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McHanby, J.
Appellants claim to be preferred or prior creditors of the American Exchange Trust Company, hereinafter called the bank, under the following state of facts: On November 14 and 15> 1930, the local agent at Little Rock of the Missouri Pacific Railroad Company, having funds in his hands which he desired to remit to his company in St. Louis, Missouri, purchased from the bank two bank drafts or checks aggregating $1,931.31, drawn on a bank in St. Louis where it kept a deposit sufficient to cover same, which were delivered to said agent and by him immediately sent by mail to his company in St. Louis. A like transaction took place between the agent of the Transportation' Company and the bank, the agent being delivered three bank drafts or checks on the same bank in St. Louis, aggregating $264.01 on November 15, 1930. These drafts were never paid, as the bank was not open for business after November 15. Separate interventions were filed by appellants in the chancery court asserting the right to be classified as prior creditors, to which the bank commissioner demurred. The court sustained the demurrer, disallowed the claims as prior, but allowed them as common or general claims.
The chancery court correctly disallowed the claims as prior or preferred and classified them as common or general claims. Act 107 of the Acts of 1927, page 297, -classifies all creditors of the bank of which the commissioner has taken charge as secured, prior or general creditors. There is no contention that appellants are secured creditors, and" a casual reading of said act defining prior creditors shows that appellants do not come within either of the seven subdivisions thereof defining prior creditors. They axe not the beneficiaries of an express trust as defined in subdivision 5, nor the owner of the proceeds of a collection made by said bank and not remitted by it, as defined in subdivision 6, nor are they the owners of a remittance of the bank, the proceeds of a collection made by it, as defined by subdivision 7. The act 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.”
The authorities relied upon by appellants, such as Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673, Rainwater v. Federal Reserve Bank of St. Louis, 172 Ark. 631, 290 S. W. 69; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, are not in point for the reason that they had to do with the proceeds of collections made by the failed bank or with remittances for collections made by such bank. Here the bank made no collection for- appellants. Their agent, instead of sending’ the collections he had already made to appellants in St. Louis in the form in which he held them, whether in cash or otherwise, elected to purchase drafts of said bank drawn on a St. Louis bank and remitted same to appellants in St. Louis in this form. By so -doing appellants became mere creditors of said bank, and the transaction is no different from that decided in the recent case of Taylor v. Dermott Grocery & Com. Co., ante p. 7. We there said:- “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 bv taking a cashier’s check. * * * 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 situation of appellants is the same as if its agent had deposited the money in the bank and immediately drawn his check against the deposit and forwarded same to appellants in St. Louis. It was a convenient form in which to transmit the money to St. Louis and one in general usage, but it can make no difference that such is the fact, because appellants became mere creditors of the bank in thus electing to transmit its funds.
The decree of the chancery court is therefore correct, and must be affirmed. It is so ordered. | [
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Butler, J.
This case is presented on the record made in the probate court and in the circuit court' on appeal, from which it appears that the Hot Springs Savings Trust & Guaranty Company was named as executor under the last will and testament of Miss Blanche Bell, who died prior to the 21st day of June, 1926, and that said company qualified and proceeded to act as such executor. At some time after the company began to function as executor, its attorney was informed by C. Floyd Huff, an .attorney of Hot Springs, that he had in his possession some jewelry of the estimated value of $691, as the agent of Margaret Huff, wife of C. Floyd Huff, Jr., which property had been given her by the testatrix in her lifetime; that the inheritance tax on this property would amount to $40, which Huff offered to give to the executor for use in the settlement of the inheritance tax due by the estate. Shortly after this a petition was filed in the probate court by the executor alleging that, after the filing by it of an inventory of the assets of the estate, it learned that C. Floyd Huff had in his possession certain property which was listed in the petition, and alleging that by' the terms of the will all of the jewels belonging to the testatrix were bequeathed to Blanche Bell Washington and Edith Bell Alcorn. The petition further alleged that, from the estimated value of the property, an inheritance tax would be due the State amounting to $40, which sum the said Huff had tendered to the executor for payment to the State, but that he had refused to deliver the property to the executor. The prayer was for a citation upon the said Huff requiring him to submit himself to examination with respect to the possession, ownership and value of the property in question. This petition was filed on the 22d day of June, 1926, and the citation accordingly issued.
No further action was taken or pleading filed until the 25th day of May, 1927, when there was filed in said court the answer of C. Floyd Huff to the petition for citation, in which, among other things, he recited the facts heretofore stated with reference to the possession of the jewelry and alleged that he was in possession of the articles named in the petition which articles had been delivered to him by Margaret Huff in the lifetime of the testatrix, and that the said Margaret Huff was the owner of said jewelry, the circumstances on which her claim of ownership was based being set out in detail in the said answer. It was also alleged that the estate was making no claim to the jewelry, as under the terms of the will all of the jewelry of the executrix was bequeathed to the before-named legatees who were claiming ownership of the same and were the real parties in interest.
Thereafter a petition was filed in the name of the said legatees in which the jewelry was described in detail, and, as in the petition first filed by the executor, that the allegation that the jewelry was in the possession of Margaret Huff who was concealing the same and refusing to deliver it to the executor. There was a prayer for a citation against Margaret Huff requiring her to appear in court and for an order requiring her to deliver the said property to the executor. This citation was duly served on Margaret Huff on the 31st day of May, 1927. It seems that Margaret Huff filed no written response to this petition, but on the 7th day of June, 1927, as shown by the order and judgment of the probate court, she appeared therein in person and by her attorney. The record recites that the executor also appeared by its president and attorney, and “this cause is submitted to the court on the original citation issued herein against the said Margaret Huff, the answer of the said Margaret Huff thereto in which she claims ownership of the personal property involved, oral testimony taken in open court, and the argument of counsel,” etc. The order further recited the description of the jewelry and found “that it was the property of the testatrix prior to her death and is claimed by Margaret Huff as a gift from the deceased during her lifetime, and that there is no evidence submitted to the court to sustain the alleged gift except the testimony of the said Margaret Huff who claims the same, and that the said Margaret Huff is not a competent witness, being prohibited under the Constitution of the State of Arkansas from testifying,' and the alleged gift has not been established by legal evidence.” The court thereupon adjudged “that the claim of the said Margaret Huff to the aforementioned personal property is denied, that said personal property is a part of the assets of the estate of the deceased, and the said Margaret Huff be, and she is hereby, ordered to deliver the said personal property to the executor,” etc. In the same order is a recital that “Margaret Huff filed her motion and affidavit for appeal to the Garland Circuit Court, and the appeal is granted.”
On June 28, following, C. Floyd Huff and Margaret Huff filed their motion in the court to set aside its findings and order of June 7, 1927, directing that respondents then deliver possession of the jewelry to the executor, and as ground for the motion alleged “that this court was without jurisdiction to try the issue raised by the pleadings in this case as to the ownership of the articles in dispute, and that this court was without jurisdiction to make any order or render any judgment finding the ownership of the articles involved in this controversy.” No further action was taken by the court or any of the parties to the proceeding until the 12th day of July, 1927, when the exceptions of the legatees were filed to the final account of the executor, in which they excepted to the approval of the account and the closing of the estate, assigning as a reason that the executor had not collected all of the estate left by the deceased, and that “there is now a claim of one Margaret Huff against the estate which has not been finally disposed of,” etc.
The record discloses no further action ¡by the court or parties to the proceeding until August 6, 1929, when the legatees filed a petition reciting the order of the court of June 7, 1927, and alleging that no appeal was taken from said order within the time prescribed by law, and that Margaret Huff had failed and refused to deliver the personal property to the executor, and that the petitioners (legatees) under the terms .of the will were entitled to receive the property in her possession, and they prayed for an order citing Margaret Huff and C. Floyd Huff, Sr., to appear in court and show'cause why they should not deliver the personal property to the executor or be adjudged in contempt for failure to' do so. Following this petition appears the indorsement • of the judge of the court directing Margaret Huff to comply with the order of the court of June 7, 1927, and to deliver the personal property mentioned in said order to the executor, and upon this order a writ was issued under the hand and seal of the clerk of the court addressed to C. Floyd Huff, Sr., reciting the order made as of the 13th day of August, 1929, and directing him to deliver to the executor the jewelry in controversy. On this order was indorsed service made on the person named on August 13, 1929.
No action of the court appears to have been taken on the motion to set aside the judgment of June 7, 1927, filed June 22, 1927, until August 6, 1929, when a memorandum was entered on the docket of the judge of the probate court in which said motion was denied, but this order seems never to have been entered at length on the record of the probate court. On August 6, 1929, Margaret Huff and C. Floyd Huff filed “motion, prayer and affidavit for appeal” in which they prayed an appeal from the order of the court overruling their motion to set aside the order and judgment of June 7, 1927, and also from an order of the court of August 6, 1929, directing the respondent, Margaret Huff, to deliver to the executor the jewelry in controversy. The affidavit was made by C. Floyd Huff, and the appeal was lodged, in the circuit court on September 21, 1929. Some other orders appear to have been made in the probate court which are not mentioned in the above recital, as they seem to be duplication of orders already made.
On June 20, 1931, the matter being reached on the call of the docket in the circuit court, a motion was filed to dismiss the appeal, and at the hearing the court found in substance the facts as above recited and dismissed the appeal as prayed “for the reason that the appeal from the original order and judgment of the probate court was not lodged and perfected in the time provided by law, and that said appeal be, and the same is hereby, dismissed, and that the said Margaret Huff and the said C. Floyd Huff be, aud they are hereby, ordered and directed to carry out the judgment of the probate court and deliver to the Hot Springs Savings Trust & Guaranty Company, executor of the estate of Blanche Bell, deceased, the subject-matter of this suit, etc.,” from ■which order the Huffs have appealed to this court.
It will be seen from: the dates of the various pleading's and orders hereinbefore recited that the cause was prosecuted with but little diligence by either party in the probate court, but, for some reason unknown to us, was suffered to drag along for more than two years. It is clear, however, that from the time of the response of C. Floyd Huff to the citation first issued there was a controversy as to the ownership of the jewelry, and there seems never to have been any real reason for his being cited to show what property was in his possession as he had already disclosed that fact, of which the executor was well aware at the time.of the filing of the original petition. So, from the first there was but a controversy between C. Floyd Huff and Margaret Huff on the one hand and the executor and legatees on the other as to who was the owner of the jewels which Margaret Huff alleged were her property by reason of a gift to her made by the testatrix in her lifetime. The probate court, therefore, had no jurisdiction of the subject-matter or to hear and determine this controversy, and its order made on June 7, 1927, was coram non judiee and void, as were also all the orders made subsequent thereto in furtherance of, and based upon, the order first made.
The case of Moss v. Sandefur, 15 Ark. 381, began in. the probate court by the filing by the executor of a petition alleging that Moss had in his possession and had concealed money belonging to the estate of his decedent and prayed for a discovery by Moss of the property in his possession. Moss answered admitting that he had in his possession a certain sum of money for safekeeping- which he then held for the use of any one to whom it might belong, but denied that it belonged to, oi' was owned by, the decedent at the time of his death. On the hearing the probate court found that the money belonged to the estate of the decedent and adjudged that the executor recover from Moss the said sum. In that case the court found that by the statutes and Constitution then in force probate courts were clothed with authority to compel the attendance of persons charged with concealing or embezzling any effects of the estate of a deceased person and to force them to make discovery on oath, and to order their delivery to the executor or administrator entitled to receive the same. The court held that these provisions were salutary, but could not be extended so as to turn “into probate courts from their accustomed channels a great stream of litigation touching’ contested rights to personal chattel's, which these courts from their Constitution are so little calculated to sustain.” In summing up the facts in the case, the court said: “In the case before us, the discovery that was required shows the money in question to be in such an equivocal attitude as to be reasonably a subject of litigation between the executor or administrator or distributees of James Moss, deceased, predicated upon the ownership of the slave, who deposited it, for safekeeping, in the hands of the respondent, and the executor of Dunn, who claims that it had been derived from his testator in his lifetime, or had been abstracted from his estate since his .death, in some manner that did not divest his right to it. The case then, shown by the discovery, was not of either class to which the authority of the probate court to make, the order of delivery, extended.”
The case of Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166, was a case in which the executor alleged the possession of another of money and personal property belonging to the estate of the testator which was concealed’ and withheld from the petitioner and with the prayer that discovery be made of the property belonging to the estate and that it be required to be delivered to the executor. The person in possession of the property claimed that the same had been given to him by his mother, the executor’s testatrix, and on a trial in the probate court the court found under the facts that the property belonged" to the estate. There was an appeal to the circuit court where without objection the cause was submitted to a jury, and the verdict was in favor of the person in possession as to all the articles claimed except one, and as to that the verdict was in favor of the executor. The court rendered judgment responsive to the verdict and assessed each litigant with one-half the costs. On appeal this court said: £ £ This court, in passing upon the provisions of the Revised Statutes, in Moss v. Sandefur, 15 Ark. 381, said that, their purpose was £not to invest the probate court with jurisdiction of contested rights, and matters of litigation, as to the’title to property, between the executor or administrator and others.’ The sections of the Revised Statutes construed by the court in Moss v. Sandefur, supra, were enacted under the Constitution of 1836, giving to the probate court such jurisdiction in matters relative to the estates of deceased persons as might be prescribed by law. Constitution of 1836, art. 6, § 10. At the time when above case was decided the Legislature had not conferred upon probate courts jurisdiction to hear contests as to the title of property between executors and administrators and others claiming' title to property as against the estate of deceased persons. They had no such jurisdiction then, nor do they have it under the present Constitution. Constitution of Arkansas, art. 7, § 34; Kirby’s Digest, § 1340. The court, under the statute, had jurisdiction only to compel the appellee to disclose what personal property he had in his possession belonging to the estate of Margaret Kenner, and to cause him to deliver the same to the executor.”
In that case, however, the court found that the procedure in the probate court and in the circuit court on appeal was acquiesced in, which resulted in the incur ring of costs incident to the trial of the rights of the property which might have been prevented by timely objection to the procedure, and the judgment of the lower court adjudging the controverted rights and one-half the costs to each of the litigants was not disturbed, on the theory that the same had been caused unnecessarily by the party complaining and had been acquiesced in.
If we give full effect to the conclusions last reached in Fancher v. Fenner, supra, it would have no application in the instant case, for the reason that at no time did the appellants acquiesce in or recognize the jurisdiction of the probate court, as appears from the motion filed in June, 1927, to vacate the order of the court on the allegation made that it had no jurisdiction to hear the controversy or to make the order directing the delivery of the jewelry to the executor.
In Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373, we held that probate courts have only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto. The Constitution of 1874 did not enlarge the jurisdiction of probate courts, and, since these are courts of limited and special jurisdiction, the jurisdiction would not be extended beyond the constitutional limits. Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39. Indeed, it is the general rule that probate courts have no jurisdiction as to any subject except that expressly or by necessary implication given by the Constitution and statutes.
“‘But extensive and important as this jurisdiction (that of probate courts) is. it is very different from that of courts of really general law and enuity jurisdiction, which it is said is ‘undefined, general, like space, ending nowhere, and embracing all that is.’ It is limited in its general scope, as to subject-matter, to the undisputed property of decedents and of wards, and, as to persons, to those interested in such property as equitably or legally entitled to some distributive share therein, or in the residue, and to creditors who voluntarily, upon general notice and without special citation, present their claims. All controversies between executors, administrators or guardians, or those interested in the particular estate, and other persons not interested in it, must be settled in another forum.” Section 23, p. 20, Gary’s Probate Law (3d ed.).
“Prom all the cases it would seem: that the rule as to jurisdiction of subject-matter is substantially as stated in Massachusetts by Chief Justice Parsons nearly a century ago: ‘When the question before a judge of probate is only as to the manner of exercising his jurisdiction on a subject of which some court of prebate has jurisdiction, then, if he mistakes, the means of correcting such mistake is by appeal. But when the question is whether the court of probate has jurisdiction of the subject or not, he must decide it, but at his own peril. H he errs by assuming a jurisdiction which does not belong to the probate court, his acts are void’.” Section 34, p. 28, Gary’s Probate Law. Mobley v. Andrews, 55 Ark. 222, 17 S. W. 805; Stewart v. Lohr, 1 Wash. 341, 25 Pac. 457; In re Woolford, 10 Kan. App. 283, 62 Pac. 731; Bolander’s Estate, 38 Ore. 490, 63 Pac. 689; Falke v. Terry, 32 Col. 85, 75 Pac. 425; Works on Courts and Their Jurisdiction, p. 440.
In the recent case of Moss v. Moose, 184 Ark. 798, 44 S. W. (2d) 825, the principles announced were recognized and reaffirmed.
It is the contention of the appellant that the time for taking the appeal ran from the order of August 6, 1929, whereas it is the contention of the appellee, and was upheld by the circuit court, that the time for taking the appeal was limited to six months after June 7, 1927. The argument of appellant is that the order of June 7, 1927, did not become final until its motion to vacate the same for want of jurisdiction had been acted upon, and, as this was not done until August 6, they had six months from that date in which to perfect the appeal. We think that the ruling of the circuit court on this question was correct, but, as we have seen, the judgment of the probate court being void, the circuit court on appeal erred in directing the appellant to carry out the judgment of the probate court and to deliver to the executor the subject-matter of the suit, but should have treated the proceedings as an application in the nature of certiorari and have quashed the void order. For this'error the judgment must be reversed, but, since a remand for further proceedings would serve no useful purpose, the order of the probate court being- one the appellants are not bound to obey, we feel justified in treating- the appeal as if it had been a petition for certiorari, as it brought up for the inspection of the circuit court the entire record, from which want of jurisdiction clearly appeared and which would entitle the appellants to an order quashing the judgment of the probate court. We have held that where a writ of certiorari is improperly brought but within the time in which an appeal would be allowed, the petition would be treated as .an appeal on the principle that the law regards substance rather than form, and also because certiorari will lie to quash a void judgment, even though the judgment might have been vacated and set aside on appeal. Browning v. Waldrip, 169 Ark. 261, 273 S. W. 1032; Williamson v. Mitchell Auto Co., 181 Ark. 693, 27 S. W. (2d) 96.
The judgment of the trial court is therefore reversed, and the cause is remanded with directions to treat the appeal as a proceeding by certiorari, and that it enter an order for certification to the probate court quashing the orders of that court rendered on June 7, 1927, and those made with relation thereto.
Kirby, J., dissents. | [
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Butler, J.
On December 20, 1926, the city of Mo-rrilton by proper resolution designated the People’s Bank & Trust Company as the depository for the funds of the city, and on the 23d of December, following*, a depository bond in the sum of $10,000 was executed by the bank and signed by the appellees as sureties by which they obligated themselves that the principal, People’s Bank & Trust Company, should promptly pay. upon presentation all checks lawfully drawn upon such depository by the city treasurer or other proper officials of the city of Morrilton, so long as any funds of the said city should remain in said depository.
Without having passed any additional resolution or having executed any other bond, the city of Morrilton continued to deposit money in the bank until November, 1930, when the bank became insolvent and closed its doors. At the time the bank was taken over for liquidation, the city had on deposit the sum of $8,293.82. A short time thereafter the officials of the bank and other parties interested took up the matter of re-opening the bank, and it was agreed between them and the State Bank Commissioner that, if 65 per cent, of the depositors would agree to accept certificates of deposit payable in one, two and three years, bearing* three per cent, interest, the bank might be reopened. The city council, by proper resolution, accepted this proposition and certificates were issued to the city covering the funds it had on deposit at the time the bank closed. More than 65 per cent, of the depositors accepted the agreement, and had issued to them certificates payable in one, two and three years, and the bank reopened. The city of Morrilton, however, did not then or thereafter make any further deposits with that bank. The bank, as reorganized, began to do an active business accepting- deposits and paying checks until May 28, 1931, when it finally closed its doors and surrendered its assets to the State Bank Commissioner for liquidation.
An action was instituted by the city of Morrilton to recover on the depository bond and the sureties answered denying liability, on the ground that they were released by reason of the agreement for reopening the bank and the acceptance of time deposit certificates by the city. Other defenses were also pleaded.
An agreed statement of facts was entered into by which the facts above stated were admitted, and further that “the sureties upon the bond in question were not consulted by the city of Mor-rilton as to whether or not it should enter into any such agreement, accepting time deposit certificates, and' the matter of accepting said time deposit certificates was purely an act of the city of Morrilton, acting through its city council and mayor,” and that, “excluding the signing of the agreement and accepting time deposit certificates by the city of Morrilton for its deposits, more than 65 per cent, of other depositors signed the agreement and accepted time deposit certificates.” It was stipulated also that additional proof might be taken upon any issue not covered by, or included in, the agreed statement of facts.
The appellee, Mrs. J. J. Scroggin, in addition to the defenses of the other sureties, defended also upon the ground that she did not in fact sign the bond or authorize any one to sign it for her. Testimony was taken on this question and also to the effect that the interest received by the city of Morrilton on the daily balance of its deposits from the time that it first began to do business with the bank until the bank first closed its doors was from two to two and a quarter per cent.
The case was submitted to the court on the stipulation of facts, the testimony adduced and the pleadings. The court found in favor of the defendants, the sureties on the bond, and entered a decree dismissing the complaint as' to them, from which the appellant prosecutes this appeal.
A number of questions are presented and argued by counsel in their respective briefs which we find it unnecessary to determine, as we think the decree must be sustained on the defense interposed that the sureties were released by the action of the city in entering into the reorganization agreement and accepting certificates of deposit due in one, two and three years, bearing interest at the rate of 3 per cent., in lieu of its deposit in the hank at the time it first closed its doors.
The form of the certificate issued by the bank to the city of Morrilton pursuant to the agreement for the reopening of the bank is as follows:
“This is to' certify that city of Morrilton, Bond Retirement Fund, has deposited in the People’s Bank & Trust Company, of Morrilton, Arkansas, as a time deposit, one thousand, two hundred seventy-four & 65/100 dollars, due and payable by said bank to said depositor, or his order, on or before December 15, 1931, together with interest thereon at the rate of 3 per cent, per annum from the date of this certificate until paid, which said amount, with interest will be paid to the legal holder by the People’s Bank & Trust Company at the maturity thereof, and upon surrender of this certificate, said deposit not being subject to check.”
The other certificates are like the one copied except in amount and maturity dates. It will be observed that these certificates are negotiable, and are in effect interest-bearing promissory notes. It will also be remembered that the interest received on the deposits before the bank closed its doors did not exceed 2% per cent., while the certificates bore interest at the rate of 3 per cent. This, together with the agreed statement that the agreement fon the reopening of the bank and the acceptance of the certificates in lieu of the deposits, was made without the sureties having been consulted, and in our opinion discharged them from further liability.
“An extension of time of payment to the principal, without the consent of the sureties, operates as a discharge of the latter from further liability, but such extension must have been for a definite time, and upon valid consideration.” Colvin v. Glover, 143 Ark. 498, 220 S. W. 832.
In the instant case there was an extension of the time for payment of the deposits without thé consent of the sureties and a higher rate of interest was agreed upon than that received on the original deposits for which the sureties were liable. This was a sufficient consideration for the agreement and created a different obligation from that for which appellees were bound without their consent and for the convenience of the city of Morrilton. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 761,18 S. W. (2d) 327; Colvin v. Glover, supra. See also Hill v. Trezevant, 123 Ark. 244, 185 S. W. 280; Berman v. Shelby, 93 Ark. 472, 125 S. W. 124.
The conclusion we have reached is not against the doctrine announced in Waterworks Imp. Dist., etc., v. Rainwater, 173 Ark. 523, 292 S. W. 989, relied on by the appellant. In that case there was no execution of a new contract as in the case at bar, but a mere extension of the time of the old, and that fact alone could not work to the disadvantage of the sureties and did not effect their release. In the instant case negotiable- instruments which might have been sold or transferred to a third party were taken in the stead of a checking account and created a new contract, not only in form, but in substance, which precluded the city of Morrilton from withdrawing its money from the bank either in whole or in part and placed the sureties in a position where they could not protect themselves.
The decree is affirmed. | [
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Mehaeey, J.
The appellee brought this action in the Crawford Circuit Court against the appellant to recover $1,109.35, damages to a shipment of strawberries from Horatio, Arkansas, to Hartford, Connecticut.
Appellee alleged the delivery of the strawberries to the appellant, and alleged that appellant was negligent in not shipping the berries within a reasonable time, and in not furnishing a properly constructed and equipped refrigerator car, and was negligent in not keeping said car refrigerated, and in allowing the ice to melt in the bunkers. It alleged that the berries were in good condition when shipped, and they arrived in Hartford in a damaged condition, said damages being caused by, the negligence of appellant.
It alleged the filing of its claim in writing and the failure and refusal to pay.
Thereafter plaintiff filed the following amendment as a substitute for paragraph three of the original complaint:
“Plaintiff alleges that the defendant allowed and permitted said strawberries, while in its possession and during the course of transportation, to become soft, wet, rotten and otherwise deteriorated, thereby greatly depreciating the value of same, all to plaintiff’s damage in the sum of eleven hundred nine and 35/100 dollars ($1,109.35). Wherefore plaintiff prays judgment and relief against the defendant as alleged and set forth in the original complaint. ’ ’
The appellant filed a demurrer and answer, and the court overruled the demurrer. The answer denied all the material allegations of plaintiff’s complaint.
The appellee introduced the express receipt, paragraph four of which is as follows:
“Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by:
“A. The act or default of the shipper or owner.
“B. The nature of the property, or defect or inherent vice therein.
“C. Improper or insufficient packing, securing or addressing.
“D. The act of God.”
Appellee then introduced evidence tending to show that the berries were delivered to the carrier at Horatio in good condition, and arrived at Hartford, Connecticut, in a damaged condition; and also evidence that, if they were delivered in good condition in a properly cooled refrigerator car, and arrived at their destination in a damaged condition, the damage was due to the fact that the car did not have proper refrigeration all along the route, and the ice must have melted away at some point.
This was all the evidence introduced on the part of the appellee, and the appellant moved the court to exclude from the jury’s consideration any issue of negligent delay in transporting the car, there being no evidence tending to prove such negligence, and this motion was sustained by the court.
The appellant then moved the court to exclude from the jury’s consideration any issue respecting negligent failure to ice or reice the car in transit, and the court sustained this motion. The appellant then moved the court to exclude from the jury’s consideration any issue respecting defendant’s negligence in furnishing said car, or in furnishing an improper or insufficient equipment, and this motion was-sustained by the court.
All allegations of specific acts of negligence alleged in the complaint were withdrawn from the consideration of the jury, and the only issue remaining to be tried was the common-law liability stated in appellee’s amendment to his complaint.
The appellee, having shown by evidence that the shipment was delivered at Horatio in good condition, and received at Hartford in a damaged condition, and also having shown that this could have been caused only by failure to keep the cars properly iced, the burden was then upon appellant.
It thereupon introduced testimony which tended to show, that there was no delay in the transportation of the berries, and it also introduced evidence tending to show that there was no failure to ice or reice the car. There was no evidence in the case tending to show that the berries were diseased.
L. P. Franks, however, a witness for the appellant, testified that he inspected the car at Horatio and that it was in good condition and properly iced. He testified that the day before the car was loaded it rained. He also testified that part of the berries were water-soaked, some overripe, and some small and knotty.
Another one of the appellant’s witnesses, however, C. F. Lamb, agent for the company at Hartford, testified that he inspected the car on its arrival, notified the consignee, and that it was apparent that the berries met consignee’s requirements. There was no sign of decay in the berries, which were dry and small, and had cover bruises. This witness inspected the top tiers.
Huntoon, another witness, testified for appellant that he inspected the ear at Kansas City on its arrival, and that the bunkers were down about 17 inches. It was necessary to put in, and he did put in, 2,700 pounds of ice.
Another witness for appellant, John Eeddick, also testified that the ice was down 17 inches.
Some of the witnesses for appellant testified that they reiced the car to capacity, but did not know how low the ice was when the car arrived.
It is appellant’s first contention that appellee wholly failed to establish negligence, and was therefore not entitled to recover. When a shipper alleges specific acts of negligence, the burden is on the shipper to prove the negligence alleged, and thaj; this negligence caused the damage. This suit, however, is based on the carrier’s common-law liability, and, when the shipper made á •prima facie case, the burden shifted to appellant.
The law, however, is well settled that a common carrier, in the absence of an express stipulation in the contract to the contrary, is responsible where goods are received for shipment against all loss or damage except such as is caused by the act of God, or the public enemy, or from inherent defects or weakness in the commodity shipped; and, when the carrier holds itself out as proposing to provide means of preserving perishable goods, it must exercise ordinary care in the adoption of such means of transportation, and furnishing such equipment. And if the goods were in good condition when delivered and accepted, and found on arrival at destination to be in damaged condition, then the law presumes the damaged condition was caused by the negligence of the carrier. Mo. Pac. Ry. Co. v. Amer. Fruit-Growers Inc., 163 Ark. 318, 260 S. W. 39; American Ry. Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 357; St. L. San Fran. Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 401; Amer. Ry. Ex. Co. v. H. Rouw Co., 174 Ark. 6, 294 S. W. 416; M. P. Ry. Co. v. Fine, 183 Ark. 13, 34 S. W. (2d) 755; Cinn.-New Orleans & Texas Pac. Ry. Co. v. Rankin, 241 U. S. 319, 36 S. Ct. 555, 60 Law. Ed. 1022; Amer. Ry. Ex. Co. v. Rhody, 84 Ind. App. 283, 143 N. E. 640; Buck v. Amer. Ry. Ex. Co., 195 Iowa 1024, 192 N. W. 277.
The appellant, however, in the contract of shipment expressly provided that, unless the injury was caused in whole or in part by its negligence, it should not be liable for loss, damage, or delay, caused by: (1). Act or default of the shipper or owner. (2). The nature of the property, or defect or inherent idee therein. (3). Improper or insufficient packing, securing, or addressing. (4). The act of God. There is no evidence in this case that the damage resulted from either of the above causes. There is no evidence of any act or default of the shipper that caused the damage. There is no evidence that it was caused by the nature of the property, or defect or inherent vice. There is no evidence that the damag'e was caused by the act of God.
There is substantial evidence to sustain the verdict in this case. The credibility of the witnesses and the weight to be given to their testimony were questions for the jury, and not for this court.
Appellant cites a number of authorities to support its claim that when a plaintiff bases his right to recover upon unreasonable delay and failure to furnish proper refrigeration, having relied upon these specific acts of negligence, the burden is upon the shipper. All the questions of negligence, as we have already said, were eliminated by the court at the request of the appellant.
The court excluded from the consideration of the jury any issue of negligent delay, and negligent failure to ice or reice, and negligence in furnishing car or improper equipment, and, after the elimination of these issues, plaintiff’s right to recover was based wholly on the common-law liability of the carrier, and, when the appellee proved a delivery of the shipment in good condition to appellant, and proved a delivery at destination in a damaged condition, the presumption arose that the carrier was guilty of negligence, causing the damage.
We are of the opinion that the evidence was sufficient to justify the jury in finding that the carrier was guilty of negligence which caused the injury.
Appellant urges a reversal because the court gave appellee’s instruction No. 1, which is as follows: “You are instructed that a common carrier, in the absence of an expressed stipulation in the contract to the contrary, is responsible for goods received for shipment against all loss or damage, except such as is caused by the act of God or the public enemy or from inherent defects or weakness in the commodity shipped; that, when a shipment of perishable goods is received for transportation, it must exercise ordinary care in the adoption of such means of transportation and in furnishing such equipment as will reasonably accomplish the purpose. The above instruction was a correct statement of the law.
Appellant relies on M. P. Rd. Co. v. Fine, supra. That case, however, was based on specific allegations of negligence, and the instruction complained of in this case told the jury that the carrier must exercise ordinary care in the adoption of such means of transportation and furpisli such equipment as would reasonably accomplish the purpose.
Appellee’s instruction No. 2, was a correct statement of the law. It told the jury in effect that if the evidence showed that the strawberries were delivered to the carrier in Horatio in good, sound, merchantable condition, and, if the same arrived in Hartford in a damaged condition, and such damage occurred during the time they were in possession of the carrier, then the plaintiff had made out a prima facie case, and the burden was upon the defendant to show that it used ordinary care in the transportation of said berries.
As we have already said, it is a well established rule in this court, and in practically all other courts, that the delivery to the carrier of merchandise in good condition, and the delivery at its destination in bad condition, makes out a prima facie case.
Appellant also urges a reversal because the court refused to give its instruction No. 5. This instruction was erroneous because it placed the burden upon the plaintiff to prove the negligence of the carrier.
We find no error, and the judgment of the circuit court is affirmed. | [
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Hart, C. J.
This is an appeal by Koss Construction Company, a corporation, from a judgment rendered ag’ainst it for damages on account of the personal injury of G. L. Vanderburg, one of its employees, alleged to have been caused by the negligence of appellant.
G. L. Vanderburg was a witness for himself. According to his testimony, he was twenty-eight years of age at the time he was injured, and had been engaged as an employee on construction work since he was fourteen years of age. He commenced to work for appellant some time in August, 1930, and continued to work for it until he ivas injured along about the 23d day of December, 1930. He was employed as a concrete finisher at the time he was hurt. Appellant was engaged in building a bridge across a stream on a public highway; and, at the particular time in question, was finishing concrete on the bridge. After the concrete is poured, it is necessary to smooth it up and finish it, to prevent it from setting in a rough and irregular way.
Herbert Legler was superintendent of construction for appellant. He was over all the employees and could tell each one what part of the work to do, and whom to obey. About three or four weeks previous to the accident, Legler told appellee to help W. E. York at any time he might need assistance". At that time, the construction company had taken over the ferry at the stream over which the bridge was being constructed, and York was operating the ferry. On the occasion in question, the river was rising, and York had to have assistance to raise the cable by which the ferry Ayas operated. Appellee was not called upon by York at any other time until the date- of the accident..
On that day, Ira Ware was left in charge of finishing the concrete after the day’s work was done. At the same time, Leg’ler told appellee to stay and help Ira Ware smooth the concrete. W. E. York was night watchman, and he had charg’e of furnishing the electric light by which Ware and appellee worked. Between eight and nine o’clock in the evening, York called to Lee Ware to come down there because the water ivas out of the boiler. Ware told appellee to go down and do whatever York told him to do. When appellee got down to the pumping place, York had turned the lights off and was throwing the fire from the boiler in order to prevent it from exploding. Appellee went down and started the pump, but could get no results.
York then told appellee to go up on the hill, climb upon the tank, and see why the water wasn’t passing into it. The' tank was sitting upon beams about sixteen or eighteen feet above the ground. There were cross braces nailed to the beams in order to strengthen and support them. At the top of the beams and surrounding the bottom of the tank were pieces of lumber two by six inches in diameter with the edge side up. These were placed there for the purpose of steadying the tank. There Avas a piece of two-inch pipe fastened about six feet from the bottom of the tank through which the Avater' Avas carried to the top of the tank. The water pipe was not fastened at the top of the tank on the occasion in question, but appellee did not know of this fact.
Pursuant to the directions of York, appellee climbed upon the cross braces, and put his left foot up on one of the two by six pieces, and then caught hold of the two-inch water pipe to brace himself, so that he could climb up on by the two by six pieces and look into the tank to see if the Avater was flowing into it through the pipe. There was nothing- to stand upon except the two by sixes, which, as above stated, were placed around the tank to keep it from rocking*. York did not explain the conditions surrounding- the tank to appellee, and he did not know what they were. When he caught hold of the water pipe with his left hand, it pulled off of the tank at the top and caused him to fall and strike on some lumber about eighteen feet below, injuring him severely. On cross-examination, appellee stated that he had worked for three years for the Texas Utilities Company, which used the same kind of tanks. This company required the water pipes to be securely fastened to the tank. When appellee caught hold of the water pipe, his foot slipped, and he went downwards, carrying the pipe over the edge of the tank with him. He was shaken loose and fell on a piece of timber on his right'hip. ' His head was about a foot and a half or two feet above the top of the frame at the time. He had hold of the pipe with his left hand, and when his foot slipped, he started falling, and the pipe came over with him.
According to the testimony of Ira Ware, Legler told him to stay there and finish smoothing the concrete, and that he was leaving appellee there to help him. Ware supposed that he was the one to see that the concrete was finished, and that it was his business to direct appellee in the work. He does not know what happened after he told appellee to leave the bridge and go to the1 assistance of York. Other testimony for appellee tended to corroborate the above.
W. E. York was one of the witnesses for appellant. According to his testimony, he was night watchman at the time of the accident, and also ran the ferry boat. He did not boss appellee or any one else. On the evening of the accident, York asked appellee to come down and help start the pump. After starting the pump, they did not know whether or not the water was flowing into the tank. York first went up and listened and could not hear the water flowing into the tank. He then told appel lee, who had had more experience in matters of that sort, to go up and see about it. He did not tell him, to climb* up on the tank.
According to the testimony of Herbert Legler, he was superintendent of appellant, and appellee and Ira Ware were common laborers. W. E. York was night watchman. He had no authority over any of the men. The water pipe was placed up the side of the tank in order to carry water to it. It was not necessary nor was it intended to be used for the purpose of climbing upon the tank. There was a ladder near there which could be used for that purpose, for it was necessary to find out whether the water pipe was stopped up with sand or other matter. The ladder was standing within ten feet of the tank at the time- the accident occurred.
In rebuttal, another employee of the company testified that he had climbed the cross braces two or three times in the daytime to see if the water pipe had become clogged up. He said that there were ladders around there but none at the tank.
The principal contention of appellant for a. reversal of the judgment is that York was not its vice principal, and had no authority to direct or to command appellee to climb upon the tank in the night on the occasion he was injured.
On the other hand, it is sought to uphold the judgment on the ground that the service which appellee undertook to perform at the time he was injured was required by a superior servant, and was such as to demand that he act at once. Hence, it being an emergency calling for promptness and rapidity, it would be unreasonable to require of him that care and scrutiny of his place of work as would be the case where there was time for observation and deliberation. The claim is that the case falls squarely within the doctrine announced in Southern Cotton Oil Company v. Spotts, 77 Ark. 458, 92 S. W. 249; and Michigan-Arkansas Lumber Company v. Bullington, 106 Ark. 25, 152 S. W. 999, and other cases of this court.
It is insisted that the fact that appellee was directed by York to climb the tank and see if the water pipe had been clogged np created an emergency, and that he had no opportunity to examine the place and discover the danger he was about to encounter. In this situation, it is claimed that the doctrine of assumed risk is inapplicable, and that appellee cannot be held to have assumed the risk of a danger about which he knew nothing and had no opportunity to inform himself.
Many other cases calling for the application of the doctrine above announced have been decided by this court, and the doctrine has been applied according to the facts of each particular case. Therefore we do not deem it necessary to cite or review these cases.
We do not think this is a case calling for the application of the doctrine. There was no evidence from which the jury might have found the existence of facts to make either Ware or York a vice-principal. The most that can be said of Ira Ware is that he was left in charge of smoothing out the concrete, and had no other duty to perform on the occasion in question. Appellee was left to help him in this work, and there is nothing to show that Ware had the control or jurisdiction over the other employees. There was nothing about the work which would require Ware to be in superintendence and control of the other workmen as vice-principal. It is not the law that, because two or more men are engaged in the same work, the duty of supervision of one of them over the others, follows as a legal obligation. To put the mere details of the work under one man does not make him a vice-principal over the others. If such was the case, in every piece of work, whether hazardous or not, it would be necessary to employ one person to oversee the others. Ware was merely the leader of the work of smoothing the concrete, and appellee was left to assist him. It is a matter of common knowledge that, in plough gangs and persons engaged in hoeing cotton, one of them is usually the leader; but this does not give him any control or supervision of the others. If Ware was not the vice principal of appellant, he could not have directed appellee to have gone into a place of danger, and thereby have relieved him from the doctrine of assumed risk.
But, it is earnestly insisted, York was a vice principal. To sustain this theory, it is pointed out that Legler, the regular superintendent of appellant had on one occasion three or four weeks before the date of the injury, directed appellee to help York whenever he might need assistance in his work of operating the ferry. It is claimed that the general direction given on that occasion warranted the jury in finding that York had general supervision and control over appellee in any part of the work intrusted to his care. In the first place, we think that the only legitimate construction that could be put upon the direction of Legler would be that appellee was to help York in raising the cable by which the ferry was operated, and in other work pertaining to the ferry. As far as the service of York was concerned, there was nothing in the circumstances from which the jury might have inferred that he had any dominion or control over appellee. Ware, appellee and York were all engaged in finishing up the concrete so that it could not set in an irregular manner. The work was harmless and required no supervision. Ware and appellee were directed to smooth the concrete, and York was engaged in pumping water to furnish light for that purpose, and also for the purpose of enabling him better to discharge his duties as night watchman. There is a difference between a leader of a crew of men, merely charged with the duty of overseeing the work, and one in which authority is given to one man to have superintendence, control and dominion over the other men, in order to properly carry on the work.
