, 25 R. C. L. 394. As said by this court in Woodruff v. Berry, 40 Ark. 251: ‘ ‘ The entire authority of the board to let such contract is conferred by statute, and the statute prescribes how only they can contract. Any other contract is unauthorized, in excess of the powers vested in the board and voidable at the election of the State. ’ ’
The Constitution provides that “any citizen of any county, city or town mav institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the inf or cement of any illegal exactions whatever.” Article 16, § 13, Constitution 1874. We perceive no valid reason why the Attorney General may not maintain this action against the Auditor and Treasurer to prevent them from issuing and paying warrants on illegal exactions made against the State, without the necessity of joining the beneficiaries of such exactions. As suggested by counsel as amici curiae, the holders of such vouchers are numerous. It would be difficult if not impossible to locate them all in this State, and many suits of a similar nature have been sustained by this court without joining the beneficiaries of the illegal exaction. Belote v. Coffman, 117 Ark. 352, 175 S. W. 37, is a fair sample of such cases. There a taxpayer brought suit to enjoin the issuance of warrants upon an appropriation made by the General Assembly to pay the expense incurred by numerous persons in exhibiting resources of the State at the Panama Pacific Exposition in San Francisco in 1915. The injunction was denied by the chancery court which was reversed by this court and remanded with directions to grant the writ. Another case in point is Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529. This was another taxpayer’s suit to enjoin the Auditor from issuing warrants to pay for the maintenance of the Boys’ and Girls’ Industrial School. The injunction was denied by the chancery court, but was reversed by this court and remanded with directions to grant the writ. Many other cases might be cited to the same effect that neither the holders of the vouchers, the contractors, nor the Commission were necessary parties in determining whether appellants should be enjoined from the payment of illegal exactions.
It is argued that there may be contractors who, by reason of having furnished labor and materials to the Commission in the construction and repair of roads under these contracts, who have certain special defenses or rights to recover, even though the contracts may be void. We are not undertaking to adjudicate any such rights in this opinion. We have, however, reached the conclusion that the contracts set out in the complaint are void, and that the vouchers issued by the Commission pursuant thereto constitute illegal exactions, for the reason that such contracts were not made in compliance with the statutes heretofore mentioned.
The judgment of the chancery court in so holding is correct, and must be affirmed. It is so ordered. | [
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Smith, J.
The immediate question in this case is, What is the compensation to which jurors, grand and petit, are entitled in Arkansas 'County? The answer to this question depends on the constitutionality of act 299 of the Acts of 1931 (Acts 1931, page 1032).
This act 299 is entitled, “An act fixing the fees and salaries of certain county officers and creating the office of collector in counties having a population 'between twenty-two thousand and twenty-two ^thousand five hundred. ’ ’ By this act the offices of sheriff and collector are separated, and certain duties are imposed on the collector in regard to visiting each incorporated town in the county. All the county officers are put on salaries, and provision is made for deputies and clerical assistance. Section 18 contains the following provision in regard to the compensation of jurors: “That, from and after the passage of this act, the grand jurors and petit jurors of the circuit court of such county shall receive as their compensation three dollars fifty cents ($3.50), and they shall be allowed the same mileage as now allowed by law. ’ ’
Other sections of the act provide the fees' to be paid upon suits filed in both the circuit and chancery courts, and for making transcripts upon appeals to the Supreme Court.
It is provided in the act, however, that “the provisions of this act shall apply to all counties which had, according to the last Federal census, a population between twenty-two thousand and twenty-two thousand five hundred. ’ ’
By the, last or 1930 Federal census, Arkansas County had a population of twenty-two thousand three hundred, and was the only county in the State whose population exceeded twenty-two thousand and was less than twenty-two thousand five hundred. It is therefore apparent and certain that the act can apply only to that county, and its operation is as definitely limited to Arkansas County as if it had been made to apply to that county by name and to no other. As the act is not prospective, but applies only to the counties “which had, according to the last Federal census,” the designated population, it cannot ever apply to any county except Arkansas County. The act is therefore a local one within the inhibition of the constitutional amendment against local legislation.
There has been confusion as to the number of this and certain other amendments: The Local Bill Amendment to the Constitution is designated in Applegate’s Constitution- of Arkansas, Annotated (page 231), as amendment No. 12, and we have used that number in referring to it. This is the amendment which provides that “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” The Secretary of State has had printed the Constitution with the amendments thereto, in which he has designated the Local Bill Amendment as amendment No. 14., and we therefore employ the same number in referring to it.
The instant case cannot be distinguished from the recent ease of Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70, and is controlled by it, and, upon the authority of that case, it must be held — and we do hold — that act 299 of the Acts of 1931 is void, as having been enacted contrary to Constitutional Amendment No. 14, above referred to. There is therefore no valid act fixing a different or special compensation for jurors in Arkansas County, and they must therefore be paid the same compensation as is allowed by the general laws of the State.
The decree of the chancery court, from which this appeal comes, conformed to this view, and it is therefore affirmed. | [
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Butler, J.
Ed Treece was tried and convicted on a charge of selling alcoholic liquor, and from the verdict and judgment is this appeal.
The testimony on the part of the State was to the effect that one Godbey, on the evening of Thanksgiving Day, 1930, was arrested for drunkenness, and a pint bottle of whisky was discovered in his possession. This bottle was taken by the officer who made the arrest and labeled for the purpose of identification, and by him given to another person in the mayor’s office for safekeeping. It was again delivered to the officer, who exhibited it at the trial, over the objection of the defendant. Godbey testified that on the evening of Thanksgiving Day, 1930, he bought -a half-gallon fruit .jar of whisky from the defendant and paid him $4 for.it; that it was on this liquor that he had become drunk when he was arrested; that a part of the liquor in the fruit jar had been drunk, and that he had poured what was left into a pint bottle, but did not remember where he got the bottle.
This testimony was corroborated by the testimony of other witnesses, all of which was denied by the defendant, who testified that Godbey and his companions had' inquired of him where they could buy some liquor, and that he informed them that he did not know; that he never sold any liquor to Godbey, and that Godbey had not entered his house. The defendant’s daughter testified corroborating the testimony of defendant, stating that she was with her father on the occasion when God-bey came to their house, and that Godbey did not come into the house, and did not purchase any liquor.
The only ground urged for reversal of the judgment is for the alleged error of the trial court in permitting to be introduced in evidence the bottle of liquor taken from the person of Godbey by the officer, on the ground that the bottle of liquor was not identified as the same as that taken from Godbey. This objection is not tenable, for the reason that the evidence plainly shows that the bottle introduced in evidence was the same as that taken from the person of Godbey, who testified that it contained part of the liquor sold to him by the defendant. We are of the opinion that no prejudice could have resulted, for the reason that it was immaterial whether the liquor offered in evidence was the same as that taken from Godbey. There was no question as to whether it was alcoholic liquor or a different kind of beverage that was sold, and the introduction of the liquor could have served no useful purpose or have prejudiced defendant.
The only question in the case was whether or not Godbey had purchased alcoholic liquor from the defendant. Godbey and the other witnesses for the State testified that he did, while the defendant testified that he had sold Godbey no liquor or beverage of any kind. The evidence was amply sufficient to sustain the verdict of the jury, and the judgment will therefore be affirmed. | [
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Mehaeey, J.
Lamar Williamson is the chairman, J. H. Andrews is the secretary, and Harvey Gf. Combs is the assistant secretary of the Democratic State Central Committee of Arkansas.
The appellee, Robert L. Montgomery, Jr., is a citizen and qualified elector of the State of Arkansas.
On May 21, 1932, the appellee filed in the Pulaski Circuit Court a petition for mandamus, praying- for an order requiring appellants to accept appellee’s fee as'a candidate for the Democratic nomination for the office of Treasurer of Arkansas, and to certify appellee’s name to the various county committees as, a candidate for said nomination.
The appellants filed a demurrer denying that the court had jurisdiction of the persons of defendants in the capacity in which they are sued, and denied that the court had jurisdiction of the subject of the action.
The court overruled the demurrer. Appellants saved their exceptions, and filed answer to appellee’s petition, denying- the material allegations in the complaint, and asking that the petition be dismissed.
The case was tried on the following agreed statement of facts:
“Stipulation: The parties in open court agree that witnesses, if present in court, would testify to the following facts; the plaintiff was at the office of Harvey Gf. Combs, assistant secretary of the Democratic State Central Committee, in Little Rock, at or about eleven o ’clock p. m. on May 10, 1932. -He mailed the pledge required by § 42 of the-rules of the Democratic party in Arkansas, and the fee required by <§> 45 of said rules, to J. H. Andrews, secretary of said committee, at Wynne, Arkansas, at eleven-thirty o’clock i>. m. on May 10, 1932, and said pledge and fee were received by said secretary at an hour in the morning of May 11, 1932. .Said secretary returned the fee to plaintiff. The defendants refused to accept said fee from plaintiff — the reason given that it was not received within the time required by the rules as construed by the defendant. At or about eleven o ’clock p. m. on May 10,1932, one Martin, of Wynne, Arkansas, a friend of plaintiff, advised J. H. Andrews, said secretary at Wynne, at plaintiff’s request, that he would sign and file the pledge for plaintiff and pay the fee to said secretary at that hour, but said secretary advised said Martin that he would not accept the pledge with plaintiff’s name signed by another party. A copy of the rules of the Democratic party in Arkansas in effect at the times mentioned herein are attached hereto as a part of this stipulation.”
The entire rules of the Democratic party covering forty-six pamphlet pages were put in evidence, but we do not deem it necessary to burden this opinion with more than the following:
“Section 14. State Central Committee — Assistant Secretary. — To facilitate work of the Democratic organizations and that Democratic records may be preserved for future reference, the office of assistant secretary is hereby created. The said assistant secretary shall be appointed by the secretary of the State Central Committee subject to the approval of the said committee. It shall be his duty to keep the records in permanent form of all the proceedings and deliberations of State Central Committees and of State Conventions, and to perform such other duties as shall be required of him by the State Central Committee or by the officers thereof. His compensation shall be prescribed by the secretary.”
Section 42 of said rules provides:
“Candidates for nomination shall file a written pledge to abide by the results of the primary and to support the nominees of the party. ’ ’
Section 43 provides:
“All candidates for United States Senator, representatives in Congress and all State and district offices shall file the prescribed pledge with the .secretary of the 'State Central Committee not later than ninety (90) days before the election; and all candidates for county and township offices shall file the prescribed pledge with the secretary of the county central committee not later than thirty (30) days preceding the election; and all candidates for municipal offices shall file their pledges with the secretary of the city central committee not later than thirty (30) days preceding the election.
“No candidate’s name, who shall fail to sign and file said pledge, shall appear on the official ballot in said primary election. The chairman and secretary of the State Central Committee shall certify to the various county committees not later than July 20 the names of all candidates who have complied with the rules herein prescribed and no other names for such offices shall be put on the ballots by the county committees.”
The court, on its own motion, made the following finding of fact; to which the appellants excepted:
“That plaintiff was in the office of H. G. Combs, assistant secretary, before midnight, May 10, 1932; that, before midnight May 10, 1932, a person in Wynne, at the request of plaintiff offered to sign plaintiff’s name to a pledge in the office of the secretary and to pay his fee; that it was announced by Mr. Combs, in his office in the presence of plaintiff, that the ticket would close at midnight and any other candidates desiring to file pledges and pay fees could do so at that time.”
The appellants requested the court to make the following declarations of law, which the court refused to make, and appellants saved their exceptions:
“That this court has no jurisdiction; that the construction of the party rules which were made 'bv the committee is a matter entirely within the jurisdiction of the committee and not of this court; that where there are more than one reasonable construction to be placed upon the rules of the Democratic party and one of these constructions is adopted by the officers of the committee, this construction will govern.
“That filing the pledge and filing the fee on May 11, 1932, is not a compliance with the rules of the Democratic party.
“That the plaintiff did not file his pledge or pay his fee within the time prescribed by the rules of the Democratic party and that plaintiff is not entitled to have his name placed on the ballot.
“That § 9756 of Crawford & Moses’ Digest does not apply to computation of time in rule of the Democratic party.
“That § 3772 of Crawford & Moses’ Digest-is the only statute conferring a cause of action on a candidate; that said statute confers a right of action on a candidate only, and to contest only the certification of nomination or the certification of vote.
“That the officers of the Democratic State Central Committee are not officers within the meaning of §§ 70'20 and 7021 of Crawford & Moses’ Digest, or any other statute; that the court had no jurisdiction to issue a writ of mandamus directed to officers or members of the Democratic State Central Committee; that the plaintiff has a remedy by appeal to the Democratic State Central Committee.
“That defendants are not ministerial officers to whom this court has jurisdiction to direct a writ of mandamus; that the placing of plaintiff’s name on the ballot is not. a ministerial act, but is one which involves exercise of discretion on the part of the committee and its officers.”
The court then made and entered the following order and judgment:
‘ ‘ On this day comes the plaintiff in person and by his attorneys, Sam E. Montgomery and June P. Woolen, and come the defendants by their attorney, Chas W. Mehaffy, and this canse is submitted to the court upon the complaint, demurrer, answer and stipulation of facts. After argument of counsel, the court being well and sufficiently advised as to all facts and matter of law arising thereunto, doth sustain the prayer of the complaint.
“The court finds that the declarations of law and findings of fact requested by plaintiff are correct and are hereby adopted by the court.
“It is therefore by the court ordered and adjudged that a writ of mandamus issue herein, directed to the defendants as officers of the Democratic 'State Central Committee of Arkansas commanding them to accept and file the pledge and fee of plaintiff heretofore tendered to them as a candidate for the Democratic nomination for the office of State Treasurer of Arkansas, 'and that they as such officers of said committee certify the name of plaintiff as a candidate for the nomination of State Treasurer to the various Democratic county committees in Arkansas not later than July 20, 1932, for the purpose of having plaintiff’s name as such candidate printed upon the ballots to be voted at the Democratic Primary to be held in Arkansas on August 9, 1932.
“The defendants in open court, having knowledge of this judgment, waive actual service of said writ.”
To the findings and judgment of the court, the appellants, at the time excepted, and asked that their exceptions be noted of record, which was done.
Thereupon the appellant filed motion for a new trial, which was by the court overruled, exceptions saved, and the case is here on appeal.
The Democratic party in Arkansas provided for a legalized primary to be held on August 9, 1932, for the purpose of nominating candidates for the general election in November.
J. H. Andrews, at Wynne, Arkansas, is secretary of the State Central Committee, and Harvey Gr. Combs, of Little Rock, is assistant secretary.
Under the rules and regulations of the party, candidates for State offices were permitted to file the pledge required with the assistant secretary at Little Rock.
Rule 43 of the rules adopted by the Democratic party in Arkansas provides that candidates shall file the prescribed pledge with the secretary of the State Central Committee not later than ninety (90) days before the election..
The requirement to file the pledges and the time in which they must be filed, is fixed by a rule of the Democratic party, and not by statute.
As we have said, the primary election to be held on August 9th is a legal election, but the requirements, in order to have one’s name placed on the Democratic ticket as a candidate for nomination, are fixed by the rules of the party, and not by law.
It is contended however by the appellee that, although the party has a right to make rules, it has no right to construe the rules when made.
The agreed statement of facts in this case shows that the appellee, Mr. Montgomery, was at the office of Harvey Gr. Combs, assistant secretary of the Democratic Central Committee, about 11 p. m., on May 10, 1932.
Instead of filing his pledge at the office of the as-' sistant secretary, where other candidates were filing their pledges and paying the fee, and where the appellee knew he could pay his fee, file his pledge, and have his name put on the ticket, he mailed the pledge and the fee to J. H. Andrews, secretary, at Wynne, Arkansas, at 11:30 p. m., on May 10, 1932.
The pledge and fee were received by the secretary on the morning of May 11, 1932.
The officers of the State Central Committee, construing the rule, fixed the time for closing the ticket at midnight on May 10, 1932.
Notwithstanding this time was fixed and known to appellee, and he was advised of this decision on the part of the committee, and notwithstanding it was announced in Ms presence tliat the time for filing pledges and paying fees expired at midnight, appellee declined to file his pledge and pay his fee to the. assistant secretary, but mailed them to the secretary at Wynne, Arkansas, at a time when he knew it could not reach the secretary before midnight of May 3.0th, the time fixed for closing the ticket.
Appellee says there are two major questions' presented in this appeal. The first one is, did the court have jurisdiction to entertain the petition made?
It is further stated in' the argument of this question by appellee: “Where by statute a Democratic, primary election has been made a legal election, and a member of that party desires to become a candidate, complying with all the party rules, can the officer of the central (or executive) committee arbitrarily refuse to obey the law of the party by denying to such a member the right to become a candidate?”
We have no such case made by the pleading and evidence in this case. If the committee or officers acted either fraudulently or in such an arbitrary manner as to prevent a person who in good faith sought to comply with the party rules, the court would require the officers themselves to comply with the rules.
That, however, is a very different matter from saying to the central committee or its officers that they have a right to make rules but no right to interpret them.
It would be strange indeed, if the party had power to make rules, but could not, in good faith, construe them.
In this case there is no question of fraud or intention to deprive appellee of any right. The' appellants acted in good faith, and, if the position taken by appellee is correct, then the committee, or its officers, could not construe any rule of the party, but every time there was. any necessity for interpretation or construction; they would be controlled by the court.
• If the Legislature, in providing for the primary election law, had intended any such thing as this, it ■would have said so. The Legislature has provided for certain questions to he determined by the courts, but Avhen the party makes a rule governing its procedure, and in good faith interprets that rule, the court has no authority to substitute its interpretation for that of- the committee.
Of course, if there was any question of fraud, deception, wrongdoing, or anything else that prevented an elector from getting his name on the ticket, the courts would have jurisdiction to prevent the wrong. But we have no such question here.
It is stated that in the case of Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, the question involved there was purely a party matter, not governed by statute, and over which the court had no control. What we said in that case was that the Legislature had authority to give the court jurisdiction, but, unless it was clear that it intended to do this, the court will not assume jurisdiction, but will leave these matters to be determined by the political parties, just as they were before the enactment of primary election law.
We further held that the law7 does not seek to interfere with the management of party affairs by the central committee or conventions.
The courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers.
Attention is also called by the appellee to the-case of Spence v. Whitaker, 178 Ark. 51, 9 S. W. (2d) 769. We said in that case: “If one should deliberately fail or refuse to file the pledge required by the law, it would be the duty of the committee to refuse to put his name on the ticket.”
The rule involved in this case, as construed by the proper authorities of the party, required the pledge to be filed by midnight on May 10th. Is there any donbt that the appellee not only knew about the rule, but knew how the committee interpreted it, and knew, according to the committee’s interpretation, that the time ended at midnight on the 10th? He was present in Mr. Combs’ office and given the opportunity to file his pledge and get his name on the ticket, but he refused to do this, and at about 11:30 mailed his pledge to Wynne, Arkansas.
The court might put a different construction upon the rule, but it was the party’s business to make the rule and the party’s business to interpret it.
It appears from the record in this case that the officers of the party interpreted the rule, published it, and advised everybody who wished to become a candidate that the time for filing the pledge would end at midnight on the 10th.
The rule adopted by the Democratic party is not in conflict with any statute, and there is no statute prohibiting the party from, in good faith, interpreting its own rules.
We said in a recent case:
“Being a voluntary political organization and not an agency of the State, the Democratic party had the right to prescribe the rules and regulations defining the qualifications of membership, and to provide that only white people could become members, without coming within the prohibition of either the Fourteenth or Fifteenth Amendment..# * * There is no more reason to say that the Democratic party in Arkansas cannot make the rule in question than there is to say that the Masonic 'bodies in Arkansas may not exclude them on account of color.” Robinson v. Holman, 181 Ark. 428, 26 S. W. (2d) 66.
Appellee refers to 20 C. J. 112. In the same volume at page 104 it is said: “In the absence of constitutional or statutory provisions to the contrary, the authorities of a political party, such as State and county executive committees, may, in accordance with party usage, make and enforce reasonable regulations'relating to nominations within the party.”
In the instant case, as we have already said, there are no constitutional or statutory provisions contrary to the rule adopted by the party. It is a matter of common knowledge that, ever since the enactment of the primary election law and the adoption of the rule under consideration, the officers of the Democratic State Central Committee have placed its interpretation upon the rule by fixing the time within which the pledge must be filed. This action on the part of the officers of the committee is a matter of common knowledge.
It is done not only by the State central committee,' but by the county central committees and committees in cities and towns, and whenever such committee, in good faith, interprets and declares the meaning of the rule, the courts have no right or authority to put a different interpretation on the rule.
We said in the case of Robinson v.. Holman, supra:
“Political parties are political instrumentalities. They are in no sense governmental instrumentalities.
“The State has nothing to do with the holding of primary elections. The statute fixes the date for holding primary elections, but the State appoints no officers to hold a Democratic primary. It does not pay the cost thereof. The machinery for holding' a Democratic primary election in Arkansas is entirely an instrumentality created by the party with which the State, as a State, has nothing to do.”
The case of Combs v. Gray, 170 Ark. 956, 281 S. W. 918, discussed by appellee, involved the question of the adoption of a constitutional amendment.
Appellee also calls attention to the case of Walker v. Grice, 159 .S. E. 914. That case involved the right of the Democratic committee to remove from office persons appointed by it. That case was decided by the Supreme Court of South Carolina, and the court said:
“It is evident from the .above extract that the Legislature intended -to give primary elections a legal status, and to placo them, together with the entire party machinery, under the protection of the courts, not only for the purpose of punishing frauds, but also for the enforcement of rights acquired therein.”
But there is nothing in that decision holding that a court has authority to compel a committee, of a political party either to make a certain rule or to interpret a rule in a certain way.
The court also said in that case: “We call attention to the fact that the rules of the State Democratic party cannot conflict with the enactments of the Legislature as to primary elections whether state, county or municipal.
“We find no conflict between the rules of the State Democratic party and the statutory enactments.”
Attention is called to the case of People v. Democratic General Committee, 164 N. Y. 335, 51 L. R. A. 674. In that case it will be seen that the expenses of the primary election under the statute had to be paid by the same officers or boards, and in the same manner as the expenses of the general election. Besides that the court said, in discussing the power of the committee, that it provided many things for the conduct of the committee, but the right to expel a member was not one of them. It was said, in speaking of the Legislature:
“It decided that the wrongs that had been and were being done to the primary voters exceeded that which could result from occasional association with a hostile member. In other words, it was determined that the majority of the primary voters were entitled to select any representative they might desire, who should be responsible to those electing him, and only to them, for his conduct in office.”
The appellee quotes at length from the case of State v. Hunter, 134 Ark. 443, 204 S. W. 308. In that case the court construed a statute which provided that notice shall be filed “not less than fifteen days before the election.” The court held that, adopting the statutory rule of construction “where a certain number of days are required to intervene between two acts, tbe day of one only of the acts toiay be counted.” Many courts have construed statutes like the one involved in State v. Hunter just as the committee in this case construed the party rule. There is authority supporting each of the interpretations. The weight of authority probably supports the interpretation adopted by the officers of the committee. However this may be, there is authority to support the interpretation of the committee, and it had the right not only to make the rule but to interpret it.
' This court said in Jones v. State, 42 Ark. 93; ‘ ‘ Where a certain number of days are required to intervene between two acts, the day of one only of the acts is to be counted, but when a statute requires notice of at least a certain number of days before an act, this means so many full days, and the day of the notice and the act are both excluded from the computation. ’ ’ The court can compel the committee to act if it refuses to do so, but it cannot control its discretion.
Nearly all of the authorities referred to are based on statutes, and, of course, the committee could not make or enforce a rule that was prohibited by statute, or that was in conflict with the statute.
We have already said that, if there was any charge of fraud or arbitrary action, the court would have jurisdiction, and mandamus would lie to compel a compliance with the rules of the party.
It is contended by the appellee that the pledge was filed in time. What we have already said answers this question. That is, that the interpretation of the rule, .where it was done in good faith, and resulted in no harm io anybody, is for the committee and not the courts.
Appellants have referred to a great many cases which we do not deem it necessary to review here, because holding that the interpretation of the rule, in good faith, by the committee, ivas not subject to review by the courts, makes it unnecessary to discuss any other questions.
The judgment of the Pulaski Circuit Court is reversed, and appellee’s petition dismissed. | [
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Kirby, J,
(after stating the facts). Appellant insists that the court erred in not instructing the verdict in his favor, the note attempted to be used as an offset having been purchased by appellee after the beginning- of the suit as shown by the indorsement thereon.
Under the statute “bonds, bills, notes or other writings assigned to the defendant after suit has been commenced against him and the writ served ’ ’ are not allowed to be set-ofif against the demands of the plaintiff. Section 1199, 'Crawford & Moses’ Digest.
The testimony shows that appellee’s father begun trying to find and purchase a note of appellant’s immediately after his son, who lived in Detroit, wrote him that he was about to be sued by appellant upon a note he had given him. That he approached Battles and bought the note in April before the suit was brought, agreeing to pay 33 1/3 per cent, of the face value thereof, provided the note was'not “outlawed” as he expressed it, and that he later found it was not barred by the statute of limitations. After some investigation he feared it might be barred and went to a holder of one of appellant’s other notes to see about making a purchase of him, telling him that he had already bought one note but feared it might be outlawed. He ascertained some time before the trial of the case that the note was not barred by the statute of limitations and went to Battles, from whom he had purchased it sometime before, and told him it would be necessary for him to indorse it, and the indorsement was made at that time, rather than at the time of the sale thereof. Other testimony was also introduced explaining the indorsement of the note.
The jury was properly instructed as to the law and found a verdict against appellant. No error was committed in allowing- the explanation made of the date of the indorsement on the note, the title to same having been acquired on the date of its sale and delivery to appellee’s agent upon condition that it was not barred by the statute of limitations. The sale was to be effective at the date of delivery of the note, and the title passed tneu, since in fact the note was not barred by the statute of limitations as was later discovered to be the case, and the purchaser was entitled to have assignment made as of the date of sale and delivery of the note and it necessarily related back to that time.
There was substantial testimony sufficient to support the verdict of the jury returned under correct instructions from the court as to the law of the case, and the verdict is conclusive. We find no error in the record, and the judgment is affirmed. | [
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MoHaney, J.
On or about December 1, 1927, appellees purchased from Captain M. W. Ware, through the National Bank of Arkansas at Pine Bluff, certain real property in said city for a home. The purchase price was $6,200, of which Captain Ware was paid $1,700 in cash by said bank for appellees, and they executed and delivered their first mortgage and note to him for $4,000. At the same time, they borrowed a sum of money from said bank on second mortgage on said property to secure their notes for $2,300, including the $1,700 paid to Cap tain Ware. Appellees entered into possession of said property, reduced their indebtedness to the bank in the sum of $600 at the rate of $60 per month over a period of ten months, moved out of the house, delivered the keys to the house to the president of the bank under an alleged agreement that they surrendered possession in satisfaction of their indebtedness to the bank secured by the second mortgage. Thereafter, suit was brought to foreclose the first mortgage, in which appellant, who is the receiver of the National Bank of Arkansas (it being insolvent) and appellees were made defendants. Appellant answered, admitting the validity and priority of the first mortgage, and filed a cross-complaint against appellees seeking judgment on their indebtedness to the bank and a foreclosure of the second mortgage. Appellees answered, denying that they were indebted to appellant as receiver for the reason stated above — that they had surrendered the property to the bank in satisfaction of the debt in October, 1928, and that the bank had accepted same for such purpose. The court found for appellees, entered a decree dismissing appellant’s cross-complaint for want of equity, and the receiver has appealed.
It is not claimed that there was any written agreement between appellees and the bank by which a delivery of the property to the bank was accepted in satisfaction of the mortgage debt, and it is conceded that such an agreement could rest in parol. This court has so held with reference to chattel mortgage indebtedness. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392; Horton v. Thompson, 124 Ark. 545, 187 S. W. 627; Ribelin v. Loyd, 148 Ark. 487, 230 S. W. 556. The reason for the rule is, as stated in the case last cited, that “a mortgage is a mere security for a debt, and the property may be released from the mortgage by parol agreement, as well as by a written one.” In this and in many other States a mortgage is considered as security for the debt merely, and not the principal obligation. An oral agreement to satisfy therefore does not fall within the statute of frauds. In other .jurisdictions the mortgage is held to be the principal obligation, and that a parol agreement to release or satisfy is void as being within the statute of frauds. 19' R. C. L., § 238, p. 454.
The next question that arises is what is the degree of proof required to establish a parol agreement to release or satisfy a mortgage? May such fact be established by a mere preponderance of the evidence, or does the clear, unequivocal and convincing- rule apply? This question has given us some concern. We do not find that we have heretofore decided it. In Fincher v. Bennett, sv,pra, a replevin suit, the court instructed the jury that a preponderance of the evidence was sufficient, and this court sustained the instruction. The question as to the degree of proof was not there raised or decided. In the section of R. C. L., above cited, the author states that, in those jurisdictions where a mortgage is held to be security for the debt, “it is generally held that a parol release of a mortgage * * * is not void by reason of the statute of frauds, though it has been said that an agreement in parol to release the mortgagor from his personal liability must be established by clear and convincing evidence, for the effect thereof is to set aside the written contract.” Benson First Nat. Bank v. Gallagher, 119 Minn. 463, 138 N. W. 681, Ann. Cas. 1914B 120, and note, are cited to support that statement, which it does. And in Stevens v. Turlington, 186 N. C. 191, 119 S. E. 210, 32 A. L. R. 870, it is held that evidence of a parol discharge of a written contract within the statute of frauds, or of an equitable estoppel by matter in pais, must be positive. In 41 Corpus Juris, p. 805, it is said that “a parol release may be shown by circumstances and declarations and acts of the parties inconsistent with the continued existence of the mortgage. The proof of matters relating to the discharge or release of a mortgage should be clear and satisfactory.” A great many cases are cited to support that statement.
We have reached the conclusion that, as to mortgages of real estate, the correct rule is that the proof relating to the discharge or release thereof must be clear, satisfactory and convincing. Title to real property, and the validity and continued existence of mortgages thereon, would be insecure by any less stringent rule.
Having reached this conclusion, the next question is: Does the proof in this case meet the requirements of the rule? We hold that it does not. Appellee, Mr. Atherton, testified to the effect that he told Mr. Hudson, president of the bank, that he was quitting, would make no other payments, and that Hudson told him to bring the keys to the bank when he moved out; that he offered to deed the property back to the bank, but that Mr. Hudson told him to wait until they sold it to another purchaser and deed could be made direct to the purchaser; that the bank accepted the keys, took charge of the property, rented it out, kept the rents, and otherwise dealt with it as owner. Mr. Hudson testified to the contrary; that Mr. Atherton brought the keys to the bank, told him he was quitting, moving out, because he couldn’t meet the payments; that he took the keys and told Atherton he would list the property for sale for his account with a real estate firm and try to have it sold so as to make a profit for him. This was in October, 1928. No sale was made, but the house was rented, and the rents did not cover the taxes, insurance and interest on the first mortgage, which the bank had to pay to protect itself. The evidence is in conflict, but the circumstances speak strongly against appellees. They did not demand or receive from the bank their notes in the sum of $1,700, nor did they demand a satisfaction of the record of the mortgage. It seems reasonable to believe that, if they were surrendering the property in satisfaction of the debt, they would have demanded their notes, the written evidence of the debt, and a satisfaction of the mortgage. They did not tender the bank a deed to their equity of redemption in the property. Under these facts and circumstances, it is doubtful if appellees proved their case by a clear preponderance of the evidence. It is certain that such evidence is not clear, satisfactory and convincing. The burden was on them to do so, and they have failed.
The judgment will be reversed, and the cause remanded, with directions to enter a decree of foreclosure on the cross-complaint in accordance with the prayer thereof.
Kirby, J., dissents. | [
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Mehaeey, J.
The appellant, Ed B. Mooney, was engaged in the general construction business in the city of Hot Springs, and owned and operated a number of automobile trucks and other vehicles. The appellant, Floyd Cockrell, was employed by Mooney as a driver of an automobile truck.
On June 28,1931, Floyd Cockrell was driving a truck of E’d B. Mooney, on the Little Bock-Hot -Springs Highway, five or six miles from Hot Springs, and was driving in the direction of the city of Hot Springs.
W. T. Tillery was driving an automobile in the opposite direction. There was a collision, and Andy Lee Wilson, who was riding with Tillery, was killed, and Tillery’s car was demolished.
There was a judgment in favor of Tillery for $350, a judgment in favor of the estate of Andy Lee Wilson for $6,000, and a judgment in favor of J. H. Wilson in his own right, for $1,500'. This appeal is prosecuted to reverse these .judgments.
The evidence was in conflict as to whose negligence caused the collision, and the verdict of the jury on that question is conclusive. Appellants do not contend that there was not sufficient evidence to sustain the verdict as to negligence. They contend, however, first, that the evidence is not sufficient to sustain a verdict for $6,000 for the benefit of the estate, on account of the pain and suffering- endured by deceased.
' ' Appellants concede that there was evidence sufficient to justify a verdict for pain and suffering, but it is contended that the evidence as to pain and suffering- was not sufficient to justify a verdict in the sum of $6,000.
• Witnesses testified that Andy Wilson groaned several times, twisted his body and shoulders, and was suffering pain. Some of appellants’ witnesses testified that he was not conscious, but, as conceded by appellants, it was a question for the jury, and their finding- is conclusive as to pain and suffering.
The time, however, which he suffered was very short because the evidence showed that he died within thirty minutes or an hour after his injury. Considering- the character of the injury and the short time that he lived after the injury, we have reached the conclusion that $6,000 is excessive,, and that the evidence is not sufficient to sustain a verdict for more than $3,500 for pain and suffering, and the judgment in favor' of the estate for $6,000 is therefore reduced to $3,500.
It is next contended that instruction No. 3, given at the request of the appellee, was erroneous. Instruction No. 3 reads as follows: “If you believe, from a preponderance of the evidence in this case, that the plain tiff, J. H. Wilson, as father and administrator of the estate of Andy Lee Wilson, deceased, and Homer Tillery, are entitled to recover, then, in assessing the damages dne J. H. Wilson, as administrator, yon should take into consideration the conscious pain and suffering endured by the deceased, Andy Wilson, from the time of the collision, or injury, until the time he died, if any such pain and suffering has been shown by the evidence. In assessing the damages due to J. H. Wilson as the father of said Andy Wilson, you should take into consideration the pecuniary loss suffered by the father of the deceased, if any has been shown by the evidence, resulting from the death of the said Andy Wilson. In estimating this loss, it is proper for you to consider the age of the deceased at the time he was killed, the probable duration of his life if he had not been killed, the probable duration of his father’s life, his health, habits, occupation, the value of his services to his father, and the probable value of his services he would have rendered in the future.”
One objection to instruction No. 3 was that there was no proof that the deceased, Andy Wilson, contributed any sum to his father, or that he would in the future contribute any sum to his father.
J. H. Wilson, father of the deceased, testified that his son helped him in his crop the biggest part of the time. He was 22 years old, and made his home with his father. He helped in the farming, plowing corn, breaking land, chopping cotton, getting wood in the winter time, and things like that. He testified that his son helped support him, and gave him some small sums of money, and bought some clothes'for his mother, and he did not charge anything for the work he did for his father.
There was therefore some substantial evidence to support the verdict in favor of the father, and no evidence contradicting it.
Appellant calls attention to 8 R. C. L., § 40, p. 477, and that section states the rule to be that any one who is injured in Ms person may recover for loss or diminution of Ms earning capacity, but it is also stated in said section, “nor will recovery by an infant for prospective loss of earnings, after he has reached his majority, be precluded by the fact that he has never earned anything, and that no one can tell with certainty what his future earning capacity will be.”
Of course, it would be impossible to tell what contributions would be made by a son to his father, but it may be shown to a reasonable certainty what his future contributions would be.
The next case to which attention is called by the appellant is Hines v. Johnson, 145 Ark. 592, 224 S. W. 989. We do not think the principles announced in that case have any application to the facts in this case. The court held in that case that, where damages are claimed for the death of a child incapable of earning anything or rendering services of any value, the value of its probable future services to the parent during its minority is a matter of conjecture, and may be determined by the jury without the testimony of witnesses. The court also held in that case that the surviving father was the next of kin, and that he could recover, but that the mother could not, for the loss of the child’s services.
Appellant also calls attention to the case of Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816. In that case it was held that the measure of damages to a parent was the pecuniary value of the services during minority, and that, since the parent was entitled to the services of the minor child, the law presumes that the parent has incurred and suffered pecuniary loss and damage in the death of an infant, even before it has arrived at an age to render services of pecuniary value.
But this court has held that, where the evidence shows contributions to the parent by the son, and where the evidence would justify the finding of the jury that he would contribute in the future, and that the father had a reasonable expectation of receiving contributions in the future, this evidence would justify recovery. Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371; St. L., Memphis & S. E. Rd. Co. v. Garner, 76 Ark. 555, 89 S. W. 550.
The deceased in this case was 22 years old, lived with his parents, worked on the farm for them, did not receive from them any compensation for his work, and the jury returned a verdict for $1,500. There was substantial evidence to sustain the verdict, and we do not think $1,500 was excessive.
“Legal liability alone is not the test of the injury in respect of which damages may be recovered; but the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account. It is not essential to the recovery of substantial damages by the father of an adult son that the latter had accumulated property, or given pecuniary aid to the former after attaining his majority, other facts being proved which justify the conclusion of substantial loss.” Sutherland on Damages, § 1273.
“In case of the killing of an adult child, who is at the time actually rendering services, recovery may be had even in all jurisdictions. * * * A reasonable probability of pecuniary advantage from the continuance of life mnst be shown; if it is shown, the parent may recover, if not, there can be no recovery. So, where at and before the time of his death the deceased was not contributing to his parent’s support, there can be no recovery.” Sedgwick on Damages, voh 2, p. 1117.
The verdict in favor of the appellee for $6,000 for pain and suffering is reduced to $3,500, and affirmed for that amount. We find no other error, and the judgment is in all other respects affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the insurance company, under the policy and application therefor, upon default in the payment of premiums without any further written request for “automatic premium loan” had the right to charge the delinquent premiums against the insured as such “auto matic premium loans,” and, having done so, even if it had no such right without the written request, its action having been acquiesced in by the insured, the beneficiary was thereafter precluded from recovering anything under the lapsed policy upon the theory that, if it had issued extended insurance instead of payment of premiums under the. “automatic premium loan” provision, the policy would have been continued in force until after the death of the insured.
The parties both evidently understood and construed the contract alike in the application of the “automatic premium loans” to the payment of premiums, the insured being regularly notified thereof and making no objections whatever to such procedure; and their construction of the contract is entitled to great weight in the correct interpretation. Craig v. Golden Rule Life Ins. Co., 184 Ark. 48, 41 S. W. (2d) 769.
The insured paid very few premiums except with the benefit of the “automatic premium loan,” and was repeatedly notified of the failure to pay such premiums and finally of the lapse of the policy almost two years before his death. He evidently recognized the correctness of the claims of his failure to pay the insurance premiums when due and the application by the appellant company of the “automatic premium loans” to their payment, and made no objection whatever at any time to such procedure nor any protest or objection to the correctness of the company’s notification of the lapse of the policy on September 24, 1928.
■Certainly this was acquiescence in the application of the “automatic premium loans” by the company to keep the insurance in force as well as in the correctness of its notification of the forfeiture of the policy because of the failure to pay the premiums, and was binding on the beneficiary who- must stand in the shoes of the insured and be bound under the terms of the policy issued.
She could not, therefore, upon learning after insured’s death that the application of the cash surrender value of the policy at a particular time during its life to the purchase of extended insurance, instead of its being used for the payment of premiums under the “automatic premium loan” provision, as was done with acquiescence of the insured, change the application of the cash surrender value to the purchase of extended insurance in order to keep the policy in force beyond the date of the insured’s death, entitling her to recover thereon. Mass. Mut. Life Ins. Co. v. Jones, 44 Fed. (2d) 540.
It follows that the court erred in holding otherwise, and must be reversed on that account, and, the cause appearing to have been fully developed, it will be dismissed'. It is so ordered. | [
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Humphreys, J.
This is an appeal from a judgment for damages to a mule that beeame entangled in a cattle guard which had been voluntarily constructed by appellant on a roadside to prevent stock running at large from coming upon its right-of-way. It was alleged in appellee’s complaint that appellant company negligently and carelessly permitted said cattle guard to become partly filled with weeds, trash, dirt and other obstructions so as not to be discernable and so as to resemble the road leading to and across same, and that a certain mule belonging to appellee and being of the value of $125 or more, in walking down said road, walked upon said stock guard and his feet were caught in same, and the said mule fell through said cattle guard, and, in attempting to get out or by reason of his fall, was seriously and permanently injured. The suit was brought and judgment obtained in a magistrate’s court, from which an appeal was prosecuted to the circuit court of Independence County, ■where, upon trial de novo, the judgment was obtained from which is this appeal.
Appellant’s contention for a reversal of the judgment is that the suit was brought under §§ 8478 and 8479 of Crawford & Moses’ Digest, which afforded appellee no protection against damages to his property because he.was not a landowner and because he failed to give the notice required by said statute as a prerequisite to the maintenance of a suit. The sections referred to penalize a railway company for failure to construct, keep and maintain in good repair cattle guards, after ten days’ written notice, on each side of the inclosures through which its lines run, by requiring it to pay the owners of the inclosures, in addition to actual damages sustained a penalty of not less than $25 nor more than $100. The undisputed evidence reflects appellee was not an owner of an inclosure, and that he had not given appellant ten days’ written notice to construct the cattle guard, or to keep and maintain same in good repair. Based upon this evidence, appellant requested an instructed verdict in its fp,vor, which refused. The trial court correctly re fused to so instruct the jury. This suit was not brought under these statutes. The gist of the complaint was for negligently maintaining the cattle guard voluntarily constructed in such manner as to injure stock lawfully running at large. Jones & Norris v. Nichols, 46 Ark. 207, 55 Am. Rep. 575. The remedy under the statute referred to is exclusive to the owners of inclosures, hut has no application to damages sustained by others on account of the negligent and careless maintainance of a cattle guard. The statutes referred to did not in any manner curtail or abrogate the common-law remedy for damages for maintaining dangerous nuisances.
No error appearing, the judgment is affirmed. | [
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Kirby, J.
(on rehearing). This suit was brought by appellant in the Arkansas Circuit Court for the possession of certain property. There was a judgment for the appellees, and an appeal was prosecuted to this court. This court, on April 18, 1932, reversed the cause and remanded with directions.
Our attention is now called to the fact that we overlooked the failure of the appellant to file a bill of exceptions within the time allowed. Judgment was rendered in the circuit court on August 4, 1931, and on the 5th day of August, 1931, motion for new trial was filed. The court on September 1, 1931, overruled the motion for a new trial, and granted an appeal to the Supreme Court, hut did not give any time for .filing hill of exceptions.
The clerk’s certificate shows the hill of exceptions was filed in the clerk’s office November 24, 1931. Since the record does not show that any time was given in which to file a bill of exceptions, and it was not filed until November 24, 1931, court having adjourned on November 16, 1931, the bill of exceptions was not filed during the term of court, and cannot he considered. Petroleum Products Ass’n v. First Nat. Bank, 165 Ark. 267, 263 S. W. 965; Engles v. Oklahoma Gas & Oil Co., 163 Ark. 270, 259 S. W. 749.
Since the hill of exceptions cannot he considered and no error appears on the face of the record, it follows that, the judgment of April 18, 1932 is erroneous. The petition for rehearing is granted, the judgment heretofore entered in the case is set aside, and the judgment of the Arkansas Circuit Court is affirmed. | [
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Butler., J.,
(after stating the facts). The appellee insists that, because of the failure of the appellant tu abstract certain instruments, exhibits to the pleadings and testimony, there has been a failure to comply with rule-9 of this court. "We are Of the opinion that this cohtem tion cannot be sustained because the pleadings’and téstimony abstracted are sufficient to give us an understanding of the issues involved.
We pretermit the second question raised by the appellee, i. e., that the record is insufficient in that the oral testimony taken was not properly preserved by a bill Of exceptions, for the reason that treating the testimony as properly preserved and brought forward in the record, it is insufficient to overturn the finding and decree of the chancellor. ■ .
The appellant, having denied that she signed the notes and deeds of trust or that she acknowledged the same, the burden of proof was upon her to show by preponderance of the evidence that her signature, was a forgery, and that she had not in fact- acknowledged the instruments. Thompson v. Kinard, 168 Ark. 1057, 272 S. W. 668; Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524. The chancellor found that the appellant had not sustained this burden of proof, and under the well-settled rule his decision must be upheld unless it is against the preponderance .of the- testimony.
The appellant testified that she did not sign the notes and deeds of trust, and that she did not acknowledge the same, but her testimony cannot be regarded as undisputed if, from all the facts in proof and from an examination of her testimony itself, any reasonable inference can be drawn contrary to her statement. Harris v. Bush, 129 Ark. 369, 196 S. W. 471; Interstate Business Mens’ Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51. There is some corroboration of appellant’s testimony to be found in the testimony of her brother and sister, who stated that they were familiar with appellant’s handwriting, and that in their opinion the signatures to the instruments involved were not written by the appellant. There is evidence, however, in direct conflict with this. The appellant, in open court, wrote her signature three times; We are unable to say whether or not there was an attempt upon her part to disguise her handwriting, but the chancellor had it before him at the time and doubtless compared it with the signatures on the instruments and considered it in the light of the attendant, circumstances.
J. O. Jolley, the husband of the appellant and the signer with her of the instruments, testified that his wife, to whom the property mortgaged had been conveyed about five years previously by her father, knew of the purpose for which the mortgages were executed and stated that she had acknowledged the same before a notary and had signed the instruments.
The notary whose name appeared as the officer taking the acknowledgments was not able to testify in specific terms regarding the time and place and the incidents surrounding the taking of the acknowledgments, but this is not surprising as he was testifying about five years after the date of the acknowledgments. He did testify, however, that he took the acknowledgments, and that he had never taken the acknowledgment of a woman unless she was present. The officer had no interest in the result of the suit, and the chancellor doubtless attached more weight to his testimony than to that of the appellant, in view of the latter’s interest and her denial, not only to the signatures on the instruments, but to her acknowledgment of the same. If the appellant did not in fact sign the deeds of trust, this would be of no importance if she acknowledged their execution before a notary. There is no evidence, nor is there any contention made, that the appellee colluded in any way with J. O. Jolley, who admitted signing the instruments and getting the money, to deceive the appellant. On the contrary, it is apparent that he was entirely innocent of any fraud. Therefore as to him, the appellant’s acknowledgment of the instruments would be effective to bind her, although the signatures might not have been her own and were unauthorized. Ward v. Stark, 91 Ark. 268, 121 S. W. 382; Goodman v. Pareira, 70 Ark. 49, 66 S. W. 147; O’Neal v. Judsonia State Bank, 111 Ark. 589, 164 S. W. 295; Clifford v. Federal Bank & Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026; Abernathy v. Harris, 183 Ark. 22, 34 S. W. (2d) 765.
We are unable to say that the finding of the chancellor was against the preponderance of the testimony, and the decree is therefore affirmed. | [
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Humphreys, J.
Appellee brought suit on September 27, 1930, against appellant in the circuit court of Phillips County for $1,775, alleged to be due him for salary as chief of police of said city for eleven months and twenty-five days, at the rate of $150 per month. Appellant filed an answer, denying that it was indebted to him in the sum of $1,775, or in any other sum for salary as chief of police. The cause was submitted to the court upon the pleadings and an agreed statement of facts, which resulted in a judgment against appellant in the amount sued for, from which is this appeal.
The agreed statement of facts is as follows:
“Agreed Statement of Facts.
“It is agreed by and between the plaintiff and the defendant that this case may be tried on the laws and the following statement of facts:
“1. The city of West Helena is a city of’first class.
“2. L. H. Kessler was elected mayor of West Helena at the regular biennial election on April 2, 1929, and entered npon his duties as mayor on the following Monday night, at the regular monthly meeting of - the city council.
“3. Ordinance No. 66 of the city of West Helena, approved March 15, 1920, reads as follows: 'Section 9. That, at the first regular meeting held by the city of West Helena city council after the annual election in April, or as soon thereafter as practicable, the mayor shall appoint a competent man of good moral character to be chief of police, who shall hold his office for the term of- one year, or until his successor shall have been appointed and qualified, and the salary is fixed at the sum of $150 a month.’
“4. Pursuant to ordinance No. 66, at the first meeting of the city council in regular session, or on the same date the mayor was qualified as mayor, as per paragraph 2, L. H. Kessler, mayor, with the advice and consent of the council, appointed the plaintiff, Lee Patrick, as chief of police on April 9, 1929, and he served as such chief of police until April 15, 1930.
“5. At the first regular council meeting held after the city election, same being the regular election, or on April 15, 1930, John J. Johnson was appointed by Mayor Kessler, with the advice and consent of the council, to succeed the plaintiff, Lee Patrick, as chief of police, and on the same date John J. Johnson qualified as said chief of police, and has since that time served as chief of police. Lee Patrick was paid the sum of $150 every month by the city of West Helena up to the time of Johnson’s appointment, April 15, 1930, when Johnson was appointed and qualified.
'Signed: “Peter A. Deisch,
“Attorney for Plaintiff.
“John O. Sheffield,
“Attorney for Defendant.”
Under the agreed statement of facts, appellee was appointed chief of police of the city of West Helena for the term of one year or until his successor was appointed, accepted his appointment and served until April 15, 1930, at which time his successor, John J. Johnson, was appointed and qualified without objection or protest on his (appellee’s) part. He accepted pay for the time he served, and allowed his successor to accept the salary thereafter without objection or protest. Having been appointed pursuant to the terms of the ordinance, and having retired pursuant to the terms thereof, he cannot now be heard to say that the part of the ordinance fixing his term at one year was in conflict with the State statute fixing his term at two years, and therefore void. He is clearly estopped to plead the invalidity of the ordinance in that respect. His acquiescence in the appointment of his successor and his successor’s service and acceptance of salary amounted to a resignation and refusal to serve on his part, and he is bound by his acts. Otherwise, where all parties acted in good faith, his silence would place the 'burden on appellant city of paying two salaries, one to the party who actually served in the capacity of chief of police and earned’it and the other to a chief of police who did not serve or offer to serve, but who willingly walked away without protest and allowed another to do his work. Even though the ordinance was void in fixing a one-year instead of a two-year term for chief of police, appellee’s act precluded him from recovering the balance of the salary attached to the unexpired term.
On account of the error indicated, the .judgment is reversed, and the cause of action is dismissed. | [
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Mehaeey, J.
Jeff Duty, deputy prosecuting attorney for Benton County, Arkansas, on May 22, 1931, filed ‘with the justice of the peace, F. P. Galbraith, the following information, charging Butler Hurlock, M. C. Morris and John Elrod with misdemeanor: “The said Butler Hurlock, M. C. Morris and John Elrod, in the said county of Benton, in the State of Arkansas, on or about the 26th day of April, 1931, did unlawfully and wilfully fail and refuse to secure a regular valid license issued by the Arkansas Real Estate Commission authorizing the above-named parties to act as a real estate broker or brokers or real estate salesman or salesmen in the State of Arkansas, and the above-named parties assumed, advertised and did act as such real estate brokers or salesmen without having secured such valid license from the Arkansas Real Estate Commission.”
On July 10 the case ag'ainst appellees was tried, and the justice of the peace held the law invalid and unconstitutional and discharged the defendants. The deputy prosecuting attorney prayed an appeal to the circuit court, and the appellee, Butler Hurlock, filed a motion in the circuit court to dismiss the action, on the ground that act 148 of the Acts of 1929, as amended by act 142 of the Acts of 1931, is unconstitutional and void for the following reasons:
“(1) Because the acts with which defendant is charged with committing do not constitute a public offense, and
“(2) Because said act is against public policy and void, and
“(3) Because by said act it is attempted to confer the power upon the State of Arkansas, or upon any member of the Real Estate Commission, its secretary, or any citizen of the county holding a license, as authorized by said act, in the name of the State of Arkansas, to appeal from an adverse decision in a justice court. ’ ’
The circuit court dismissed the cause on the ground that the act under which appellees were prosecuted was unconstitutional and void, because said act conferred the right of individuals to appeal in behalf of the State.
Appellee’s motion was sustained, and the cause dismissed because the law is unconstitutional and void, and the State prayed an appeal, which was by the court granted.
Act 148 of the Acts of 1929 and act 142 of 1931 are found in Castle’s Supplement, 1931, §§ 838a to 8381.
Appellee first contends that the acts with which defendant is charged with committing do not constitute a public offense. “A public offense is any act or omission for which the law has prescribed a punishment. ’ ’ Crawford & Moses’ Digest, § 2294.
The act provides that a person violating it shall, upon conviction, be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than $25 and not more than $500, or by imprisonment for a term not to exceed six months, or by both such fine and imprisonment in the discretion of the court.
The statute, after defining felony, provides all other public offenses are misdemeanors. Crawford & Moses’ Digest, § 2297.
It therefore clearly appears that the acts charged constitute a public offense, as defined by the statute.
The presumption is that an act passed by the Legislature is constitutional, and it must be so held by the courts unless it appears to be in conflict with some constitutional provision.
A statute will not be held to be invalid unless it is either expressly or impliedly forbidden by the Constitution. Bush v. Martineau, 174 Ark. 314, 295 S. W. 9; Ark. Rd. Commission v. Casteter, 180 Ark. 770, 22 S. W. (2d) 993; Dabbs v. State, 39 Ark. 353; Moore v. Alexander, 85 Ark. 171, 107 S. W. 395; Webb v. State, 176 Ark. 722, 3 S. W. (2d) 1000; Hargraves v. Solomon, 178 Ark. 11, 9 S. W. (2d) 797.
In discussing the police power of the State and the right of the Legislature to enact laws thereunder, this court said: “In the exercise of this "power, the States have always regulated certain kinds of business, and absolutely prohibited others. The power to prohibit any business which is dangerous to public safety, health, or morals, has never been denied, and the power to regulate any business in which the public is interested is also sustained.” Williams v. State, 85 Ark. 464, 108 S. W. 838, 26 L. R. A. (N. S.) 482, 122 Am. St. Rep. 47; Little Rock v. Barton, 33 Ark. 436.
It is true that the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare.
If an act of the Legislature is neither expressly nor impliedly prohibited by some provision of the 'Constitution, a court cannot declare it invalid. An act cannot be held void because, in the opinion of the court, it might violate the best public policy. As to whether a law is good or bad law, wise or unwise, is a question for the Legislature, and not for the courts. Lewis’ 'Sutherland Stat. Const., vol. 1, p. 136.
The act expressly provides for an appeal from an adverse decision from a justice of the peace. It is contended, however, that, under § 3381 of Crawford & Moses’ Digest, the State cannot appeal from judgments of the justice court.
If this act did not provide for an appeal, and there was no other statute enacted subsequent to the enactment of § 3381, appellant’s contention would be correct, but there is nothing in the Constitution prohibiting the Legislature from authorizing the State to appeal from a judgment of the justice court, and the statute under consideration expressly authorizes an appeal.
The Constitution provides that appeals may- be taken from the final judgments of the justice of the peace to the circuit court under such regulations as are now, or may be provided by law. Section 42, art. 7, Constitution of Arkansas. This section gives the Legislature the right to regulate the manner of taking appeals from the judgments of justices of the peace, and the Legislature can provide any manner of taking such appeals that to it may seem proper.
Section 12 of act 148 provides that, if any section, sentence, clause, phrase, or requirement of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions thereof.
This court has frequently held that, when a statute is unconstitutional in part, the valid portion of an act will be sustained if complete in itself, and capable of being executed in accordance with the apparent legislative intent. Alexander v. Stuckey, 159 Ark. 692, 253 S. W. 9; Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769.
There are many other cases that might be cited to the same effect. In the act here under consideration, the act is capable of being executed in accordance with the legislative intent without the section conferring upon individuals the right of appeal. Although the Constitution authorizes the Legislature to provide for appeals from the justice court, it is not necessary to decide whether they might give an individual the right to appeal in this case, because the appeal was actually taken by the prosecuting attorney.
Many authorities are cited by counsel, but most of these authorities have been referred to and reviewed in the cases above cited, and it would serve no useful purpose to review those cases again.
Our conclusion is that the act under which this prosecution was begun is a valid act, and the judgment of the circuit court is reversed, and the cause remanded for a new trial. | [
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Smith,*J.
This suit ivas brought by appellee against the following defendants: Mrs. L. E. Davis, as administratrix of the estate of Louis Davis, her deceased husband; Universal Automobile Insurance Company, hereinafter referred to as the insurance company; the Standard Oil Company of Louisiana, hereinafter referred to as the oil company, Horace Thornton, and W. H. Greene.
The suit arose out of the following facts. The plaintiff was driving in a northerly direction in a truck loaded with lumber. An oil truck belonging to the oil company was being driven along the same road in a southerly direction. Horace Thornton was driving this oil truck. Following this oil truck, and traveling the same direction, was an automobile owned by W. H. Greene, and driven by Louis Davis. The insurance company had issued to Greene a policy of insurance, which will hereinafter be discussed. Denton, the plaintiff, testified that he first saw the oil truck as it came over the top of a hill which the road traversed, and that this truck bore to the right of the road as it approached him, hut that it would not have struck his car, even though Thornton had not pulled over to the right. That just before the oil truck passed him he saw the car driven by Davis come from behind the oil truck, and that he turned his car to the right as far as he could — so far, in fact, that he ran the wheels on the right side of his truck off the road. It was getting dark, and the oil truck had its light on, and was traveling at a moderate rate of speed. Just as plaintiff turned his car to the right as far as safety permitted, Davis drove his car between the trucks, and, as space was not afforded for its passage, a collision occurred between Davis’ car and plaintiff’s truck. The oil truck passed on in safety without being involved in the collision. Davis was killed as a result of the collision, and plaintiff was seriously injured. He recovered judgment against all the defendants for $2,000, and all have appealed except Greene. No contention is made that the judgment is excessive.
Liability against Davis is asserted upon the ground that he negligently and recklessly drove his car between the passing trucks, and the testimony fully sustains that contention. Two witnesses who were riding in the car with Davis testified that they first saw the oil truck when, it was a hundred or two hundred yards ahead of them, and that the oil truck was on the right-hand or west side of the center of the road, and continued on that side all the time. Davis overtook the oil truck just before it passed the plaintiff’s truck, and as he turned to the east or left side of the road the collision occurred. Davis at the time was driving' about 35 or 40 miles per hour.
Thornton testified that he was going down grade on the west or right-hand side of the hill, and met Denton coming up the grade on the east side, and that he had gone 30 or 40 feet beyond appellee’s car when the collision occurred, and that he did not know the Davis car was attempting to pass him. • *
Liability against the oil company is asserted upon the theory that Thornton, the driver of its truck, was negligent in not anticipating that Davis was trying to pass him just after the cars reached the top of the hill, and in not affording Davis space so to do hy turning farther to the right; At the place of the collision the road was slightly less than 26 feet wide, with low embankments and sloping ditches about 8 or 10 inches deep. The road was straight. Thornton first saw in his mirror the light of the Davis car when it was about 2001 yards away, and knew that it was overtaking him. Appellee says the oil company truck was traveling about 40 feet per second, which is about 27 miles per hour, and that the Davis car was traveling about 60 feet per second, which was nearly 41 miles per hour. The testimony is conflicting as to whether Davis blew his horn. Thornton testified that he did not hear it. It is appellee’s theory that when the Davis car reached the crest of the hill Thornton knew it was following him, and knew, or should have known, that Davis was about to pass him, and should have driven his car to the extreme right-hand side of the road to give sufficient space for passing.
Under these facts the jury was warranted in finding that the collision was the result of Davis’ negligence, and that appellee was not guilty of any negligence con■tributing to his injury, and the judgment against the Davis estate must therefore be affirmed.
• "We are also of the opinion that, under the facts stated, the' oil company is not liable, and that the sole cause of the collision was the negligence of Davis.
At § 121, vol. 3-4, page 194, Huddy’s 'Cyclopedia of Automobile Law, it is said: “The driver of a motor vehicle overtaking another vehicle is in duty bound to look out for the car ahead, and, if such vehicle is motor driven, he must realize that the driver is engaged in hándling a high-power, dangerous machine, requiring constant attention and quick action, and that his lookout is ahead and not behind. An automobilist has no right to assume that the forward conveyance will turn out to permit, him to pass. He cannot drive his car ahead and take the chance that the forward vehicle will move to one side in time to permit him to make a safe nassage. It is the duty of the rear driver to keep a safe distance between the vehicles, and to keep his machine well in hand, so as to avoid doing injury to the machine ahead, so long as the driver is proceeding in accordance with his rights. Before attempting to pass the vehicle ahead, the rear driver must see that the road is clear, and, if there is not sufficient room for a safe passage, or the driver ahead does not turn out so as to afford opportunity to pass, or if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his car to a stop if necessary. In passing, the overtaking car should leave reasonable space between it and the overtaken vehicle, so as to avoid any danger of striking it.”
The numerous cases cited in the note to the text quoted sustain the text.
A similar statement of the law appears in § 8, of chap. 21, entitled, “Following, Overtaking, and Passing Other Vehicles,” in vol. 1 of Blashfield’s Cyclopedia of Automobile Law, page 433.
The relative rights and duties of drivers of' cars passing each other on the highways of the State have been declared in this State by a statute on the subject.
At the 1927 session of the G-eneral Assembly of the State of Arkansas a comprehensive act was passed, entitled, “A Uniform Act Begulating the Operation of Vehicles on Highways.” Act 223, Acts 1927, page 721. Section 13 of this act reads as follows:
“13. Limitations on Privileges of Overtaking and Passing.
“ (a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.
“ (b) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of 500 feet.
“(c) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing nor at any intersection of highways unless permitted to do so by a traffic or police officer.”
In the case of Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. (2d) 729, it was said that the law of the road is that the automobile in front has the superior right to the use of the highway, even for the purpose of leaving it on either side to enter intersecting roads and passageways, and the traveler behind must, in handling his car, do so in recognition of the superior right of the traveler in front. See also Kittrell v. Wilkerson, 177 Ark. 1174, 9 S. W. (2d) 788; Bourland v. Caraway, 183 Ark. 848, 39 S. W. (2d) 316.
Under the law of this State, as declared in the statute quoted above, Davis should not have attempted to pass the oil company truck until he had seen that he could do so safely, and his action to the contrary, under the undisputed evidence in the record before us, must be held to be the sole proximate cause of the collision. It follows therefore that it was error not to have directed a verdict in favor of the oil company and of Thornton, the driver of its truck.
As has been said, judgment was rendered against the insurance company, which issued the policy which Greene carried, and the insurance company has appealed.
Two of the relevant paragraphs of the policy mentioned read as follows:
First: “The company does hereby agree to insure the assured named and described in the ‘Schedule of Statements’ herein, for the term therein specified, against direct loss by reason of liability imposed by law upon the assured for damages by reason of the ownership or maintenance of the automobile described in statement 6 of the ‘Schedule of Statements,’ and the use thereof for the purposes described in statement 7 of the 1 Schedule of Statements’ (including loading and unloading thereof), to an amount not exceeding the limits hereinafter stated, if such loss be sustained on account of bodily injuries or death, etc.”
Second: “It is understood and agreed that the insolvency or bankruptcy of the assured or other persons entitled to benefit hereunder shall not release the company from the payment of damages for injuries or loss occasioned during the life of the policy. In case execution against the assured or such other defendants is returned unsatisfied in an action brought by the injured (or if death results from the accident by such other parties in whom the right of action vests) an action may be maintained by the injured person (or such other parties in whom the right of action vests) against the company for the amount of the judgment of said action not exceeding the amount of the policy.”
At the 1927 session of the General Assembly an act was passed to regulate accident and liability insurance companies doing business in this State. Act 196, Acts 1927, page 667. This act reads as follows:
“Section 1. On and after the passage of this act no policy of insurance against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable, or against loss or damage to property caused by horses or by any vehicles drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable, shall be issued or delivered to any person in this (State by any corporation authorized to do business in this State, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss oecasionéd during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured, or his or her personal representative in ease death, results from the accident, because of such insolvency or bankruptcy, that then an action may be maintained by the injured person, or his or her personal representative, against such corporation under the terms of the policy for the amount of the judgment in the said action not exceeding the amount of the policy.
“Section 2. Whenever any policy of insurance shall be issued in this State indemnifying any person, firm or corporation against any actual money loss sustained by such person, firm or corporation for damages inflicted upon the property or person of another, such policy shall contain a provision that such injured person, or his or her personal representative, shall be subrogated to the right of the assured named in such policy, and such injured person, or his or her personal representative, whether such provision be inserted in such policy or not, may maintain a direct cause of action against the insurance company issuing such policy for the amount of the judgment rendered against such assured, not exceeding the amount of the policy.”
It thus appears that § 2 of this act writes into the policies named in § 1 the provisions of § 1, whether they are recited in the policies or not.
Section 1 of this act is copied almost literally from an act passed in New York in 1918. (Laws of 1918, chap. 182), and the constitutionality of the act was upheld by the Supreme Court of the United States in the case of Merchants’ Mutual Automobile Liability Insurance Co. v. Smart, 267 U. S. 126, 45 S. Ct. 320, 69 L. ed. 538. The New York statute has no section corresponding to § 2 of our act, set out above.
The policy issued to Greene was evidently prepared to conform to the New York statute, as well as our own, and it contains the paragraph concerning the insolvency of the assured, set out above.
It was insisted — and the court below held — that the provisions of this policy, read in conjunction with our statute, entitled plaintiff to bring an original or primary suit against both. Greene and the insurance company, and, as has been said, there- was a judgment against both.
The case of New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S. W. 182, was one in which an original suit was brought against both the insured, whose negligence was alleged to have occasioned the plaintiff’s injury, and an insurance company which had written a policy of insurance very similar to the one here sued on. It was alleged and proved in that case, as it was also in the instant case, that the insured defendant was insolvent, and it was insisted there, as it is here, that the provision in regard to insolvency, that fact being alleged, authorized the joinder of the insurance company in the suit brought to determine the liability of the insured and the extent thereof.
After a review of the authorities, it was said by the Supreme Court of Kentucky that the policy provided indemnity only against loss, and not against liability for loss, and did not authorize the joinder of the insurance company in a-direct suit and, in that connection, said: “Paragraph G” (the one relating to the insolvency of the assured) “goes on to provide that the claimant, in the event of insolvency or bankruptcy of the assured, shall have the right to maintain an action against the company for the recovery of sueh indemnity. Such indemnity, as we have seen, is the indemnity against loss from liability. This being true, we think these observations of the Supreme Court of Arizona, in the case of Smith Stage Co. v. Eckert, 21 Ariz. 28, 184 Pac. 1001, 7 A. L. R. 995, are quite apposite: ‘It also appears from what we have said that the words ‘loss and damage’ mean a real loss — one, at least so far as the indemnity company is concerned, that has been put into judgment against the assured.’ Paragraph G, in our judgment, was not intended to change the effect of the policy in any respect except to provide that, if after a judgment has been obtained against the assured and the injured party was then unable to collect that judgment by reason of the insolvency or .bankruptcy of the assured, then and only in that event the insurance company would be responsible to the injured party in a direct action. ’ ’
We concur in this view, and the following cases construing similar policies are to the same effect: Smith Stage Co. v. Eckert, 21 Ariz. 48, 184 Pac. 1001; Hanson v. Haymann, (Tex. Civ. App.), 280 S. W. 869; Bowers v. Gates, 201 Mich. 146, 166 N. W. 880; Aplin v. Smith, 197 Iowa 388, 197 N. W. 316; Van Derhoof v. Chambon and State Farm Mut. Auto. Ins. Co., 8 Pac. (2d) 925; American Auto. Ins. Co. v. Struwe, (Tex. Civ. App.) 218 S. W. 534.
We do not think the provisions of the policy sued on, or those of our statute, above quoted, in regard to the insolvency of an insured, whose wrongful act caused loss or damage, were intended to confer an original cause of action against the insurer to recover the loss or damage, nor does the fact that it was alleged and proved that the tortfeasor — the insured — was insolvent affect either the recitals of the statute or the obligations of the contract of insurance, although it is known in advance, and alleged, that a nulla bona return will be made upon an execution which may be issued upon any judgment recovered against the insured. The statute does not appear to contemplate that the insurer shall be made a party to an original suit to determine the question of liability and the extent thereof, but does provide that, after an execution is returned unsatisfied (which execution could not be issued until after there had been a judgment upon which to base the execution), “that then an action may be maintained by the injured person, or his or her personal representative, against such corporation under the terms of the policy for the amount of the judgment in said action not exceeding the amount of the policy,” and this right of action is not defeated by the insolvency or bankruptcy of the person insured, notwithstanding the fact that the policy would otherwise be one of indemnity merely.
In other words, the effect of the provisions of the. policy and of the statute regarding insolvency is that, notwithstanding that the policy is one of indemnity to 'the insured, the fact that he was insolvent or bankrupt, and thereby unable to respond in damages for his wrongful act, shall not operate to relieve the insurer. If, by an execution issued upon a judgment for the loss or damage, the injured plaintiff could collect, and did collect, his damages, he would not be concerned abont the policy of insurance. But, if he is unable to collect his judgment, “then an action may be maintained” against the insurer. Until the injured party has recovered a judgment to compensate his “loss or damage,” he can have no cause of action against the defendant indemnitor, which is neither a necessary nor a proper party to a direct suit for the damages.
We have here a policy conforming to the statute which created a cause of action which would not otherwise exist, and the cause of action thus created can only be maintained under conditions specified, which are that, upon an execution' being returned unsatisfied, the plaintiff in the judgment may maintain an action against the insurer for the amount of the damage not exceeding the amount of the policy.
We are cited to certain cases which it is asserted have held to the contrary, but there are points of difference in the policies construed or in the applicable statutes of the States where the cases arose. At any rate, we have given our statute what we regard as a fair and proper construction, and that is, that the insurer may be sued only upon a judgment previously recovered against the insured, in which suit the insurer was neither a necessary nor a proper party.
The provision of the policy that “ * * * an action may be maintained by the injured person (or such other parties in whom the right of action vests) against the company for the amount of the judgment of said action not exceeding the amount of the policy” does not contravene our statute, but conformed to it, and, as no original or direct cause of action is conferred against the indemnitor, the judgment against it must be reversed, and that cause of action will be dismissed as having been prematurely brought. This order does not, of course, affect the right' of appellee to sue the insurance company, if unable to collect his judgment against the Davis estate. | [
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Butler, J.
On the 15th day of December, 1923, Lozier Lockridge, appellee, instituted this suit against the appellant, Stuttgart Rice Mill Company. In his complaint the appellee declared on a verbal contract alleged to have been entered into between himself and the appellant, acting through its president, J. C. Lloyd, by which he was to deliver to the appellant rice grown in the year 1920, the same to be milled and sold by the appellant for his account. For this service appellant was to receive $1 per barrel and the by-products consisting of bran and polish; that appellant undertook to mill said rice immediately and to sell the milled product at once; that, as an inducement for appellee to enter into the agreement with the appellant, appellant represented that it could mill and sell the rice without delay, and that appellee would thereby be enabled to realize net more-for his product than if he should sell it in the rough; that at that time there was an active market for rough rice; that he entered into this contract on or before the 15th day of November and began to deliver the appellant rice completing delivery on or before the 29th day of November, 1920; that on the date of his agreement and during the time of the delivery of the rice and for a considerable time subsequent thereto there was an active market for clean rice of the kind and grade of that which he had delivered to the appellant, and, if the appellant had performed its agreement, it would have been able to realize for appellee’s account a net sum of $1.27 per bushel.
Appellee further alleged that, after the appellant had milled the rice, he demanded an accounting, which was not made until on or about the 29th day of March, 1921, at which time appellant accounted to appellee for $2,495.92, representing to him that this was all that appellant had realized from the sale of his product; that the appellant sold appellee’s rice at a much higher figure than the price which it rendered on an accounting and fraudulently concealed the fact that it had sold rice at a higher figure, which, after all proper charges had been deducted, would have returned to appellee a net sum of $1.27 per bushel.
Appellee further alleged that, if the rice had not been sold at a figure sufficient to yield him the return aforesaid, appellant breached its agreement in failing to market the rice with reasonable promptness after the same had been milled, to appellee’s damage in the sum of $5,000.80, the difference between what he should have received had the appellant performed its contract with him and what it actually accounted for. Appellee further alleged that, until the appellant rendered him an accounting in March, 1921, he did not know that it had not sold his rice at the time it had agreed to sell it and did not know what actual disposition was made of the rice, but alleged that the appellant either sold it at a figure to yield him $1.27 per bushel net, fraudulently accounting to him for a different lot of rice, or that appellant fraudulently failed and neglected to sell his rice with reasonable promptness after same had been milled in accordance with the agreement, to his damage in the sum aforesaid.
The first testimony taken in the case was the deposition of the appellee given on the. 19th day of May, 1927. From time to time thereafter testimony was taken in the form of depositions down to 1930 or 1931. After all the testimony was in, the appellee filed his motion to amend the complaint to conform to the proof, and on the 7th day of April, 1931, filed an amended complaint in which the allegations of the original complaint were reiterated and the further allegation was made that appellant fraudulently failed to account for 900 bushels of rice, failed to account for the complete proceeds resulting from the sale of the rice, and failed to report the correct amount of mill product, and unlawfully converted a portion of the rice delivered by the appellee to its own use; that, by reason of this unlawful misconduct and fraud, the appellant forfeited its right to compensation of $1 a barrel and the by-products for milling the rice.
To this amended complaint answer was made by the appellant and objections filed to the testimony of the deposition of witnesses B. E. Chaney, George E. Carlson, ■Oak H. Rhodes, and to parts of the testimony of the appellee. The case was thereupon submitted to the court, and a decree was rendered on May 11, 1931. The court found, first, “that the rice in controversy was of superior quality for which appellee had been offered $1.10 per bushel prior to delivery to defendant; that J. C. Lloyd was president of the Stuttgart Rice Mill Company; that, as an inducement to plaintiff to deliver rice to defendant, plaintiff was guaranteed a minimum of $1.25 per bushel, and that the president was authorized to negotiate contracts of this kind. Second, the court found that the evidence shows that irregularities and mismanagément on the part of those in charge of defendant mill amount to a fraudulent transaction against, the plaintiff; third, that the defendant received from the plaintiff 5',401 bushels of rice; that the rice was delivered upon verbal toll milling agreement with no specific milling charge agreed upon; that the customary milling! charge for milling rice was $1 per barrel and by-products; that the defendant retained the by-products and is therefore only entitled to milling charge aforesaid as a credit upon the judgment hereinbefore rendered; that plaintiff is entitled to interest from the 29th day of March, 1921, at the rate of six per cent, per annum from date until paid ; fourth, that defendant is entitled to a credit upon the amount guaranteed plaintiff of $2,495.22 for moneys paid him by defendant on or before March 29, 1931, and $1,500.50 toll milling charges on the amount of rice delivered by plaintiff to defendant.
Judgment was rendered for $2,755.53, principal, with interest from the date aforesaid, from which decree both the appellant and the appellee have appealed.
The complaint alleged, and the testimony on the part of the appellee tended to show, that he and one Finch his tenant, each owned a one-half interest in the rice delivered to appellant, the total amount of which was 11,806 bushels, half of which was appellee’s part amounting to 5,903 bushels. Both appellee and Finch testified that they weighed and loaded on the cars at Goldman this amount of rice which was shipped to appellant’s mill at Stuttgart. The original memorandum of the weights was asked for and not produced. The explanation given by the appellee for his failure to do so was that he had given them to his lawyer. It was shown on behalf of the appellant that the statement of the rice accounted for was obtained from the records made by the receiving clerk, and that the rice was weighed on the city scales. By the fourth finding of fact the chancellor found against the contention made by the appellee as to shortage in weights, finding the amount of rice received to be 5,401 bushels as shown by the books of the appellant. We are of the opinion that this finding was supported by the evidence.
The first finding of fact made by the chancellor is the one upon which the decree was based. Appellee testified to a certain conversation between himself and J. C. Lloyd, president of the appellant company, occurring 6y2 years before, and not in the presence of any other person and after Lloyd, the only one who could testify directly to the contrary, had died. That statement was that at the Arkansas County Bank in Stuttgart “he called me in at the bank and asked me what I could get for my rice, and I told him I could get $1.10 and he told me there was no use to take that. If you will deliver it to the .Stuttgart Mill, I will guarantee you $1.25 in thirty days, and it might bring $1.35.” I had been offered $1.10 per bushel for my rice by southern mill, and Mr. Lloyd held my note which he had put up with the Arkansas County Bank as collateral. I did not sign any toll milling agreement. After my conversation with Mr. Lloyd, we loaded my rice on the cars at Holdman and shipped it to the Stuttgart Mill.
Oak H. Rhodes, testifying on behalf of the appellee, said in substance that he recalled- something being said by Lloyd about Lockridge’s rice, and he gained the impression, as he then remembered, that this rice was bought and was not handled under the toll milling contract.
L. EL Harper, who was the shipping clerk in 1920, stated in effect that both he and Lloyd knew that more of appellee’s rice was received than accounted for, and that Lloyd had promised him (Harper) he would correctly settle with appellee and pay him for all his rice.
There was other testimony to the effect that rough rice was selling at the time appellee delivered his at from $1.10 to over $1.25 per bushel, and that there was then a market for rough rice, and that there was no considerable decline in the price until after January 1,1921.
Finch, the tenant of appellee and owner of one-half the rice, testified that he received $1,000 more money than Lockridge, and he and Lockridge further testified as to a conversation said to have taken place between the appellant’s bookkeeper and Lockridge in which the bookkeeper, after an examination of the books, said that he thought the rice would net Lockridge at the rate of $1.27 per bushel.
It is contended by counsel that all of this testimony tends to corroborate the contention of the appellee that the rice was delivered at a guaranteed price, and that the testimony relative to the sale of rice, the excess of amount of money paid Finch over Lockridge, and that relating to the alleged conversation with the bookkeeper, justified the chancellor in the finding that Lockridge’s rice was delivered at a guaranteed price.
It is impracticable, without unduly lengthening this opinion, to review and analyze this testimony. We have, however, examined it with care, and cannot assent to the contention made by counsel for the appellee. Clearly the overpayment made to Finch was an error of the bookkeeper in failing to take into consideration an account charged against Finch on the books of the appellant and in failing to deduct the same from the amount due him. As to all the other evidence claimed as corroborative and supporting the contention of appellee, we find the testimony vague and uncertain, general in its nature and inconclusive, as is not strange, when it is a relation from memory of the events occurring some six or seven years in the past.
There are circumstances in evidence not dependent upon human memory which tend strongly to refute the testimony of Loabridge relative to the alleg-ed guaranty of $1.25 per bushel.
He was a member of the Southern Rice Growers’ Association, and was bound by the contract of the association with rice mills, known as the ‘ ‘ Toll Milling Contract” (Joy Rice Milling Co. v. Brown, 167 Ark. 205, 268 S. W. 1), under the terms of. which the mills were to act as its agent and that of its members in milling and marketing rice, receiving a stipulated price for the milling and certain charges for selling, which charges were recognized and allowed by the chancellor.
A large crop of rice was produced in 1920, and the price of the product broke sharply from the previous high level occasioned by various causes — the large crop, the influx of foreign rice on European markets, and the general deflation in prices in 1920, which is recent history. In order to stabilize prices, the toll milling contracts were entered into between the Rice Growers’ Association and the rice mills.
The evidence fails to show the amount of rice appellant had on hand to mill at the time it received appellee’s, or that it failed to mill and place on the market appellee’s rice as soon as possible. He received payment for his rice by checks issued to him and the Arkansas County Bank in March, 1921, the last being dated March 29, 1921. It appears from the allegations in appellee’s complaint and by his testimony that on or about that date the appellant claimed that these checks were in full settlement of all that was due him for his rice. On the reverse side of these, checks was a memorandum showing the lot number, the account sales, charges, and net amount for which the checks were drawn. These checks were accepted without protest, and, so far as the record discloses, no demand was made upon the mill for an accounting. It was apparent from the face of the checks that the rice brought far below $1.25 a bushel, and, if the guaranty was as appellee claimed, he lmewr then that it had not been complied with, and still he remained silent. He does not claim to have done anything about it for about a year, when he stated he took the matter up with his lawyer, who delayed taking action although often importuned to do so. The fact remains, however, that no action was taken until December, 1923, after Lloyd had died in November preceding, and even then no allegation was made of the guaranty of $1.25 per bushel. It was not until May, 1929, that appellee first made any such claim. We are of the opinion that appellee delivered his rice under the toll milling agreement ■to be milled and marketed in the usual course of business, and the circumstances do not support the claim of a guaranty of $1.25 per bushel, and there is no evidence of a failure by the appellant to mill and market appellee’s rice as speedily as could be done or that it accounted to appellee for a less price than it actually received. The finding of the chancellor therefore (finding No. 1 aforesaid) is against the preponderance of the testimony.
T. A. Patrick, an accountant, whose testimony is not disputed, in checking the account of Lockridge and Finch on the books of the appellant discovered some errors in bookkeeping, a part of which was in favor of the appellant and a part against it, and in the credit for the receipts of a certain grade of rice called “brewers’ rice.” He prepared a statement of his finding showing that the errors amounted to the sum of $753.68. A part appear to have been errors in extension while the credit given for the brewers’ rice was under the mistaken belief of the appellant that it had only to account for brewers’ rice at its actual market price on the date it was sold. In June of 1920, however, it seems that the appellant contracted to sell the brewers’ rice handled by it from the crop of 1920 at four cents a pound and that brewer’s rice obtained from milling the rice of appellee was a part which the appellant delivered under its' contract of June, 1920, and for which it received four cents per pound. At the time the appellant made the contract for the sale of brewers’ rice it had no rice of its own on hand with which to fill the order, and filled it in part by rice received from the appellee which it was to handle as the latter’s agent. Lockridge delivered the rice to the appellant to be milled by it and the finished product sold by it for his account, which created the relationship of principal and factor. Therefore, appellant rested under the duty, because of the confidential relationship existing, not to speculate on the product of its principal, but to account for the amount actually received by it, although this was the result of a trade made for its own benefit previous to the receipt of the rice grown in 1920. It cannot be permitted to make a profit in excess of the toll and commission allowed by the toll milling contract. 25 C. J., Factors, & 35, and cases cited in note 28.
The figures arrived at by Patrick, the accountant, are not disputed, and was the joint account of the appellee and his tenant, Finch. Appellee was therefore entitled to receive one-half of the amount found by Patrick from his examination of the books that represented the errors in bookkeeping and the contract price for the brewers’ rice sold, with interest at 6 per cent, from the 29th day of March, 1921.
The evidence indicates that about 1923 an investigation was made of the conduct of the persons in charge of the appellant’s mill, and that some of these persons were prosecuted, but with what result is not shown. The evidence raises ground for grave suspicion of fraudulent practices over a period of a number of years on the part of those persons, and would indicate that large amounts of rice were fraudulently converted by these persons to their own use, and that the growers of rice in the aggregate were defrauded of large quantities of rice. The testimony, however, as to all of these transactions is vague and uncertain, and, with the exception of the testimony of Harper, fails to establish any fraudulent diversion of the rice of appellee, to which testimony the chancellor attached no weight, as his finding as to the amount of rice accounted for was in favor of the appellant. His finding therefore “that the evidence shows that irregularities and mismanagement on the part of those in charge of the defendant mill amounted to a fraudulent transaction against the plaintiff” was without evidence to support it.
“Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it. It need not be shown by direct or positive evidence, but may be proved by circumstances. ‘Slight circumstances or circumstances of an equivocal tendency, or circumstances of mere suspicion, leading to no certain results,’ are not sufficient evidence. ‘They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting.’ They may be sufficient to excite suspicion, but suspicion is not the equivalent of proof. Circumstances necessary to prove fraud must be such as naturally, logically and clearly indicate its existence.” Bank of Little Rock v. Frank, 63 Ark. 16, at page 22, 37 S. W. 400, 401; Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; Dufresne v. Paul, 144 Ark. 87, 221 S. W. 485.
It is unnecessary to pass upon the question of the competency of the testimony of the appellee and other witnesses raised by appellant’s motion, for the reason that, treating this testimony as competent, we are of the opinion that, considering it in connection with the other circumstances in proof, it fails to make out appellee’s case.
The question was raised by the appellee as to certain depositions having been filed out of time.- It is quite evident that -the chancellor considered these depositions, "and had before him a copy of the same, and that the originals were filed in court before the decree was entered.
From the'views expressed, it follows that the decree of the trial court must he reversed, and the cause is remanded with directions to enter a judgment in favor of the appellee for one-half the amount of the discrepancy in the credits he should have received, as shown by the statement of the accountant Patrick. | [
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Mehaffy, J.
The appellee on June 3, 1930, was in the employ of the appellant as a brakeman on a freight train running from North Little Rock, Arkansas, to Pop lar Bluff, Missouri. While in the service of appellant as such brakeman, he was engaged in switching a part of the train at Newport, Arkansas, and was thrown from one of the cars and injured.
The appellee was at the time of the injury engaged in interstate commerce and was assisting in operating a train which was carrying interstate commerce, and the suit was therefore brought under the Federal Employers’ Liability Act, and a recovery for his injury sought under the provisions of that act.
Appellee alleged that he was injured by the carelessness and negligence of the appellant; that there were about 60 cars in the train when it reached Newport, Arkansas ; the train headed in on a side track, cut off about 35 cars, went through a switch at the north end of the passing track out on the main track.
It was discovered that the main line was occupied, and it became necessary to back the 35 cars again into the passing track.
The appellee, in the performance of his duty, was riding on the last car to protect the train as it backed into- the passing track. It was alleged that, on account of the carelessness and negligence of the engineer, E. J. Zimmerman, in stopping the train in an unusual and violent manner, appellee was thrown from said car to the ground, and injured in such a way that he will never be able to do or perform manual labor.
He was thrown with such violence and force that it resulted in an injury to his spine, spinal column, and spinal cord, crushing and breaking, among other injuries to the spine, the first lumbar vertebra, thereby obliterating the space between the first and second lumbar vertebrae, also narrowing the space between the first lumbar and the vertebra above it, causing said spinal column to become displaced and out of line at and below the place of injury, also injuring and producing a malformation of the second lumbar vertebra, also otherwise fracturing and injuring the second, third, and fourth lumbar vertebrae, fracturing the ninth and eleventh ribs on the left side, resulting in a paralysis of the bladder and bowels and other organs of the body, including his lower limbs. His nervous system was shattered, his injuries making a permanent physical wreck of him.
At the time he received the injury, he suffered great and excruciating pain of body and anguish of mind, and will continue to so suffer throughout the remainder of his life. At the time he was injured he was 39 years of age, was strong and able to perform, and was performing, hard manual labor for a livelihood, and was earning $250 per month; that, on account of said injury, he will not be able to do or perform labor of any kind in the future; that he had been damaged in the sum of $75,000, for which he prayed judgment.
The appellant answered, denying all the material allegations in the complaint as to negligence, and as to his injuries, and interposing the defenses of contributory negligence and assumption of risk.
At the trial it was admitted that the appellant is a corporation; that it was engaged in interstate commerce at the time of the alleged injuries, and that the appellee was engaged in interstate commerce at the time of the accident:
There was a verdict and judgment for $60,000, and this appeal is prosecuted to reverse said judgment.
The appellant’s first contention is that the evidence is insufficient to sustain the verdict in favor of appellee, and that the court erred in refusing to give appellant’s instruction No. 1, which instruction directed a verdict for the appellant. Appellant states that, under the Federal Employers’ Liability Act, Congress took possession of the field of' employer’s liability to employees engaged in interstate commerce by rail; that all State laws on the subject are superseded, and that the rights and obligations of every plaintiff invoking the provisions of the act are dependent upon it and applicable principles of common law as interpreted by Federal courts, and that therefore the character and sufficiency of evidence to establish negligence is not subject to control of the State.
It is argued that the injury complained of must have resulted in whole or in part from the negligence of one or more of the employees, and that proof of such negligence is essential to recovery. This statement of the law by appellant is correct.
This court, in a recent case, said: “This suit is brought under the Federal Employers ’ Liability Act, and, since this act does not define negligence, the question of whether the acts complained of amount to negligence, is to be determined according to the common law, and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence. ’ ’ Mo. Pac. Rd. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849; St. L.-San Francisco Ry. Co v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102.
In the case of St. L.-S. F. Ry. Co. v. Smith, supra, relied on by appelant, it is stated that the rule governing the State courts is well stated in the case of C. M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564. The Supreme Court of the United States in that case said: “It follows that, unless the evidence is sufficient to warrant a finding that the death resulted from the catching of deceased’s left foot under the bent part of the pipe line, the judgment cannot be sustained. As there is no direct evidence, it is necessary to determine whether the circumstances are sufficient to warrant a finding of that fact. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not themselves presumed. * * * The fact that deceased was run over and killed at the time and place disclosed has no tendency to show that Ms foot was caught. * * * The record leaves the matter in the realm of speculation and conjecture. That is not enough.”
Neither this court nor the Supreme Court of the United States will sustain a verdict based on speculation and conjecture.
The evidence in this case shows that the appellee was about forty years of age at the time of the trial, had been in the service of the appellant since 1910, and had been in the service altogether about 23 years, 21 of which he was a brakeman. At the time of his injury, he was swing brakeman on a train of about sixty cars, and rode the engine from Bald Knob to Newport. "When the train went into the passing track at Newport, according to his testimony, he got off the engine and caught back at the last car. The train pulled up in the passing track and stopped, clearing the crossing. After cutting off the cars, the train pulled up at the north end of the yard. Appellee was on the rear car with his right foot in the stirrup. The train could not get out far enough to get the rear car of the cut by the switch, so they could shove them into track 3. When the engineer stopped, appellee got off the car on the ground and walked around the end of the car. The engineer blew three short blasts of the whistle, meaning that he was going to back up, and then appellee looked around and could not see any one. Appellee got on the rear car to keep any one from being injured by backing up. He does not know exactly how far he backed, but he says that all at once a jar and a noise and all came together, and he was thrown doubled up in a knot, and fell on the rail ahead of the cars. He was riding on the last car from the engine with his right foot in the stirrup and left foot on the end of the grab-iron, and when the jar came, it all came at once. He tried to stay on, but was jerked off on the ground.
He was at the time where his duty required him to be. The train did not make an ordinary stop, but á very violent one, and he testified that he knew the engineer did not use the right brake on that cut of cars. Trains like that are equipped with two brakes, an independent and an automatic brake. The independent brake affects the engine and tender only; the automatic brake affects the whole train. The automatic brake should be used in operating a train with 35 cars. If used, it sets the brakes on all the cars at the same time. All the brakes take hold at the same time. The purpose of using the automatic brakes is to avoid jerking and hard stopping. If the independent brake is used, it will make a hard stop and jerk. It glues the engine to the rail, and the cars go along by themselves, and, of course, when they get to the last car, they will surely jerk like a whip.
A'ppellee could tell from the way the cars were stopped that the stop had been made by the use of the independent brake. If the automatic brake had been used, it would have applied the brake on the entire cut of cars.
When the independent brake was applied, the cars ran out as long as there was slack, and then jerked back. That was what threw him off. Appellee said at the time the cars were moving when he got on more rapidly than he was walking. They were moving at about the rate of five miles an hour. There is a difference in the action of the train when the independent brake is used from its action when the automatic brake is used.
Appellee testified that he had a right to believe that the engineer would handle the train so as not to jar him off, and that the engineer should have done so; that it was his duty to do so, but he did not do it; that appellee had no reason to suspect that he would stop- as he did.
Appellee also testified that it was not the custom and not usual and proper to stop the train violently like it was stopped when he was injured.
H. L. Walker testified that he worked for the appellant from 1919 to 1928 as switchman and brakeman; that he was familiar with the character of trains and engines that appellee worked on. The engine was the heaviest type of freight engine running into Little Rock. He testified at length about the rules with reference to stopping trains, and said that the rules required that, when stopping a long train, while backing at a moderate or low speed, to use a light reduction; keep the engine brakes from applying, and continue to use steam. The object is to prevent the slack from running out harshly. He testified the easiest way to control a train is with the automatic brake. The engine brake applies only on the engine and tender; that the use of the independent brake in backing a train of 35 cars would make a severe stop, and the further it goes back, the more severe it is, and the last car gets the hardest jolt; it is a violent stop, and that is not the ordinary way to stop a train.
This witness testified at length about the use of the automatic brake and independent brake, and when asked if he would not expect the use of the independent brake ordinarily in that kind of movements, he answered that he would not when they had the air lined up, because it is a very severe jolt. He was then asked: “But ordinarily he would?” and he answered, “No, sir; ordinarily he would not.”
M. Dumas, a witness, also testified that he had been in the service of the Missouri Pacific for 12 years, but that be was not employed now. He is familiar with the character of engines and trains used on through freights. He testified as to the effect of the use of the independent brake, and said it would be awful severe; that it would be hard to stay on; would be dangerous, it would come with such a jerk. He testified that he would not expect the engineer to stop the train, such a train as appellee was injured on, with an independent brake; that they were not supposed to use the independent brake except in emergency cases.
J. W. Bernard, employed by the Missouri Pacific from 1899 to 1929, testified that he was familiar with the kind of service being performed at the time of the accident, and that the proper brake for the engineer to use was the automatic; that stopping with the independent was very severe. He was asked: “When you have your train, and the air is coupled up through the train, the instructions are to use the automatic brake?” and he answered, “Yes, sir.” He stated that the way to use an independent brake to stop a train was to apply it very gradually, and give it time to let the slack run out easily. If you jam on the independent brake, the slack will run out suddenly and jerk the rear end.
P. G-. Steed, another witness, formerly employed by appellant as locomotive fireman and engineer, testified that in a back-up movement involving 35 cars, the engineer should use the automatic brake. In such movement it was the duty of the brakeman to be on the last car, and the engineer should know he was there. He testified on cross-examination that, when the air is coupled up, the automatic must be used; that you would use the independent brake handling a light engine or a very light bunch of cars.
E. J. Zimmerman testified for the appellant that he was the engineer at the time of the accident, and used the independent brake in making the stop; that he made a light application and then made a further application and stopped. He and a number of witnesses testified that the stop made at the timé of appellee’s injury was the ordinary stop, and, in effect, that it was not negligence.
Appellant says that the case of Ft. Smith S. & R. I. Rd. Co. v. Moore, 172 Ark. 353, 289 S. W. 6, was reversed by the Supreme Court of the United States on the authority of C. M. $ St. P. v. Coogan. The Supreme Court of the United 'States, in reversing the case, stated that it was reversed on authority of Gulf, Mobile & No. Rd. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, and C. M. & St. P. Rd. Co. v. Coogan. We have already called attention to the Coogan case.
In the other case given as authority for reversal of the Moore case, the Supreme Court of the United States expressly stated that there was no evidence that the engineer knew or should have known that Wells was not on the train, but was attempting to get on after it had started, and was in a situation in which a jerk of the train would be dangerous to him.