We think the case falls squarely within the principles of law decided by this court in Williamson & Williams v. Cates, 183 Ark. 579, 37 S. W. (2d) 88. Ware, appellee and York were all fellow-servants, and neither York nor Ware had supervision, control or dominion over appellee in the sense that either was a vice principal of appellant. Therefore it was error for the court helow to refuse to direct a verdict in favor of appellant under the doctrine of assumption of risk.
It is also insisted that the judgment should be upheld under the rule laid down in Booth & Flynn v. Price, 183 Ark. 975, 39 S. W. (2d) 717, 76 A. L. R. 957, where it was held that where an emergency exists requiring immediate action to protect the master’s interest, the servant has implied authority to employ help, and that the person so called upon is not required to exercise the same care for his own safety as in ordinary cases where no such emergency exists. We do not think that case has any application to the facts of the present case. Appellee was not engaged in an effort to save the property of appellant or to protect the lives of any one for it. As we have had occasion to say in former opinions, courts cannot trespass upon the power and functions of the Legislature. This was an unfortunate accident, which is another case illustrating the justness of a reasonable compensation act; but we can not encroach upon the power of the Legislature by judicial fiat.
The views we have reached above render it unnecessary to consider or to determine the other assignments of error argued in the briefs of counsel. Inasmuch as the case seems to have been fully developed, no useful purpose could be served by remanding it for a new trial. Therefore the judgment will be reversed, and the cause of action will be dismissed here. It is so ordered. | [
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Humphreys, J.
Appellee recovered damages against appellant in the circuit court of White County in the sum of $75 for killing his cow in the operation of its passenger train en route to Memphis on the 5th day of August, 1930, near bridge No. 4 between mile posts 291 and 292. The right of recovery was based upon the alleged negligence of appellant’s employees engaged in the operation of said train in failing to give warning of the approach of the train and to stop said train after discovering the cow upon its track.
Appellant requested the court to instruct a verdict for it upon the theory that the undisputed testimony reflected that the cow came suddenly onto the top of the track from under the east end of the trestle about 150 or 200 feet in front of the train, which was running at a speed of about sixty miles an hour, rendering it impossible for the engineer to have stopped the train and avoided hitting the animal. This was the effect of the testimony of the engineer, who swore that, although keeping a constant lookout, he did not discover the cow until he was within 150 or 200 feet of her as she came from under the east end of a trestle onto the track; that he immediately blew the whistle to frighten her off, but that he struck her before she cleared the track. He further testified that the train was the fast passenger train out of Memphis to Little Rock, and that he struck the cow about 5:30 p. m. According to the testimony of the section foreman, he found the cow on the north side of the track about 100 yards east of the trestle and buried her the next morning.
Had the testimony of the engineer been undisputed, appellant would have been entitled to its request for an instructed verdict. His testimony was disputed, however, by the testimony of witness Sawyer. This witness testified that the track was straight for a long distance each way at the point where the cow was struck; that several cows had crossed the track ahead of the cow owned by appellee and that she was the last one to cross the track from the south side to the north side thereof, and that, just as she was about to clear the track, she was struck by a fast passenger train en route to Memphis about four or four-thirty o’clock p. m.
If the cow in question was killed at four or four-thirty o ’clock p. m. by a fast east-bound passenger train, then the engineer who testified was not operating the train that killed appellee’s cow, for he was operating a west-bound train en route to Little Rock. The place where the carcass was found tended to corroborate the testimony of Sawyer rather than that of the engineer.
The jury accepted the testimony of witness Sawyer as true, and the conflict in testimony warranted the sub mission of the issue of fact to the jury for determination. The court did not err in refusing the peremptory. request of appellant.
Appellant also contends for a reversal of the judgment because the court refused to give its requested instruction No. 3, which is as follows:
‘ ‘ The jury are instructed that the engineer and fireman and other employees of the defendant company have a right to testify in this cause, as to how this accident happened, and you are further instructed that you are t.o take their testimony along with the other testimony in the case, and that you have no right to disregard said testimony unless the same is contradicted by other testimony in this case.”
The giving of this instruction would have singled out and given undue prominence to the testimony of the engineer. The court therefore properly refused to give the instruction.
No error appearing, the judgment is affirmed. | [
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Mehafey, J.
This is the second appeal in this case. The decision on first appeal is in 183 Ark. 557, 38 S. W. (2d) 557, where the facts are stated.
The only question in this case now is whether interest should he paid on a prior or preferred claim against an insolvent hanking institution.
Appellee cites and relies on § 7360 of Crawford & Moses’ Digest. That section provides for allowing interest on judgments from the day of signing the judgment. It, however, has no application here.
The claim is against the Bank Commissioner in charge of the American Exchange Trust Company, a hanking institution hopelessly insolvent. "While this claim is a prior or preferred claim, every other depositor has the same right as a depositor holding a preferred claim, except the right to he paid first, hut, unless the hanking institution or Commissioner has sufficient funds to pay all the depositors, no interest can he paid on any claim.
Appellee also cites and relies on Arkansas Southern Ry. Co. v. German Nat. Bank, 85 Ark. 136, 107 S. W. 668, but tbe court in that case was not dealing with an insolvent banking institution, and, under our statute judgments draw interest after the signing of the judgment, but the above case does not hold that interest may be allowed in a case like this. .
Appellee next calls attention to 33 C. J. 213, § 79, and 33 C. J. 215, § 82. These sections simply state the law to be that judgments bear interest, and, as a general rule, this is true.
Appellee next refers to Bank of Roxie v. Lampton, 104 Miss. 427, 61 So. 452. That case was tried on an agreed statement of facts, and the court said: “It is manifest from the agreed statement of facts that the appellant was wholly without fault in the matter, and that the Pike County Bank & Trust Company was simply the victim of Gaston’s fraudulent conduct.” The court in that case allowed interest. Caston was acting president of the Bank of R-oxie, and acting cashier of the Pike County Bank & Trust Company, and committed the frauds mentioned in the case, but the facts in that case are different from the facts in. the case at bar.
The general rule is that, unless there are sufficient funds to pay all the depositors, no depositor is entitled to interest on his claim. Clark Sparks & Sons Mule & Horse Co. v. American Nat. Bank, 230 Fed. Rep. 738; Shaw v. McCord, Tex. Civ. App. 18 S. W. (2d) 200; State ex rel. Fant, v. Browne, 156 S. C. 181, 153 S. E. 133, 69 A. L. R. 443.
In the case of People v. American Loan & Trust Co., 172 N. Y. 371, 65 N. E. 200, Van, J., in delivering the opinion of the court, said: “If the assets are sufficient to pay all, including interest, it must be paid, for, as against the corporation itself, interest should be allowed ■before the return of any surplus to the stockholders.” It may be admitted that these remarks were unnecessary to the disposition of the case then under consideration, but tbe rule thus asserted appears to us to be so eminently just and so well supported by other authority that we now have no hesitancy in adopting it as the rule that should be adhered to in disposing of questions of this character. It is not only in accord with the views expressed in the case of Sickles v. Herold, 149 N. Y. 332, 43 N. E. 852, but those expressed in Nat. Bank of Commonwealth v. Mechanics’ Nat. Bank, 94 U. S. 437; Richmond v. Irons, 121 U. S. 64, 7 S. Ct. 788; Mahoney v. Bernhard, 63 N. Y. Supp. 642; Wheeler v. Miller, 90 N. Y. 353.” See Eastman v. Farmer’s State Bank of Olivia, 175 Minn. 336, 221 N. W. 236; Leach v. Sanborn State Bank of Sanborn, 210 Iowa 613, 231 N. W. 497, 69 A. L. R. 1206.
A depositor in a bank which has become insolvent is not entitled to interest on his claim unless the assets are sufficient to pay all the depositors.
The decree of the chancery court is reversed, and the cause dismissed. | [
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Butler, J.
The Citizens’ Bank & Trust Company of Harrison, Arkansas, was taken over as an insolvent bank for purposes of liquidation by the Bank Commissioner on December 17, 1930. The officers and depositors, being anxious to reopen the bank, agreed that it might be opened by issuing to each depositor, in lieu of the payment of cash deposits, three certificates representing in the aggregate the amount of each deposit, payable in three installments, one on December 24, 1931, and the other two on the same date in the years 1932 and 1933. The certificates were to draw interest at the rate of three per cent, per annum. This agreement was rati fiecl by the Bank Commissioner, who applied to the Boone Chancery Court for an order authorizing the bank to reopen for business on that basis. The order was made, and the bank reopened for business on February 16,1931, issuing to each of its depositors the three certificates as aforesaid. The bank continued to do business until September 1, 1931, when it again closed its doors, and was taken over by the Bank Commissioner and is now in process of liquidation.
Owing to the great financial depression prevalent and to the deflation of all values, the liquidating agent has experienced much difficulty in making collections, and many of the securities and other assets of the bank have shrunk in value. Consequently the appellees, the Bank Commissioner and the special deputy in charge of the liquidation of the bank, applied for, and obtained, an order in the Boone Chancery Court by which they were empowered to sell the assets of the bank, real, personal and mixed, piecemeal at private sale, and to compound such of the debts due said bank as might be found bad or doubtful.
This suit was instituted by a number of the depositors of the insolvent bank for themselves and the other depositors seeking to restrain the Commissioner from proceeding under the order of the Boone Chancery Court last mentioned above. The complaint, after reciting the history of the first closing of the bank and its reopening and final closing on September 1, 1931, and the order of the chancery court aforesaid, alleged that many of the notes held by the liquidating agent of the insolvent bank are fully secured by real estate mortgages, that others have good personal security, while many, though unsecured, are made by those who are willing and able to pay in full as soon as they can convert some of their property into cash. It was further alleged that the appellees were offering to accept deposits in payment of these notes and attempting to trade said notes and other assets for property instead of money; that this action on the part of the appellees was arbitrary and in violation of the rights of the creditors and depositors of said bank and would amount to a dissipation of the assets by the appellees if they should accept for the notes less than the full face value in cash and would operate as a preference to creditors whose deposits in said bank were accepted in payment of these notes. They prayed for an order enjoining the appellees from proceeding further in their attempt to settle and compound the notes, etc., in their possession.
Answer was made admitting the allegations of the complaint except in denying that the action was arbitrary, contrary to law or in violation of the rights of the creditors and depositors of the bank, and alleging that the proposed action would expedite the liquidation of the bank and very greatly reduce the expenses thereof, and was and is for the best interests of the creditors and depositors of said bank and in conformity with the provisions of the law and the orders of the chancery court.
The case was submitted to the court on stipulation of attorneys which recited the facts as above set out, and also that there were outstanding certificates of deposit issued under the reorganization plan in the sum of $69,625.57 in the' hands of various depositors to whom they were issued and purchasers of said certificates, some of which sales were made prior, and some subsequent, to the final closing of the bank. It was further stipulated that appellee Watkins, Special Deputy Bank Commissioner, had given notice of his intention to accept said certificates of deposit and other deposits in the bank “on such basis and such conditions as he deems right, fair and equitable, and as in his judgment will conserve the best interest of all concerned in the assets of said bank in payment and satisfaction of any notes held by said bank, both secured or unsecured, which he considers slow, bad or doubtful, whether said certificates are set-offs which he would be required to accept, or not; that he is offering to trade other assets of said bank, such as real estate, furniture and fixtures, for deposits in said bank, and other property besides cash, when in Ms judgment it is to the best interest of all those interested in the assets of said bank.”
It was further agreed that many of the notes are secured by mortgages on real estate, which real estate is of equal value to the amount of the notes, but that no loans could be procured on these from any source with which to discharge the indebtedness, and that, if the mortgages are foreclosed, it is doubtful whether any cash could be realized from said sales, and “highly probable that it would be necessary for the Bank Commissioner to buy said lands in,” with the result that no cash could be realized and no progress made toward the final liquidation of the bank; that, since the bank had been taken over for liquidation, only $20,696.09 had been collected in cash on the notes held and only $30,730.70 on stock assessments and realized from other assets; that the average monthly expense of liquidation approximated the sum of $920.95. It was also agreed that the course proposed by the Special Deputy Bank Commissioner would greatly expedite the liquidation and materially reduce the necessary expenses thereof; that there were, and are, approximately $11,663.07 in prior claims filed, and that these, with other prior claims, may not be paid in full; that general claims had been filed and allowed in the sum of $390,270.08, and that there are claims due for deposits not yet filed in the sum of $62,881.36, and claims due 'to banks which have not been filed in the amount of $168,507.44, and that the total assets of the bank as shown by inventory at the close of business just prior to closing the doors of the bank in September,. 1931, was $1,282,335.57. Other facts were agreed upon which were not material to the decision of the case.
The case was submitted on the pleadings, the exhibits and the agreed statement of facts. The court entered a decree dismissing the complaint, from which is this appeal.
It is the contention of the appellants that the appellees have no authority under the law or the orders of the chancery court to accept notes held as assets of said bank for certificates of deposit therein, and that the contemplated action of the appellees exceeds the authorization made by the order of the court and is in violation of the provisions of the statute. The statute upon which the petition of the appellees and the order of the court' granting the prayer for authority to dispose of the assets and the compound debts due the bank is act No. 113 of the Acts of 1913, as amended by § 6 of Act 131 of 1917, and § 4 of Act 496 of 1921, and is as follows:
“Upon taking possession of the property and business of any bank, the Commissioner is authorized to collect money due, and do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The Commissioner shall collect all debts due and claims belonging to it, and for such purposes is authorized to institute, maintain and defend suits and other proceedings in this State and elsewhere, and, upon the order of the chancery court of the county in which it is doing business, may sell or compound all bad or doubtful debts and on like order may sell all its real estate and personal property on such terms and at public or private sale, as the court shall direct.”
The order of the court under which the appellees were proceeding to act is as follows: “It is by the court considered, ordered and adjudged and decreed that the said Bank Commissioner in charge of the said bank be, and he is hereby authorized, impowered and directed from time to time to sell the assets of said bank, real, personal or mixed, piecemeal and at private sale, and also from time to time to compound such of the debts due said bank as the said Bank Commissioner may find to be bad or doubtful, all such sales and compositions to be upon such terms and considerations as in each instance the said Bank Commissioner may consider to the best interest of the estate herein, all sales so made by the said Bank Commissioner of any of the -assets of the said bank consisting of its real estate to be reported by the Bank Commissioner to the court for confirmation.”
The appellants call attention to the cases of Sloss v. Taylor, 182 Ark. 1031, 34 S. W. (2d) 231; Krumpen v. Taylor, 183 Ark. 1046, 40 S. W. (2d) 775, and Tyler v. Citizens’ Bank, 184 Ark. 332, 42 S. W. (2d) 385, as authority for the position taken that the contemplated action of the appellees is in excess of their power. We do not think the cases are in point. In the Sloss case a debtor of an insolvent bank, after it had closed its doors, purchased certificates of deposit to the amount of his debt and attempted to set off his debt with these certificates. There was an attempt to pay the debt with a certificate of deposit at its face value regardless of what, in fact, such certificate might be worth, and we held that this would tend to secure a preference in favor of the debtor and would be in violation of the policy of our statute.
In Krumpen v. Taylor, stockholders in the bank organized to take over an insolvent bank attempted to pay for their certificates of stock by checks on their deposits in the insolvent bank. The payment of the certificates of deposit was not as contemplated by § 8, article 12, of the Constitution, in that it was not made in money or property actually received and was held to be invalid.
In Tyler v. Citizens’ Bank, the question decided was similar to that in the Krumpen case. The insolvent bank could not pay its depositors dollar for dollar, and the Bank Commissioner, with full knowledge of this, permitted certain subscribers to stock in the new bank to pay for the same by checks accepted at their face value drawn on deposits in the insolvent bank.
In addition to deciding that that case came within the principles of law announced in the Krumpen case, it was held that the action of the Bank Commissioner was tantamount to allowing a preference. However, none of the principles announced in the cases cited apply to the instant case. The statute, the order of the chancery court, and the contemplated action of the appellees go no further than to accept the certificates of deposit on such terms and consideration as shall be fair and equitable - and to the interest of all parties concerned, the appellees being authorized to exercise their judgment as to what would be the best interest of all parties. It is our opinion that the order of the chancery court does not go further than the statute, and nothing appears to indicate that the appellees are not endeavoring to carry out the letter and spirit of the order. To be sure, the appellees must act in good faith, and any act upon their part creating a preference in favor of a debtor or a creditor would be in fraud of the rights of the other parties interested and would be an invalid act, but no such state of facts is presented by the record before us.
The decree of the trial court dismissing the appellants’ complaint is correct, and it is therefore affirmed. | [
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Humphreys, J.
Appellants brought this suit against appellee in the chancery court of Logan County, Boone-ville District, to reform fire insurance policy No. 12371, issued by it to A. L. George on October 15,1930, covering improvements on lots 20 to 26, inclusive, in block 32, in the town of Magazine, Arkansas, so as to include a loss payable clause to appellants, executors of the estate of W. V. Higgins, deceased, to whom A. L. George mortgaged said property on March 1, 1927, to secure a loan of $1,000 and interest; and to recover out of the proceeds of said policy said mortgage indebtedness with interest, the statutory penalty of twelve per centum, and a reasonable attorney’s fee. It was alleged in the complaint that the understanding between the parties was that said policy should contain a loss payable clause to appellants, executors of the estate of W. V. Higgins, deceased; and that A. L. George, as agent of appellee, negligently failed to write said policy in accordance with the agreement, understanding, and intention of the parties. It was also alleged that the improvements on the lots were totally destroyed by fire on the 30th day of November, 1930.
An answer was filed denying the material allegations of the complaint.
The cause was submitted on the pleading’s and testimony, resulting’ in a dismissal of the complaint.
The record reflects .that A. L. George borrowed the sum alleged from W. A. Higgins and executed him a mortgage on said property to secure same, and furnished him a fire insurance policy in appellee’s company which expired one year thereafter; that renewal policies were issued each year and kept in the custody of A. L. George, who told appellants that the policies contained the clause agreed upon, when in fact none of them did; that A. L. George was a soliciting agent only of appellee and with - out authority to write policies; that the extent of his authority was to solicit insurance-, send applications received to appellee’s general agent, Coates & Baines, at Little Bock, Arkansas, and to deliver the policies when issued and sent to him by the general agent, and to collect the premiums thereon; and also reflects by the weight of the evidence that A. L. George agreed to procure a policy from appellee containing a loss payable clause to appellants as their interest might appear, and that he claimed to have done so in his conversation with them; and that the improvements on said lots were totally destroyed by fire on the 30th day of November, 1930, and that the amount due under the insurance policy was paid to A. L. George, by appellee, on the 26th day of December, 1930, and by him paid to Coates & Baines in settlement of premiums he had collected on other policies.
Appellants contend for a reversal of the decree and their right to a reformation of the policy and of recovery thereunder upon the knowledge of A. L. George of the existence of the mortgage and his agreement to protect appellants as their interest might appear in the policy numbered and referred to above. This position would be tenable, had A. L. George been given authority to agree upon the terms and write policies for appellee, but no such authority was conferred upon him directly or indirectly by appellee. The undisputed evidence showed that A. L. George was merely a soliciting agent of appellee. It has been uniformly held by this court that a solicit ing agent has no authority to agree upon terms to be inserted in policies or to change or modify or waive terms contained therein, and that the knowledge of a soliciting agent cannot be imputed to the company he represents. American Insurance Company v. Hampton, 54 Ark. 75, 14 S. W. 1092; Mutual Life Insurance Company v. Abbey, 76 Ark. 328, 88 S. W. 950; American Insurance Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 384; Inter-Southern Life Insurance Company v. Holzhauer, 177 Ark. 927, 9 S. W. (2d) 26. Under the au- • thorities cited, appellee was not bound by the knowledge of A. L. George, its soliciting agent, nor by his agreement to insert in the policy a loss payable clause in favor of appellants.
No error appearing, the decree is affirmed. | [
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Kibby, J.
This appeal comes from a decision of the circuit court denying a petition for certiorari to bring up and quash the order of the county board of education changing the boundary lines between School Districts 10 and 66 in Columbia County.
The petition was filed for the change of the boundaries between said districts on May 5, 1931, before the board of education, accompanied by a map showing the proposed changes.
The purpose of the petition and its effect, if granted, was to take from School District No. 10 a strip of territory, varying in width from one-fourth to one-half mile and extending across the entire west side of the district, and annex same to Emerson School District No. 66. Within this territory was located a tank farm with an assessed valuation of $57,380, the Southwestern Bell Telephone Company’s transmission lines with an assessed valuation of $872, the Louisiana & Northwest Railroad with an assessed valuation of $16,500, the Arkansas Transit Company with an assessed valuation of $860, “or property, exclusive of the value of the territory proposed to be detached, of the total valuation of $75,74-2.”
The county board of education called a joint meeting of themselves with the directors of the two districts concerned for the purpose of making the change of the boundary lines, and the board of directors were unable to agree to the change proposed, and the board of education changed and adjusted the lines as prayed for in the petition. School District No. 10 was present with its entire board of directors, and its attorney on May 15th, had notice of the action of the board of education, but took no appeal from the order changing the boundaries.
On June 30, appellant filed its petition in the Columbia Circuit Court for a writ of certiorari which was by the court denied, final order being entered on August 25, 1931, from which this appeal was prosecuted.
It is insisted that the county board of education was without jurisdiction to make the order because no petition was filed by a majority of the qualified electors in District No. 10 asking for a change of boundaries, nor any election held to ascertain whether a majority of the electors of the territory affected favored the change, nor was a petition filed by qualified electors asking the detachment of the territory from District No. 10 to be annexed to District No. 66, nor any legal notice given relative to the proposed change of boundaries.
Decision of the question necessitates a construction of §§ 44 and 52 of act 169 of 1931, which appear to be in conflict about the procedure required. Under the terms of said § 44 the board is given the same authority for a change of boundary lines of school districts, the formation of new districts, the dissolution of existing districts, the transposition of territory of old districts, and the law requires that it can exercise such authority on the consent of the majority of electors in each school district affected as shown by petition or elections as herein provided, and also provides the method for holding the elections or presenting the petitions, the giving of notice, etc. Section 52 appears to provide for an adjustment or change of boundary line or lines between adjoining districts upon application' made by the directors of any district after 10 days’ notice of a call for a joint meeting of the directors of the districts affected with the county board of education, and that the chairman of the board may make the order changing the boundary line or lines between the districts upon approval of a majority of the members of the school boards of the districts-, and, if they are not able to agree to the proposed change of boundary lines, the county board-may either change or fix the boundary line or deny the relief asked and let the boundaries remain unchanged.
Appellant insists that appellee wrongfully attempted to- annex some of its best revenue producing territory to appellee district under the guise of asking a change of boundary lines between the districts and in violation of the law providing for annexation, of territory.
" Said § 44 of said act gives plenary authority to change the boundary lines of school districts on consent of the majority of electors in each school district affected, and, if such change is in effect taking territory from one district and adding it to another, it cannot be done otherwise than in accordance with the provisions of said section and the procedure as for dissolution of districts, taking territory from one and adding to another, and making new districts therefrom.
Said § 44 is virtually a re-enactment of the old statute, § 8823 of Crawford & 'Moses’ Digest, subsequently amended by act 156 of 1927, requiring a majority petition from, the electors of each district affected by the change in boundary lines, instead of a majority of electors from the districts divided in order to confer jurisdiction upon the board. Under either of these statutes the consent of a majority of the electors, as shown by the petition filed with the- board, was necessary to give it jurisdiction to change the boundary line between the school districts. Stephens v. School Dist., 104 Ark. 145, 148 S. W. 504; District No. 45 v. District No. 8, 119 Ark. 149, 177 S. W. 892; Hughes v. Roebuck, 119 Ark. 592, 179 S. W. 163; Consolidated Dist. No. 2 v. Special District 19, 179 Ark. 822, 18 S. W. (2d) 349.
No notice was given of the proposed change of the boundaries amounting to annexation of territory, in accordance with said § 44, nor any petitions presented or election held for that purpose, and the county board was without jurisdiction nr authority to make the order changing the boundary lines, in effect taking a very substantial part of the territory of one district and annexing it to the other under the guise and procedure as for a change of boundary lines only. Having no such jurisdiction, the board’s order was void, and could be quashed on certiorari, and the court erred in not granting the desired relief. The judgment is reversed accordingly, and the cause will be remanded to the circuit court with directions to grant the petition for certiorari and quash the order of the county board of education changing the boundary line of the districts petitioned for. It is so ordered. | [
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Hart, C.. J.,
(after stating the facts). The record shows that the consideration recited in the release agreement between Smith and the defendant was the sum of $4,000, which was paid to and received by Smith in full discharge and final settlement of his claim against said defendant in a damage suit brought by him against it for personal injuries in the circuit court.
It is earnestly insisted by counsel for appellant that to allow the attorneys to prove that there was an additional consideration that their fee should be paid would be in violation of the well-known rule that parol evidence is not allowed, in so far as the terms of the consideration are contractual, and the writing must control. They rely upon the case of Williams v. Chicago, Rock Island & Pacific Railroad Company, 109 Ark. 82, 158 S. W. 967, and on other eases decided by this court deciding a similar principle.
We do not think the cases cited are applicable under the facts of this case. In the case just cited, Williams settled a claim for damages with the railroad company for a stipulated amount of money and testified at the trial that the release merely recited a part of the consideration for the settlement, and that it was agreed that he was to have a lifetime job with the railroad company. The court held that this could not be done because the part of the consideration proved by parol was contractual in its nature and .tended to contradict the very terms of the settlement by the railroad with the plaintiff. The court recognized, however, the well-known rule that parol proof is admissible to establish the fact that other considerations not recited in the instrument of writing were agreed to be had where such proof does not contradict the terms of the writing. It was distinctly held that an additional consideration, based upon the same subject-matter, might be proved without varying the terms of the writing.
The admission of the parol proof of Smith did not tend in any way to contradict or vary the terms of the written release and settlement by himself with the defendant. It only recited an additional consideration that the defendant was to pay his attorneys whatever he had agreed to pay them.
Another reason why the testimony was admissible is that, under our statute, the attorney has a lien on his client’s cause of action, of which all the world must take notice, and any one settling with the plaintiff without the knowledge of his attorney does so at his own risk. It is true that the existence of the lien under the statute does not permit the plaintiff’s attorney to stand in the way of a settlement; but the lien operates as security, and, if a settlement is made in disregard of it, the court will interfere and give the attorney a lien for that percentage of the proceeds which his contract with his client entitled him to receive. St. Louis, Iron Mountain & Southern Railway Company v. Hays & Ward, 128 Ark. 471, 195 S. W. 128.
This view was again adopted in the case of Arkansas Foundry Company v. Poe, 181 Ark. 497, 26 S. W. (2d) 584. In the latter case, it was held that all of the cases recognize the rule that the amount for which the parties have in good faith agreed to settle is binding on the attorneys, but they disagree as to what this amount is. Some of the cases hold to the view that the amount paid the client is the amount on which the attorney’s percentage is to be computed where there is a contingent fee. Other cases hold that the amount paid the client is not the whole of the settlement, but only the client’s part thereof, and that the whole amount of the settlement on which the attorney’s percentage is to be computed is an amount bearing such a proportion to the amount paid to the client as the whole bears to the fraction represented in the client’s share. In other words, under our statute, if the defendants are required to pay the attorney’s fees as a part of the settlement, they will be deemed to have agreed to pay the plaintiff’s attorney the amount the latter was entitled to receive under the contract of employment. This was the view of the law adopted in the Poe case; and it was expressly held that, where a client agreed to pay attorney a fee of fifty per cent., the defendant, settling with the client for a stipulated sum and agreeing to pay the attorney, must pay the attorney a like sum.
The undisputed facts in this case are that the defendant knew at the time it made the settlement that the plaintiff had agreed to pay his attorneys a contingent fee on a percentage basis, and knew the terms thereof. Smith, the plaintiff in the damage case, testified that they- agreed to pay his attorneys on the basis on which he was paid. Now the release and settlement show that he was paid the sum of $4,000, and the court found that the attorneys were entitled to recover a like amount. The finding and judgment of the court shows that it did not take into consideration the fact that other sums in addi tion to the $4,000 were to be received by the plaintiff from the defendant in the settlement of the case. The court was at liberty to accept that part of the plaintiff’s testimony which it believed to be true, and to reject that part that it believed to be untrue.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Frank Holt, Justice.
This is an original petition for a Writ of Mandamus to compel the respondent to set petitioner’s case for trial at the earliest available date and thereby correct respondent’s alleged abuse of discretion in ordering a continuance.
In granting a continuance, the trial court found, after consideration of the motion, the record, argument and statement of counsel, that the petitioner had sued the defendant, Heath & Scarbrough, and other parties in a Federal District Court of Tennessee; that the cause in that court against the defendant was dismissed for lack of jurisdiction; that petitioner had elected to proceed in that forum against the other defendants; that such cause was tried before a jury and a verdict was rendered against petitioner and that the cause was appealed; that petitioner’s appeal is now pending in the United States Court of Appeals for the Sixth Circuit; that petitioner’s cause in the state court appears to be based on the same facts, witnesses, and issues involved in the pending federal case and that the rights of the defendant will be prejudiced if this cause be tried during the pendency of that appeal. In the exercise of its discretion and based upon its findings, respondent continued petitioner’s case until there is a determination of petitioner’s action in the federal court. This continuance was granted at a pretrial conference on January 10, 1969. On March 4, 1969, the respondent heard petitioner’s motion to rehear and set aside its order of continuance. The respondent restated its original findings and adhered to its original ruling, adding that defendant could not plead its defenses fully until after a determination of petitioner’s case in the federal court.
The petitioner contends for reversal that the pend-ency of a similar suit in a federal court is not a legal ground for a continuance of his cause of action in. our state court, citing Road Imp. Dist. No. 1 v. Henderson, 155 Ark. 482, 244 S. W. 747 (1922) and State ex rel v. Nelson, Berry Petroleum Co. et al, 246 Ark. 210, 438 S. W. 2d 33 (1969); that respondent has no discretion to order a continuance in this case, citing Road Imp. Dist. No. 1 v. Henderson, supra; that the continuance is indefinite and constitutes a refusal by respondent to exercise its jurisdiction, citing Village Creek Drainage Dist. v. Ivie, 168 Ark. 523, 271 S. W. 4 (1925), that the stay of proceedings in the case at bar is interlocutory and not appealable, and the petitioner’s appropriate remedy is by mandamus to compel the respondent to exercise its jurisdiction, citing Road Imp. Dist. No. 1 v. Cooper, 150 Ark. 505, 234 S. W. 623 (1921); Road Imp. Dist. No. 1 v. Henderson, supra; Thompson v. Foote, 199 Ark. 474, 134 S. W. 2d 11 (1939); that respondent’s continuance of petitioner’s case is an arbitrary abuse of discretion for which the proper remedy is by writ of mandamus, citing Edmondson v. Bourland, 179 Ark. 975, 18 S. W. 2d 1020 (1929), and that mandamus is a proper remedy to prevent an irreparable injury where the later remedy by appeal shows it to be inadequate, citing Edmondson v. Bourland, supra. Although petitioner presents a persuasive and compelling argument in his analysis of these cases, we do not consider them controlling in the ease at bar. Each case must be decided upon its own particular facts and circumstances.
The petitioner suffered personal injuries in August 1966 as an employee of a subcontractor on a construction project in Arkansas. In February 1967 the petitioner filed a personal injury suit in federal district court in Tennessee against the general contractor, Heath & Scarbrough Construction Company, a subcontractor (petitioner’s employer), and other defendants. The petitioner’s original and amended complaint and the defendants’ answers joined various allegations of negli gence. In March 1967 the general contractor was dismissed from the action by the federal court on the basis that the court was without jurisdiction. In March 1968, or a year later, the petitioner refiled his present action against the general contractor in the Crittenden Circuit Court. In July 1968 a judgment was entered on a jury verdict in the federal court action wherein the issues were found against the petitioner. The petitioner appealed and this appeal is now set for a hearing on October 14, 1969, in the Sixth Circuit Court of Appeals.
An order granting or refusing a continuance will not be set aside unless there is a manifest abuse of discretion. Newsom v. Reed, 177 Ark. 177, 6 S. W. 2d 10 (1928) and Thompson v. Foote, 199 Ark. 474, 134 S. W. 2d 11 (1940).
It is true that mandamus is proper where the lower court wrongfully refuses to exercise jurisdiction. Thompson v. Foote, supra. However, the writ of mandamus will not issue to control the judicial discretion of an inferior court, nor can the writ be used to correct an erroneous exercise of discretion. State ex rel Attorney General v. Nelson, supra. It is well settled that whether a continuance is granted or refused is largely a matter within the sound discretion of the trial court. Phillips v. Nowlin, 238 Ark. 480, 382 S. W. 2d 588 (1964) and Andrews v. Lauener, 229 Ark. 894, 318 S. W. 2d 805 (1958).
The trial court obviously was not persuaded to grant the continuance merely because of a similar suit pending in federal court. This alone would be insufficient. The additional basis for the continuance was the court’s finding that the defendant would be prejudiced and could not fully plead its defenses if petitioner’s cause were tried during the pendency of petitioner’s appeal in the other forum. The prejudice to defendant could involve its right to join third parties and avail itself of certain defenses, in the event of a reversal in the federal forum. It must be said there appears to exist in both forums an identity of the relief sought, the facts and circumstances seem similar, and common issues also exist. The petitioner is the only plaintiff in both forums. He is largely in control of his litigation in the federal action where the issue hqs progressed from a trial proceeding to the appellate status.
Bach trial court must be allowed wide discretion and latitude in the control of its own docket. The granting or refusal of a continuance in each case must be determined upon its own particular facts and circumstances. Since the court found that, in addition to the pendency of petitioner’s appeal in another forum, the rights of the defendant would be prejudiced at this juncture of both proceedings, we cannot say that the respondent manifestly and arbitrarily abused its discretion as asserted by the petitioner.
Writ denied.
Fogleman, J., disqualified and not participating. | [
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Lyle Brown, Justice.
During the last sixteen months of the life of the testatrix, Mrs. Lillian Rowland, her daughter, Jessie Hickman, lived with Mrs. Rowland, assisting with her business affairs, and rendering nursing services. The trial court allowed Mrs. Hickman’s claim for reimbursement of personal funds she used to pay Mrs. Hickman’s bills and disallowed her claim for personal services. Bertha L. Craig, Executrix, appeals from the allowance for reimbursement. Mrs. Hickman cross-appeals from the court’s denial of her claim for personal services. The principal issues involve the sufficiency of the evidence and the admissibility of Mrs. Hickman’s testimony under Section 2 of the Schedule of the Arkansas Constitution, commonly known as the dead man’s statute.
Mrs. Rowland was the owner and operator of a motel in Forrest City known as the Texas Court. In about 1963 Mrs. Rowland’s physical condition became such that she was unable to do all the work incident to the operation of the business. From then until 1966 Mrs. Bertha Craig and her daughter, Mrs. Bigenault, stayed at the court and assisted Mrs. Rowland. During that time Mrs. Rowland’s daughter, Mrs. Jessie Hickman, was temporarily residing in California. Her occupation was that of a registered nurse and her husband was a practical nurse. On a short visit back to Forrest City in January 1966, Mrs. Hickman was advised that Mrs. Craig and Mrs. Bigenault would have to relinquish their responsibilities with, respect to Mrs. Rowland. Thereupon the Hickmans returned to Forrest City so that Mrs. Hickman could attend to her mother and assist in the business of the motel. Those were Mrs. Hick man’s principal activities from February 1, 1966, until her mother died on June 1, 1967.
During the period of performing the described responsibilities, Mr. and Mrs. Hickman were jointly nursing a Mr. Henry, who was apparently an invalid requiring rather close attention both day and night. For those services the husband and wife team received a salary of $800 per month and an allowance of $300 monthly for Mr. Henry’s expenses. Mr. Hickman performed the majority of services required by Mr. Henry, while Mrs. Hickman divided her time.
The Hickmans carried a personal checking account with the First National Bank of Wynne and it was in that account they deposited their emoluments from Mr. Henry. Mrs. Rowland had a business account at the First National Bank of Eastern Arkansas in Forrest City. That account was in the name of the Texas Court. Mrs. Rowland had a separate personal account which is not here involved.
During Mrs. Hickman’s sixteen months experience at the motel, she allegedly spent considerable moneys from her bank account and from moneys borrowed. She justified those expenditures on the grounds that the motel was operating at a loss, that Mrs. Rowland’s drug bills were very substantial, and that considerable repairs were required to be made on the motel. As result of those expenditures Mrs. Hickman filed a claim against Mrs. Rowland’s estate. That claim may be divided into four parts and they will shortly be enumerated.
Considerable confusion in accounting resulted from the fact that the two bank accounts were used interchangeably and on more than one occasion both accounts were out of funds. Mrs. Hickman apparently tried to write checks on the particular account which at the time showed the better balance. Nevertheless business and personal withdrawals were made from both accounts, and the trial court wisely appointed a master to audit the accounts.
The trial court, .after hearing considerable evidence, inspecting some 275 exhibits, and having the benefit of the detailed findings of the master, came to these conclusions :
(a) The claim for $4,500 for moneys deposited to the Texas Court from personal funds was reduced to $4,152.35 and allowed; (b) the $997.12 claim for drugs was allowed in the sum of $802.90; (c) Mrs. Hickman claimed $2,799.64 for reimbursement because of bills paid for Mrs. Rowland from Mrs. Hickman’s personal account, and that amount was reduced to $1,252.29 .and allowed; (d) a miscellaneous claim for $95.09 reimbursement was allowed in full; .and (e) Mrs. Hickman’s claim for $3,800 for personal services was disallowed in toto.
The findings of the trial court that Mrs. Hickman actually expended from personal funds and for the benefit of Mrs. Rowland the amounts designated cannot be said by this court to be inaccurate. If those claims have been legally established, then we must affirm on direct appeal. More specifically, we must determine whether Mrs. Hickman’s claims for expenditures are barred by Section 2 of the Schedule of the Arkansas Constitution, commonly referred to as the dead man’s statute:
In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. Provided, further, that this section may be amended or repealed by the General Assembly.
First we consider Mrs. Hickman’s claims other than the one for personal nursing services; the latter item will be treated in our discussion of the merit of the cross-appeal. Appellant contends that Mrs. Hickman’s testimony violated the rule against a claimant testifying as to transactions with Mrs. Rowland.
With respect to Mrs. Hickman’s testimony, she did not testify as to conversations with, or any directions from, her mother. She was permitted to relate that she had extensive and needed repairs done to the motel; that she negotiated personal loans and deposited the proceeds in the motel account; that she paid current bills, both personal and business; that she purchased such medicines and related needs as were prescribed by the doctors; that she personally handled the motel registrations and deposited the funds to the motel account; that she made purchases of groceries and miscellaneous items she considered necessary; and that she hired and paid the needed personnel for the motel. For practically all those expenditures and receipts she introduced receipted bills, cancelled checks, or deposit slips.
Because of the relationship of the parties and the recited nature of the transactions made, we do not think the testimony prohibitive under the statute. We had this to say in Cline v. Miller, 239 Ark. 104, 387 S. W. 2d 609 (1965):
But the personal transaction or communication of the statute, no doubt, means a transaction or communication face to face, or by the parties in the actual presence and hearing of each other.
Appellant contends that the estate is not liable to Mrs. Hickman because there is no evidence of any contract authorizing her to make the claimed expenditures. The payments were made under circumstances from which the law implies an obligation to repay. Admissible evidence shows that appellee was placed in charge of Mrs. Rowland’s affairs. The bank, the doctor, contractors, and suppliers, all recognized an agency relationship between the two women by which Mrs. Hickman acted generally for her mother in numerous transactions. It is not seriously contended that the items for which the probate judge made allowances were unreasonable, unnecessary, or nonbeneficial to Mrs. Hickman; in fact, the great weight of the evidence is to the contrary. In such a situation the law implies an obligation of reimbursement. See 58 C. J. S. Money Paid, § 1-4 3.