In the instant case, the engineer knew where appellee was, and knew he was in a situation in which a jerk of the train might be dangerous.
The court also said, in the Wells case, that the statement that there was a jerk was mere conjecture, and the court, continuing, said: “In short, we find that, on the evidence and all the inferences which the jury might reasonably draw therefrom, taken most strongly against the railroad company, the contention that the injury was caused by the negligence of the engineer is without any substantial support. In no respect does the record do more than leave the matter in the realm of speculation and conjecture.”
In the instant case there is evidence to the effect that the automatic brake should have been used, and that appellee was where his duty required him to be, on the last car, and that the engineer knew he was there. There is therefore substantial evidence of the negligence of the engineer causing the injury to appellee. A verdict will not be sustained either by the Supreme Court of the United States or this court on speculation or conjecture, nor where there is only a scintilla of evidence, but the rule in both courts is that there must be substantial evidence upon which to base the verdict. It is also the rule, not only in this court, but in the Supreme Court of the United States, that, if there is substantial evidence, it is then a question for the jury, and the rule in both courts also is that the burden is,upon the plaintiff to prove negligence, and also that the negligence was the cause of the injury.
Appellant calls attention to many authorities to the effect that proof of negligence proximately causing the injury is a prerequisite to recovery. This court has always held that the burden is on the plaintiff, not only to prove negligence, but that the negligence caused the injury.
We have not set out the evidence in detail, but have referred to it sufficiently to show that there was substantial evidence upon which to base the verdict.
In this case, as we have already said, there, is evidence tending to show that the engineer was guilty of negligence, which caused the injury, and nothing need therefore be said about the doctrine of res ipsa loquitur.
It is next contended that the appellee cannot recover because he assumed the risk. If the evidence of the witnesses that’ it was improper to use the independent brake instead of the automatic, and that this independent brake was applied suddenly, so as to cause a violent jerk, when the stop could have been made in the ordinary way, then of course the appellee did not assume the risk. An employee does not assume the risk of the negligence of the master or its servant, the engineer. In fact, the act under which this suit is brought authorizes a recovery if the injury is caused in whole or in part by the negligence of the master or its servants. The employee would not assume the risk of the negligence of the master unless he knew of its existence.
According to the evidence of the appellee, he was in a perilous position, and the engineer knew it. Of course, the evidence on the part of the appellant is in conflict with this, but, wherever the evidence is in conflict, its weight and the credibility of the witnesses are questions for the jury.
The question of a continuance or a postponement of the case was within the sound discretion of the trial court, and it does not appear in this case that the court abused its discretion. The appellant knew about the evidence that it wanted in ample time to have been prepared with its evidence, and it was during the progress of the trial that appellant asked for the postponement, and asked that plaintiff be directed to send a telegram to the Mayo Clinic.
This court has often held that the granting or refusing a postponement is within the sound discretion of the trial court, and the manner of procedure and the rules regulating the conduct of a lawsuit must necessarily be largely within the discretion of the trial court.
It is finally contended by the appellant that the verdict of the jury is excessive. Appellee was 39 years of age, was healthy and strong, and able to work all the time, and was earning $250 per month. He had been working for the company for a number of years; was in the hospital for a long while; the injury was very painful; appellee cannot sleep the whole night through, or do any work, and has been confined to his house for a long while; he has no control over his bowels or urine, and no feeling in that part of his body; he never had any trouble with his bladder or urine before, or his bowels, and it appears from the evidence that he will not only be unable to perform any work and earn anything in the future, but that he will necessarily suffer pain and inconvenience for the rest of his life.
He has a fractured spine, the first lumbar vertebra is badly crushed, and his spinal cord pinched. Some of his ribs were broken, and as a result of the injury he has no feeling in the lower part of his body, and no control over his kidneys or bowels.
The evidence of the physician was to the effect that he would never be any better, but gradually grow worse, without hope of recovery, and that he will continue to suffer pain.
The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury. The suit is for compensation, and compensation means that which constitutes or is regarded as an equivalent or recompense; that which compensates for loss or privation remuneration.
It appears from the evidence that the injuries received are very severe. However, the undisputed evidence shows that in 1914 or 1915 the appellee was severely injured in an accident and was at that time in the hospital several months, receiving treatment for his injuries.
There is evidence tending to show that his injuries at that time were severe, and resulted in the loss of control of bowels and bladder, and partial paralysis from the waist down. He afterwards gained control of the bowels and partial control of the bladder. There was some evidence tending to show that the injury received in 1914 or 1915 affected his spine.
We have considered carefully all the evidence with reference to his injuries, and have reached the conclusion that a judgment for $60,000 is excessive, and that it should be reduced to $40,000.
The judgment is therefore reduced to $40,000, and affirmed for that amount. | [
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Smith, J.
Appellee filed in the Logan Circuit Court a petition for a writ of mandamus to compel the treasurer of that county to redeem certain county warrants held hy him. 'Interventions were filed by a number of persons holding county warrants, and various questions as to the validity and priority of these warrants have been raised. It will be unnecessary to recite upon what demands those claims arose, as the court’s declarations of law, hereinafter set out, are decisive of the questions involved on this appeal; indeed, as appellant states, the questions for decision are questions of law, and not of fact.
The declarations of law which the appeal challenges read as follows:
“1. That the revenue from all sources during the fiscal year must be allocated to the payment of the indebtedness for that year.
“2. ' That, if there is not enough revenue to pay all demands for said year, then what are termed statutory claims have preference to be paid first, because this character of expense is necessary to the proper operation of the county affairs.
“3. After paying all statutory claims, the contractual claims are to be paid in the order of their allowance by the county court, but in no case to exceed the appropriations for said year on each fund.
“á. I hold that, in so far as the statutory claims are concerned, they have preference right regardless of the amount appropriated for each fund by the levying court.
“5. All claims allowed in excess of the total revenue from all sources are absolutely illegal and void.
“6. All allowances not in excess of the revenue for any fiscal year are legal and valid, and may be paid out of the revenue of the next fiscal year, provided there is a surplus of revenue over the expenditures for such year. ’ ’
It is at once apparent that a review of these declarations of law entails a further consideration of the effect of amendment No. 10, heretofore frequently referred to as amendment No. 11 (See 184 Ark. XXIX). We have had frequent occasion to interpret this amendment, and more than a score of these cases are cited in the opinion in the ease'of Luter v. Pulaski County Hospital Association, 182 Ark. 1099, 34 S. W. (2d) 770. Many, if not all, of these cases have quoted the provisions of the amendment which relate to the questions here under consideration, and they will not be again quoted; nor will we review those cases. It will suffice to summarize their holdings.
It was said in the case of Luter v. Pulaski County Hospital Association, supra, that amendment No. 10 must now, since the adoption of amendment No. 17, be construed as it reads literally, that is, that contracts and allowances in any year cannot exceed the revenues of that year, not even for a purpose so necessary as that of building courthouses and jails, nor, as was said in that case, for building a county hospital, and we there expressed our unwillingness to hold that there was any exception for which a county might make a contract in excess of its revenues.
The law may therefore be regarded as definitely settled that any contract entered into or allowance made in excess of the revenues of the year in which the contract was entered into, or the allowance made, is wholly void, and the issuance of county warrants based thereon adds nothing to their validity, as the warrants are also void.
•Other constructions of the amendment which are apposite here may be briefly stated.
A county may not incur any obligation in any year which exceeds the revenues of that year, and, if this is done, such obligation- is void and cannot be paid out of the revenues of the succeeding year. Those contracts entered into, or allowances made, or warrants issued, which did not exceed the revenues of the year in which they were entered into, made or issued, are valid; all others are void.
The holder of a valid warrant may, by an appropriate action, compel the redemption of his warrant, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. The invalid warrants cannot be received by any collecting officer of the county, and the officer who does receive one does so at his peril, and is not entitled to take credit for it in any settlement of his account, because the warrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. Counties (and cities and towns also) must pay as they go, and can go only so far as they can pay, and they are without power to make or authorize any contract or make any allowance or issue any warrant for any purpose whatsoever in excess of the revenues, from all sources, for the fiscal year in which said contract was entered into, or allowance made, or warrant issued.
None of these statements announce any new interpretation of the amendment, but all have been made one or more times in the numerous cases interpreting the amendment, in a more or less futile attempt to coerce the fiscal officers of the counties, cities and towns of the State to obey the plain mandate of the Constitution.
It is said that certain fiscal officers of Logan County have interpreted the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, as authorizing an expenditure in excess of the revenue in certain cases. But we do not think the case is open to that construction. We must read that case in the light of the facts there stated. Polk County had not issued bonds as the amendment authorized. It had an outstanding indebtedness at the time of the adoption of the amendment which had not been paid. Its annual expenditures were less than its annual revenues. The redemption of these outstanding warrants exhausted the county’s cash, so that money was not available to redeem warrants issued in the then current year, yet we said that this fact did not affect the validity of such warrants, for the reason that their issuance did not increase the county’s debt beyond what it was at the beginning of the fiscal year. In other words, a county might operate, although it could not do so on a cash basis. The inhibition of the amendment was and is that a county should not increase its indebtedness, by appropriating and spending in any fiscal year any sum in excess of the revenues of that year.
It was there contemplated that counties might not have the revenues to pay for all the expenditures which are required or allowed by law to be made, and for the guidance of fiscal officers we declared the priority in which contracts should be entered into and allowances made.
We there quoted the sixth subdivision of § 1982, Crawford & Moses’ Digest, which directs the order in which quorum courts shall make appropriations. These items, seven in number, were divided into two classes, of which, as we said in the case of Worthen v. Roots, 34 Ark. 356: “The first four are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. ’ ’
Defining the duties of quorum courts under this statute, limited as it is, of course, by the constitutional amendment, it was there said: “They should first make ample provision for those necessary expenses imposed on the counties by law, including outstanding warrants payable in that year, as, for instance, an installment due for construction of a courthouse; and, after having done this, they are at liberty to make appropriations of part or the whole of the remainder of the revenue for the purposes provided by items 5, 6 and 7, but they cannot exceed the amount of the revenue for the fiscal year, ’ ’ not for items 5, 6 and 7 merely, but for these or any other purpose.
Now this case did decide that those items designated as indispensable must first be paid before other items merely permissible under the law were paid. In other words, counties could not make allowances to cover the permissible items until they 'had first made allowances for the indispensable items essential to the support of the government. Having made allowances for the indispensable items, allowances could thereafter be made for the permissible items, provided the combined allowances did not exceed the revenues. Those allowances not in excess of revenues were valid; all others were void.
We did not decide in that case, as is here argued, that warrants to be valid must be redeemable in the year of their issuance. The holding in that case, when applied to the facts there stated, is expressly to the contrary. The point decided was that warrants were valid, although they could not be redeemed in the year of their issuance because the redemption of valid warrants issued in the previous year had exhausted the county’s cash. Such warrants were valid notwithstanding the fact that they could not be redeemed in the year of their issuance, because their issuance was not in excess of the revenues of the county in the year in which they were issued.
The point primarily involved in the Mena Star case, supra, was the right of a county to pay its current bills in the year in which they should be paid, and such bills were and are paid, within the meaning of the constitutional amendment, when a valid allowance thereof is made by the county court, pursuant to which order a valid county warrant is issued.
The case of Miller v. State to use of Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998, is cited as holding that valid warrants coming over from a previous fiscal year cannot be redeemed until all warrants issued in a particular fiscal year have been first redeemed. But such is not the holding in that case. The trial judge so held, but we reversed that judgment. We there pointed out that in the Mena Star case, supra, allowances were made by the county court in the year 1925 which did not equal the revenues of that year, but the redemption of valid outstanding warrants out of the revenues of that year made it impossible to redeem all the claims contracted and allowed that year. This was true also in the year 1926, so that there remained outstanding warrants which could not be redeemed. It was held that these facts did not prevent the county from contracting obligations which could be paid only by the issuance of warrants which could not be redeemed out of the revenues of 1926, and that such obligations might later be paid. We there concluded the discussion of this question with the following statement: “But here, as in the case of Polk County v. Mena Star Co., supra, expenditures have not exceeded revenues. The receipt by the collector and the redemption by the treasurer of valid warrants, which those officers could not refuse when tendered in payment of any demand due the county, made it impossible to redeem all the warrants issued in the year 1927, but those unredeemed in the year of their issuance may be redeemed, as was said in that case, out of the revenues of a subsequent year, and this is true because, in so doing, the indebtedness of the county is not increased.”
If it were held that warrants issued in a particular year must first he redeemed out of the revenues of the year of their issuance before valid warrants previously issued may be redeemed, it would follow, as a practical result, that many of such previous warrants would never be redeemed.
In the instant case, expenditures have exceeded revenues, and in most of the cases which have come before us for review there has been but little, if any, excess of revenues over expenditures, and if the redemption of these previous valid warrants must be postponed until all current warrants have been redeemed, the value of the previous warrants would be destroyed, as in many cases their redemption would be impossible, and in all cases uncertain.
The redemption of warrants is a different matter which we now proceed to discuss.
Now, while, as.we have said, a county must first pay its indispensable obligations before paying those which are permissible merely, yet both are paid, within the meaning of the amendment, by the county when allowances therefor are made, pursuant to which allowance warrants are issued, and these warrants, when issued, are equally valid, regardless of the purposes for which they were issued, and their priority in the matter of redemption or payment by the county treasurer thereafter depends, not upon the purpose for which they were issued, but upon the date of their issuance. The warrants thus issued are equally valid, if they are not in excess of the revenues of the year in which they were issued, and their validity is unimpaired because they cannot be redeemed by the county treasurer when the redemption of prior valid warrants has exhausted the county’s supply of cash. That is the essence of the decision in the 'Mena .Star case, supra.
The case of Stanfield v. Kincannon, ante p. 120, considered the order of payment of valid county warrants. It is true the warrants there issued were drawn against a fund not derived from county revenues, but from a gra tuity provided by tbe State for tbe benefit of tbe counties of the State, which fund was not, for that reason, subject to amendment No. 10. But it is true also that the statutes there construed did relate to warrants drawn against county revenues.
Section 2007, Crawford & Moses’ Digest, there quoted, was passed in 1846, which was, of course, long before there was any such fund as a county turnback fund, provided by the generosity of the State, and that statute, at the time of its enactment and at all times since, has applied to county scrip or warrants, which we there held to be identical terms covering vouchers drawn against county revenues. That case disposed of the question of priority here presented, and in the construction of the act of 1846 we said: “This section applies in this case, as the treasurer is not able to meet all demands against him drawn on the county highway fund.. We think it applies in all such cases and not merely to warrants issued in cancellation of scrip or warrants previously issued. Otherwise injustice might, probably would, result on account of favoritism. This view is strengthened by a reading of § 3 of said act. It provides ‘that all county scrip or warrants * * * shall be received, irrespective of their number and date in payment of all taxes, duties, fines, penalties and forfeitures, accruing to said county. ’ The necessary inference is that, except for the purposes named in § 3, all scrip or warrants shall be redeemed in the order of their number and date, if the treasurer is not able to meet all demands. No distinction is to be made between scrip and warrants, as the terms are used interchangeably in the act. This meaning of the act was recognized by this court in Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458, in an opinion by Judge Hemingway, where he said, in reference to the act of 1846, now under consideration: ‘ This is a part of an act which provided that warrants should be paid in the order of their number, and that no warrants should be paid until all of a prior date had been paid or provided for. * * * Its manifest purpose was to provide that warrants should be received in payment of taxes and dnes to the county, even though there were prior warrants not paid or provided for. ’ And the same meaning of the act was recognized in Graham v. Parham, 32 Ark. 677, 694, where Mr. Chief Justice English used this language: ' County warrants shall be redeemed and paid by the county treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the county treasurer upon whom the warrants are drawn shall not be able to meet all demands upon the treasury. Acts December 17, 1846, .§ 2; Gantt’s Dig., § 1042.’ This cannot be avoided by making warrants payable in the future.”
Valid warrants must therefore be redeemed by the county treasurer in the order of their issuance when cash is available for that purpose, but, as was said by Judge Hemingway in the case of Crudup v. Ramsey, supra, warrants may be received in payment of taxes and dues to the county, even though there were prior warrants not paid or provided for. The sentence following the language quoted from Judge Hemingway’s opinion in the Stanfield case, supra, reads as follows: "It” (the statute above referred to) "was designed to make the date of a warrant, in so far as it was later than others, immaterial when it was offered in payment of taxes and dues — nothing more. ”
The quotation from the case of Miller v. State, to use of Woodruff County, supra, herein appearing, is to the same effect. While, therefore, warrants may be used in payment of taxes or dues to the county regardless of their priority as to date, the warrants must, so far as their redemption by the county treasurer by payment in cash is concerned, be in the order of their priority as to number and date.
The judgment of the court below will be reversed, and all the declarations of law made at the trial from which this appeal comes, set out above, will be modified to conform to the views here expressed, and upon the remand of the cause the court will adjudge the rights of the various parties in accordance with the principles here declared.
Hart, C. J., and Mehaeey, J., dissent in part. | [
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Smith, J.
Appellant, a building and loan association, hereinafter referred to as the association, filed a motion to vacate a decree of the Poinsett Chancery Court and to set aside an order approving a sale which had been made pursuant thereto, and from a decree of the court sustaining a demurrer to this motion is this appeal.
From this motion and the exhibits thereto the following- allegations appear: H. W. Cole and S. W. Cole had been engaged in business at Marked Tree. Their business house was destroyed, and they made application to the appellant association for a loan of $10,000 with which to rebuild. The application therefor recited that the old building had been, and the new building — which was to be brick — would be, located on lots 4 and 5, block 2, St. Francis Addition to tbe town of Marked Tree, and they agreed in the application to execute a deed of trust which would be a first lien on the land and the building then under construction, but not completed. The loan was made and the deed of trust was executed, which- described the property as lots 4 and 5, block 2. This instrument was filed for record July 16,1926, and was duly recorded.
At the time this loan was made the Coles were largely indebted to appellee, the Memphis Furniture Manufacturing Company, hereinafter referred to as the furniture company, and on July 27, 1926, before the completion of the building, they executed a mortgage to appellee furniture company to secure this indebtedness. The land described in this instrument was referred to as tract No. 1 and as tract No. 2. Tract No. 1 consisted of farming lands. Tract No. '2 covered property in the town of Marked Tree and was described by metes and bounds. The description employed included lots 4 and 5, block 2, and other lots in the same block. The mortgage to the furniture company contained the following recital: ‘ ‘ That tract 2 is for the purpose of securing an indebtedness of $20,000 to the Memphis Furniture & Manufacturing Company, as evidenced by a promissory note of even date, due on the 27th day of July, 1927, with interest at the rate of 8 per cent, per annum from date until paid. That this mortgage on tract 2, however, is subject and second to a prior mortgage given the Arkansas Building & Loan Association for $10,000.”
On August 25, 1930, a suit was filed by the furniture company in the Poinsett Chancery Court to foreclose its mortgage, and the association was made a party thereto. The complaint contained the following allegation: * ‘Plaintiff avers that the real estate hereinabove described, as it is informed, is incumbered by indebtedness owing to the defendant, American Building & Loan Association, which may be secured by a lien superior to the lien of the mortgage first hereinabove mentioned, but plaintiff does not admit that such is true, and calls for strict proof with respect to the claim of said American Building & Loan Association and the priority of its lien. ”
The association filed an answer, alleging its prior lien on lots 4 and 5, block 2. When the answer was filed, it was conceded by the attorney for the furniture company that- the lien of the association was prior and superior, and the attorney for the association agreed that a decree of foreclosure of plaintiff’s mortgage might be entered, provided the rights of the association were protected. The decree was entered on May 4, 1931, which declared the priority of the lien of the association on lots 4 and 5, block 2, and this decree was approved by the respective attorneys before its entry.
Pursuant to this decree, a sale was had by the commissioner appointed for that purpose, at which sale the furniture company purchased lot 6, block 2, for $4,000. This was one of the lots embraced in the description employed in the mortgage to the furniture company. The report of this sale was approved, and the sale confirmed in vacation, that order reciting that it was done by consent of parties. The attorney for the Coles approved this order, but the attorney for the association was not advised of it, and entered into no agreement concerning it.
Before the final adjournment of the term of court at which the decree of sale had been rendered and the report of sale thereunder had been confirmed, to-wit, about July 1, 1931, the association discovered that the building which it had furnished the money to erect had, by mutual mistake of the parties as to the location and boundary lines of lots 4 and 5, block '2, been erected almost entirely on lot 6, block 2, and that only a small portion of the building was located on lot 5, block 2, and that the remainder of lot 5 and all of lot 4 were vacant except for a very small frame building.
The complaint alleged that the full amount of the loan was used in the construction of the brick building, and that it was the intention of all the parties to the deed of trust to the association that this instrument should cover the brick building and the land on which it had been erected. It was further alleged that “at the time the Memphis Furniture Manufacturing Company took its mortgage, it had knowledge of the first mortgage for the sum of $10,000 covering the brick building, and it was not the intention of the parties executing its mortgage, nor were the agents and employees of the Memphis Furniture Manufacturing Company under the impression at the time, that its mortgage was a first lien on any of the land conveyed by it. ’ ’
It was further alleged that, at the time of filing its answer, the association was ignorant of the true location of the brick building and believed that it was located on lots 4 and 5, and its ag’reement for the entry of the decree of foreclosure was induced by this misapprehension, and information to the contrary was not obtained until after the confirmation of the report of sale.
The motion to vacate the decree of sale and the order of confirmation was filed August 15, 1931, and, by way of cross-complaint against the original plaintiff and the defendant, Coles, it was prayed that the deed of trust to the association be reformed to comply with the intention of the parties so as to cover lot 6, block 2, the land on which the brick building was erected.
A demurrer to the motion was heard and sustained on August 28, 1931, an adjourned day of the same term of court at which the original decree of foreclosure had been rendered.
G-. O. Campbell was made a party to the original foreclosure proceeding, and filed an answer, in which he alleged that the Coles had previously executed to him a mortgage on lots 2 and 7, block 2, in St. Francis Addition, and that he had acquired the title to these two lots by the foreclosure of his mortgage, which proceeding antedated the execution of the mortgage to plaintiff. Campbell’s answer further alleged: “That in executing said mortgage it was the purpose and intention of the grantors and grantees therein that said mortgage should describe and convey lots 3, 4, 5 and 6, in said St. Francis Addition to Marked Tree; that in fact said mortgage extends to and includes a part of one street in front of the buildings on said real estate and a part of the right-of-way of St. Louis-San Francisco Bailway Company, a part of lot 7, owned by this defendant, and a part of Broadway Street, in Marked Tree; that the description as written in said mortgage to plaintiff is erroneous; was by mutual mistake of the grantors and grantee therein, and should be corrected and reformed. A correct plat of said real estate is hereto attached as Exhibit A and made a part hereof, and showing the location of lots 1 to -7, inclusive, and also showing by metes and bounds the description of real estate described in said mortgage executed to the plaintiff.”
The court, in the foreclosure decree, found the facts to be as alleged by Campbell, and that it was not the intention of the Coles to include any part of lots 2 and 7, block 2, in their mortgage to the furniture company.
For the affirmance of the decree from which this appeal comes, it is insisted that the decree was entered by the consent of all parties, and that, if any mistake exists as to the true location of the brick building, it should have been discovered when Campbell filed his answer praying reformation of the description employed in the mortgage from the Coles to the furniture company.
It is said that, in sustaining the demurrer, the chancellor announced that he was doing so and denying the relief prayed because it had not been asked in time, and for that reason only.
It thus appears that, while the furniture company mortgage has been foreclosed, and a sale thereunder had, there are no intervening rights of third parties. The furniture -company became the purchaser at the sale, and it now claims as owner, and not as mortgagee, and it is very definitely alleged that the furniture company took its mortgage, through which its title was acquired to this property, with knowledge of the prior incumbrance in favor of appellant, which was duly of record.
The power of the chancery court to reform instruments where, through mutual mistake, they do not ex press the agreement of the parties, has been often exercised, and is not here questioned. The essence of the furniture company’s insistence is that the request comes too late, especially as the decree under which it claims was entered by consent.
Properly considered, the decree was not entered by consent; we think under the facts alleged the consent went only to its form. In any event, such consent as was given was the result of mutual mistake. Under the allegations of the motion, the furniture company took its mortgage with knowledge of the fact that the association had a deed of trust in the sum of $10,000' covering the brick building*, and this instrument was of record when the furniture company’s mortgage was executed. There is nothing in the pleadings to indicate that the furniture company knew the exact location of the brick building and withheld that information from the association while obtaining its consent to the entry of the decree which would destroy its lien. But, if so, the association would be entitled to the relief prayed under the allegations of the petition. It is to be remembered that the motion was filed at the same term of court at which the decree was rendered, and the rights of no third parties have intervened. It is settled law that courts have control over their orders, judgments and decrees during the term at which they were made, and for sufficient cause may, upon application or upon its own motion, modify or set them aside. Underwood v. Sledge, 27 Ark. 296; Democrat Ptg. & Litho. Co. v. Van Buren County, 184 Ark. 974, 43 S. W. (2d) 1075.
The case of Saleski v. Boyd, 32 Ark. 74, was one in which an appeal had been prosecuted, as the instant case, from the refusal of the chancellor to set.aside a decree, a motion to that effect having been made during the term at which the decree was entered, and while it was under the control of the chancellor. In reversing* the action of the chancellor, it was there said: .“If it appear that the attorney consented to the decree in fraud, or by collu sion with adverse counsel, or under a mistake or misapprehension of law or facts, and that the rights and interests of his client were thereby seriously compromittecl, the court will open the decree.”
There was no avoidable delay on the part of the association in filing its motion, and it is alleged that this was done as soon as the association was advised of the facts.
It is insisted for the affirmance of the decree that the answer of Campbell, hereinabove referred to, should have apprised the association of the mistake before the rendition of the decree. But we do not think so. It was not, and is not, denied that the furniture company liad a valid mortgage on lots 3, 4, 5 and 6, and the effect of Campbell’s answer was to call attention to the fact that the description by metes and bounds which had been -eim ployed not only covered these four lots, but lots 2 and 7 also and a part of a street and of a railroad right-of-way, and that the Coles had lost their title to lots 2 and 7 through the prior foreclosure proceeding. It does not appear that there was anything about the plat which Campbell filed which would have shown the location of the brick building, and Campbell was not at all concerned or interested in this building and prayed no relief having any relation to it. The relief sought and obtained by him was to have his lots 2 and 7 excluded from the metes and bounds description which appeared in the mortgage to the furniture company.
Under the facts alleged the association was entitled to the relief prayed.
The case of Beckius v. Hahn, 114 Neb. 371, 207 N. W. 515, 44 A. L. R. 78, involved the right of reformation as against general creditors, and the annotator makes the following summary of the numerous cases there cited in his note: ‘ ‘ And while equity, as a g-eneral rule, will not exercise its jurisdiction to reform a written instrument to the prejudice of the intervening rights of bona fide purchasers or incumbrancers without notice of any equity of reformation, it will exercise jurisdiction in this respect as against subsequent purchasers or incumbrancers who obtained their title or lien with notice of an exists ing’ equity of reformation, or who, for other reasons, do not stand as Iona fide purchasers or incumbrancers for value, in the same manner and to the same extent as it would between the original parties.” See, also, Sherwin-Williams Co. v. Leslie, 168 Ark. 1049, 272 S. W. 641.
The decree of the court below will therefore be reversed, and the cause will be remanded with directions to overrule the demurrer. | [
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Conley Byrd, Justice.
In 1955 appellees Charles Y. Gann and Edith E. Gann purchased ‘ ‘ all that part of the SW% of Section 22, T. 15 N., R. 3 E. lying east of the Culberhouse Public Road, containing 15 acres more or less.” Based upon the assumption that the area contained only 15 acres, they conveyed the five acres off the north end to Elmo Russell and wife in 1960. The boundary line between them was partially marked by a fence running in a southeast-northwest direction. In March 1966, the Ganns advertised for sale a house and five acres of ground. Pursuant to the advertisement, appellants John P. Colbert and Myrtle Colbert, his wife, purchased the house and received a deed which de scribed the property as the north five acres of the south ten acres of that part of the S% SW]4 of Section 22, T. 15 N., ft. 3 E. lying east of Culberhotise Public Boad in Craighead County. During the same month, appellees started construction of a new house on the remaining lands.
Appellees rented the house from Colbert until June 1966, when Mr. and Mrs. Colbert conveyed the property by the same description to their son and daughter-in-law, C. D. and Frankie Colbert. Thereafter, appellees rented the house from the son until they moved into their new house around the first of November, 1966.
After appellees had moved into their new house, C. D. Colbert suggested that the house was built on his property and caused Clay Kenward to survey the property. At this time it was discovered that there was 19.52 acres lying east of the Culberhouse Public Boad instead of 15 acres as recited in appellees’ original deed.
The Kenward survey showing the location of the fences and houses here involved is as follows:
Based upon the survey C. D. Colbert, et ux, brought suit against appellees to remove the new house as an encroachment on their land. Appellees counterclaimed and cross complained, bringing in John P. Colbert et ux, and asked that the deed descriptions be reformed to correctly describe the property sold to the Colberts. An alternative plea requested that the Colbert house, which according to the survey encroached on appellees’ property by 29 feet, be removed. The trial court characterized the controversy as a boundary dispute, found that the land which appellees intended to convey and appellants intended to buy was the 5.3 acres between the two fences and decreed that the descriptions in the two deeds should be corrected to so read.
For reversal appellants argue that reformation could not be had because appellees’ grantee no longer owned the property, having conveyed to a bona fide purchaser.
The record shows that appellees had advertised for sale a house and five acres of land. All parties concede that appellees and John Colbert contacted each other as a result of the newspaper advertisement.
Appellee Charles Y. Gann testified that he pointed out the Elmo Russell fence and the fence to the south thereof as the north and south boundaries of the five acres that were to go with the house. He said that their agreement was that if there were not five acres between the two fences, he was to set the south fence over until John P. Colbert did get five acres. Pursuant to the agreement reached, John Colbert gave appellees a $500 check for a down payment. Gann says that he then took his deed to an abstracter and told him that he was conveying to the Colberts the five acres next to Elmo Russell. Thereafter the Ganns and John Colbert’s daughter met at the abstracter’s office and consummated the sale upon the description drawn by the abstracter. While the Ganns were renting the property, they learned of the sale to the son, C. D. Colbert. Sometime in October C. D. Colbert and his son disked up the area between the two fences and sowed it in something.
Mr. John Colbert testified that Mr. Gann represented to him that the house was on this land, but that he refused to purchase the land between the two fences until Gann agreed to give him a deed to the north five acres of the south 10 acres — i. e., he thought Mr. Gann just owned ten acres and he was getting the north end of the ten. When he sold the land to Ms son, he represented that the house was on the description drawn by the abstracter. On cross examination Mr. Colbert stated that he expected the north five acres to go to the Russell line and that he would not have bought the property if the house had not been located on it — that was the reason he had the girl write on the $500 down payment check “house and five acres.” He further testified that he did not know that Mr. Gann was building his house on the described land until his son had it surveyed.
Mr. C. D. Colbert says that he was living in California when he purchased the property and that he never saw the property until around October 1, 1966, approximately three months after the purchase. On cross-examination C. D. Colbert readily admitted that according to his survey 29 feet of his house is north of the five acres he now claims that he bought, but now says that the house he bought was on the land when he bought it. He further testified that he bought the house and the five acres that the deed called for; that in October he disked up the land between the two fences; and that when he was disking the land, he thought it was Ms land but that he does not think so now.
As between appellees and John Colbert it is obvious that the abstracter did not properly describe the lands that appellees intended to sell or the lands that John Colbert intended to buy. When viewed in light of the dealings between John P. and his son C. D. Colbert and the fact that C. D. at first took possession of the property between the two fences, the evidence is most convincing that that was the property intended to be conveyed by the one and received by the other. Furthermore since C. D. Colbert at first took possession of the property between the two fences and at the time thought that was his property, we do not see how he is in the position of a bona fide purchaser for purpose of preventing a correction of an erroneous description in the deeds under which he holds.
In Tanner v. Manos, 160 Ark. 293, 254 S. W. 676 (1923), Mr. & Mrs. Hogan owned a sixty acre tract. In mortgaging the property to Manos, the mortgage while describing only thirty acres recited a total of sixty acres. Thereafter the Hogans obtained a divorce in which Mr. Hogan conveyed the property to his wife who subsequently conveyed to Tanner. In upholding a reformation of the mortgage description to describe the sixty acres as against Tanner, a subsequent grantee, we pointed out that it was sufficient to show facts which put him upon notice of the error. We know of no reason why that holding should not be applied to C. D. Colbert et ux, who at first admittedly took possession of the property between the two fences.
For the reasons stated, the judgment is affirmed. | [
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George Rose Smith, Justice.
In September of 1967 the two appellants were discovered to be in possession of a large quantity of stolen property that had been brought to this state from Missouri. See Walton and Fuller v. State, 245 Ark. 84, 431 S. W. 2d 462 (1968). Among the items seized by the investigating officers were 8,940 packages of cigarettes upon which the Arkansas cigarette tax had not been paid. The Commissioner of Revenues brought this action to collect the statutory penalty of $25 a package, or $223,500. Ark. Stat. Ann. § 84-2310 (Repl. 1960). Upon testimony that the officers had examined only one package in each ten-package carton the jury returned a verdict for $22,350. that being one tenth of the amount sued for.
For reversal the appellants contend that the statute is unconstitutional — generally as a denial of due process of law and specifically as a violation of the constitutional prohibition against the imposition of excessive fines. Ark. Const., Art. 2, § 9. The tax was levied at the rate of eight cents a package, or a total of $71.52 upon 894 packages. Counsel insist that the penalty of $22,350 is so disproportionate to the amount of the tax as to be excessive on its face.
The appellants rely principally upon our holding in Beckler Produce Co. v. American Ry. Express Co., 156 Ark. 296, 246 S. W. 1, 26 A. L. R. 1197 (1922). There the statute imposed a penalty of two dollars a day for the express company’s failure to settle a claim for property damage, but it allowed shippers to delay the filing of suit for any length of time within the period of limitations. Beckler waited for two and a half years before seeking to collect a penalty of $1,740.00 for the loss of a shipment worth $48.66. We held that the statute was so oppressive and went so far beyond its legitimate purpose as to be contrary to the due process and equal protection clauses of the constitution.
That case is not sufficiently similar to this one to be controlling. There the penalty was applicable to a business transaction between private persons. The statute allowed the shipper, merely by delay, to build up a penalty claim so completely out of proportion to the amount of the asserted loss as to virtually compel the carrier to compromise the demand regardless of its actual merit. By contrast, here the penalty stems from the State’s effort to collect a lawful tax, the evasion of which is a criminal offense. Ark. Stat. Ann. § 84-2323. The amount of the penalty is fixed by law and cannot be augmented by any maneuvering on the part of the ■State. The tax dodger is given fair warning in advance that a violation of the statute carries a fixed penalty with respect to each untaxed package of cigarettes.
In the Beckler case we based our discussion upon the premise that “in general, the amount of the penalty prescribed is a matter for the Legislature to determine in its discretion, and the courts will not interfere with its discretion ... as long as it keeps within the fair and reasonable scope of its power.” More specifically, we declared in Ex parte Brady, 70 Ark. 376, 68 S. W. 34 (1902), that the imposition of a fine is not a cruel or unusual punishment and that to violate the constitution “the fine imposed must be so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”
It could not be seriously contended that a penalty of $25 for the unlawful possession of one package of untaxed cigarettes is excessive. Whether the penalty should be proportionately increased with each additional package manifestly depends upon complex issues of fact. See Gooch v. Rogers, 193 Ore. 158, 184, 238 P. 2d 274, 285 (1951). To what extent does the maintenance of the state government depend upon tobacco taxes? How much revenue is lost by the importation of untaxed cigarettes, either in large quantities for the purpose of sale or in small quantities by consumers living near the borders of the state? Would a milder penalty prove to be an effective deterrent to tax evasion? What administrative expense is involved in the enforcement of the taxing statute and in the prosecution and conviction of those who viólale it? What has been the experience with respect to the same problem in other states?
We must assume that factual issues such as these were taken up and explored by the legislature as a basis for* its adoption of an appropriate penalty for nonpayment of the tax. In the record before us, however, there is no proof touching upon any of such relevant questions. We are asked to declare as a matter of law, with no knowledge of the facts, that a penalty of $22,350 for the evasion of a $71.52 tax is so excessive as to shock public sentiment and violate the judgment of a reasonable people. We may note, by analogy, that had the appellants stolen even half of $71.52 they might have been convicted of grand larceny and might have been punished by imprisonment for twenty-one years. Ark. Stat. Ann. § 41-3907 (Repl. 1964). Beyond question, reasonable minds may differ about what is or is not an excessive punishment.
Finally, the appellants’ demand that we hold the statute unconstitutional insofar as this case is concerned would draw the judiciary into an area that is best left to the legislature. As we have already said, a penalty of $25 for the unlawful possession of one package of untaxed cigarettes is certainly not unconstitutionally excessive. Apparently no one thought in Thompson v. Holmes, 222 Ark. 233, 258 S. W. 2d 236 (1953), that the penalty there involved — $3,000 for the unlawful possession of 120 untaxed packages — was so severe as to cast doubt upon the validity of the statute. We can find in the constitution no yardstick enabling us to announce with confidence that the penalty is valid when one package is involved, that it Is valid when 120 packages are involved, but that it is not valid when 894 packages are involved. See State v. O’Neil, 58 Vt. 140, 2 Atl. 586 (1886), writ of error dismissed, O’Neill v. Vermont, 144 U. S. 323 (1892). Perhaps a case might arise — especially one raising no issue of criminal intent — when the amount of -the penalty might fairly and reasonably be said to be excessive, but we do not feel justified in reaching that conclusion in the case at bar.
Affirmed. | [
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Frank Holt, Justice.
The appellants, the widow and dependent children of Robert Olen Pearson, are claimants for workmen’s compensation benefits. The referee and the full commission found that the decedent was not an employee of appellee Lake Lawrence Pulpwood Company and denied compensation. The circuit court affirmed the commission’s action.
On appeal appellants first contend that the decedent was an employee of the appellee pulpwood company. Although we are committed to the well established rule that we liberally construe the provisions of the Workmen’s Compensation Act in favor of the workman, we must accord to the findings of the commission the verity of a jury verdict and affirm where there is any substantial evidence to support its action. Herman Wilson Lbr. Co., et al v. Lester Hughes, 245 Ark. 168, 431 S. W 2d 487 (1968); McCollum v. Rogers, 238 Ark. 499, 382 S. W. 2d 892 (1964). In applying this rule to the facts of this case, we cannot agree with the appellants.
In the ease at bar the appellants’ decedent was a pulpwood hauler or “producer.” He purchased uncut timber with his own money and employed and paid with his own funds his helpers who cut the timber and assisted him. He owned and maintained his equipment which consisted chiefly of his truck and power saw. He was paid a verbally agreed sum of money for each cord whenever he cut, loaded and hauled pulpwood to the appellee’s place of business. Decedent was fatally injured when his loaded truck left the highway en route to the unloading site. He had hauled pulpwood for the appellee for several years. He was not a “steady hauler” since he sometimes hauled for others. It appears that the method of cutting, loading and hauling of the logs was within the control and discretion of the decedent. Nor does it appear that appellee employer was ever present at a site where the cutting, loading and hauling of the pulpwood were being done. In these circumstances there was substantial evidence to support the commission’s denial of compensation on the basis that the decedent was not an employee of the appellee pulpwood company. West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S. W. 2d 460 (1961).
The appellants next assert that even though the decedent is said not to be an employee, he was nevertheless covered by workmen’s compensation insurance by a contractual agreement between the parties. Further, that if the appellee pulpwood company was not responsible as an employer, then the insurance carrier was directly responsible. The appellee pulpwood company’s workmen’s compensation policy provided coverage to employees for its logging operations and used a payroll method for premium computation purposes. Even if we were to consider as competent the evidence adduced by the appellants that decedent understood that deductions were made from his pay and that insurance coverage was provided him by appellee pulpwood company, we must affirm the commission’s findings since this issue was disputed by substantial evidence. The appellee pulpwood company’s owners, Lake and Bill Lawrence, testified there definitely was no deduction from decedent’s payments for insurance coverage or any other purpose and the haulers or “producers” were told they were not individually covered by workmen’s compensation insurance. This was corroborated by other haulers or “producers.”
Typical of the cases relied upon by appellants is Hollingsworth & Frazier v. Barnett, 226 Ark. 54 287 S. W. 2d 888 (1956). There Frazier daily supervised and controlled the work of the skidders and haulers and said he considered them his employees. The commission awarded compensation and we affirmed on the basis there was substantial evidence to support the finding of the commission. Also cited is Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964). There Hale’s contract provided for the payment of his workmen’s compensation insurance premium by Mansfield. We do not agree with appellants that these cases are controlling in the case at bar.
Appellants contend that the appellees are estopped to deny compensation to appellants. Again the appellants argue that the appellee pulpwood company made deductions from decedent’s payments and that the appellee insurance carrier received these deductions as premiums based upon the quantity of pulpwood hauled by decedent. As we have indicated, this was disputed by competent evidence. Also, there was evidence by the appellee pulpwood company that the workmen’s compensation premiums on its policy were “computed under a three year retrospective rating plan” and that “this did not include wood being processed by Robert Pearson,” and that “there were no insurance premiums computed on any basis for any labor performed in the production of this pulpwood” by Robert Pearson, the decedent.
The appellants further argue that the appellees should be estopped because in 1959 they paid compensation benefits to the decedent as the result of an injury. It appears that benefits were paid to an Olen Pearson in 1959 when he was injured as an employee of a Clifford Brewer and the appellee pulpwood company. Appellees denied that, if this was the decedent, he was ever paid any benefits as a pulpwood hauler. Appellants rely upon Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963). We cannot agree. In that case we said estoppel should apply because there was an undisputed contractual agreement that workmen’s compensation would be furnished to the claimant. As we said in Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968), “* * * The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.” Since there is substantial evidence to support the findings of the commission, we must affirm its action and the circuit court’s approval.
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Donald L. Corbin, Justice.
Appellant Larry Douglass Brown appeals the order of the Pulaski County Circuit Court dismissing his complaint against Appellee Jim Guy Tucker for slander, tortious interference with employment expectancy, and outrage. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(15), as it presents issues involving the law of torts. Appellant argues on appeal that the trial court erred in dismissing his complaint. We find no error and affirm.
From what little facts we have been provided, it appears that Appellant filed suit against Appellee as a result of Appellant’s being removed from his position as an investigator with the Arkansas State Police, and being reassigned to the position of patrol officer. In his motion to dismiss filed below, Appellee raised the issues of sovereign immunity, individual immunity, and the complaint’s failure to state facts upon which relief could be granted as provided in ARCP Rule 12(b)(6). The order of the trial court, however, reflects only that Appellee’s motion to dismiss was granted; there is no indication as to why the case was dismissed, nor are there any factual findings or conclusions. We affirm the trial court’s ruling on the basis that Appellant failed to state sufficient facts in his complaint.
In reviewing the denial of a dismissal granted pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996). When the trial court decides Rule 12(b)(6) motions, it must look only to the complaint. Id. This court has summarized the requirements for pleading facts as follows:
Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief. . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).
Malone, 325 Ark. at 385-86, 926 S.W.2d at 661 (quoting Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 639, 846 S.W.2d 176, 178 (1993)). Where the complaint states only conclusions without facts, we will affirm the trial court’s decision to dismiss the complaint pursuant to Rule 12(b)(6). Id.
Appellant’s abstract lends litde support to his argument that the trial court erred in dismissing his complaint. The complaint itself, which contains mostly legal conclusions, is abstracted as follows:
Filed February 6, 1996. Plaintiff alleges slander, tortious interference with employment expectancy, and tort of outrage.
Plaintiff was an investigator with the Arkansas State Police who was assigned to investigate the school funding formula. Plaintiff alleges tortious interference with business expectancy. Plaintiff also alleges that defendant slandered him by referring to him as incompetent and unable to function in his position. Plaintiff alleges that defendant forced Col[.] Tommy Goodwin to demote plaintiff with the hopeful end result of forcing plaintiff to resign. Plaintiff alleges that defendant’s actions exceeded all bounds of common decency, amounting to tort of outrage for plaintiffs emotional distress.
This summation tells us virtually nothing of the facts and circumstances that form the bases of each of the three causes of action alleged by Appellant.
Our rules require the abstracting of such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of each issue presented to this court for review. Ark. Sup. Ct. R. 4-2(a)(6); National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997); Kingsbury v. Robertson, 325 Ark. 12, 923 S.W.2d 273 (1996). It is Appellant’s burden to demonstrate reversible error and to present a record evidencing such error. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997). Moreover, it is fundamental that the record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the brief. National Enters., 329 Ark. 332, 947 S.W.2d 378. Here, Appellant states in his argument that the trial court erred in dismissing the case because the complaint was “more than adequate in that it contained nine pages of facts supporting appellant’s claims, which were presented in chronological order with dates and times.” Appellant then offers a citation to the place in the record where all the factual allegations can be found. Such reference to the record is not an adequate substitute for a complete abstract. See Boren v. Worthen Nat’l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996). We have stated on occasions too numerous to count that it is impractical to require all seven members of this court to examine one transcript in order to decide an issue on appeal. See, e.g., National Enters., 329 Ark. 332, 947 S.W.2d 378; Duque v. Oshman’s Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997); Kingsbury, 325 Ark. 12, 923 S.W.2d 273. In short, Appellant has failed to produce a record demonstrating reversible error. By way of illustration, we discuss below some of the numerous factual deficiencies.
In the first instance, Appellant claims that Appellee tortiously interfered with a business expectancy. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992). The only facts alleged in the complaint pertaining to this claim are that Appellee forced Colonel Goodwin to demote Appellant with the hopeful end result of forcing him to resign. There are no facts demonstrating that Appellant had a valid contractual relationship or' business expectancy in his job, or that he was damaged by Appellee’s alleged actions. To the contrary, Appellee contends that Appellant was merely reassigned to another position with the state police; he was not demoted from his rank of corporal, nor was his pay reduced as a result of his new job assignment.
In the second instance, Appellant claims that Appellee slandered him. The following elements must be proven to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Int’l Pub., Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)). The only information offered in the complaint on this cause of action is that Appellee slandered Appellant by referring to him as “incompetent and unable to function in his position.” The defamatory nature of those particular words is not evident, especially if Appellant was, in fact, not competent to function in his position. Nor is it evident that the statement implies an assertion of an objective verifiable fact. In order to determine whether a statement may be viewed as implying an assertion of fact, the following factors must be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that he or she was seriously maintaining implied fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991) (citing Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990)). The words allegedly used by Appellee clearly possess the general tenor of an opinion, as opposed to a verifiable statement of fact. Furthermore, as with the first claim, Appellant has offered no factual assertion that he was damaged by the alleged slanderous remarks.
In the third instance, Appellant claims that Appellee’s “actions exceeded all bounds of common decency, amounting to tort of outrage for plaintiff’s emotional distress.” In order to establish an outrage claim, it must be shown: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his 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 plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable man could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997) (citing Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)). Appellant’s complaint contains nothing more than bare legal conclusions that Appellee’s actions were extreme and exceeded all bounds of common decency.
In sum, even construing the complaint liberally, Appellant has failed to state sufficient facts upon which any relief can be granted. Accordingly, we conclude that the trial court did not err in dismissing the complaint pursuant to Rule 12(b)(6). We further modify the trial court’s ruling to be a dismissal with prejudice, as Appellant has indicated that a prior suit was brought by him against Appellee and that the action was voluntarily nonsuited by him. See Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996). Because we affirm the trial court’s ruling under Rule 12(b)(6), we need not address the remaining issues pertaining to immunity.
Affirmed as modified.
Special Justices William Randall Wright, Michele Harrington, and Richard Lusby join in this opinion.
Brown, Imber, and Thornton, JJ., not participating. | [
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Pry Thornton, Justice.
Appellant, Damien Deshun Brown, brings this interlocutory appeal of the trial court’s order denying his motion to transfer the charges against him to juvenile court. Because the trial court’s decision to retain jurisdiction of this case was not clearly erroneous, we affirm.
Brown was charged with aggravated assault, a Class D felony, on July 29, 1996, five months before his eighteenth birthday. Three months later, he was charged with robbery, a Class B felony. By the time of the hearing on the motion to transfer both charges, Brown was eighteen years old.
The alleged robbery occurred on a Central Arkansas Transit bus. An investigating officer testified that two subjects fought with, and forcibly removed a jacket from a passenger. The officer stated that one of the subjects was wearing a red cast on his arm. When Brown was apprehended, he was wearing a red arm-cast. Brown was later identified by someone in a photo lineup at the police station.
The aggravated assault charge resulted from dog-bite injuries after a pit bull was allegedly ordered to attack the victim. In support of its charge, the State called the investigating officer who testified to the following:
At the time we made contact with the victim, and he stated that a black male was walking his pit bull down Crutcher Street. And during that time, the black male told the pit bull to bite him. And later we learned through Mr. Brown’s cousin his address, and we then went to that address and made contact with Mr. Brown.
After the officer testified about the seriousness of the victim’s injuries, counsel for the State asked, “And [the victim] indicated that Mr. Brown had told the pit bull to get him?” The officer answered, “Right. That’s right.”
In support of his motion to transfer, Brown testified that he was seventeen years old at the time of each offense, and that while he had been through the juvenile court system before, he had been sent to training school on only one occasion.
At the conclusion of the hearing, the trial court denied Brown’s motion to transfer the charges to juvenile court, stating that it had “considered all those factors” of the relevant section of the Arkansas code. For error, Brown brings two claims: First, the State failed to produce substantial evidence to support the charges levied against him, and second, the State produced no evidence to show a repetitive pattern of adjudicated offenses that would suggest he was beyond rehabilitation.
In reviewing a transfer-denial decision, we do not overturn the circuit court unless the decision is clearly erroneous. McClure v. State, 328 Ark. 35, 39, 942 S.W.2d 243, 245 (1997) (citing Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995)). Further, the court’s decision to retain jurisdiction must be supported by clear and convincing evidence of three statutory factors: (1) the seriousness of the offense, and whether the juvenile used violence in its commission; (2) whether the offense is part of a repetitive pattern of adjudicated offenses that would lead the court to determine that the juvenile is beyond rehabilitation under existing programs; and (3) the juvenile’s prior history, character traits, mental maturity, and other factors that would show potential for effective rehabilitation. Ark. Code Ann. § 9-27-318(e)-(f) (Supp. 1995). We have held that the trial court is not required to give equal weight to each of these three factors. Jenson v. State, 328 Ark. 349, 353, 944 S.W.2d 820, 822 (1997).
Brown does not contest that he has been charged with serious and violent offenses. He argues, however, that the State did not present substantial evidence to link the charges to serious and violent conduct. In particular, he asserts that the testifying officers did not present any direct evidence that linked him to the offenses. What evidence the State did present, Brown asserts, was based on the hearsay testimony of the officers who were not present during the commission of the offenses.
We address the hearsay assertion first. We have said that inadmissible “hearsay admitted without objection may constitute substantial evidence to support a ruling.” Sanders v. State, 326 Ark. 415, 421, 932 S.W.2d 315, 318-19 (1996). Because Brown’s counsel did not object to the hearsay, the trial court did not err in considering it.
We next consider whether the State demonstrated that the charges were linked to the serious and violent nature of the offenses. We have said that “an information can constitute sufficient evidence to establish that the defendant is charged with a serious and violent crime.” Sanders, 326 Ark. at 420, 932 S.W.2d at 318 (citations omitted). In Sanders, however, we expressed concern that under the current interpretation of the juvenile code, prosecuting attorneys can file a serious charge against the juvenile in circuit court without producing substantial evidence to support the charge. Id. at 423, 932 S.W.2d at 319 (dictum); see also Sims v. State, 329 Ark. 350, 947 S.W.2d 376 (1997) (affirming the trial court’s refusal to transfer the case to juvenile court based on the serious and violent nature of the offense, and the State’s evidence tending to link defendant with the crime). Noting this potential for abuse, the dictum in Sanders warned that our interpretation was not meant to do away with the need for a meaningful hearing. Sanders, 326 Ark. at 423, 932 S.W.2d at 319.
In the case before us, the concerns expressed in Sanders do not apply because we conclude that Brown was given a meaningful hearing. Evidence was elicited at a hearing to show that the person who committed the offenses manifested conduct that is to be characterized as “serious” and “violent.” In addition, there was evidence to support other criteria of section 9-27-318 (e) - (f). Finally, we note that a juvenile-transfer hearing does not require a showing of probable cause. Indeed, it is the job of the circuit court to determine a defendant’s guilt or innocence.
The State’s evidence of fighting with and forcibly removing a jacket from a bus passenger is sufficient to establish that the robbery charge is linked to serious and violent conduct. Likewise, the State’s evidence supports the link between the aggravated assault charge against Brown and the serious and violent nature of that offense. This link was established by the police officer’s testimony regarding the seriousness of the injuries, the manner in which the injuries occurred, and an indication that the victim identified Brown as the offender. We conclude that the circuit court did not err in retaining jurisdiction pursuant to section 9-27-318(e).
We next turn to Brown’s second claim that the State produced no evidence to show a repetitive pattern of adjudicated offenses that would suggest that he was beyond rehabilitation. The State put on some evidence to suggest a repetitive pattern of adjudicated offenses. Brown admitted that he had been through juvenile court before, placed on probation, and sent to training camp after his probation was revoked, therefore providing evidence of a repetitive pattern.
As we consider whether there are other factors that would show potential for effective rehabilitation, we note that Brown was eighteen years old at the time of the hearing. In Rice v. State, 330 Ark. 257, 954 S.W.2d 216 (1997), we dispensed with the appellant’s argument by focusing on his age and reasoned that because he was eighteen years old, “his potential for rehabilitation within the juvenile system [was] nil.” Our decision in that case was based on statutory and case law establishing that a youth cannot be committed to the State Division of Youth Services for rehabilitation after the eighteenth birthday. Ark. Code Ann. § 9-28-208(d) (Supp. 1995); Jensen v. State, 328 Ark. 349, 944 S.W.2d 820 (1997); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Brown argues that the juvenile code provides a remedy. He asserts that because he was seventeen when the alleged offenses occurred, he could be adjudicated delinquent and kept under the watchful eyes of the court until his twenty-first birthday. Ark. Code Ann. § 9-27-303(l)(B) (Supp. 1995). This argument is unpersuasive when charges of serious and violent felony offenses remain to be adjudicated and the defendant is already more than eighteen years of age.
Based on considerations of Brown’s age and the State’s evidence linking the robbery and aggravated assault charges to serious and violent offenses, we conclude that there was no clear error in the trial court’s decision to deny transfer to juvenile court.
Affirmed.
Glaze, J., concurs. | [
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Donald L. Corbin, Justice.
Appellant Nathaniel Thomas appeals the denial of relief under Arkansas Rule of Criminal Procedure 37 from the Pulaski County Circuit Court. Appellant asserts that the trial court erred in denying the Rule 37 petition because his attorney was ineffective by failing to timely renew the motion for directed verdict at the conclusion of Appellant’s case, thus barring a challenge to the sufficiency of the evidence on appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 -2(a) (4). We affirm.
Appellant was charged along with three other men, James Ellison, Lawrence Butler, and Clayton Phillips, with three counts of capital murder in the shooting deaths of Cyrus Lee, Sabrina Earl, and Marcus Johnson at an apartment in Little Rock on February 19, 1992. He was tried before a jury on December 9 and 10, 1992, and found guilty of the capital murder of Cyrus Lee, and the first-degree murders of Sabrina Earl and Marcus Johnson. Appellant received respective sentences of life imprisonment without parole and two terms of forty years’ imprisonment to run concurrendy together, but consecutive to the life term.
On appeal to this court, Appellant raised two points for reversal, one regarding the sufficiency of the evidence and the second concerning the admissibility of custodial statements. Neither argument had merit, and we affirmed the judgment of the trial court. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). The record of the trial demonstrated that Appellant’s counsel did not attempt to renew the directed-verdict motion until the jury had begun its deliberations, after being prompted by the trial court. This court held that Appellant’s sufficiency argument was thus not preserved for appeal, because he failed to timely renew his motion for directed verdict after he had presented evidence in his defense. A defendant who goes forward with the production of additional evidence after a directed-verdict motion is overruled waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).
Following our affirmance of the direct appeal, Appellant filed in the trial court a petition for postconviction relief pursuant to Rule 37, which was subsequently denied. Appellant then appealed that ruling, and this court reversed and remanded so that the trial court could address Appellant’s allegation that his trial counsel was ineffective for failing to properly preserve his challenge to the sufficiency of the evidence. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). In that opinion, this court prospectively overruled the holdings in Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987), and Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991), that an allegation of ineffective assistance of counsel based on counsel’s failure to move for a directed verdict was not cognizable under Rule 37.
On remand, the trial court again denied the requested relief under Rule 37, after having reviewed the evidence regarding Appellant’s allegation that counsel had been ineffective in the representation of Appellant for fading to timely renew the motion for directed verdict. The trial court found in its order:
As the record from the trial reflects, at the end of the State’s case, Petitioner’s counsel made a detailed and thorough motion for a directed verdict. The Court overruled the motion, explaining that the State had provided sufficient evidence for the case to be presented to the jury. The fact that Petitioner’s counsel did not renew the directed verdict after the defense rested does not alter the sufficiency of the evidence presented by the State, which in the Court’s view, had already reached the amount necessary to proceed to the jury. It cannot be said that but for counsel’s failure to renew the motion, the factfinder, in this case the jury, would have reached a different conclusion on the guilt or innocence of Petitioner, since the Court had already determined that the State could proceed with its case. [Emphasis added.]
The question before us now is what standard of review should we apply in determining whether the trial court erred in reviewing its own previous decision to deny Appellant’s motion for directed verdict. We conclude that the appropriate standard of review for this issue is whether the trial court’s decision was clearly erroneous or clearly against the preponderance of the evidence presented at trial and during the hearing on the Rule 37 petition. For reasons set out below, we conclude that the trial court was not clearly erroneous in denying Appellant’s requested relief under Rule 37.
The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.
To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas, 322 Ark. 670, 911 S.W.2d 259. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. 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 in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668; Thomas, 322 Ark. 670, 911 S.W.2d 259.
Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Huls, 301 Ark. 572, 785 S.W.2d 467. In Huh, this court found that even if a timely objection at trial could have prevented the jury from hearing a witness’s testimony, the testimony, when taken with the entire evidence presented at trial, did not lead to a conclusion that there was a reasonable probability that the jury would have acquitted petitioner if the witness had not testified. In making a determination on a claim of counsel’s ineffectiveness, we must consider the totality of the evidence presented to the judge or jury. Id.
Normally, to prevail on a claim of counsel’s ineffectiveness, the appellant must demonstrate that but for counsel’s errors, the jury would have reached a different conclusion. In the present case, that cannot be the focus of our inquiry because if the directed-verdict motion had been timely renewed and granted, the matter would not have gone to the jury. The trial court in this case seemed to be puzzled because the case was remanded for a determination of whether counsel was ineffective due to the failure to renew the directed-verdict motion. The trial judge remarked that he had already decided that the State’s case was sufficient to go to the jury.
The duty of the trial court upon remand was to determine whether anything that happened between the time the motion was denied at the conclusion of the State’s case and the conclusion of all the evidence would have caused him to grant the motion upon renewal. An example of such an event might be the defense’s presentation of a witness who had previously testified for the prosecution, but wished to change or recant his or her testimony. Once the trial court determines that no such event occurred, and thus no prejudice resulted from the failure to renew the motion, an appeal of that decision would have to result ultimately in our review of whether the evidence was or was not sufficient for presentation to the jury. Upon reviewing the totality of the evidence, we conclude that there was sufficient evidence for presentation of the case to the jury.
The motion made at the end of the State’s case-in-chief was based on the assertion that the State had failed to prove that Appellant was an accomplice to the murders. The trial court denied the motion based on the fact that the jury might accept the statements that Appellant had given to the police. Arkansas Code Annotated § 5-2-403 (a) (Repl. 1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in the commission of the offense. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Under the accomplice liability statute, a defendant may properly be found guilty not only for his own conduct, but also for that conduct of.his accomplice. Id. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. In a case based upon circumstantial evidence, relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The mere presence of a person at the scene of a crime is not proof of his guilt. Green v. State, 265 Ark. 179, 577 S.W.2d 586 (1979).
From the record provided, we can discern the substance of Appellant’s statements as follows. Appellant told the police that one of the victims, Cyrus Lee, owed money for drugs to James Ellison, Lawrence Butler, and Clayton Phillips. After these three men gathered their guns, Appellant agreed to go with them to go get their money. Appellant asserted that the three men pushed their way into the apartment and stayed inside for thirty to forty-five minutes. Apparently, when they came outside with blood on their clothes, they told Appellant that the victim would not give them their money, so they made him pay another way. Ellison told Appellant that he should burn the bloodstained clothes. Appellant asserted that instead, he put the bloody clothes in a paper sack and left them in a trash dump behind Ellison’s house. Appellant declared that he remained outside while the murders were occurring inside the apartment. Notwithstanding that claim, the State asserts that he provided details of what occurred inside the apartment in his statement to police.
In sum, the totality of the evidence demonstrates that Appellant was not prejudiced by counsel’s failure to timely renew the directed-verdict motion. Appellant stated that he knew that the three men were going to the apartment to collect drug money and that they were armed with guns. He went with them to the apartment. He knew details about what happened inside the apartment, including the timing and location of the killings. He identified one of the murder weapons. In a taped statement, he stated that he could not see the victim that walked up later and entered the apartment, but he later made a photo identification of this victim. A bloody jacket was found in the house, near the trash dump where he claimed to have disposed of the other clothing, which he was supposed to dispose of by setting them on fire. He stated that he worked with the three codefendants making the drugs during this time period, and that he had continued to work with them after the murders. This evidence is sufficient to show that Appellant possessed the requisite knowledge and intent and was an accomplice in the three murders.
Based on the foregoing, Appellant did not demonstrate that he was prejudiced by counsel’s error in failing to renew the directed-verdict motion. While the Appellant was not able to directly appeal any challenge to the sufficiency of the evidence, there was substantial evidence to support the verdict. Appellant did not prove the second prong of the Strickland test and was thus not denied the right to a fair trial. We will not reverse for a mere potential of prejudice. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
Affirmed. | [
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Annabelle Clinton Imber, Justice.
The appellant, Craig Henry Burkhalter, was convicted of rape, sexual abuse in the first degree, and violation of a minor in the first degree. On appeal, Burkhalter contends that his convictions must be reversed due to juror misconduct. We find no merit to this argument, and accordingly, we affirm.
During the trial, the victim testified that starting when she was seven years old until she reached the age of fifteen, Burkhalter performed various sexual acts on her. Portions of the victim’s testimony were corroborated by a neighbor who witnessed and participated in some of the acts. Based on this evidence, the jury found Burkhalter guilty of rape, sexual abuse in the first degree, and violation of a minor in the first degree. Burkhalter does not challenge the sufficiency of the evidence to support these convictions.
During the sentencing phase of the trial, the court gave the jury AMI Crim. 2d 9401, which says:
In your deliberations on the sentence to be imposed, you may consider the possibility of the transfer of Craig Burkhalter from the Department of Correction to the Department of Community Punishment. After he serves one-third (1/3) of any term of imprisonment to which you may sentence him, he may be eligible for transfer from the Department of Correction to the Department of Community Punishment. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further to one-sixth (1/6) of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment.
The court also gave the jury AMI Crim. 2d 9402, which says:
Rape is punishable by life imprisonment or a term of years. Persons under sentence of life imprisonment are not eligible for transfer. If you sentence Craig Burkhalter to imprisonment for a term of years, after he serves one-half (1/2) of the term you impose he will be eligible for transfer from the Department of Correction to the Department of Community Punishment. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further to one-fourth (1/4) of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment. However, persons under sentence of life imprisonment are not eligible for meritorious good time.
The jury then retired to the deliberation room to decide on Burkhalter’s sentence. After they deliberated for twenty minutes, the jury sent the judge a note saying: “What’s life? Fractional breakdown. Consecutive or concurrent.” The judge sent back a note stating: “Life means fife. I cannot answer the other questions.” Approximately twenty minutes later, the jury sent the judge a second note saying: “We want to give him 20 years before parole. How do we do this?” The judge replied: “I cannot answer this. Sorry.”
Approximately three hours later, the jury announced that they were deadlocked eight to four on a sentencing decision. The court asked the jurors if further deliberations would prove futile. Several jurors nodded their heads affirmatively, but three jurors said that further deliberations would be helpful. The jury resumed deliberations and returned approximately thirty minutes later with the following sentencing decision: ten years’ imprisonment for sexual abuse in the first degree, ten years’ imprisonment for violation of a minor in the first degree, and life imprisonment for rape.
Burkhalter timely filed a motion for a new trial alleging that there had been a “manifest injustice” because the jury intended to sentence him to twenty years’ imprisonment instead of life. Burkhalter did not attach an affidavit or present any other evidence to substantiate the allegations contained in the motion. The motion was deemed denied thirty days after it was filed, and this appeal followed.
For his sole argument on appeal, Burkhalter contends that he should have been granted a new trial due to juror misconduct. In his motion for a new trial, Burkhalter claimed that the jury was confused about the sentencing procedure and thus rendered a sentence of life imprisonment instead of a sentence of twenty years. On appeal, Burkhalter has changed his argument and claims that a juror said during deliberations that Burkhalter would serve only seven years if sentenced to life imprisonment. As we have said on numerous occasions, we will not consider an argument raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997).
Furthermore, the only evidence Burkhalter provided in support of his allegation of juror misconduct was an affidavit signed by his attorney. This affidavit, however, was not included in the record. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and thus we have consistently refused to consider on appeal matters outside of the record. See, e.g., Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996) (excluding the chancellor’s letter opinion); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997) (omitting the transcript of the hearing); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993) (failing to include portions of the first trial). Because the affidavit Burkhalter presents in support of his contention of juror misconduct was not contained in the record, we are precluded from considering it upon appeal.
In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Burkhalter but not argued on appeal, and no reversible errors were found.
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Annabelle Clinton Imber, Justice.
This is a tort case in which the appellant, O’Neal Wilson, sued the appellees, Rebsamen Insurance, d/b/a Insurisk Insurance Services, and Jim Moor-head, for injuries he sustained while working for his employer. The trial court granted the appellees summary judgment because it ruled that they were immune from suit under the exclusive remedy provision of the workers’ compensation statute, and because they did not owe a duty of care to Wilson. We disagree with both of these rulings, and accordingly we reverse and remand.
Insurisk Insurance Services, a company owned and operated by Rebsamen Insurance, conducts loss-control surveys and recommends safety improvements for its customers. In the late 1970’s, Arkansas Oak Flooring hired Insurisk to conduct loss-control surveys of its facilities in an effort to contain the rising costs of workers’ compensation insurance coverage. Specifically, Insurisk contractually agreed to make inspections and provide recommendations regarding safety. Insurisk did not have the authority to implement the program or to make the suggested safety improvements. Jim Moorhead, Insurisk’s vice-president of management services, was in charge of the project.
On September 16, 1988, O’Neal Wilson was injured while he was working for his employer, Arkansas Oak Flooring, when he fell from a catwalk that did not have safety rails. Sometime after the accident, Arkansas Oak’s workers’ compensation carrier, Home Insurance Company, paid Wilson permanent and total disability benefits.
On April 23, 1993, Wilson filed a complaint against Insurisk and Jim Moorhead alleging that they were negligent in failing to discover, warn about, and correct the safety hazard posed by the unguarded catwalk. Wilson also claimed that Moorhead and Insurisk affirmatively hid the existence of the defect from Arkansas Oak by giving the company a clearance on overall safety when it knew or should have known of the unsafe condition of the catwalk. Finally, Wilson asserted that Moorhead and Insurisk had a “silent agreement” with Arkansas Oak to ignore safety violations so that Arkansas Oak could obtain “favorable insurance treatment.”
On May 30, 1995, Insurisk and Moorhead filed a motion for summary judgment contending that they did not owe a duty of care to Wilson, and that Wilson’s lawsuit was barred by the exclusive remedy provision of the workers’ compensation statute. Insurisk and Moorhead attached to their motion the affidavits of John Fox, Jr., the President of Arkansas Oak, Glenn Pdchards, Arkansas Oak’s plant supervisor from 1978 to 1980, and Jim Moorhead. In all three affidavits, the affiants declared that prior to Wilson’s accident Jim Moorhead recommended both orally and in writing that Arkansas Oak install guardrails on the catwalk to remedy the potentially dangerous condition. In addition, the affiants declared that Moorhead and Insurisk had no authority to implement their suggested changes. Finally, John Fox explained in his affidavit that Arkansas Oak decided against making the changes recommended by Moorhead and Insurisk “due to cost and feasibility considerations.”
In his response, Wilson produced the affidavits of William Fish, Larry Borecky, and Boulter Kelsey. William Fish witnessed Wilson’s fall, and testified that there were no guardrails on the catwalk at the time of the accident. Larry Borecky, Arkansas Oak’s safety manager who was hired one month before the accident, declared in his affidavit that Insurisk and Moorhead failed to notify him about the safety problem created by the unguarded catwalk. Finally, H. Boulter Kelsey, Jr., a professional engineer, declared in his affidavit that the unguarded catwalk created an unreasonably dangerous condition that should have been detected by Moorhead and Insurisk.
On September 20, 1996, the trial court ruled that Insurisk and Moorhead were immune from suit under the exclusive remedy provision of the workers’ compensation statute, and that they did not owe a duty of care to Wilson. Accordingly, the court granted summary judgment to Insurisk and Moorhead. From the order of summary judgment, Wilson filed a timely notice of appeal.
As we have stated on numerous occasions, summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). In making this determination, we review the evidence in the light most favorable to Wilson, as the party resisting the motion, and resolve all doubts and inferences in his favor. Wheeler, supra; Porter, supra.
I. Immunity under the Workers’ Compensation Act
For his first argument on appeal, Wilson contends that the trial court erred when it ruled that Insurisk and Moorhead were immune frqm liability under the Workers’ Compensation Act. Whether a safety consultant, which does not provide workers’ compensation coverage to the employer, is immune from tort liability under the Workers’ Compensation Act is an issue of first impression in Arkansas.
A. Ark. Code Ann. § 11-9-409
Insurisk and Moorhead contend that they are immune from Wilson’s tort action under Act 796 of 1993, codi fied at Ark. Code Ann. § ll-9-409(e) (Repl. 1996), which states that:
the insurance company, the agent, servant, or employee of the insurance company or self-insured employer, or a safety consultant who performs a safety consultation under this section shall have no liability with respect to any accident based on the allegation that such accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the insurance company or self-insured employer for the prevention of accidents in connection with operations of the employer.
The emergency clause of Act 796, however, specifically states that it “shall apply only to injuries which occur after July 1, 1993.” 1993 Ark. Acts 796, § 41. In this case, Wilson was injured on September 16, 1988, which is well before the applicable date of Act 796. In addition, Insurisk and Moorhead did not argue before the trial court that they were immune under Ark. Code Ann. § 11-9-409 (e), and thus they are precluded from raising this issue for the first time on appeal. See, McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).
B. Ark. Code Ann. §§ 11-9-105 and 410
Instead of arguing that they were immune under Ark. Code Ann. § ll-9-409(e), Insurisk and Moorhead argued before the trial court that they were immune from Wilson’s tort action under Ark. Code Ann. § ll-9-105(a) (Repl. 1996), which states that:
The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer ... on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer.
Although Ark. Code Ann. § ll-9-105(a) provides that workers’ compensation is the employee’s exclusive remedy against the employer, the employee may sue a “third-party” who negligently causes his injuries under Ark. Code Ann. § ll-9-410(a)(l)(A) (Repl. 1996), which provides that:
The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.
(Emphasis added.) On appeal, Wilson argues that Insurisk and Moorhead are not immune under the exclusive remedy provision of section 105 because they are “third parties” as defined by section 410. We agree.
In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), we defined a “third party” as used in section 410 as:
some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.
(Emphasis added.) Relying upon this language, we reasoned in Burkett v. PPG Industries, Inc., 294 Ark. 50, 740 S.W.2d 621 (1987), that the workers’ compensation carrier was not a “third party” under section 410 because it was the only other entity, besides the employer, that could be held “liable under the workers’ compensation act.” Hence, we held in Burkett, that a workers’ compensation carrier has the same immunity from suit as provided to the employer under section 105. Id. Likewise, in Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996), we held that co-employees are immune from suit under section 105 if at the time of the injury they were performing the employer’s duty to provide a safe work place.
In this case, however, Insurisk was neither Arkansas Oak Flooring’s workers’ compensation carrier as in Burkett, nor was it Arkansas Oak Flooring’s employee, as in Brown. Instead, Insurisk was an independent contractor hired by Arkansas Oak Flooring to perform safety inspections. Because we have strictly construed section 105 to extend immunity beyond the employer in only the two instances enumerated in Burkett and Brown, we hold that the trial court erred when it ruled that Insurisk was immune from Wilson’s tort action under the exclusive remedy provision of the Workers’ Compensation Act.
II. Duty of Care
Next, Wilson claims that the trial court erred when it ruled that Insurisk and Moorhead did not owe him a duty of care. Specifically, Wilson argues that by contracting with Arkansas Oak Flooring to perform safety inspections of its facilities, Insurisk and Moorhead undertook a duty of care towards all of Arkansas Oak Flooring’s employees to perform those inspections with reasonable care. We agree with this argument, and accordingly we reverse the trial court’s order of summary judgment.
In Construction Advisors, Inc. v. Sherrell, 275 Ark. 183, 628 S.W.2d 309 (1982), we previously held that by undertaking a duty to the owner of a construction site, Construction Advisors also owed a duty of care to a third party who was injured due to Construction Advisor’s negligent performance of its undertaking. In Sherrell, however, Construction Advisors agreed to maintain a safe premises instead of merely agreeing to inspect the work site and warn about potential safety problems as in this case. Id. Hence, we are asked for the first time to decide whether an independent consulting firm that agrees to perform safety inspections of an employer’s premises, but has no authority to implement the safety changes it suggests, owes a duty of care to a third-party employee who is injured on the job.
Wilson argues that such a duty exists under section 324A of the Restatement of Torts which states that:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm, resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965). According to the comments to the Restatement, the “undertaker” is liable to the third party under section (b) merely if it undertakes a duty owed to the third party by another. Restatement (Second) of Torts § 324A, cmt. d (1965).
As previously mentioned, whether an independent safety-inspection company owes a duty of care to a third-party employee is an issue of first impression in Arkansas. Other jurisdictions have consistently held that pursuant to section (b) of Restatement 324A an independent consulting firm that agrees to perform safety inspections of an employer’s work place owes a duty of care to a third-party employee to perform those inspections with reasonable care. Canipe v. National Loss Control Serv. Inc., 736 F.2d 1055 (5th Cir. 1984); Santillo v. Chambersburg Eng’g Co., 603 F. Supp. 211 (E.D. Pa. 1985), aff'd, 802 F.2d 447 (3rd. Cir. 1986); see also Price v. Management Safety Inc., 485 So.2d 1093 (Ala. 1986) (imposing a duty without mentioning Restatement § 324A); Gallicho v. Corporate Group Serv. Inc., 227 So.2d 519 (Fla. App. 1969) (finding a duty of care under contract law). These jurisdictions reason that the safety consultant owes a duty of care under Restatement § 324A(b) because it is reasonably foreseeable that if the inspections are done improperly a third-party employee will be injured. See Santillo, supra; Gallicho, supra.
Moreover, the facts of the cases in which other courts have imposed a duty of care are virtually identical to the facts at hand. For example, in Santillo, an employer hired NATLCO, an independent consulting firm, to perform safety inspections of its plant and make recommendations concerning safety improvements. Santillo, supra. Although it appears that NATLCO did not have the authority to implement the safety improvements it recommended, the Pennsylvania court held that pursuant to section (b) of Restatement 324A, NATLCO owed a duty of care to an employee who was injured as a result of NATLCO’s allegedly negligent inspection of a piece of machinery. Santillo, supra.
Likewise, in Canipe, an employer hired National Loss, an independent consulting firm, to provide safety inspections and accident-prevention services at its manufacturing plant. Canipe, supra. As in Santillo, National Loss did not have the authority to implement the safety improvements it deemed necessary. Canipe, supra. Despite this fact, the Fifth Circuit Court of Appeals held that National Loss owed the employee a duty of care under Restatement 324A(b) to conduct its safety inspections with reasonable care. Canipe, supra.
In both Santillo and Canipe, the courts imposed a duty of care on the independent safety consultant despite the fact that the consultant did not have the authority to implement the safety corrections. Moreover, Insurisk and Moorhead have failed to cite, nor could we find, any case in which the ability of the safety consultant to implement improvements was a relevant factor in determining whether the consultant owed a duty of care to the injured employee. See generally, Frank J. Wozniak, Breach of Assumed Duty to Inspect Property as Ground for Liability to Third Party, 13 A.L.R.5th 289 (1993). This is because the authority to implement safety changes is an issue of proximate causation and not duty.
We are aware that some courts have refused to impose a duty of care when the inspection is performed by the employer’s insurance carrier because the carrier performed the inspection to reduce its own potential liability and not for the purpose of protecting employees from harm. See, e.g., Davis v. Liberty Mut. Insur. Co., 525 F.2d 1204 (5th Cir. 1976) (applying Alabama law); Tillman v. Travelers Indem. Co., 506 F.2d 917 (5th Cir. 1975) (applying Mississippi law). Likewise, some courts have refused to impose a duty of care when the inspections are performed by a government agency. See, e.g., Raymer v. United States, 660 F.2d 1136 (6th Cir. 1981) (applying Kentucky law); Blessing v. United States, 447 F. Supp. 1160 (E.D. Pa. 1978) (applying Pennsylvania law).
In this case, Insurisk was neither Arkansas Oak Flooring’s insurer nor was it a government agency. Thus, we hold that Insurisk and Moorhead owed a duty of care to Arkansas Oak Flooring’s employees, including Wilson, to perform safety inspections with reasonable care. In this respect, however, we acknowledge that the degree of the undertaking defines the scope of the duty of care owed to the third party. See, e.g., Santillo, supra; Canipe, supra; Blessing, supra.
In this case, Insurisk and Moorhead agreed to inspect the work site and warn Arkansas Oak Flooring about any detected safety hazards. Plence, Insurisk and Moorhead will be liable to Wilson only if it is determined that they breached those duties, and that such breach proximately caused Wilson’s injuries. Whether Arkansas Oak Flooring would have exercised its sole authority to implement the changes suggested by Insurisk and Moorhead is an issue of proximate causation, not duty, and thus, should be resolved by the jury instead of the court. See, Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 285 (1996). Moreover, neither party appealed the trial court’s finding that “there would be sufficient evidence to make [a] jury question regarding breach of duty and proximate cause if the Defendants owe a duty” to Wilson.
For these reasons, we conclude that Insurisk and Moorhead are not immune from Wilson’s tort action under the exclusive remedy provision of the workers’ compensation statute, and that pursuant to section (b) of the Restatement (Second) of Torts § 324A, Insurisk and Moorhead owed Wilson a duty of care in connection with their undertaking to inspect the premises and warn Arkansas Oak Flooring about any detected safety hazards. Accordingly, we reverse the trial court’s order of summary judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Wilson died on September 5, 1993, as a result of a heart attack that was not associated with the injuries he sustained from his fall at Arkansas Oak’s facility. Simmons First National Bank, the special administrator of Wilson’s estate, was allowed to pursue this case on Wilson’s behalf.
The doctrine embodied in Restatement 324A is frequently called the “good Samaritan” doctrine even though the duty may be undertaken gratuitously or for consideration. See, e.g., Pantentas v. United States, 687 F.2d 707 (3rd Cir. 1982); Santillo v. Chambersburg Eng’g Co., 603 F. Supp. 211 (E.D. Pa. 1985), aff'd, 802 F.2d 448 (3rd Cir. 1986). | [
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Annabelle Clinton Imber, Justice.
This is an interlocutory appeal filed by Djuane Thompson from the circuit court’s denial of his motion to transfer his criminal case to juvenile court. We reverse and remand for transfer to the juvenile court.
Djuane Thompson, and two others, were charged as adults in the Pulaski County Circuit Court with aggravated assault, kidnapping, and theft of property. According to the information, a handgun was used in these crimes, and less than $500 was taken from the victim. At the time of the alleged offenses, Thompson was sixteen years of age. Thompson subsequently filed a motion to transfer the case to juvenile court.
During the transfer hearing, Thompson’s mother, Shirley Ford, testified that her son had no prior charges in either juvenile or circuit court, that he attended school regularly, and that he did not “run the streets.” Thompson’s mother explained that during the summer months her son took tutoring classes and mowed yards to earn money. She described Thompson as a “good kid” who was helpful around the house and got along well with his family. Finally, Ford testified that she never suspected that Thompson was involved in gang activity or used drugs or alcohol.
The State did not put on any evidence during the hearing, but instead relied upon the allegations asserted in the information. The prosecutor, however, admitted to the trial court that Thompson did not have a weapon, but his codefendants did. The trial court denied the motion to transfer, and Thompson timely filed this interlocutory appeal. We have jurisdiction pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1995).
On appeal, Thompson alleges that the trial court erred when it denied his motion to transfer. To determine whether a criminal case should be transferred to juvenile court, the trial court must conduct a hearing and consider the following factors:
(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.
Ark. Code Ann. § 9-27-318(e) (Supp. 1995). Although the court must consider all of the above factors, it is not required to give them equal weight. Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997); Olgesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997). The trial court’s decision to try the juvenile as an adult must be supported by clear and convincing evidence, Ark. Code Ann. § 9-27-318(f), and we will not reverse the court’s determination unless it is clearly erroneous. Fleetwood, supra; Olgesby, supra.
I. Juvenile’s Participation in the Crime
It is well settled that a juvenile may be tried as an adult solely upon the serious and violent nature of the offense. Sims v. State, 329 Ark. 350, 947 S.W.2d 376 (1997); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). Although the charges against Thompson were serious, he claims on appeal that the trial court’s ruling must be reversed because the prosecutor conceded that violence was employed by the codefendants, but not Thompson. We, however, have previously held that:
[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.
Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996); see also, Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995); Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994). Thus, we find no merit to Thompson’s first argument.
II. Sufficiency of the Information Alone
Next, Thompson contends that the trial court’s ruling must be reversed because there was no evidence presented during the transfer hearing to substantiate the serious and violent nature of the charges contained in the information. We agree with Thompson’s argument, and accordingly we reverse and remand for transfer to the juvenile court.
For several years, we have held that the trial court could rely solely upon the allegations contained in the information to support its finding that a juvenile should be tried as an adult due to the serious and violent nature of the crime. See, e.g., Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). In Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), we began to question the soundness of this rule. Although the sufficiency of the information alone was not an issue in Sanders, we made the following admonition:
This case exemplifies the fact that, under our current interpretations of the code, prosecuting attorneys can file a serious charge against a juvenile in circuit court and do nothing more. It may be that there is no substantial evidence to support the charge, and a transfer may be denied. In this case the trial judge was apparently frustrated by a total lack of proof by the State. He even inquired whether the knife alleged to have been used was a butter knife or a butcher knife, and the State did not know. This type of proceeding was not envisioned by the drafters of the juvenile code, and we did not intend for our interpretations to do away with the need for a meaningful hearing. As a result, we issue a caveat that in juvenile transfer cases tried after this date [October 28, 1996], we will consider anew our interpretation of the juvenile code when the issues are fully developed and briefed.
Id. (emphasis added).
Less than six months later, the appellant in Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), accepted our invitation in Sanders to reevaluate our interpretation of the juvenile code by arguing that his conviction should be reversed because the trial court based its denial of his motion to transfer solely upon the allegations contained in the information. The record of Humphrey’s case, however, revealed that the allegations contained in the information were substantiated by two witnesses who testified during the transfer hearing about the serious and violent nature of the crimes. Id. Hence, we did not reach the issue.
A few months later, we announced once again that if the proper case was presented, we would reconsider the issue of whether a court could base its decision on a motion to transfer solely upon the allegations contained in the information. Ponder v. State, 330 Ark. 43, 953 S.W.2d 555 (1997) (Glaze, J., concurring). We find that this case presents the proper opportunity to consider this issue because there was no evidence to substantiate the allegations contained in the information, and the hearing was held after October 28, 1996, as required by Sanders.
The plain and unambiguous language of the transfer statute declares that:
Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.
Ark. Code Ann. § 9-27-318(d) (emphasis added). If the State can merely rest upon the allegations in the information that the crime was violent and serious, there is no need to have such a hearing. In fact, the hearing in this case was far from “meaningful” as stated in Sanders.
Hence, we hold that from the date of this opinion forward, there must be some evidence to substantiate the serious and violent nature of the charges contained in the information. Accordingly, all prior decisions inconsistent with this opinion are hereby overruled. Furthermore, we reverse the trial court’s denial of Thompson’s motion to transfer and remand for transfer to the juvenile court. The dissenting and concurring opinions debate which party bears the burden of proof. We, however, refuse to address the issue at this time because it was not raised by either party.
Reversed and remanded for orders consistent with this opinion.
Newbern, J., concurring.
Corbin and Brown, JJ., concurring in part and dissenting in part. | [
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Annabelle Clinton Imber, Justice.
This is an interlocutory appeal from an order certifying a class action. See Ark. Sup. Ct. R. l-2(a)(ll); Ark. R. App. P. — Civ. 2(a)(9). We affirm the trial court’s order.
On September 1, 1994, the appellees, Michael and Pamela Jacola, purchased a group health insurance policy from the appellants, Mega Life & Health Insurance Company (“Mega”), for themselves and their two dependents. The group policy was issued through the Alliance for Affordable Health Care (“Alii— anee”) which served as group master policyholder. Soon thereafter, the Jacolas’ minor daughter received outpatient medical treatment, and Mega refused to pay the medical bills.
On May 17, 1995, the Jacolas filed a tort action against Mega and the two agents who sold them the policy alleging numerous individual theories for recovery including negligence, fraud, misrepresentation, and false advertising. In their complaint, the Jacolas also requested class certification so that they could represent approximately 400 other Arkansans who had purchased identical health insurance policies from Mega.
In their motion for class certification, the Jacolas alleged that Alliance was a sham organization thereby making the Mega health insurance policies individual, instead of group, policies. Additionally, the Jacolas asserted on behalf of the proposed class that the policies they purchased from Mega were void in two respects. First, the Jacolas asserted that the policies were void because Mega failed to comply with Ark. Code Ann. § 23-98-107(a) (Repl. 1992), which requires issuers of minimum basic benefit policies to obtain from their prospective insureds a written statement acknowledging the limited nature of the coverage provided. The Jacolas also claimed that the policies were void because Mega failed to comply with Insurance Commission Rule 18 which requires a stamped notification on the first page of an individual health insurance policy that does not cover outpatient services. On behalf of the class, the Jacolas asked the court to declare the policies void, force Mega to withdraw use of the policy in Arkansas, grant compensatory damages in the amount of the premiums collected from the insured for the past five years, and award punitive damages.
The trial court conducted two hearings on the Jacolas’ certification motion. On August 8, 1996, the trial court granted the Jacolas’ motion for certification pursuant to Ark. R. Civ. P. 23. In its order, the court found that the Jacolas had satisfied the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy. The trial court, however, did not make specific findings regarding the existence of the Rule 23(b) requirements of predominance or superiority.
On appeal, Mega asserts that the trial court’s order of certification is erroneous because the Jacolas failed to satisfy each of the six requirements listed in Rule 23(a) & (b). According to Ark. R. Civ. P. 23, a trial court may certify a class only if the following conditions are met:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parries will fairly and adequately protect the interests of the class.
Ark. R. Civ. P. 23(a). Additionally, the court must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b). A trial court has broad discretion in determining whether these elements have been satisfied, and we will not reverse absent an abuse of that discretion. Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996); Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995).
Citing Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996), Mega asserts that a trial court is not allowed to look beyond the pleadings to determine whether the requirements of Rule 23 have been satisfied. We, however, rendered no such ruling in Farm Bureau. Rather, we clearly enunciated that neither the trial court nor the appellate court may delve into the merits of the underlying claim when determining whether the requirements of Rule 23 have been satisfied. Id. Although a trial court may not consider whether the plaintiffs have a cause of action or if they will ultimately prevail on the merits, the court may hold a hearing to determine whether the requirements of Rule 23 have been satisfied. In fact, two such hearings were held in this case and both sides were allowed to present testimony and introduce documentary evidence. Thus, we conclude that Mega’s interpretation of Farm Bureau is erroneous.
I. Failure to Make Findings
First, Mega asserts that we must reverse the certification order because the trial court failed to make specific findings regarding the existence of the Rule 23(b) requirements of predominance and superiority. This issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).
Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal. See Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996); Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994).
Implicit in the trial court’s order granting class certification is the court’s ultimate conclusion that all six elements of class certification have been satisfied. Thus, on appeal we hold that Mega has waived only its right under Ark. R. Civ. P. 52 to have the trial court enter specific findings in its order regarding the satisfaction of each of the six elements of class certification. Mega has not, however, waived its right to contest the trial court’s ultimate conclusion that all six elements have been satisfied as required by Ark. R. Civ. P. 23. We agree with the dissent that there must be evidence in the record to support the trial court’s ultimate conclusion that all six elements of class certification, including the predominance and superiority requirements of Rule 23(b), have been satisfied. We, however, disagree with the dissent’s assertion that we must reverse a certification order that does not make specific findings regarding the Rule 23(b) requirements when the complaining party failed to request specific findings under Rule 52. Accordingly, we find no merit to Mega’s first argument on appeal.
We also must respond to the dissent’s contention that the certification order must be reversed because the trial court failed to conduct a “rigorous analysis” of the Rule 23(b) requirements of predominance and superiority. In support of this argument, the dissent cites Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). The Arthur opinion, however, is devoid of any language requiring the trial court to conduct a “rigorous analysis.” In fact, we are unable to find any Arkansas case requiring the trial court to conduct a rigorous analysis, or for that matter, any case that describes exactly what such an analysis entails. Instead, we have consistently held that we will reverse a trial court’s certification order only when the court has abused its discretion. Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996). In making this determination, we have consistently reviewed the evidence in the record to determine whether it supports the trial court’s ultimate conclusion regarding certification. See, e.g., Direct Gen., supra; Arthur, supra; We have not, as argued by the dissent, previously required the court to enter into the record a detailed explanation of why it concluded that certification was proper, and we refuse to impose such a requirement upon the trial court at this time.
II. Requirements of Rule 23
Next, Mega claims that the order of certification must be reversed because the Jacolas failed to satisfy each of the six requirements of Rule 23. We disagree with this assertion, and accordingly we affirm the trial court’s order of certification.
A. Numerosity
The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that:
the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.
We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. See, e.g. Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986) (holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981) (rejecting a class of only seventeen potential plaintiffs).
In this case, the trial court found that the numerosity requirement had been satisfied because the Jacolas provided evidence that there were over 400 Arkansans who had purchased identical policies from Mega. Mega attempts to defeat the trial court’s finding by declaring that only fourteen of these policyholders purchased their policies from the same agents as the Jacolas, and that only one of these fourteen policyholders (other than the Jacolas) has been denied benefits. This argument, however, ignores the Jacolas’ underlying claim on behalf of the class that the policies are void irrespective of any representations made by a particular agent. Further, Mega’s argument addresses the merits of the underlying claim. We have continuously held that whether the plaintiffs have stated a cause of action or will ultimately prevail on the merits is immaterial to our determination of whether the trial court erred when it found that the class should be certified under Rule 23. Direct Gen., supra; Farm Bureau, supra; First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 801 S.W.2d 38 (1990). Thus, we conclude that the trial court did not abuse its discretion when it found that the numerosity requirement had been satisfied.
B. Commonality
The second requirement of Rule 23 is that there are “questions of law or fact common to the class.” Ark. R. Civ. P. 23(a)(2). In this case, the questions common to all members of the class are: 1) whether Alliance is a true group master policyholder; 2) whether the policies issued by Mega are group or individual health insurance polices; 3) whether the policies are void because Mega failed to obtain written acknowledgements from their insureds that the policies were minimum basic benefits policies as required by Ark. Code Ann. § 23-98-107(a) (Repl. 1992); and 4) whether the policies are void because Mega failed to comply with Insurance Commission Rule 18 which requires a stamped notification on the first page of an individual health insurance policy that does not cover outpatient services.
If these issues are resolved in favor of the class, the individual members will have suffered a common injury of paying premiums for a void insurance policy. Thus, the class members may be entitled to rescission of the policies and a refund of the premiums paid, or coverage for outpatient services. Thus, we conclude that the trial court did not abuse its discretion when it found that the commonality requirement had been satisfied.
C. Predominance
The next logical issue is whether the “common claims predominate over any questions affecting only the individual members” as required by Rule 23(b). As previously discussed, there are several issues common to the class members. However, there are also several individual issues such as whether misrepresentations were made by the agents selling the policies, whether the insureds relied upon these misrepresentations, and the extent of each individual’s damages. Thus, the greater issue presented by this case is whether these common issues predominate over the individual issues such that certification is proper.
In International Union of Electrical, Radio & Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), we held that the predominance element could be satisfied if the preliminary, common issues were resolved before the individual issues. In Hudson, non-union workers sued the union for lost wages and personal and property damages that they suffered when they attempted to cross the picketline. Id. The case presented one common issue of whether the union could be held liable for the actions of its mem bers, and several individual issues regarding the extent of damages. Id. In Hudson, we explained that:
By limiting the issue to be tried in a representative fashion to the one that is common to all, the trial court can achieve real efficiency. The common question here is whether the unions can be held liable for the actions of their members during the strike. If that question is answered in the negative, then the case is over except for the claims against the named individual defendants which could not be certified as a class action. If the question is answered affirmatively, then the trial court will surely have “splintered” cases to try with respect to the damages asserted by each member of each of the subclasses, but efficiency will still be achieved, as none of the plaintiffs would have to prove the unions’ basic liability.
Id. We also found that this bifurcated process was consistent with Rule 23(d) which allows the trial court to enter orders necessary for the appropriate management of the class action. Id.
Since Hudson, we have approved this bifurcated approach to the predominance element by allowing the trial courts to divide the case into two phases: 1) certification for resolution of the preliminary, common issues; and 2) decertification for resolution of the individual issues. For example, in Security Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991), we allowed the court to certify a class action contesting the validity of an annuity policy despite the fact that there were individual issues regarding the law in thirty-nine states where the policies were issued because we found that “resolution of the common questions of law or fact would enhance efficiency for all parties, even if individual claims remained to be adjudicated.”