Appellee cross-appealed from the refusal of the trial court to allow her claim for personal services in caring for Mrs. Rowland and for operating the courts. First, we eliminate from consideration the testimony of appellee wherein she related her nursing services, running of errands, and general attendance to Mrs. Rowland’s other personal needs. The numerous objections to that testimony should have been sustained as violative of Schedule, § 2 of the Constitution. Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75 (1941). Other testimony on those points was relatively scant. Cross-appellant produced witnesses who verified her presence at the courts for a considerable time and because of their intermittent observations had some knowledge of the assistance she rendered. However, we do not think the services established by competent evidence were of such extraordinary character as to give rise to an implied contract for payment. Other factors contribute to this conclusion. During the entire period Mr. and Mrs. Hickman continued to receive the salary and expense allowance for caring for Mr. Henry. Mrs. Hickman testified that occasional extra help was supplied to assist Mr. Hickman; however, we are not advised as to the period of time or the account from which that expense was paid. Maid service and extra nursing help were provided the courts and Mrs. Rowland and at the latter’s expense; Mrs. Hickman was free to judge when those services were needed. Mrs. Hickman was still able to devote some time to Mr. Henry’s needs and to be with her husband daily if desired. It is also noteworthy that Mrs. Rowland was not a home bed patient until the last few weeks of her life; there is evidence that prior to that time she drove her own car and visited in Georgia, Alabama, and Florida. It is also noted that Mrs. Rowland deeded to her daughter a lot adjacent to the Texas Court. The value is not shown but there was located thereon a garage and filling station.
The law presumes that services rendered by a daughter to a mother are gratuitous, arising from natural love rather than hope of pecuniary reward. Hence the daughter has the burden of establishing at least an implied contract for payment. Williams v. Walden, 82 Ark. 136, 100 S. W. 898 (1907) Russell v. Baumann, 239 Ark. 830, 394 S. W. 2d 619 (1965). Services by a child to a parent may give rise to an implied contract if those services are of such extraordinary character “that the parent would not expect a child under the circumstances to render such services without compensation.” Lineback v. Smith, 140 Ark. 500, 215 S. W. 662 (1919). Because of the circumstances we have enumerated, and the absence of substantial competent testimony, we are unable to say that Mrs. Hickman overcame the presumption.
Appellant complains because the trial court taxed one-half of the master’s fee against her. The question is raised here for the first time; additionally, the point is not argued.
Affirmed on appeal and cross-appeal. | [
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George Rose Smith, Justice.
This suit was brought by the appellant, a Mississippi hank, to enforce a $5,000 promissory note executed by the appellee River Valley Company and personally endorsed by its president and codefendant, the appellee Dr. A. F. Black. A few weeks before the suit was filed the bank had foreclosed in Mississippi a deed of trust securing a $21,000 note executed by River Valley only and had hid in the mortgaged property for $21,000. In the case at bar the chancellor held that the bank should have applied its bid pro rata against both notes, which would have left a balance of only $968 due on the $5,000 note. Judgment was accordingly entered for that amount. The hank contends that it is entitled to judgment for the full amount of the smaller note.
Despite a voluminous record the controlling facts are comparatively simple. In 1965 Black, a resident of Monticello, Arkansas, was the president of River Valley, an Arkansas corporation engaged in the automobile business in Greenville, Mississippi. The business was actually conducted by Black’s two sons, with such advice and assistance as Black was able to provide during visits that he made on about every Thursday.
In 1965 Black went to the appellant’s branch bank at Greenville and applied for a line of credit for River Valley. The hank, after checking Black’s financial statement, agreed to provide River Valley with credit to the amount of $6,000, the debt being evidenced by a note signed by River Valley and endorsed by Black. On December 22, 1966, Black paid $1,000 to the bank and obtained a $5,000 renewal note due March 22, 1967, which is the note now in litigation.
For more than a year the bank had been honoring drafts drawn by River Valley on Dr. Black and presented to him at Monticello. In February of 1967 there was an accumulation of about $24,000 of such drafts for which the bank had given credit to River Valley but which had not been paid by Black. The bank was concerned about the debt and demanded security.
On March 2, 1967 — twenty days before the maturity of the $5,000 renewal note — River Valley executed in Greenville a deed of trust encumbering land in Mississippi to secure River Valley’s $21,000 note to the bank. The deed of trust recited that it secured not only the $21,000 note but also “any additional indebtedness heretofore, now, or hereafter contracted with the [bank] by the grantors . . . whether such indebtedness be represented by promissory notes, open account, over-draft or otherwise.”
River Valley’s financial condition worsened to such an extent that the bank directed the trustee in its deed of trust to bring an out-of-court foreclosure proceeding in Greenville under the power of sale. As we have indicated, the bank purchased the property for $21,000, applied its bid upon the note for $21,000, plus interest, and brought this suit against Black and River Valley Upon the $5,000 note.
The bank makes three contentions for reversal. First, it insists that its motion for summary judgment should have been granted in the circuit court (to which the case was transferred briefly before being returned to chancery).. We need not discuss that contention, because the denial of the motion for summary judgment was followed by a trial on the merits. The denial of the motion is therefore not reviewable. American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S. W. 2d 622 (1968).
Secondly, the bank contends that the chancellor erred in applying the law of Mississippi as a basis for holding that the $5,000 note was secured by the deed of trust under the pre-existing indebtedness clause that we have quoted. Coombs v. Wilson, 142 Miss. 502, 107 So. 874 (1926). Under Arkansas law that clause did not de scribe the $5,000 note with sufficient definiteness to bring it within the coverage of the deed of trust. Bank of Searcy v. Kroh, 195 Ark. 785, 114 S. W. 2d 26 (1938). The bank now insists that the Arkansas law should have been followed, because the appellees failed to give the written notice required by § 4 of the Uniform Interstate and International Procedure Act: “A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleadings or other reasonable written notice.” Ark. Stat. Ann. § 27-2504 (Supp. 1967).
We have considered that statute in two earlier cases. In the Hruska case, supra, the plaintiffs relied upon the law of Missouri in their pleadings, but the defendant failed to plead its contention that the law of Louisiana was controlling. We held that in that situation the trial court correctly submitted the case to the jury under Missouri law. In the other case, American Aviation v. Aviation Ins. Managers, 244 Ark. 829, 427 S. W. 2d 544 (1968), we cited the statute in a footnote, without discussion, in holding the Arkansas law to be applicable.
Neither of those cases laid down a rigid rule requiring a party to assert his reliance upon foreign law at any particular point in the litigation. In fact, such an interpretation would not be in harmony with the purpose of the Uniform Act, which was to make it easier —not harder — for a party to rely upon the law of another jurisdiction. The Commissioners point out in their note to § 3 of the Act that it is intended to change the rule prevailing in many states, that a court may not even consider foreign law unless it has been pleaded. The statute substitutes a rule of reasonable notice only. On this point the Commissioners went on to say: “Any reasonable written notice will suffice. . . The court must exercise discretion in determining the proper timing of the notice in the light of the requirements of the case and fairness to the parties. The section does not attempt to prohibit the raising of an issue of foreign law after any particular point in the litigation. In exceptional situations, the issues may not become apparent until during or even after the trial, and, in appropriate cases, the notice may be given at that time.” 9B U. L. A. 329 (1966).
In the case at bar we find that reasonable notice was given. In this court counsel for both sides state that the case was submitted to the chancellor on trial briefs. Indeed, the appellees’ brief here asserts without contradiction that the chancellor requested briefs on the law of Mississippi. Such briefs were manifestly submitted, because the chancellor’s written findings discussed the Mississippi cases at length and rested the court’s conclusions upon the law of that State. Those findings were filed in the clerk’s office on November 5, 1968. Á decree pursuant to those findings was prepared by counsel for the prevailing side, approved by opposing counsel, and entered by the court on November 26. Thus the bank had a period of three weeks after the chancellor’s announcement of his findings to assert any claim it might have had that the debtors ’ failure to give written notice of their reliance upon the law of Mississippi had unfairly taken the bank by surprise. No such claim was asserted, doubtless because it was understood by all concerned that a note and deed of trust executed in Mississippi, payable in Mississippi, and secured by land in Mississippi, would be governed by the law of that State. To sustain the appellant’s present argument would allow it to raise the issue for the first time on appeal.
Finally, the bank argues that the chancellor should not have applied the bank’s bid pro rata to both notes. It is said that inasmuch as the debtors did not direct the application of the bid the creditor was entitled to apply it as the creditor saw fit. Under Mississippi law, however, proration is the proper procedure when the payment is an involuntary one resulting from a foreclosure rather than a voluntary one made at the debtor’s free will. Cage v. Iler, 13 Miss. 410, 43 Am. Dec. 521 (1845). Nor do we find merit in the appellant’s insistence that the appellees waived their right to proration by their failure to plead it. The matter was covered by the proof, was presumably argued in the trial briefs-, and was explicitly discussed by the chancellor in his findings. Absent any plea of surprise — and no such plea was made — the court could properly treat the pleadings as amended to conform to the proof. Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217 (1948).
Affirmed. | [
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J. Fred Jones, Justice.
The petitioner, George H. Thome, has filed an original petition in this court entitled “Petition for Writ of Habeas Corpus and Motion to Quash Detainer Warrant.” 'The prayer is for a “dismissal” of the warrant and for an order directed to the First Division Circuit Court of Pulaski County, Arkansas to withdraw its warrant from the warden of Arizona {State Prison.
The facts in the record are essentially these: On November 22, 1966, the prosecuting attorney of Pulaski County filed information charging the petitioner with the crimes of burglary and grand larceny, and on November 23, 1966, a bench warrant was issued for his arrest. The record is not clear whether the warrant was actually served on Thorne. The dates are filled in on the warrant return but only a check mark appears in the spaces provided for insertion of the name of the person arrested; fees of $2.15 and 15 cents are designated for service and mileage, and the return is signed by Hemp-hill, Deputy Sheriff. The warrant bears no filing date but the return recites as follows:
“I have this 23 day of Nov. A. D. 1966, duly served the within by arresting the said....................................”
In any event, it appears that Thorne was incarcerated in the Arkansas State Penitentiary on November 23, 1966, under a conviction for a different offense previously committed. On April 20, 1967, the superintendent of the state penitentiary was ordered by the Pulaski County Circuit Judge to release Thorne to the sheriff of Pulaski County for the purpose of being brought before the court for plea and arraignment on the first day of May 1967. At the foot of this order appears the handwritten notation “not at penn,” and signed “Hill.”
The record reflects that Thorne was discharged from the Arkansas State Penitentiary on. April 13, 1967, and that on October 18, 1967, he was arrested in Phoenix, Arizona and was sentenced to twenty years in' the penitentiary of that state where he is now incarcerated. Upon learning of Thorne’s incarceration in Arizona, a detainer warrant was placed against him in that state.
The record contains copies of two undated and unverified instruments addressed to the Pulaski County Circuit Court. Neither instrument bears a receipt or filing date but they were apparently prepared by, or on behalf of, petitioner Thorne. One of these undated instruments is designated “Motion for a Speedy Trial and Writ of Habeas Corpus Ad Prosequendum,” and concludes as follows:
“[T]he Petitioner prays the Honorable Court to grant his MOTION FOR A SPEEDY TRIAL AND WRIT OF HABEAS CORPUS AD-PROSEQUENDUM.”
The other undated instrument is designated “Motion to Quash Detainer Warrant,” this instrument concludes as follows:
“Movant prays this Honorable Court dismiss the above numbered warrant by virtue of the information herein contained and any other supporting Authorities of which the Court may take Judicial Knowledge. ’ ’
The jurat on this instrument appears as follows:
“County of Pinal )
ss
State of Arizona )
Subscribed and sworn to before me this............day of
................................................, 1968.
Witness my hand and Seal.
NOTARY PUBLIC”
Both of these instruments are couched in legal terminology with ample citation of federal and state court decisions. It would appear that Thorne had competent advice in wording the body of the instruments, but none at all in executing them. Neither instrument appears to have been signed by Thome although his name is typed at the conclusion of both of them. The unexecuted jurat form copied above, indicates that it was prepared for execution in 1968.
An unsigned “Affidavit In Forma Pauperis” appears in the record and bears date of January 23, 1969. That was apparently the date it was prepared and there is no way to determine whether it accompanied. either of the other instruments, and if so, which one. There is no way for us to determine from the record before us, when, if ever, these instruments' were received by the Pulaski County Circuit Court. Of course; if they were sent to the Pulaski County Circuit Court, it was no fault of Thorne’s that their receipt dates were not noted.
Regardless of when, or whether, these instruments were sent to, or received by, the Pulaski County Circuit Court, the record contains a letter dated December 16, 1968, from Thome to the circuit judge of the Pulaski County Circuit Court, calling attention to the motion to quash and insisting that favorable action be taken on the petition. This letter does not indicate a willingness to return to Arkansas for trial, but, on the contrary, in speaking of his mother, Thorne says: “She will, however, fight my extradition with all her resources.” This letter was followed by one dated January 13, 1969, from Thorne to the clerk of the First Division Circuit Court stating, in part, as follows:
“According to the Post Office’s Return Receipt, your office has been in receipt of my motion to Quash and Dismiss Detainer Warrant since December 6, 1968.
As of this date I have received no word of any disposition of this motion.”
On January 20, 1969, the First Division Circuit Judge wrote to Thorne as follows:
“Dear Sir:
In Case No. 66458 showing George Henry Thorne, Leo Bryant, Jr. and David Lee Rogers as defendants in a charge of Burglary and Grand Larceny which was filed in this court 11/22/66, my docket reads as follows:
11-22-66
Rogers to State Hospital under Act 3
12-5-66
Bryant plea of Not Guilty, Jury trial May 31
12-15-66
Rogers Plea of Guilty, 5 years on Burglary, 5 years on Grand Larceny
5-1-67
Thorne passed to June 5
5- 18-67
Bryant Jury waived, court trial June 21
6- 21-67
Bond Forfeiture Alias Warrant, $2,500 on Alias Warrant on Bryant
7- 3-67
Alias Warrant, Thorne, $2,500 bond on Alias Warrant
According to the records of this Court, you are a fugitive. It is my understanding of the law that a fugitive has no standing in a court of law until he submits himself to the court for disposition of his case. Therefore, no action has been taken on your petition nor will any be taken until you are returned to the jurisdiction of this court.”
On April 10, 1969, Thorne filed his petition in this court and on April 16, 1969, the clerk of this court wrote to the prosecuting attorney of the Sixth Judicial District, as follows:
“Dear Sir:
I enclose a copy of a motion filed in this Court by George H. Thorne which is self-explanatory.
The Court has directed that I call your attention to the case of Pellegrini vs. Wolfe, 225 Ark. 459 and requests that you let the Court know what action has been or will be taken under the rule stated in that case.”
Apparently in response to this letter the prosecut ing attorney, on April 22, 1969, filed a motion in the First Division, Pulaski County Circuit Court for a writ of habeas corpus ad prosequendum praying:
“. . . that this Court issue a Writ of Habeas Corpus Ad Prosequendum commanding the Warden of the Arizona State Prison, Florence, Arizona, to deliver the defendant, George Thorne, to the United States Marshall for the Eastern District of Arkansas, to stand trial on the above referenced charges.”
On April 28,1969, a hearing was had on this motion and an order was entered by the circuit court as follows:
“'The Court finds that its docket so reflects that the defendant herein, George H. Thorne, is a fugitive from this Court and for such reason has no standing before this Court until he submits himself for disposition of his case.
IT IS THEREFORE HEREBY ORDERED that the Motion for a Writ of Habeas Corpus Ad Prosequendum is denied.”
On April 25, 1969, the prosecuting attorney wrote to Thorne as follows:
“Enclosed you will find a copy of the Motion for a Writ of Habeas Corpus Ad Prosequendum filed in this case and a copy of the Order denying such Motion.
Should you wish to appeal this Order, you should contact Judge William J. Kirby, First Division, Sixth Judicial District, Little Rock, Arkansas.”
We take judicial notice that the terms of the First Division Circuit Court in Pulaski County run from the fourth Monday in September and the First Monday in March each year. Ark. Stat. Ann. § 22-310 (Repl. 1962).
Ark. Stat. Ann. § 43-1708 (Repl. 1964) 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.”
Information was filed against Thorne on November 22, 1966. Two terms of the court, after the information was filed, did not expire until the first Monday in March 1968. Thorne’s case was set for plea and arraignment on May 1, 1967, which was only two months within the first term of court after the information was filed against him. Thorne had been released from prison in Arkansas on April 13, 1967, and his whereabouts were unknown to the Pulaski County Court authorities until he was taken into custody in Arizona on October 18, 1967, which date was well within the first month of the second term of the Pulaski County Circuit Court after the information was filed against him. Thorne was never committed at all on the charges pending against him in Pulaski County and the Pulaski County Circuit Court could not try Thorne in absentia. Thorne is not automatically entitled to discharge, as a matter of law, under the above statute. Thorne has voluntarily placed himself beyond the territorial jurisdiction of the Pulaski County Circuit Court and is now being detained there against his will. Under our holding in Pellegrini v. Wolfe, 225 Ark. 459, 283 S. W. 2d 162, Thorne is entitled to a speedy trial in Arkansas just as soon as he comes, or can be brought, within the territorial jurisdiction of the Pulaski County Circuit Court; and he will be entitled to his discharge if the Pulaski County Circuit Court fails, or refuses, to co-operate and assist in regaining territorial jurisdiction over the person of Thorne regardless of the fact that he is now incarcerated in the Arizona State Prison under a sentence of 20 years.
Pellegrini was in exactly the same situation in Texas as Thorne is in Arizona. Pellegrini asked for a dismissal of the Arkansas charge against him, or in the alternative that he be brought to Arkansas and tried. The record is not clear whether Thorne has ever asked to be tried in Arkansas or has ever even indicated willingness to be tried in this state. The copy of his undated, unsigned, and apparently unfiled petition, indicates an alternative plea to be tried on the information filed in Arkansas, but his letter to the trial judge, and his petition to this court, do not so indicate.
Be that as it may, Thorne is entitled to relief from whatever burden the hold warrant places on him in Arizona if he wants it. The trial court should have granted the petition filed by the prosecuting attorney, but Thorne is in an awkward position to appeal from a denial of that petition. So we treat Thorne’s petition in this court as a petition for a writ of procedento ad judicium against the Honorable William Kirby, Judge of the Pulaski County Circuit Court, First Division, and in granting the petition we adopt the exact language employed in Pellegrini, with only the names of the petitioners and states of incarceration changed.
Arkansas should request Arizona to let Arkansas have Thorne for trial. If Arizona refuses, then Arkansas has done all that is possible, and the two-year-discharge Statute will not inure to the benefit of Thorne. If Arizona requires, as a condition for granting such extradition, that Thorne, execute some kind of waiver, then, unless Thorne will accomplish such waiver, he has not brought himself within the purview of the Statutory provision relating to two-term-discharge. If Arizona does agree to the extradition on conditions met, then Arkansas must extradite and try Thorne with due diligence or Thorne will be entitled to have the charges dismissed and the warrant/detainer cancelled.
The writ of procedente» ad judicium is granted, as herein stated.
See: Pellegrini v. Wolfe, supra; Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240. | [
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Frank Holt, Justice.
The only issue on this appeal is whether a jury verdict for damages is excessive. The appellee was injured in an intersection accident while she was riding as a passenger in the front seat of an automobile driven by her employer, Dr. Fletcher Watson. The Watson vehicle was struck on the passenger side by an automobile being operated by appellant Gordon, an employee of appellant Ward Supply, Incorporated. Dr. Watson and appellee Smith brought separate suits against appellants. The cases were consolidated for trial and resulted in verdicts for both plaintiffs. Appellants appeal only as to the damages awarded to appellee. They contend that the $55,000 jury award to appellee is excessive.
A comparison of jury awards is of scant value in appeals on this issue. The degree of injury is rarely the same and the purchasing value of the dollar is much less than several years ago. On appeal we must study and view the evidence most favorable to the appellee and then determine whether the jury award is so great as to shock the conscience of the court or to demonstrate that the jurors were motivated by passion or prejudice. Ark-La Gas Co. v. Strickland, 238 Ark. 284, 379 S. W. 2d 280 (1964); Fred’s Dollar Store v. Adams, 238 Ark. 468, 382 S. W. 2d 592 (1964); Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647 (1957). With these governing rules of law in mind we review the evidence.
As a result of the collision, appellee was thrown forward, her head hit the right window, her abdomen struck the right armrest, and her right shoulder was caught under the dashboard. Dr. Watson was thrown against her. Appellee was taken directly to a hospital where she was confined for three or four days. A month later she returned to her job and remained with Dr. Watson about seven months or until he permanently closed his office in June 1968. She has not worked since then. According to appellee, she was physically unable to fulfill her routine duties as a registered nurse. She was only able to assist Dr. Watson by being present when he examined women patients and to perform other incidental duties which did not require physical exertion. Dr. Watson corroborated her physical limitations. Since the accident, or for the 13 months preceding the trial, she has suffered from headaches, stiffness in the neck, numbness in three fingers of her right hand and difficulty in raising her right shoulder. She testified that she cannot lift anything and is unable to do normal housework. At the time of the trial appellee was taking physical therapy and there was evidence that these treatments would be required in the future for a period of three to six months as a minimum. Her treatments consisted of head-halter traction to her neck, exercise to her arm, shoulder, hand and back, heat, muscle relax ants, pain medication and rest. According to appellee, her right kidney was dislodged, causing nephroptosis or what is known as a “floating kidney.” She is uncomfortable from what she terms a “'mass” in her right side and the function of her kidney is affected, causing her to get up excessively during the night. ,She stated that she now experiences pain from her kidney and that her right side is tender. Five of her teeth were fractured, four of which had to be crowned and one “smoothed.” She has difficulty dressing herself, combing her hair, writing or using her right arm. She experiences discomfort while working when her head is in a fixed position for any length of time.
There was medical evidence that appellee is suffering from muscle irritability and a decreased range of motion in her neck region, right shoulder and upper right limb; there is a sensory involvement resulting in an impairment of feeling from the top of her head on the right side to her fingers, loss of muscle power and impairment in blood vessel flow; that these injuries are painful and in the future an aching variety of pain is anticipated; that the movement of the right upper limb is restricted because of the decreased range of motion in the right shoulder and that appellee has difficulty in working with her head in a fixed position; that as a result of the orthopedic injuries appellee has a 20 to 25 percent permanent partial disability to the body as a whole with some possibility of improvement.
The appellee is 46 years of age with a stipulated life expectancy of 26 years. She had worked for Dr. Watson for 24 years and at the time of the accident was earning $325 per month. There is evidence of a heavy demand for registered nurses with a starting salary of $400-$450 per month. By trial date, appellee had lost $3,888.36 in earnings. Her medical expenses, including her dental work, totaled $1,732.32.
It must be said there was substantial evidence from which the jury could conclude that appellee’s injuries severely limit her in the performance of her duties as a registered nurse; that she will have difficulty finding employment and she will experience pain and suffering in the future and additional medical expenses. 'Therefore, we are not in a position to say that the amount awarded by the jury, especially in view of the constantly decreasing purchasing power of the dollar, shocks the conscience of the court or demonstrates passion or prejudice on the part of the jurors. Noble McChristian et al v. Tommy Hooten et al, 245 Ark. 1045, 436 S. W. 2d 844 (1969); Lin Mfg. Co. v. Courson, 246 Ark. 5, 436 S. W. 2d 472 (1969); Dyer v. Payne, 246 Ark. 92, 436 S. W. 2d 818 (1969).
Affirmed. | [
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«Tohn A. Fogleman, Justice.
The parties hereto were participants in a marriage ceremony on October 29, 1965, when appellant was 83 years of age and appellee was 42. Appellant, at that time, had acquired and still owned an unencumbered 600-acre farm, a pickup truck, at least $65,000 in bank accounts and $10,000 in government bonds and an undetermined amount of cash. He did not then, or at the time of trial, owe any debts. His previous wife had died during the preceding year. He had no children. He stated that he was unable to care for himself or drive an automobile because of bad health. Appellee had acquired three children, some furniture, a house in Kansas City, debts which included a balance on this house, and a tangled marital status. Appellee left appellant at least three times prior to the final separation in May, 1966, at which time she states that her condition in life became intolerable. In November, 1966, she instituted this action for divorce. The grounds alleged were those commonly known as indignities to the person. Specifically, the complaint contained allegations that appellant had on numerous occasions physically abused, harmed and threatened her and had treated her with rudeness, contempt, studied neglect, all habitually and systematically pursued, until her condition in life became intolerable. A decree granting appellee a divorce and awarding appellee one-third of appellant’s personal property and one-third of his real estate during her natural life, and ordering the real estate sold to accomplish the property division, prompted this appeal. The decree was granted for rudeness, contempt and studied neglect and abuse of appellee by appellant, rendering her condition in life intolerable. Ap pellant’s motion for default judgment on a counterclaim for annulment of the marriage was denied.
Three grounds for reversal are argued. The first challenges the sufficiency of the evidence to support the court's decree. The other two are based upon assertions of error in relation to denial of appellant’s counterclaim for annulment. Appellant says that the court should have granted a default judgment on his counterclaim, and asserts that the annulment should have been granted on the basis of the evidence adduced; We shall first dispose of the grounds argued with reference to the annulment because agreement with appellant’s position would result in a determination that there was no marriage to be dissolved by divorce.
We find no error in the denial of the default judgment. It is appellant’s position that appellee defaulted by her failure to file an answer to his “cross complaint” for annulment. The chancellor ruled that no answer was required because no service was had upon appellee as a “cross-defendant.” We disagree with the basis for this holding. Appellant’s pleading labeled “Amendment to Ansiver and Cross Complaint” sought an annulment of his marriage to appellee because of her previous marriage to William Turner Jackson II subsisting since December, 1949. Nearly 11 months after the filing of this pleading, appellant moved for default judgment because of the failure of appellant to file any responsive pleading. Even though appellant consistently denominates his pleading as a cross complaint, it is actually a counterclaim in that appellant, the defendant, asserted a cause of action for affirmative relief against appellee, the plaintiff. Regardless of the label put upon this pleading, it was a counterclaim rather than a cross complaint. Ark. Stat. Ann. § 27-1123 (Repl. 1962). See Church v. Jones, 167 Ark. 326, 329, 268 S. W. 7. No service of summons on appellee-plaintiff on this pleading was necessary. Evans v. Davis, 146 Ark. 595, 226 S. W. 520; Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783. The record in- eludes a certificate by appellant’s attorney that this pleading was served upon one of appellee’s attorneys prior to its filing. This action met the requirements for service of such a pleading upon a plaintiff in an action. Ark. Stat. Ann. § 27-1137 (Repl. 1962). See also Ark. Stat. Ann. §§ 27-361, 362, 364 (Supp. 1967). An answer or’ reply to this pleading was required within 20 days. Ark. Stat. Ann. § 27-1137 (Repl. 1962). Consequently, appellee was in default. In the ordinary proceeding, this omission would have constituted an admission of the allegations of fact asserted, but not of the entitlement of the pleader to the relief sought. Johnson v. Pierce, 12 Ark. 599. It might also have entitled the pleader to judgment. See Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439; Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13. Yet, in cases involving the validity of a marriage, the public interest requires that no decree voiding a marriage be entered upon default without proof of grounds for that action. While we have not had occasion to apply this rule in the case of annulment, we have always done so in divorce cases. The reason for this rule has as much application to the former as to the latter. The following language from our opinion in Welch v. Welch, 16 Ark. 527 is illustrative:
“But had this service been regular, the decree pro confesso, was not sufficient, without evidence to sustain the allegations of the complainant’s bill, to authorize the court to decree her the relief it did, from the bonds of matrimony; because the marriage contracts in the language of one of the judges of this court, in the case of Viser vs. Bartrand, 14 Ark., at p. 282, ‘unlike ordinary contracts of business, is one which the public, as well as the individuals contracting, is interested in preserving unbroken, unless for such causes as are specially set forth in the statute, and these causes must in fact exist, and must be shown to exist by evidence. No admissions of the defendant, whether by answer or by failure to answer, will supercede the necessity of proof of the truth of the allegations in the bill. ’ And in the same case another one of the judges said {id., p. 278): ‘The marital tie, although a civil contract, in the eye of the law, differs from all other civil contracts in one essential particular. The parties can never annul it by means either direct or indirect. Hence, the inflexibile rule of law that the confession of either party are wholly incompetent as evidence. Nor does our statute, which directs that “like process and proceedings shall be had in divorce cases, {Digest, chap. 58, p. 402, sec. 3,) as are had in other cases on the equity side of the court,” or in any other of its directions or provisions, in any way alter or modify this vital rule of evidence, touching the dissolution of the marital tie. Parties, by their mutual consent, if of proper age and capacity to receive the sanction of the law, may make the marriage tie, but they can never break it, according to the rules of law, and the sound morals upon which they rest, by any express confessions, much less those implied by a default to answer a bill for divorce.’ ”
It can readily be seen that the effect of all established safeguards against collusive divorce would be undermined if we permitted a decree annulling a marriage upon default by a defendant without proof of grounds. We should not permit this result by setting a precedent through our action in this case which is certainly not collusive.
Thus, it was incumbent upon appellant to produce evidence to support his counterclaim in order to establish his entitlement to the relief he sought. Not only did he fail to do so, but he made no objection when appellee, in order to controvert appellant’s grounds for annulment, offered a certified copy of a decree of the Chan- eery Court of Phillips County, Arkansas, declaring the marriage of appellee to the father of at least two of her three children void ab initio. This decree was granted because Jackson had, at the time of this marriage, a living wife, from whom he had not been divorced. We find no reversible error in the denial of a default decree of annulment.
In spite of this appellant argues that an annulment should have been granted him because (1) appellee was not divorced from one Michael D. Ryan at the time of her marriage to appellant, (2) appellee was married to William T. Jackson II at the time of her marriage to appellant and (3) the marriage was procured by fraud on the part of appellee in concealing and misrepresenting material facts relating to her previous marriages. We find no merit in these contentions. Appellant’s argument pertaining to the Ryan divorce is based upon a provision in that decree entered October 15, 1965, prohibiting the parties from contracting marriage until 60 days after the entry of the decree and another declaring that any such marriage should be null and void. This contention is premised upon the assumption that the divorce was conditional during the 60-day period, in reliance upon the language of Chapter 95, § 6269, General Statutes of Kansas, 1909. Appellant also relies upon cases in which this statute was interpreted to mean that a divorce decree was not final and did not operate as a dissolution of a marriage until the expiration of six months from the date of rendition of the decree. In 1964, § 60-1610, Kansas Stat. Ann. was enacted. While the earlier statute made it unlawful for a party to a divorce decree to remarry, the later statute simply requires that the decree contain a provision like that appearing in the Ryan decree. The language of the Kansas decree clearly does not make the divorce granted conditional nor does it postpone its effective date. While we find no spe cific holding by the Kansas court on the subject, the clear language of the latest Kansas statute makes the decree of divorce immediately effective but imposes upon the parties a personal restraint against remarriage during the statutory period. Such a prohibition has territorial effect only, and does not render a marriage solemnized in another state in conformity with its laws invalid, in the absence of any public policy of the state of the marriage domicile or of the marriage celebration against a marriage during such a period. Loughran v. Loughran, 292 U. S. 216, 54 S. Ct. 684 (1934). 78 L. Ed. 1219. No such policy has been declared in Arkansas and the marriage in question was a legal one under the laws of this state insofar as disclosed by the record here.
The fact that Jackson’s decree of annulment of his marriage to appellee was applied for and rendered subsequent to the institution of the present proceeding does not entitle appellant to a decree of annulment. This decree, introduced without objection, contained a finding that Jackson was not divorced from one Ruby Fobs until three months after his purported marriage to appellee and that his legal wife was Erma Randle whom he married in 1956, rather than appellee whom he married in 1949 or Azalean Brown whom he married in 1964. If appellee’s marriage to Jackson was bigamous it was void from its inception, and no decree of any court was required to declare it so. Ark. Stat. Ann. § 55-108 (1947; Goset v. Goset, 112 Ark. 47, 164 S. W. 759. See also Bruno v. Bruno, 221 Ark. 759, 256 S. W. 2d 341. Because of his failure to make any objection to the admission of the decree by the trial court appellant is in no position to complain here that this decree is not binding upon him, or that it should not have been admitted into evidence.
While appellant urges that we should presume that appellee’s Jackson marriage was valid as a basis for annulment of the Smiley marriage, the prevailing presumption favors the subsequent marriage rather than the prior one. Miller v. Miller, 237 Ark. 66, 371 S. W. 2d 511; Blythe v. Blythe, 241 Ark. 768, 410 S. W. 2d 379.
Appellant did not allege fraudulent procurement of his marriage to appellee in any of the pleadings filed hy him. His present contention is based only on his own testimony that, in response to an inquiry by him, appellee told him that she was divorced. In view of our holding with reference to the marital ties of appellee to Ryan and Jackson, there was nó misrepresentation involved. Furthermore, it seems that this point was raised for the first time on this appeal.
We come now to consider the sufficiency of the evidence to support the decree of divorce. Appellee’s testimony discloses: that appellant had failed to perform his promise to add more rooms to his brick, air-conditioned, two-bedroom house to accommodate her children; that he required her to leave her children at her mother’s home, causing her to have to arise at 4:00 a.m. in order to prepare their breakfast and get them off to school; that he accused her of seeing men, fussed constantly over everything, cursed her daily, threw hot water on her while she was talking by telephone to a friend in Kansas City, hit her with a spittoon and ordered her out of the house on one occasion, accusing her of drinking bourbon. She doubted that on the several occasions that she left or was sent away she stayed away more than a total of one month out of the six between their marriage and separation. Although she claimed that she required medical attention because of appellant’s conduct, her physician did not testify. It is doubtful to say the least, that this testimony,, given its strongest probative force, constitutes clear evidence of those unavoidable and unendurable evils incapable of relief by reasonable exertion, or the settled hate and enduring alienation and estrangement, necessary to constitute the grounds on which the decree was based. See Poe v. Poe, 149 Ark. 62, 231 S. W. 198; Calhoon v. Calhoon, 209 Ark. 80, 189 S. W. 2d 644; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Disheroon v. Disheroon, 211 Ark. 519, 201 S. W. 2d 17; Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013; Welborn v. Welborn, 189 Ark. 1063, 76 S. W. 2d 98; Settles v. Settles, 210 Ark. 242, 195 S. W. 2d 59.
Even if we resolved any doubt in favor of the chancellor’s holding as to the sufficiency of appellee’s testimony, we find a lack of the necessary corroboration. Although we have recognized that corroboration may be relatively or comparatively slight where it is evident that there is no collusion between the parties, the testimony here is not even sufficient to pass this test. Her mother testified that appellee would be extremely upset when she came to the mother’s home, that because hex-daughter was taking too many pills and could hardly talk she brought her home once and that appellee’s children lived with her because there was no room for them at appellant’s house, in spite of his saying that he was going to build them a living room, bedroom and bath. Appellee’s brother drove up to the Smiley house one day and heard Henry Smiley cursing. Smiley told this witness that his sister sure was mean and had wanted him to do a whole lot of work and that he was not going to fix the house as she wanted. Another brother said that appellee was ‘ ‘ dull headed ’ ’ and didn’t know where she was when their mother brought her home. This testimony certainly is not corroborative of the cause of separation or of a settled hate, alienation or estrangement.
The evidence was not sufficient to warrant the granting of a divorce after such a brief period. The decree is reversed and the cause dismissed.
Harris, C. J., and Byrd, J., concur.
Ark. Stat. Ann. § 34-1207 (Kepi. 1962) is only declaratory of the rule recognized by this court when there was no such statute. See Viser v. Bertrand, 14 Ark. 267 at 278, 282.
No thing was said by appellant about one Henry Walker who was a “husband” acquired by appellee in 1957, according to her mother. The record abstracted discloses nothing else about this marriage. | [
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Conley Byrd, Justice.
Appellant Lawrence M. Beene was involved in a rear-end collision with appellee Myrdis D. Youngblood on Highway 65 near the Stark Gate Entrance to the Pine Bluff Arsenal. Mrs. Young-blood brought action against both appellant and her uninsured motorist insurance carrier, Northwestern National Casualty Company, for damages arising out of the collision. During the course of the trial a settlement was reached between Mrs. Youngblood and her insurance carrier and the trial proceeded against appellant. For reversal of the $5,500.00 judgment returned against him appellant relies upon the following points:
“I. That the lower court erred in not granting appellant’s motion for mistrial because the appellant had been highly prejudiced by the question concerning the issuance of traffic tickets asked by appellee in the presence of the jury.
“II. That the trial court erred in not granting appellant’s motion for .a mistrial after defendant, Northwestern National Casualty Company, had settled in the course of the trial with appellee.
“III. That the trial court erred in allowing the actuary’s testimony concerning total disability when the testimony had not established that appellee was totally disabled.”
POINT I. The record here shows that Mr. Herman Minden, the state trooper who investigated the accident, had described the conditions he found at the scene of the accident. At this point counsel for appellee asked, “Now then did you issue any tickets for anyone?” When appellant moved for a mistrial the trial court instructed the jury not to consider the question for any purpose and further directed counsel for appellee not to interrogate the witness any further about the matter.
Appellant somewhat in reliance upon Ark. Stat. Ann. § 75-1011 (Supp. 1967), argues that the question created prejudice of such nature and degree that it could not be removed by the court’s admonishment of the jury. We do not agree. In the first place, Ark. Stat. Ann. § 75-1011 refers to forfeiture of a bond or conviction as being incompetent testimony and makes no reference to arrest. In the next place the only apparent objection to the arrest by the officer is that it invades the province of the jury. In the case of Briley v. White, 209 Ark. 941, 193 S. W. 2d 326 (1946), in an almost identical situation we held that the trial court’s instruction was sufficient to remove the prejudice.
POINT II. The record shows that upon the convening of court on the second day of trial, counsel for appellant made the following motion:
“MR. MATTINGLY: The defendant, Lawrence M. Beene, was advised in chambers this morning that a settlement had been reached between the plaintiff, Myrdis Youngblood, and the defendant, Northwestern National Insurance Company, and that Northwestern National Insurance Company was no longer an interested party. The defendant, nor his counsel had been advised of any proposed settlement, nor had they agreed; therefore, the defendant, Lawrence Beene interposes an objection to the plaintiff proceeding further against the defendant, Lawrence M. Beene. I think that is about it.
THE COURT: Motion will be overruled.”
As we interpret appellant’s motion, it is nothing more nor less than an objection to any further proceeding against the defendant. It certainly does not amount to a motion for a mistrial and the record shows no objection made to any admonishment given to the jury in regard thereto. For this reason we find this point without merit.
POINT III. Appellee at no time contended that she was totally disabled. Her medical proof showed a permanent disability of 5 to 10% of the body as a whole, and nothing more. The proof of the actuary was based upon an assumption of an income of $173.60 every two weeks and appellee’s life expectancy. Upon these premises the actuary testified that it would take $63,927.25 to pay a sum of $376.13 a month for the life expectancy of Mrs. Youngblood. No objection was made to this proof until after the trial court had commenced instructing the jury, long after the witness had left the witness stand. At that time appellant moved to strike the actuary’s testimony.
As we view the record appellant’s objection came too late, Johnston v. Ashley, 7 Ark. 470 (1847); The American Workmen v. Ledden, 196 Ark. 902, 120 S. W. 2d 346 (1938); Arkansas State Highway Comm’n v. Maus, 245 Ark. 357, 432 S. W. 2d 478 (1968).
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Frank Holt, Justice.
This litigation results primarily from a disagreement as to the amount of the purchase price and the payments made upon certain lands. The appellee, mother of appellant Wm. F. Hogue, brought an action against him and his wife alleging a constructive trust and seeking reconveyance of 144 acres or, in the alternative, to recover $14,400 as the fair value of the lands which she had previously conveyed to the appellants; $500 annual rent for a period of ten years less $2,000 credit [appellee later abandoned her claim for rent;] $922.21 for her investment in a tractor; and an accounting from the appellants with respect to her cattle which she later testified to be of the value of approximately $1,800. The issues were joined by the appellants’ answer denying appellee’s allegations and specifically pleading the defenses of the statutes of frauds and limitations and asserting that the appellants had owned the lands in question since 1957. At the conclusion of the trial the chancellor approved the motions of both parties that the pleadings be amended to conform to the proof as is permitted by Ark. Stat. Ann. § 27-1160 (Eepl. 1962).