Likewise, in Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991), we affirmed a class action of plaintiffs who claimed they suffered a variety of damages when the defendant’s train overturned and released volatile and toxic chemicals into the area. The common issues were the existence of strict liability, and whether the railroad was negligent, while the individual issues were proximate causation and the extent of damages suffered by each class member. Id. As in Hudson and Security Benefit, we held that the case should proceed as a class action for reso lution of the prehminary, common issues. We also admonished that predominance may not be determined by comparing the mere number of individual versus common claims. Id.
However, in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), we found that the bifurcated approach did not adequately resolve the predominance problem. In Arthur, the proposed class was a group of patients who had an experimental product called “Orthoblock” surgically implanted into their spines. Id. The common issue in Arthur was whether Orthoblock was a defective product, and there were numerous individual issues regarding informed consent, proximate causation, and damages. Id. The preliminary issue in Arthur, was what the patient knew prior to receiving the implantation. Id. If the patient was fuEy aware of the risks of the experimental treatment, then aE subsequent issues would be rendered moot. Id. The prehminary issue, therefore, was an individual issue instead of a common issue as in Hudson, Security Benefit, and Summons, thus rendering the bifurcated approach utilized by those cases impractical.
We find that this case is like Hudson, Security Benefit, and Summons, in that the prehminary issues for resolution are issues that are common to aE class members. For instance, the court must first determine whether the Alliance is a true group master pohcyholder, and whether the pohcy Mega issued was a group or individual pohcy. If the court finds that Mega issued a true group policy, then the notice requirements under Ark. Code Ann. § 23-98-107 (a) and Insurance Commission Rule 18 wih be rendered moot. Because we hold that the common issues presented by this case must be resolved prior to addressing the individual issues as in Hudson and its progeny, we conclude that the Jacolas have satisfied the predominance requirement.
D. Superiority
The next element of Rule 23, is that “a class action is superior to other avaEable methods for the fair and efficient adjudication of the controversy.” Ark. R. Civ. P. 23(b). We find that by first addressing the issues common to aE members of the class, the court can achieve real efficiency. See Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); Hudson, supra. Moreover, certifying this case as a class action is fair to both sides. By bifurcating the proceeding, Mega will be able to pursue its individual defenses, such as the defense that the Jacolas did not read their policy until after they filed this action, during the second phase of the trial. Hudson, supra. We also find that class certification is also fair to the plaintiffs because it is more economical to pursue the action as a class instead of individually. Summons, supra; Lemarco, supra. Thus, we also conclude that the superiority requirement has been satisfied.
E. Typicality
The next requirement is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Ark. R. Civ. P. 23(a)(3). In Direct General Insurance Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997), we recently explained that the typicality requirement is satisfied if the representative’s claim arises from the same wrong allegedly committed against the members of the class. We have also adopted the following explanation of the typicality requirement taken from New-berg’s treatise on class actions:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
Id., (citing Herbert B. Newberg, Newberg on Class Actions, § 3.13, at pp. 166-67 (2d ed. 1985)) (emphasis added). Thus, when analyzing this factor, we focus upon the defendant’s conduct and not the injuries or damages suffered by the plaintiffs. Direct Gen., supra; Cheqnet, supra; Summons, supra.
In this case, the common issues are whether Alliance is a true group master policyholder, whether Mega issued group or individual policies, and whether Mega complied with the statutory and regulatory notice requirements. Each of these claims arise from Mega’s common course of selling an alleged group policy through Alliance. Because each of these common claims arose from the same wrong allegedly committed by Mega, we find no abuse in the trial court’s determination that the Jacolas’ claim is typical of the claims presented in the class action.
F. Adequacy
The last element is whether the Jacolas “will fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). We have previously explained that the three elements of this requirement are that:
(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.
Direct Gen., supra; First Nat’l, supra.
In their complaint and request for certification, the Jacolas stated that their attorney, John Doyle Nalley, would fairly and competently represent the class. Absent a showing to the contrary, we may presume that the representative’s attorney will vigorously and competently pursue the litigation. Herbert B. Newberg, Newberg on Class Actions, §§ 3.24, 3.42 (3d. ed. 1992). Additionally, there is no evidence that the Jacolas have a conflict of interest with the class members. Thus, we hold that the first and second elements of the adequacy requirement have been established.
Finally, in order to establish adequacy, the representative must show some minimal interest in the case. We have held that this element of adequacy is satisfied if the representative displays a minimal level of interest in the action, a familiarity with the challenged practices, and the ability to assist in litigation decisions. Direct Gen., supra; Cheqnet, supra; Union Nat’l Bank v. Bamhart, 308 Ark. 190, 823 S.W.2d 878 (1992). During the hearing, Mike Jacola testified that he had read the complaint and understood the allegations against Mega. Jacola further testified that he had stayed in touch with his lawyer since the lawsuit was filed, that he understood his duties as class representative, and that he was willing to comply with those duties. Therefore, we conclude that the trial court did not err when it held that the Jacolas had fulfilled the adequacy requirement.
In response, Mega asserts that the Jacolas are inadequate representatives because their claim will ultimately fail due to the fact that they did not read their policy. This argument, however, ignores the Jacolas’ underlying claim on behalf of the class that the policies are void. Furthermore, Mega’s argument addresses the merits of the underlying case, and thus we will not consider it when determining whether the requirements of Rule 23 have been satisfied. Direct Gen., supra; Farm Bureau, supra; First Nat’l, supra. Thus, we also find no error in the trial court’s determination that the adequacy requirement had been satisfied.
For these reasons, we conclude that the trial court did not abuse its discretion when it held that class certication was proper under Rule 23. Accordingly, we affirm.
Affirmed.
Thornton, J., dissents | [
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Per Curiam.
Petitioner Stanley Frank Boyd, a prisoner in the Arkansas Department of Correction, states that on April 2, 1997, he filed a Freedom of Information Act request with the Honorable Tom Keith, Carroll County Circuit Judge. The request sought copies of records allegedly in the files of the Circuit Court. The matter apparently remains pending before the Circuit Court. Petitioner Boyd seeks a writ of mandamus to cause Judge Keith to grant his request.
The Attorney General, on behalf of Judge Keith, has responded by denying that the request has merit rather than addressing the Circuit Court’s failure to act on the request.
The writ of mandamus is granted to require only that the Circuit Court act upon the request of Mr. Boyd. | [
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Ray Thornton, Justice.
Appellant Clint Lammers was tried and convicted of capital murder in the slaying of Lois Wallace, a clerk at a grocery store in Stuttgart. He was convicted at a jury trial and sentenced to life imprisonment without parole. He argues four points on appeal, none of which contains reversible error. However, pursuant to the provisions of Ark. Sup. Ct. R. 4-3(h), we have examined the complete record for any prejudicial error that was objected to below, but not argued on appeal. We have concluded that there was reversible error when the trial court ruled that appellant’s peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 476 U.S. 79 (1986), and ordered the juror to serve over appellant’s objection.
Appellant’s conviction was based upon evidence that he and two accomplices, Sean Smith and Brandon Isbell, who were tried separately, planned to rob Goacher’s IGA grocery store and shoot the clerk to eliminate her as a witness. They went to the grocery store on the morning of October 28, 1994, where they first purchased batteries and remained in the store while they discussed their next move. Isbell picked up a pair of gloves and went to the front of the store, while appellant and Smith remained in the back. Isbell had a gun with him. He went to the cash register to pay for the gloves and shot the clerk, Ms. Wallace, in the head. When they could not open the cash register, they grabbed some cigarettes and fled to appellant’s home. They took the gun, cigarettes, batteries, and gloves to a shed near appellant’s house, where they hid the gun. They called police from appellant’s house and turned themselves in. AH three gave statements while in custody.
After the poHce arrived at the house, Smith told them what was hidden in the shed. The officers immediately conducted a warrantless search of the shed and found a .357 caliber revolver hidden under a stuffed animal and a .22 caliber handgun in a paper bag. They found the cigarettes, batteries, and gloves lying outside on the ground. AppeUant argues that the confession and search were Hlegal, and that without this evidence, there was not substantial evidence to convict him.
Before we discuss the error upon which we reverse, or any of the other points on appeal, we must first consider his challenge to the sufficiency of the evidence. We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, including that which perhaps should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
There was an abundance of evidence to support a conviction. AppeUant’s argument that the evidence was insufficient because some of it should have been suppressed is based upon a mistaken premise. See Scroggins v. State, supra. Further, this issue was not preserved for appeal because his motions lacked the requisite specificity. At the close of the State’s case, appeHant stated that he moved for “a directed verdict of dismissal based on the sufficiency of the evidence.” Fie renewed his motion at the close of his case. We cannot consider this argument because his motions did not state “the specific grounds therefor.” Walker v. State, 318 Ark. 107, 108, 883 S.W.2d 831, 832 (1994). A general motion such as the one made by appeHant is not sufficient to apprise the trial court of the missing proof so that it can be made aware of any deficiency. Id. Therefore, the argument is procedurally barred from our review.
In capital murder cases, we are required by Ark. Sup. Ct. R. 4-3 (h) to “ . . . review aH errors prejudicial to the appeHant in accordance with Ark. Code Ann. § 16-91-113(a).” Pursuant to the requirements of this rule, we make our own examination of the record and reject or accept on their merits aU objections made at trial, whether or not argued on appeal, but we do not consider a matter in the absence of an objection. Fretwell v. State, 298 Ark. 91, 708 S.W.2d 630 (1996). We review prejudicial, erroneous rulings even when such objections are not briefed by either the appellant or the State. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). We have concluded that the trial court committed prejudicial error in denying appellant’s peremptory challenge of Mr. Clifford Burdett on the basis of the principles established by Batson v. Kentucky, 476 U.S. 79 (1989).
We note that before Mr. Burdett was challenged, the selection of twelve jurors had been completed without an objection being preserved as to any peremptory challenge or dismissal for cause. However, the trial court determined that two alternate jurors should be chosen in the event that one or more of the jurors could not serve. Appellant, a seventeen-year-old white male, attempted to exercise a peremptory challenge of Mr. Burdett, and the prosecutor asked for a bench conference, arguing that appellant struck Mr. Burdett because he is a “white male of middle age.” The following colloquy ensued:
Mr. J.W. Green, Jr.: My client told me to strike him, Your Honor. My client sits here facing a possible death sentence. My client does not feel comfortable with this gentleman sitting as a juror. And in this particular case, I follow my client’s recommendation.
[A recess was taken in order for the court to review J.E.B. v. T.B. ex rel. Alabama, 114 S. Ct. 1419 (1994)]
Mr. Dittrich [prosecutor]: . . . there have been a large number of middle age, or older, white males struck by the defendant regardless of the answers to their questions. And it is our position that a conscious pattern to strike those individuals. I realize J.E.B. versus Alabama does not deal with the age issue, but we would make both a gender and an age based discrimination argument.
The Court: Well, for the record, we should note that Mr. Harris is on the jury, and he is thirty — in his thirties? Do you all have a questionnaire?
Mr. Dittrich: Mr. Harris is thirty-two years old, Your Honor — I’m sorry, Your Honor, forty-two. He was born in 1954. The Court: Forty-two. And . . . let’s see, Mr. Stovesand — Mr. Stovesand was struck by the defendant, and I know he is in his twenties. Mr. Winfrey was excused by the defendant, and he is in his fifties.
The Court: Ms. Sells was excused by the defendant. She is a white woman. Mr. Berry was seated on the jury. Do we know how old Mr. Berry is?
Mr. Dittrich: Mr. Berry . . . Let me look just a minute, Your Honor. . . .Mr. Berry is thirty-six years old. But I would point out for the record that Mr. Berry is an African-American.
The court then proceeded to inquire into the age of each of the white males who had been peremptorily challenged. Appellant’s attorney asked whether the State’s Batson challenge was based upon race, gender, or age, and the prosecutor replied that it was based upon all three. The court disallowed the peremptory challenge. Appellant’s attorney then explained his objection for the record as follows:
Mr. J.W. Green, Jr.: Your honor, the defendant’s objection goes not only to the fact that he is a white man. It wouldn’t make any difference if it was a white female. The defendant’s objection goes to the fact — further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror — jury.
Although there was no finding by the court that this explanation was pretextual, Mr. Burdett was seated on the jury without further inquiry.
The threshold question is whether a prima facie case of discrimination has been presented by the State. In Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), we articulated the requirements for establishing a prima facie case as follows:
(1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of [the group in question] from the jury, or (3) showing a pattern of strikes, questions or statements by [the proponent of the strike] during voir dire.
Id. at 123-24, 913 S.W.2d at 268. By trying to discern a pattern, the trial court followed the correct procedure in attempting to determine whether a prima facie case had been established. However, its ruling was based upon a faulty premise, which was that age can be a basis for a Batson challenge. ■
In Sonny v. Batch Motor Co., 328 Ark. 321, 944 S.W.2d 7 (1997), we approved the trial court’s finding that no Batson violation existed when the proponent of the strike in question there explained to the court that it was looking for mature, conservative business people. We noted that age and occupation are neutral criteria. Id.; accord United States v. Ross, 872 F.2d 249 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th. Cir. 1988). While we recognize that the United States Supreme Court has expanded Batson, as provided in Georgia v. McCollum, 505 U.S. 42 (1992), and extended the principles to a consideration of gender, J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), it is obvious from the record that the trial court’s focus here was on the exclu sion of middie-aged white males, as it inquired into the age of each juror. Therefore, its ruling was in error.
Had there been a prima facie case, the court failed to properly apply the remaining parts of the Batson test. The explanation offered by appellant was both race and gender neutral. There was no finding by the trial court that it was pretextual. When a racially neutral explanation is offered to rebut a prima facie case, the trial court shall then determine from all relevant circumstances the sufficiency of the explanation. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). This was not done; the trial court ended its inquiry after appellant’s race-neutral explanation, and seated the juror over appellant’s objection.
Mr. Burdett, who was originally the first alternate, replaced a juror before the trial commenced and participated in the decision. As appellant received a fife sentence without parole, we cannot say this error was harmless. We pointed out the following in Sonny:
The goal of fairness in jury trials is also enhanced by the venerable practice of peremptory challenges, which dates back beyond the founding of the Republic to origins in the common law. The historical practice of allowing the litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. The rationale supporting this practice remains valid except where the constitutional principles articulated by Batson and its progeny are violated.
Sonny v. Batch Motor Co., 328 Ark. at 325, 944 S.W.2d at 90 (citations omitted). As there was no constitutional violation in appellant’s peremptory strike, the trial court erred in overruling it.
We will address appellant’s remaining points on appeal, as they are likely to arise on retrial. Prior to trial, appellant filed a motion to suppress evidence seized during the warrantless search of a metal building located behind the duplex where he and his mother lived. In his motion, he contended that the search and seizure violated his Fourth Amendment rights because it was made “without the consent of the defendant or his mother, the other occupant of the premises and with the absence of any exigent circumstances to justify a warrantless search.” The trial court denied the motion, finding that because neither appellant nor his mother had a property interest in the shed, he lacked standing to object to the search. The trial court was correct.
“The rights secured by the Fourth Amendment are personal in nature.” Littlepage v. State, 314 Ark. 361, 368, 863 S.W.2d 276, 280 (1993) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Before a search can be challenged on Fourth Amendment grounds, the challenger must have standing. Id. To have standing, appellant must show that (1) he manifested a subjective expectation of privacy in the area searched and (2) society is prepared to recognize that expectation as reasonable. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997).
The testimony at the suppression hearing revealed that appellant’s mother had once rented the house to which the shed belonged from Ray Freeman. Mr. Freeman also owned the duplex that Mrs. Lammers was renting at the time of the offense, and it is located near the house and the shed. However, Freeman testified that the shed went with the house. After Mrs. Lammers moved out of the house and into the duplex, the house was sold, but Mr. Freeman reacquired it when the buyer was unable to keep up with the payments. He said that Mrs. Lammers had put a motorbike in the shed at one time and left it there when the property was sold, but that the buyer had taken the motorbike and sold it.
It is not clear from the testimony whether Freeman or the buyer owned the house at the time of the offense, but the following facts are clear: (1) neither appellant nor his mother owned or rented the house with the shed, at the time of the offense and (2) the duplex where appellant lived, while in close proximity to the house and the shed, was not a “common area,” and each tenant was responsible for a fifty-foot lot that surrounded each residence. It follows that appellant did not have a reasonable expectation of privacy in the storage building, as he neither owned nor rented the property. The trial court’s decision that appellant did not have standing to object to the search is supported by a preponderance of the evidence, as presented in the suppression hearing.
Appellant next argues that the statement he made to police while in custody should have been suppressed because he did not knowingly and voluntarily waive his Fifth Amendment right to remain silent. Appellant contended in his motion to suppress that he did not knowingly, intelligently, or voluntarily waive his rights; that he was not properly or sufficiently advised of his rights; and that he was not capable of understanding those rights, due to his age and his mental and emotional state. However, the trial court’s ruling stated that there was “no evidence whatsoever of involuntariness.” It appears that appellant made an argument that his waiver was involuntary, but he received a ruling that his statement was not involuntary. The arguments are not the same.
In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), we discussed the difference between the contention that a statement was made involuntarily and the contention that an accused did not knowingly and voluntarily waive his right to remain silent. The “voluntary statement” argument addresses whether the statements were made as the result of coercion. Id. at 129, 883 S.W.2d at 826. The “waiver of rights” argument focuses upon whether the waiver was made with a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” as well as whether the accused made the choice, “uncoerced by police, to waive his rights.” Id., 883 S.W.2d at 825-26 (emphasis added). We pointed out in Clay that while we sometimes do not take time to point out the distinctions between the two arguments, they are clearly different arguments. Id.; see, e.g., Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989) (reaching the waiver issue but not the voluntariness issue because the voluntariness argument had not been made to the trial court). It is incumbent upon a movant to obtain a ruling in order for his argument to be considered on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Appellant should be mindful of the distinction between the two arguments and should he make this argument at his retrial, he will need to obtain a specific ruling on either or both arguments if he wishes to preserve the issues for our review. See Foreman v. State, supra.
Appellant’s final argument is that the trial court abused its discretion in denying his motion to recuse. Prior to trial, appellant filed a motion requesting that-the trial judge recuse from the case because one of appellant’s attorneys, J.W. Green, Jr., who was also Stuttgart City Attorney, had approved a charge of battery against the judge, resulting from an incident at a night club in Stuttgart. The Stuttgart Municipal Court had issued a warrant for the judge’s arrest, but the charge was nolle prossed at the request of the alleged victim.
At a hearing, appellant noted that after the incident, the judge had recused from another case in which the defendant was represented by Mr. Green. After hearing the arguments, the judge declined to recuse, stating that he had no argument with Mr. Green, as he was only doing his job, and that he did not have any prejudice against appellant as a result of the incident in municipal court.
We see no evidence of bias in the record that would cause us to conclude that the trial court abused its discretion in dechning to recuse. The mere presence of a complaint or suit against a judge, is not, by itself, a reason to require recusal. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). When a party has acted contemptuously toward a judge, embroiling him in a personal dispute, or when a judge cannot lay aside attitudes toward individual practitioners, we have said that he should recuse. E.g, Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988); Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). There was no such showing here.
Bias is a subjective matter which is to be confined to the conscience of the judge. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. There is no such showing on the record before us in this appeal.
In summary, we determine that the trial court’s error in not allowing appellant to exercise his peremptory strike against Mr. Burdett was prejudicial error requiring a new trial. We reverse and remand.
Newbern, Glaze, and Imber, JJ., dissent.
The trial court’s finding that seven out of nine strikes exercised by the defendant were against white males is factually incorrect. A careful review of the record reveals that in the selection of the twelve original jurors, appellant had peremptorily challenged three white females, two young white males, and four older white males. During the selection of alternates before Mr. Burdett had been chosen as first alternative, three white males and one white female had been struck by the court for cause, and the court had upheld the State’s peremptory strike of a black male notwithstanding a Batson challenge.
None of appellant’s peremptory strikes had been challenged during the selection of the first twelve jurors, and therefore no race-neutral or gender-neutral explanation was required to be given. However, a review of the record discloses that at least four of the peremptorily stricken white males had responded to questions disclosing (1) that a potential witness, the acting police chief David Cowart, was a client of the venireman, (2) an ambiguous or contradictory response as to whether the potential juror could presume innocence, (3) membership in the same church with the victim’s sister, and (4) that the venireman worked with and saw the husband of the deceased every day.
With regard to the question whether appellant’s peremptory strikes reflected a systematic exclusion of members of the white race, we note that following the seating of Mr. Perry, a black male, it appears that every potential black juror was either dismissed for cause by the court, or peremptorily struck by the State. Thus, there was no opportunity for appellant to exercise a peremptory challenge against any non-white person. | [
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David Newbern, Justice.
This is an appeal of a dismissal of one wrongful-death action and a summary judgment in a second wrongful-death and survival action. The dismissal and summary judgment favored Springdale Memorial Hospital and Doctors John Power and Teryl Ortego. The claims arose from the death of Bonnie Marie Murrell, who died November 26, 1990, while at Springdale Memorial Hospital for treatment of a bleeding gastrointestinal tract. We hold that a claim brought by Ms. Murrell’s widower, Melvin Dale Murrell, prior to proceedings in probate, did not survive his death and that a subsequent claim brought by Melvin Dale Murrell as Ms. Murrell’s personal representative and the claims of her children were barred by the statute of limitations.
On November 23, 1992, Melvin Dale Murrell, as surviving spouse of Ms. Murrell, filed an action pursuant to Ark. Code Ann. § 16-62-102 (Supp. 1995), alleging malpractice on the part of Dr. Power, Dr. Ortego, and the Hospital resulting in Ms. Murrell’s death. The lawsuit was styled Melvin Murrell, as Surviving Spouse of Bonnie Marie Murrell, Deceased v. Springdale Memorial Hospital; John Power, M.D., and Teryl Ortego, M.D. Mr. Murrell sought damages for medical expenses, funeral expenses, conscious pain and suffering of the decedent prior to her death, loss of services and companionship of the decedent, loss of earnings of the decedent, and mental anguish of the surviving spouse and children of the decedent. Mr. Murrell also sought punitive damages. The complaint listed as statutory beneficiaries Melvin Murrell, Melvin David Murrell, Belinda Gail Burke, and Marie Sue Murrell. When the complaint was filed, there was no estate opened for the decedent; consequently, there was no administrator. On December 28, 1993, the Hospital moved to strike the part of the complaint alleging damages on behalf of the decedent and the children of the decedent who were not named as plaintiffs. On February 17, 1994, Melvin Dale Murrell opened an estate for his deceased wife and was appointed administrator. He moved to be substituted in his new status as administrator in the original suit he had filed personally. Pursuant to Ark. R. Civ. P. 41, Mr. Murrell took a voluntary nonsuit of that claim on March 4, 1994, without any ruling having been entered on the motion to substitute.
On February 28, 1995, a second complaint was filed by Melvin Murrell as administrator of the estate- of Bonnie Marie Murrell, deceased, and as surviving spouse of Bonnie Marie Murrell, deceased, and David Murrell, Belinda Gail Burke, and Marie Sue Murrell as the surviving children of Bonnie Marie Murrell, deceased. It repeated the allegations of the earlier complaint.
In September, 1995, the Hospital and the doctors moved for partial summary judgment. They argued that, although the statute of limitations was tolled for Melvin Dale Murrell’s claim when he nonsuited, the claims of the estate and the other heirs at law were time barred. The Trial Court denied the motions on the basis that the body of the first complaint sought damages on behalf of the surviving children, the surviving spouse, and the damages that could be recovered by the estate of the deceased, and thus the defendants were put on notice that these damages were sought and the action was filed by an heir of the deceased.
On August 22, 1996, Melvin Dale Murrell died. His son, Melvin David Murrell, was appointed successor administrator for the estate of Bonnie Marie Murrell. He was also appointed special administrator of the estate of Melvin Dale Murrell to perform all acts as necessary to pursue the claim of Melvin Dale Murrell in the action.
The Hospital and the doctors then moved to dismiss the complaint, arguing that the claim of Melvin Dale Murrell, as the surviving spouse of Bonnie Murrell, did not survive his death. They also moved the Trial Court to reconsider their summary judgment motions. In response, the Trial Court dismissed Melvin Dale Murrell’s complaint and granted the summary judgment motions.
Melvin David Murrell and the other surviving children of Bonnie Marie Murrell contend that the Trial Court erred in granting summary judgment and dismissal as to the claims of (1) Melvin Dale Murrell, (2) the children of Bonnie Murrell, and (3) the estate of Bonnie Murrell. They argue that the 1992 complaint alleged two separate causes of action: (1) an action on behalf of the heirs, including the surviving spouse of Bonnie Murrell and the children of Bonnie Murrell, pursuant to the Wrongful Death Act, Ark. Code Ann. § 16-62-102 (1987 and Supp. 1995), and (2) an action on behalf of the estate pursuant to Ark. Code Ann. § 16-62-101 (1987).
1. Melvin Dale Murrell’s claim
Melvin Dale Murrell’s initial complaint, filed prior to the opening of Bonnie Marie Murrell’s estate, was appropriately brought according to § 16-62-102(b), and it was within the applicable two-year statute of limitations. See Ark. Code Ann. § 16-114-203(a) (Supp. 1995); Pastchol v. St. Paul Fire & Marine Ins., 326 Ark. 140, 929 S.W.2d 713 (1996); Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996). When he took a voluntary nonsuit on March 4, 1994, pursuant to Ark. R. Civ. Pro. 41, he had one year from that date to refile. Ark. Code Ann. § 16-56-126 (1987). Melvin Dale Murrell filed the second action on February 28, 1995, which was within the one-year period. When Melvin Dale Murrell died on August 22, 1996, the issue arose as to whether his wrongful-death claim survived his death.
The statutory provision for the survival of actions beyond the death of a claimant is § 16-62-101, which provides:
For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and the action may be brought by the person injured or, after his death, by his executor or administrator against the wrongdoer or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.
Melvin Dale Murrell’s action for the wrongful death of his wife did not survive his death. We have consistently held that a wrongful-death claimant does not suffer an “injury to his person or property” as those terms are used in the survival statute. White v. Maddux, Special Admr., 227 Ark. 163, 296 S.W.2d 679 (1956); Jenkins, Admr. v. Midland Valley Rd. Co., 134 Ark. 1, 203 S.W. 1 (1918).
2. The children and estate of Bonnie Marie Murrell
The wrongful-death claims of the children of Bonnie Murrell and the survival claim of the estate of Bonnie Murrell are barred because the parties did not file suit prior to 1995. The savings statute, § 16-56-126, cannot save their claims because the children were not parties to the first action. It provides that if “the plaintiff therein suffers a nonsuit” then “ the plaintiff may commence a new action within one (1) year . . . .” (Emphasis supplied.) See Rogers v. Williams, Larson, Voss, et al., 777 P.2d 836, 839 (Kan. 1989).
The second action brought by Melvin Dale Murrell as administrator of the estate of Bonnie Marie Murrell was simply filed too late. The fact that Mr. Murrell’s first claim might have been the beneficiary of the savings statute, at least until his death, is not relevant to the timeliness or untimeliness of the second action. A wrongful-death action brought by a plaintiff in his individual capacity pursuant to § 16-62-102 involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent’s estate pursuant to § 16-62-101. See Smith v. Tang, 926 S.W.2d 716, 719 (Mo. App. E.D. 1996).
It is argued that, because a personal representative bringing a wrongful-death action is no more than a trustee for the beneficiaries, Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953) (George Rose Smith, J., dissenting), the beneficiaries of Bonnie Marie Murrell were the “real parties in interest” in the first action in accordance with Ark. R. Civ. P. 17(a). While that rule requires that actions be brought in the name or names of the real parties in interest, we have been cited to no authority in which it has been held that a complaint brought in the name of one party is automatically converted into a complaint on behalf of others as a result of the rule.
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Per Curiam.
The procedural background in this matter is set forth in our per curiam opinion delivered on November 13, 1997. Muldrew v. State, 330 Ark. 609, 954 S.W.2d 272 (1997). Attorney David Mark Gunter, counsel for appellant Wilbert Muldrew, was ordered to appear before this court on December 4, 1997, to show cause why he should not be held in contempt for his failure to file Muldrew’s brief in a timely manner. Mr. Gunter appeared on that date, entered a plea of guilty to the contempt citation, and accepted full reponsibility for failing to file Muldrew’s brief.
Based on the foregoing, we hold that Mr. Gunter is in contempt for failing to file Muldrew’s brief in a timely manner. We fine him $250.00 and will allow him to file a belated brief in this matter. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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W.H. “Dub” Arnold, Chief Justice.
The appellant, David Ray Mulkey, was charged with capital murder for killing his former stepmother, Martha “June” Barnes. Following a jury trial, he was found guilty of first-degree murder and sentenced to life imprisonment. On appeal, appellant’s two points for reversal are a challenge to the sufficiency of the evidence and a challenge to the use of a prior conviction to enhance his sentence. We find that neither point has merit and affirm appellant’s conviction and sentence.
On New Year’s Day 1996, the burned body of June Barnes was found-at-a dump site on 36th Street near Interstate 430 in Little Rock. A lamp shade, some bed linens, and various bloodstained personal items were found near the body. Autopsy results indicated that the victim had died earlier from blunt-force injuries and strangulation. The pattern of injuries on her skull indicated that she had been beaten with a lamp, and a laceration over her left eye appeared to have resulted from having been struck by a telephone. The victim’s former stepson, appellant David Ray Mulkey, was eventually arrested and charged with Barne’s murder.
At trial, appellant admitted that he killed the victim. However, he maintained in his motion for directed verdict at the close of the State’s case that the state failed to prove that he purposely caused the victim’s death. After the trial court denied his motion, appellant testified during his case in chief that, on New Year’s Eve, he went to a party where he became drunk and high on marijuana. After leaving the party, he telephoned the victim and received permission to stay the night at her residence. According to appellant, when he arrived at the victim’s home, she began to verbally abuse him and call him names. After the victim hit him in the head twice with a telephone and began kicking him, he became enraged and hit her “at least five or six times” with a lamp. Appellant then “freaked out” when he saw that the victim was covered with blood and heard her make a “gurgling sound.” When the sound stopped, appellant knew that she was dead. Panicked, appellant washed his hands, then gathered various bloodstained items and carried them along with the victim’s body to her car. He drove to Boyle Park, parked the car, and dumped the body and evidence nearby. He left the body and drove to a store to purchase a jug of gasoline. The appellant returned to the body, poured the gasoline on it, lit it on fire, and left. According to appellant, he located one of his “running buddies” and “stayed drunk and high” until he was eventually questioned by police.
After a jury found appellant guilty of the lesser-included offense of first-degree murder, the State submitted proof to the trial judge that appellant had been previously convicted of two prior felony offenses. Appellant objected to the submission of one of the priors to the jury. After the trial court instructed the jury that appellant had two prior felony convictions, they recommended that appellant serve a life sentence for the murder. The trial court entered judgment accordingly, and appellant appeals.
Sufficiency of the Evidence
We explained our standard of review for directed-verdict motions in Williams v. State, 325 Ark. 432, 436, 930 S.W.2nd 297 (1996):
This court treats the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict
See also Choate v. State, 325 Ark. 251, 254-55, 925 S.W.2d 409, 411 (1996) (quoting King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (other citations omitted).
To sustain a conviction for first-degree murder, the State was required to prove that the appellant purposely caused the death of June Barnes. See Ark. Code § 5-10-102(a)(2). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1993).
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Williams, 325 Ark. At 437. “The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds.” Id.; citing Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, 325 Ark. at 437; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). In order for circumstantial evidence alone to constitute substantial evidence, however, it must exclude every other reasonable hypothesis consistent with innocence. Williams, 325 Ark. at 437; Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Id.
In the present case, the jury could have easily inferred from the numerous blunt-force injuries to the victim’s skull, as well as from the autopsy evidence that she was strangled, that appellant acted with the purpose to cause the victim’s death. The jury also heard evidence that appellant took the victim’s body to a dump site, set it on fire, and then left. As attempts to cover up a crime are properly admissible, see Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the jury could have properly considered this evidence as proof of a purposeful mental state. Moreover, it was within the jury’s province to believe or disbelieve appellant’s testimony. When considering these circumstances, the jury could have reasonably inferred that appellant acted with the purpose of causing the victim’s death. See Williams, supra. Thus, we cannot say that the trial court erred in denying appellant’s motion for directed verdict.
Prior Conviction —■ CR 87-1985
For his second assignment of error, the appellant asserts that the trial court erred in using a 1987 burglary and theft of property conviction in the Pulaski County Circuit Court, Docket No. CR-87-1985, in determining his sentence as an habitual offender under Ark. Code Ann. § 5-4-501 (Repl. 1993).
The State has the burden of proving a defendant’s prior conviction for purposes of sentence enhancement. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). On appeal, the test is whether there is substantial evidence that the defendant was previously convicted of the felony in question. Id.
In Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994), we reviewed the statutory method of proof of previous convictions as follows:
(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.
(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record;
(2) A certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as they appear in the records of his office; or
(3) A certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office.
Ark. Code Ann. § 5-4-504 (Repl. 1993).
In the present case, the trial court conducted a hearing outside the presence of the jury, during which the State introduced a certified copy of the trial court’s docket sheet in Pulaski County Circuit Court, which indicated that appellant had pleaded guilty to burglary and theft of property in CR87-1985. While the docket sheet did not reflect an entry of judgment, it indicated that appellant had received a suspended sentence in the case and had been represented by attorney James Phillips. The State offered the testimony of attorney Phillips, who testified during the in-camera hearing that he had appeared in court and had represented appellant on the charges in question. Mr. Phillips recalled that the disposition of the case had taken place in Judge Floyd Lofton’s chambers, where appellant pleaded guilty “to something involving bicycles.” According to Mr. Phillips, Judge Lofton was going to put appellant in the penitentiary, but appellant convinced him otherwise. After hearing this evidence, the trial court announced that it was convinced that appellant had been convicted of the prior offense in question, and allowed the State to present the evidence to the jury for consideration in the penalty phase.
Appellant first contends that the certified copy of the trial court’s docket notation is hearsay. Under A.R.E. 803(8), a record of a public office setting forth its regularly conducted and regularly recorded activities is not hearsay. Thus, appellant’s argument is without merit.
Appellant also complains that, because the State’s evidence did not reflect that a judgment of conviction was entered in CR87-1985, the conviction for burglary and theft of property could not properly be used to enhance his sentence. We have previously rejected this argument in Reeves v. State, 263 Ark. 227, 564 S.W.2d 503, cert. denied 439 U.S. 964 (1978). In that case, Reeves questioned the admissibility of the State’s proof of previous convictions under the habitual criminal statute. Three of Reeves’s four convictions that were proved showed that the sentences had been suspended. On appeal, Reeves argued that the sentences were not “convictions” within the meaning of the habitual criminal law. In rejecting Reeves’s argument, we reviewed our previous holdings as follows:
In Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976), we held that under the habitual criminal statute in effect in 1975, a judgment imposing a suspended sentence was admissible as a conviction. Act 228 of 1953, as amended. That statute was superseded by the Criminal Code, which became effective on January 1, 1976, under which the case at bar was tried. Act 280 of 1975, 1001 (a section now in turn superseded by Act 474 of 1977, 4; Ark. Stat. Ann. 41-1001 [Repl. 1977]). We do not see, however, any such difference between the language of the statute construed in the Rogers case and that of the 1975 Code as to indicate a change in the legislative intention.
263 Ark. at 230-1. While it is true that a docket notation is not the entry of a final judgment, Ark. Code Ann. § 5-4-404(a) provides that a previous conviction may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Id. In Heard, supra, we noted that the original commentary to the statute provides: “The Commission wished to make clear the fact that the state may prove a previous felony conviction by means other than introduction of the certificates described in the statute.” See Original Commentary to Ark. Code Ann. § 5-4-504 (Repl. 1993).
In the present case, appellant makes no suggestion whatsoever that the certified docket sheet offered by the State did not correctly reflect that he had been convicted of burglary and theft of property in CR87-1985. See Heard, supra. Appellant’s counsel in CR87-1985, Mr. Phillips, did not dispute the conviction; rather, he recalled that appellant had pleaded guilty in the trial judge’s chambers and had in fact talked the trial judge out of sentencing him to a term of imprisonment. Under these circumstances, there was substantial evidence to satisfy the trial court beyond a reasonable doubt that appellant had been previously convicted of the felonies in CR87-1985. Thus, we cannot say that the trial court erred in allowing the State to submit evidence of this prior conviction to the’jury for consideration in recommending appellant’s sentence.
Ark. Sup. Ct. R. 4-3(h)
Reviewing the record in accordance with Ark. Sup. Ct. R. 4-3(h), we find that there are no errors with respect to rulings on objections or motions prejudicial to appellant that would call for reversal.
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David Newbern, Justice.
This is an eminent domain case. For the purpose of widening a highway, the Arkansas State Highway Commission (“the Commission”) condemned .14 acres of frontage which was part of a tract owned by the appellees Charles and Shelby Post. The Posts reside on the remaining portion of the tract consisting of some 4.2 acres. Appellee First Financial Savings and Loan holds a mortgage on the Posts’ property. Along with its condemnation complaint, the Commission deposited $1,600 into the court registry as “just compensation.” The Posts contended that the deposited amount was inadequate, and a jury trial was held to determine proper compensation. The Commission’s liability for the taking was not contested. A judgment was entered upon a jury verdict awarding the Posts $7,000, and the Commission appealed. The Arkansas Court of Appeals affirmed by an opinion not designated for publication. Arkansas State Hwy. Comm’n v. Post, No. CA95-906 (Nov. 6, 1996). We review the decision of the Trial Court as if it had come to this Court in the first instance. See Allen v. State, 326 Ark. 541, 542, 932 S.W.2d 764, 765 (1996). We granted review and now reverse and remand on three of the four points raised by the Commission.
We hold that the Trial Court erred by (1) requiring the party who did not have the burden of proof, i.e., the Commission, to present its case first; (2) allowing the Posts to introduce a photograph of the temporary conditions on their property caused by ongoing construction; and (3) refusing to strike the speculative testimony of Peter Emig, the Posts’ expert witness, regarding the property’s after-taking value. As a new trial is in order, we need not consider the Commission’s fourth argument that the damages verdict was excessive.
Í. Order of proof
Over the Commission’s objection, the Trial Court ruled that the Commission would present its case before the Posts presented their case. Ms. Griffin, counsel for the Commission, was not permitted to make an objection on the record until after she had concluded the Commission’s case. She asserted that the Posts had the burden to prove that the $1,600 deposit was inadequate and that they therefore should have proceeded first. Ms. Griffin argued that the Commission had been prejudiced by “having to go forward first and having the burden of proof placed on us.” She maintained that the Commission had prepared its case on the assumption that its presentation of evidence would follow the Posts’ and that its witnesses had expected to be in the position of rebutting the testimony given by the Posts’ witnesses. Mr. Griggs, counsel for the Posts, responded that the Commission had the burden of proving the value of the Posts’ property and that the Commission had not been prejudiced by the Trial Court’s ruling.
The Trial Court stated that its ruling caused only “minimal prejudice” to the Commission and that the Commission would have the opportunity to present rebuttal evidence after the Posts completed their case. The Trial Court referred to Ark. Code Ann. § 27-67-316 (Repl. 1994), which provides that eminent domain actions should proceed “as in other civil cases,” and observed that, in the pleadings, the Commission was listed as the plaintiff and the Posts as the defendants. The Trial Court agreed with the Commission that the Posts would have the burden of proving their entitlement to the damages claimed and said that it would make that clear in a jury instruction. The Trial Court later instructed the jury that “the burden of proof is on the landowner to prove his claim for just compensation due him by a preponderance of the evidence.”
The order of trial in civil cases is clearly prescribed by Ark. Code Ann. § 16-64-110 (1987). Subsection (3) (A) of that statute provides, “The party on whom rests the burden of proof in the whole action must first produce his evidence.” In an eminent domain proceeding such as this one, the “whole action” is devoted to allowing proof that the landowners have not been adequately compensated for the taking. The law clearly provides that they are to present their proof first.
In Springfield and Memphis Railway v. Rhea, 44 Ark. 258 (1884), we held that it was proper for the defendant landowner “to open and close” the case because he had the burden of proof on the issue of his entitlement to damages. Id. at 260. That case was followed by the Court of Appeals in Property Owners Improvement Dist. 241 v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992), in which it was held that the landowner had the right to “open and close” in the presentation of evidence and argument to the jury.
In the case at bar, the Trial Court should have required the Posts to present their evidence first because “the burden of proof in the whole action” rested on them. § 16-64-110(3)(A). The Trial Court identified no “special reasons,” and we can think of none, that warranted a departure from the order prescribed by § 16-64-110(3). Thus, we must conclude the Trial Court’s failure to follow the procedure oudined in this provision was erroneous.
The error was prejudicial. Although the Trial Court correctly instructed the jury that the Posts had the burden of proof with respect to the adequacy of the $1,600 deposit, the unexpected decision to rearrange the order of proof unfairly hindered the Commission’s ability to present its case. Having relied on the procedures long established by statute and case law, the Commission reasonably expected that the Posts would present their case first, and it tailored its own case to be in the form of a rebuttal. The Commission was put at an unfair disadvantage when it was made to proceed in the posture of a plaintiff and present what was in essence a rebuttal case at the beginning of trial. The Commis sion could not have anticipated this unorthodox procedure, and we cannot say that the eleventh-hour surprise encountered by the Commission was harmless.
2. Construction photograph
During the Posts’ case-in-chief, the Posts’ expert witness, Peter Emig, testified that the value of the Posts’ land prior to the talcing was $73,000 and that the value after the taking was $55,000. The Posts moved to introduce into evidence the appraisal report that Mr. Emig had produced and referred to during his testimony. The appraisal report included several photographs of the Posts’ home and surrounding land.
One of the photographs included in the appraisal report was taken from the right-of-way in front of the Posts’ home. The highway, located to the east of the home and right-of-way, appears on the far right side of the photograph. The driveway leading from the highway to the Posts’ home is in the foreground, toward the bottom of the photograph. The middle portion of the photograph depicts three trees standing in the Posts’ front yard. In the background, toward the top of the photograph, is the right-of-way to the north of the home. That portion of the photograph depicts piles of dirt and dead trees that appeared to have been cut in the course of construction work.
The Commission objected to the introduction of the photograph and suggested that the photograph was prejudicial because it might lead the jury to believe that the dead trees would remain on the land after completion of the construction project and affect the value of the property. The Posts responded that the photograph would not prejudice the Commission and that it simply revealed the part of the land that was being “taken.” The Trial Court ruled that the photograph could be admitted because it depicted “the land at the time of the taking” and because it showed part of the basis for Mr. Emig’s opinion and was an “accurate reflection of the property at the time he based his opinion on it.” The Trial Court acknowledged that the photograph “obviously shows construction,” but it stated it could not “see how that’s going to be prejudicial.”
Mr. Griggs questioned Mr. Emig about the photograph as follows:
Q. Okay. Now, turn to the third page and it shows a photograph and I believe the caption is “Current construction of the right-of-way as seen from the right-of-way in front of the home,” is that correct?
A. That is correct.
Q. Now, that is not the right-of-way as it will exist after the taking, is it? It’s not gonna look like that after the taking, is it?
A. The front of the property, once the trees are removed, will look like the area in the background.
Q. Okay. And so those are trees that will be removed from the taking?
A. My understanding is those are the trees.
The Trial Court erred by admitting the photograph of the piles of dirt and dead trees that had resulted from the ongoing construction work. Evidence is inadmissible in partial-taking cases when it pertains to the temporary conditions of the property during the course of construction. Such evidence does not assist the jury in determining “just compensation” in a partial-taking case because it is irrelevant to “(1) the value of the part taken; (2) the value of the part taken plus the damages to the remainder; [or] (3) the before- and after-value rule.” Arkansas State Hwy. Comm’n v. Frisby, 329 Ark. 506, 508, 951 S.W.2d 305 (1997), quoting Arkansas State Hwy. Comm’n v. Barker, 326 Ark. 403, 405, 931 S.W.2d 138, 140 (1996). Temporary conditions prevailing on the land during the course of a construction project simply have no bearing on the worth of the land prior to the taking or what its worth will be after the project is completed. Thus, in a partial-taking case, evidence of temporary conditions caused by ongoing construction is irrelevant, as well as potentially misleading and prejudicial, and should not be admitted. Arkansas State Hwy. Comm’n v. Ptak, 236 Ark. 105, 364 S.W.2d 794 (1963); Donaghey v. Lincoln, 171 Ark. 1042, 287 S.W. 407 (1926); City of Fort Smith v. Findlay, 48 Ark. App. 197, 893 S.W.2d 358 (1995).
We note the Posts’ suggestion that Mr. Emig, in his testimony, clarified that the conditions depicted in the photograph were not permanent and that the property would look differently after completion of the construction project. That testimony supposedly cured any prejudice that resulted from the admission of the photograph. Nothing in Mr. Emig’s testimony could have had such a remedial effect. When asked whether the right-of-way depicted in the photograph would look differently after the taking, Mr. Emig did not answer “yes.” Rather, he testified that “[t]he front of the property, once the trees are removed, will look like the area in the background.” As we noted, the “area in the background” of the picture contains the piles of dirt and dead trees. Mr. Emig’s testimony, rather than suggesting the piles would be cleared after the project was complete, tended to suggest that the entire property, for an unspecified amount of time, would eventually be covered with dead trees. This testimony in no way clarified to the jury that the conditions depicted in the photograph were merely temporary. The error was not harmless.
3. Expert testimony on “after value”
Mr. Emig testified during the Posts’ case-in-chief that the value of the Posts’ land before the taking was $73,000 and that the value after the taking was $55,000. Mr. Emig testified that there are three approaches to valuing property — the market approach, the cost approach, and the income approach. He stated that he determined the “before value” using the market approach. Mr. Emig testified that he considered three sales of property similar to the Posts’ property and adjusted for the differences between those properties and the Posts’ property. Relying on these sales, Mr. Emig concluded the value of the Posts’ property before the taking was $73,000.
Mr. Emig testified that he was unable to use the market approach to determine the property’s “after value.” In his appraisal report, Mr. Emig wrote that, “[t]ypically, three comparable sales are found which have the condition the Subject Property will have after the taking. After adjusting for the differences the indicated ‘After Value’ is subtracted from the ‘Before Value’ and that amount is considered as just compensation to the owner. In this assignment there were no comparable sales with which to estimate an ‘After Value.’”
Thus, Mr. Emig indicated in his appraisal report that he determined the after value of the property using an “alternate method for estimating a market reaction to the change in the property configuration.” In his testimony, Mr. Emig described his “alternate method” as follows.
Mr. Emig’s opinion that the after value of the property was $55,000 rested on his assumption that the value of a home decreases in direct proportion to the decrease in the distance between the home and the right-of-way. Mr. Emig noted that, on account of the taking, the distance between the Posts’ home and the right-of-way had decreased by one third from 120 feet to 80 feet. He testified that the Posts’ property, prior to the taking, had an “improvement value” of $60,000. He said that, if the home were moved right next to the right-of-way, it would have only a “salvage value” of $5,000. (Relying on two other “salvage sales,” Mr. Emig determined that a buyer would pay $5,000 to move the Posts’ home to another location.) Thus, according to Mr. Emig’s theory, the Posts’ home would decrease in value by $55,000 if the right-of-way were moved from its position 120 feet away directly next to the home. As the right-of-way had been moved only one third of this distance, Mr. Emig reasoned, the home had decreased in value by one third of $55,000, or $18,333, which Mr. Emig rounded down to $18,000. Mr. Emig suggested this amount was the “just compensation” due the Posts. He subtracted it from the before value of $73,000 to arrive at an after value of $55,000.
During cross-examination, Ms. Griffin asked Mr. Emig about his valuation method.
Q. What basis — what do you base that estimate on? Were there any sales in the market that indicate that a house that had set 120 feet from the right-of-way decreases a certain percentage amount for every percent it moves toward the right-of-way?
A. No.
Q. So that’s based on what?
A. Logic.
Q. Just your personal opinion?
A. Well, I think it’s reasonable to assume that if it is 60 thousand for the improvement, as it is today, and if it were located next to the highway, and it has a five thousand dollar salvage value, somewhere between those two points value was lost and I’m assuming that as this property gets closer and closer to the highway, the value diminishes and there is a direct relationship between the distance and a value lost. If it’s 50 percent closer it’s reasonable to say that 50 percent is lost.
Q. Okay. When you say it’s reasonable, it’s an assumption, is that based on your personal opinion, is that your assumption?
A. It is, that’s my professional opinion.
Q. And there’s nothing in the market that you found that would prove or disprove that?
A. No, I could not find any.
Q. Are you also aware that although the right-of-way is 40 feet closer to the home that the lanes of traffic, the closest one to the Post home is still 132, well a little more than 132 feet from their house?
A. I was not aware of the exact distances insofar as the distance from the home to the actual pavement.
Q. Okay. Have you examined any properties that were approximately 80 feet from the right-of-way to determine what their values were, what they sold for?
A. No.
Q. You also stated that you found no comparable sales with which to do an after-value, what approach would you call what you did in arriving at an after-value?
A. Well, I’m not sure that there’s a specific name given to it.
Q. So, it’s not one of the three generally accepted approaches?
A. Well, I think that most appraisers, most appraisal organizations, and the Uniform Standards of Professional Appraisal Practice, allow the appraiser the latitude to use whatever he considers appropriate for solving the value problem, and given the conditions in this case, I did the best that I could.
Q. Did you check for any sales that are 80 feet from the right-of-way or did you just not find any or did you look, search the market for that?
A. We looked for sales anywhere on 167 South that were being directly impacted by this property.
Q. Okay. And you said directly on 167, are your comps — none of your comps from the before-value except the first one is on North 167, were on 167, is that correct?
A. That’s correct. . . .
Q. And also I want to bring up the fact, have you — first I want to ask you: Did you find any sales in the market when you were doing your research that would indicate a direct proportion between the distance of the right-of-way as it moves to the residence and the decrease in value of the residence?
A. I did not.
Ms. Griffin moved to strike Mr. Emig’s after-value testimony. She asserted that his opinion on the matter of after value was speculative and lacked a reasonable basis. The Trial Court denied the motion.
The Trial Court erred by refusing to strike Mr. Emig’s after-value testimony. Although an expert’s opinion is admissible even if the expert fails on direct examination to explain the basis for his conclusions, the testimony must be stricken if the Commission demonstrates on cross-examination “that the landowners’ expert witness[] had no reasonable basis for [his] opinions.” Arkansas State Hwy. Comm’n v. Johns, 236 Ark. 585, 586-87, 367 S.W.2d 436, 438 (1963).
Mr. Emig’s opinion that the value of the Posts’ home would decrease in direct proportion to the decrease in distance between the home and the right-of-way was speculative and lacked a sound and reasonable basis. Mr. Emig conceded that his approach had no specific name and that it was not rooted in the three approaches to valuation previously recognized in eminent domain cases. He offered no foundation for comparing the Posts’ home to the two homes that were sold for “salvage value” for the purpose of relocating them elsewhere. Those homes were sold for $3,000 and $5,000, but Mr. Emig did not establish that a buyer would pay a comparable figure for the Posts’ home under such circumstances.
We also note that Mr. Emig was unable to point to any market data to corroborate his view that the value of a home decreases in direct proportion to the decrease in distance between the home and the right-of-way. In Arkansas-Missouri Power Company v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977), the landowner’s expert witness testified that a newly installed transmission line would reduce the value of the property by $27,197. We held that the testimony was speculative and should have been stricken because the “expert on cross-examination admitted that he could not think of a single instance where a transmission line had any effect on the market value of the property.” Id. at 327-28, 556 S.W.2d at 442. “Therefore,” we said, “his testimony that the damages amounted to some $27,000 did not have a sound and reasonable basis.” Id.
Mr. Emig’s testimony concerning the property’s after value lacked a sound and reasonable basis. We must therefore reverse because “[t]he public . . . cannot be compelled to pay prices based . . . upon speculation . . . .” Arkansas State Hwy. Comm’n v. Roberts, 246 Ark. 1216, 1221, 441 S.W.2d 808, 812 (1969), citing Arkansas State Hwy. Comm’n v. Watkins, 229 Ark. 27, 313 S.W.2d 86 (1958); Arkansas State Hwy. Comm’n v. Griffin, 241 Ark. 1033, 411 S.W.2d 495 (1967).
Reversed and remanded.
Glaze, J., concurs to point out that, by requiring the Commission to present its evidence first, the court caused the Commission to lose any effective right to a directed-verdict motion. | [
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Robert L. Brown, Justice.
Appellant Leo Darrough was convicted of possession of a controlled substance with intent to deliver. He was sentenced to eighty years’ imprisonment as a habitual offender with four or more prior offenses. His sole assignment of error concerns the sufficiency of the evidence supporting his conviction. We affirm.
At trial, Little Rock Police Department Narcotics Detective Bruce Jones testified that he executed a search warrant for an address on Highway 365 on December 21, 1994. He stated that the structure he entered was a double-door garage, and upon entry, he found Darrough and another man who he believed to be Roderick Darrough. He searched the garage and discovered a small pill bottle wrapped in black duct tape on the garage floor about three feet behind Leo Darrough. The pill bottle contained numerous off-white, rock-like substances which he assumed was crack cocaine. His belief was confirmed by the State Crime Lab. On cross-examination, Detective Jones admitted that there may have been more people in the garage than the two men and that he did not know who owned the building.
Officer Austin Lynch, who was then a member of the Little Rock Police Department’s Narcotics Division, testified that he orchestrated a controlled buy in the garage about 30 to 45 minutes before executing the search warrant. As part of the subsequent search, he found $230 on Leo Darrough, which included a $20 bill that matched the serial number of a $20 bill used in the controlled buy. According to Officer Lynch, though Darrough did not reside in the residence located just northeast of the garage, some of his relatives did. On cross-examination, Officer Lynch admitted that he did not enter the garage as part of the controlled buy but, rather, the buy was accomplished by a confidential informant. Officer Lynch also related that the informant told him that he made the purchase from a person matching Leo Darrough’s physical description and the clothes Darrough was wearing and that there were two other people in the garage. He testified that the informant bought one-quarter gram of crack cocaine.
At the conclusion of the State’s case, Darrough’s counsel moved for a directed verdict on two grounds: (1) that there was insufficient evidence connecting him to the cocaine found in the garage, and (2) that the chain of custody was not maintained in a proper fashion. The motion was denied, and Darrough put on no proof.
Darrough now argues that the trial court erred in denying his directed-verdict motion because the evidence presented by the State was insufficient. The standard of review for an appeal from a denial of a motion for directed verdict was reiterated recently in Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997):
A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Evidence, whether direct or circumstantial, is sufficient to support a conviction if the evidence is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Peeler v. State, supra; Dixon v. State, supra. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
Id.
Under our law, it is clear that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). We have further explained:
Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. The State must show additional facts and circumstances indicating the accused’s knowledge and control of the contraband.
Hendrickson v. State, 316 Ark. 182, 189, 871 S.W.2d 362, 365 (1994) (citations omitted). See also Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994); Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). When seeking to prove constructive possession, the State must establish (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).
Darrough relies primarily on Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), where this court held that the State’s proof of constructive possession was insufficient to support the appellant’s convictions for possession of various controlled substances. That case, however, is factually distinguishable. In Osborne, police officers searched the appellant’s residence while he was across the street at his parents’ home. The police officers discovered phentermine pills in a bedroom dresser and in a suitcase in the hall as well as marijuana on a tray in the living room where the appellant’s wife and others were present. This court reversed the appellant’s convictions for possession of these items because the State presented no evidence linking him to the contraband other than proof that the home was his residence. We concluded that in that case the relationship between the appellant and the contraband was speculative. Here, Darrough argues that, as in Osborne, there was no proof linking him to the pill bottle found on the garage floor.
Darrough’s argument is unavailing. Unlike Osborne v. State, supra, in the instant case there was substantial evidence to support the jury’s verdict that he exercised dominion and control over the pill bottle and knew that the pill bottle contained contraband. See Darrough v. State, supra; Plotts v. State, supra. To summarize that evidence once more, Detective Jones testified that he discovered the pill bottle within three feet of Darrough on the floor. Officer Lynch told the jury that a $20 bill matching the serial number from the previous controlled buy was found on Darrough and that he matched the physical description of the seller as well as the description of the seller’s clothing which were given to him by the confidential informant.
Darrough makes a number of peripheral arguments, including an assertion that this court should not consider Officer Lynch’s testimony about the confidential informant’s description because it was hearsay evidence. We note, however, that there was no hearsay objection at trial, and this court has stated repeatedly that hearsay evidence admitted without objection may constitute substantial evidence. See, e.g., Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996); Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).
Finally, Darrough contends that the State failed to present additional evidence to the jury such as fingerprint evidence with respect to the pill bottle and the confidential informant’s testimony. Be that as it may, we are only called upon to decide whether the evidence actually presented by the State was substantial, and we conclude that it was.
Affirmed. | [
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W.H. “Dub” Arnold, Chief Justice.
The appellee, W. F. Burris, filed a negligence suit against the appellant, Thomas B. Schueck, in Pulaski County Circuit Court. Following a bench trial, the trial judge ruled that Mr. Schueck was negligent and that he had breached the parties’ contract. The trial judge awarded Mr. Burris a judgment of $1392.51. It is from that judgment that Mr. Schueck appeals, raising four allegations of error. We find no merit to his arguments and affirm.
The parties are former owners of adjacent properties located in the Hillside Village area of Little Rock. They entered into a written agreement in 1978 to settle Mr. Burris’s claim that he had established title by adversely possessing a portion of Mr. Schueck’s land. Pursuant to the agreement, Mr. Burris received $2,500.00 cash and was entided to use, for so long as he owned and occupied his property, a six-foot strip of Mr. Schueck’s land running along Mr. Burris’s south property line. Desiring to settle the ownership dispute, Rector-Phillips-Morse, Inc. (“RPM”), the agent who sold Mr. Schueck his lot and a party to the 1978 agreement, constructed a six-foot-high wooden fence, six feet south of Mr. Burris’s south property line, that extended the 140-foot depth of Mr. Burris’s lot. RPM also covenanted to leave the property in such a condition that Mr. Burris could plant and mow the strip. On January 3, 1979, Mr. Burris and his wife executed a quit-claim deed in favor of Mr. Schueck, relinquishing all of their ownership rights in the disputed property.
In 1994, Mr. Schueck began construction of six separate patio homes known as Fillmore Place. During this construction, Mr. Schueck’s contractor removed the six-foot wooden fence described in the 1978 agreement and replaced it with a twelve-foot-high wall. The height of the new fence was six feet off the ground at one end of the property line and then rose to twelve feet at the other end, with a concrete wall underneath the wooden portion of the fence.
In Mr. Burris’s complaint against Mr. Schueck, he alleged that Mr. Schueck’s agent negligently carried out the performance of constructing the patio homes, resulting in damage to his land and property. Specifically, Mr. Burris claimed that Mr. Schueck’s negligent and intentional actions caused the loss of a fence, the destruction of twelve azalea bushes, the erosion of soil, and the destruction of siding on the southeast corner of his home. Mr. Burris requested compensatory damages in the amount of $1,838.51, attorney’s fees, and costs.
After hearing the testimony of the parties and other witnesses, the trial judge ruled in Mr. Burris’s favor. Mr. Schueck appeals.
1. Negligence
Mr. Schueck first claims that the trial judge’s finding that he was negligent was not supported by substantial evidence. This is not, however, the correct standard of review in civil cases where the trial judge, rather than a jury, sits as the trier of fact. In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s .findings were clearly erroneous or clearly against the preponderance of the evidence. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980); see also Ark. R. Civ. P. 52. Particularly, to meet his burden of proving negligence, Mr. Burris was required to prove that he sustained damages, that Mr. Schueck was negligent, and that Mr. Schueck’s negligence was the proximate cause of his damages. See Anselmo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996).
At trial, Mr. Burris claimed that cement and water used during the construction of the foundation of the patio homes washed onto his property and damaged his twelve azalea bushes. In support of this claim, Mr. Burris offered oral testimony, photographic evidence, and a written estimate of the cost of replacing the lost bushes. Mr. Schueck’s general contractor also testified that “some of the cement did go into Mr. Burris’s azalea bed,” and that “[t]he concrete people may have ruined the azaleas.” On appeal, Mr. Schueck merely maintains that Mr. Burris failed to establish the “three-prong requirement for negligence as it relates to the allegedly destroyed azaleas.” We disagree. In light of the above evidence, the trial judge could have rightfully concluded that Mr. Burris sustained damages to his azaleas, that Mr. Schueck was negligent in permitting cement to run into the azalea beds, and that, as a result of Mr. Schueck’s negligence, Mr. Burris’s azalea bushes were lost. We cannot say that the trial judge’s finding in this regard was clearly erroneous.
Mr. Burris further testified that his property was eroded and offered photographic evidence of erosion damage. He testified that the drainage problems began after Mr. Schueck’s construction in 1994. Prior to that, he claimed that there were no drainage problems in over thirty years. On appeal, Mr. Schueck asserts that Mr. Burris had existing drainage problems prior to the construction, and that the preventative land contouring and drainage control measures improved, rather than exacerbated, these problems. He also argues that Mr. Burris’s oral estimates of damages pro vided no basis for the trial judge’s award because Mr. Burris lacked credibility.
The trial judge was free to find Mr. Burris a truthful witness. As the fact-finder, it was within the judge’s “province to believe or disbelieve the testimony of any witness.” Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997). In this case, the trial judge was in the best position to observe Mr. Burris, to hear his testimony, and to weigh the alleged inconsistences argued by Mr. Schueck. In this regard, we conclude that the trial judge’s finding as to Mr. Burris’s erosion claim was not clearly erroneous.
Mr. Burris also claimed that trim on the southeast corner of his house was damaged by Mr. Schueck’s subcontractor’s truck. According to Mr. Burris, the truck was driven on the elevated ground and caught the telephone wire attached to his house, pulling the trim off the structure. He contended that the trier of fact might infer from circumstantial evidence that his damages were proximately caused by Mr. Schueck’s negligence. In a negligence action, the proximate-cause evidence is sufficient “if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211, 212 (1992). Proximate cause is a cause that, in a natural and continuous sequence, produces damage and without which the damage would not have occurred. Id.
Giving the trial judge’s finding the benefit of all reasonable inferences permissible under the proof, we cannot agree that his finding as to the damaged siding was clearly erroneous.
2. Breach of contract
Mr. Burris maintained at trial that Mr. Schueck’s intentional acts caused the removal and loss of the six-foot-high wooden fence that was erected pursuant to their 1978 written agreement. He presented photographic evidence, a written estimate of replacement cost, and oral testimony to prove his damages. On appeal, Mr. Schueck asserts that Mr. Burris’s failure to specifically plead breach of contract in his complaint barred the trial judge from awarding contract damages.
Arkansas Civil Procedure Rule 15(b) permits the amendment of pleadings to conform to the evidence presented at trial. If an issue is tried by the implied consent of the parties, it shall be treated as if it were raised in the pleadings. Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). A party may move to amend the pleadings, but failure to do so does not affect the result of the trial of the issue. Id.
Mr. Schueck contends that, because the contract claim was not specifically pleaded, he was deprived of notice and the opportunity to prepare a defense to this claim at trial. The record, however, does not support his contention. In his motion to dismiss made at the close of Mr. Burris’s case, Mr. Schueck’s attorney argued the alleged lack of proof on the contract issue, stating that the “agreement is explicit on the terms in regard to [the] fence.” Under these circumstances, we cannot agree that Mr. Schueck was unaware of the contract claim. Thus, the trial judge did not err in treating the contract issue as if it were raised in the pleadings.
Turning to the merits of Mr. Burris’s contract claim, the trial judge heard testimony that the new fence was twelve-feet high and encompassed a concrete wall that prevented maintenance and mowing. When considering the four corners of the parties’ 1978 written agreement, the photographic evidence, and oral testimony describing the old and new fences, we cannot say that the trial judge’s finding that Mr. Schueck breached the contract was clearly erroneous.
3. Attorney’s fees
Next, Mr. Schueck asserts that the trial judge’s award of attorney’s fees was inappropriate because the case involved a tort action. We do not reach this argument because Mr. Schueck did not object to this award below. Thus, he has not preserved this issue for appeal. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997).
4. Evidentiary rulings
Finally, Mr. Schueck maintains that the trial judge erred in allowing Mr. Burris to testify about the terms of the parties’ 1978 agreement. Mr. Schueck claims that this testimony was permitted in violation of the parol evidence rule, which prohibits the introduction of extrinsic evidence to vary the terms of a written agreement, absent an ambiguity in the contract’s terms. First National Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992). This rule does not, however, prohibit a trial judge from becoming familiar with the circumstances surrounding the making of a contract. Id. On appeal, we will not reverse the trial judge’s ruling allowing or disallowing evidence absent an abuse of discretion. Id.
Mr. Burris’s disputed testimony at trial was as follows:
I signed this agreement on December 26, 1978. I basically agreed to sign this document and waive any claims to the property. And as part of that agreement, [RPM] constructed a fence on my property line. As part of this agreement, I was entitled to use six feet of that land south of my property for my life, and they built the fence directly on that line. I could not tell you when the fence was built, but it [was] shortly after 1979. . .
Fie further described his maintenance efforts and the difference between the old and new fences. When viewing this testimony, we cannot say that it varied the terms of the parties’s contract; rather, Mr. Burris was merely describing the circumstances surrounding the making of the 1978 agreement. Therefore, we conclude that the trial judge did not abuse his discretion in permitting this testimony.
Mr. Schueck further contends that the trial judge should have permitted an RPM employee , who negotiated the 1978 agreement to testify about his interpretation of the contract. The trial judge disallowed this testimony as well as the agent’s opinion testimony regarding Mr. Burris’s rights under the contract. On appeal, Mr. Schueck asserts that Mr. Burris opened the door to this otherwise inadmissible testimony.
Having concluded that Mr. Burris’s testimony was properly admitted, we disagree that Mr. Burris opened the door to testimony violative of the parol evidence rule. While Mr. Burris’s testimony addressed circumstances surrounding the making of the agreement, the agent’s testimony was offered to elicit a legal opinion and an interpretation of the contract that could vary its terms in the absence of any ambiguity in those terms. See First National Bank of Crossett v. Griffin, supra. Under these circumstances, we hold that the trial judge did not abuse his discretion in disallowing this testimony.
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Per Curiam.
Appellee, the State of Arkansas, by and through counsel, Winston Bryant, Attorney General, and David R. Raupp, Senior Assistant Attorney General, has filed a motion to dismiss Appellant’s appeal.
On August 30, 1996, Appellant Linda Street conditionally pleaded guilty to two counts of possession of a controlled substance with intent to deliver and one count of possession of drug paraphernalia. Appellant filed a notice of appeal the same date. Appellant was granted a thirty-day extension to lodge her transcript, but she failed to lodge it by its due date on December 28, 1996.
By letter dated January 3, 1997, the clerk of this court advised Appellant’s attorney that a motion for rule on the clerk would be necessary to get the record filed and to proceed with the appeal. Appellant’s attorney has taken no action in the appeal since tendering the transcript late on January 2, 1997.
We find that Appellant’s failure to perfect this appeal in a timely manner is good cause to grant appellee’s motion to dismiss the appeal.
The motion is, therefore, granted.
A. Wayne Davis, attorney for Appellant, is also ordered to appear before this court on the 15th day of January, 1998, at 9:00 a.m. to show cause why he should not be held in contempt of this court for his failure to perfect Appellant Street’s appeal in a timely manner. | [
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Donald L. Corbin, Justice.
Appellants, some seventy residents of two subdivisions in Jonesboro, appeal the judgment of the Craighead County Chancery Court, Western District, denying their request for an injunction to prevent Appellee Mike Watson from constructing multi-family dwellings in one of the subdivisions. Appellants raise three points on appeal, which require us to construe a deed and bills of assurance; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (16). We find no error and affirm.
We can discern the following information from the abstract provided. Appellants are owners and residents of thirty-six and one-half lots in Meadow Lark Acres Subdivision (“Meadow Lark”) and twelve lots in Meadow Lark Acres Extended Subdivision (“Meadow Lark Extended”), which are contiguous subdivisions comprised of fifty-two lots and twenty lots, respectively. Appellee is the owner of Lots 1, 2, 3, and 4 of Block H in Meadow Lark Extended. Meadow Lark was established and a bill of assurance was executed on November 15, 1967. Meadow Lark Extended was established and a bill of assurance was executed on November 18, 1968. The original bill of assurance for Meadow Lark Extended prohibited the construction of any building other than single-family dwellings except on certain lots, including the four lots owned by AppeEee. On those excepted lots, the biE of assurance provided that apartments may be constructed with the approval of the developers. An amended biE of assurance for Meadow Lark Extended was executed on August 18, 1995, prohibiting any construction of apartment buEdings in Meadow Lark Extended. The amended biE of assurance was signed by owners of lots in both subdivisions.
AppeEants fEed this suit seeking an injunction from the chancery court prohibiting AppeEee’s planned construction of two additional apartment units on an already existing fourplex situated on one of his lots in Meadow Lark Extended. AppeEants claimed that the area was not equipped to handle the increased traffic, that AppeEee’s plan violated aE the biEs of assurance, and that the use of the land for apartments would materiaEy and substantiaEy lessen the use and enjoyment of AppeEants’ property, thus constituting a nuisance.
AppeEee fEed a motion to dismiss the complaint on the grounds that some of the plaintiffs lacked standing to bring the action because they did not Eve in or own property in Meadow Lark Extended, and that pursuant to ARCP Rule 12(b)(6), the complaint faded to state facts upon which relief could be granted. A hearing was conducted on the matter on July 9, 1996. A letter order was subsequently entered by the chanceEor granting Appellee’s motion to dismiss. On the issue of standing, the chanceEor agreed with AppeEee that those plaintiffs who lived in or owned property in Meadow Lark had no standing to chaEenge any proposed construction in Meadow Lark Extended. The chanceEor did find, however, that the amended biE of assurance had been signed by a majority of the lot owners of Meadow Lark Extended. Notwithstanding that finding, the chanceEor concluded that the amended biE of assurance was not valid because it had not been timely executed in accordance with the procedure set out in the original biE of assurance. AppeEants now assert that the chancellor’s findings and conclusions were erroneous. We disagree.
We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In order to demonstrate that the chancellor’s ruling was erroneous, Appellants must show that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Id.
For the first point for reversal, Appellants assert that the trial court erred in finding that the amended bill of assurance was not timely executed. In order for us to determine whether the chancellor correctly interpreted the provisions of the original bill of assurance, we must consider the language of the document. The pertinent provisions, as abstracted, read:
We, W.R. Kitterman and Esther Lea Kitterman, his wife, Alton D. Holmes and Maralyn Holmes, his wife, and B. Frank Hyneman and Marzee Ann Hyneman, his wife, are the owners of the property that we plat and designate as Meadow Lark Acres Extended Subdivision to Craighead County, Arkansas. No lots shall be used except for residential purposes and no building shall be erected other than a single-family dwelling except that a duplex dwelling may be permitted under certain restrictions and apartment buildings shall be permitted on Lots 1, 2, 3, and 4 of Block H of the subdivision, and certain other lots, with the approval of the developers herein. The covenants and the restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or to terminate the covenants and restrictions.
The twenty-five-year period provided in the original bill of assurance would have expired in November 1993. The amended bill of assurance was not executed until August 18, 1995. The chancellor concluded that because Appellants had not executed the amended bill of assurance prior to the time the original bill of assurance had expired, the provisions of the original bill of assurance were automatically extended for an additional ten years. The chancellor determined that the proper way to amend or terminate the original bill of assurance was for a majority of the owners to agree and then file the agreement of record to take effect at the time the original bill of assurance expired. Because the amended bill of assurance was not timely filed, the chancellor reasoned, the original bill of assurance, which allowed apartments on certain lots with the developers’ approval, was still in effect at the time Appellants filed their complaint. We conclude the chancellor’s interpretation was correct.
Courts do not favor restrictions upon the use of land; if such restrictions exist, they must be clearly apparent. Holaday, 323 Ark. 522, 920 S.W.2d 4; McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). The general rule governing the interpretation, application, and enforcement of restrictive covenants is the intention of the parties as shown by the covenant. Holaday, 323 Ark. 522, 920 S.W.2d 4. Where, however, the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the restriction. Id. (citing Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971)). Where no general plan of development exists, restrictive covenants contained in a bill of assurance are not enforceable. McGuire, 297 Ark. 282, 761 S.W.2d 904. Appellants do not challenge that a general plan of development existed in the subdivisions.
In White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), this court was asked to interpret the amendment procedures set out in a bill of assurance very similar to the one in the present case. There, the bill of assurance provided in part:
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
Id. at 478, 487 S.W.2d at 616. The appellants had filed an agreement to alter part of the bill of assurance, but the twenty-five-year period had not yet expired. The appellants argued that the language contained in the original bill of assurance pertaining to amendments or alterations of the bill was uncertain. This court disagreed, holding:
When the recited provisions of the bill of assurance are read in toto we think the restriction and the provisions for waiver are unambiguous. In simple terms it is provided that the covenants shall be binding for a period of twenty-five years from date of recordation, after which they are automatically extended for successive periods of ten years, unless an instrument signed by a majority of the property owners is filed agreeing to a change in whole or in part.
Id. at 478, 487 S.W.2d at 616.
Here, we conclude that the language in the original bill of assurance for the Meadow Lark Extended subdivision was likewise clear and unambiguous. We conclude further that giving the language of the document its plain meaning does not defeat the plain and obvious purpose of the restrictions. Accordingly, we agree with the chancellor’s determination that Appellants should have had the agreement, signed by a majority of the owners, filed of record before the expiration of the twenty-five-year period, reflecting that the amendment was to take effect as of the day of the original bill’s expiration. That was not done in this case; hence, the amended bill of assurance was not valid.
For the second point for reversal, Appellants argue that the trial court erred in refusing to find that Appellee’s proposed plan to add two units onto an already existing fourplex located on Lot 2 was prohibited by the original bill of assurance for Meadow Lark Extended. Appellants contend that although the bill of assurance provided that apartments are permitted on Lot 2, they are only permitted with the approval of all of the developers. Appellants contend that Appellee only secured the approval of Esther Lea Kitterman, signing on behalf of herself and her husband W.R. Kitterman, and failed to obtain the approval of the other developers. We do not reach the merits of this argument because it is not clear from the abstract that Appellants made this particular argument below or that the trial court ruled on the issue in its order.
Where the abstract does not reflect that the argument, or any similar argument, was made in the trial court, we will not reach the merits of the argument on appeal. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996); Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). Nor will we turn to the record to decide such an issue. Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996). “It is critical that this court not be placed in a position of considering an issue for the first time on appeal.” Id. at 727-28, 934 S.W.2d at 218. Here, the abstract reflects only that Appellants asserted in their amended complaint that “Mr. Watson’s proposed construction violates all the Bills of Assurance [.]” There is no further indication in the abstract that Appellants made anything other than this vague assertion that Appellee’s proposed plans violated the original bill of assurance. The abstract does not contain any argument by counsel on this point, nor does it demonstrate that the issue was addressed by the chancellor either during the hearing or in the order.
For the final point for reversal, Appellants argue that the chancellor erred in refusing to admit into evidence a plat of the Meadow Lark subdivision. As with the previous point, we do not reach the merits of this argument because Appellants have failed to abstract the specific arguments made by them in support of the exhibit’s admission. The abstract only reveals that Appellants offered the exhibit, that Appellee objected to its relevance, and that the trial court sustained the objection. Without the benefit of knowing Appellants’ reasons for offering the exhibit, it is practically impossible for us to determine whether the trial court abused its discretion in denying its admission. Even though our review of this appeal is de novo, it is nonetheless limited to the record as abstracted. See Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Where the abstract fails to show the specific arguments made regarding the proffered evidence, we will not consider the argument on appeal. See Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994).
Affirmed. | [
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Ray Thornton, Justice.
This is an appeal from a trial court’s order dismissing a medical malpractice case as untimely filed. Appellant Patrick Wright and his wife, Elizabeth, brought an action against two cardiologists, Dr. Bimlendra Sharma and Dr. B.V. Pai, alleging that they were negligent in causing Mr. Wright to undergo an unnecessary pericardiectomy. The Wrights argued to the trial court that the doctors undertook a continuous course of treatment of Mr. Wright for pericarditis, and that this tolled the statute of limitations. We hold that the trial court was correct in determining that the continuous-treatment doctrine did not toll the applicable two-year statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1995).
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading the defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Here, it is clear that the act complained of did not take place within the limitations period because the allegedly unnecessary surgery took place on July 13, 1993, and the action was commenced on February 9, 1996, which was more than two years later. Ark. Code Ann. § 16-114-203.
We note that, although the Wrights initially filed a complaint on June 8, 1995, the cause of action was never commenced because the doctors were not served until more than 120 days after the first complaint was filed. Under Ark. R. Civ. P. 4(i), if a plaintiff files a lawsuit and does not serve the defendant within 120 days, the action is never commenced. Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996). Therefore, the trial court was correct in calculating the limitations period from February 9, 1996, the date this action was filed.
Because it was clear from the face of the complaint that the alleged negligent act took place outside the limitations period, it became the Wrights’ burden in the lower court to show that the limitations period was tolled. Stoltz, supra. We hold that the trial court was correct in its determination that the Wrights failed to prove that the period was tolled by a continuous course of treatment.
At the hearing on the motion, the trial court considered affidavits, discovery documents, pleadings, and exhibits that revealed the following facts. On January 5, 1993, Mr. Wright was admitted to St. Joseph’s Regional Medical Center with chest pain. Dr. Sharma diagnosed and treated him for pericarditis, of which he had a history. On June 22, 1993, Mr. Wright was again admitted to the hospital with chest pain. On that date he was treated by Dr. Pai, who was covering for Dr. Sharma. Dr. Pai’s discharge summary states that the chest pain on that date was “secondary to gastrointestinal etiology.”
On July 13, 1993, Mr. Wright was again admitted to the hospital with chest pain. This time, he was seen by Dr. Matthew Hulsey, a family-practice physician. An emergency CAT scan was performed, which, according to Dr. Hulsey’s notes, revealed acute aortic dissection. An emergency thoracotomy was ordered, upon which it was discovered that Mr. Wright had a constrictive pericarditis with a heavy sludge within the entire pericardium. The record indicates that a Dr. Howe performed a partial pericardiectomy, removing the outside lining of the pericardial sac. There is no indication in the record that either Dr. Sharma or Dr. Pai ordered, performed, or participated in this surgery.
On August 30, 1993, Mr. Wright saw Dr. Sharma in his office for a post-hospital visit. The nurses’ notes state that he denied having any chest pain or shortness of breath. Nurses’ notes taken on March 1, 1994, show that he requested a letter from Dr. Sharma stating that he could perform a job as a truck driver. The notes indicate that on March 4, 1994, he was told that he needed to be seen before the doctor could give him the letter. He was seen in Dr. Sharma’s office on April 12, 1994, at which time he stated that he had no chest discomfort.
We agree with the trial court that the continuous-treatment doctrine does not apply to these facts. We have said that “the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatments.” Lane v. Lane, 295 Ark. 671, 675, 752 S.W.2d 25, 27 (1988). The cause of action accrues at the end of a continuous course of medical treatment. Id. The doctrine is based upon the principle that it is unfair to bar a plaintiff who has been subjected to a series of treatments that were negligently administered, simply because the plaintiff is unable to identify the one treatment that produced his injury. Id. We have also said that “‘[i]t would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physi dan.”’ Id.' (quoting 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982)).
Here, there is no allegation of a series of negligent acts; in fact, the Wrights’ complaint clearly states that the doctors successfully treated Mr. Wright for his pericarditis with anti inflammatories. Only one negligent act is alleged, and that is the allegedly unnecessary surgery, which had continuing effects.
It appears that the complaint is based upon an assertion of a continuing tort. While it is undisputed that neither Dr. Sharma nor Dr. Pai ordered or performed the surgery, the Wrights urge that they were negligent in not preventing the surgery from taking place. Even if their inaction could be regarded as a basis for a claim of negligence, it was consummated upon the performance of the surgery, and did not give rise to circumstances that would make appropriate the application of the continuous-treatment doctrine. See Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975); see also Note, Torts — Limitations on Actions — Arkansas Adopts Continuous Treatment Rule to Toll Statute of Limitations in Medical Malpractice Actions, 11 U.A.L.R. L. J. 405 (1989).
In summary, we recognize that in some circumstances a medical injury may result from one or more wrongful acts that are connected with a continuation of treatment or culmination of the injury, and that under such circumstances the statute of limitations is tolled under the continuous-treatment doctrine. However, those circumstances are not reflected in the record of this case. We agree with the finding of the trial court that the two-year statute of limitations was not tolled and that the action was time-barred.
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Per Curiam.
On October 2, 1997, we issued an order for A. Wayne Davis, counsel for the appellant, to appear before this court at 9:00 a.m., Thursday, October 16, 1997, to show cause why he should not be held in contempt of this court for his failure to perfect appellant Wickliffe’s appeal in a timely manner.
A.' Wayne Davis appeared with his attorney, John Wesley Hall, on October 16, 1997. At that time, he entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Robert H. Dudley as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether A. Wayne Davis should be held in contempt. | [
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RITA W. GRUBER, Judge.
| T Sealing Devices, Inc., brings this appeal from a jury verdict in its favor against appellee James McKinney. The jury awarded damages in the sum of $8,044.31. Sealing Devices, Inc. (SDI), asserts two points on appeal: first, it contends that the trial court erred in denying its motion for new trial on the basis of the inadequacy of damages awarded. Second, it contends that the trial court erred in refusing its proffered instruction on loss of profits. We find that the trial court did not abuse its discretion either in denying SDI’s motion for new trial or in refusing its proffered instruction. Therefore, we affirm the trial court’s judgment.
SDI is a distributer of industrial products to paper companies and chemical companies. From 1997 until he resigned in January 2004, James McKinney worked as a |2salesman for SDI, managing accounts for over twenty of SDI’s customers, including Georgia Pacific, from whom SDI received a large volume of sales. In December 2003, Mr. McKinney formed an Arkansas corporation, Industrial Fluid Solutions, Inc. On January 7, 2004, Georgia Pacific terminated its contract with SDI and began purchasing products from Mr. McKinney through Industrial Fluid Solutions, Inc.
On August 12, 2004, SDI filed a complaint against James McKinney, Industrial Fluid Solutions, Inc., and Georgia Pacific, alleging breach of contract on the part of Georgia Pacific, breach of fiduciary duty by Mr. McKinney, and conspiracy to interfere with a business relationship by all three defendants. SDI settled with Georgia Pacific before trial. After a two-day trial, the jury returned a verdict in favor of SDI, finding that Mr. McKinney breached his fiduciary duty, and awarded damages of $8,044.31. SDI filed a timely motion'for new trial pursuant to Rule 59(a)(5) of the Arkansas Rules of Civil Procedure, alleging that the damages awarded were inadequate. The motion was deemed denied by the trial court’s failure to act within thirty days. See Ark. R. Civ. P. 59(b). SDI filed this appeal.
I.
SDI’s first point on appeal is that the jury erred in calculating SDI’s damages. SDI argued in its motion for new trial that the proper amount the jury should have awarded to SDI was $452,000, or $113,587 for each of the years since Mr. McKinney left SDI. SDI essentially contends on appeal that the jury was required to accept its evidence of lost ^profits, which excluded its “normal operating overhead” and was based on the gross profits earned by SDI during Mr. McKinney’s tenure rather than on the net income earned during that same period.
Under Rule 59(a)(5), the inadequacy of the recovery is a ground for a new trial even in the absence of other error. See Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). In such a case, where the primary issue on appeal is the alleged inadequacy of the jury’s award, we will sustain the trial court’s denial of a motion for new trial absent a clear and manifest abuse of discretion. Luedemann v. Wade, 323 Ark. 161, 166, 913 S.W.2d 773, 776 (1996). An important consideration is whether a fair-minded jury might reasonably have fixed the award at the challenged amount. Warner, 281 Ark. at 120, 661 S.W.2d at 399.
SDI bases its argument on its contention that its damages of lost profits were governed by the supreme court’s holding in Interstate Oil & Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998). SDI asserts that, pursuant to Troutman, the jury was required to consider SDI’s evidence of gross profits, which excluded certain deductions claimed by SDI to have constituted “normal operating overhead,” and that it was error for the jury to have considered evidence of taxable income set forth on its corporate tax returns.
Troutman was a breach-of-contract case in which the losing party, found to have breached the contract, appealed and contended that the trial court should have excluded |/Troutman’s evidence of lost profits because Troutman failed to include the cost of overhead in its calculation. The supreme court held that it could not say that the trial court erred in admitting Troutman’s evidence relating to lost profits, reasoning that the overhead was described in undisputed testimony as fixed costs. The court provided the following rationale for the rule that overhead expenses “need not” be deducted from gross income to arrive at the net profit properly recoverable: “overhead continues whether or not the contract in question has been breached.” Id. at 7, 972 S.W.2d at 944 (emphasis added). The court also noted that all variable expenses should be deducted when arriving at lost profits. Id.
First, SDI’s reliance upon Troutman in this case is misplaced. Troutman was a breach-of-contract case between two parties in which the contract required specific sales to be made for a specific duration. In this case, SDI sued and obtained a judgment for breach of fiduciary duty by Mr. McKinney. Mr. McKinney breached no contract obligating him to provide profits from particular customers for a particular duration. Indeed, while not abstracted, the testimony of Ms. Blakely indicates that SDI did not even have an employment contract with Mr. McKinney and that SDI’s contract with Georgia Pacific was terminable at the will of either party at any time for any reason. Thus, not only is this case not a case for loss of profits based on a breach of contract, as was the case in Troutman, but SDI did not have a contract of any specific duration with either Mr. McKinney or Georgia |fiPacifíc.
Moreover, the supreme court in Trout-man did not require overhead expenses to be excluded from all lost-profit calculations. The court merely held that it was not error for the trial court to allow Trout-man to introduce evidence of lost profits that excluded its fixed costs. The trial court in this case allowed SDI to admit evidence of its gross profits, that is, profits excluding deductions it claimed constituted its business overhead. Through its accountant, SDI introduced Exhibit 18, which was a spreadsheet of gross profits attributable to Mr. McKinney less Mr. McKinney’s salary and other expenses designated by SDI as attributable to Mr. McKinney. SDI also introduced its corporate income tax returns for the years 1995 through 2003. SDI’s accountant explained the difference between the amount designated “total income” and the amount designated “taxable income” on the returns. She testified that certain business expenses — such as wages, taxes and licenses, mileage, postage, repair and maintenance, supplies, compensation of officers, travel, and various other expenses — were deducted from total income to arrive at taxable income. The only tax return included in SDI’s addendum is the 2003 return in which total income equaled $358,760 and taxable income equaled $9,721. SDI argued in its closing argument to the jury that its loss of profits should be calculated on the basis of its total income and not its taxable income.
Conversely, Mr. McKinney’s counsel argued at closing that SDI had already made a | f,tremendous amount of money from Mr. McKinney’s employment. He argued that it was “phenomenal” that SDI paid taxes on only $9,000 in 2003 and that SDI was now asking for damages to be based on its gross income rather than on its taxable income. Mr. McKinney contended that SDI did not deserve any damages at all.
We hold that the trial court’s denial of a new trial on the basis of inadequate damages was not a clear and manifest abuse of discretion. SDI was allowed to present its evidence of loss of profits and to argue this evidence to the jury.
Perhaps the jury was not persuaded by SDI’s argument that all of the deductions from total income on the tax returns introduced by SDI were fixed, rather than variable, expenses. A review of the record suggests that the officers’ compensation alone varied from $85,748 in 2000 to $161,162 in 2003. This information was introduced by SDI. Or, perhaps the jury determined that Mr. McKinney’s breach of fiduciary duty did not warrant the amount of lost profits argued by SDI where the testimony of SDI’s owner suggested that SDI’s relationships with both Mr. McKinney and Georgia Pacific were terminable at any time by any party for any reason. In any case, a jury has the right to believe or disbelieve all or any part of the testimony at trial, even when the testimony is uncontradicted, and is in a superior position to judge the credibility of the witnesses. Whitney v. Holland Retirement Center, Inc., 323 Ark. 16, 912 S.W.2d 427 (1996). Furthermore, we do not know the exact manner in which the jury arrived at $8,044.31 in lost profits and we will not speculate on |7how it reached this verdict. The trial court did not abuse its discretion in denying SDI’s motion for new trial.
II.
SDI’s second point on appeal is that the trial court erred in refusing to give the following instruction it proffered on lost profits:
If you have decided in favor of Plaintiff, Sealing Devices, Inc., on its claim for damages against either James McKinney or Industrial Fluid Solutions, Inc., then you need to know the definition of the term “loss of profits.”
Loss of profits in this case would be, for Sealing Devices, Inc., its gross revenues less its cost of goods sold the specific salary expense it paid to James McKinney to produce the gross profits less his efforts contributed to the business.
You should not reduce profits by deducting fixed overhead expenses because those expenses are present and continue whether or not there has been any loss of gross receipts.
The court rejected SDI’s instruction in favor of the relevant model instruction on measure of damages, AMI 2201, which states as follows:
If you decide for SEALING DEVICES, INC. on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them the following element of damage sustained which you find were proximately caused by the fault of JAMES MCKINNEY and INDUSTRIAL FLUID SOLUTIONS, INC.:
The value of any profits lost [inserted from AMI 2206]
Whether this element of damage has been proved by the evidence is for you to determine.
| sUnder Arkansas law, a party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). We will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. Even where a proffered instruction accurately reflects the case law, however, failure to give the instruction is not error when an AMI instruction covering the same subject matter is on point, due to our longstanding preference in favor of AMI instructions over non-AMI instructions. See Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 178, 806 S.W.2d 373, 376 (1991).
We note first that SDI’s proffered instruction, without punctuation to indicate precisely the calculation SDI desired the jury to perform, is somewhat confusing. However, even assuming it correctly reflects the calculation of loss of profits approved in Troutman, we explained above that Troutman was a breach-of-contract case, not a case regarding the breach of a fiduciary duty. Further, Troutman did not hold that overhead expenses are never to be deducted from gross profits in order to arrive at loss of profits; rather, the supreme court held that it was not error for the trial court to allow evidence of lost profits in which certain fixed expenses were not deducted from gross profits. We do not find that Troutman mandated SDI’s proffered instruction in this case. Finally, there was an AMI instruction covering the subject, which the trial court gave. Therefore, we hold that the trial court did 19not abuse its discretion in refusing to give SDI’s proffered instruction on loss of profits.
Affirmed.
GLADWIN and GLOVER, JJ., agree. | [
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Hart, C. J.
L. L. Boachell and B. C. Floyd have appealed from a decree of the chancery court, granting the Commissioner of Revenues judgment for motor vehicle tax and penalty due the State óf Arkansas under an act of the Legislature of 1929.
The cases were consolidated for tidal upon an agreed statement of facts in writing. The facts may he briefly summarized as follows: L. L. Roachell is a citizen and resident of Parkin, Cross County, Arkansas. He operated a truck from August 31, 1930, to May 1, 1931, hauling freight from Parkin, Arkansas, to Memphis, Tennessee, and from the latter point back to Parkin. He was a private carrier for hire, and was exclusively engaged in interstate commerce. He only operated one truck which he had purchased from the International Harvester Company, and that company had retained title until the vehicle was paid for. Roachell had agreed to pay for the truck $978 in monthly payments and had paid a total of $225 on the purchase price. R. C. Floyd is a citizen and resident of Parkin, Cross County, Arkansas, engaged in operating trucks as a private carrier since March 1, 1929. He first bought a truck on the installment plan in which the vendor retained title until the truck was paid for. The purchase price was $721, and he had paid $300 of the purchase money. From March 1, 1929', he has hauled as a private carrier, cotton from McDonald, Arkansas, to Memphis, Tennessee. He also engaged in one private contract from Memphis, Tennessee, to points in the State of Oklahoma, in which his motor truck passed across the State of Arkansas without making any stops for delivering any shipments within the State of Arkansas. It was further agreed that, if the act sought to be enforced by the State Commissioner of Revenues is constitutional, the amounts demanded are due and payable.
The record shows that appellants were private carriers engaged exclusively in interstate commerce, and this appeal involves the construction of act. 65 passed by the Legislature of 1929 for the purpose of amending and codifying the laws relating to State highways. Acts of 1929, vol. 1, p. 264.
The particular section of the act which is claimed to ■be unconstitutional, as violating’ the commerce clause of the Constitution of the United States, is § 68, which reads as follows:
“Any motor vehicle carrier of persons or freight for compensation who operates between a certain point or points without the State of Arkansas to certain point or points within the State of Arkansas, shall be subject to the same rules and regulations and shall pay the same privileges or excise tax as motor vehicle carriers operating entirely within the State; but, in computing the privilege or excise tax to be paid by such motor vehicle carriers operating partly within and partly without the State, the privilege or excise tax of four per cent, upon the gross amount of fares and charges shall be based upon the proportion that the mileage within this State over which said haul is made bears to the total mileage.”
In the absence of Federal legislation covering the subject, the.Supreme Court of the United States has repeatedly recognized that a State or one of its delegated agencies may enforce, as to the owner of vehicles using the highway exclusively in interstate commerce, regulations insuring the public safety and convenience, and impose such a license fee as will reasonably defray the expense of administering the law and be a fair contribution to the cost of constructing and maintaining the public highways and the facilities furnished by the State. The State acts under its police power, and it is recognized that the movement of motor vehicles over the public highways is a serious and constant danger to public travelers and very destructive to the highways themselves. The use of the public highways under modern conditions is exceedingly expensive because motor vehicles cannot be used except upon hard-surfaced highways, which are very costly in construction and maintenance. Hence it is held that the State may im pose the tax for the purpose of constructing and maintaining the highways where there is a reasonable relation between the measure employed for that purpose, and the extent or manner of use of the motor vehicles. When that is done, the Supreme Court of the United States has held that a tax on motor vehicles used exclusively in interstate commerce as compensation for the use of the public highways which is a fair contribution to the cost of constructing and maintaining them, and regulating traffic thereon, is not unconstitutional as a burden on interstate commerce. Sprout v. South Bend, Indiana, 277 U. S. 163, 48 Sup. Ct. 502, 62 A. L. R. 45; and Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 51 S. Ct. 380. In the latter case, all the earlier cases on the subject are reviewed, and no useful purpose could be served by citing them or reviewing them here.
It is true that the court held the aot in the Lindsey case to be unconstitutional, but it recognized the principles above announced as being the doctrine of that court. In the Lindsey case, the tax levied was upon a bus carrying passengers, according to the number, of passengers carried, and provided that the tax should be in lieu of all county and municipal taxes. The court said that no sufficient relation between the measure employed and the extent or manner of use was shown to justify holding that the tax was a charge made merely as compensation for the use of the highways.