The chancellor decreed that the property was subject to a constructive trust in favor of the appellee in the sum of $8,626.92; that the appellee had the right to use and occupy the dwelling on the property for her lifetime jointly with the appellants and that if the joint use and occupancy of the dwelling should become unbearable to the appellee and appellants, then the right of the appellants must yield to the right of the appellee; that the appellee should have the right to keep her livestock on the property; that because of offsetting equities between the parties the appellee should not recover anything for the .alleged sale of her cattle or her equity in a tractor; that the parties had numerous transactions between themselves by deeds, mortgages and other business ventures, mostly for the benefit of the appellants; that all the deeds .and other transactions between the parties were inferior, ineffective, and if effective, merged into the deed dated June 6, 1966, wherein appellee conveyed the lands therein described [144 acres] to the appellants; that the consideration for said conveyance was for the amount the appellee had in her property which is the sum of $8,626.92 and this consideration is unpaid. From that decree comes this appeal.
For reversal appellants contend that the finding of the court that a constructive trust existed is not supported by the required “extraordinary burden of proof” and that no constructive trust existed without fraud at the inception. Upon a review de novo we are of the opinion that the better view is that a vendor’s lien for the unpaid purchase price, instead of a constructive trust, existed in favor of the appellee.
The appellee is 69 years of age and without any formal education. Her son, the appellant, is 44 years of age with a college education. She has four other adult children. The appellee and her husband acquired 160 acres of land in 1939. When she and her husband divorced in 1944, she acquired title to this property. At about this same time she purchased an adjoining 40 acres in the name of her son, the appellant, from an allotment made to her by him while he was in the military service. In 1957, at a time when appellants were elsewhere teaching school or in the poultry business, appellee deeded 120 acres of her property to appellants in fee simple. She retained 40 acres, which was in the soil bank, “as security.” In 1958 the 120 acres were reconveyed to appellee for the purpose of securing a $5,000 FHA loan in appellee’s name. This money was used to construct a new house on the property. In 1963 the appellee deeded to appellants her entire 160 acres. In the meantime appellants had conveyed to appellee, without her knowledge and for their own purposes, their original 40 acres. Appellee also conveyed this acreage along with the 160 acres. The appellants, who had possession of their 1963 deed, did not record it. In 1966 the appellee made another warranty deed (a correction deed she claims) to the appellants to the same property excluding, however, a 12-acre tract which appellee, unknown to the appellants, had deeded to one of her other children. Upon receipt of the 1966 deed the appellants recorded it. Shortly thereafter they recorded the 1963 deed which included the 12-acre tract. All of the deeds were warranty deeds reciting a nominal cash consideration and no encumbrances. In March 1968 the appellee filed her complaint alleging, among other things previously indicated, an unpaid purchase price of $14,400.
It appears undisputed that the appellee agreed to convey certain lands to the appellants. According to her evidence she agreed that the consideration would be for what “I’ve got in it” providing she would have a home there for as long as she lived. She testified that the appellants agreed to pay her $6,333 which, according to her computations, represented what she had in the property before the new house was built. In 1958, when the property was reconveyed to her, she borrowed $5,000 in her name for the construction of a new home according to her own plans and specifications. When the house was constructed the appellants were “supposed to pay” to her “what she paid into the house.” Further, it was the understanding that appellants were to pay her in full before they recorded their deed and that they breached their agreement by recording the deeds in 1966 before paying her the agreed purchase price. She testified and offered some receipts from the FHA that she had made payments in her name on the FHA loan to the extent of $2,293.92. She claims her 1966 deed to appellants was a correction deed for the purpose of excluding 12 acres that were included by mistake in the 1963 deed. It was understood by appellants, according to appellee’s evidence, that this 12 acres plus 4 acres, or a total of 16 acres, were to be deeded by appellee to another one of her children.
Appellee testified that appellants never “paid another penny” after they made a $500 down payment by check in April 1957. She contends they are due no credit for this $500 down payment because it was used by her, with appellants’ consent, to apply on an FHA mortgage on a tractor which appellants later acquired. She also admits that later she received $1,500 cash from the appellants. However, she testified this was used for expenses in the operation of the farm for appellants’ benefit. She testified that she first learned in 1966 that appellants were not going to perform their agreement when “he told me that I had to move several times * * * he would just say you know you cannot stay here and you know you can’t.” They further breached their agreement by refusing to “settle” with her and by filing her deeds before full payment of the agreed purchase price.
The appellants’ version is that the sale price agreed upon was $2,500 for the 160 acres. It is undisputed that they made a $500 down payment preceding appellee’s deeding to them the 120 acres in 1957. Forty acres were not conveyed to them with the understanding that it would stay in appellee’s name “as security” and that the soil bank payments derived therefrom would be applied to the purchase price “until she was satisfied she had received full payment.” Appellants testified that in 1963 the appellee deeded the entire farm to them because she was satisfied they had paid all they owed her and that she never mentioned the figure of $6,333. Further, that they never agreed appellee could have a home with them for the rest of her life. It was appellants’ position that they had never refused appellee a place to live and it was their obligation to see that she had a place to live but that this was not a part of the consideration.
It appears undisputed that there was no disagreement between the parties from the date of the original transaction in 1957 until the appellants moved onto the farm with appellee in 1966. Then family discord erupted which was further precipitated by appellee’s 1966 correction deed to appellants that excluded 12 acres from the unrecorded 1963 conveyance. It seems appellants did not object to a previous transfer of 4 acres by appellee to her daughter, the one to whom she also deeded the 12 acres.
We cannot say there is a lack of clear and convincing evidence to support the chancellor’s findings except as to the $500 down payment and the $1,500 payment made by the appellants and admittedly received by the appellee. In our view the appellants are entitled to de this $2,000 from the $8,626.92 which the chancellor found as the unpaid purchase price. This, of course, would leave a balance of $6,626.92. There are other credits and claims made by both parties. It would serve no useful purpose to detail them since the chancellor’s findings on these issues are not deemed to be against the preponderance of the evidence.
It is well established that the relation of a vendor and purchaser is essentially that of a mortgagor and mortgagee and entitles the vendor to an equitable lien upon the failure of the vendee to pay the true purchase price. Brooks v. Smith, 215 Ark. 421, 220 S. W. 2d 801 (1949); Jones, Arkansas Titles, § 76, p. 60 (1935), and the Annotated Supplement, § 103, p. 53 (1959). In the case at bar we hold that the appellee has an equitable lien to the extent of $6,626.92 upon the property conveyed to appellants by her 1966 deed.
We cannot agree with appellants’ plea that the statute of frauds and statute of limitations apply in the case at bar. The true consideration in a deed is always subject to being shown by parol evidence. Wood v. Swift, 244 Ark. 929, 428 S. W. 2d 77 (1968). As to the statute of frauds, in 48 Am. Jur., Statute of Frauds, § 552, p. 857, we find: “Where an oral contract for the sale of land has been executed by ,a conveyance of the land to the vendee in the contract, the mischief at which the statute of frauds is aimed no longer exists, and the remaining stipulations of the contract become enforceable. Where such an oral contract is consummated by the execution of a deed and its acceptance by the vendee or title has otherwise passed in execution of the contract, the vendor may, as a general rule, recover in an action upon the contract the purchase price orally agreed to be paid, # * * .” See, also, Ferguson v. The C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538 (1939) and Lindell Marshall v. I. I. McCray, et al, 241 Ark. 184, 406 S. W. 2d 863 (1966).
In the case at bar the appellants’ title, of course, is dependent upon payment of the balance of the purchase price. In such a situation appellants cannot claim the debt is barred and at the same time assert title. We have said that the statute of limitations is not applicable ag-ainst a vendor and in favor of a vendee in possession until there is an open assertion of the title which is made known to the vendor by the vendee. Jones, Anno. Supp., Arkansas Titles, § 86, p. 32; Evans v. Jeffries, 210 Ark. 807, 198 S. W. 2d 62 (1946). In the case at bar there was evidence that no open assertion of title, based upon payment of the full purchase price, was made until 1966 when appellants recorded appellee’s deed which, according to appellee, was in violation of their agreement.
Appellants contend that the trial court erred in refusing to order an amendment of the pleadings. We find no merit in this contention inasmuch as both parties moved that the pleadings be amended to conform to the proof at the conclusion of the hearing and the court granted both motions.
In the instant case, as we first indicated, there is involved primarily the amount of the purchase price and the credits and payments upon an undisputed agreement to sell the lands. It is essentially an issue of credibility involving the interested parties. In such a situation we are largely guided by the chancellor’s decision. Hickenbottom v. Masterson, 240 Ark. 418, 399 S. W. 2d 662 (1966).
The decree is modified only to the extent that a vendor’s lien exists for $6,626.92 in appellee’s favor on the lands she conveyed in 1966 to the appellants who now have the right to disehargé this lien by payment of this balance, otherwise the right of foreclosure exists.
The decree is remanded with directions to enter a decree consistent with this opinion.
Jones, J., not participating. | [
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Frank Holt, Justice.
The appellant was charged with second degree murder. The court, sitting as a jury, found him guilty and assessed his punishment at fifteen years in the state penitentiary. He did not appeal. As an inmate, he filed Avith the trial court a petition for a writ of habeas corpus Avhich was treated as a petition for post-conviction relief under our Criminal Procedure Rule No. 1. His present counsel was appointed and a hearing was conducted by the court. By written findings of fact and conclusions of law the trial court dismissed appellant’s petition.
On appeal the appellant contends that his constitutional rights, under the Fourteenth Amendment due process clause, were violated at his trial in that his attorney did not call a certain witness in appellant’s behalf. At the evidentiary hearing under Rule No. 1, the appellant’s trial attorney, who was employed by appellant, testified that in his judgment further testimony would have been of no avail in view of appellant’s damaging statements or admissions as a witness in his own behalf. The record does not show what the omitted testimony of appellant’s witness would have been. We agree with the trial court’s finding that there is nothing demonstrated “in the record to indicate how the failure to call this witness prejudiced the petitioner [appellant] in any way.” Further, we have recently said there is no denial of a fair trial where the basis of a defendant’s complaint relates primarily to his counsel’s trial tactics and strategy which involve elements of discretion and judgment upon which competent counsel might honestly disagree, especially after the event. Barnhill v. State, 247 Ark. 28, 444 S. W. 2d 97 (1969).
The appellant further contends that the trial court erred in not reducing the charge to manslaughter and that the sentence imposed upon the defendant was oppressive. We find no merit in either of these contentions. Neither was contained in appellant’s petition. Both contentions are argued for the first time on appeal. It is a most familiar rule that issues raised for the first time on appeal cannot be considered. The sentence imposed was within the limits set by the legislature and from a review of the record before us we cannot say that the evidence is insubstantial. It should also be observed that our Criminal Procedure Rule No. 1 was not formulated to permit such an attack upon a sentence which is within the statutory limits.
After a full review and canvass of the record in the case at bar we are of the view that there exists no violation of appellant’s constitutional rights.
Affirmed. | [
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Carleton Harris, Chief Justice.
Roy Wells, appellant herein, was charged with the crime of Murder in the First Degree, and the Garland County Circuit Court appointed counsel for Wells shortly after his arrest. A plea of not guilty was entered, and on the morning of the trial date, these attorneys learned that fourteen members of the regular petit jury panel had not been called as prospective jurors, the court having instructed the clerk not to call the regular members of the petit jury panel who served as jurors in the case of the State v. Tollett, a first degree murder case, which had been tried approximately one week prior to the date set for the trial of Wells. After the jury was impaneled, but prior to the commencement of the trial, a conference between court and counsel was held in chambers, the court advising that this action had been taken because of the fact that three of the fourteen jurors (two alternates being included) who heard the Tollett case, had expressed an opinion to the court after the trial of that case, indicating that a different verdict might have been arrived at if the case had been tried again. Tollett had received a two year sentence for voluntary manslaughter, and the court received the definite impression that these jurors meant, if the case had been subsequently tried, they would have given Tollett considerably more time. The trial judge stated that the Wells case was similar to the Tollett case, and that the court’s action had been taken as a precautionary effort to see that Wells received a fair and impartial trial. Counsel for the defense then objected to the refusal of the court to call the members of the regular panel who had served on that case, stating the ground of objection as follows:
“On the ground that such an arbitrary exclusion would deny the defendant his rights under the law and deny him access to the right to have those persons who sat on the case of State vs. Tollett as jurors in the defendant’s present case about to be tried.”
The motion was denied, defense counsel noting their exceptions to the ruling. On trial, Wells received a sentence of twenty-one years. The alleged error was brought forth in the motion for new trial, and after that motion was overruled by the court, an appeal was granted. Only one point is relied upon for reversal, viz:
“The court committed prejudicial and reversible error in arbitrarily advising the clerk of the court not to summons any of the jurors or alternates who had sat as jurors in the case of State vs. Tollett tried approximately one week prior to the present case.”
It might be stated that there is no contention on the part of appellant that the fourteen regular jurors were excused because of any bias or prejudice on the part of the court, the good faith of the court not being questioned ; nor is it asserted that any biased juror sat on the case. It is simply argued that the action of the trial court Avas beyond its power or jurisdiction, and that the defendant had the right to accept or challenge, either for cause or by peremptory challenge, any or all of the regular members of the jury selected by the jury commission.
We do not agree. The statutes providing for the selection of jurors and relied upon by appellant, Ark. Ktat. Ann. § 39-216 through § 39-223 (Repl. 1962), contain no language consistent Avith appellant’s argument. There is no absolute right entitling a defendant to accept or reject individual jurors from the total regular panel. This is shown by our decisions in Pate v. State, 152 Ark. 553, 239 S. W. 27, and Hallum v. Blackford, 202 Ark. 544, 151 S. W. 2d 82, and cases cited therein. The holding in those cases (and the cases they cite) was that the court did not abuse its discretion in not making-available all of the members of the regular panel. Appellant’s answer to those cases is, in effect, that justification was shown for the court’s action, while in the case before us, the action of the court was arbitrarily taken. We need not reach that question in disposing of this litigation.
In Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14, this court pointed out that we had many times held that an accused did not have the right to the services of any particular juror, and that a defendant is not in a position to complain of the composition of the jury if he did not exhaust his peremptory challenges. We said:
“Under Arkansas law [Ark. Stat. Ann. § 43-1922 (1947)], a defendant in a capital case is given twelve peremptory challenges, and, in the instant case, appellants only used eight peremptory challenges. Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to. [Citing cases.]”
Admittedly, appellant did not exhaust all of his peremptory challenges. He is thus in no position to raise the question which he endeavors to present on this appeal.
Because the peremptory challenges were not exhausted, we do not reach the issue of whether the trial court abused its discretion in refusing to summons the fourteen members of the regular panel who had previously been excused by the court.
Affirmed.
Byrd, J. dissents.
Actually, appellant was provided with a full panel of twenty-four regular jurors, the record reflecting that a special panel had been called and sworn at the Tollett trial. This panel then became a part of the regular panel. | [
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Lyle Brown, Justice.
Pursuant to a petition purportedly signed by a majority of the qualified electors of Pike County School District No. 1, the county board of education ordered District No. 1 dissolved and its territory annexed to the Kirby District in the same county. The school board members of District No. 1, acting in an official capacity, appealed to the circuit court; and that court affirmed the county board. Appellant is Pike County School District No. 1. There are two classes of appellees; there is the Pike County Board of Education, designated as appellee; and Harmon O. Davis and five other citizens of District No. 1, designated appelleesintervenors. Three points of error are asserted, each of which shall be described, and discussed separately.
School District No. 1 alleges as prejudicial error the granting of leave by the circuit court to Harmon O. Davis et al., to intervene. Davis and five others described themselves as electors and taxpayers of District No. 1; they stated that all of them favored annexation, whereas the board members of District No. 1 (intervenors’ district) opposed it; and that intervenors wished to produce evidence to sustain the order of consolidation entered by appellee, the county board of education, whereas appellant District No. 1 would introduce evidence directed to nullify the county board’s holding. Harmon O. Davis was a leader in procuring signatures to petitions favoring .annexation. In fact, Davis filed the formal petition for consolidation and annexation; and he personally appeared at the public hearing held by the county board and presented two additional petitions.
We have ample precedent wherein this court has approved the allowance of interventions in situations analogous to the one before us. For example see Ozark School District No. 56 v. Jackson, 201 Ark. 381, 145 S. W. 2d 732 (1940); and Mammoth Spring School Dist. No. 2 v. Fairview School Dist. No. 7, 190 Ark. 769, 80 S. W. 2d 615 (1935).
The second point for reversal concerns the definition of the phrase, “qualified electors,” as used in Ark. Stat. Ann. § 80-418 (Repl. 1960); there it is provided that a majority of the qualified electors must sign the petition for dissolution and annexation. Here the petition was presented to the county board for final action on September 19, 1968. Within the preceding twenty days, five persons registered to vote in the county district. The trial court held those persons not to be qualified electors as of September 19. (Amendment 51, Section 9, sets up the so-called twenty-day cutoff period for registration, during which period registration is not effective except as to elections following the twenty-day expiration.) Those five persons were removed from the total number of electors to be used in ascertaining whether the petition was signed by a majority.
The five persons in question could not have voted in an election held on September 19, 1968. Ark. Stat. Ann. § 80-418 permits dissolution either upon petition signed by a majority of the qualified electors of the district to be dissolved, or by a majority vote favoring dissolution. When either one of those procedures is used the qualifications of the petitioners and the qualifications of the voters are intended to be the same. We therefore reject appellant’s theory that any person eligible to register, and who does register, on or before the submission of the petition for dissolution, should be counted as a qualified elector. In fact, the filing of a petition for annexation has been likened to the holding of an election. In Dansby School Dist. No. 34 v. Haynes School Dist. No. H, 210 Ark. 500, 197 S. W. 2d 30 (1946), we said that by the signing of a petition changing boundaries of a school district the signers were in effect easting their ballots.
This brings us to appellant’s final contention. When this litigation was being tried, School District No. 1 questioned the right of the court to order annexation in toto; the challenge was based on the existence of a compact between District No. 1 and Glenwood School District whereby certain pupils from District No. 1 would attend Glenwood schools during the 1968-1969 school year. District No. 1 contends the trial court should have recognized the compact as binding and excepted from any annexation transfer those pupils then or afterward attending Glenwood under the compact. Neither Glen- wood District nor Kirby District is a party to this proceeding; no effort was made to join them; nor was any proof tendered on tbe status of the compact. Nothing in the record reveals the attitude of the Kirby board toward the contract. Under those circumstances the trial court was correct in holding “this issue is not ripe for ' adjudication. ’ ’
Affirmed. | [
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Conley Byrd, Justice.
Appellant Raymond Chenowith was convicted upon 10 counts of forgery and 10 counts of uttering. His only contention for reversal is that the trial court failed to conduct a “Denno’ hearing- in accordance with Ark. Stat. Ann. § 43-2105 (Supp. 1967), outside the presence of the jury before admitting into evidence certain affidavits he had signed in the presence of his attorney.
Mr. Harold Hampton, an employee of People’s Bank & Trust Co. of Russellville at the time of the occurrence, testified that he did not know how far in advance he knew he was going to Tulsa but that he knew he was going to Tulsa, because he was present when Mr. Irwin, appellant’s counsel, and Mr. Mobley, the prosecuting attorney, came into Mr. Barger’s office. (Mr. Barger is president of the People’s Bank & Trust Co.). He said that he and Mr. Irwin went to Tulsa to get Chenowith to admit forgery as far as he knew of the notes involved. Other testimony from the witness insinuated that some of the bank’s insurance was involved in the transaction. Mr. Hampton says that when they met Mr. Chenowith in a hotel in Tulsa, Mr. Chenowith went over the accounts and under instructions from his counsel signed the affidavits on the accounts that were not genuine and that on the accounts that he claimed were good he merely passed them on. There were several affidavits signed at the time.
The affidavits introduced identify the note involved by number and state that the name signed to the note is not genuine or authorized by the maker, ‘ ‘ that in fact said purported signature was affixed to said instrument by Raymond Chenowith without the knowledge or authority of the purported maker and was executed for ‘Glen’s Used Cars’ for the purpose of obtaining money and credit from People’s Bank & Trust Co. of Russell-ville, Ark. in the amount of the principal and amount reported to be due on said note.”
Ark. Stat. Ann. § 43-2105, supra, provides:
“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily. ’ ’
Under the statute and the affidavits here involved, the trial court erred in not determining the voluntariness of the confessions before they were admitted into evidence. For this reason the cause is reversed and remanded.
Reversed and remanded.
Fogleman, J., concurs. | [
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Lyle Brown, Justice.
In an accounting suit between the parties. Noah S. Peek, Jr., and wife claimed credit for sales commissions allegedly due them by Helena Chemical Company. Some of the claimed commissions were disallowed and the Peeks appeal.
Appellants based their claim for credits on three exhibits which are vital to an understanding of the questions here presented. There was a written contract executed by the parties in March 1964. Appellants contend that the court misinterpreted that contract and consequently disallowed some $33,000 in commissions. The contract is not abstracted. It was drafted in longhand and a poorly legible copy appears in the transcript, being unsatisfactorily reproduced by a phototype machine. Appellee introduced an itemized account of sales consisting of eleven pages, for which it conceded it owed commissions and which accounting was approved by the court. On appeal, appellants contend that accounting was inaccurate and refer us to a supplemental accounting which appellants introduced. Neither of those itemized accounts is abstracted. The contract and the accounting exhibits are “necessary to an understanding of all questions presented to this court for decision.” Under our Rule 9 from which we have quoted, those exhibits should have been abstracted. The same rule requires that “not more than two pages of the record shall in any instance be abstracted without a page reference to the record.” In the case before us, the testimony of key witnesses ran as high as twenty-seven, sixty-one, and ninety-three pages; yet in each of those instances the abstract makes only two page references to the transcript. The size of the record in this case— three volumes containing 700 pages — emphasizes the value of the required frequent reference to transcript pages.
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Conley Byrd, Justice.
This is a boundary dispute between appellants Perry N. Burkhart, Mary I. Burk-hart, and Donnie S. Burkhart and appellees Billy Don Watson and Peggy Watson, his wife. The boundary involved is the north-south half section line between the NE!4 of the SW% and the NW% of the SEV4 in Sec. 27, T 10 N, R 31 W. Appellants introduced as witnesses Ben Taylor, Jr. a forest ranger and former owner of the property; Jack Carney, a business man and farmer who owns land adjoining appellants’ property on the south; Elmer Kelly, who formerly owned the land in question; Homer Bourland, a former county surveyor; Dominic Leraris, a professional engineer and land surveyor, and appellant Perry N. Burkhart. All of these witnesses located the southwest corner of appellants’ tract at or close to 4 or 5 gum trees, lining up with a drainage ditch on the west side of the Carney property. Appellees on the other hand introduced as witnesses Clovis Satterfield, the Crawford County surveyor, whose survey ran some 30' or 40 feet east of the gum trees; Don Wofford, a prior owner of appellees’ property who testified about the location of an old road; and Edward Kelly, a brother of appellants’ witness Elmer Kelly, who testified that his father dug the drainage ditch so often referred to, and dug it west of the north-south boundary line between the two quarter sections. The learned Chancellor, after hearing the testimony and viewing the premises, wrote a memorandum opinion explaining his understanding of the parties’ contentions, why the controversy arose, and found the facts contrary to appellants’ views and in favor of appellees. On the record here made, we are not in a position to say that the Chancellor’s findings are contrary to a preponderance of the evidence.
Appellants also contend that the Chancellor erred in failing to recognize an old fence as the boundary line by long acquiescence. As we read the testimony of the surveyors both for appellants and appellees, the area involved is not fenced. There is a fence commencing at the center of the section which was described by surveyors Leraris and Satterfield as being on the line for a part of the distance but then veering off to the west. Therefore since the witnesses admit that there is no fence between the boundaries of the two properties involved and since the surveyors recognized that at some point the fence commencing at the center of the section veered off to the west, we are not in a position to say that the trial court erred in failing to recognize the fence line, as it existed, as a boundary.
Appellants also urge that the Satterfield survey is contrary to those made by other surveyors, according to the testimony of the witnesses. The record does not show the other surveys or under what circumstances they were made. It appears to us that the location of the boundary was at most a fact question and on the total evidence we are unwilling to say that the Chancellor’s finding is contrary to the preponderance of the evidence.
Affirmed. | [
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PER CURIAM.
'This is the second attempt by the Arkansas Bar Association to obtain an order of this court integrating or unifying the bar of Arkansas. In the earlier instance petitions for integration, signed by a substantial majority of the actively practicing lawyers in the State, were filed. After the announcement of our preliminary order granting the petition the Bar Association reversed its position in the matter and adopted a resolution opposing integration. A poll then taken by the court resulted in a vote of 489 for integration and 1,003 against ,it. We therefore rescinded our order and denied the petitions. In the Matter of the Integration of the Bar, 222 Ark. 35, 259 S. W. 2d 144 (1953).
In substance the earlier procedure was followed in the present instance. The executive committee of the Bar Association first filed a petition asking for an order approving the unification of the bar. A proposed constitution and by-laws were also submitted. Those documents, together with briefs for and against the proposal, were mailed by the Bar Association to all licensed members of our bar.
Thereafter we again took a poll of the lawyers. Of about 2,600 licensed attorneys there were 1,714 valid votes, as follows:
Attorney’s Category For Against Total
Active Resident Lawyer 610 597 1,207
Active Nonresident Lawyer 9 6 15
Inactive Resident Lawyer 95 183 278
Inactive Nonresident Lawyer 111 103 214
825 889 1,714
It will be seen that slightly less than a majority of the votes were cast in favor of unification and that those favoring the proposal constituted only about 32% of the 2,600 licensed lawyers. Regardless of the merits of the proposal, about which we need express no opinion, we are unanimously of the view that the organization would have little chance of success with such a small part of the bar sufficiently interested in it to cast a favorable vote. The petition is therefore denied. | [
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Frank Holt, Justice.
This appeal results from granting appellees’ motion for a summary judgment. For reversal appellant contends that the pleadings and evidence constituted justiciable issues of fact for a jury.
Appellant brings this action, as next friend, to recover damages for permanent injuries sustained by her ten-year-old son, Edwin, when he was struck in the eye by a sky rocket discharged by appellees’ eleven-year-old child, Darrell. Appellant alleged in her complaint that the appellees were negligent in allowing their minor child to be in possession of the sky rocket, an inherently dangerous instrumentality; in permitting him to discharge or explode the sky rocket without any supervision and in violation of the law. The appellees answered with a general denial and alleged certain affirmative defenses. Interrogatories, answers, and other pleadings were filed, including depositions of the parties. Thereupon appellees filed their motion for a summary judgment on the ground there existed no disputed material issue of fact. The appellant responded, urging that the pleadings and depositions constituted a material fact question of negligence.
The facts appear largely undisputed. The appellant’s and appellees’ children often played together as neighbor children as they were doing on the day of the alleged injury. The appellee, Sherrell Shaver, had previously purchased a variety of fireworks for a Fourth of July celebration at which time he took his children outside the city and personally discharged some of the fireworks for their entertainment. He stored the remainder on a shelf in a utility room adjoining his carport. He instructed his children, who knew where the remaining fireworks were, not to use or play with them under ■any circumstances; admonished them that they were dangerous; that the use of them could result in harm or burn the house; that it was a violation of a city ordinance to use them inside the city limits; and that the fireworks should be left there until the next Fourth of July. About seven months later, appellee Shaver was in his house watching television when he learned that his eleven-year-old son, Darrell, had removed from the unlocked utility room a small sky rocket and discharged it after placing the bamboo stick end into the ground and pointing the rocket at his neighbor’s house. The projectile traveled 15 to 18 feet when it struck Edwin in the eye as he unexpectedly came around his father’s house. Appellees’ child, Darrell, who discharged the rocket, had never, before disobeyed his father’s warning about the use of the fireworks. He was described as a normal child for his age except that “he was a pretty hard-headed boy though.”
. Counsel for the appellees ably and forcefully argues that the motion for summary judgment was properly granted under the fact situation in the case at bar and to hold otherwise would be an unreasonable extension of the principles enunciated in the recent cases of Bieker v. Owens, 234 Ark. 97, 350 S. W. 2d 522 (1961) and Williams v. Davidson, 241 Ark. 699, 409 S. W. 2d 311 (1966). In Bieher we said that a parent could be liable for his child’s misconduct where the parent had the opportunity and ability to control the minor child, a knowledge of the tendency or proclivity of the child to commit acts which could normally be expected to injure others and then failed to exercise reasonable means of controlling the child. In Bieker the offending child had demonstrated on several occasions a propensity to assault others with his fists. In Williams the offending child had on one occasion, misused a BB gun which was kept accessible to him and there we said that a jury question of parental liability existed.
Appellant contends that the criteria in Bieker are not exclusive, particularly as to known past misconduct. Appellant asserts that when the whole of the circumstances in the case at bar are considered,.a fact situation exists for submission to a jury which, is consonant with our most recent pronouncement of- parental 'responsibiP ity in Williams v. Davidson, supra, where disobedience had occurred only once. Both appellant and appellees cite authority to support their views, as to the extent-df parental liability for the misconduct or- negligent acts of a child. However, neither have cited to us, nor does -our research reveal, a case -that involves an- injury resulting from the use of a sky rocket as in the case at bar. In this ease we think the better reasoned view is that the pleadings and the evidence'present' material' questions of fact for the jury to determine and, therefore, a basis for a summary judgment does -not properly exist. - •
We have often said that a motion for a summary judgment is an extreme remedy and that the burden of demonstrating the non-existence of a genuine' issue of fact is upon the party moving for the summary judgment and, further, when the evidence, although‘ not in material dispute, reveals aspects from which' inconsistent hypotheses might' reasonably be drawn- and reasonable -men might differ, then a summary judgment is not proper. Deltic Farm & Timber Co. v. Manning, Adm’x, 239 Ark. 264, 389 S. W. 2d 435 (1965). Any evidence which is submitted with a; motion for summary judgment must be viewed in the light most favorable to the party against, whom the. judgnient is made and with all doubts and inferences being resolved against the movant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).
In the case at bar we think justiciable, issues of, fact exist when we consider .the circumstances: as a, whole. These circumstances include the fact that, the .appellee parent purchased a variety of fireworks, used part of them with his children on: a Fourth of July and with their knowledge, stored the -remainder in á utility room which was unlocked part of the time during a seven-month interval; that foreseeable harm to person and property by the use of the fireworks was apparently recognized when he admonished his children not to use them under any circumstances; and that any use within the city limits was in violation of a city ordinance. The age and immaturity of the offending child and the nature and attractiveness of the article discharged by him are other factors to be considered. It is significant that the public, acting through its city council, as well as our state legislature [Ark. Stat. Ann. § 82-1701, et. seq. (Supp. 1967)], has deemed it necessary to prohibit or regulate the possession and use of fireworks.
We cannot say that a jury should not be permitted to consider evidence in support of the allegations in appellant’s complaint as to appellee Sherrell Shaver. However, the record shows without contradiction that his wife, Anita Shaver, had no knowledge of the existence or use of the sky rocket. The summary judgment of dismissal is reversed as to him and affirmed as to her. It is so ordered.
George Bose Smith, Jones and Byrd, JJ., dissent. | [
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Carleton Harris, Chief Justice.
From 1955 to 1967, appellee Harold E. Scroggins leased from the appellant, M. L. Sigmon Forest Products,. Inc., by written agreement, certain lands known as the Florence Farm, consisting of approximately 1,000 acres in Drew County, Arkansas. This land was suitable, and was used, for the production of rice and other agricultural products. On January 18, 1967, appellant, hereafter sometimes called Sigmon, and Scroggins entered into a new written lease, which provided, inter alia:
“Lessor hereby leases and lets to Lessee for a term of two (2) years commencing on the 18th day of January, 1967, the following described lands lying and situated in Drew County, Arkansas, to wit: [description of lands follows].”
Certain covenants were entered into by the parties which are not at issue in this litigation. The lease provided that, for rental, lessee would pay one-half of the rice and one-fourth of all other crops grown on the lands.
On December 13, 1968, by registered mail with return receipt requested, the company wrote Scroggins, advising appellee that the lease agreement, under its terms would end on January 18, 1969, and that appellant would expect to take full possession of the farm on that date. Mrs. Scroggins signed the receipt on December 16, 1968. Thereafter, on December 30, Scroggins filed a complaint in the Chancery Court of Drew County, alleging that he was a tenant for years under the lease agreement, and was entitled to six months’ written notice of termination, with such notice to end with the rental period in 1971. It was further asserted that Scrog-gins had done substantial work in preparing the lands for the 1969 crop year; that more than six months prior to January 18, 1969, appellee had attempted to ascertain from the company whether the lease would be continued or terminated, but without success. It was further asserted that the annual rental value of the farm was $30,000.00, and that Sigmon should be enjoined from taking possession of the Florence Farm or interfering with appellee’s possession. On the day of the filing of the complaint, a temporary restraining order was issued against .appellant, its officers, agents and employees, enjoining them from trespassing upon said lands, or from interfering in any manner with appellee’s possession, pending a final hearing, the order, however, being conditioned upon the furnishing of a $30,000.00 bond by appellee; this requirement was complied with on the same date.
On January 17, 1969, Sigmon answered the complaint and counterclaimed, asserting that the lease agreement definitely fixed the time that the lease was to terminate, and that no notice from Sigmon to Scrog-gins was necessary, even though appellant had given a written notice demanding possession of the lands on January 18, further, that Scroggins was:
“* * * willfully holding over the lands described in said lease agreement after termination date thereof and 30 days’ previous written notice-to quit given by defendant to plaintiff requiring possession of said lands by defendant, which conduct and action on the part of plaintiff entitle defendant to recover double the annual rent for such lands.”
Thereafter, Sigmon moved for a summary judgment, supported by the affidavit of Glenn M. Cooper, president and chief executive officer of appellant company, setting out the execution of the lease, and attaching a copy thereto; further alleging that the value of the crops grown on the leased land as one year rental was $30,000.00. The affidavit further set out that the lease agreement had expired, and that no other agreement, written or oral, had been entered into between the parties; that the notice, previously mentioned, had been sent to Scroggins, who had received it on December 16. Finally, the affiant stated that he was entitled to receive double the yearly rent of the lands for all of the time lessee should keep him out of possession by the willful holding over after the termination of the lease. Appellee responded to the motion, alleging that there were genuine issues as to material facts, and the response was supported by the affidavit of Scroggins, In such affidavit, Scroggins stated that the value of the crops grown on the leased lands as one year rental was approximately $30,000.00; that the lease agreement contained no provision for the termination of the lease, and no provision regarding the giving of notice, written or oral. It was stated that Scroggins was entitled to six months’ written notice, rather than the lease automatically ter minating at the end of the two-year period; further, that substantial work in preparation of the land for the 1969 crop year, and the purchase of seed, fertilizer and supplies, had already been accomplished, which would be for naught if Sigmon were allowed to take possession. Finally, Scroggins stated that he had endeavored to ascertain the intentions of the company more than six months prior to January 18, 1969, but the president of appellant company had failed and refused to advise of its intentions.
The court, acting upon the motion, responses, the affidavits, and exhibits thereto, found that the lease was for a term certain; that the appellee was not a holdover tenant prior to the expiration of the same, and thus yas not entitled to six months’ notice to quit; however, the court added:
“* * * That notice by Sigmon to Scroggins of the termination of said lease was unnecessary, but with Scroggins remaining in possession of the demised premises, claiming a right therein under the lease, it was necessary that Sigmon give the three days notice to ‘quit and surrender possession’ under Section 34-1503, of the Statutes of Arkansas to formally terminate said lease and end the landlord-tenant relationship existing between the parties.”
A decree was entered, making permanent the temporary restraining order of December 30, 1968, “until such time as the landlord and tenant relationship between the parties is terminated by proper notice and action.” The decree further released Scroggins and his bondsmen from liability upon the bond for injunction filed in the amount of $30,000.00. From such decree, appellant brings this appeal. Appellee cross-appeals, contending that there are genuine issues, material to the case, which should be determined by testimony.
The court was in error in the conclusions reached. In the case before us, ah estate for years was created by the lease. In 32 Am. Jur. Landlord and Tenant § 61, we find:
“An estate for years has been defined as an interest arising from an agreement or contract for the possession of lands or tenements for some definite period. Every estate which must expire at a period certain and fixed in advance, by whatever words created, is an estate for years. A lease for years has been defined as a contract between the lessor and lessee by which the lessor contracts to grant the possession and enjoyment of land, or hereditaments of a demisable nature, for a period of years certain, and in most cases, the lessee agrees to render to the lessor a rent in money, or any other kind of payment, at the end of stated periods of a year or more, during the term.”
Also, it is pointed out in Section 993:
“At common law and under statute, a notice to quit is necessary to terminate periodic tenancies, such as those from year to year or month to month, and such statutes are frequently made applicable to tenancies at will, and with respect to the maintenance of certain actions and proceedings, such notice is essential. The reason of the requirement is the indefiniteness and uncertainty of the duration of such a tenancy and the protection of each of the parties thereto against capriciousness on the part of the other. When, however, the parties have by agreement fixed the time for. the lease to terminate, notice to quit is unnecessary because the reason for it ceases.”
The same view is expressed in 510 O. J. S. Landlord and Tenant § 89(3)a.:
“In the absence of a statute or provision in the lease to the contrary, no notice of termination or notice to quit need be given by the lessor in order to terminate a lease for a term of years or other definite period, nor need any notice of termination or of intention to quit be given by the lessee.”
Numerous other authorities are to the same effect. Accordingly, there was no necessity that Sigmon give Scroggins any notice at all. It may be that appellant, through its officers, contemplated that Scroggins might not surrender the premises, but would hold over, and the notice was sent as a matter of complying with Section 50-509, hereafter set out, or it may be that the notice actually was only in the nature of an accommodation or courtesy, i. e., to let Scroggins know that appellant intended to take possession of the lands. Be that as it may, there is no reason, legal or otherwise, why appellant should be penalized for giving the notice; certainly, appellee was not prejudiced thereby, and we are unable to agree with the trial court that this written notice given under Section 50-509, had the effect of continuing the landlord-tenant relationship between the parties on the basis of “a tenancy at will, sufference or year to year.” Ark. Stat. Ann. § 50-509 (1947) provides as follows:
“If any tenant for life or years, or if any other person who may have come into possession of any lands and tenements under or by collusion with such tenant, shall wilfully hold over the same, after the termination of such term and thirty [30] days’ previous notice in writing given, requiring the possession thereof, by the person entitled thereto, such person so holding over, shall pay to the person so kept out of possession double the yearly rent of the lands or tenements so detained, for all the time he shall keep the person entitled thereto out of possession.”
The giving of the 30 days’ notice before the filing of the suit (in order to claim double damages) was not necessary in the instant case for the reason that the complaint was filed by appellee on December 30, and in answering, it was necessary under our statute, Ark. Stat. Ann. § 27-1121 (Eepl. 1962) that appellant file any counterclaim that it might have, or be thereafter barred. See also Pettit v. Kilby, 232 Ark. 993, 342 S. W. 2d 93. We hold that, under the terms of the lease instrument, no notice was necessary, and that, under Section 27-1121, no 30 days’ previous notice was necessary in order for appellant to seek double damages.
There is, however, one fact definitely left for determination. Section 50-509 provides that one who willfully holds over, thus preventing possession to the person entitled thereto, shall pay the person so kept out of possession double the yearly rent of the lands detained for all the time he shall keep the person entitled thereto out of possession. This record does not reflect for how long the appellant has been, or will be, kept from possession, and this fact will have to be determined at another hearing. Also, while there is nothing in the record before us which reflects that appellee acted in good faith in not surrendering the premises, inasmuch as the case is being remanded anyway, we think it proper to permit Scroggins to offer competent evidence of his reasons for withholding possession. In Lesser-Goldman Cotton Company v. Fletcher, 153 Ark. 17, 239 S. W. 742, this court pointed out that, under the statute :
“* * * to entitle the landlord or lessor to double rents after the termination of the lease term, the holding over by the tenant must be done wilfully. The stat ute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right to do so, even though he were mistaken, is not a wilful or contumacious holding under the statute, where the undisputed facts show, as they do here, that there were reasonable grounds for such belief.”
The decree is reversed and the cause is remanded for the determination of the two issues mentioned.
It is so ordered.
Referring to Section 34-1503, the court said:
“* * * This notice was not given, but notice under Section 50-509, supra, was given by Sigmon to Scroggins. This notice had the effect of continuing the landlord-tenant relationship between the parties on a basis of a tenancy at will, sufferance or year to year. That in default of notice under Section 34-1503, supra, with notice being given under Section 50-509, supra, and Sigmon not pleading for possession of the demised premises, the tenancy existing between the parties should be protected and the possession of Scroggins preserved by injunction.”
Appellee asserted that he did not receive the notice until December 19- While the receipt was signed by Mrs. H. E. Scrog-gins, there is no absolute showing that this was appellee’s wife.