Here the facts are essentially different. The Legislature passed an act amending or codifying the laws relating to State highways at its 1929 session, and created a State Highway Commission to be composed of five members. The act was very comprehensive in its nature, and contained seventy-five sections. Section 67 provides for the levy of an excise or privilege tax upon the business of each person or corporation operating any motor vehicle for compensation. The amount to be levied was four per cent, of the gross amount received by such carrier of all fares and charges collected for the transporta tion of .persons and property. It also provides for the payment monthly to the Commissioner of Revenues. Section 68, which is copied above, provides in substance that any motor vehicle carrier of persons or freight for compensation which operates between a point or points within the State of Arkansas and a point or points without the State of Arkansas shall be subject to the same rules and regulations and shall pay the same privilege or excise tax as motor vehicle carriers operating- entirely within the State, but in computing the tax of those engaged in interstate commerce the four per cent, charge upon the gross amount of hauling for charges shall be based upon the proportion which the mileage in this State bear & to the total mileage. Thus, it will be seen that there is no discrimination whatever between interstate and intrastate carriers. There is no attempt in the record to show that the amount collected was arbitrary or excessive.
It is also earnestly insisted that the showing made in the record that Floyd hauled freight from a point in Tennessee to points in Oklahoma, across the State of Arkansas, without stopping or delivering- freight therein, renders the act unconstitutional as being- discriminatory. We do not think this contention is well taken when the whole scope and purpose of the act in connection with its relation to prior acts on the same subject is considered. The Legislature of 1929, by an act which was approved February 27, 1929, provided for the regulation, supervision, and control of motor vehicles used in the transportation of persons or property for hire by the Railroad Commission. Acts 1929, vol. 1, p. 137. This act contained twelve sections and § 1 (d) provides that the term, “motor vehicle carrier,” wherever used in the act, means every corporation or person owning and operating any motor-propelled vehicle used in the business of transporting persons or property for compensation over any improved public highway in this State. Section 1 (f) provides that the term, “improved public highway,” shall mean every improved public highway in this State which is or may hereafter he declared to he a part of the State highway system. Section 1 (g) provides that the term, “property and freight,” as used in the act, shall mean any kind of property transported by motor vehicle carrier for compensation over any improved public highway in the State. Act 65, relating to the amendment and codification of the State highway laws, was approved on February 28, 1929.
This court has held uniformly that acts passed upon the same subject must be taken and construed together. The intention of the Legislature should he carried into effect, where that can be done without doing violence to the language used. Another cardinal rule of construction is that this rule is especially applicable where the two acts were under consideration by the Legislature at the' same time. Merchants’ Transfer & Warehouse Company v. Gates, 180 Ark. 96, 21 S. W. (2d) 406.
This court has uniformly approved the doctrine of substitution, elimination, or supplying words in conformity to the obvious spirit and purpose of the act in attempting* to carry out the intention of the Legislature. State ex rel. Attorney General, v. Chicago Mill & Lumber Corporation, 184 Ark. 1011, 45 S. W. 2d 26, and cases cited.
After a careful consideration of the matter, in connection with the obvious purpose and intent of the Legislature to regulate all motor traffic over the improved public highways of the State, we do not think that it meant to exempt from the provisions of the act motor vehicles hauling freight from a point in another State across the State of Arkansas, to points in other States. A reasonable construction of the act would indicate that the legislative purpose and intent was to regulate all traffic over the public highways of this State; and, when all the provisions of both acts under consideration are considered together, we are of the opinion that the act applies to motor vehicles operating in the manner just described as well as to motor vehicles operated in inter state commerce from a point within the State to a point without the State. The gist of the whole matter, as we have already seen, was to regulate motor traffic for hire over the public highways of the State under the police power for the safety of the traveling public and for a reasonable proportion of the expense of constructing and maintaining the improved public highways.
Therefore, we hold the act to be constitutional, and it is conceded that the amount demanded is due under the terms of the act.
Finally it is contended that there is no authority to levy an execution on the property of appellant. Reliance is placed upon Jennings v. McIlroy, 42 Ark. 236, and later decisions of this court, where it was held that mortgaged personal property is not subject to attachment or execution for a debt of the mortgagor-. The reason for so holding was that at common law equitable interests in personalty were not liable to be taken in execution at law. The court said that, by a mortgage of personal property, the title passes, and the mortgagor has only the equitable right to reclaim it on payment.
Here the facts are different. The title to the property was in the vendor of appellants, and they stood in the relation of a conditional vendee. This court has frequently held that the vendee of an automobile, having paid part of the purchase price and having been given possession under a contract retaining title to the vendor until the payments are completed, had an interest therein which he could sell or mortgage. Loden v. Paris Auto Company, 174 Ark. 720, 296 S. W. 78.
Upon principle, it would seem that, if he had an interest which he could sell or mortgage, it would be subject to attachment under execution for his debts. Such a rule would not in any sense deprive the vendor of his right to retake the property as his own if he saw fit to do so. Upon the other hand, the vendor would have the right to elect to treat the sale as absolute and sue for the purchase price. Hence we do not consider this objection well taken.
Upon the whole case, we are of the opinion that the decision of the chancery court was correct, and the decree will therefore he affirmed. | [
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Kirby, J.,
(after stating the facts). The statute upon which the motion for discharge is-based, § 3132, Crawford & Moses’ Digest, reads as follows:
“If any person indicted for any offense, and- committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”
This statute has been construed and applied first in Stewart v. State, 13 Ark. 720, in Ware v. State, 159 Ark. 540, 252 S. W. 934, where all the cases are reviewed, and in Fulton v. State, 178 Ark. 841, 12 S. W. (2d) 777. In . the last cited case it was held that the person committed to the penitentiary, who had no opportunity to demand a trial on other indictments, did not waive his right to discharge from such indictments under said statute.
This case, however, furnishes no authority for the granting of the motion to discharge the defendant from the indictments herein because the prisoner there was prevented from.making such motion while he was in the custody of the State, serving a sentence upon a conviction for violation of her laws, the State having the exclusive custody of the convict- there, and could and should have brought him into" open court that he might demand a trial, and he waived no right to discharge under this statute by its not having done so. Here the appellant was in the custody of the United States Government, in her penitentiary, upon a plea of guilty to a violation of its laws, which furnished no ground for the dismissal of charges pending against him on indictments in the State court because of his not having had opportunity to demand a trial therein, and this is so without regard to whether the State could have sooner procured his presence under the comity rule from the United States Government, as announced in Ponzi v. Fessenden, 258 U. S. Reports, 254, 42 S. Ct. 309. In Rigor v. State, 101 Md. 465, 61 Atl. 631, 4 Ann. Cas. 719, it was said by the' Supreme Court of Maryland:
“The penitentiary is no't a place of sanctuary; and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt.”
Appellant made no effort to demand trial while he was imprisoned in the United States Penitentiary, which he could have done, and the fact that the State could have procured his presence in her court for trial on the indictments and did not do so deprived him of no right he was entitled, to, and the court did not err in denying his motion for a discharge from the indictments pending in her court. The judgment is affirmed. | [
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McHaney, J.
Appellee sued appellant for personal injuries sustained by him while in its employ, and recovered a verdict and judgment for $7,500. The case was brought under the Federal Employers’ Liability Act, and no question is raised as to its applicability.
The principal assignment of error relied on for a reversal is that the evidence is insufficient to support the verdict and judgment, and that the court should have directed a verdict in appellant’s favor at its request.
In determining this question, we must view the evidence in the light most favorable to appellee, and, if there is any substantial evidence to support the verdict, when viewed in this light, it must be sustained. Briefly so stated, the evidence is to the effect that appellee was working as a section hand in an extra gang1 repairing the main line tracks of appellant some four or five miles north of Knobel, Arkansas. The foreman and crew had quit work for the day, and started back to Knobel where the foreman and a number of the crew desired to catch a train to Little Rock. The foreman was in a hurry. They were traveling on a motor car, sometimes referred to as a speeder, to which was attached a trailer. The motor car was operated by a two cylinder gasoline'engine, without a starter, and had to be pushed along the track a distance until the gas in the engine was ignited, and then the pushers would jump on. At the time appellee was injured, they had some trouble getting the engine started, and the foreman, who was in charge of the engine and operating it, directed appellee and others to get off the car and push, which they did. Appellee was pushing on the left side near the rear of the motor car and in front of the trailer, when the engine “caught” or fired, it gave an unusual lurch or jump forward, because the foreman had given it too much gas, and appellee’s leg was caught by the running’ board on the side of the trailer which threw his foot under the wheel causing him severe, painful and permanent injuries to his foot and leg. The negligence relied on is the act of the foreman in giving the engine too much gas, causing the car to make an unusual and unexpected jump when the gas ignited, and but for such jump appellee would not have been injured. Appellant had a rule providing that such cars should be pushed and boarded from the rear, but appellee had no knowledge of the rule, and it was habitually violated by all the men and the foreman. There were thirteen men pushing, three from behind and the others on both sides. Appellee had been working for appellant about twenty years, and was familiar with the operation of such cars.
On the above facts appellant insists that it was guilty of no negligence, but that, if it were, appellee assumed the risk. It is conceded that, under the Federal Employers’ Liability Act, contributory negligence is not a defense, except to reduce the damages. We think the evidence was sufficient to take the case to the jury on the question of the negligence of appellant through its foreman in giving the engine too much gas, causing it to make a sudden, unexpected and unusual jump forward. By its verdict the jury has found that appellant’s foreman was negligent in the manner stated, and, this finding being supported by substantial evidence, under the settled rule of this court, it must be permitted to stand.
On the question of assumed risk, we can not say as a matter of law that appellee assumed the risk. We think it was a question to be submitted to the jury, which the court did under instructions that are not complained of. It is well settled that under the Federal Employers’ Liability Act a servant is not deemed to have assumed the risk of the negligence of the master or that of a fellow-servant unless the consequent danger is so open and obvious that ail ordinarily careful and prudent, person in his situation would have observed the one and appreciated the other. Nor does he assume an extraordinary risk caused by the negligence of the master or of his fellow-servant. St. L.-S. F. R. Co. v. Blevins, 160 Ark. 362, 254 S. W. 671; Mo. Pac. Rd. Co. v. Hall, 161 Ark. 122, 255 S. W. 707; St. L. S. W. Ry. Co. v. Harrell, 162 Ark. 575, 259 S. W. 739; St. L.-S. F. R. Co. v. Miller, 173 Ark. 597, 292 S. W. 986. It was a question for the jury, therefore, as to whether appellee assumed the risk.
It is finally insisted that the court erred in refusing to give appellant’s requested instruction No. 9, as follows: “You are instructed that appellee assumed the risk in pushing from the side and attempting to get on the motor car from the side in violation of a rule promulgated for his safety, and your verdict will be for the defendant.” What we have already said disfioses of this contention adversely to appellant. Appellee and others testified that, if appellant had such a rule requiring them to push and get on the car from the rear, they knew nothing about it, had never heard of it, had not been instructed by the foreman or any one else not to push or board the car from the side, and that, if there were such a rule, it was constantly violated by all the men, including the- foreman. It is well settled that an employee cannot be held to have assumed the risk in violating a rule of which he had no knowledge. We find no error, and the judgment is affirmed. | [
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MoHaney, J.
On March 27, 1923, Herman Alwes and wife and Tillie N. 'Seidel, being the owners of a certain piece of property in Eureka Springs, executed and delivered to Frederick U. and Pauline C. Smith their mortgage thereon to secure their three promissory notes of $1,000 each. The first of said notes was paid, and the second and third notes were assigned by the Smiths to appellee Richheimer. The property mortgaged was known as the Commodore Theatre. Thereafter on the 24th day of May, 1923, Tillie N. Seidel, who has since married one Reinach, conveyed her interest in said property to her cotenant Alwes, and on the same day Alwes and wife executed and delivered their note to Mrs. Seidel-Reinach in the sum of $4,000, covering the unpaid purchase money, which was secured by a second mortgage on the same property. Thereafter Alwes and wife conveyed an undivided one-half interest in the same property to William C. Perry, subject to the mortgages of Richheimer and Seidel-Reinach. Thereafter on May 22, 1924, Alwes and Perry executed and delivered to H. O. Pendergrass a third mortgage on the same real property, subject to the prior mortgages, which purported to cover all the personal property located in the theatre building. Default was made in the payment of Richheimer’s indebtedness, and suit was brought to foreclose his mortgage, in which all the other parties in interest were made defendants. Mrs. Seidel-Reinach answered admitting the priority of the Richheimer mortgage and filed a cross-complaint against the other deféndants praying a foreclosure of her second mortgage. In the mortgage by Alwes and wife to Seidel-Reinach, after describing the real estate, is found this clause: “It being my intention to convey the grounds upon which the Commodore Theatre now stands together with the building and appurtenances, all in the city of Eureka Springs, county and State aforesaid.” And the habendum clause: “To have and to hold the same unto the said Tillie N. Seidel, her heirs and assigns, together with all and singular the appurtenances and improvements thereunto belonging.” No personal property was mentioned in either the first or second mortgages.
At the time of the execution of the second mortgage there was located in the Commodore Theatre and attached to it the theatre seats, a number of electric fans, two picture machines and an electrical pipe organ weighing about a ton, drop curtains and other property used and useful in the operation of the theatre, all of which passed to Alwes under the Seidel-Reinach deed, and she prayed a foreclosure of the same property under her riiortgage as fixtures, and that same be declared prior and paramount to the Pendergrass mortgage. Appellants Alwes and Perry answered denying the right of Mrs. 'Seidel-Reinach to a foreclosure on the fixtures. Pendergrass failed to answer either the complaint or the cross-complaint. On a hearing there was no dispute as to the amount due under the first and second mortgages or their priority as to the real estate. The court found for- appellees, decreed a foreclosure of the first and sec ond mortgages for the sums agreed to he due, ordered a sale of the property, including the fixtures, and that the proceeds of the sale be applied to the payment of the first and second mortgages and the overplus, if any, be applied on the third mortgage of Pendergrass.
The only question presented by this appeal is whether the articles of furniture and fixtures in the Commodore Theatre are fixtures, and therefore a part of the realty, covered by the first and second mortgages, or whether they remain personal property and not covered by said mortgages. The word “appurtenances” is defined in Words and Phrases as follows: “An appurtenance is a thing belonging to another thing as principal and which passes as incident to the principal thing.” The thing conveyed in the Reinach mortgage was the real estate described therein together with “the appurtenances and improvements thereunto belonging.” As stated above, the property in the Commodore Theatre was attached to it, was appurtenant thereto and was a part of the improvements in the building for the purpose for which it was constructed. The building was built as a theatre or moving picture show, and was suitable for such purpose and for no other without extensive alterations. This court has many times had occasion to determine when personal property becomes a fixture in a building. In Stone v. Suckle, 145 Ark. 387, 224 S. W. 735, the court held that, where deed to a hotel, did not reserve the ceiling- fans therein which were necessary and reasonably adapted to the use of the property for hotel purposes, the jury’s verdict finding- them to be fixtures should be sustained. It was there held that, as between heir and executor, “the rule obtains the most rigor in favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the freehold. ’ ’ And it further said: ‘ ‘ The strict rule as to fixtures that applies between heir and executor applies equally between vendor and vendee, and mortgagor and mortgagee.” Citing 2 Kent’s Commen taries (14 ed. p. 346). In that case the court quoted with approval from Canning v. Owen, 22 R. I. 642, 48 Atl. 1033, 84 Am. St. Rep. 858, which held that electric light fixtures which take the place of gas fixtures in a building, though removable without physical injury to the building, as between mortgagor and mortgagee, were fixtures and a part of the realty, and stated the following: “It is not necessary to impose upon a chattel the character of a fixture that it be so affixed to the realty that it cannot be removed without physical injury thereto, if it has been attached with a view of enhancing the value of the realty and for the purpose of being permanently used in connection therewith. The intention of the owner need not be expressed in words, but must ordinarily be inferred from the nature of the articles affixed, the relation and situation of the parties interested, the policy of the law with respect thereto, the mode of annexation and the purpose for which it was made. The question whether chattels are to be regarded as fixtures depends less upon the measure of their annexation than upon their own nature, and their adaptation to the purpose for which they are used.”
A number of cases since that time have followed Stone v. Suckle, supra. In Hall v. Burns, 146 Ark. 157, 225 S. W. 227, a kitchen cabinet was held to be a fixture. In Arkansas Cold Storage & Ice Co. v. Fulbright, 171 Ark. 552, 285 S. W. 12; Anderson v. Southern Realty Co., 176 Ark. 752, 4 S. W. (2d) 27, and McGregor v. Cain, 180 Ark. 746, 22 S. W. (2d) 393, the strict rule which obtains between heir and executor, vendor and vendee and mortgagpr and mortgagee was relaxed because those relationships did not obtain and other circumstances and conditions relaxed the rule. Stone v. Suckle, supra, is cited in 62 A. L. R. 251, where it is stated that the tendency of modern decisions, both English and American, “is against the common-law doctrine that the mode of annexation is the criterion, whether slight and temporary, or immovable and permanent, and in favor of declaring all things to he fixtures which are attached to the realty with a view to the purposes for which it is held or employed. ’ ’
Applying these principles we think the articles enumerated above are fixtures because not only are they attached to the building, but are used and are useful in connection with the operation of the building as a theatre or moving picture show, the only purpose to which it is adapted.
We therefore agree with the trial court that said articles, after being placed in the theatre building and attached thereto, become fixtures, lost their identity as chattels and passed under the first and second mortgages without special enumeration and were subject to foreclosure and sale as a part of the realty.
Affirmed.
Kjrby, J., dissents. | [
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Hart, C. J.
A. B. Banks was convicted before a .jury for receiving or allowing to be received in the American Exchange Trust Company a banking corporation of Little Bock, Arkansas, of which he was president, deposits after he knew that the bank was insolvent. The jury fixed his punishment at imprisonment for one year in the State Penitentiary, and from the judgment upon the verdict the defendant has appealed.
The first assignment of error is that the court erred in refusing to grant the defendant a continuance. The granting or refusing of continuances is within the sound legal discretion of the court, and this court will not interfere where there has been no abuse of that discretion. Golden v. State, 19 Ark. 590; Edmonston v. State, 34 Ark. 720; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Morris v. State, 102 Ark. 573, 145 S. W. 213; Bruder v. State, 110 Ark. 402, 161 S. W. 1067; Sease v. State, 155 Ark. 130, 244 S. W. 450; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946.
While numerous other cases approving the rule have been decided by the court, no useful purpose could be served by citing or reviewing them, because each case depends upon its own particular facts. The indictment in the case at bar was returned on April 27, 1931. On May 27,1931, the case was set for trial on June 26,1931. The trial lasted about one week. Numerous witnesses were introduced by the State and by the defendant. Eminent counsel represented the defendant. They were allowed to introduce testimony relative to every phase of the case. There was ample time to have taken the deposition of any witness which might have been desired. There was no reversible error in the action of the court in overruling the defendant’s motion for a continuance.
The next assignment of error is that the court erred in overruling the defendant’s motion to quash the indictment. The record shows that the grand jury duly returned into court the indictment upon which the defendant was tried. Thereafter, on another day of the same term, after obtaining permission of the court, the same grand jury met and heard the testimony of the defendant, A. B. Banks. Thereupon, the grand jury made a written report to the court, stating that it had erred in returning the indictment, and recommended to the prosecuting attorney that a nolle prosequi be entered of record. The prosecuting attorney objected, and the court refused to quash the indictment.
There was no error in this ruling of the court. Under our Constitution and laws, a grand jury is an accusing body, and, while an appendage or part of the court, it has no powers as a judicial tribunal. When it returns into court a true bill in a case, its power in the premises is ended until and unless, under orders of the court, the charge is again submitted to it for consideration. The indictment and return thereon of a true bill is a public record of which, the court has exclusive jurisdiction. It cannot he withdraw from the files of the court and changed by the grand jury. Then, too, when the grand jury returns a bill into court and files it, the court acquires jurisdiction of the case, and the function and power of the grand jury is ended. Fields v. State, 121 Ala. 16, 25 So. 726; Gibson v. State, 162 Ga. 504, 134 S. E. 326; Joyce on Indictments (2d ed.), § 128, p. 153; 31 C. J. 587.
The next contention relied upon for reversal of the judgment is that under § 717 of Crawford & Moses’ Digest, which is a part of our statute regulating banks and banking, the bank in question was not insolvent because there had been no examination made by the bank examiner. Reliance is placed upon that part of the section which provides that a bank shall be deemed insolvent within the meaning of the act upon the existence of the following facts: * * * “3. If, upon examination, it is ascertained that the liabilities of a bank exceed its assets.”
It is claimed that under this section it is only the Bank Commissioner who can declare a bank insolvent after examination made, and that, so long as the Bank Commissioner permitted the bank to remain open, it was not insolvent. We do not think so. 'Our banking act (§ 712, Crawford & Moses ’ Digest) allows the officers of a bank to close it for insolvency, and § 697 of Crawford & Moses’ Digest makes it a felony for any officer to receive or allow to be received deposits in the bank when he knows it to be insolvent. We cannot conclude, in the light of these sections, that it was the intent of the hanking act to vest in the Bank Commissioner alone the power to determine when and when not a bank is insolvent. Raynor v. Scandanavian-American Bank, 122 Wash. 150, 210 Pac. 499, 25 A. L. R. 716.
The next assignment of error is that the court erred in allowing the testimony of W. A. Hicks and Sam Wilson to go before the jury. According to the testimony of W. A. Hicks, he was president of the People’s Trust Company of Little Rock, and had been since De cember 1, 1928. Prior to that time lie was active vice-president of the American Southern Trust Company, which was taken over by the American Exchange Trust Company. He was familiar with the ability of the customers of the latter bank to pay their obligations. After the American Exchange Trust Company closed its doors, on account of insolvency on November 17, 1930, witness was one of a committee of three bankers selected to investigate the assets of the insolvent bank. Witness was allowed to make a detailed statement of the large debtors of the bank and to state the value of the securities deposited by them in the bank for the purpose of securing the loans made to them. Among the largest debtors were Caldwell & Company, insurance investment brokers of the State of Tennessee; A. B. Banks & Company, investment brokers, owned and controlled principally by the defendant; Yan M. Howell & Co., another investment concern owned and controlled principally by the defendant. Other large debtors of the bank were listed by the witness, Hicks, and his opinion given and taken as to the value of their securities. Without going into detail in the premises, it is sufficient to say that his testimony tended to show that the bank was insolvent on November 15, 1930, and when it failed to open on November 17, 1930.
Sam Wilson was a planter and merchant and a director of a bank in the southern part of the State. He was appointed as liquidating agent for the American Exchange Trust Company when it was taken charge of by the State Bank Commissioner. He made a list of the large debtors of the bank, and his testimony tended to corroborate that of W. A. Hicks as to the value of their securities and in other matters.
We are of the opinion that the testimony was admissible under the principles of law heretofore decided by this court in similar cases. Cunningham v. State, 115 Ark. 392, 171 S. W. 885; Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916 E, 586; Wilkin v. State, 121 Ark. 219, 265 S. W. 76; Dover v. State, 165 Ark. 496, 265 S. W. 76; Crawford v. State, 184 Ark. 1027, 44 S. W. (2d) 360. The reason is that the business of banking, while a lawful one, is subject to regulation under the police power of the State. Money is the life blood of the nation, and a country’s financial system has been generally regarded as the Scylla and Charybdis upon which it is wrecked or voyages to safety. The banking business, from the beginning of our country’s existence, has grown to be a part and parcel of a great financial system, and the bulk of the business is transacted through the medium of bank checks and drafts. It is the great business of the country which needs protection, but which needs to be regulated to promote the general public welfare and happiness of the people. A bank does business upon the confidence of the people in its solvency. When the public ceases to have confidence, suspension of business is near. So it can be said that, when a bank is open and doing business with the public, that of itself is in effect a public declaration of solvency. Therefore, if its officers allow deposits to be received when they know the bank to be insolvent, such act is punishable as a criminal offense. The mere fact that, after investigation had been begun, the officers of the bank in question continued to do business, tended to show knowledge of its insolvency on the part of the officers. For an insolvent bank to continue in business is to hold itself out as having responsibility and surplus capital when none exists. To suppress this real or supposed mischief, our Legislature has passed the act under which the defendant was convicted in the present case. It is a matter of common knowledge that the deposits of the banks of the country exceed many times the amount of the actual money in the country. This is so because a large part of the business is transacted by checks and drafts. Hence the solvency or insolvency of banks must of necessity rest upon the value of their securities rather than upon the amount of money on hand. These principles of law have been recognized by well-known textwriters and many adjudicated cases. No particular citation of authority is needed therefore to support it.
If the solvency or insolvency of the bank in question could not be proved by those who have made an examination of the affairs of the bank immediately before or after its officers have closed its doors on account of insolvency, then the statute in the present case might well never have been passed, as it would be practically impossible to convict under it. The deposit in the present case was received on Saturday, November 15, 1931, in the usual course of business, and the bank closed its doors on the following Monday, and has been in the hands of the Bank Commissioner for liquidation as an insolvent bank ever since. A bank is insolvent, within the meaning of the statute, when its assets and property are of such a character and value that it is unable to meet its demands in the usual and ordinary course of business. It is not essential that the bank shall have on hand sufficient cash to pay all of its depositors, or any considerable number of them, on the same day. It is necessary, however, for it to have-on hand cash or other available assets to meet the demands that are usually made on it from day to day in the ordinary course of business. Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916 E, 586; Wilkin v. State, 121 Ark. 219, 180 S. W. 512; Crawford v. State, 184 Ark. 1027, 44 S. W. (2d) 360.
While the defendant introduced testimony tending to show that the bank was not insolvent when the deposit in question was received, we do not deem it necessary to set it out or to comment upon it; for the verdict of the jury must be tested by the evidence on behalf of the State. The testimony of Hicks and Wilson was sufficient to warrant the jury in finding that the bank was insolvent on November 15, 1930, when the deposit in question was received in the usual course of business.
The only other matter which need be considered in testing the legal sufficiency of the evidence upon a verdict of guilty is whether or not the defendant knew of the insolvency of the bank at the time the deposit was received. Here again we find the testimony in conflict, but a careful consideration of the evidence for the 'State, viewed in the light of the attendant circumstances, warranted the jury in finding that the defendant had such knowledge. In order to find the defendant guilty, it was not necessary to impute to him any fraudulent intent in the conduct of the affairs of the hank; it was only necessary to find that he had knowledge of its insolvency at the time the deposit in question was received.
The record shows that the American Exchange Trust Company was organized in February, 1930, by a merger of the American Southern Trust Company and the Exchange National Bank, both banking corporations in the city of Little Rock. A new bank was formed with a capital of $1,000,000 and a surplus of $500,000. The defendant was president of the American Southern Trust Company and became the president of the newly organized bank, and a member of its board of directors. "While he was not chairman of the board, the defendant was usually present at its monthly meetings and presided at such meetings. Prior to this time, commencing in the year 1900, the defendant organized various insurance companies for the purpose of conducting a fire, accident and life insurance business. These companies acquired considerable capital, which was invested by them in banks over the State. At the time the American Exchange Trust Company became insolvent, it was affiliated with about 48 other banks in the State. The defendant controlled all these banks as well as the insurance companies referred to above. He also conducted the negotiations for the purchase of the assets of some of his insurance companies by Caldwell & Company, of Nashville, Tennessee. The record shows that he kept in close touch with all of these companies; he knew their interlocking relations with each other; he knew that the insurance companies had invested largely in stocks in the various banks under his control; he was the guiding star and the principal owner of two investment companies which turned out to be wholly insolvent, and which were organized for the purpose of investing in stocks and bonds. Both these companies were indebted to the American Exchange Trust Company in large sums at the time it closed its doors.
This is not a case where the defendant was ignorant of the banking business and could not have known of the bank’s insolvency, had he made an examination of its affairs,' nor is it a case where he paid no attention to the business, and did not on -that account know its.true condition. He did not have to depend upon statements made by the officers of the bank in active charge of its affairs with regard to its financial status. It is not a case where the bank became insolvent because of an earthquake or some sudden and unexpected casualty. It may be true that the defendant relied upon other officers of the bank more or less for detailed information with regard to its financial condition, but he knew the connection of the bank with the various other forty-eight banking institutions in the State; he knew in a general way of their condition; he knew of the condition of the various insurance companies with which he was connected, and all the way through had active management and control of these institutions. He knew of the failing confidence of the public in the bank on account of his sale of assets to Caldwell & Company, and must have known in a general way that the bank was 'gradually becoming insolvent; he knew beforehand that his bank was being investigated by the Clearing House Association of Little Rock.
It is claimed for the defendant that, from time to time, he put large resources of his own in the bank for the purpose of protecting its depositors and preventing the bank from becoming insolvent. This was proper testimony to be considered by the jury, and doubtless was so considered in fixing his punishment. Under our statute, the guilt or innocence of the defendant in cases of this sort does not depend upon a fraudulent intent. The gist of the offense is that he allowed deposits to be made, knowing that the bank was insolvent. The very fact that from time to time he' put large amounts of money and securities of his own into the bank to protect the bank indicated a knowledge on his part that he knew that the bank was in failing condition. At least‘the .jury might have so found.
We have carefully considered all of the testimony in the record and are of the opinion that, if believed by the jury, the testimony on behalf of the 'State warranted the verdict of guilty. The judgment of the trial court is therefore correct, and it is affirmed. '
McHaney, J., disqualified and not participating. | [
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Humphreys, J.
Appellant proceeded under § 69 of act 65 of the Acts of 1929 to collect from appellee the privilege tax provided for in acts Nos. 62 and 65 of the Acts of 1929 for operating a motor vehicle for compensation for the transportation of persons, property, or freight.
Appellee brought this suit in the chancery court to enjoin appellant from proceeding further in the collection of said privilege tax upon the alleged grounds: first, that said tax is confiscatory in that it is greater than the earnings of the business; and, second, because their particular business did not constitute an operation of motor vehicles for compensation for the transportation of persons, property, or freight.
A demurrer' was filed to the complaint, which was overruled, and the case was tried upon the following agreed statement of facts:
“The parties to the above entitled and numbered cause agree that the following is a statement of facts upon which judgment shall be rendered therein, in so far as the said judgment of the court applies to the liability or nonliability of the defendants for the payment of the 4 per cent, vehicle tax,- the controversy therein being submitted to the court upon the same as such agreed statement of facts.
‘ ‘ That in this case, David A. Gates, Commissioner of Revenues of the State of Arkansas, has filed with the circuit clerk a certified judgment as to the amount of motor vehicle tax due the State of Arkansas from the petitioners herein, and upon said judgment an execution has been delivered to the -sheriff as provided by law, and the said sheriff has endeavored to make a levy upon said execution, and the petitioners herein have applied for an injunction to prevent the sheriff from levying upon their property, claiming that they do not owe the State anything, and that the particular part of their business in question is not subject to the 4 per cent, motor vehicle tax..
“That the petitioners operate what is known as a wrecker, and use it for the purpose of going out on the highways and streets to tow disabled automobiles into their garage for repair, and, while so doing, they carried automobile parts, oil, gasoline, tires, etc., and they hold themselves out to the public as ready to undertake this service in the city of Hot Springs and along public highways in the country and, by advertising they solicit patronage of the public and do a general business with the public, and solicit business from the public.
“That the period for which the Commissioner of Revenues estimated the tax due begins August 1, 1929, and-ends December 31, 1930.
“That there has been no audit made by the revenue department as to the amount of gross income received by the petitioners herein from this source, and it is agreed that, in the event they are held liable to pay a tax, then the department shall have a right to check their books, as provided by the law, to arrive at the actual amount taxable during the period that the motor vehicle tax has been in force. ’ ’
Upon a hearing of the cause, the trial court permanently enjoined the collection of the tax in question.
Under the ruling in Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. (2d) 634, the court should have sustained the demurrer to paragraph No. 1 of the complaint, which merely alleged that the law as applied to appellees’ business would confiscate his property without due process of law.
Under the ruling in the case of Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, the business conducted by appellee comes clearly within' the statute under the agreed statement of facts, and is subject to the 4 per cent, privilege tax provided for in § 67 of act 65 of the Acts of 1929. This class of motor vehicles was not exempted by act No. 239 of the Acts of 1931 from the collection of the 4 per cent, privilege tax as contended by appellee.
On account of the error indicated, the decree is reversed, and the cause is remanded with directions to dissolve the injunction, and to dismiss appellee’s complaint. | [
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Humphreys, J.
Appellee, successor to the Lafayette South Side Bank of St. Louis, both foreign corporations, brought this suit in the circuit court of Greene County to recover from appellants, on a guaranty contract executed November 1, 1927, to the Lafayette South Side Bank of St. Louis, a balance of $9,219.76 due upon two renewal notes dated, respectively, on August 16th and 20,1930, from the Paragould Wholesale Grocer Company.
Appellants filed an answer, admitting the execution of the notes and guaranty contract, but denying liability on the guaranty contract because neither appellee nor its predecessor, foreign corporations, had complied with §§ 1826-32 of Crawford & Moses’ Digest in order to-do an intrastate business in Arkansas, which failure rendered the contract invalid and nonenforceable in the courts of this State, according to said statutes.
The cause was submitted to the court sitting as a jury upon the pleadings and testimony, which resulted in a judgment against appellants in the amount sued for, from which is this appeal.
The record, reflects the following facts: Appellee and its predecessor were Missouri corporations organized to extend credit and lend money to other corporations in or out of the State of Missouri upon notes to be executed by them, and to be guaranteed by their officials or directors under written guaranty contracts. The guaranty contracts undertook to pay any indebtedness incurred by the corporation obtaining the line of -credit absolutely in the event said corporation should fail to pay same. The Paragould Wholesale Grocer Company solicited and obtained in the office of appellee’s predecessor, in St. Louis, Missouri, a continuing line of credit from it of $100,000, in the year 1925, under agreement that it would execute notes for the amounts borrowed from time to time, to be dated as of St. Louis, and to be delivered there and pay able there, and guaranteed by its officers or directors in the form of a written guaranty contract. Pursuant to the agreement, two written guaranty contracts, identical in form, were signed by the officers of the Paragould Wholesale Grocer Company, and delivered to appellee’s predecessor in St. Louis, each being signed by different officials. It does not appear why the contracts were executed in two identical parts. Pursuant also to the agreement, large amounts were borrowed from time to time, and notes were executed to cover same. Some of the notes were paid by the Paragould Wholesale Grocer Company, and others were renewed. On November 1, 1927, at the request of appellee’s predecessor, a renewal guaranty contract, in identical form of the first two, was signed by all the officers except two, who signed the original guaranty contracts. It was the custom of appellee to have all guaranty contracts taken by it to guarantee the payment of running loans within the line of credit extended so as to avoid such possibilities as the statute of limitations getting in the way, and, in accordance with that custom, the renewal guaranty contract was requested and obtained. The renewal guaranty contract closed with this language: ‘ ‘ Executed at Paragould, Arkansas, this 1st day of November, 1927.” The representative of appellee, who was in the employ of appellee’s predecessor, a Mr. Jones, testified, in respoiise to a question by the court, that he was certain the renewal guaranty contract was executed at Paragould. No money was advanced after the execution of the renewal guaranty contract, but the old notes were renewed from time to time and interest and a part of the principal were paid, until the indebtedness was reduced to the amount sued for. The original guaranty contracts, as well as the renewal guaranty contract, provided for the renewal of notes evidencing the line of credit granted in 1925, and also for the assignment of the guaranty contracts, as well as notes executed in the line of credit. The Paragould Wholesale Grocer Company went into bankruptcy the latter part of 1930. After its failure, several of the appellants wrote letters requesting time for the payment of the notes, and subsequently made payments thereon. Neither appellee nor its predecessor, complied with the law of Arkansas in order to do intrastate business here.
Over the objection of appellants, the court admitted in evidence the two original guaranty contracts, which had never been surrendered, and the letters written by appellants requesting time in which to pay the notes.
The main contention for a reversal of the judgment is that the execution of the last guaranty contract, made the basis of the action, constituted a doing of business within the State by foreign corporations, in violation of §§ 1826-32 of Crawford & Moses’ Digest, and is a void obligation and nonenforceable in the courts of this State.
Appellants’ interpretation of the evidence is that, because the last guaranty contract was executed and delivered to appellee or its predecessor in Paragould, it amounted to doing business in this State within the meaning of, .and contrary to, said statutes. It does not follow that, because the renewal guaranty contract was signed and delivered in Arkansas, it was an independent, original undertaking or obligation. According to the testimony, its sole purpose was to continue in full force and effect the original contract for a line of credit with guaranty of payment by the officers of the Paragould Wholesale Grocer Company. The execution thereof in this State was a mere incident to the original contract for the extension of a line of credit made and to be performed in Missouri. It was clearly collateral to and not independent of the indebtedness incurred in the line of credit. Transactions merely incidental or collateral to contracts made and to be performed outside the State do not constitute a doing of business within the meaning of statutes imposing conditions, restrictions, or regulations of the right of foreign corporations to do business. 14A C. J., § 3982. This general declaration of law was approved by this court in the case of Equitable Credit Company v. Rogers, 175 Ark. 205, 299 S. W. 747. The failure of two of the original guarantors to sign the renewal guaranty contract in no way affects the incidental character of the latter obligation, since the purpose of the execution of the last agreement was to continue in full force and effect the original agreement, which was clearly a Missouri contract.
Appellants also contend for a reversal of the judgment because the court ‘admitted the original guaranty contracts and letters written by the guarantors requesting extensions because they were not made the basis of the suit. It is true the suit was not founded upon them, but they were admissible to show whether the contract sued upon was incidental to the main contract executed and to be performed in Missouri; in other words, to show whether the notes and guaranty were Missouri or Arkansas contracts. That was the issue involved, and all facts are admissible in evidence which afford reasonable inference or throw any light upon the issues joined. Coca-Cola Bottling Company v. Shipp, 174 Ark. 130, 297 S. W. 856; Heard v. Farmers’ Bank of Hardy, 174 Ark. 194, 295 S. W. 38.
No error appearing, the judgment is affirmed.
Mr. Justice McHaney disqualified and not participating. | [
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Mbhaeey, J.
The Inter-Southern Life Insurance Company is a foreign corporation organized under the laws of the State of Kentucky and was authorized to do business in the State of Arkansas, and did business in this State prior to the receivership. It operated in the State of Arkansas under the laws and supervision of the Insurance Commissioner.
A receiver was appointed by the court of Kentucky. On April 18, 1932, the deputy and acting Insurance Commissioner of the State of Kentucky telephoned A. D. DuLaney, Insurance Commissioner of Arkansas, requesting that an ancillary receiver be appointed in Arkansas. On the same day, April 18, the Insurance Commissioner of this State certified the Inter-Southern Life Insurance Company to the Attorney General as an insolvent company operating in Arkansas.
Thereafter, on April 19, 1932, the Attorney General of this State presented a petition on behalf of the Insurance Commissioner to Judge Richard M. Mann, circuit judge'of the Pulaski Circuit Court, asking for the appointment of an ancillary receiver. M. J. Harrison was appointed ancillary receiver, and filed his bond, which was approved.
On April 20, 1932, the acting Insurance Commisv sioner of the State of Kentucky wrote to A. D. DuLaney a letter confirming the telephone conversation, and stating that the reason for asking that an ancillary receiver be appointed in Arkansas was for the sole purpose of having the co-operation and assistance of the Commissioner in Arkansas in working out the conditions of the Inter-Southern Life Insurance Company to the best advantage of the policyholders.
Thereafter, on April 22, 1932, P. O. Bynum filed a petition in the Chicot County Chancery Court asking for the appointment of a receiver by that court. He alleged that he was a creditor of the insurance company. The Chicot County Chancery Court granted the petition and appointed Mr. Gr. A. Franklin receiver. Gr. A. Franklin then came to Little Rock and filed a motion in the Pulaski Circuit Court to quash the order of the Pulaski Circuit Court appointing Harrison receiver. This motion was denied. No appeal was taken from the order denying the motion.
The petitioner here, G-. A. Franklin, asks for a writ of prohibition directing and commanding the said R. M. Mann, as judge of the circuit court of Pulaski County, to make no further orders in this matter, and that, upon a final hearing, an order be made by this court quashing the receivership proceedings and the order of the Pulaski Circuit Court appointing a receiver.
The petitioner, in his brief, states: “The only question to be determined is one of jurisdiction. The petitioner readily admits that, if the Pulaski Circuit Court had jurisdiction to appoint a receiver, then this writ of prohibition should be denied.”
The only question therefore for our consideration is whether the Pulaski Circuit Court has jurisdiction.
As early as 1873 the Legislature of this State recognized the importance and necessity of a general law regulating and supervising insurance companies doing busi ness in this State, and it passed an act in 1873 to establish an insurance bureau. This act was amended from time to time, and in 1917 there was an act passed creating the office of Insurance Commissioner and State Fire Marshal. These acts prescribed the duties of the insurance Commissioner, and, among other duties imposed on the Commissioner by law was that of enforcing all laws of this State in relation to insurance companies, and to see that all laws of this State respecting insurance companies are faithfully executed.
The eighth paragraph of § 5951 of Crawford & Moses’ Digest, is as follows: “Whenever the Insurance Commissioner shall have reason to believe that any insurance company of this State is insolvent or fraudulently conducted, or that its assets are not sufficient for carrying on the business of the same, or during any noncompliance with the provisions of this chapter, he shall communicate the fact to the Attorney General, whose duty it shall then become to apply to the Supreme Court or the circuit court, or, in vacation, to any of the judges thereof, for an order requiring said company to show cause why their business should not be closed; and the court or judge, as the case may be, shall thereupon hear the allegations and proofs of the respective parties, or appoint some suitable person as examiner to perform such duty and report upon the facts to said court or judge. If it appear to the satisfaction of said court or judge that such company is insolvent, or 'that the interests of the company so require, the said court or judge shall decree a dissolution of such corporation, and a distribution of its effects; but, in case it shall appear to said court or judge that said corporation is able to comply with the provisions of this act, and that it is not insolvent, a decree shall he entered annulling the act of the Insurance Commissioner in the premises and authorizing such company to resume business.”
It is contended by the petitioner, however, that this paragraph refers to insurance companies of this State only, and does not apply to foreign corporations. How ever, § 11 of art. 12 of the Constitution of this State provides, among other things, in speaking of foreign corporations: “And, 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, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this State.” This provision of the Constitution was also enacted by the Legislature as a statute, and is § 1825 of Crawford & Moses’ Digest.
It was manifestly the intention of the Legislature, in creating the office of Commissioner of Insurance and prescribing his duties, to protect all the policyholders and persons interested in an insurance company, and for this reason provided a State officer whose duty it is to supervise all insurance companies in this State, and to see that all laws are faithfully executed, to the end that every one interested in an insurance company may have protection.
It was evidently thought that this would be a greater protection to the policyholders and interested persons than to permit any creditor or policyholder to bring suit anywhere in the State for the purpose of taking charge and management of an insolvent insurance company.
The application for a receiver in the Pulaski Circuit Court on behalf of the Commissioner was made at the instance and request of the Insurance Commissioner of the State of Kentucky.
In the ease of Grand Lodge, A. O. U. W., v. Adair, 182 Ark. 684, 32 S. W. (2d) 430, all the questions involved in this case are settled. The authorities are reviewed, and it would serve no useful purpose to review or discuss them again. In the ease referred to it is said: “ A special department and a State official are clothed with special duties and powers to invoke the aid of courts of general jurisdiction in the discharge of these duties.” It is also said in the same case: “It is a well-established rule that has been often adhered to by this court that, where a court-exercising general jurisdiction under the Constitution has been given special statutory jurisdiction in cer tain matters, and the manner in which jurisdiction is to be exercised is pointed out by the statute, the record of such court must show the jurisdictional facts.”
This is a special proceeding provided for by statute, for the purpose, among other things, as we have said, of protecting the interests of policyholders and the property of the company.
The petitioner contends that the case of Grand Lodge, A. O. U. W., v. Adair, supra, has no application, his contention being that the statute applies to fraternal benefit societies. We think the statute is broad enough to cover all insurance companies, and that it was the intention of the Legislature, in forming this general plan to protect policyholders in all insurance companies, and there is nothing in the Constitution prohibiting the Legislature from authorizing the circuit court to act on the petition of the Insurance Commissioner.
The writ of prohibition is denied. | [
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Hart, C. J.,
(after stating the facts). It is argued that the act is in violation of at least the spirit of <§.1, article 16, of the Constitution, which reads:
“Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip.”
This provision was construed in the case of Hays v. McDaniel, 130 Ark. 52, 196 S. W. 934. It was there held that the act of 1917, authorizing the -borrowing of a certain sum of money to cover deficiencies in the State’s general revenue fund, to issue interest-bearing evidences of indebtedness therefor, and to levy a tax to create a sinking fund to pay the interest and principal of said note, was valid. After considering and defining the meaning of the provisions of the Constitution now under consideration, the court said:
“The Constitution is not a grant of power to the State, and we are not required to look to the Constitution for authority for legislative action. The State, acting through its Legislature, may borrow money for its own uses unless that right is denied to it by the Constitution, and the only inhibition against the State there contained, in this respect is that it shall not issue any interest-bearing treasury warrants or scrip.”
It is now claimed that that decision contemplated that the State might borrow money for its own use for a “State purpose,” but that this did not include money advanced for the building of roads, which is a county purpose as distinguished from a State purpose, and that therefore, the debt being made for the construction or aid of public roads, the issuance of bonds therefor is a loan of the State’s credit within the prohibition of the provision of the Constitution above referred to. We do not think so.
In the case of Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105, the court expressly held that the State, in its sovereignty over all public highways, has full power over the streets, as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency, as it may deem best, the power of supervision and control over streets. The general rule is that, unless specifically restricted by the Constitution, the construction of highways by a State is the exercise of a public function, and it has been held that they may be constructed and maintained, either by the State, or under its authority, by municipal subdivisions or taxing districts created by the Legislature for that purpose. Elliott on Roads and Streets, vol. I, § 465, and cases cited; Id. %% 509-514; 13 R. C. L., page 79, and cases cited.
The Legislature concluded to adopt a State system of public highways, and in 1923 and 1925 an act and an amendment thereto, commonly known as the Harrelson law, were passed. Under this act and amendment, the State Highway Commission was authorized to ascertain the amount and dates of the maturity of the principal of the valid unmatured bonds on January 1, 1924, which had been issued by each road improvement district in the State, and to allot and distribute to certain counties which had been classified the proportion in which the State highway fund allotted to them should be used in the payment réspectively of bonds and interest coupons. This act was upheld in Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544.
Again, in Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24, a statute authorizing the State Highway Commission to adopt routes which are termed State highways along roads which were already public highways, or which might thereafter be made so under proper authority, was held valid.
The Legislature of 1927 passed an act which was amendatory of the Harrelson act. In it the Legislature declared it to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State, comprising the State highway system as defined in the act. This act was challenged on the ground that it was in violation of the provision of the Constitution copied above. The court expressly held, that the State might borrow money for the construction of the roads provided for in the act and issue State highway notes therefor, and that this did not violate the provision of the Constitution above referred to, to the effect that the State shall not loan its credit for any purpose. The court said that the State did not loan its credit, but only used it. The reason is that highways may be constructed and maintained for.public use by the State itself or by governmental agencies created by law for that purpose. Public highways are for public use, and there is no reason why the power of taxation by the State may not be exercised in their behalf. While it is elemental that taxes may only be levied for a public purpose, one of the most important duties of the State is to provide and construct public highways. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9.