The court was referring to Section 6557 of Crawford and Moses Digest, which is identical with Section 50-509. | [
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J. Fred Jones, Justice.
James Ayers was convicted of negligent homicide on circumstantial evidence in the Hot Springs Municipal Court and was sentenced to one year in the county jail. His conviction was affirmed on appeal to the Garland County Circuit Court and he has appealed to this court, relying on the following points for reversal:
“The court erred in overruling defendant’s motion to dismiss as the state’s violation of criminal procedure had substantive effect.
The court erred in overruling the defendant’s motion to exclude evidence including the blood test and other evidence solicited by the police officer from the defendant while in police custody.
The court erroneously permitted the arresting officer, George Riggs, to testify as to his conclusion as to the point of impact.
The court erroneously overruled the defendant’s motion foi judgment at the conclusion of the state’s case.
When the trial court proceeds from clarification to development of the state’s case, at that point the court becomes an advocate and at that point reversible error has been committed.
Reasonable hypotheses were not excluded and the conviction of the defendant was, therefore, at best, a guess.”
Since we must reverse on appellant’s fourth and sixth points, we shall not discuss the others.
The record reveals the following facts: About midnight on December 19, 1968, a 1963 Thunderbird automobile, being driven by Ayers, collided with a 1954 Pontiac automobile being driven by E. G. Beckwith. Both drivers were taken to a hospital in Hot Springs, but Beckwith was dead upon arrival. Ayers was charged with negligent homicide under Ark. Stat. Ann. § 75-1001 (Repl. 1957) which provides in part as follows:
“(a) When the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless or wanton disregard of the safety of others, the person ' so operating such vehicle shall be guilty of negligent homicide. ’ ’
The record is not as clear as it might have been as to the exact location of the scene of the collision in relation to the city limits of Hot Springs, but it occurred in Garland County apparently on a two-lane section of new Highway 70 leading east from Hot Springs toward Lonsdale, Benton and Little Rock. From the exhibited photographs of the scene of the collision, the highway is plainly marked by a double stripe painted in the center of the blacktop pavement dividing the two traffic lanes from each other and by a single stripe along the outside edge of each traffic lane, dividing it from the gravel shoulder of the highway.
There is considerable difference in the rules of evidence pertaining to criminal prosecutions as distinguished from civil actions. In a criminal prosecution, the accused remains innocent until proven guilty and the entire burden of proof rests on the state to prove the accused guilty beyond a reasonable doubt. In civil actions, the greater weight, or preponderance of the evidence, rule applies. Circumstantial evidence, as well as direct evidence, comes within the same rule.
In Nichols, Applied Evidence, vol. 2, §§ 11, 13 and 24, at pages 1066-1069, the differences in the rule as applied to criminal and civil cases are well pointed out, as follows:
(In criminal prosecutions).
Ҥ 11. ... In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypotheses than that of guilt. When the circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient to support a conviction. Where circumstantial evidence is relied on for a conviction, it is not sufficient that it raises a mere suspicion of guilt, but it must establish facts inconsistent with innocence. This rule as to the sufficiency of circumstantial evidence to sustain a conviction is applicable to misdemeanors as well as felonies.
§ 13. ... To warrant a conviction on circumstantial evidence alone, the same degree of certainty is required as where the evidence is direct, namely, the evidence must satisfy the jury beyond a reasonable doubt.
(In civil cases).
§ 24. ... Circumstantial evidence in a civil case need not rise to that degree of certainty which excludes every reasonable conclusion other than the one arrived at by the jury. Circumstantial evidence in a civil case need only produce moral certainty in an unprejudiced mind; and where it furnishes support for plaintiff’s theory, and tends to exclude any other theory, it is sufficient to support a verdict for him. Where plaintiff’s case rests on circumstantial evidence, the circumstances must not only be consistent with his theory, but, when weighed with the opposing evidence, must have more convincing force substantiating the theory contended for, from which theory it results that the greater probability is in favor of the party upon whom the burden rests. When rights of parties depend on conflicting testimony, there is often as much evidentiary weight in lack of circumstances as in positive proof.”
In 20 Am. Jur., § 1217, Circumstantial Evidence, at page 1069 is found the following:
“Where circumstantial evidence is relied upon in a criminal prosecution, proof of a few facts or a multitude of facts all consistent with the supposition of guilt is not sufficient to warrant a verdict of guilty. In order to convict a person upon circumstántial evidence, it is-necessary not only that the circumstances all concur to show that the prisoner committed the crime and be consistent with the hypotheses of guilt, since that is to be compared with all''the facts ' proved, but that they be -inconsistent with'any-other-rational conclusion arid exclude every other reasonable theory or hypothesis except that of guilt. The facts proved must be' consistent with each other and with the main fact sought to be proved. A reasonable doubt must be resolved in favor of the accused where a fact or circumstance is susceptible-of two-interpretations. If the circumstances tending-to show the guilt of the accused are “as consistent with' his. innocence as with his guilt, they are insufficient. In order to convict a.person of a crime, the facts must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. ’ ’
This-court has oh more than one occasion stated the rule on circumstantial evidence in criminal cases to be, as follows: • -
^ [W] here circumstantial evidence alone is relied . .upon to establish guilt of one charged with a crime, such evidence must exclude every other reasonable •hypothesis but the guilt of the accused." Turner v. State, 192 Ark. 937, 96 S. W. 2d 455; Logi v. State, 153 Ark. 317, 240 S. W. 400; Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458.
“ A. conviction resting upon evidence which fails to come up to' the standard prescribed by law is contrary to law, and it is the duty.of the-court to set aside the verdict.’’ Logi v. State, supra.
>" With this rule in mind, and viewing the evidence in the light most favorable to the state, we now- examine the evidence for a determination of whether there, was any substantial evidence that Mr. Beckwith’s death was the proximate result of Mr. Ayers driving his vehicle in a reckless or wanton disregard for the safety of others.
It was stipulated that chemical tests revealed that both drivers, the deceased and the appellant, had 0.15 per cent by weight, of alcohol in their blood upon examination at the hospital following the collision. In connection with the offense of driving under the influence of alcohol, Ark. Stat. Ann. § 75-1031.1 (A) (3) (Supp. 1967) provides:
“If there was at that time 0.15 percent or. more by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor.”
The stipulation as to chemical analyses and the statutory presumption speak with equal force for both drivers as to their being under the influence of intoxicating liquor.
No one testified as an eye witness to the collision. The only evidence that either vehicle was being driven in a reckless or wanton disregard of the safety of others, at the time of the collision, was the circumstantial evidence consisting of debris and marks on the pavement, tending to prove that the two automobiles came together with the point of impact being about two feet north of the center line, in the west bound traffic lane of the highway. The physical damage to the left fronts and sides of both automobiles would be circumstances tending to prove that they were traveling in opposite directions at the time of the collision, but the conflicting evidence as to the directions the respective automobiles may have been traveling leaves the hypothesis to be drawn from all the evidence subject to surmise and conjecture. There is no direct evidence as to the direction either automobile was traveling at the time of the collision.
Laura Dawson, a witness for the state, testified that she lived at Benton and that she and Jerry Emory were passengers in the automobile being driven by the appellant at the time of the collision. She testified that they had. gone to Little Rock about 8:30 or 9 p.m., earlier in the evening, and that the appellant had driven in a normal manner within the legal speed limits with nothing erratic about his driving, both to and from Little Rock. She testified that she was asleep at the time of the actual collision. Miss Dawson testified under cross-examination, ,as follows:
“Q. And where were you going on the night of the occasion on the return trip?
A. We was going to Hot Springs.
Q. Were you going anywhere after Hot Springs?
A. Yeah, we was going to Oklahoma.”
Under examination by the court Miss Dawson testified that she and the appellant had two or three beers, but she doesn’t say when nor where, except that the appellant “had one at the corner, then we had one down at Cliff’s.” She testified that she does not know what time the collision occurred, that she was asleep and that Emory said he was also asleep at the time of the collision.
Mr. E. H. Bradley testified that he was operating the Darby Service Station on East Grand Avenue in Hot Springs on the night of the collision. He testified that about fifteen or twenty minutes before midnight he observed a white Thunderbird automobile with Oklahoma license at his service station.
“Q. What was the — what did this Thunderbird do that you saw sir?
A. It darted in my driveway and then it never did pull into the pumps, it pulled back out on the highway and started on east.
Q. Did you notice anything peculiar about the manner in which the car was—
A. It was wobbling.
Q. Did it hit the curb or anything?
A. Yes, sir.
# * #
Q. How many people did you observe in the car, sir?
A. Two in the front. The driver and one girl.
Q. Did you take a very good look at it so you could identify the people in the car?
A. Not positively, no.”
Mr. Bradley testified that he later heard an ambulance siren and that about 12 o’clock he closed the service station and drove out the highway to where the collision had occurred. He does not say how far it is from hi's filling station to the scene of the collision, but he testified that the appellant’s Thunderbird automobile looked like the same one he had seen at his filling station. Mr. Bradley testified that he only saw two people, the driver and a girl, in the Thunderbird automobile at his service station, and Mr. Bradley was very positive in his testimony that the girl had blonde hair. Miss Dawson testified that she had dark brown hair on the night of the collision and that she was not wearing a blonde wig.
George Riggs, a trooper with the Arkansas State Police, testified that he was traveling east on the highway and came upon the scene of the collision. In part of Ms testimony Trooper Riggs referred to a diagram he had drawn on a blackboard and this portion of his testimony is difficult to follow in the record before us. Trooper Riggs concluded from Ms investigation, however, that the appellant was traveling in the east bound lane, crossed over the center line and collided with the decedent Beckwith’s automobile. There is.no evidence whatever as to where Mr. Beckwith had been or where he was going at the time of the collision, and there is no evidence at all, except that deducible from the testimony of Trooper Riggs, that would indicate the direction Mr. Beckwith was traveling or the traffic lane he was using at the time of the collision. Considering the testimony of Trooper Riggs so important to the hypothesis that may reasonably be drawn from all the evidence, we copy from the record in some detail, as follows:
“Q. Would you tell the court what you found at this accident?
A. I found a 1963 Thunderbird bearing Oklahoma license setting kind of on an angle across the east bound traffic lane and a ’54 Pontiac bearing Arkansas license off of the highway on the north side. There was a—
Q. What highway was this?
A. Highway 70, the new Little Rock highway. There was a wheel off of the Pontiac laying in the highway in the west bound lane and there was a man laying partly on the shoulder and partly in the west bound traffic lane. There was heavy debris in the west bound lane, and drag marks on the dirt from the Pontiac back up on the highway and a gouge mark from where the vehicle, where the drag marks came onto, the highway there was a gouge mark on the blacktop back up into the west bound lane.
THE COURT:
Q. Is this thing over here a diagram of this" situation ?
A. Yes, sir.
MR. CALLAHAN:
Yes, sir.
THE COURT:
Who drew it?
A. I did.
THE COURT:
Are you saying this ear on the bottom lane is Mr. Ayers’ ear?
(Trooper Riggs went to the blackboard where there was a drawing on the board)
A. Yes, sir, this vehicle is the Thunderbird and this vehicle No. 2 is the Pontiac.
THE COURT:
Thank you.
A. The drag marks in the dirt from the Pontiac came back up to the highway, the gouge mark came up in the west' bound lane to within about, 2 feet of the center line. The wheel from the left front of the Pontiac was in the west bound lane and the man was laying face down with his head north on the west bound shoulders. And there was debris scattered from this area all the way down to the other vehicle, to the Thunderbird.
* & #
A. The left front wheel of the Pontiac was knocked off apparently hy the impact and the car went down to the pavement and scratched it and that scratch starts about two feet inside the west bound lane and extends to the shoulder where the vehicle when it left the black top dug up the dirt and carried it where it slid to a stop.
Questions by the court :
Q. From the physical evidence and the debris, et cetera, which directions were these cars going?
A. From the way the Pontiac bopped the highway when it went off the Pontiac was traveling west and the Thunderbird east.
M. ¿¿, ” vT* “
A. ... in my opinion the evidence at the scene indicated that the Thunderbird was across the center line.
# # #
Q. Now, I will ask you as a matter of fact Mr. Riggs in the majority of accident investigation in which there has been a head-on collision, is it not the ordinary course that the cars end up past each other, that is the majority of investigations?
A. This is not a head-on collision.
Q. This is not a head-on?
A. It’s not a direct head-on collision.
Q. It was a glancing blow in your opinion?
A. In my opinion.
THE COURT:
Gentlemen, the pictures show what happened here, let’s get on with this case. I don’t know what the point of all this is.
MR. MATTHEWS:
Q. As a matter of fact there was some discussion about speeding a minute ago, does not your accident report reveal and so state that if in fact Mr. Ayers’ car was traveling in the east bound lane that it was knocked backwards some 132 feet by Mr. Beckwith’s car?
A. That’s where it was setting.
Q. Well does not your accident report so state?
A. Yes, sir.
Q. That Mr. Beckwith’s car knocked Mr. Ayers’ car backward some 132 feet and this is without the wheel on?
A. What now?
Q. I believe you said that the left front wheel of Mr. Beckwith’s car was knocked off in the accident is that correct?
A. That’s right.
Q. Now does this not indicate speed to you on Mr. Beckwith’s part if in fact it was the car in the west bound lane?
A. The damage was equally severe to both vehicles.
Q. But as it turned out Mr. Ayers car was knocked back 132 feet, is that not correct? From the approximate place of impact.
A. Yes, it was.”
State’s exhibit “A” is a picture of the Thunderbird automobile with. heavy damage indicating a crushing impact to its left front fender and wheel, with the damage extending back to the left door. State’s exhibit “B” is a front view picture of the Pontiac showing extensive damage to the entire left side. The left front fender and wheel appear to have been sheared off or crushed in, from even with the left side of the hood to the rear of the automobile.
State’s exhibit “C” and “D” are pictures of the highway apparently looking west. These exhibits show .skid, or “gouged” marks and debris from a point where an automobile wheel is lying on the west center line of the highway and leading in a westerly direction across the north shoulder of .the highway to where the Pontiac came to rest headed in a northwesterly direction just off the north shoulder of the highway. What appears to be the Thunderbird automobile.is shown in exhibit “C” just off the pavement some distance west of where the Pontiac left the highway. In exhibit “D” the Thunderbird is shown to be still on the pavement in the east bound traffic lane, headed in a southeasterly direction, and some distance (132 feet according to Trooper Biggs’ testimony) west of where the Pontiac left the highway.
Mr. Beckwith is dead and Mr. Ayers stands convicted in two courts of causing Mr. Beckwith’s death by driving his automobile - in a negligent or wanton disregard for the- safety of others. Mr. Ayers knows whether his drinking and driving killed a man on the highway and the trial court may be, and obviously was, satisfied in his own mind that Mr. Ayers committed a negligent homicide, The question before us, however, is whether the state proved Mr. Ayers guilty of the erime for which he is charged, under the rules of evidence applicable to circumstantial evidence in a criminal case. We .are forced to the conclusion that the state has not met that burden.
The criminal negligence in this case falls most heavily on the driver who crossed the center liné of the highway, and the evidence in the record before us would require surmise and conjecture for a determination of which driver crossed the center line.
If the automobile Mr. Bradley saw in his service station was the appellant’s automobile, then the appellant would have been driving in the east bound lane if he continued east after leaving the station. If the appellant was on his way from Little Rock to Hot Springs, as Miss Dawson testified he was when the collision occurred, he would have been traveling the west bound lane toward Hot Springs. One version is as good as the other on this point. The girl in the automobile Mr. Bradley saw had blonde hair. Miss Dawson testified that her hair was dark brown and that she was asleep when the collision occurred. Apparently, no one else saw or talked to Miss Dawson or the other passenger, Mr. Emory, on the night of the collision, and apparently no one ever inquired as to where Mr. Beckwith had been or where he was going, or the direction he was traveling when the collision occurred. Trooper Riggs only surmised that Beckwith was traveling west by the gouged marks in the highway.
The physical evidence at the scene of the accident is consistent with most any hypothesis. The appellant could have been traveling west, struck the Pontiac spinning it around and knocking it north and west whatever number of feet it did travel, and this theory would be as consistent, if not more so, than the theory that the Pontiac struck the appellant’s automobile a glancing blow in the wrest bound lane and knocked it almost straight back a distance of 132 feet. The distance the Pontiac traveled following the impact is not in the record, but it is obvious from State’s exhibit “C” that it was nowhere near 132 feet. There were no skid marks made by either automobile prior to impact. We conclude from the record before us that the judgment of the trial court was of necessity based on surmise and conjecture as to the facts, and that the judgment must be reversed.
Reversed. | [
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Carleton Harris, Chief justice.
This is a second appeal relative to the foreclosure suit filed by Kirby C. Seay and wife against E. T. and T. G. Davis, father and son, respectively. Seay v. Davis, 246 Ark. 201, 438 S. W. 2d 479, handed down on February 24, 1969, and supplemental opinion on rehearing rendered on April 7, 1969. The facts concerning the commencement of the litigation are set out in that opinion. As reflected therein, the Chancery Court, without notice to appellants, appointed a receiver to take charge of the Rose Haven Motel and Restaurant, purchased on time by the Davis-es from Seay; a hearing to determine whether the receiver should have been appointed was held on August 22, 1968; at that time the Chancellor announced that the receivership would be terminated on September 5, 1968. The person named as receiver on August 2 was E. P. Williams, who, at the time of being appointed receiver, had the Rose Haven Restaurant under lease, the restaurant being operated in connection with the motel. Williams had already paid the lease rental in full ($5,000.00) until September, 1969. He also held an option to renew for an additional year until September, 1970, Williams, upon termination of the receivership, filed his report with the court, and the Davises filed exceptions to this report. On December 16, 1968, the court conducted a hearing, and after hearing testimony, approved the receiver’s report and denied the exceptions, ordered that Williams receive a $500.00 receiver’s fee, allowed the receiver’s attorney a fee of $200.00, and directed that the balance of any funds held be delivered to E. T. Davis. From this order, appellants bring this appeal. For reversal, it is first contended that all costs of the receivership should be paid by the Seays, and second, that the receiver should be charged wdth $1,-169.16, which was spent in remodeling the restaurant.
Relative to the first point, appellants argue that there was no valid reason for the appointment of the receiver, and Seay and wife, the mortgage holders, should be charged with the costs of the receivership. It is pointed out that the order of receivership was made without notice to appellants, and that, generally speaking, it is only in exceptional cases that a receiver should be appointed where no notice is given to adverse interests. Excelsior White Lime Company v. Rieff, 107 Ark. 554, 155 S. W. 921. Appellees depend primarily upon the fact that the mortgage itself provides that appellees shall be entitled to the immediate appoint ment by the court of a receiver without further showing’ than that there has been a breach or default.
However, we agree with appellants that this provision does not entitle the mortgagee to the appointment of a receiver as a matter of right, and the question of whether one should be appointed, despite the inclusion of the language quoted, still remains within the discretion of the court. As stated in 59 C. J. S. § 663(b), p. 1187:
“Generally a mortgage provision for a receivership, if valid, is entitled to due. weight in determining whether a receiver will be appointed, and it may afford good ground for the appointment of a receiver where without such provision a receivership would be denied. So a stipulation for a receivership may be enforceable regardless of the insolvency of the mortgagor, at least where it is so provided by the agreement of the parties or where inadequacy of the security is shown.
“It has been held, however, that a receivership clause in a mortgage, even if valid, does not prima facie or as a matter of right entitle the mortgagee to the appointment of a receiver, and the question still remains within the discretion of the court.”
Appellants state:
“* * * In this case the appellees, Kirby O. Seay and wife, obtained the appointment of a receiver without notice, when there was no necessity for a receivership, and in a case based on an attempted inequitable acceleration of a debt (as held by both the lower court and this court); and on application the court held the receivership unnecessary and dissolved it.”
It appears that appellants are in error in this statement. The trial court did not hold that the receivership had been unnecessary, nor did it immediately dissolve same; to the contrary, the Chancellor kept the receiver ship in effect until September 5, some two weeks later. In addition, the court specifically retained jurisdiction for the reappointment of a receiver in the event of a future default by appellants. Likewise, we made no finding that a receivership was unnecessary; we simply affirmed the trial court in its finding that appellees were not entitled to accelerate the maturity of the note and mortgage, saying:
“It would be altogether inequitable to allow Seay to repudiate his own promise and thereby not only retake the property but also, according to the proof, bring financial ruin upon the older of the two debtors.”
Nor can we agree with appellants that the order appointing a receiver was entered without any justification. Seay testified that it had come to his attention that the younger Davis was getting drunk at night, insulting the customers, and making a “public nuisance” of himself in the restaurant adjoining the motel. He also testified that a partially completed building on the premises, which he understood would be completed, had instead been torn down. The witness said that young Davis did not look after the property, and had permitted it to become “run down and filthy.” The July payment on the purchase was made by check in the amount of $1,682.21, and this check was not paid because of insufficient funds. "When we consider this evidence, together with the provision in the mortgage for the appointment of a receiver, we are unable to say that the Chancellor abused his discretion in making this appointment, for it appears that this step was taken for the purpose of preserving the property under mortgage. Accordingly, we find no merit in the first point.
The second contention is based upon the fact that the receiver had certain improvements made in the restaurant without first obtaining a court order authorizing him to do so. As previously stated, Williams, who had operated the restaurant since 1959, held a written lease for this property, all rentals being paid until September, 1969. His option for an additional year granted him the right to continue operations for an agreed rental of $500.00 per month. Williams was present on August 22, 1968, at the hearing when the trial court announced that the receivership would be terminated on September 5, 1968. It appears that a few days after this hearing, Williams arranged for the installation of additional air conditioning units, vent fans, and fluorescent lights in the restaurant at a total cost of $1,169.16, this amount being paid with receivership funds. Although Williams testified that he had talked w ith young Davis about some of the improvements, there was no firm commitment from either appellant that anything would be done.
“* * * He told me that we would get this done but we never did, he didn’t have the money at that time and we never did get it done. I paid a year’s lease, thinking maybe we could perhaps get it done at that time, which we did not get it done, so it was an item that needed to be done and when I was Receiver and had the money to have it done, I had it done.”
Admittedly, the lease held by Williams did not obligate the owner to make these improvements. Of course, the general rule is that, where there is no agreement between a landowner and tenant relative to improvements, the tenant is presumed to repair and improve for his own benefit. National Housewares Corporation v. Trahin, 247 Ark. 1, 444 S. W. 2d 68 and cases cited therein.
Be that as it may, we are not here concerned with whatever rights Williams, as a tenant, may have had against appellants, as landlords. Rather, we are dealing with a court officer, a duy appointed receiver. The trial court found that the receiver should have obtained authorization from the court before making any substantial expenditures, but further found that the purpose of the expenditures was for the improvement of the building, and that the value of the building had been enhanced. The Chancellor then added:
“* * * Therefore the Court is of the opinion that although this item may not be strictly legal by the cold black letter of the law, Equity demands that it be allowed, especially since all the expenses were paid out of the income of the business during the short time Receiver operated same.”
We do not agree. In Phelan Middle States Oil Corporation, 154 F. 2d 978, the court makes some pertinent observations concerning receivers, as follows:
“* # * a receiver, as ‘an officer or arm of the court,’ is a trustee with the highest kind of fiduciary obligations. He owes a duty of strict impartiality, of ‘undivided loyalty,’ to all persons interested in the receivership estate, and must not ‘dilute’ that loyalty. He is ‘bound to act fairly and openly with respect to every aspect of the proceedings before the court. * * * The court, as well as all the interested parties,’ have ‘the right to expect that all of its officers,’ including the receiver, will not ‘fail’ to reveal any pertinent information or use their official position for their own profit or to further the interests of themselves or any associates. ‘* * * Where a receiver has a possible personal interest adverse to those of any parties to the receivership, it is usually unwise for him to participate in the reorganization; if he does so he must act with unusual caution; that the court has acquiesced in his participating does not relieve him of his duty of disinterestedness.’ ”
In 75 C. J. S. § 182 a, p. 828, it is stated:
“A receiver should not be motivated by personal considerations in his administration of the receivership estate. He administers the assets of the estate, not in his own right or for his own benefit, but for the benefit of the creditors and those who own the property or are otherwise interested therein. Ordinarily he will not be permitted to derive personal profit or advantage out of his office or the administration of his trust other than the compensation which may be allowed to him by law, * * * even though he acted in good faith and the transaction was free from fraud and even though the estate suffered no loss therefrom.”
Further, under Sub-section b of the same section, p. 829;
“As a general rule, a receiver is prohibited from dealing with receivership property or funds for his own benefit, and he will not be permitted, as receiver, to purchase property from himself in his personal capacity, or to acquire for his personal benefit, directly or indirectly, pending the receivership* any property committed to his custody or management, however free from fraud the transaction may be.”
Williams was certainly the chief beneficiary of the expenditure, if not the only one. Certainly, any enhancement in value could not be of any benefit to the owners until September, 1970. Furthermore, it definitely does not appear that there was any urgency for immediate installation of the equipment mentioned, for Williams had operated the restaurant for nearly nine years (without these improvements) before he was appointed as receiver.
We. cannot approve a procedure which would serve as a precedent for any receiver to proceed to make additions and installations to property under his control, without any prior court approval, or without notifying other interested parties, no emergency or urgency being shown. This is particularly true in the present case, where it definitely appears that the installations were made primarily for the benefit of the receiver, and within a few days after the court had announced the dissolution of the receivership on a date some two weeks hence.
Accordingly, this portion of the trial court’s decree is reversed, and the cause is remanded to the Union Chancery Court, Second division, with directions to charge E. P. Williams, receiver, and his bondsmen, with the $1,169.16 expended for the installation of the equipment herein discussed.
It is so ordered.
Costs are to be divided equally between appellants and appellee Williams.
This has reference to the finding that Seay assured the elder Davis that, if the latter’s son permitted a delinquency in his payments, he (Seay) would give Davis notice before proceeding further. The senior Davis had promised to make good any delinquency within three hours
The testimony is conflicting as to whether the equipment installed actually enhanced the value of the building, though the Chancellor so found. | [
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Lyle Brown, Justice.
This appeal stems from a school consolidation election in Pike County. The question on the ballot was whether a small district designated as Pike County School District No. 1 would be consolidated with a larger district, commonly referred to as the Glenwood District. The election was held June 18, 1968. The certified vote from the Glenwood area was overwhelmingly in favor of consolidation, whereas the official returns from District No. 1 showed the voters evenly divided. A favorable vote in both districts being necessary to effect consolidation, the county board of education certified the consolidation to have failed. A contest filed by the officials of the two school districts attacked the qualifications of three voters who cast ballots in District No. 1 against consolidation, asserting that the voters did not meet the requirement of residence set forth in our Constitution, Art. 3, § 1. The trial court upheld all three votes, affirmed the county board in all respects, and the two school districts appeal.
The sole question in this cause — No. 4938 — is the validity of the three challenged votes. During the pendency of this case in the lower court a petition purportedly signed by a majority of the qualified electors of District No. 1 was filed with the county board. That petition sought annexation to the Kirby District. Annexation was approved and appealed here. An opinion in that case — No. 5001 — is being rendered today.
Before discussing the facts relating to the challenged votes a brief summary of our constitutional and case law relating to voting residency is in order. Our Constitution restricts the voting privilege to those who have resided in the State twelve months, in the county six months, and in the precinct, town, or ward, one month immediately preceding any election at which the citizen proposes to vote. Election contests are tried by the court without a jury. We are committed to give the trial court’s findings on residency the force of a jury verdict. Consequently those findings are upheld if there is substantial evidence to support them; and that is true even though we might have reached a different conclusion had we been in the position of the trial court. Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931 (1953).
There are two important features in resolving the asserted validity of voting residence. First, there is the intent of the voter with respect to residency. Secondly —and equally important — is that the conduct of the voter must be reasonably consistent with his asserted residency. For example, we held in Phillips that the elector was eligible to vote in Franklin County notwithstanding he moved to Sebastian County sixty days before the election. That was because he convinced the trial court that his work in Sebastian County was temporary and there was no intention of surrendering Franklin County' as his permanent residence. In other words, his assertion of residency was found to be consistent with his conduct and we refused to reverse. On the other hand, the inconsistency of asserted intention with conduct is pointed up in Harris v. Textor, 235 Ark. 497, 361 S. W. 2d 75 (1962). There the Cartrights had lived in Pulaski County so long as to make their conduct inconsistent with their assertion that they never intended to give up their voting residence in Greene County. To the same effect see Wood v. Brown, 235 Ark. 500, 361 S. W. 2d 67 (1962). In special cases ,an extended absence will not necessarily cause a forfeiture of voting residency. We have so held in cases involving a voter in government service, college students, and young men enrolling outside their county in a government conservation camp. Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696 (1941); and Ptak v. Jameson, 215 Ark. 292, 220 S. W. 2d 592 (1949).
Turning now to the facts incident to the challenged votes, we have examined the record and find substantial evidence to support the trial court. Certainly the evidence was not overwhelmingly in favor of the validity of the three questioned votes; however, the evidence we shall summarize which supports the trial court’s findings was substantially sufficient.
The vote first challenged was that of Mrs. Doris Cathleen Schoeff. She finished the public schools at Lodi in Pike County (District 1) in 1963. Shortly after graduation she went to Huntington, Indiana, to live with her married sister. There she met and married Paul Schoeff. For a time the couple lived in Florida where Paul was stationed until he was shipped overseas in February 1967. After a brief stay with Paul’s parents in Indiana, Doris decided it would be better to live with her parents at Lodi, Arkansas, until Paul could fulfill his overseas military obligation. She took up residency at Lodi in May 1967, helping to equip a room at her parents’ home for herself, her son, and a child soon to be born. She opened a bank account at Grlenwood, obtained an Arkansas driver’s license, “and considered it my home,” at least until her husband returned, and hopefully thereafter. In fact she testified that she and her husband corresponded about buying her father’s farm and settling there; however, it was agreed that the decision to buy the farm would be postponed until Paul came home.
Doris duly registered as a voter prior to the school, election of June 18, 1968. Her husband was discharged early in June and headed for Lodi and his family. She testified that he inquired about the prospects of employment in Pike County; that the outlook was not too good and they decided to look over the situation at Columbia City, Indiana. They left for Columbia City some four days after the election, where Paul obtained a good job and they have remained. There was some evidence to the effect that they intend to return to Lodi, possibly after two years.
It is not disputed that Doris Schoeff intended to make her home in Pike County, at least until her husband returned from overseas. She resided there continuously for some thirteen months prior to and including the date of the election at which she voted. Her conduct was consistent with her assertion of residency; at least the trial court so found and on substantial evidence.
The challenged votes of Mr. and Mrs. Bobby Jack Vaught may be considered together. As a young couple they lived in numerous places because he was generally following public and seasonal work. Here is a chronology of their significant moves and activities in the years just prior to the school election of 1968:
In 1964 they moved to Lodi where his father lived; Bobby registered with the Pike County draft board in 1965 and the registration was never transferred; work grew scarce and he went to Indiana in May 1966; most of the Vaughts’ personal belongings were left in Lodi because, so they testified, their stay in Indiana was intended to be temporary; in November 1966 they voted absentee in Pike County; they started back to Arkansas in 1967 and Mrs. Vaught was seriously injured in a collision. That experience, said Vaught, delayed their departure for several months. They voted .absentee in the school election. They were re-established in Pike County in time to vote in person in the August 1968 primary election. In the interim they had paid taxes on personalty in Pike County.
It was not unreasonable for the trial court to conclude, from the assertions and course of conduct, that the Vaughts established their residence in 1964 and maintained it throughout the period described.
Affirmed. | [
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Per Curiam.
On October 27, 2003, the Arkansas Supreme Court Committee on Professional Conduct, Panel B, reprimanded Lori A. Mosby for unprofessional conduct, assessed a fine of $2,500, ordered her to pay costs of $50, and ordered her to attend two additional “ethics” hours of continuing legal education, in addition to the one ethics hour required during each reporting period for attorneys in Arkansas. The findings and order of the committee were filed with the supreme court clerk on January 31, 2003.
Section 12(C) of the Procedures Regulating Professional Conduct (2003) provides that notice and perfection of an appeal shall be in accordance with the Rules of Appellate Procedure — • Civil and Rules of the Arkansas Supreme Court governing appeals in civil matters. If no appeal is perfected within the time allowed and in the manner provided, the action of the panel shall be final and binding on all parties. Id.
Ms. Mosby filed a timely notice of appeal under Ark. R. App. P. — Civ. 4(a) on November 26, 2003, making the deadline for filing the record ninety days later, on February 24, 2004. Ms. Mosby tendered the record to the supreme court clerk on February 27, 2004. Ark. R. App. P. — Civ. 5(a) of the Rules of Appellate Procedure requires that a record must be tendered within ninety days of the date of the notice of appeal, unless a motion to extend the time has been granted. See Mitchell v. Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991). No such motion was requested.
Now before us is appellant’s motion for rule on the clerk, seeking to lodge the record belatedly. In support of her motion, Ms. Mosby asserts that the late tender of the record was the fault of the court reporter in failing to provide the transcript in time for her to file it timely. It is the duty of counsel, not the judge, the clerk, or court reporter to perfect an appeal. Davis v. Williamson, 353 Ark. 225, 114 S.W.3d 216 (2003).
It was clearly the duty of Ms. Mosby to tender the record to this court in a timely manner, but she failed to do so. Accordingly, the motion for rule on clerk must be denied. The action of Panel B of the Arkansas Supreme Court Committee on Professional Conduct is final. | [
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Ray Thornton, Justice.
This case arises out of acts of domestic abuse by Jay Abramson against Michelle Eldridge and a subsequent award of attorney’s fees. On December 16, 2002, the trial court filed a final order of protection on behalf of Ms. Eldridge, fining Mr. Abramson $250.00 and imposing a suspended sentence of thirty days in jail. Thereafter, on December 30, 2002, the trial court awarded Ms. Eldridge attorney’s fees in the amount of $9,015.00.
On January 16, 2003, Mr. Abramson filed a notice of appeal from the final order of December 16, 2002 and from the order awarding attorney’s fees entered on December 30, 2002. Subsequently, on April 10, 2003, Mr. Abramson submitted to the trial court amotion to consolidate the cases for purposes of appeal. The trial court entered an ex parte order the next day consolidating the cases for appeal, and on April 16, 2003, Mr. Abramson tendered to this court a petition for a writ of certiorari seeking a complete transcript of the two cases. Ms. Eldridge had not yet responded to Mr. Abramson’s ex parte motion to consolidate and she timely filed an appeal of the ex parte order of consolidation.
We considered the petition for a writ of certiorari and settled the status of this matter in Abramson v. Eldridge, 353 Ark. 354, 107 S.W.3d 171 (2003) (per curiam) when we stated:
While the notice of appeal was not filed timely for the December 16, 2002, order, it was timely filed for the December 30, 2002, order regarding attorney’s fees. There were no references to the December 16 order in the December 30 order, so it is not necessary to review the December 16 order in determining the propriety of the December 30 order. Criswell v. Holiday, 330 Ark. 762, 957 S.W.2d 181 (1997). The writ of certiorari is granted with specific instructions that the court would only review the correctness of the attorney’s fees.
Id. Notwithstanding that decision, Mr. Abramson continues to seek consolidation of his untimely appeal of one case with his timely appeal of attorney’s fees. Ms. Eldridge seeks review of the trial court’s order consolidating the cases.
In a companion opinion decided today, we held that Mr. Abramson did not preserve the issue of attorney’s fees. See Abramson v. Eldridge, 356 Ark. 321, 149 S.W.3d 880 (2004). We have declined to consider the issue of attorney’s fees because they were not preserved. The question of consolidation of the two cases is moot.
We will not decide legal trivialities, academic questions, or moot issues. Arkansas State Med. Bd. v. Schoen, 338 Ark. 762, 1 S.W.3d 430 (1999). Mootness occurs when the decision would be of no practical effect to the legal controversy. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). A situation capable of repetition but able to evade legal review and issues of substantial public interest that will prevent future legal battles are the two exceptions to the mootness doctrine. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001).
As discussed in the companion Abramson v. Eldridge case decided today, Abramson failed to preserve his argument contesting attorney fees for appellate review. Consequently, this case is moot because there is no legal effect of a further ruling from this court. Whether the trial court erred in consolidating two cases for appeal is irrelevant when there is no possible recovery for either of the cases on appeal. Without practical effect, this case is a legal curiosity and not a controversy to be decided by this court.
Accordingly, we dismiss the appeal as moot. | [
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Per Curiam.
Appellants Mary Hiang and Consuella Terrell, by and through their attorney, Gregory E. Bryant, have filed a motion for rule on clerk. Mr. Bryant admits responsibility for failing to timely file the record due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Jim Hannah, Justice.
This is an appeal from an order dismissing appellant Richard Gore’s motion to intervene in a lawsuit brought by appellee Heartland Community Bank (Heartland) against Kelsey Dedmon to collect on a note and security interest in a mobile home. The court of appeals certified this case to this court because it perceived an apparent conflict between this court’s case law and Rule 6(e) of the Appellate Rules of Procedure — Civil. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(2) (2003).
Facts
On January 9, 2002, Heartland filed a complaint in replevin against Kelsey Dedmon, d/b/a BDK Homes. Heartland alleged that Dedmon had borrowed $30,000 from Heartland, and that Dedmon had given Heartland a security interest in a 1997 Champion Mobile Home to secure the promissory note. Dedmon filed a pro se answer on January 29, 2002. Heartland filed a motion for default judgment against Dedmon and, on April 19, 2002, the trial court entered a default judgment against Dedmon, awarding Heartland $31,079.13, plus interest and attorney’s fees, and allowing Heartland to take possession of the mobile home and sell it.
On May 14, 2002, Gore filed a motion to intervene, to modify order, and for temporary stay of the order. In his motion, Gore alleged that he had purchased the mobile home from Dedmon prior to the mobile home being pledged as collateral for Dedmon’s loan. On April 14, 2003, the Saline County Circuit Court, Third Division, dismissed the motion with prejudice upon Gore’s failure to appear at the hearing scheduled on the motion. The order of dismissal provided that “[a]ll parties were properly noticed by the Court in a letter of December 27, 2002.” Gore contends that he was never provided notice of the hearing and, on May 13, 2003, he filed a notice of appeal. Subsequently, on May 23, 2003, Gore filed a motion to set aside the order of dismissal.
On appeal, Gore first argues that the trial court erred in dismissing the motion to intervene because the record fails to disclose that the trial court notified him of the hearing. Subsequent to Gore’s filing of his opening brief in this court, at Heartland’s request, the trial court entered an order purporting to correct the record to include the December 27 letter. Thereafter, Heartland filed a supplemental record, which included the December 27 letter. In his reply brief, Gore argues that the letter should not be considered by this court on appeal.
Gore further argues that the trial court erred in dismissing his motion to intervene with prejudice, rather than dismissing the motion without prejudice. Finally, Gore argues that the trial court erred in denying his motion to set aside.
Jurisdiction of Trial Court to Correct Record
The court of appeals certified this case to this court because it perceived an apparent conflict between Rule 6(e) and this court’s case law where we have held that once the record is lodged in the appellate court, the trial court loses jurisdiction to act further in the matter. Rule 6(e) of the Rules of Appellate Procedure— Civil provides:
(e) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the circuit court, the difference shall be submitted to and setded by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.
Ark. R. App. P. — Civ. 6(e) (2003) (emphasis added).
We find no conflict between our case law and Rule 6(e). While the trial court loses jurisdiction to act further in the matter once the record is lodged in the appellate court, trial courts have continuing jurisdiction to correct records in order to make them speak the truth. See Davie v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941). Once the record is lodged in this court, the trial court no longer exercises jurisdiction over the parties and the subject matter in controversy; however, the trial court has “jurisdiction, as well as the responsibility, to settle the record on appeal.” Arkansas State Highway Comm’n v. Brown, 241 Ark. 862, 864, 410 S.W.2d 737 (1967). We find no case where this court has stated that a trial court cannot correct the record after the record has been submitted to the appellate court.
Rule 6(e) clearly and unequivocally states that if anything material is omitted from the record, such as the December 27 letter in this case, by error or accident, the circuit court, either before or after the record is transmitted to the appellate court, may direct that the record shall be corrected, and if necessary, that a supplemental record be certified and transmitted. The trial court clearly had jurisdiction to supplement the record.
Dismissal of Motion to Intervene
Gore argues that the trial court erred in dismissing his motion to intervene because the record fails to disclose that the trial court notified him of the hearing. Gore contends that since the notice letter dated December 27, 2002, was not in the original record, and because Heartland failed to notify him that it was attempting to supplement the record to include the notice, then this court should not consider the December 27 letter on appeal. At the April 14, 2003, hearing, the following colloquy took place between the trial court and counsel for Heartland:
Plaintiff’s Counsel: Your Honor, I would ask at this time that the Court’s previous order of May 14th, 2002, be dissolved so that the temporary restraining order prohibiting Heartland Community Bank from exercising on the Court’s previous order granting them ownership and possession of a certain mobile home. I would also ask that the Intervenor’s motion to intervene be dismissed with prejudice.
The Court: Do you have any idea whether or not these other parties know about the hearing?
Plaintiff’s Counsel: Yes,Your Honor, they were notified by this Court. Here’s a letter from Ms. Graves that I was copied on December 27th of 2001.
The Court: Okay. Yeah, that’s in the file. There it is. I’ll grant your relief.You prepare the order.
Plaintiff’s Counsel: Thank you, Your Honor. I may also need a writ of assistance.
The Court: I’ll sign that also.
* * *
We disagree with Gore’s contention that the record fails to disclose that the trial court notified him of the hearing. Even if we were to disregard the supplemental record, it is clear from the record submitted by Gore that the trial court reviewed the case file and concluded that Gore was notified of the hearing. Thus, contrary to Gore’s assertion, the record discloses that the trial court notified him of the hearing.
Dismissal with Prejudice
Gore next argues that even if this court finds that the trial court was within its discretion to dismiss Gore’s motion to intervene, the trial court should not have dismissed his motion with prejudice. We agree. Rule 41(b) provides, in part:
(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court. . . the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
Ark. R. Civ. P. 41(b) (2003). The provisions of Rule 41 apply to the dismissal of any counterclaim, cross-claim, or third-party claim. Ark. R. Civ. P. 41(c) (2003). Gore’s motion to intervene involves a third-party claim; therefore, the provisions of Rule 41 apply to the instant case.
In Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003), this court discussed Rule 41(b), stating:
A dismissal under this subdivision [involuntary dismissal] is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
Ark. R. Civ. P. 41(b) (2003). A Reporter’s Note to Rule 41(b) points out that an involuntary dismissal under Rule 41(b) of the Federal Rules of Civil Procedure is generally with prejudice, “whereas under [Ark. R. Civ. P. 41(b)], such a dismissal is without prejudice provided the case has not been previously dismissed in which event the second dismissal is with prejudice.”
Sidney Moncrief, 353 Ark. at 711-12. Further, in Wolford v. St. Paul Fire & Marine Insurance Co., 331 Ark. 426, 961 S.W.2d 743 (1998), we discussed the application of Rule 41(b) in prior cases:
In Professional Adjustment Bureau, Inc. v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 284-85 (1982), the appellant argued that the first dismissal under Rule 41 may never be with prejudice. We determined that a trial court is not absolutely prohibited from dismissing a case with prejudice for want of prosecution in all circumstances. Id. However, we said that a court’s disposition of a case for lack of prosecution should ordinarily be without prejudice. Id. at 251, 629 S.W.2d 284, 285. In Strong, we distinguished that case from Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979), and stated that unlike Gordon, where the case had been pending for thirteen years and dismissal with prejudice may have been warranted, a case involving one-time neglect did not warrant a dismissal with prejudice. Id.
Similarly, in Superior Seeds, Inc. v. Crain, 280 Ark. 142, 144, 655 S.W.2d 415, 416 (1983), the trial court had dismissed a case where the plaintiff twice disregarded the court’s order to prepare a necessary instruction. On appeal, we said that, although the trial court was well within its authority in dismissing the suit, “[w]e treat the dismissal as one without prejudice.” Id. (citing Ark. R. Civ. P. 41(b)).
In the third case, we took our foregoing rationale one step further. In Insurance from CNA v. Keene Corp., 310 Ark. 605, 609, 839 S.W.2d 199, 202 (1992), the facts showed that the litigation had been ongoing for six years at the time that the trial court gave one of the parties ten days to substitute itself as the real party in interest. When the party did not appropriately amend the complaint within the ten-day period, the trial court granted a motion to dismiss the case. Id. In Keene, we stated that “Rule 41(b) of the Arkansas Rules of Civil Procedure gives the trial court the authority to dismiss cases in which the ‘plaintiff has failed to comply ... with any order of the court.’ ” Id. at 609, 839 S.W.2d at 202. Our standard of review of such a dismissal is whether the trial court abused its discretion. Id. We concluded that the dismissal was not arbitrary or an abuse of discretion, but we stated that “such dismissals are to be without prejudice” and modified the dismissal therein to be without prejudice. Id.
Wolford, 331 Ark. at 434-35.
In the instant case, we hold that the trial court’s decision to dismiss the motion to intervene was not an abuse of discretion. However, as we noted in Wolford, the foregoing cases illustrate that after several amendments to Rule 41, we have consistently decided that such dismissals be without prejudice. Wolford, 331 Ark. at 435. Accordingly, we affirm the dismissal, but modify it to be without prejudice.
Motion to Set Aside Order of Dismissal
Gore’s final argument on appeal is that the trial court erred in denying his motion to set aside the order of dismissal. This argument is not properly before us for consideration. On May 13, 2003, Gore timely filed his notice of appeal from the April 14, 2003, order dismissing his motion to intervene. On May 23, 2003, Gore filed a motion to set aside. A notice of appeal filed after the judgment is entered, but before a posttrial motion is resolved, is effective to appeal the underlying judgment. See Ark. R. App. P. — Civ. 4(b)(2) (2003). “A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days, amend the previously filed notice, complying with Rule 3(e).” Id. No amended notice of appeal is contained in the record, and this precludes our consideration of Gore’s argument concerning the trial court’s denial of his motion to set aside.
Affirmed in part, reversed and remanded in part.
Glaze, J., concurring.
In reference to the trial court’s order supplementing the record with the December 27 letter, Gore states:
Clearly, Judge Phillips signed this order at the request of Attorneys for the [Appellee], since the Order indicates on its face that it was prepared by Spears & Jones, Attorneys at Law. Neither the Court nor Appellee’s attorneys notified Appellant’s attorneys of any communication between Spears and Jones and'the trial court concerning the notice in question, or on any action which might be taken by the Court to modify the record of this Complaint.
Gore claims that he should have been notified of Heartland’s request to supplement the record because “[t]he Rules of the Arkansas Supreme Court do not permit [parties] to engage in ex parte communication with the trial court concerning supplementation of the record.”
Although the better practice might have been for Heartland to notify Gore that it was attempting to supplement the record, we find no notice requirement in Rule 6(e). The purpose in settling the record, under Rule 6(e) is to ensure that the record “truly discloses what occurred in the trial court.” Clearly, Rule 6(e) gives the trial court jurisdiction to correct the record on its own initiative when there is a material omission or misstatement in the record submitted to the appellate court. Because the record submitted by Gore does disclose that the December 27 letter was in the file and that the trial court considered the letter, there is no prejudice to Gore in supplementing the record.
The correct date of the letter is December 27, 2002. | [
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Per Curiam.
Appellant Irene Waddle timely filed a notice of appeal in this case on July 31, 2003, from a conviction judgment in the Circuit Court of Scott County, entered on July 8, 2003. On September 2, 2003, the trial court found Waddle was indigent, and it ordered the public defenders’s office to continue to represent Waddle throughout this appeal. It further ordered that the court reporter and clerk of the Scott County Circuit Court cause the transcript of proceedings, all exhibits thereto, and all pleadings in this case be prepared for the filing of an appeal, with costs to be borne by the State. In an order entered on October 27, 2003, the trial judge noted his September 2, 2003, order, and found that the transcript had not been supplied to Waddle or docketed with the supreme court clerk. In the October 27, 2003, order, the circuit court granted Waddle a ninety-day extension of time to receive the transcript and to perfect her appeal. A second or “Amended Order,” filed and stamped October 27, 2003, also appears in the record which was tendered to the supreme court clerk. This “Amended Order” appears to be a certified copy of the first October 27, 2003, order, but the “Amended Order” reflects a handwritten interlineation that has been added and reads, “It is the intent of this Court to grant an additional 90 days from October 31, 2003.” The record shows that the “Amended Order” was certified by the Scott County Clerk on February 11, 2004, but it was not filed with the supreme court clerk until February 13, 2004.
In a letter mailed to the circuit judge dated January 19, 2004, and filed January 21, 2004, Waddle again requested a continuance or extension of time for appeal due to the fact that the transcript and record had not yet been received from the court reporter and circuit clerk. Waddle attached to her January 19, 2004, letter her proposed order which would have given her an extension of 120 days from January 31, 2004, to file her record. That proposed order was not signed by the judge.
The Scott County Circuit Clerk released the trial transcript to Waddle on January 27, 2004, and it was tendered to the supreme court clerk on January 28, 2004. The supreme court clerk refused to docket the transcript, stating that the Scott County Circuit Court lacked authority to grant an extension of time for filing to January 29, 2004, by merely adding language to the October 27, 2003, order to say, “It is the intent of this Court to grant an additional 90 days from October 31, 2003,” instead of October 27, 2003 — the date the first order was signed and filed.
Waddle relies upon Ark. R. App. P. — Civil 5(a) and (b) in support of her motion. Rule 5(a) states'that the record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court. Rule 5(b) states that the circuit ‘court may extend the time for filing the record on appeal if an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported. Rule 5(b) goes on to state that the order of extension must be entered before the expiration of the period for filing as extended by a previous order.
The supreme court clerk was correct in finding that the time for filing the transcript for appeal began on October 27, 2003, making Waddle’s record due within 90 days from that date, January 26, 2004. Since Waddle did not tender her record until January 28, 2004, her appeal was untimely.
Ark. R. App. P. — Crim. 16(a) provides:
(a) Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court or Arkansas Court ofAppeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.
Nothing in the record indicates that her attorney, John R. Irwin, has been relieved of counsel, therefore, he is responsible for filing the appeal in this case.
Arkansas Supreme Court Rule 2-2 provides in pertinent part:
(a) Record tendered late. Where a record is tendered which, on its face, appears to be outside the time allotted for docketing the case, it shall be the duty of the Clerk to notify the attorney representing the appellant and note on the record the date the tender was made.
Rule 2-2 provides that a motion may be brought pursuant to Ark. Sup. Ct. R. 2-1 (2003) when the attorney asserts that the clerk of this court erred in refusing to docket the appeal. Ark. Sup. Ct. R. 2-2(b) (2003).
Here, we have determined that the clerk of this court did not err in refusing to docket the appeal. Thus,. the attorney responsible for filing the appeal is left with only the option of admitting fault. In a recent opinion of this court, McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), our court stated that, when an attorney has erred, and is responsible for the failure to perfect the appeal, the attorney should candidly admit fault in the interest of providing his or her client with an expeditious appeal. If an attorney is at fault and becomes an obstacle to the appeal in refusing to cooperate in resolving the reason the appeal was not perfected, the contempt powers of this court will be used. An attorney should do all in his or her power to see that a client’s appeal moves forward without delay. When an affidavit of fault is filed, the motion will be routinely granted and a copy of the opinion forwarded to the Committee on Professional Conduct. See McDonald, supra.
In the case before this court, the court has concluded that Irwin was responsible for filing a timely record on appeal, and he failed to do so. Upon the filing of a proper motion for rule on the clerk in which he admits fault for not filing a timely record on appeal, the motion will be granted. Mr. Irwin has thirty days to file a motion. | [
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Annabelle Clinton Imber, Justice.
Appellant Douglas Bramlett was convicted in Boone County Circuit Court of driving while intoxicated. He was fined and given a one-year • suspended sentence. On appeal, Mr. Bramlett asserts that the result of his breathalyzer test does not support a conviction under the Arkansas DWI statute, Ark. Code Ann. § 5-65-101 et seq. (Supp. 2001), because of changes made to the statute by the Arkansas General Assembly. We disagree and affirm.
On September 28, 2001, Mr. Bramlett was pulled over by a state trooper because he was speeding. The trooper smelled alcohol on Mr. Bramlett’s breath and, when asked how many drinks he had consumed, Mr. Bramlett replied four to five. He was taken to the Harrison Police Department where a breathalyzer test was administered with a BAC DataMaster machine. The machine gave a reading of. 109 and he was charged with a per se violation of Ark. Code Ann. § 5-65-103(b) (Supp. 2001). Although Mr. Bramlett argued before the circuit court that he was not intoxicated under the plain meaning of the statute, the circuit court found him guilty of driving while intoxicated in violation of § 5-65-103(b).
Mr. Bramlett appeals on the following points: (1) there was no evidence presented to support a conviction under the clear standard of criminal conduct set forth in Ark. Code Ann. § 5-65-103(b); and (2) the circuit court failed to interpret Ark. Code Ann. § 5-65-103(b) in a manner so as to avoid grave and doubtful constitutional questions. This appeal is an issue of first impression and involves a substantial question of law concerning the construction and interpretation of an act of the General Assembly; therefore, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1 —2(b) (1) and (6).
In addressing the issues on appeal, we must interpret Ark. Code Ann. § 5-65-103(b). The parties have stipulated to the facts. When there are no factual findings at issue, we review issues of statutory construction de novo; it is for this court to decide what a statute means. Central & Southern Companies, Inc. v. Weiss, 339 Ark. 76, 3 S.W.3d 294 (1999); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.
The basic rule of statutory construction is to give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. In addition, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Burnette v. State, 354 Ark. 584, 127 S.W.3d 479 (2003).
At issue in this appeal is the language of a Ark. Code Ann. § 5-65-103, which is a section of Arkansas’s DWI statute. While Mr. Bramlett’s evidence at trial admittedly shows that he was intoxicated under the previous version of § 5-65-103, Mr. Bramlett asserts that an amendment enacted by the General Assembly in 2001 altered the meaning of the statute in such a way as to render Mr. Bramlett’s BAC reading of .109 less than the required amount for intoxication. The previous version of § 5-65-103 read as follows:
5-65-103. Unlawful acts.
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath or other bodily substances.
Ark. Code Ann. § 5-65-103(b) (Repl. 1997) (emphasis added).
The State stipulated at trial that there was insufficient evidence to charge or convict Mr. Bramlett under subsection (a) of § 5-65-103, so the subsection with which we are concerned is subsection (b). The legislature’s 2001 amendment changed subsection (b) to read as follows:
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
Ark. Code Ann. § 5-65-103(b) (Supp. 2001) (emphasis added).
Mr. Bramlett frames his argument on appeal as follows:
The change implemented in Ark. Code Ann. § 5-65-103(b) is significant. The definition of criminal conduct changed from “if at the time there was one-tenth of one percent (.10%) or more by weight of alcohol in the person’s blood,” to “if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08).”
From a plain reading of the above-quoted version of the statute, it is clear that Mr. Bramlett has not gone far enough in his explanation of the changes. Mr. Bramlett’s argument merely focuses on the numerical change in the statute from one-tenth of one percent to eight-hundredths. Flowever, the legislature changed much more than the numerical figure by which intoxication can be calculated; the amendment also changed the method by which the calculations are now made.
Under the previous version of the DWI statute, alcohol levels in the blood were measured by a percentage of total weight. In other words, when one took a sample of blood from a suspect and divided the weight of the alcohol in the sample by weight of the entire sample, if the alcohol content was one-tenth of one percent (.10%) of the total or higher, then the suspect was considered intoxicated and was perse in violation of§ 5-65-103(b). In fact, we made this clear in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), where we said, “The 1983 [DWI] statute has made driving with a blood alcohol content of .10% or more illegal, per se.” Id. at 428, 678 S.W.2d at 320 (emphasis added). This previous version of the statute measured content of the alcohol in the blood, and that measurement was made by finding the percentage of the blood alcohol content by weight.
Under the new statute, intoxication is measured by alcohol concentration, not content by weight, something that Mr. Bramlett completely neglects to mention in his argument. Further more, Mr. Bramlett fails to notice that the amended version of § 5-65-103(b) cannot be read without referring to Ark. Code Ann. § 5-65-204. The amended subsection (b) of § 5-65-103 states that a person is considered in violation of the statute when the blood alcohol concentration is eight-hundredths or more based upon the definition of breath, blood, and urine concentration in § 5-65-204, This emphasized portion of the statute refers us to the section of the code that defines alcohol concentration:
(a)(1) Alcohol concentration shall mean either:
(A) Grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood; or
(B) Grams of alcohol per two hundred ten liters (2101) of breath.
Ark. Code Ann. § 5-65-204(a)(1) (Supp. 2001) (emphasis added).
The change in Ark. Code Ann. § 5-65-103(b) reflects the General Assembly’s choice to alter the method of measuring alcohol intoxication under Arkansas law. The old statute measured alcohol using a percentage by weight calculation; the new statute measures alcohol by employing a ratio-comparison. The new statute’s call to read § 5-65-103(b) in conjunction with § 5-65-204 makes the change abundantly clear. While the defense provided experts to explain how the BAC Datamaster machines work, and to show the difference between “one-tenth of one percent” or “,10%” as compared to “eight-hundredths” or “.08,” the defense experts never construed § 5-65-103(b) together with § 5-65-204, as the legislature clearly intended they should be read.
When the two statutes are construed together, it becomes apparent that the ratio-comparison calculation measures intoxication as the ratio of grams of alcohol to liters of breath or grams of alcohol to milliliters of blood. Specifically; the statutes compare the grams of alcohol to either 210 liters of breath or 100 milliliters of blood. This sort of ratio is very different, on its face, from the weight-percentage measurement of the previous version of the DWI statute. We note that § 5-65-204 measures alcohol concentration in terms of alcohol grams per 210 liters of breath or alcohol grams per 100 milliliters of blood. Black’s Law Dictionary defines the word “per” to mean “for each” or “for every.” Black's Law Dictionary 1156 (7th ed. 1999). Therefore, the legislature’s use of this term means that intoxication is proven by measuring a certain number of grams of alcohol for every 210 liters of breath, or a certain number of grams of alcohol for every 100 milliliters of blood.
The question then becomes “how many grams of alcohol per 210 liters of breath or 100 milliliters of blood does it take to be intoxicated under the Arkansas DWI statute?” Section 5-65-103(b) reveals that .08 grams, or eight-hundredths of a gram, of alcohol is required to render a person legally intoxicated under the Arkansas DWI statute. In other words, when the numerical measurement of .08 provided in § 5-65-103(b) is plugged into this ratio of alcohol grams per 210 liters of breath or 100 milliliters of blood provided in § 5-65-204, the result is that if a person’s alcohol concentration is at least .08 grams (or eight-hundredths of a gram) of alcohol per 210 liters of breath, or .08 grams of alcohol per 100 milliliters of blood, then that person is considered in violation of § 5-65-103(b) per se.
In its brief, the State makes this very argument, albeit in much more technical language. In response, the defense states that, because the State provided no testimony from experts to support its argument as to the meaning of the statute, the State cannot make this argument on appeal. The defense is incorrect. As demonstrated by our explanation above, the plain meaning of § 5-65-103(b) directs us to § 5-65-204 and, when construed together, their meaning is plain and unambiguous.
Mr. Bramlett stipulated on the record that he had a BAC reading of .109. Lest there be any question of what that means, Mr. Bramlett’s own expert, Dr. Roger Hawk, testified in regard to the BAC reading, “ [t]he final reading is .10, which means .1 grams per 210 liters of air or sample.” Mr. Bramlett had .10, or ten-hundredths, of a gram of alcohol per 210 liters of his breath, and that measurement is more than the .08, or eight-hundredths, of a gram of alcohol per 210 liters of breath that is required to be in violation of § 5-65-103(b).
Mr. Bramlett’s BAC Datamaster test result showed his alcohol concentration was .109, in excess of the statutorily-allowed limit of .08 found in Ark. Code Ann. § 5-65-103(b). Thus, he was per se in violation of the statute, and the circuit court did not err in finding him guilty of driving while intoxicated.
For his second point on appeal, Mr. Bramlett assumes the circuit court incorrectly interpreted § 5-65-103(b). He argues that this incorrect interpretation failed to give the statute its plain and ordinary meaning and violated constitutional provisions against vagueness and is a violation of the prohibition against ex post facto laws. However, as demonstrated above, Mr. Bramlett misunderstands the-plain and ordinary meaning of § 5-65-103(b) because he has failed to read it in conjunction with § 5-65-204, as the legislature clearly intended. The circuit court found Mr. Bramlett guilty of driving while intoxicated when Mr. Bramlett’s alcohol concentration of .109 grams of alcohol per 210 liters of breath was clearly in excess of the statutory limit of .08 grams of alcohol per 210 liters ofbreath. In so finding, the circuit court gave § 5-65-103(b) its plain and ordinary meaning and, thus, interpreted the statute correctly. Mr. Bramlett’s second point is therefore without merit.
Affirmed.
Glaze, J., concurs. | [
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Per Curiam.
The procedural background of this matter is set out in McKenzie v. State, 355 Ark. 259, 134 S.W.3d. 5 (2003) (per curiam). Mr. Charles E. Waldman appeared before this court on January 15, 2004, to show cause why he should not be held in civil contempt for failing to comply with the terms of our previous per curiam orders. Mr. Waldman, represented by Mr. JefFRosenzweig, denied that he should be held in contempt for noncompliance with our orders.
Given the circumstances of this case, we hereby appoint a special master, The Honorable John Cole, to conduct a hearing on the matter. Upon receipt of the master’s findings, we will render a decision on the matter. | [
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McHaney, J.
Appellant is the receiver of the Missouri & North Arkansas Bailway Company under appointment by the District Court of the United States, Eastern District of Arkansas. Appellee, as State Bank Commissioner, is in charge of the affairs of the Citizens’ Bank & Trust Company of Harrison, and of the iBank of Alpena, Alpena Pass, Arkansas, insolvents, by W. P. Watkins, special deputy. At the time said banks closed their doors and were taken over by appellee, appellant had on general deposit in receivership funds in the Citizens’ Bank & Trust Company the sum of $30,844.-53, and in the Bank of Alpena, the sum of $154.41. He presented his claim to the liquidating agent against each bank as preferred or prior claims on the ground that said fund in each bank is money due the United States. The claims were disallowed by the Bank Commissioner as preferred or prior claims, but were allowed as general claims without preference. Appellant then presented the claims to the chancery court for preference and same were again disallowed and classified as general claims against the banks. From the judgment so classifying these claims appellant has appealed.
It is contended by appellant that the claims are entitled to preference by reason of § 3466, Bevised Statutes of the United States, reading in part as follows: “Whenever any person indebted to the United States is insol vent, * * * the debts due the United States shall be first satisfied. ” And by reason of the decision of the Supreme Court of the United States in Bramwell v. U. S. Fidelity & Guaranty Co., 269 U. S. 483, and Union Indemnity Co. v. Florida Bank & Trust Co., 48 Fed. (2d) 595. In the Bramwell case the superintendent of an Indian Reservation deposited funds of the government in a bank to be distributed to the individual Indians and to the tribe, the superintendent acting as the agent of the Federal Uovernment. The bank gave bond to the agent for the protection of said funds, and on becoming insolvent the surety paid the agent the amount of- the deposit and sought and was allowed to be subrogated to the right of the government to be classified as a preferred creditor of the bank. Bramwell, the Bank Commissioner, disputed the right and the Supreme Court of the United States sustained the allowance as a preferred claim. In the Union Indemnity Company ease, supra, it was held that funds in the hands of a trustee in bankruptcy are entitled to preference under the same section of the statute.
We do not think either case is in point here. Neither of the insolvent banks was “indebted to the United States.” The Federal receiver, appellant, is an operating receiver by appointment of the Federal Court and the funds on deposit were funds accumulated in the operation of the railroad. Under the order appointing him as receiver, he was directed to take charge of the property, operate the railroad and conduct the business thereof according to.his best judgment in a way to produce the best results, just as the railroad, company would do if in possession thereof. He was directed to deposit the money coming into his hands in some bank or trust company and to report to the court the bank or trust company so selected. He was authorized and .directed to pay all taxes and assessments, due or to become due and all expenses incident to the operation of the property. We think the receiver is in no better position to claim a preference from other depositors than the railroad company itself would have been, had it been in charge of the property and made the deposits in question. Andrew v. Crawford County State Bank (Iowa) 224 N. W. 499; See also Price v. United States, 269 U. S. 492; Stripe v. United States, 269 U. S. 503. The gist of the whole matter is that appellant does not come within the provisions of § 3466, Revised Statutes of the United States, for the reason that the insolvent banks, by being indebted to the receiver of the railroad company, were not indebted to.the United States.
The decree of the chancery court is correct, and is therefore affirmed. | [
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Smith, J.
Appellees brought this suit to enjoin the appellant railway company from obstructing a road by means of which they had ingress and egress to and from certain lots owned by them and on which they resided. These lots adjoined the railroad right-of-way, and the road in question ran from appellees’ lots, across a portion of the railroad right-of-way, to' a street in the city of Magnolia.
The court found, from testimony which fully sustains the finding, that the plaintiffs themselves, for more than seven years, and their predecessors in title, for more than forty years, had used the railroad right-of-way as a road to and from the lots on which they resided, and that there is no way of ingress or egress to and from said lots except over and along the right-of-way of the railroad, and that the railway company had, over the protest of appellees, obstructed this way so as to deprive appellees and all others of the use of this way by stretching barbed wire across it.
The finding was made that appellees, and their predecessors in title, had acquired an easement over and along said railroad right-of-way from their lots to the nearest street for purpose of ingress and egress to their property, and upon this finding the railway company was enjoined from obstructing the way in such manner as to prevent appellees from using it, and this appeal is from that decree.
Without setting out the testimony, which, as we have said, fully sustains the finding of fact made by the court below, it may be said that a continuous use of this way by all persons who had occasion to use it was shown for a period of fifty years, and it was also shown that the street commissioner of the city of Magnolia had worked and improved this way as a part of the streets of the city.
For the reversal of the decree, it is first insisted that a prescriptive right may not be established by adverse possession and use of a railroad right-of-way. Upon this question it may he said that, while there is a division in the authorities, it has been several times decided by this court that -such a prescriptive right may be acquired. Graham v. St. L. I. M. & S. R. Co., 69 Ark. 562, 65 S. W. 1048; St. Louis & S. F. R. Co. v. Ruttan, 90 Ark. 178, 118 S. W. 705; St. L. I. M. & S. R. Co. v. Martin, 104 Ark. 274, 149 S. W. 69; St. Louis, S. W. R. Co. v. Fulkerson, 177 Ark. 723, 7 S. W. (2d) 789.
It is next insisted that, even though such a right may be acquired, there was no sufficient notice to the railway company that such an adverse right was being asserted. This is, of course, a question of fact, and the court has found that there was such notice as to apprise the railway company that an adverse use was being made of the portion of its right-of-way in question. See Britt v. Berry, 133 Ark. 589, 202 S. W. 830, and cases there cited.
It is next insisted that the decree should be reversed because the court did not find that the public had acquired the right to use the road or way in question, but had found only that appellees had acquired an easement which permitted them to use the road or way.
There is no cross appeal from the failure of the court to' find that the road in question had become a public road by prescription, and we do not, therefore, decide whether that finding should or should not have been made. The court granted the plaintiffs the relief they prayed, that is, that their easement be not interfered with.
It was said in the case of Bond v. Stanton, 182 Ark. 293, 31 S. W. (2d) 409, that: “The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse user is sufficient to vest.the claimant with an easement therein.” [Citing cases].
The testimony being sufficient, as we find it to be, as did the court below also, that appellees had acquired, through long continued adverse use, an easement over the right-of-way, the railway company is in no position to complain that the decree of the court below limited its finding to the grant of the particular relief prayed in the cause, and did not enlarge its finding to include the ■general public'. If there is any error in this omission, which we do not decide, it is one of which the railway company may not be heard to complain, as an individual may acquire such a right in which the public generally is not entitled to share. The decree must therefore be affirmed, and it is so ordered. | [
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Mehaeey, J.
On December 29, 1928, the appellee, W. E. Stotts, purchased a Ford automobile from the Jonesboro Machine Company, of Jonesboro, Arkansas. He traded in an old automobile and paid some cash. The amount allowed for the old automobile and the cash paid left a balance of $360 due as the cash price of the automobile that he purchased. He, however, signed a contract, which stated that the total time price was $793.50; that the down payment was 50 per cent., and the amount of the note $396.70. This amount was to be paid in monthly installments of $39.67 each. The first installment was due January 29, 1927. The agreement between the purchaser and seller was that, if paid in full within 30 days, the balance would be $360. The difference between the cash price and the time price was interest, carrying charges, and insurance.
The contract signed by Stotts showed the amount of payments and when due, and there, in the face of the note, was written the following in ink: “1/29/29 received of W. E. Stotts $360 on this contract. Jonesboro Machine Co., by N. B. Stroud.
The contract provided that payments should be made to appellant, Kirkpatrick Finance Company, St. Louis, Missouri. It also retained title of the automobile until paid.
Stotts paid the $360, which was the amount due, less carrying charges, interest and insurance, within 30 days after he purchased the automobile. He never at any time made a payment to the appellant. The Jonesboro Machine Company, however, made five payments of $39.67 each to appellant.
It appears from the evidence that the appellant transferred the contract to the Industrial Savings Trust Comany, and thereafter the Jonesboro Machine Company became insolvent, and the Kirkpatrick Finance Company repurchased the Stotts note on May 27, 1929.
On August 7, 1929, the appellant brought suit in the circuit court against "W. E. Stotts and J. Q. Lane as trustee in bankruptcy of the Jonesboro Machine Company, alleging that Stotts, in December, 1928, purchased, under a conditional sales contract, a Ford automobile for the sum of $793.50, of which he paid in cash $386.80, leaving a balance of $396.70, payable in ten equal monthly installments of $39.67; that Stotts executed his note and contract, in which title to the car was reserved; that, after the execution of the note and before maturity of any installments, the plaintiff purchased the note from the Jonesboro Machine Company; that thereafter the Jonesboro Machine Company was adjudicated a bankrupt, and 'J. Q. Lane became its trustee; that Stotts defaulted in the payment in June, and that the balance due at the time of bringing the suit was $198.35, principal and interest; that Stotts refused to pay the balance, and judgment was asked for the $198.35 ivith interest.
There Ayas a specific attachment and summons served, and Stotts executed a bond and retained the property.
W. E. Stotts filed answer admitting the contract, but denied that he had defaulted in the payment of any installment, and denied all the material allegations in the complaint, alleging that he paid $433.50 at the time the contract was entered into, and executed his note for a balance of $360; that on January 21 he paid the balance, $360, to Jonesboro Machine Company, which was the agent of the plaintiff for the purpose of receiving payments from defendant and sending same forward to plaintiff; that the Jonesboro Machine Company had authority to, and did, collect from the defendant and other purchasers under similar contracts, and that the Jonesboro Machine Company remitted plaintiff the first five payments on said contract.
There was a trial by jury, and a verdict and judgment for defendant. '
Appellant introduced in evidence the note and contract, and the contract showed that at the time it was entered into there was printed on the back of the note: “For value received the within note is indorsed to Kirkpatrick Finance Company, St. Louis, Missouri, without recourse. Jonesboro Machine Company, dealer, by N. C. Stroud, Pres.”
R. C. Duffin, the secretary-treasurer of the Kirkpatrick Finance Company, arid general manager of said company, testified that the Stotts note was bought by appellant January 4, 1929; that the balance due on purchase price was $198.35, and that appellant did not authorize the Jonesboro Machine Company to act as agent for the purpose of receiving payments on the Stotts note, and never gave any general authority to the Jonesboro Machine Company to act as agents on any other contract; that the Jonesboro Machine Company might have been’ given specific authority to collect on certain notes and contracts, but not on the Stotts note; that the appellant sold a group of notes, but not all of its notes, to the Industrial Savings Trust Company; that it afterwards repurchased the Stotts note May 27,1929, and is now the legal owner of same; that the first four payments on the Stotts note came to the appellant in the form of dealer checks; that the Jonesboro Machine Company did not make the, collections at the request of appellant; that appellant notified Stotts that it had purchased his note, and that payments should be made to it.
The appellant received four letters from the Jonesboro Machine Company, each inclosing checks for the sum of $39.67. The last of these letters was dated April 18, 1929. Witness testified that on May 31, 1929, appellant received a check for $39.67 in the form of a money order; that the record is not clear as to who sent this payment.
W. E. Stotts testified in substance that he purchased the automobile for $735 and paid $360 cash, and gave Ms note for the difference; that at the time he entered into the contract he toM Mr. Stroud, the agent of the Jonesboro Machine Company, that he would pay the differencé in less than 30 days. He did pay it off in less than 30 days, and introduced the receipt signed by Jonesboro Machine Company, showing the payment.
The first he learned that the Kirkpatrick Finance Company was expecting payment was after' the. Jonesboro Machine Company went into bankruptcy. He signed the note sued on with the understanding that, if paid off in 30 days, he was to get $36 and some cents knocked off. The Jonesboro Machine Company was to hold the note 30 days. He understood that, if the note went away, the Kirkpatrick Finance Company was to own it. He received notice from the Kirkpatrick Finance Company that it had the note. He received other notices from this company. When he paid the $360, Mr. Stroud had already sent the note to the finance company. He notified .the Industrial Savings Trust Company May IS, 1929, that he had paid the note in full and held the receipt.
After he made the last payment, he went to Mr. Stroud, and he told him not to worry about it. Stroud told him that, if he paid the note within 30 days, he would, knock off the carrying charges and interest. 'The difference between $360 balance due and the amount of the note was interest, carrying charges and insurance.
Mamie Lilly testified in substance that she was working for the Jonesboro Machine Company at the time Stotts bought the car; that during the years 1927, 1928 and 1929 the average monthly sales of the Jonesboro Machine Company of new cars was about 30 a month, and half of the notes for the balance of the purchase price of these cars was bought by the Kirkpatrick Finance Company; that practically 15 cars each month were financed by the finance company for the Jonesboro Machine Company; that of over half these contracts the purchasers would make their payments to the Jonesboro Machine Company, and it would forward the money to the finance company. This continued up to the time of the bankruptcy of the machine company. There was never any objection from the finance company to that method of handling the business. Mr. Stotts paid his account in full to the machine company. The machine company did business with the finance company from 1925 on. She saw Mr. Stotts make the $3G0 payment. She sent five checks for $39.67 each to the finance company to apply on the Stotts note. The machine company did not notify the finance company at the time it collected the $360. The machine company went into bankruptcy in May or June, three years ago.
Emery • Buttrey testified that he was present when Stotts paid the note.
The appellant requested the court to submit to the jury three questions, or special findings, and these requests were refused by the court. This was in the discretion of the court. Railway Co. v. Pankhurst, 36 Ark. 371.
'The appellant and appellee both made requests for numerous instructions, which the court refused. The court gave some instructions requested by appellant, but it is not necessary to set out the instructions here.
The court gave, on its own motion, the following instruction:
“The plaintiff sues the defendant on a certain promissory note introduced in evidence, which the defendant admits that he executed, and the testimony of the plaintiff is to the effect that there is now due on said note an unpaid balance of $198.35, with interest. The defendant states that the full amount of the indebtedness represented by said note was paid to the Jonesboro Machine Company, and defendant contends that the said Jonesboro Machine Company is the agent for the Kirkpatrick Finance Company, and authorized to accept his said payment.
“You are instructed that the execution of said note having been admitted, the burden of proof is on the defendant to show that the indebtedness represented thereby has been paid in such manner as to discharge him from further liability thereon. There is no evidence in this case of express authority given to the Jonesboro Machine Company to accept payment of the note in question. Your verdict will therefore be for the plaintiff for the sum sued for, unless you find by a preponderance of the evidence that the Jonesboro Machine Company’s collection of the payment, if any, from the defendant was ratified and confirmed by the plaintiff with full knowledge of all the facts.”
There was a motion for new trial filed and overruled, and the case is here on appeal.
It will be noticed from the instruction given by the court that the only question submitted to the jury was the question of ratification, and the jury found that the acts of the Jonesboro Machine Company were ratified by the Kirkpatrick Finance Company.
The undisputed evidence shows that the Kirkpatrick' Finance Company had been doing business with the Jonesboro Machine Company since 1925; that the machine company sold on an average 30 cars a month; that half of these notes were purchased by the Kirkpatrick Finance Company, that is, the notes .for 15 cars a month, at least during'the years 1927, 1928- and 1929, and that the purchasers, during these years, paid directly to the machine company, and it, after collecting the money, would pay it to the finance company. In other words, the evidence shows that the transactions with reference (o the purchase of the car by Stotts, and the payments for same, were the same as characterized their dealings for the last, several years. It is also undisputed that the purchase price of the car was $735, and that $360 of this was paid at the time of the purchase. Not only were these transactions and dealings carried on for years, but the printed contracts showed that the purchase price was to be paid at the office of the finance company in St. Louis, Missouri.
In dealing with the machine company for years, and permitting the machine company to collect for it, the finance company not only knew of the method of doing business, but ratified it. It was bound to know that the payments made by Stotts were made to the machine company, because all of the payments that it received were received from the machine company, and not from Stotts.
The evidence also shows that it was the agreement between Stotts and Stroud, of the machine company, that, if Stotts would pay the balance within 30 days, the balance would be $360. There is no dispute about this $360 being paid.
Stotts testified that the difference between the $360 and the amount named in the contract was for carrying charges, insurance and interest. If it were paid in cash or within 30 days, there would be no carrying charges, and the finance company would not have to carry insurance, and there would be no interest.
When all the facts and circumstances are considered, they show a ratification by the Kirkpatrick Finance Company of the acts of the Jonesboro Machine Company. The evidence shows that there was no objection at any time made by the Kirkpatrick Finance Company, and doubtless would have been none but for the bankruptcy of the Jonesboro Machine Company.
A principal cannot ratify a portion of an unauthorized transaction and not ratify the whole of it. He cannot avail himself of acts that are beneficial to him and repudiate the acts that are detrimental to him. '21 R. C. L. 923.
There need not be an express ratification, but ratification may be, and frequently is, implied from the acts of the parties, and when the facts justify the conclusion that the principal has ratified the acts, it is as effective as if there had been an express ratification.
Ratification, like agency itself, may be either established or disproved by the facts.
“In a great majority of the cases the ratification of unauthorized acts of an agent need riot be and is not made expressly, but is implied from the acts and words of the principal, except where the ratification is required to be in a particular form. * * * As between tbe principal and third person dealing with an agent, less is required to constitute a ratification than is required between tbe principal and tbe agent.” 2 C. J. 488.
Less is required because a principal is frequently bound by tbe acts of tbe agent not witbin tbe scope of bis authority. He may bind tbe principal if bis acts are witbin the apparent scope of bis authority. In other words, tbe act of tbe principal may be such as to lead third persons to believe that an agent has authority that in fact be does not have. In such case, tbe principal would be bound as to third persons.
• Tbe evidence was sufficient to justify tbe court in submitting to tbe jury tbe question of agency as well as ratification, but the appellant cannot complain at this not being done, because tbe instruction given by tbe court was as favorable to it as it was entitled to.
Under a certain - set of facts a jury might find that the relation of principal and agent existed, without finding there was any ratification. If this bad been submitted to tbe jury in tbe instant case, there would have been substantial evidence to justify a finding that tbe relation of principal and agent existed, but, as we have already said, tbe appellant cannot complain at this action of tbe court, and the appellee has made no objections to the court’s refusal to instruct on tbe question of principal and agent.
.Whether there was or was not a ratification was a question of fact for tbe jury. There is substantial evidence to support its verdict, and tbe judgment is affirmed. | [
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Butler, J.
The appellee, Herman Feldman, is engaged in the wholesale supply business in the city of Helena, Arkansas, and purchased from the appellant, Wizard, Inc., a quantity of insecticide called “Flyded.” He signed a written order for the merchandise, which was accepted by the appellant, and the merchandise shipped on March 1st, in accordance with the terms of the order, and received by appellee in due time. The total sum for the goods ordered was $603.04, due within thirty days. Payment not having been made within this time, suit was instituted, and defense was made that the merchandise was purchased with the express agreement that it was to be held by Feldman for the account of the appellant, which agreed to send its representative to Helena for the purpose of putting on an advertising campaign, and with the further agreement that the merchandise was to be sold to the trade by the representative of the seller. It was alleged that the latter failed to comply with this agreement, which breach Feldman pleaded as a complete defense.
Subsequently, by amended answer, he interposed the additional defense that the merchandise was sold as a fly-killer, and under an implied warranty that it was fit for the purpose of killing flies, and that it wholly failed and was unfit for the purpose for which it was purchased.