In the later case of Cobb v. Parnell, 183 Ark. 429, 36 S. W. (2d) 388, the court sustained an act passed by the Legislature of 1931, levying a general tax for the payment of bonds to be issued by the State Agricultural 'Board, as not being in violation of the provision of the Constitution prohibiting the State from loaning its credit for any purpose. In the majority opinion, the purpose of the act under consideration was held to be a public use, and the construction placed upon the provision of the ■Constitution now under consideration, in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, was expressly approved. In concluding the discussion, it was said that it has become recognized that the State, although prohibited from loaning its credit in the furtherance of public enterprises, may still use that credit for the promotion of the common good. Some of us dissented on the ground that the ■tax levied under the act was for a private purpose, and therefore unconstitutional, although it passed through the hands of public officers. In our dissenting opinion, however, we approved in express terms the construction •placed upon the provision of the Constitution in Hays v. McDaniel, 130 Ark. 52,196 S. W. 194, and in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. We based our dissent on the ground that the power of taxation could not be resorted to in aid of any class in private business or public utilities, although such aid might promote general prosperity.
No additional reasons have been given by counsel in this case why the construction placed upon the provision of the Constitution under consideration in the cases above cited shall not be sustained. Therefore we hold that the subject is settled in this State, and we can see no useful purpose in entering again into a discussion and determination of the soundness of our former opinions. Under our system of government the Legislature alone may determine the public policy of the State with reference to taxation, and the courts have nothing to do with the wisdom and expediency of its acts, when done within constitutional limitations.
It is also contended that the demurrer admits certain allegations of the complaint that the constitutional requirements as to the passage of the act were not observed, and that this invalidates the enactment. The rule in this State is that an enrolled statute, signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement of the Constitution was complied, with unless the contrary affirmatively appears from the records of the General Assembly, and this presumption is conclusive unless the record of which the court can take judicial knowledge shows to the contrary. Butler v. Kavanaugh, 103 Ark. 109, 146 S. W. 120; Mechanics’ Building & Loan Association v. Coffman, 110 Ark. 267, 161 S. W. 198, and Road Improvement District No. 6 v. Sale, 154 Ark. 551, 243 S. W. 825.
This court is committed to the rule that, if the defect or violation appears on the face of the act or by the records of which the court can take judicial notice, the power .of the courts to determine the question is undoubted; but if the proper record shows that the act has received the sanction required by the Constitution and has been passed agreeably to the Constitution, the regularity and stability of government and the peace of society requires that the act should have the force of a valid law. Otherwise every act of the Legislature would be open to be impeached, upon an inquiry into the facts which took place at its passage, and all confidence in legislative acts would be destroyed. The above reasoning was taken from Green v. Weller, 32 Miss. 690, and was expressly approved by this court in Booe v. Road Improvement District, 141 Ark. 140, 216 S. W. 500. The record of the Legislature, which includes the journals, shows .that the act was passed conformably to the provisions of the Constitution.
The decision of the chancery court was correct, and will therefore be affirmed. | [
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McHaney, J.
E. C. Connelly, for himself and as father and next friend of his infant son, Harold Connelly, brought this action against appellant to recover damages for personal injuries sustained by said infant by being struck by a street car of appellant on West Eleventh Street in the city of Little Bock. A trial resulted in a verdict and judgment for himself in the sum of $1,500 and as next friend for the infant in the sum of $3,500.
Three general assignments of error are relied upon for a reversal of these judgments.: 1, that the court erred in the admission of testimony; 2, in the instructions; and, 3, in refusing to direct a verdict for it at its request.
We discuss these assignments in the reverse order. At the conclusion of the testimony for appellees, and again at the conclusion of all the testimony, appellant requested a directed verdict in its favor on the ground that the evidence was insufficient to support a verdict against it, either for the infant or the father. The court refused these requests, and they are now pressed for our consideration. This assignment must be overruled if there is any substantial evidence to support the verdict, viewing it in the light most favorable to appellees. A brief statement of the evidence viewed in this light follows : 'On March 30, 1931, Mr. Connelly, a widower, with his twin children three years and nine months of age, a nurse and housekeeper, and a young lady, lived at the corner of West Eleventh and Washington streets in Little Bock, on the south side of West Eleventh. One of appel lant’s double lines of street car tracks is on West Eleventh and occupies a large portion of said street which is not paved. On the north side of this street, between Peyton and Washington, there is a large ditch which has been covered with plank or bridges to afford ingress and egress to the property on the north side of the street, except for about 100 feet east of Washington, where the ditch is not covered. On the above date, Mr. Connelly left the home to go to town, and at that time the children were playing in the front yard with some neighbor children, all being in the immediate custody of the nurse of the latter children. Shortly thereafter said nurse took them all across the street (and, of course, across the car tracks) in a northeasterly direction to a sand pile in the front of a neighbor’s yard, where they were playing. The Connelly nurse and housekeeper discovered their absence, saw them across the street, and called them home. They started home in obedience to the call, but one of appellant’s street cars, traveling west, struck Harold, knocked him down, ran over his right foot and cut'or mashed off three toes, part of a fourth toe and otherwise bruised and injured him. The car traveled a car length or more before stopping after striking the child. At that time of year the children at the sand pile could have been seen by the motorman on the street car for a considerable distance east, and the child in the street could have been seen for a block or more east of the place of injury. The child, in going home, went across the ditch on the plank covering, and was going in a southwesterly direction and traveled some distance in the street before reaching a danger point on or near the track and could have been seen by the motorman, if a proper lookout had been kept, in ample time to have avoided injury to him. An eyewitness to the accident says the motorman, as he came down the street, was looking to the south, and apparently talking to a passenger who was standing on the car. Failure of the motorman to keep a proper lookout was the ground of negligence alleged and relied on, and that he saw, or by the exercise of ordinary care could have seen, the child in time to have averted the injury. We think the evidence sufficient to take the case to the jury, both as to negligence and the proximate cause of the injury. But-appellant says the testimony of the eyewitness who says the motorman was looking to the south is demonstrably false, because she could not have seen what she says she saw. We think appellant is mistaken in this argument. She stopped her car at the corner of Washington and Eleventh and could have seen the incidents testified to. At any rate, her credibility was for the jury. There was therefore substantial evidence before the jury, and appellant must fail on this assignment. It is insisted, however, that Mr. Connelly cannot recover in his own right because of the contributory negligence of Mrs. Kirker, the nurse and housekeeper, who was his agent in the care and custodjr of the children, because she called them to come home when a street car-was approaching in plain view, and because she left them unattended in the front yard. This question was submitted to the jury under proper instructions, and it was a question for the jury under all the circumstances. We cannot say as a matter of law that she was negligent, as it is not certain that she saw the car.
Appellant also assigns error in the giving of instructions 1, 2 and 3 for appellee, in modifying and giving as modified appellant’s No. 16, and in giving the second paragraph of appellee’s No. 29.
Instruction No. 1 for appellees is as follows: “Gentlemen of the jury, this is a suit brought by Harold Connelly, an infant, by his father and next friend, E. C. Connelly, and by E. C. Connelly in his individual capacity, against the Arkansas Power & Light Company. The suit is for damages which the plaintiffs allege they sustained by reason of the negligent injury of the infant plaintiff, Harold Connelly, by a street car in Little Rock, on March 30, 1931.” It is said that this instruction tells the jury that this was a “negligent injury,” and had the effect of withdrawing from the jury the question of appellant’s negligence, making it peremptory to find for appellees in some amount. We do not think the instruction is open to this objection, but is a simple statement of the purpose of the lawsuit. It does not say that plaintiffs sustained a negligent injury, but that they “allege” they sustained damages by reason of the negligent injury to Harold. In other words, it is stated that plaintiffs seek to recover damages and allege that Harold received a negligent injury. This is not tantamount to saying that Harold did receive a negligent injury, but only that they allege such to be the fact.
We have examined carefully the arguments made against instructions 2 and 3 and do not find them open to the objections made. We do not set them out, as no useful purpose could be served thereby.
Instruction No. 16, as requested by appellant, is as follows: “You are instructed that street cars, from the necessity of the case, must have and do have the right-of-way on tracks where they alone can travel, and this right-of-way is superior to that of ordinary vehicles and travelers. This paramount or better right to the use of their tracks does not give them the right to exclude travelers who may move along or cross the tracks at any time and place where such traveling does not interfere with the progress of the street cars. But where there is a conflict between a street car and a traveler, the traveler must yield the right-of-way. This requirement of the law is to subserve the public convenience and accommodation, and it is your duty to bear these reciprocal rights in ■mind in determining the care required of the parties.” The court gave said instruction, and, in connection therewith, added the following, at the request of appellees. “The rights of the plaintiff, Harold Connelly, and defendant street car company to use that part of the street occupied by the street railroad tracks are equal and reciprocal. The plaintiff, in walking on the path along or on the part of the street occupied by the street railroad track, had as much right, if in the exercise of ordinary care, to go along such part of the street, when not occupied by a street car, as he had to go along any other part of the street, and plaintiff was not a trespasser in doing so. In the exercise of the reciprocal rights to nse that portion of the street occupied by the street railroad tracks, the plaintiff and defendant company are also under reciprocal duties. The rights of each in using that portion of the street occupied by the street railroad tracks must be exercised with due regard to the' rights of the other, and in such a careful and reasonable manner as not unreasonably to abridge or interfere with those rights, and so as to avoid injury, the one to avoid inflicting injury, the other to avoid being injured.”
It is argued that the modification given at the request of appellees is in conflict with that part of the instruction requested by appellant. We do not think so. When carefully analyzed, the instruction as a whole, including the modification, states the rule correctly as to the respective rights of the street car company and other travelers on the street over which the car tracks pass. The law is clearly stated by this court in Hot Springs Street Railway Company v. Johnson, 64 Ark. 420, 42 S. W. 833; Little Rock Railway and Electric Co. v. Sledge, 108 Ark. 95, 158 S. W. 1096 Ann. Cas. 1915B, 682; and Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170. We do not quote from these decisions, but the latter part of the instruction complained of is taken substantially from the latter case.
The latter part of instruction No. 29 given on behalf of appellees, authorizing a recovery by Mr. Connelly of the ‘1 amount he has paid or will have to pay in the future for doctor’s bills, medicine bills, hospital bills, and nurse’s bills by reason of the injury to his infant son, Harold Connelly, and also the loss of services which he may sustain in the future by reason of the injury to his infant son, Harold Connelly, if any, to be shown by the evidence,” is objected to on the ground that it includes loss of services by his infant son, whereas there is no evidence that the infant would be able to earn less money by reason of the injury than he would have otherwise. The proof shows that Mr. Connelly had incurred expenses of approximately $750 and that another operation will he necessary to remove a portion of one of the toes, which will cause additional expense in the future of an unknown amount. It will be seen therefore that very little recovery, if any, was allowed by the jury for loss of ■ services. But, conceding that some portion of the verdict for $1,500 in favor of Mr. Connelly was for loss of earning capacity, we think the boy’s condition, lack of development along with his brother, and the nature and extent of his injuries, all of which was before the jury, were sufficient to justify the jury in allowing some recovery on this account.
It is finally urged that the court erred in admitting certain incompetent prejudicial testimony. We have examined the errors assigned in this respect and find them without merit. Conceding them to be erroneous, they were not prejudicial as the facts testified to were established by other witnesses. We find no error, and the judgment is affirmed. | [
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Butler, J.
This is an action begun in the circuit court of the northern district of Sharp County by the appellant, Farmers ’ Bank of Hardy, against J. T. Viner, Lee Weaver and Eliza Weaver, to recover on a promissory note executed on the 4th day of December, 1926, which was past due and unpaid. From a judgment adverse to Taylor, the commissioner in charge of said bank, he has appealed.
The appellee, J. T. Viner, defended on the ground that his signature to- the note was conditioned upon the procurement of the signature of one Wess Weaver on the note, that this person’s signature was not obtained, and therefore he was not liable. He testified that Lee Weaver came to him one evening, and requested him to sign the note; that he agreed to sign it if Lee Weaver would get Wess Weaver to sign it, and, having received the promise .that this would be done, he signed the note; that early the next morning about the time the bank opened he went to Mr. Turner, the cashier of the bank, and informed him of the understanding between himself and Lee Weaver and told him that if Wess Weaver did not sign the note not to take it.
It appears from the testimony of the assistant cashier of the bank who testified from the records that this note was given in renewal of another note for the same amount executed on March 6, 1925, and due ninety days after date.
The president of the bank, who became active as an official in 1928, testified that when he took chargé he began efforts to collect the note from Viner and Lee Weaver; that Viner did not deny liability, but said to let the note run along and see what would be the outcome- of the bankruptcy proceedings in which Weaver was then involved.
On rebuttal, Viner stated that he had never acknowledged liability on the note, and did not know until after Lee Weaver died that Wess Weaver had not signed it.
This case is ruled by the case of Halliburton v. Cannon, 160 Ark. 428, 254 S. W. 687, in which it was held that, where a note is given signed by an accommodation maker, and afterward a note is executed in renewal of the first note, it-is a good defense by the accommodation maker to his liability as signer of the renewal note that his signature was affixed thereto upon the express condition that other persons should sign the note before it should become binding on him, and that the payee was notified of the condition on which the note was signed before it was delivered to him.
The court correctly instructed the jury that the burden of proof was upon Yiner to prove by a preponderance of the evidence in order to escape liability that he had signed the note on condition that the signature of Wess Weaver should be obtained and also that he had notified the bank before the note was accepted by it.
It is insisted by the appellee that the case of Halliburton v. Cannon, supra, does not govern because there is a lack of evidence that the bank was notified of the condition before it accepted the renewal note. The evidence in this case is very brief. Yiner informed Turner, the cashier of the bank, of the condition about the time the bank was opened and just what was said between the two is uncertain. Yiner, in answer to a question as to whether or not Turner said anything about turning the note over to Lee Weaver, answered, “No, he talked like they had though,” and, when asked if Turner had the note then, answered, “I asked him about it, and he didn’t seem to have it and didn’t claim that Wess Weaver had signed it.” On cross-examination witness stated that he told Turner about the condition upon which he signed the note and told him not to take it unless Wess Weaver signed it. He was asked, “You don’t know if he had the note at that time,” and answered, “No, sir.”
This was all the testimony relative to the notice given the bank, and, while not conclusive, we are of the opinion that the reasonable inference might be drawn that the notification was given the bank before the note had been delivered to it by Lee Weaver and accepted by it in renewal of the note of March 6,1925.
After the verdict was returned, the appellant filed a motion for judgment, notwithstanding the verdict, on the note dated March 6,1925, for which the renewal note was given, on the theory that the renewal note did not extinguish the obligation of the former. It is true that, without an agreement to that effect, the renewal of the note will not operate as a payment of the original note, but there was no evidence regarding any agreement at the time the note was renewed or as to whether it was surrendered or retained by the bank. Moreover, the note of March 6, 1925, was not declared on, and therefore the court did not err in overruling the motion.
We find no error in the record, and conclude that there was substantial evidence to support the verdict. The judgment of the trial court is therefore'affirmed. | [
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McHaney, J.
On November 15, 1930, O. F. Townsend, being indebted to appellee in the sum of $86.29 and being a depositor with a checking account in the Chicot Trust Company, drew his check on the trust company in favor of appellee and delivered same to its agent. On the same date said agent took the check to the trust company, indorsed it, asked for and received a cashier’s check payable to appellee for the same amount. This cashier’s check was never paid because the trust company was never open for business again after November 15, and was placed in appellant’s charge for liquidation on November 24. Appellee presented its claim to the chancery court for allowance as a preferred claim, which the Bank Commissioner disputed, and the matter was presented on an agreed statement of facts as above set out, and, in addition that appellee’s agent was well known to the trust company, and the Townsend check would have been cashed if desired by him, but that he elected to take the cashier’s check instead. Appellee carried no account with the trust company, its office being at Eudora, about sixteen miles from Lake Village, the home of the trust company. The claim was allowed as a preferred one, and the Bank Commissioner has appealed.
It is admitted by appellee that, unless authority for the classification of this claim as preferred is found in act 107, Acts 1927, p. 297, it is a general and not a prior
or preferred claim. Said act provides that “all creditors of a bank of which the Commissioner has taken charge are classifiable either as secured .creditors, prior creditors or general creditors.” The act then proceeds to define each class of creditors and there are seven subdivisions defining “piior creditors.” Appellee relies upon the 6th subdivision as covering its case, which is as follows: “(6) the owner of the proceeds of a collection made by said bank and not remitted by it, or of which its remittance has not been paid, when such collection was made otherwise than by honoring a check or other order upon said bank or by a charge against the account of a depositor of said bank, and the said collection has had a distinctive identity in the hands of said bank, has actually increased its cash assets, and has not resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor.” Appellee’s situation fails to fit this definition in any respect. The bank made no collection for appellee. Its own agent made the collection from Townsend, presented the check to the bank and asked to and did become its creditor by taking a cashier’s check. Compare Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557. Also the bank honored the check of its depositor. No new funds were deposited in the bank, but the bank simply shifted its liability from one creditor, Townsend, to another creditor, appellee. Not being a collection made by the bank, the 6th subdivision of the act has no application. Nor does any other provision of the act defining- prior creditors apply. The act further provides that “all creditors not in this section hereinabove classed as secured or prior creditors of said bank, including the State of Arkansas and any of its subdivisions, shall be general creditors thereof.” Therefore, appellee is a general creditor, and the court erred in holding otherwise.
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MoHaney, J.
This is a suit for specific performance brought by appellees against appellant to compel him to convey to them as the widow and heirs at law of J. W. Starling, deceased, 360 acres of land contracted to be conveyed by appellant to said Starling on or about December 15, 1924, by oral agreement. The complaint alleged the sale and purchase of the land for a consideration of $12,800, of which $800 was paid in cash, and that the remainder was to be paid from the proceeds of one-fourth of all the cotton grown on the lands until the purchase price with interest should be paid. It was alleged that they were able, ready, and willing to pay the balance due. Appellant answered admitting the sale for the consideration alleged and the cash payment, but that said Starling agreed to pay in addition $300 incurred by appellant as attorney’s fee for examining the abstract of title and certain incidental expenses, mailing the total purchase price $13,100; that Starling agreed to pay interest thereon at the rate of 10 per cent, per annum and from 1925 to 1931, inclusive, for taxes, lumber, goods, wares and merchandise, and after charging him with such amounts and interest at 10 per cent, and after giving credits for all payments made, there was still a balance due as of February 3, 1931, of $10,808.44. He offered to convey on payment of said sum. If not paid, he prayed a foreclosure of his lien for same. The items in dispute will be hereinafter discussed in detail. The court decreed specific performance, but found the bal anee due on the purchase price to be $5,161.28 with interest at 6 per cent, to date of payment. But if payment was not made in 45 days the land was ordered sold to pay the balance of the purchase money for which a lien was declared against the land. There was no personal judgment against- appellees. From this decree both sides have appealed.
Mrs. Starling, as administratrix of her deceased husband’s estate (he having died intestate in January, 1931) was made a party plaintiff. On demurrer of appellant, the court held that she was not a proper or necessary party plaintiff to the action in her representative capacity and struck her name from the complaint. This action of the court is attacked by the appellees and sought to be upheld by appellant because of the effect it might have on the admissibility of the testimony of appellant as to transactions with or statements of the intestate. Section 4144, Crawford & Moses’ Digest, and § 2, Schedule to Constitution 1874. We do not decide this interesting question as to whether or not the executrix was a proper or necessary party, for, as we view the matter, it becomes immaterial. For the purposes of this opinion therefore we treat appellant as a competent witness.
The first point of difference between the parties relates to the alleged payment of taxes by appellant for the years 1924, 1925 and 1926. The trial court gave judgment to appellant for the taxes paid for the year 1924, but refused him credit for taxes for 1925 and 1926. We think the court erred as to the 1924 taxes, but did not err as to those for the other years. The facts are that appellant purchased this land from one Kresky for $3,200 less than he sold it to Starling for. We do- not mean any reflection on appellant, as he was buying for cash and selling on credit, and no doubt Starling knew this fact. The land was bought for Starling at his suggestion. At that time, about December 15, 1924, he put up with, appellant $800 which in turn appellant put up as earnest or good faith money. Title was not finally acquired by appellant until January 30, 1925, when deed was taken in his own name. Nothing was said about the taxes at that time, and it was not known whether the land could be bought or whether the title was good. Appellant was to get a good title, and the title would not be good with the lien for taxes unpaid. There was no valid and binding sale, no grantor and grantee, until appellant got his deed from Kresky on January 30, 1925. As between appellant and Kresky, the latter was due to pay the taxes for the year 1924, unless appellant agreed to pay same. Section 10,023, Crawford & Moses’ Digest. Starling was never the record owner, and the proof shows conclusively that he did not go into possession until sometime in January or February, 1925. The purchase price was $12,800, and not that amount plus the 1924 taxes. Appellant should not have credit for the amount thereof. The receipt was taken in his own name, and correctly so as he was due to pay same.
As to the taxes for 1925 and 1926, the receipts therefor were held by appellant, but they were receipts to Starling, and not to appellant. This was very cogent evidence that Starling did pay the taxes for these years. The record title was in appellant, and there was nothing of record or even in writing to show Starling’s ownership. Appellant testified that he paid all taxes at Starling’s request, and the amounts paid were charged to Starling’s account on his ledger, but we cannot say this testimony was sufficient to overcome the written tax receipts showing payment by Starling. The evidence to accomplish this must be clear and convincing.
It is next insisted by appellant that the court erred in allowing- him only 6 per cent, interest instead of 10 pe-r cent., as he testified the oral agreement was. We do not think so. We have many times held that an agreement to pay interest at a rate greater than 6 per cent, will not be enforced as to the excess unless the agreement is in writing. Matlock v. Purifoy, 18 Ark. 492; Wallis & Bro. v. Lehman, 36 Ark. 571; Johnson v. Hull, 57 Ark. 550, 22 S. W. 176; Temple v. Hamilton, 178 Ark. 355, 11 S. W. (2d) 465. We decline to reconsider these cases and overrule them. Appellant invokes the maxim that he who seeks relief in equity must do equity, and that therefore, to get a performance of the contract appellees ought to be required to perform the contract as made and pay interest at 10 per cent. But the same rule applies to him, as he seeks to foreclose his purchase money lien for the balance due at 10 per cent, on an oral contract to pay. As said in Temple v. Hamilton, supra, to quote a syllabus: “An agreement to pay interest on an account at a rate exceeding 6 per cent, will not be enforced as to such excess, unless the agreement be in writing.” And that was an equity case.
On the cross-appeal, in addition to the 1924 taxes, which we have already discussed and disallowed, it is urged that the court erred in allowing appellant his charge of $300 for attorney’s fees and expenses, and we agree with appellees in this regard. Appellant was undertaking to acquire the land and a good title at a handsome profit to himself. If he had sold the land to Starling without profit, it would be equitable for his estate to pay this amount, but, since he was making an investment for his own benefit, with both his investment and profit at stake, we think it would be inequitable to charge the estate with it.
As to the amounts advanced for building material and supplies totaling $1,377.05, we think these amounts were properly allowed and should bear interest at 6 per cent, from the date of advancements.
Interest should be charged on the balance of purchase price of the land from January 30, 1925, at 6 per cent, instead of December 15, 1924. Appellant had no money invested therein until he got his deed with good title, and the agreement was to return to Starling his $800 cash payment, if, for any reason, the deal fell through.
"We also think the court erred in arriving at the rental value of the land for the year 1931 by allowing appellees credit for a portion of the value of an estimated amount of crops grown on the land for that year. We do not mean to say that the market value of the customary portion of crops grown and harvested would not be the rental value. It would. So also what its rental value was in money. In Missouri Pac. Rd. Co. v. Frost, 146 Ark. 472, 225 S. W. 645, we held that a mortgagee in possession is liable, not merely for the rent he received, but for the rental value of the land, and Greer v. Turner, 36 Ark. 17, is cited to support that statement. So here appellant is in the position of a mortgagee in possession and is liable to appellees for the rental value of the land.
The testimony as to the rental value is so indefinite and uncertain as to make it difficult of ascertainment, and we therefore refer this matter to the trial court, with the right of either party to submit further proof in this regard.
The decree will therefore be reversed, and the cause remanded with directions to restate the account in accordance with this opinion, except as to rental value for 1931 and 1932, if appellant is still in possession, and as to rental value to permit the parties to offer further testimony and for further proceedings according to law and the principles of equity. | [
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Hart, C. J.
Petition for mandamus against a county superintendent of schools to require him to countersign a school warrant under the provisions of an act of the Legislature of 1931. The defense to the suit was that the warrant was illegally issued. The writ was granted, and the county superintendent has appealed. As defined by our statute and construed by this court, mandamus will issue whenever the refusal or failure of an officer to act in a matter, in which it is his plain duty to act, may deprive one of his legal rights. Crawford & Moses’ Digest, § 7021. Maddox v. Neal, 45 Ark. 121; Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360; Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. (2d) 427. As a general rule, the writ will only be issued where the petitioner has a legal right, is entitled to a specific remedy to enforce it, and the officer whose duty it is to afford that remedy withholds it. Board of Improvement v. McManus, 54 Ark. 446, 15 S. W. 897.
In Shackleford v. Thomas, 182 Ark. 797, 32 S. W. (2d) 810, the court again said that mandamus only lies to compel an officer to do that which it is his duty to do without it, and cannot be used to compel the performance of that which is not lawful. The Legislature of 1931 passed a very comprehensive act for the organization and administration of the public common schools. Acts of 1931, page 476. Section 141 provides that the board of directors of each school district are authorized to draw warrants on the county treasury for all funds to be disbursed by them, and that such warrants be countersigned by the county superintendent. The warrant in question in this case was in regular form and signed by the president and secretary of the school board. It was for $100 for legal services to appellee, and was presented by him to the county superintendent to be countersigned. The latter refused to countersign the warrant, and it is the claim of appellee that there was an absolute duty on him to countersign the warrant, and in its performance the county superintendent had no discretion. We do not agree with this contention under the facts shown by the record.
On the first day of October, 1931, a resolution was adopted by the board of directors to hire a lawyer to prevent the school district from being consolidated with another school district in Crawford County. There were six directors, and all of them but one attended the meeting. The remaining director admits that he was given notice to attend it. The resolution as adopted does not state what lawyer was to be employed, nor what his fee should be. On the 10th of October, 1931, the election for the consolidation was held. On the 16th day of October, 1931, the president and secretary of the board signed a warrant for $100 in favor of appellee and delivered it to him. There was no other meeting of the board after October 1st, and no further direction was given about the issuance of the warrant except that contained in the resolution referred to above. According to the testimony of appellee, he performed some services in the way of investigating the law before the election was held and before he was employed. He admits that he was employed on the 16th day of October, 1931, when the warrant was delivered to him. He had not been paid for his services, and does not remember which one of the directors employed him. He recollects that several members of the board came to his office about the matter at different times, but does not remember their names. There is nothing in the record tending to show that all of them went to his office and ratified the power given to employ a lawyer to represent the district at the special meeting held on October 1, 1931.
As we have already seen, mandamus cannot be used to establish a right, but may be used to enforce a right after it is once established. The resolution which was adopted by the 'board on October 1, 1931, did not authorize the president and secretary to employ a lawyer and to pay him a stipulated sum. Hence the president and secretary and such other members as co-operated with them individually did not have authority to hire appellee and issue a warrant to him for $100. That could only be done at either a regular or called meeting of the board. The want of authority in the premises cannot be supplied by any attempted ratification by only a part of the directors.
If the issuance of the warrant was illegal because not done in a manner prescribed by law, the writ of mandamus could not be had to compel the county superintendent to countersign the contract. His action under the facts proved was not arbitrary. It follows that the court erred in granting the writ of mandamus, and for that error the judgment must be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion. It is so ordered. | [
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Smith, J.
Appellee recovered a judgment, from which is this appeal, for a commission alleged to have been earned by him upon the sale of a tract of land owned by appellant, which appellee had been employed to sell.
Stated in the light most favorable to appellee, the facts disclosed in the record are as follows: Appellee had an agency to sell the land, the terms thereof being defined in the correspondence between the parties. The agency was not exclusive, nor was it for a definite time. While this contract was in force, appellee showed the land to Faggs and priced it to him, but no sale was made because Faggs declined to make the cash payment required by appellant. Subsequent attempts by appellee to sell the land to Faggs failed for the same reason. The letters above referred to were all written in January, 1930, the last being dated January 21, 1930. Appellant wrote appellee a letter in which the agency was definitely canceled. Appellee testified this letter was received only three months before appellant himself sold the land to Faggs. Appellant testified this letter was written several months earlier.
However, after this letter was written, appellant leased the land — a farm — -to Carlton for a year, with an option to Carlton to renew the lease on the same terms for a period of three years. The good faith of this transaction is not questioned. Carlton occupied the land under this lease for a short period of time, when he surrendered it. Thereafter, one Thompson told Faggs that appellant was in possession of his farm, and was offering it for sale. Thompson introduced Faggs to appellant. They had never previously met. Faggs did not tell either Thompson or appellant that he had ever discussed the purchase of this land with appellee, and appellant was without information to that effect until he sold the land to Faggs on November 1, 1930.
Appellant made a reduction in the price for which he had authorized appellee to. sell, but, in consideration of this reduction, the sale was made on an all-cash basis of $4,250, of which $2,250 was paid in cash to appellant. The $2,000 balance was paid by the agreement to discharge a mortgage for that amount outstanding against the land.
It has been held in a number of eases that, where a real estate agent employed to sell land introduces a purchaser to the seller, and through such introduction a sale is effected, the agent is entitled to his commission, although a sale was later made by the owner. Scott v. Patterson, 53 Ark. 49, 13 S. W. 419; Hunton v. Marshall, 76 Ark. 375, 88 S. W. 963; Hodges v. Bayley, 102 Ark. 200, 143 S. W. 92; Horton v. Huddleston, 132 Ark. 396, 200 S. W. 1003; Carpenter v. Phillips, 157 Ark. 609, 249 S. W. 357; Johnson v. Garrett, 174 Ark. 682, 297 S. W. 839.
It was held in the case of Moore v. Moss, 117 Ark. 593, 175 S. W. 1195, that a real estate broker is entitled to his commission where he has been given authority to sell the land and produced a purchaser ready, willing and able to pay, but the sale is delayed by the seller, and the property is finally sold to the purchaser provided by the broker.
But it is also settled law that, when an agency is not exclusive, the owner may sell it himself without liability for commission. Gammell v. Cox, 143 Ark. 72, 219 S. W. 745.
It is also well settled that, when an agency is not for a definite time, it may be discharged at the pleasure of the owner, provided the discharge is in good faith and not done for the purpose of defeating the payment of the agent’s commission. One must, of course, act in good faith with his agent, and will not be permitted to discharge him as a subterfuge to prevent the payment of the commission where the owner later sells to the purchaser provided by the agent.
The instant case is not unlike that of Bodine v. Penn Lumber Co., 128 Ark. 347, 194 S. W. 226, in which case it was contended by the agent that he was the procuring cause of the sale and entitled to a commission, notwithstanding there was a cancellation- of the agency before the sale was made. We said, however: “We do not think this contention is well founded. There was no length of time specified in the contract between plaintiff and defendant, and the authority to sell was revocable at any time, subject only to the limitation that it should be done in good faith. [Citing cases.]”
The instant case is similar also to that of Johnson v. Knowles, 169 Ark. 1089, 277 S. W. 868, in which case the headnote reads as folloAvs: “Where a broker showed a house to a prospective purchaser, who declined to purchase it, but three months later rented the house, and thereafter purchased it from the owner, there being no connection between the broker’s efforts and the sale, the agent was not entitled to a commission.”
Here, under appellee’s own testimony, the agency was not exclusive, and was not for a definite time. The agent failed to procure a purchaser ready, willing and able to buy upon terms under which the agent was authorized to sell. The agency was definitely terminated, and there was no testimony that this was not done in good faith. The owner had never met Faggs, and did not know, until after he had sold him the property, that Faggs had ever been interested in its purchase. It is true appellant sold the land for a less price than he had authorized appellee to sell it for, but it is true also that he received a much larger cash payment than he had directed appellee to demand.
We conclude therefore, under the undisputed testimony, that appellee was not entitled to a commission upon this sale, and the judgment in his favor must therefore be reversed, and, as the case appears to have been fully developed, it must be dismissed, and it will be so ordered. | [
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Hart, C. J.
The appellee brought this suit in equity against the appellant to obtain a decree for a debt due and a foreclosure on a mortgage on real estate to secure the same. Appellant denied owing the debt sued for, and as a further defense claimed that the consideration for the mortgage was an agreement not to prosecute her for a crime.
Appellee, J. A. Thomas, was a merchant and Ada Smith, appellant, was his customer for the years 1927 and 1928, In the first part of the year 1928 she gave him a mortgage on real estate to secure her indebtedness for the year 1927 in the form of a promissory note for $400, and for further supplies to be furnished her during the year 1928. The chancellor found that the appellant was indebted to the appellee in the sum of $322.09, and rendered judgment for that amount. A decree of fore closure on the real estate was also entered of record. The facts will be sufficiently stated in the opinion. The .case is here on appeal.
According to the testimony of appellee and his bookkeeper, Ada Smith was indebted to them in the sum of over $400. They gave an itemized list of the articles of merchandise furnished her and told in detail of the transaction between them. While their testimony is contradicted by that of Ada Smith, the chancellor was the judge of the facts, and it cannot be said that his finding in favor of the appellee on this branch of the case is against the weight of the evidence. No useful purpose could be served by setting out in detail the facts testified to by the parties. Suffice it to say that the testimony is in conflict, and under our settled rules of practice we cannot disturb on appeal the findings of fact made by a chancellor unless they are clearly against the preponderance of the evidence.
Further defense to the suit was that the chief consideration of the note was an agreement not to prosecute the appellant for a crime. The general rule is that it is to the interest of the public that the suppression of a prosecution for crime should not be made a matter of private agreement. Hence a settlement by such transactions is contrary to public policy and void. In the instant case, however, according to the testimony of'the appellee, he did not agree not to prosecute the appellant for the crime of disposing of mortgaged property. He told her that he would prosecute her if she did not pay him. Later he did prosecute her for disposing of mortgaged property. He never did agree not to prosecute her if she would pay him. He had a right to use every legal means available to collect his claim. Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 337, 144 S. W. 198, Ann. Cas. 1914 A, 511.
The chancellor found under the facts that there was no contract tending to stifle a criminal prosecution, and the appellee, as above stated, had the right to use all legal means to collect his claim. This did not amount to com pounding a criminal offense. Shattuck v. Watson, 53 Ark. 147, 13 S. W. 516, 7 L. R. A. 551; Ellis v. First National Bank of Fordyce, 163 Ark. 471, 260 S. W. 714.
No other grounds for reversal of the decree are urged upon us. The result of our views is that the decree of the chancery court was correct, and it will therefore be affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended for reversal that a majority of the electors did not sign the petition and that their status became fixed upon the filing of the first petitions, the giving of notice, etc., and that the court- erred in not permitting the remonstrants’ names to he stricken from the petitions, and in counting the names of certain petitioners which had been signed hy other parties.
The statutes require the giving of notice of a proposed change in. a school district, and provide the authority for the creation of new districts or change of boundaries of districts and the procedure therefor. Section 8821, Crawford & Moses’ Digest, and § 8823, Crawford & Moses’ Digest, as amended by Acts 1927, No. 145; Consolidated School District No. 2 v. Special School Dist. No. 19, 179 Ark. 822, 18 S. W. (2d) 349.
Notice is required to be given by posting up handbills in four or more conspicuous places in each district to be affected, one of the notices to be placed on the public school buildings in each district, and all of same to be posted 30 days before the convening of the board to which the petition is to be presented, all containing a geographical description of the proposed change. The giving of the notice prescribed by statute is a prerequisite to the exercise of the jurisdiction of the county board, which cannot be waived being required for the benefit of the landowners as well as the electors. Lewis v. Young, 116 Ark. 291, 171 S. W. 1197; Mitchell v. Directors of School District No. 13, 153 Ark. 50, 239 S. W. 371; Acree v. Patterson, 153 Ark. 191, 240 S. W. 33.
Notice is only required to be given in accordance with the statute 30 days before the convening of the 'board to which it is proposed to present the petition for a change in the school district or its boundaries, and it makes no difference, if. it were true even, that one or two parts of the identical petition were filed with the board after the principal petition was lodged there, since they were all signed before the date fixed in the notice for heariug of the petition, and the fact that there were several petitions identical in form, except as to’signature, filed at.different times, “did not change the prayer or lessen the number of petitions.” They were evidently ■ intended to be used as one, entitled to be considered as such, and were in fact only one petition. Bridewell v. Ward, 72 Ark. 187, 79 S. W. 762; Priest v. Moore, 183 Ark. 1002, 39 S. W. (2d) 710.
After the petitions were filed, the names of the petitioners could not be withdrawn merely upon request of the signers, but only upon showing that the signature had been procured by some improper method deceiving the signer, in effect by a fraud perpetrated upon him. Nathan Special School Dist. No. 4 v. Bullock Springs Special School Dist. No. 36, 183 Ark. 710, 38 S. W. (2d) 19. There is no evidence in the record showing- that any of the petitions for creation of the new school district was signed subsequent to the filing of the petitions by the remonstrants, and nó error was committed in refusing to allow such names to be withdrawn.
It is also insisted that the court erred in allowing the names of certain petitioners signed by others than themselves counted as valid upon the petitions for the change and creation of the new district. Only seven names not previously authorized to be signed were counted on the petition, and each of the seven, with the exception of Schultz, testified that he had information that his name was signed to the petition for consolidation prior to the time of the hearing by the county board, and all appeared in the circuit court and testified that they each had ratified the action of the agent in signing their names to the petition and did not wish to withdraw them. These names were signed either by the husband for the wife or by the wife for the husband, and in one instance by a mother for her daughter, who was away at the time, and the undisputed testimony shows that some of these parties had informed their husbands or wives that they were in favor of the petition and asked that their names be signed by them accordingly in case they were not present when said petition was submitted; and all testified that they had been immediately informed that their names had been signed to the petition and that they ratified such action and made no effort to withdraw their names and were in favor of the consolidation of the districts. The court therefore did not err in holding that these were valid signatures and could not be withdrawn, even by the persons whose names had been signed, as a matter of fight without a proper showing first made.
It is doubtful any way whether any one but the persons whose names were so signed could challenge the validity of the signatures, and, even though all seven names were considered withdrawn, it would have left the petition still signed by a majority of the qualified electors of the territory affected; and, if an error was committed in holding the signatures valid, it was harmless.
We find no error in the record, and the judgment must be affirmed. It is so ordered. | [
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Hart, O. J.,
(after stating the facts). This court is committed to the doctrine that, where a deed is executed in consideration of the agreement by the grantee to support the grantor, and this agreement is made by the grantee for the fraudulent purpose of securing the deed, and without intending to carry it out, and it has this effect, it constitutes a fraud vitiating the conveyance, and equity will set it aside. Salyers v. Smith, 67 Ark. 526, 55 S. W. 936; Boyd v. Lloyd, 86 Ark. 169, 110 S. W. 596; Edwards v. Locke, 134 Ark. 80, 203 S. W. 286; Jeffery v. Patton, 182 Ark. 449, 31 S. W. (2d) 738; and Federal Land Bank of St. Louis v. Miller, 184 Ark. 415, 42 S. W. (2d) 564.
We are of the opinion that, when all the attendant circumstances are considered, the chancellor should have found that the substantial consideration which was the inducement for the execution of the deeds was that the sons should take care of and support their father during his natural life. It is true that they deny that this was the consideration, but their testimony is contradicted by the attendant circumstances. They admit that their father resided on the land at the time he executed the deeds to them, and that he has continued to reside there ever since, a period of something over ten years. During all of this time he has had exclusive management of the land, and has collected the rents and otherwise used the land as still belonging to him. The sons testified that the rents and profits derived from the land were sufficient to support their father, and this was equivalent to them supporting him. It is not a case where the grantees have neglected or refused to carry out their part of the agreement hy refusing or neglecting to support their father.
In a transaction of this kind there is always an element of love and confidence reposed by the parents in their children, and they part with their property with the expectation-and belief that they will be supported and cared for by the children. If the children refuse to carry out their part of the agreement, equity will grant relief to the parent by canceling the deed. In the present case, the evidence does not justify cancellation of the deeds on account of the sons’ failure to support. In this connection it may be stated that if at any time in the future the sons should fail to carry out their part of the agreement and fail to support their father, equity will afford him relief by canceling the deeds.
We cannot agree with the contention of the sons that the consideration of the deeds was that the father conveyed the land to them in an effort to defraud his creditors. It is true that he stated that this had something to do with it, but it is evident that the substantial agreement was that his sons should support him. The deeds themselves recite that they are made subject to an indebtedness owed by the father to the Federal Land Bank. The deed to the home place also contains a covenant that the father is to remain in possession of that during his life, and that the deed should not become operative until his death. This was a valid covenant. Reynolds v. Balding, 183 Ark. 397, 36 S. W. (2d) 402.
The lands were of the value of $8,000, and the debt owed by the father was only $1,000. The debt was after-wards paid by the father. These circumstances strongly tend to show that the lands were not conveyed to the sons by the father in an effort to defeat his creditor in the collection of its debt, but that the consideration of support by the sons was the substantial inducement which caused him to execute the deeds.
The result of our view is that, as the case now stands, the chancellor erred in canceling the deeds. As above stated, the duty of support is a continuing one; and, if at any time in the future the sons neglect or refuse to support their father, he will have the right to bring another suit to cancel the deeds on that account. Therefore the decree will be reversed, and the cause will be remanded with directions to dismiss the complaint ■ for want of equity. ' | [
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Mehaffy, J.
The appellant, on January 25, 1927, filed suit in the Greene Chancery Court against Mrs. J. F. Gerald and J. B. Walker & Sons, contractors, for material and lumber sold and delivered to the premises of Mrs. J. F. Gerald for the construction of a dwelling house. The house was built for Mrs. Gerald by the contractors, J. B. Walker & Sons.
The appellant alleged that between May 18, 1926, and November 1, 1926, it sold and delivered to the contractors various materials, consisting of lumber, hardware and other materials, and attached to the complaint was an itemized and verified statement, showing the amount due of $1,422.29. It alleged that Mrs. J. F. Gerald had entered into a contract with J. B. Walker & Sons for the construction of the building, and that the material furnished by it was used in the construction of the building which was located on lot 6, block 15, West End Addition to the city of Paragmild, Arkansas.
Judgment was asked against the contractors for the sum above mentioned, and for a lien upon the property described, for sale of the property, and for all other and proper relief.
Answers were filed by the contractors and Mrs. Gerald denying the material allegations in the complaint.
The building was completed on September 15, and Mrs. Gerald moved in about October 1,1926. She accepted the building and paid the contractors the contract price.
The appellant alleged that thereafter on November 1 it furnished other materials amounting to 30 cents, and that their time in which to file a lien began to run from November 1, and not September 15, because they say this 30 cents worth of material was a part of the original contract.
The evidence offered on the part of the appellant tends to show that material was furnished on November 1, which consisted of two or three -sash lifts. The appellant’s evidence also shows that the last item before that was furnished on September 17.
One of appellant’s witnesses testified that his record did not show who delivered the material to the premises, but that he knew, from his own personal knowledge, that the material Avas delivered to the premises by employees of the East Arkansas Lumber Company. No receipt was taken when the material was delivered.
Another witness for appellant, a carpenter, testified that he remembered about the item of the value of 30 cents furnished on NoA^ember 1. He also testified that Mrs. Gerald Avas living in the house at the time, but does not know Iioav long she had lived there; and, continuing to testify, he says that he does not know the date when this material was delivered, but that Mrs. Gerald Avas present at the time they were put in place.
Mrs. Gerald testifies that the contractors completed the building under the contract about September 15. They notified her it was completed, and she went through the building making an examination. They sent her the key, and she accepted it. She says it appeared to her to comply Avith all the terms and plans and specifications; that she accepted the building at that time, and moved in about October 1, and has lived there ever since. She paid all of the contract price to Walker at the time she’ accepted the building. She testified that no further Avork was done under the contract after the house was turned over to her on September. 15. She accepted the windows as completed and the sashes installed. She does not remember any men doing- any work around the house about November 1. They did not install any window lifts under her instructions.
T. L. Huddleston, local manager for appellant, was recalled, and testified that he knew of but one contract, and did not know that the house was turned over by Walker & Sons, and had no notice that it had been turned over. This witness had charge of the affairs of the East Arkansas Lumber Company in Paragould.
The undisputed evidence shows that Horace J. Whitsitt was the owner of the lot on which the building described was erected; that Whitsitt-died October 12, 1918; that Horace W. Whitsitt, one of the appellees, was about sis years old when his father died; that the house in which they lived during Whitsitt’s lifetime, and which was the homestead of the Whitsitt family, was torn down for the purpose of erecting the building upon which the lien is sought.
The widow of Horace J. Whitsitt married J. F. Gerald, and still occupied the place as a homestead. Mrs. Gerald, without getting permission of any court or any other person, tore down the original and made the contract with Walker & Sons for the present building. Horace Whitsitt, the appellee, was about 14 years old at the time the contract was made.
On January 27, 1931, appellant -filed an amendment to its complaint, alleging the death of Horace Whitsitt, the owner of the homestead; that he died intestate, and left as his only heir a son, Horace Whitsitt, a minor, who owned the premises, and that his mother, Mrs. J. F. Gerald, ownéd a life estate, and that it was necessary to make said minor, Horace Whitsitt, a defendant.
Summons was served on the minor January 28,1931, and answer was filed for him, in which he claimed to be the owner of the property; alleged that at the time of his father’s death there was a good and substantial residence on said premises; that it was the homestead of his father at the time of his death, and has been his homestead ever since the death of his father; that the residence was illegally and wrongfully torn down, and the house now on the premises erected; that there could be no lien for materials and labor without proper authority ; that no authority was given by Horace Whitsitt, and that his property was not subject to any lien; that he did not contract for the construction of any house, and no one had authority to contract for him, and he denied appellant’s right to a lien; and stated that no lien was attempted to be filed within the time allowed by law.
We do not deem it necessary to decide the questions of Mrs. Gerald’s right to contract for the construction of the building, or the right of appellant to create a lien on the property of the minor, because we have reached the conclusion that appellant’s claim for a lien was not filed within the time allowed by law.
The chancery court entered a decree in favor of the appellees, Mrs. J. F. Gerald and Horace Whitsitt, and, as to them, dismissed the complaint of appellant for want of equity. As to the other defendants, the court made no finding for the reason stated in the decree that the plaintiff seemed to have abandoned its cause of action therein. The case is here on appeal.
The statute provides: “It shall be the duty of every person who wishes to avail himself of this act to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.” Section 6922, Crawford & Moses’ Digest.
The undisputed proof shows that the house was completed about September 15, and Mrs. Gerald moved into it October 1. She paid the contractors in full, made an examination of the house, and decided that it was finished according to contract. But, assuming that appellant’s testimony is correct, that they furnished some of the material on the 17th of September, the lien was not filed in time. It must have been filed within 90 days after September 17th, unless the 30 cents worth of material alleged to have been purchased about November 1, was a part of the original contract and authorized the filing of a lien for the whole amount within ninety days thereafter.
We do not think it can be considered a part of the contract, for the reason that Mrs. Gerald testifies that the contract was completed on September 15, she accepted it as complete, paid the contractors, and no material was thereafter furnished with her knowledge or consent. We do not think that the delivery of a trifling item like thirty cents’ worth of material, a month or two after she had accepted the contract, and furnished without her knowledge or consent, would extend the time allowed by law for filing the lien- for the whole amount.
Moreover, the real owner of the building was not notified or served until January 28, 1931, four years after it is claimed the material was furnished.
Appellant’s claim for lien not having been filed within the time allowed by law, its right to a lien, if any existed at all, was barred.
The decree of the chancery court is correct, and is therefore affirmed. | [
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