On the trial, this defense was abandoned. There was .a verdict and judgment for the appellee, from which judgment is this appeal.
The appellant introduced the original order for the merchandise, which recited that it was sold to the appellee and the purchase price of the same, and that “no terms valid not stated on this order: not subject to countermand.” The only testimony for the appellee was that of himself and an employee. They testified that the contract was signed in duplicate, the original being retained by the salesman and a copy given to Feldman; that, before he signed the order, the salesman stated that he would put on an advertising campaign, and that “he would come down and conduct a specialty campaign to sell the goods. ’ ’ They testified that, after having signed the order, Feldman called attention to the fact that there was nothing said in the order about the representative of the seller conducting the specialty campaign, and that the salesman, then stated that he was in a hurry then but would write the stipulation regarding the specialty campaign into the order before sending it in. They testified further that the goods were received, that they began to attempt to sell the same, and did sell some of it — -how much not being shown by the testimony. The employee stated that it was a small percentage. ’¡Both of them testified that the salesman who had taken the order came back to Helena after the goods had been received, and said that he was going out the next morning “to do some work for us, but he didn’t do it”; that they received a.letter from him in the morning mail to the effect that he was called out of town, but would be back to sell them again; that he never came back.
A letter was introduced in evidence from F'eldman to the appellant, dated July 19, 1930, in which, after referring to some previous letters, he stated that he was unable to sell the insecticide, and that in “about a month or more” the salesman came and told the employee he had come to sell that stuff, but had gone away without doing so, and asked that the appellant take back the goods. He complained that the customers would not pay for the goods they purchased — “they don’t pay,-or they return it, or they wait till we pick it up ’ ’ — and in conclusion asked the appellant for shipping instructions, and notified it that he was holding the goods for it.
The court instructed the jury that the burden was upon the defendant to establish the defense set up, namely, “that at the time the contract was entered into between the plaintiff and the defendant that the agent of the plaintiff agreed to insert certain things in the contract, as shown by the evidence, and did not do it as he agreed to do before sending in the order; if you find that the agent agreed to write that into the contract and failed to do it and sent it in, and that the company failed to comply, although you might find that this addition had not been inserted in the contract. If you find the company sent a man here to help them advertise it and sell it; if you find they sent a man here to advertise it and sell it, then you should find for the plaintiff. If you find that the plaintiff took the contract with the agreement with the defendant that he would write that in the order, and that he failed to do it, and that the company failed to send the agent down, here to assist the defendant in making the sales, according to the clause to ¡be written into the contract, then you should find for the defendant.”
The record shows that counsel for the plaintiff requested the court to orally instruct the jury to the ‘ ‘ extent that if Feldman sold a part of the merchandise in question, that such was a ratification of the contract, and they should find for the plaintiff, even though the salesman had agreed to write additional terms in said contract.” The court refused-“said instruction because the testimony did not show whether the sales were made before the agent came down here and failed to put on the campaign advertising it or after he came. ’ ’
Upon the instructions given and the testimony adduced, the case was submitted to the jury, which returned a verdict in favor of the appellee. Judgment was entered in accordance with the verdict, from which is this appeal.
It is insisted by the appellant that the testimony of Feldman and the employee is so unreasonable as to make it obviously impossible for it to be true. While it may be improbable, we do not think it is of such a nature as to render it reasonably impossible for it to be true, and, under the settled rule that the jury are the judges of the credibility of the witnesses, we have no right to disregard ' that testimony, it not being of the character of that rejected by this court in Waters Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342, and Platt v. Owens, 183 Ark. 261, 35 S. W. (2d) 358.
It is next insisted that the testimony was incompetent because it tended to vary and add to the written provisions of the order. On the other hand, the appellee con- - tends that the purpose of the evidence was not to vary or contradict the terms of the contract, but to show that the contract offered in evidence by the appellant was not in fact the contract entered into, and, to sustain this position, relies on the cases of Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586, 94 S. W. 713; Pickler v. Arkansas Packing Co., 112 Ark. 33, 164 S. W. 764; Worthen v. Stewart, 116 Ark. 306, 172 S. W. 855; White Sewing Machine Co. v. Atkinson & Son, 126 Ark. 206, 190 S. W. 111; Case Threshing Mch. Co. v. Southwestern Veneer Co., 135 Ark. 607, 205 S. W. 978; Pictorial Review Co. v. Rosen, 171 Ark. 720, 285 S. W. 385; New Home Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314.
Without reviewing these cases at length, it may be said that they are distinguishable from the case at bar, for in all of them the element of fraud entered into the procurement of contract and were conditions precedent to their validity. Here the contract was not induced by any fraudulent misrepresentation as to character of the. article sold. It is unambiguous, executed in duplicate, signed by Feldman, and the copy kept by him. It negatives his contention that the goods were shipped to him for the account of the seller (Reuter Milling Co. v. McKinney, 170 Ark. 84, 278 S. W. 963), and shows an uncon ditional contract of purchase and sale. The testimony relative to the agreement to do specialty work and assist in the sale tended at best to establish merely an independent agreement collateral to the main issue, and was a promissory representation of an intention as to some act in the future. Such representations are not conditions precedent to the validity of the contract, and the failure to perform them does not entitle the buyer to disavow the contract and refuse the payment of the purchase price. Similar representations as in the instant case were considered in the cases of Whitmore v. Scoggin, 147 Ark. 236, 227 S. W. 610; Stevens v. Chatfield, 230 Ky. 194, 18 S. W. (2d) 1006; Stevens v. Smotherman, 223 Mo. App. 1078, 24 S. W. (2d) 670; Security Savings Bank v. Capp, 193 Iowa 278, 186 N. W. 927; Marshall Mill Co. v. Hintz-Cameron Co., 156 Minn. 301; Fleming v. Gerlinger Motor Car Co., 286 Or. 195, 168 Pac. 289. And in all of them the views we have reached were adopted. The court therefore erred in its declaration of. law, and the judgment is reversed, and the cause remanded. | [
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Butler, J.
This action was instituted by appellee against appellant, Northwestern Casualty &> ’Surety Company, to recover from appellant under an automobile liability insurance policy for sums appellee expended for medical bills and hospital bills for one Ben D. Bonner, struck by appellee’s automobile.
On the trial of the case the appellant took the position that it was not liable for medical and hospital bills because of the following provision in the policy: “The assured shall co-operate with the company at all times in facilitating the disposition of claims and suits, but shall not voluntarily assume any liability nor incur any expense or settle any claim except at his own cost without written consent of the company. In case of personal injury, the assured may provide at the company’s expense such first aid as is imperative at the time of the accident. ”
Upon this theory the appellant first requested a peremptory instruction for a verdict in its favor, and, such instruction being refused, it requested by instruction No. 2 a declaration that the appellee was only entitled to recovery for expenses incurred in securing immediate aid necessary at the time to relieve the sufferings of Bonner, and to see that he reached a place for treatment. The court refused to give instruction No. 2 as requested, but modified the same by adding the words, “unless Mr. Eose was liable to Mr. Bonner for his injury and damages.” The instruction, as modified, reads as follows: “You are instructed that in this case plaintiff is entitled to recover only for such immediate and imperative aid as was necessary to at the time relieve the sufferings of Mr. Bonner, unless Mr. Eose was liable to Mr. Bonner for his injury and damages.”
The trial resulted in a verdict in favor of the appellee for $1,640.05, the amount admittedly expended for medical bills and hospital fees.
Hospital charges and expense of medical treatment and such other expenses as are necessarily incurred in the usual and ordinary treatment, of a victim of an accident are among the damages which are the direct and proximate result of the injury for which a recovery may be had against one whose negligent conduct causes the injury, and therefore come within the terms of a liability ..insurance policy such as the one before us, by which the assured is indemnified against liability for damages suffered by any person on account of the .operation by the assured of an automobile causing the injury. U. S. Casualty Co. v. Johnson Drilling Co., 161 Ark. 158, 255 S. W. 890, 34 A. L. R. 727.
The appellant now concedes the rule announced and the correctness of the court’s modification of its instruction No. 2, but insists that there could be no recovery except for the expenses of first aid because the evidence does not justify the finding that the -appellee was liable for the accident. After the appellant was notified of the accident, it procured an explanatory statement from Mr. Rose, and, presumably after other investigations, settled with Mr. Bonner, the injured person, for $5,000, exclusive of the amount expended by Mr. Rose for hospital and medical attention for Bonner, and, during the course of the settlement with Mr. Bonner, Mr. Rose was advised by the appellant that Bonner was willing to accept $5,000 in settlement provided the former would assume for his own account the medical and hospital bills which he had paid. This Mr. Rose declined to do. Because of this refusal and the contention of the appellant as to the law of the case noted above, it seems that the testimony regarding the accident was not fully developed, the only testimony taken with respect to the same being that of Mr. Rose himself. We, however, are of the opinion that this was sufficient to warrant the jury in finding that there was liability. It is the well-settled rule that the duty rests upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, as he should anticipate their presence upon such streets and their equal right to their use. Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391; Byrd v. Galbraith, 172 Ark. 219, 288 S. W. 717; Smith A. T. Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052; Duckworth v. Stevens, 182 Ark. 161, 30 S. W. (2d) 840; Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110.
It is the rule arising from, common custom and recognized by law (Acts 1927, p. 721, § 9; Huddy, Cyc. Auto Law, vols. 3, 4, p. 157) that it is the duty of the driver of a motor vehicle to keep to the right of the road, and whether this is done or not is a matter to be considered by the jury in determining the question of negligence. The accident to Bonner occurred on Woodlawn Avenue, just beyond where it passes out of Prospect Ave nue. Woodlawn does not leave Prospect at a right angle, as is usual in city streets, hut at less than a 45 degree angle, so that on leaving Prospect and entering Wood-lawn one has a clearer view of the way ahead than where a street crosses at right angles. Mr. Rose was driving to his home on Woodlawn and -approached on Prospect Avenue, turning into Woodlawn, driving at about the center of the street because it was a gravel street, and he was selecting the smoothest part of the road. This was on the 16th day of November, on a rainy evening. It was dark, but the street lights h-ad not yet been turned on. He had passed the intersection of Prospect and Woodlawn about four car lengths “when all at once a man loomed up in front,” who-appeared to be walking toward Rose. Rose thought the man too close to apply his brakes and stop the car, and thought that he could avoid striking him by turning quickly to the right. This he did but did not accomplish his purpose, striking the man with the left lamp and fender of his car, causing him to fall and the wheels of the car to pass over him. There was no one present at the time of the accident except Mr. Rose, the driver of the car, and Mr. Bonner, who received the injury. Within a short time, however, some one came who telephoned for an ambulance, and Bonner was taken to the hospital at the direction of Rose, where he was treated for about a week, and it was then deemed necessary to amputate his left leg. This operation was performed, and Mr. Rose paid the hospital expenses, including nurse’s hire, surgeon’s fees and other necessary expenses, amounting in all to the sum sued for.
The testimony is silent with reference to the direction from which Bonner was crossing the street, but it is reasonable to infer that it was from the left of the driver of the automobile, as the left light and fender knocked him down. The manner in which Woodlawn leaves Prospect Avenue does not require any considerable slowing down of a car to make the turn, -and it was in testimony that the car was being- driven at about 18 miles an hour and was slowed down somewhat on entering Woodlawn. There is no testimony as to whether or not the horn was sounded on making the turn or as to whether the headlights of the car were burning. If the lights on the car were not burning, it would have been extremely difficult to see ahead at all, and the jury might have inferred that, under the conditions then existing, the lights were burning, and, if so, that they cast light a sufficient distance ahead to enable Bonner’s presence on the street to have been discovered in time for the driver of the car to stop the same by an application of the brakes, or to have turned it to the righthand side of the street where it properly belonged, and thus to avoid the injury to Bonner. There was no question raised as to the contributory negligence of Bonner, nor is there any evidence regarding his actions except the impression of Mr. Rose, who stated that “he was angling across the street,” and that the point of accident was not at the crossing. It must have been very near the crossing, however, since the accident occurred just after the car was- “straightened out on Woodlawn, and in about the center of the street.” All of these circumstances raised a question of fact as to whether or not the appellee was in the exercise of ordinary care, and such circumstances-are sufficient to sustain the finding that he was not.
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Butler, J.
This cause was submitted to the chancellor on the complaint of plaintiff, Dollie Mae Martin, the answers of L. A. Reed, the Progressive Building & Loan Association, and of the appellant, together with the exhibits thereto and the following stipulation:
“Itis agreed by and between the parties hereto and their respective counsel of record that this cause may be submitted to the court on the following agreed statement of facts covering all the issues except as to the question of agency on the part of L. A. Reed for Progressive Building & Loan Association.
“On July 11, 1929, E. L. Kendrick, who is the common source of title to lot 6 of block 4 of Triangle Subdivision to the city of El Dorado, Union County, Arkansas, was the owner of said property. 'On said date he executed a mortgage to Progressive Building & Loan Association conveying to the said association said property to secure the payment of an indebtedness in the sum of $2,000, with interest at the rate of 9 per cent, per annum, to be repaid in monthly installments. Thereafter, on August 6, 1930, Commonwealth Building & Loan Association obtained a judgment against the said Kendrick in the Union Chancery Court in the sum of $2,480.17, which judgment constituted a mortgage lien against other property held in the name of Kendrick, but only a general judgment against the property in controversy. The property against which the judgment con stituted a mortgage lien was sold on September 9, 1930, for the sum of $1,250, which amount was credited on the judgment against Kendrick, the remaining portion thereof, together with accrued interest thereon, remaining unpaid. Thereafter, on October 22, 1930, Kendrick conveyed the property here in dispute to L. A. Reed for the sum of $10 and the assumption of the Progressive Building & Loan Association’s mortgage indebtedness. Thereafter, on December 1, 1930, Reed conveyed the property in controversy to Dollie Mae Martin by deed of general warranty, in consideration of the sum of $400 and the assumption of the Progressive Building & Loan Association’s mortgage indebtedness. Thereafter, on February 3,1931, Mrs. Martin paid to the Progressive Building & Loan Association the amount due under its mortgage, and said association entered a full satisfaction of the mortgage from Kendrick to it. Mrs. Martin borrowed $1,000 of the money which she paid to the «association, and executed her mortgage covering the property in controversy to secure said sum, and paid the balance from her own personal funds; but the mortgage from Mrs. Martin has never been filed for record.
“The instruments herein referred to may be read into the record in the trial of this cause before the court.
“The Commonwealth Building & Loan Association contends that its lien is now a first lien against the property in controversy, the mortgage indebtedness having been satisfied. Mrs. Martin concedes that the association can redeem the property by repaying her the amount expended in paying the mortgage of the Progressive Building & Loan Association, but denies its right to proceed against the property free and clear of the mortgage debt. ’ ’
In addition to the facts set out in the foregoing stipulation, plaintiff alleged that at the date of the execution by Kendrick of his deed to Reed and on the date of the deed from Reed to her the judgment in favor of the appellant against Kendrick was outstanding and unsatisfied ; that because of this the covenant of warranty in her deed was breached. She further alleged that Reed, her grantor, was the agent of the Progressive Building & Loan Association, and that the deed taken by him from Kendrick was in satisfaction of the mortgage of his principal. The complaint concluded with the prayer that appellant be required to assert any interest it claimed in the property, that her grantors be required to defend against any claim of appellant, and with a prayer for judgment against the defendants* Kendrick and Reed, for any indebtedness which might be established “by said Commonwealth Building & Loan Association against the property herein described and for all further and proper relief.”
The court found that the deed from Reed to the appellee contained a covenant of warranty against incumbrances, and that it did not mention the judgment lien of the Commonwealth Building & Loan Association, and therefore, “upon the execution and delivery of the deed, said covenant of warranty was broken, and that plaintiff is thereby entitled to recover of and from the said L. A. Reed and Lillian Reed, his wife, nominal damages in the sum of $1, together with all costs in this cause including a reasonable attorney’s fee, which the court finds to be the sum of $100.” The court further found that the appellee had paid the mortgage indebtedness due the Progressive Building & Loan Association which had entered a full satisfaction on the records, and thereby the appellee was subrogated to the rights of said association, but that it (appellant) might redeem said property by paying to appellee the amount of indebtedness due the Progressive Building & Loan Association which she had discharged. Judgment was rendered in accordance with these findings, and the complaint dismissed as to the defendant, Progressive Building & Loan Association.
L. A. Reed has not appealed from that decree, the appeal here being taken and prosecuted by the appellant, Commonwealth Building & Loan Association, which makes two contentions for reversal, as follows-:
1. Appellee is bound by her allegation that Reed was agent of Progressive Building & Loan Association, and is therefore precluded from any relief as against appellant.
2. Appellee has neither pleaded nor proved that she lacked knowledge of appellant’s lien at the time she bought the property in question, and is therefore precluded from any relief as against appellant.
. The appellant argues that by appellee’s own allegation there was no mortgage extant when she acquired the property from Reed, but that the mortgage was discharged and satisfied by the conveyance from Kendrick to Reed, who was acting as agent for the Progressive Building & Loan Association, and that the deed was taken in discharge of the mortgage debt. It contends that these allegations were admitted by it in its answer, and that appellee could not take a position contradictory to the allegations of her complaint, as such had not been denied.
We do not agree with the contention made for the reason that the allegations as to the agency of Reed, and that he took the conveyance from. Kendrick to himself as agent of the Progressive Building & Loan Association in satisfaction of the debt from Kendrick to it were denied by both Reed and the loan association. No evidence was taken on this issue, and it was abandoned, and the court dismissed the complaint as to the Progressive Building & Loan Association.
The real question in this case is that contained in the second contention made by the appellant, and in this we are of the opinion that it is wrong. It was agreed that, after Reed conveyed the property to appellee, she paid the amount due under the mortgage, having borrowed $1,000 of the amount and paying the remainder from her own personal funds. It was clearly to the interest of the appellee to succeed to the rights of the mortgagee, and it must be presumed that this was her intention, in the absence of any affirmative showing of intention as to the outstanding judgment lien of the appellant, or that she had knowledge of its existence.
“And the rule supported by the weight of authority is that when a purchaser pays off a prior incumbrance as a part of the parchase price, without actual notice of a junior lien, it will be presumed that he paid the same for his own benefit, and the protection of his own interests, and equity will treat him as the assignee of the previous incumbrance, and will revive and enforce it for his benefit. Having caused the same to be satisfied under circumstances authorizing an inference of mistake of fact, equity will presume such mistake in order to give the party the benefit of the equitable right of subrogation; and, in so doing, prevent injuries and hardship, without interfering with intervening equities.” 25 It. C. L. 1353,
“The general rule is that the lesser estate in land will merge in the greater whenever the two estates are owned by the same person. This rule, however, does not apply where such merger would be inimical to the interests of the owner; hence, unless the intention to merge with knowledge of a junior lien or liens clearly appears, no merg-er results from the acquirement by the holder of a senior mortgage of the interests of the mortgagor, and the senior mortgage retains its priority as against all junior or intervening liens upon the mortgaged property; and this rule is true whether the interest of the mortgagor is the legal title to the land, or the mere equity of redemption. 39 L. it. A. 384.
The doctrine above announced is supported by the weight of authority and numerous decisions announcing and applying it have been cited by counsel for appellee in his brief. Among these are the following cases: Mallory v. Hitchcock, 29 Conn. 127; Smith v. Dinsmoor, 119 Ill. 656, 4 N. E. 648; Artz v. Yeager, 30 Ind. 677, 66 N. E. 917; Putnam v. Collamore, 120 Mass. 454; Tucker v. Crowley, 127 Mass. 400; Bell v. Tenny, 29 Ohio St. 240; Senter v. Senter, 87 Ohio St. 377, 101 N. E. 272; Dollar Sav. Bank v. Burns, 87 Pa. 491; Harris v. Masterson, 91 Tex. 171, 41 S. W. 482.
The appellant has shown no equity in this case calling for the application of the doctrine of merger, and, on the other hand, its application would work a manifest injustice to the appellee which ought not to be done. Simpson v. Robinson, 37 Ark. 132. In many cases it has been our policy to apply the doctrine of subrogation, where by so doing the ends of justice will be met (Chaffee v. Oliver, 39 Ark. 531; Cohn v. Hoffman, 45 Ark. 376; Neff v. Elder, 84 Ark. 277, 105 S. W. 260, 120 Am. St. Rep. 67; Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S. W. 1082, 46 L. R. A. (N. S.) 1019; Rowland v. Griffin, 179 Ark. 421, 16 S. W. (2d) 457) and to deny mergers where an injustice would follow.
In the case of Bemis v. First Nat. Bank, 63 Ark. 625, 40 S. W. 127, it is said: “It is admitted in argument, and cannot be successfully controverted, that a merger will never be presumed against the interest of the party taking the deed; but it is claimed that ‘this rule only applies in the absence of evidence tending to- show a merger.’ That is a mild way of stating it. Mergers are not favored either in courts of law or equity, and it requires evidence to show that the interests of him who holds both rights will not be prejudiced, before the rule allowing a merger will be applied; and it is hardly sufficient that the evidence tends to show a case for the application of the rule. We do not intend by this discussion to admit that the evidence shows this to be a case where a merger can be made, but, rather, how far the courts will lean towards the real interest of the holder of the two rights; and, in so doing, how strong the evidence must be to sustain the merger.”
The decree of the trial court is correct, and it is therefore affirmed. | [
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Mehaeey, J.
On May 15, 1929, the appellees, McGill Brothers, delivered a shipment of rice to the St. Louis Southwestern Railway Company at Stuttgart, Arkansas. The shipment was consigned to the order of McGill Brothers Rice Mill, Cincinnati, Ohio, with directions to notify the American Diamalt Company.
The St. Louis Southwestern Railway Company delivered the shipment to the Baltimore & Ohio Railroad Company, which company transported it to Cincinnati. When the rice was shipped the McGill Brothers drew a draft for the amount of the shipment, $1,106.85, which draft, with the bill of lading attached, was sent to the Provident Savings Bank So Trust Company of Cincinnati, Ohio. The draft was drawn on the American Diamalt Company, payable to the First National Bank of Stuttgart, Arkansas.
When the shipment reached Cincinnati, the American-Diamalt Company secured the bill of lading from the Provident ‘Savings Bank So Trust Company, and the draft was marked “Paid.” The bill of lading delivered to the railroad company was canceled.
On July 5,1930, A. U. McGill and H. T. McGill, doing business as McGill Brothers Rice Mill, and the. First National Bank of Stuttgart filed suit in the Arkansas Circuit ■Court ag’ainst the • St.' Louis Southwestern Railway Company.
The complaint alleged the delivery of the rice to the railway company; th$t the shipment was consigned under shipper’s order bill of lading with draft attached. The bill of lading provided for the notification to the American Diamalt Company, Cincinnati, Ohio, and the complaint alleged that the defendant undertook to transport said rice under the terms of said bill of lading; that the bill of lading was duly indorsed and a draft for $1,106.85 drawn on the American Diamalt Company was attached; that- the draft with the bill of lading- attached was delivered to the First National Bank of Stuttgart, and by it forwarded to the Provident Savings Bank & Trust Company of Cincinnati; that the American Diamalt Company paid the draft to the Provident Savings Bank & Trust Company and the bank delivered the bill of lading and draft to the American Diamalt Company, and it indorsed said bill of lading and presented it to the agent of the connecting carrier, the Baltimore & Ohio Railroad Company ; that the railroad company marked the bill of lading canceled, and delivered the shipment of the. rice to the consignee who accepted said shipment; that thereafter the Baltimore & Ohio Railroad Company wrongfully surrendered and delivered back to the American Diamalt Company the bill of lading and received back into its possession the shipment of rice.
It alleged a , conspiracy between the 'Baltimore & Ohio Railroad Company and the American Diamalt Company, by which the draft was returned and the money refunded.
It was also alleged that the St. Louis Southwestern Railway Company with knowledge consented to the action of the Baltimore & Ohio Railroad Company and Ameri can Diamalt Company, and that the Baltimore & Ohio Railroad Company wrongfully took back the shipment of rice and held and disposed of it; that the rice was of the grade and quality agreed to be sold, and was of the value of $1,106.85, and that the McGill Brothers Rice Mill was damaged in this amount.
The St. Louis Southwestern Railway Company filed answer, admitting the delivery of the rice, the indorsement of said bill of lading by McGill Brothers, and that the draft was attached. It denied any knowledge of receiving and accepting back by the Baltimore & Ohio Railroad Company, and denied any knowledge of the grade or quality of the rice.
On February 17, 1931, an amendment to the complaint was filed alleging that the defendant and its connecting carrier, after making surrender and delivery, surrendered back the bill of lading and assumed possession and control of the shipment, and demanded that the plaintiffs pay freight, demurrage and storage, and that they thereafter sold said rice.
The complaint alleged that the defendant and its connecting carrier made false entries showing that no delivery had been made, and no acceptance of the shipment.
Thereupon the St. Louis Southwestern Railway Company filed motion to make amendment more specific, which motion was by the court overruled.
The cause was then continued until the August, 1931, term of court. On June 25,1931, another amendment was filed joining the appellant, the Baltimore & Ohio Railroad Company, as defendant, and the Chicago, Rock Island & Pacific Railway Company as garnishee, alleging that the Baltimore & Ohio Railroad Company was liable under its complaint, and that the Chicago, Rock Island & Pacific Railway Company was indebted to the Baltimore & Ohio Railroad Company in the sum of $2,000, and prayed for a writ of attachment and garnishment. Affidavit and bond were filed, warning order was issued and published, and attorney ad litem appointed for the Baltimore & Ohio Railroad. Company.
On July .31, 1931, another amendment was filed to the complaint Alleging bankruptcy of McGill Brothers, and that Charles G. Miller and Virgil C. Pettie were receivers, and joining them as plaintiffs.
It also alleged in an amendment that Charles G. Miller, Virgil C. Pettie and R. B. Westbrook were duly elected trustees in bankruptcy, and joining them as parties plaintiff.
There was a motion filed by the St. Louis Southwestern Railway ■ Company, asking the dismissal of the complaint as to the First National Bank of Stuttgart.
On August 3, 1931, the Baltimore & Ohio Railroad Company, after filing a motion to dismiss as to the First National Bank of Stuttgart, filed its answer denying all the material allegations in plaintiff’s complaint, and also filed a cross-complaint praying judgment for expenses in the sale of the rice and other charges amounting, after deducting the price the rice sold for, to $475.86.
A reply was filed to the cross-complaint, and then on August 4, 1931, the Baltimore & Ohio Railroad Company filed 'a motion for continuance, on the ground that it had no knowledge of any claim against it until a few days before that time; that its witnesses lived in several States, none of them living in Arkansas, and on the same day it filed an amendment to its motion for continuance and amendment thereto. These motions gave the names of the witnesses, where they lived, and what their evidence would be if present.
The attorneys for plaintiffs announced in open court that they would concede that each and all of the witnesses would testify, if present, as statedfin the motion, and the court thereupon overruled said motion for continuance.
When the case was called for trial on August 5,1931, the Baltimore & Ohio Railroad Company announced that, since the filing of the motion for continuance and amendment thereto, it had learned that J. B. Brodberger was a necessary witness, and set out what he would testify to if present. The motion for continuance as amended was overruled and exceptions saved.
There was a jury trial, and a verdict for appellees against the Baltimore & Ohio Railroad Company for the amount sued for. Motion for a new trial was filed and overruled, and the case is here on appeal.
Appellant first contends that the case should he reversed because the court overruled its motions for continuance. When the motion was filed, appellees admitted that, if the witnesses were present, they would testify to the statements contained in the application for continuance.
The section of the Digest governing continuances reads as follows: “A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and, if it be for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, that the affiant himself believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement. If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. Provided the opposite party may controvert the statement so set forth in the said motion for continuance by evidence.” Section 1270, Crawford & Moses’ Digest.
The warning order was issued on July 24,1931, and the appellant filed its answer on August 3, 1931. It was not required to answer until 30 days, but it did file answer on August 3rd, and the case was therefore ready for trial, except for the absence of appellant’s witnesses. If the case had been postponed, appellant says that it would have taken the depositions of witnesses because most of them were not in its employ. It had all the advantages that it would have had by taking depositions, because the statements of the witnesses were read to the .jury as evi deuce. If depositions had been taken, the appellees would have had an opportunity to cross-examine the witnesses. In order to get a trial, however, they admitted that the witnesses, if present, would testify to the statements prepared by tbe attorneys for appellant.
They not only bad no opportunity to cross-examine them, but tbe statements prepared were doubtless as favorable to appellant as tbe attorneys thought tbe facts would justify, and tbe statute was strictly complied with by permitting appellant to introduce these statements in evidence.
There was no claim made by appellant that it would have tbe witnesses present in court to testify; on tbe contrary, it said that their depositions would be taken, most of them not being in its employ.
Appellant calls attention to a number of cases decided by this court, all of which bold that it is within tbe sound discretion of tbe court to grant or overrule a mo- „ tion for continuance, and that tbe granting or overruling a motion for’continuance will not be disturbed unless tbe trial court á'bused its discretion to tbe injury of tbe party presenting tbe motion.
Tbe earlier cases to which attention is called by tbe appellant were under a statute very different from tbe present statute. Tbe statute as to continuances that was in force prior to tbe section of Crawford & Moses’ Digest above quoted provided that tbe adverse party might prevent the postponement of a trial by admitting that tbe statements which tbe party claimed tbe witnesses would testify to were true. Civil Code, page 112.
Under tbe former statute, if one admitted that the witnesses would testify as stated by tbe party making tbe motion, be must also admit that the statements were true. They could not be contradicted at tbe trial. For this reason tbe party generally could not get a postponement of tbe trial, because be could not afford to admit that tbe things set up in the motion were true. The earlier cases were therefore decided on tbe statements in tbe motion alone.
But- this court has uniformly held that the granting or refusing a motion for continuance is in the sound discretion of the trial court, and this court will not interfere with the exercise of this discretion, unless the action of the trial court is plainly erroneous, and is a clear abuse of its discretion. Bankers’ Fire Ins. Co. v. Williams, 176 Ark. 1189, 5 S. W. (2d) 916; Missouri Pac. Rd. Co. v. Sloan, 176 Ark. 179, 2 S. W. (2d) 15.
It is true, as stated by appellant, that it had never been made a party until June 25th, but it is also true that it knew several months prior to this time that the appellees claimed that appellant was liable to them because it had delivered the shipment to the consignee and had received back the bill of lading and thereafter repossessed itself of the property, returning the bill of lading with some altered indorsement to the consignee.
It therefore appears that it knew what the claim of the appellees was, and it does not appear that it would have had any other or different testimony from what it was permitted to introduce, or what it might have introduced.
It is next contended by appellant that there is no proof of adjudication in bankruptcy, or the appointment and qualifications of trustees, or their authority to maintain the suit, and it calls attention to numerous authorities as sustaining its contention. First, it calls attention to subdivision b of § 11 of the Bankruptcy Act of 1898, 11 USO A, § 29 (b). That simply provides that the court may order the trustee to enter his appearance and defend any impending suit against 'the bankrupt. This was not a suit against the bankrupt, but a suit begun by McGill Brothers, who afterwards went into’bankruptcy, and we know of no provision - of the Bankruptcy Act that prohibits trustees in bankruptcy from being substituted or joined as parties plaintiff.
One of the cases referred to by appellant is Callahan v. Israel, 186 Mass. 283, 71 N. E. 812. In that case the court expressly stated: “It was not the intention of Congress that a trustee could not make a demand for payment, re ceive money offered him in payment, or take any of the nsnal means to collect and reduce to money the estate, the title of which had vested in him, without some specific direction so to do. That clause was merely intended to 'give to the court power to direct the proceedings of its trustees if occasion for such direction should arise in any specific instance, and not to place upon the court the burden of giving constant directions as to the reducing of the property to money. The title to the estate is vested in the trustee. * * * There is no reason to hold that he has not the right of an owner to bring suit to collect his property, save as it is clearly expressly limited by the act.”
The act, as we have already said, has reference to suits against the bankrupt.
Appellant also calls attention to the case of In re Price, 92 Fed. 987. The court held in that case that it could make no order requiring- the receiver in a State court to transfer assets to the trustee in bankruptcy. It was said the receiver is an officer of the 'State court, and the court held that, while the title to the property was in the trustee, this did not authorize one court to interfere with the property lawfully in the possession of another, and what the court in the last-mentioned case with reference to its order said was that an order might be made authorizing the trustee to apply to the State court for an order directing the receiver to transfer property, and to that end the trustee may be substituted as plaintiff.
In another case referred to by appellant, Western Star Lodge No. 24, F. & A. M., v. Burkes Construction Co., 267 Fed. 550, the court said: “We do not understand that any one can make himself a party plaintiff or defendant in an equity case by simply filing a paper therein asking- to be made a party. It takes the judicial action of the court.”
That means the court where the cause is pending. It requires the permission of the court to be made a party. But, as to the right of the trustees to be made parties, and also as to their election and qualification, the appellant cannot complain. After they had been made parties, appellant filed a cross-complaint against all the plaintiffs, which included the trustees in bankruptcy, and it cannot now be heard to say that they were not qualified trustees or that they had no right to appear as plaintiffs.
It is finally contended that the evidence is insufficient to support the verdict. It is stated by appellant that the majority rule holds a delivery complete when notice has been given to the consignee of the arrival of the goods, and a reasonable time after such notice for removal of the goods has elapsed.
The evidence as to what took place is in conflict, and it was therefore a question for the jury.
A. U. McGill testified that the bill of lading, the original of which was introduced, shows a cancellation stamp placed on it by the cashier of the Baltimore' & Ohio Railroad Company under date of May 22d. The car was delivered to the initial carrier May 15th. There was also indorsed on the bill of lading “No. 1238, date delivered, May 22, 1929.” McGill testified that the bill of lading shows that the shipment was delivered and bill of lading canceled on May 22d, and then' shows, by indorsement not dated, that it was returned to the American Diamalt Company after examination. He also testified that the bill of lading shows that it was handled through the Provident Savings Bank & Trust Company of Cincinnati, and that it bears the indorsement of the American Diamalt Company, by its auditor. He also testified that it was customary and necessary for the consignee to indorse the bill of lading to obtain delivery.
The draft and invoice were introduced in evidence, and it was shown that the draft was for the amount of the selling price, less the freight. McGill examined the draft when it came back to the Bank of Stuttgart, and it showed that it had been marked “Paid” by the Provident Savings Bank & Trust 'Company of -Cincinnati. He also said that it showed an erasure.
The evidence therefore on the part of the appellee was sufficient to submit to the jury 'the question of whether there had been a complete delivery to the American Diamalt Company and a payment of the draft. If there had been, neither the railroad company nor the consignee could chang-e the relation of the parties, and if the appellant, after the shipment had been delivered to the consignee and paid for, repossessed itself of the property, it did what it had no lawful right to do.
The evidence offered by the-appellant contradicted the evidence offered by appellee, not only as to what was done as to delivery and payment, but as to the quality and value of the rice. These, however, were questions of fact, and the jury’s finding is conclusive. This court cannot pass on the credibility of the witnesses, nor the weight to be given their testimony.
The appellant complains'about the instruction given at the request of the appellee. It is a lengthy instruction, and appellant’s objection is, first, that it fails to present the issues, and does not mention or indicate the defenses. The instruction would not be erroneous for this reason. It simply told the .jury that the questions at issue, naming them, were all questions of fact for them to determine, and that the burden of proof was on the appellees.
The next objection is that it unduly, emphasizes the evidence and theory of the plaintiffs. We do not agree with appellant in this contention. The instruction merely recites the facts pleaded by the appellee, telling the jury what is claimed by the plaintiff, 'but does not emphasize the evidence in any way.
It is next contended that the instruction in effect quotes the theory of the plaintiffs, and nowhere states the theory of the defense. It is not usual in requesting instructions by either party to state the theory of the opposing party, and in this case the theory of the appellant was stated in a number of instructions and so plainly that the jury could not have been misled.
It is next stated that the instruction is abstract, and finally that the measure of damages stated is inconsistent with the later instruction on damages. The jury were told in the instruction complained of that the appellee must prove by a preponderance of the testimony, among’ other things, that appellees had suffered a loss of $1,106.85, but, in giving the jury the form of a verdict, the amount of the recovery, if they found for the plaintiff, was left blank.
The court instructed the jury at appellant’s request that, if they found the shipment was tendered to consignee under the terms and provisions of the bill of lading, and was rejected for no cause occurring or happening in transit, they would find for the defendants.
They were also told at the request of the appellant that, if they found from the testimony that only such inspection took place at Cincinnati as was customary and usual under consignment shipments allowing inspection, then they would find in favor of the defendants, regardless of who had possession of the bill of lading during the period of such inspection.
The jury also were instructed that a delivery is not made until notice has been given the consignee, and a reasonable time allowed for its unloading or rejection, and, if the jury found that within a reasonable time the consignee rejected the shipment, they must find for the defendant.
They were also told in an instruction requested by appellant that the measure of damages was the fair market value of the rice at destination point.
There is no conflict between this instruction and the one given at request of appellees.
There was no error in the instructions, and the judgment of the circuit court is affirmed. | [
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Humphreys, J.
Appellant was indicted- in the circuit court of Logan County, Southern District, jointly with Bill Shepherd and Minus Rankin for the crimes of burglary and grand larceny, and convicted on both counts in the indictment and adjudged to serve a term of two years for the burglary and one year for the larceny in the 'State Penitentiary, from which is this appeal..
The first assignment of error by appellant for a reversal of the judgment is that the court erred in overruling his motion for a continuance to obtain the- testimony uf Miron Wright to the effect that he (appellant) was not present and did not assist Bill Shepherd and Minus Rankin burglarize the store of J. W. Iiipp in September, 1931, and did not steal or receive any part of the.stolen merchandise. The record does not dis lose that appellant requested the court to rule upon the motion nor that the court overruled same. Had the court overruled the motion, it would not have constituted reversible error because the appellant did not state therein that he believed the testimony of the absent witness to be true, which statement is required by §§ 1270 ■ and 3130 of Crawford & Moses ’ Digest.
The next assignment of error is that the court erred in not continuing the cause because of the absence of ' other witnesses whose testimony would have shown that appellant was not in company with his co-defendants at the time they burglarized the store. A continuance was not requested by appellant on account of the absence of the witnesses referred to, and, having failed to ask a continuance on account of their absence, he is precluded from raising that question in this court for the first time. He' should have raised the question before the trial court.
Appellant’s next assignment of error for a reversal of the judgment is that the court overruled the demurrer to the indictment on the ground that one of the grand jurors who returned the indictment was ineligible because he had served on the petit jury within two years, which is prohibited by act 135 of the Acts of 1931. The failure of any of the grand jury to possess any of the qualifications required by law does not invalidate an indictment. Section 3030 of Crawford & Moses’ Digest; St. Clair v. State, 160 Ark. 170, 254 S. W. 473.
The last assignment of error for a reversal of the judgment is that appellant was convicted on the uncorroborated" evidence of his two accomplices. Bill Shepherd and Minus Rankin pleaded guilty, and, upon appellant’s trial, testified that the three of them burglarized the store, and that appellant received a part of the merchandise. Witnesses who" found the stolen goods testified that the tracks around the store and where the goods were -found showed that three persons were en gaged in the burglary and grand larceny. The tracks were measured with a stick, and appellant’s foot was measured with the same stick in the presence of the jury. Minus Rankin lived in appellant’s home, and the three of them attended a musical and were drinking together the night the crimes were committed. The record also reflects that appellant had threatened to break into the store and had made plans to do so. The accomplices were sufficiently corroborated to support the verdict and judgment.
No error appearing, the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). Under our Constitution and laws, all contracts for a greater rate of interest than ten per cent, per annum shall be void as to principal and interest, and the G-eneral Assembly shall prohibit the same by law. Constitution of 1874, article 19, § 13; Crawford & Moses’ Digest, § 7362.
Counsel for the plaintiff seek to uphold the judgment under the well settled principle that where the promise to pay a sum above legal interest depends upon a contingency, or where for any cause the principal sum loaned is put in hazard, the loan is not usurious. Reeve v. Ladies’ Building Association, 56 Ark. 316, 19 S. W. 917; 18 L. R. A. 129; and 39 Cyc. 944.
It is equally well settled, however, that a merely colorable contingency or hazard will not prevent excessive interest charges from.being usurious. The record shows usury in the present case unless the generally recognized rule above announced should be followed. We are of the opinion, however, that the obligation sued on and the stipulation in the record that the plaintiff is not an insurance company and has not qualified to act as such under the laws of the State of Arkansas renders the contract a mere shift or device to escape our usury laws.
The Supreme Court of Minnesota has held a contract, similar in all essential respects, to be a loan of money with an agreement for perpetual forbearance in case of death, and said that the contingency set up in the contract was a mere contrivance to cover usury. Mr. Justice Mitchell, who delivered the opinion of the court, said:
“The peculiar and unusual provisions of this contract themselves constitute intrinsic evidence sufficient to justify the finding of the existence of every element of usury, vis., that there was a loan, that the money was to be returned at all events, and that more than lawful interest was stipulated to be paid for the use of it. The only one of these which could be seriously claimed to be lacking was that the money was not to be paid at all events, but only upon a contingency, to-wit, the continuance of the life of McLachlan; but the facts warrant the inference that this contingency was not bona fide, but was itself a mere contrivance to cover usury. The mere fact that the contract has the form of a contingency will not exempt it from the scrutiny of the court, which is bound to exercise its judgment in determining whether the contingency be a real one, or a mere shift and device to cover usury.” Missouri, Kansas & Texas Trust Company v. McLachlan, 59 Minn. 468, 61 N. W. 351.
A similar view was expressed in Matthews v. Missouri, Kansas & Texas Trust Company, 69 Minn. 318, 72 N. W. 121. Subsequently, the Supreme Court of the United States upon appeal from the Federal courts in the State of Minnesota, sustained this principle and said (172 U. S. 351, 19 S. Ct. 179) :
“The precise character of the contract between the present parties is not clear. It has some of the features of a loan of money; in other respects, it resembles a contract of life insurance. But our examination of its various provisions and their legal import has led us to accept the conclusion of the courts below, that the scheme embodied in the application, note and mortgage was merely a colorable device to cover usury. ’ ’
Continuing, the Supreme Court of the United States expressed approval of the quotation made from the Supreme Court of Minnesota.
We are of the opinion that the principles announced in these cases are sound and should control here. Therefore, we think the transaction was merely a colorable device to cover usury and should not be upheld. It follows that the judgment must be reversed,’’and the plaintiff’s cause of action will be dismissed here. | [
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Butler, J.
The appellee, T. M. Tidmore, was a section foreman in tbe employ of the appellant on July 8, 1930, and on that date, shortly after one o’clock in the afternoon, while engaged in the performance of his duties, was injured. The appellee brought suit for damages because of his injuries, and recovered a verdict and judgment against the appellant from which is this appeal.
The principal ground urged for reversal, and one which we think is decisive, was that the evidence was not sufficient to sustain the verdict, and that the appellant’s request for a directed verdict in its favor should have been granted. The testimony most favorable to the appellee tended to establish these facts. At about one o’clock, the switch engine passed by a point about 1,600 feet south of Highway No. 70 which crossed the main track of appellant practically at right angles. At this place he was directing two negroes in cutting small trees and bushes on the right-of-way west of the passing track. The switch engine was travelling north, but its front part was directed toward the south, the engine being in reverse. Several cars were attached to this engine on the north or back end of it, and several at its front on the south. As it passed by appellee, the conductor, who was hanging* on one of the cars, gave him a sign with his hand which appellee thought was a “highball,” and supposed that it meant that the switch engine was passing out of the yards to go to a junction point called Presley about 2% miles north. At this time there were two or three cars standing on the side track or passing track about 150 or 200 feet south of where the switch enters from the main track to the passing* track just south of Highway No. 70. Further south and with an interval between them were other cars, near which the aforesaid work was being done.
Appellee watched the switch engine with its cars attached until it crossed- the highway and went on to a team track which connected with the main line by a switch a short distance north of Highway No. 70. The main track ran north and south at this point, and the passing track, immediately west of which appellee was working, ran parallel with it. From time to time appellee looked from the west between the cars toward the north. After the switch engine passed to the north, the work of cutting the timber was continued, and in this operation a sapling or small tree was felled upon one of the coal cars. Appellee directed one of the negroes to get upon top of the coal car for the purpose of dislodging the tree, and, while the negro was on the coal car, appellee asked regarding the whereabouts of the switch engine, and was told that it was near the north end of the team track about a quarter and a half (% of a mile) away. He continued to stand where he was, supposing he was in the clear and in safety when, about eight or ten minutes after the negro had descended from the coal car, the car by which appellee was standing was struck by reason of the switching operation of the cotton cars from the main line to the passing track, and moved forward, a part of which projecting about four inches to the side, in which standards were fixed, struck the appellee on the shoulder violently knocking him to the ground and injuring him severely.
Appellee stated that it had generally been the practice of men operating the engine to give him a signal when they were going to switch cars upon a track on which he might be working, and that often he would ask the train crew what time they were going to use the track, but on this occasion he did not ask them, as he was not working-on the track, but was clearing bushes on the right-of-way. The appellee was an experienced man, having* worked on the section for fourteen years, ten years of which he had been foreman. He was well acquainted with the rule that required Mm to keep a lookout for his own safety and for the safety of the men working under him. It was his duty, when worldng around any track, to be on the lookout for cars which might he moving. He was working'in the yards of the appellant in the city of West Memphis, and through these yards ran the main line from north to south. On the west of this main line and south of Highway No. 70 ran the passing track parallel with the main line. Just north of the highway a switch led from the main line to the team track, east of and parallel to the main track. The passing track was connected with the main line at a point near the depot a short distance south of Highway No. 70 by a switch and again by a switch at a point to the south of where appellee was worMng. To the right and opposite to where appellee was standing was a cotton compress, and between it and near to it was another track which was used in handling* cotton either coming in or going out of the compress. This side track was connected with the main line at a point just south of Highway No. 70l by a switch a short distance north of the switch leading into the passing track. It was also connected with the main line at two points south of the place of appellee’s injury. These tracks were used daily for switching purposes, the switch engine and crew using them several times each day in these operations. On the forenoon of the day of the accident a number of cars had been switched on to the passing track, and the train crew had seen the appellee and his crew at work on the right-of-way cutting the bushes, and they knew that he was continuing’ this work after the noon hour. About one o ’clock p. m. the switch engine entered on the track by the compress and there picked up three carloads of cotton for the purpose of moving them over to the passing track. To accomplish this, they moved down toward the south with the engine headed in that direction and pushing the cars ahead, with some attached to the rear, on to the main line, and backed north on that line past where the appellee was working, proceeding on in a northerly direction. It was necessary for them to pass entirely across Highway No. 70 in order to give clearance between the cars and the north switch so that it might be opened. From the point where that switch entered the main line to the point where the injury occurred there was a considerable down grade of perhaps four or five feet between the two points, and, when the switch engine with its cars attached passed the switch and the highway, it moved- again south and shunted the three cars o.f cotton through the switch on to the main line. A brakeman was riding one of these cars, which were moving at this time at a rate of about four or five miles per hour — a sufficient speed on account of the down -grade. No signal was given by the operatives of the switch engine that this movement would be made, and no effort was made by any of them to notify the appellee that .the cars would be switched upon the side track. The weight of the cars rolling down grade was sufficient to put the first bunch of cars on the side or passing’ track south of the switch in movement, and they together with the three cars of cotton moved down, strildng the cars near which the appellee was standing with force enough to- move them forward, resulting in the accident to the appellee.
These are the essential facts-disclosed by the testimony most favorable to the appellee -which we think fail to disclose any negligence on the part of the crew of the switch engine, but show that the accident occurred by reason of appellee’s own inattention in taking a position sufficiently near the track to be struck by a moving car, which position it was unnecessary for him to occupy in the performance of his duties.
It is argued by the appellee that the train crew was negligent in that the brakeman. in charge of the cars being switched failed to put on the brakes when these cars passed upon the passing track, and that this is admitted by the testimony of the brakeman Garner who rode the cars, and also that the crew was guilty of negligence in failing to give a “side track signal.” This could not be said to be negligence under any view of the case, since the undisputed testimony shows that the cars were moving at not more than four miles an hour, and no one was expecting workmen upon the track. An examination of the transcript, however, fails to bear out the contention of the appellee as to the purported testimony of the brakeman, Garner. He testified, both on direct and cross-examination, that in the 'switching operation he set the brakes on the cars being switched. It is true that he testified at one time as to one switching operation that he did not put on the brakes and further stated that he would not say whether or not he did, but there were two switching operations about which he was questioned, and, when the entire testimony of this witness is read, it is uncertain which one he was referring' to. Whether he did or did not put on the brakes would be immaterial, as is disclosed in that part of the 'testimonjr of the appellee when he testified as to what the custom was with reference to the information being given him when the switching crew intended switching cars on to the side tracks. This would be done when they knew or had reason to believe that he was at work on the track, and appellee himself stated that when he was engaged in work on the tracks he would ask the operatives of their in tentions, but that on this occasion he did not because his men were working on the right-of-way and not on the tracks. This the train crew knew, and that appellee’s duties did not require him to be upon the tracks or near enough to be within a point of danger, and they had no reason to expect that he would expose himself to unnecessary hazards, and therefore had reason to believe that the track was clear, and that the operation in which they were engaged would result in danger to no one, which was conducted in the customary way.
While acknowledging the duty of the appellee to keep a lookout for his own safety, it is insisted that his failure, if any, to keep the lookout was caused by a sign given him by the conductor in passing which he thought meant that they were through with their switching operations and were going on to the junction at the north. But, although he might have thought this, and even had he been justified in this supposition, he afterward knew by information conveyed to him by the negro on top the coal car that they had not gone on to the north, but were still in the yards on the team track. Within eight or ten minutes thereafter the cars had been pushed on to the passing track and the accident was occasioned by appellee’s failure to observe the rule to keep a lookout for his own safety, and because he occupied a position of danger entirely unnecessary for the performance of his duties and one where there was no reason to believe he would be.
It is conceded that the work in which appellee was employed was interstate commerce, and that the Federal Employers’ Liability Act is the law applicable to the facts here before us. In Dallas Coal Co. v. Rotenberry, 85 Ark. 237, 107 S. W. 997, the court said: “The undisputed evidence establishes the fact that appellee went into the place of danger in violation of the rule provided for his protection.. This was contributory negligence on his part, and precludes a recovery.”
In the case of C., R. I. & P. Ry. Co. v. Abel, 182 Ark. 631, 32 S. W. (2d) 1059, it was the duty of Abel to keep in repair and to operate the engine used for tamping ties in the roadbed. The machine was not operating satisfactorily at the dinner hour, and Abel, during that period, eng’aged in the repair and adjustment of the engine, and, while so at work, he was struck by a passing train. The court, in holding that the facts in that case precluded a recovery, said:
“Appellee was an experienced workman; he knew the location of the machine to be repaired relative to the track and the embankment or side of the cut, that trains were frequently passing over the track, and that the rules required him to rely upon his own watchfulness and keep out of the way, proceeded with his work of making the repairs, leaving the engine running and the air pump working, both making a great deal of noise, without looking toward the direction of the approaching train, according to his own statement, which he could have seen for almost a half mile, and stepped back on the track between his machine and the track where the passing train struck and injured him. * * *
“According to the undisputed testimony, appellee’s own statement of the occurrence of the injury, he neglected to take proper care for his own safety and assumed the risk incident upon the performance of the work without relying upon Ms own watchfulness to keep in the clear as the rules of the company required, and they were entitled to expect of their employees.”
The judgment of the trial court is reversed, and, as the facts seem to have been fully developed, the cause is dismissed. | [
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McHaney, J.
Appellee sued appellant and K. E. Green to recover damages done to her automobile by reason of a collision between her car driven by her daughter and the car of appellant driven by said Green. The collision occurred on May 28, 1931, at 5th and Walnut streets in the city of Texarkana. A trial resulted in a verdict and judgment for appellee against appellant and Green in the sum of $125. Green has not appealed.
At the conclusion of the testimony appellant requested the court to direct a verdict in his favor on the ground that he had loaned his car to said Green, and that said Green was not in his employ, was attending no business for him, but was on a mission of Ms own, in which appellant was not interested in any way. The court refused such request, and this is assigned as error and urg’ed for a reversal of the case. In view of the decision we make on this point, that is whether Green was the agent of appellant in the operation of his car, we do not discuss the negligence of Green in the operation of the car.
The facts necessary to a decision of this point are that one Webb was the owner of an airplane, which was located in a garage near the airport out of Texarkana, which was undergoing some repairs and that Green had been piloting the airplane and was the mechanic maMng the repairs.' He desired to get some material, cork, from the ice plant and take it out to the garage where the airplane was, to be used on the step or wane, to keep one’s foot from slipping when getting in the airship. Green went to the place of business of Mr. Mimms to borrow his automobile for such purpose, Mimms having formerly been a partner with "Webb in the ownership of the airplane, but at that time no longer interested, having sold out to Webb. Mimms was unable to lend him the car at the time and suggested that he borrow appellant’s car which was standing in front of Mimms’ place of business. Appellant agreed to lend him the car, but desired’ to be taken to a picture show first. Green took appellant to the picture show, went on to the ice plant, secured the cork and had started out to the garage in the borrowed car when the accident occurred with appellee’s car. Mimms agreed to take Webb out to the garage later to get his car. The judgment is sought to be sustained by reason of the testimony of one Harris, a deputy sheriff, who served the summons on appellant when he was sued, and who claimed to have had some conversation with appellant at the time of service. Harris’ recollection of the conversation between him and appellant regarding the loan of. the car to Green was very indistinct and uncertain. According to his recollection of the conversation between him and appellant at the time of the service of the summons upon appellant, he said: “Well, Green drove the car, took-him to the picture show, and drove it the whole route, as I under-. stand it, in taking him to the picture show, and then was going back and coming back after him.” The whole substance of the witness’ testimony relating to the conversation with appellant is that Green borrowed appellant’s car, took him to the picture show, and was then to take something out to the garage near the airport, and later was to come back for appellant. Nowhere does he testify that in g’oing out to the airport or to the garage near the airport Green was on a mission for appellant. The undisputed testimony is that, after Green took appellant to the picture shoAV, he used the car on a mission of Ms own, or that of Ms employer, Webb, a matter in wMch appellant had not the slightest interest, and in performing this service he was not the agent of appellant, even though it be conceded that there is some testimony to the effect that, after delivering the cork to the garage for the repair of the airplane, he was to come back and get appellant at the picture show or deliver the car to him anywhere else. The fact remains that he was on no business of appellant, and the relation of master and servant or principal and agent did not exist. The undisputed testimony is that Green was not in the employ of appellant and had never been. The court should have directed a verdict in appellant’s favor. Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115; Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S. W. (2d) 712.
The result of our views is that there is no substantial testimony to support the verdict and judgment, and that the court should have granted appellant’s request for a peremptory instruction, and erred in refusing to do so. The judgment will therefore be reversed, and, as the case seems to be fully developed, it will be dismissed. | [
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Hart, C. J.
This appeal is prosecuted from a judgment of the circuit court of the Fort Smith District of Sebastian County, rendered on the 10th day of February, 1932, refusing to set aside a judgment rendered against appellant in favor of appellee in a garnishment proceeding.
The material facts disclosed by the record may be briefly stated as follows: On February 28, 1931, M. A. Cherry sued Etta L. Stokes in the Sebastian Circuit Court for the Fort Smith District to recover $2,000 alleged to be due on a promissory note executed by Etta L. Stokes and Walter R. Stokes, her husband, on January 1,1925, and due one year after date. The complaint alleges that, since the execution of said note, Walter R. Stokes had died, and that there was no administration on his estate. A writ of garnishment was sued out against the New York Life Insurance Company, which was alleged to be indebted to Etta L. Stokes upon a life insurance policy. Summons was issued on the complaint, ■directed to the sheriff of Sebastian County. The return of the sheriff-was dated March 25, 1931, and shows that he returned the summons because he was not able to find the defendant in Sebastian County. The return was filed with the clerk on March 26, 1931. The writ of garnishment was dated February 28, *1931, and showed that it was served on the second day of March, 1931.
On September 15, 1931, the plaintiff filed what she called an amendment to her complaint in which she alleged that Walter R. Stokes died on or about the 19th day of February, 1931, and that he was a resident of the Fort Smith District of Sebastian County, Arkansas, at the time of his death. It was also alleged that Eugene K. Torbett was duly appointed administrator of his estate by the probate court of Sebastian County. The prayer of the complaint is that Eugene Torbett, as administrator of the estate of Walter R. Stokes, deceased, be made a defendant, and summons issue for him as well as for the defendant Etta L. Stokes. Summons was duly served upon the defendant administrator in Sebastian County. On the 15th day of September, 1931, a summons was issued on Etta L. Stokes, directed to the sheriff of Johnson County. The return of the sheriff of Johnson County shows that summons was duly served by delivering a copy to- Mrs. E. L. Stokes in Johnson County as commanded in the summons. On the 9th day of October, 1931, judgment was rendered in favor of M. A. Cherry against E. K. Torbett, administrator of the estate of Walter R. Stokes, deceased, and Etta L. Stokes, in the sum of $1,385, and the accrued interest. Judgment was also rendered in favor of the plaintiff against the New York Life Insurance Company as garnishee.
At the same term of the court at which the judgment was rendered, said New York Life Insurance Company filed a motion to set aside the judgment against it as garnishee on the ground that it was void. The facts above recited were set forth in the motion. It was stipulated that on September 15, 1931, the probate court of Sebastian County appointed E. K. Torbett as administrator of the estate of Walter E. Stokes, deceased. It was further agreed that Walter E. Stokes carried a policy in the New York Life Insurance Company in which Etta L. Stokes, the defendant, was a beneficiary, and that the amount of money due her on said policy was $1,977.18. It was further. agreed that the New York Life Insurance Company had paid the amount of said policy to Etta L. Stokes on the 21st day of May, 1931, and that it did not owe her any other sum.
Under our statute a writ of garnishment may not issue until after an action has been commenced by filing complaint and procuring summons to be issued. First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S. W. (2d) 535; and Missouri Pacific Railroad Company v. McLendon, ante p. 204.
The original suit in this case was brought by M. A. Cherry against Etta L. Stokes on the 28th day of February, 1931. The summons was directed to the sheriff of Sebastian County; and on the 25th day of March, 1931, the sheriff returned the summons unserved because he was unable to find the defendant within Sebastian County. The writ of garnishment was issued on the day the suit was commenced and was duly served upon the New York Life Insurance Company on the second day of March, 1931, as evidenced by the return of the sheriff filed March 25, 1931. There was no judgment rendered in favor of the plaintiff against Etta L. Stokes in the original action, presumably because no service of summons had been had upon her as required by § 1144 of Crawford & Moses’ Digest.
It is well settled in this State that a valid judgment can not be rendered against the garnishee where no judgment has been rendered against the defendant in favor of the plaintiff. The reason is that garnishment proceedings are auxiliary to the main suit. The object of a garnishment is to get money or property in the possession of the garnishee and subject it to the payment of the judgment which the plaintiff may recover against the defendant. It necessarily follows that there can be no lawful judgment ag'ainst the garnishee until after judgment has been recovered against the defendant. Norman v. Poole, 70 Ark. 127, 66 S. W. 433; St. Louis, Iron Mountain & Southern Railway Company v. McDermitt, 91 Ark. 112, 120 S. W. 831; Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84; Smith v. Bank of Higden, 115 Ark. 216, 170 S. W. 1008; Bank of Eudora v. Ross, 168 Ark. 754, 271 S. W. 703; and Austin Bridge Company v. Vaughan, 178 Ark. 995, 13 S. W. (2d) 13.
This brings us to a consideration whether the pleading, termed by the plaintiff an amendment to her complaint, which was filed on September 15, 1931, was what it purported to be, or whether it was the commencement of a new action against the defendant. The suit was based upon a promissory mote executed in favor of the plaintiff by Walter R. Stokes and Etta L. Stokes, his wife. The 'original complaint states that Walter R. Stokes was dead, that there was no administration on his estate, and that the suit was brought against Etta L. Stokes.
Under § 1176 of Crawford & Moses’ Digest, the action might be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.
As we have already seen, no' service was had upon the defendant, Etta L. Stokes, in the original action, and the plaintiff elected to sue her alone. When the plaintiff failed to' get service on Etta L. Stokes in the manner provided by the statute, in September, 1931, she filed what she called an amendment to her complaint and asked that the administrator of the estate of Walter R. Stokes be made a defendant. It will be remembered that the original complaint alleged that no' administration had been had upon his estate. The summons issued upon Etta L. Stokes under the amended complaint was directed to the sheriff of Johnson County, and recites that she was in that county. Thus, the record affirmatively shows that she was not a resident of Sebastian County at the time the amendment to the complaint was filed, although she may have been a resident of Sebastian County when the original suit was brought. This indicates that the amendment to the complaint was filed for the purpose of giving the Sebastian Circuit Court jurisdiction of the person of the defendant Etta L. Stokes. She had not been served in the original action; and, as long as she stayed in Johnson County, she could only be legally served by making some one a party defendant who was jointly liable and over whom the circuit court of Sebastian County for the Fort Smith District had jurisdiction.
This is not a case where new parties might be brought in without affecting the rights of the parties to the original action. The return of the sheriff in the original suit expressly shows that the defendant could not be found in Sebastian County, and inferentially shows that service could not be had by leaving a copy at the usual place of abode of the defendant with some member of the defendant’s family over the age of 15 years. The bringing of a suit against the administrator of the estate of Walter R. Stokes, deceased, and the issuance of a summons against Etta Stokes directed to the sheriff of Johnson. County was equivalent to an admission that service could not be had upon Etta L. Stokes in Sebastian County. In the meantime the garnishee had paid the amount of the policy to Etta L. Stokes as it had the legal right to do.
Under these circumstances, the appointment of an administrator over the estate of Walter R. Stokes, deceased, and making him a party defendant to the action constituted a new cause of action and was not an amendment to the original cause of action’ by the substitution of parties defendant or by bringing in new parties over whom the circuit court of Sebastian County for the Fort .Smith District already had jurisdiction in the original suit. Unless and until Etta L. Stokes was legally served in Sebastian County or entered her appearance to the action, the circuit court of Sebastian County had no jurisdiction over her person and could acquire none. The commencement of a new action was an abandonment of the old one. Therefore the judgment rendered against her was not under the original action brought against her, but was under what constituted a new cause of áotion against the administrator of her husband’s estate in which she was also made a party defendant. This would require the issuance of a new writ of garnishment, and none was ever issued. The money had already been paid out by the New York Life Insurance Company to Etta L. Stokes, the beneficiary named in the policy which had been issued to her husband. Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84.
It follows that the judgment must "be reversed; and, inasmuch as the cause of action ag’ainst the garnishee appears to have been fully developed, it will be dismissed here. It is so ordered. | [
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Mehaity, J.
This action was begun by appellee in tbe Pope Circuit Court against appellant and Henry Carter to recover for personal injuries received when he was struck by an automobile driven by said Henry Carter.
It was alleged that tbe appellant bad parked its truck on tbe left side of tbe highway, so that tbe wheels and body of tbe truck extended over tbe bard surface of tbe road four or five feet. Tbe bard surface or pavement was 14 feet wide, and tbe entire roadbed was 22 feet wide.
Appellee, who was riding in a buggy with bis nephew, got out of the buggy after tbe team bad been driven off tbe highway, and about 30 or 40 yards from tbe truck. Tbe truck was in front of a filling station. Appellee walked from where tbe buggy was stopped on tbe shoulder of tbe highway, until be got opposite tbe filling station, and then started across tbe highway to tbe filling station. He bad gone two or three steps when be was struck by a car driven by Henry Carter. Tbe car driven by Carter was going at a very rapid rate of speed.
Tbe appellee was knocked down, bis leg broken, and be was otherwise injured. He alleged, and tbe proof tended to show, that Carter was driving very rapidly, and that there was not room on tbe highway for the passage of tbe car between tbe truck and appellee; that, before reaching tbe truck, Carter swerved bis car to tbe left and struck appellee.
It was alleged that bis injuries were caused by tbe concurrent negligence of tbe appellant and Henry Carter. There was a verdict and judgment against Henry Carter and appellant for $3,000.
Henry Carter did not appeal. Tbe appellant filed motion for a new trial, which was overruled, and appeal prosecuted to this court.
Appellant’s first contention is that there was no evidence to justify tbe submission of tbe question of negligence on its part to tbe jury.
The Legislature of 1927 passed act 223, which was au act regulating the operation of vehicles on highways. Section 9 of said act reads as follows:
“Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow-moving vehicle as closely as possible on the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway, and except when overtaking' and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in §§ 12 and 13 of this act. ’ ’
The first paragraph of § 24 of said act is as follows: “No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway.”
The undisputed evidence in this case shows that appellant had driven its truck on the left side of the highway, parked it there, so that the body and wheels of the truck extended four or five feet over o.n the hard surface of the highway, and the hard surface was only 14 feet wide.
The evidence tends to show that the truck of appellant was so parked on the highway that it did not leave a clear and unobstructed width of 15 feet' of the main traveled highway opposite said truck.
The undisputed, evidence shows that the main traveled portion of the highway was only 14 feet wide, and, if the truck was on the. hard surface at all, it necessarily left less than 15 feet for the passage of other vehicles.
It is true that Henry Carter, the driver of the car which struck appellee, saw the truck and its position, but, if appellant was guilty of negligence, this negligence of Henry Carter did not relieve it from the consequences of its negligence.
It is also true that, if there was any negligence on the part of the driver of appellant’s truck, it was in obstructing the highway. That it did obstruct the highway is not disputed, and that it was parked on the wrong side of the road is not disputed.
Of course, the remaining space of the highway would be the same whether the truck was parked on the right or wrong side. But in any event, if the wheels and body of the truck were over the pavement four or five feet, it did not leave 15 feet for the passage of other vehicles as provided by law.
Appellant calls attention to, and relies on, Powers v. Standard Oil Co., 98 N. J. Law 730, 119 Atl. 273. In that case the truck of the Standard Oil Company was parked on the wrong side of the street in violation of the traffic law, and a little girl nine years old ran out from behind the truck and was struck by a passing automobile. Suit was brought against the driver of the car and the Standard Oil Company and another. There was a verdict in favor of the driver of the automobile, and against the other defendants. It was not alleged in that case that there was any violation of the traffic laws by the Standard Oil Company, except the mere parking on the wrong side of the street. There was ample space for other vehicles, and the court held that the parking of the truck did not per se constitute negligence upon the owner of the truck so as to subject him to liability as an efficient proximate cause.
Appellant says that the truck did not extend more than four or five feet on the hard surface of the roadbed, and that this left at least 17 .feet of roadway remaining. If the roadway is to be considered 22 feet wide, and the truck'was five feet on the hard surface, then it was at least nine feet in the road, and that would only leave 13 feet if the entire roadbed was included, rather than the hard surface. In any event 15 feet required by law was not left. In the above case relied on by appellants, there was no question of an obstruction of the highway, but the only allegation was that the truck was parked on the wrong side of the street. It was not claimed in that case that the highway was so obstructed that there was not ample room to pass. Moreover, it was held that the injured party there was guilty of contributory negligence.
In the instant case, whether the appellee was guilty of contributory negligence was a question of fact to be determined by the jury, and its verdict is not without evidence to support it.
It is next contended that whatever negligence there may have been on the part of appellant, that negligence was not the proximate cause of the injury. Where concurrent negligence is alleged, the general rule is stated as follows: “As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence concurring with one or more efficient causes, other than plaintiff’s fault, is the proximate cause of the injury.. So that where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent, and that such other cause is not attributable to the person injured. But it must appear that the person sought to be charged was responsible for one of the causes which resulted in the injury. The concurring negligence of another cannot transform the remote into the proximate cause of au injury, or create or increase liabilities therefor.” 45 C. J. 920.
There was ample evidence to support the -finding of the jury that the injury to appellee would not have occurred if the truck had not been so parked as to obstruct the highway. If it did obstruct the highway when parked there, and this obstruction was negligence, it was a continuing act of negligence up to the time of the injury, and whether it was negligence, and whether the injury would not have occurred but for this negligence, were questions for the jury. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473.
“The law is practical, and courts do not indulge refinements and subtleties as to causation, if they tend to defeat the claims of natural justice. They rather adopt the practical rule that the efficient and predominating cause in producing a given effect or result, though subordinate and dependent causes may have operated, must be looked to in determining the rights and liabilities of the parties.” Cook v. Ormsby, 45 Ind. App. 352, 89 N. E. 525.
The undisputed proof shows that Henry -Carter was guilty of negligence, and'the undisputed proof shows that appellant’s truck was obstructing the highway in violation- of law, and whether this violation of law was negligence was a question of fact for the jury.
Appellant calls attention to the .case of Hartnett v. Boston Store, 265 N. E. 331, 106 N. E. 837, L. R. A. 1915C, 460. There was in that case, however, no question of concurrent negligence, but the Boston Store, the defendant, undertook to escape liability by showing that the condition existing at the time and place was the proximate cause of the injury. The court in that case however said: “There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequence so connected 'with the failure to perform the duty that the failure is the proximate cause of the injury.”
In the instant case there can be no question about the duty being imposed by law, nor can there be any dispute about the fact that it was for the benefit of persons using the highway. The undisputed proof shows that there was a failure to perform that duty, and there was substantial evidence to show that the injury would not have happened but for the failure to perform its duty by appellant.
Appellant also calls attention to Anderson v. Baltimore & O. R. Co., 74 W. Va. 17, 81 S. E. 579, 51 L. R. A. (N. S.) 888. The court however said in that case: “The causal connection between the first act of negligence and the injury is broken by the intervention of an act of a responsible party, which act is in law regarded as the sole cause of the injury.” In the instant case the causal connection was not broken. The negligence of the appellant continued and existed as long as its truck remained on the highway in violation of law, and it was its negligence together with the negligence of the driver of the automobile, that caused the injury.
It is next contended that appellee was guilty of contributory negligence as a matter of law. The undisputed proof shows that he started across the highway, and before he started he looked to see if a car was coming, and, as he proceeded to cross the highway, the car driven by Carter struck the truck and then struck appellee, causing the injury. Contributory negligence, under the circumstances, was a question of fact for the jury, and this question was submitted to the jury by the court, and the finding of the jury on this question is conclusive here.
We have not discussed or reviewed the authorities cited by appellee, with reference to the violation of the traffic law, because there is no contention that the instructions given in this case were erroneous.
We find no error, and the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that the court should have directed a verdict in its favor. We do not agree with counsel in this contention. Under the evidence adduced by the plaintiff, the injury was brought about without the ag'ency of the insured, and it was accidental, although, the injury might have been intentionally inflicted by the negro. According to the testimony of the plaintiff, which was corroborated by his companion, he was accidentally cut while trying to separate the negro and his companion. He did not see any knife or other weapon in the hands of the negro. There was apparently no danger in trying to separate them. The negro was a small man, and the conduct of the plaintiff in trying to separate them was the natural result of any one with human impulses. Hence the injury was accidental, within the meaning of the policy. We have set out its terms in our statement of facts, and we need not repeat them here. Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845; Ætna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298; Mutual Benefit Life & Accident Association v. Tilley, 176 Ark. 525, 3 S. W. (2d) 320; Pacific Mutual Life Ins. Co. v. Ware, 182 Ark. 868, 33 S. W. (2d) 46.
It is next contended that the court erred in giving, at the request of the plaintiff, instruction No. 1. It reads . as follows: “You are instructed that the terms ‘accident’ and ‘accidental means,’ as used in the policy sued upon and in the constitution and bylaws of the defendant association, are used in their ordinary popular sense, as ' meaning happening" by chance; unexpectedly taking place; not according to the usual course of things, or not as expected. If you find from a preponderance of tfie evidence that tfie injury received by the plaintiff happened by chance, or unexpectedly took place, or was not according to the usual course of things, or was not as expected, then you will find that said injury was tfie result of accident and comes within tfie terms of tfie insurance contract, unless you find from a preponderance of tfie evidence that it falls within one or any of tfie exceptions in tfie contract.” It is contended on tfie part of tfie defendant that there is a technical difference between tfie term “accident” and the term “accidental means,” as used in tfie policy sued on and in tfie constitution and bylaws of tfie association.
Where tfie provisions of a policy of indemnity are reasonably susceptible of two constructions consistent with tfie object and purpose of tfie contract, one favorable to tfie insurer and tfie other to tfie insured, that will be adopted which is favorable to the insured. It has been tfie settled policy of this court since tfie beginning of its construction of contracts of insurance to hold that tfie policy should be liberally construed so as not to defeat, without necessity, tfie claim for indemnity. Tfie reason is that such policies are written on printed forms prepared by experts employed by tfie insurance companies for that purpose, and tfie insured has no voice in the matter. Hence it is fair and reasonable that, where there is ambiguity, or where tfie policy contains language susceptible of two constructions, that which, will sustain tfie claim and cover tfie loss should be adopted. Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, 25 S. W. 835; American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613,17 Am. St. Rep. 72; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493; Home Mutual Benefit Association v. Mayfield, 142 Ark. 240, 218 S. W. 371; Great American Casualty Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 775; National Equity Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S. W. (2d) 6; Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. (2d) 611; Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920.
In this connection, it may 'be stated that the whole policy and the constitution and bylaws of the association must be construed together, and every part read in the light of the other provisions. The constitution and bylaws are expressly made a part of the policy. It would be unreasonable for the court to give a construction to the contract .which it is manifest was not contemplated by the parties when the policy was issued and which would defeat the evident object of the contract of insurance. If the association had wished that the terms “accident” and “accidental means” should have had different meanings, the contract of insurance should have given the insured warning of that fact. The court correctly instructed the jury in accordance with the principles of law above announced. If the association used the terms “accident” and “accidental means” as synonymous, it cannot now complain that the court gave them the same construction.
It is also contended that the court erred in submitting to the jury the question of total disability. The first ground, for the contention is that two claims were presented to the association. The first one was presented on January 19, 1931, which was a few days after the injury was received. In that claim partial disability only was asked for by the plaintiff. The second claim was filed on February 14, 1931, and was for total disability. There is no inconsistency in this respect. As we have already seen, insurance policies are framed by the insurance companies with great care with the view of limiting their liability as much as possible, and usually impose conditions on the insured to be performed in a particular manner. These provisions are strictly construed against the insurer. Here the plaintiff gave notice within the time required by the policy. According to his testimony, when he made the claim for partial disability, he did not know that he was wholly disabled. He did not make any claim for total disability until he had ascertained and believed that he was wholly disabled. It would be at variance to the principles of law and justice to hold that his honest act in attempting to comply with the terms of the policy by giving notice as required by it should deprive him of what he was honestly and reasonably entitled to under the terms of the policy. American Life & Accident Association v. Walton, 133 Ark. 348, 202 S. W. 20.
The second ground of their contention is that there is no evidence upon which to base a submission of the question of total disability to the jury. Our decisions support the view that provisions in accident policies for indemnity in the event the insured is totally or wholly disabled do not require that the accident shall render the insured absolutely helpless, but such provisions are construed as meaning such a disability as renders him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Missouri State Life Ins. Co. v. Snow, ante p. 335; Mutual Benefit Health & Accident Association v. Bird, ante p. 445. As pointed out in the Spencer case, our rule on this subject is in accord with the general trend of authority. It is claimed by counsel for the defendant that other decisions of our court are somewhat at variance with the rule announced in the cases cited. We do not think so, but no useful purpose could be served by pointing out in detail the differences in the cases. Isolated sentences of a particular case may always be used in apparent contradiction of expressions announced in other cases by the same court where the facts are different. Each case must be construed with reference to the particular facts, and all the cases on a given subject must be read in the light of each other. When this is done, it does not appear to us that we have ever varied from the rule announced in the cases above cited. If any mistake was made, it was in the application of the rule itself to the facts of the particular case.
There are certain exceptions to the risk as appears from the constitution of the association. They may be summarized as follows:
“1. Received while under the influence of intoxicating liquor or narcotics;
“2. From fighting or wrestling;
“3. From a hazardous adventure or an altercation;
“4. From intentional injury;
“5. ’While fighting, resisting arrest, or violating ’ the law. ’ ’
It is not claimed by the defendant that the plaintiff was under the influence of intoxicating liquor or narcotics as provided in subdivision 1. The contention of the defendant as to the other four subdivisions with regard to whether the injury was received while the plaintiff was fighting or engaged in a hazardous adventure, or from an intentional injury, was submitted to the jury under, instructions prepared by the defendant in its own behalf. The jury found that issue in favor of the plaintiff, and no useful purpose could he served by setting out and reviewing the instructions in detail.
It is strongly insisted by the defendant that the court erred in allowing the plaintiff to recover for total disability for 104 consecutive weeks, as provided in the policy, when the trial of the case took place a shorter period of time. Defendant’s contention now is that it was entitled to a reduction of the amount recovered to the value at the time the trial was had. We do not agree with defendant in this contention. The defendant denied that it was liable to the plaintiff in any amount under the terms of the policy. It did not offer to pay him the weekly indemnity for total disability as long as such disability should continue. It sought to defeat his claim altogether. The jury only allowed the plaintiff to recover for the period of time provided for in the policy. In railroad damage cases recovery for permanent disability is allowed for a period of time according to the life expectancy of the plaintiff shown by mortality tables prepared by insurance companies. In the case at bar defendant was only required to pay for the time it agreed to do so in its contract of insurance.
Finally, it is insisted that there is no testimony upon which to base the question of total disability because the physician only gave it as his opinion that the plaintiff was wholly disabled. The plaintiff was engaged in the business of buying and selling secondhand automobiles. In the course of his avocation he was required to repair and put in condition the secondhand cars, before he would sell them. He had a small business and performed most of the labor himself. According to a reputable physician, he examined plaintiff in June after the injury and found adhesions. The knife cut caused a serious wound. The plaintiff had a hemorrhage in the pleural cavity between the lungs and the wall. Adhesions caused him to breathe heavily and suffer great pain when he performed manual labor. That condition would prevail until removed by surgical operation, and the physician considered it permanent. By adhesions witness means the pleural sac growing together, which would lessen the ability of the plaintiff to do manual labor. Under these circumstances, the jury had a right to consider the opinion of the physician and to find that the plaintiff was not capable of pursuing his usual avocation within the meaning of the rule announced above.
Other assignments of error are urged for the reversal of the judgment, but we believe that they are fully covered by the principles of law above announced and do not merit a separate discussion.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Smith, J.
This suit was begun in June, 1931, by the Temple Cotton Oil Company, hereinafter referred to as the oil company, to foreclose a deed of trust executed to it by Sanderson & Orton on January 22, 1923. The State National Bank, hereinafter referred to as the bank, held a deed of trust on the property described in the oil company’s deed of trust, and for that reason was made a party defendant. It was alleged that the oil company’s deed of trust secured four notes as follows: One dated January 22, 1923, for $4,903.96, due December 1, 1925; one dated June 1, 1926, for $1,844.35, due November 1, 1926; one dated July 31, 1927, for $1,568.44, due ninety days aftep date; and one dated April 1,1930, for $1,178.8-2 due November 1, 1930. The court decreed that the note first described was barred both as to Sanderson & Orton, and as to the bank also,'but that the other three notes were secured by the deed of trust to the oil company, and that this deed of trust was prior to that of the bank, and decreed its foreclosure as a prior lien. From that portion of the decree holding that said three notes were secured by the oil company’s deed of trust and constituted a lien superior to that of the bank, the bank has appealed. Sanderson & Orton have not appealed. The oil company has' cross-appealed from that part of the decree holding that the note for $4,903.96 was barred.
Sanderson & Orton were large cotton planters, and operated two gins, ginning for themselves and for the public, and, in connection with their ginning business, they bought cotton seed, which they sold to the oil company. They entered into a written contract with the oil company on October 10, 1922, whereby they agreed to sell the oil company all cotton seed owned or controlled by them up to the close of the season of 1923-1924, at a price $5 per ton in excess of the prevailing street prices. The contract provided that the oil company might apply this $5 bonus to any indebtedness then owing to the oil company or which might thereafter be incurred, and that the contract might be extended by mutual agreement in writing to cover subsequent ginning seasons. The parties extended this agreement orally, but not in writing, from season to season thereafter, and continued to operate under the oral extension until the close of the ginning season of 1930-1931.
Prior to the execution of this seed purchase contract, Orton owed the predecessor of the oil company $5,500, and he and Sanderson were indebted to the G-ullett Grin Company in the sum of about $9,000. To refinance these debts, Sanderson & Orton, on January 22, 1923, executed two notes for $5,000 each and a third for $4,903.96, due, respectively, December 1, 1923, 1924 and 1925, and, as security therefor, executed the deed of trust here sought to be foreclosed. The note for $4,903.96 matured on the date last named.
Beginning in 1925, Sanderson & Orton borrowed money from the bank for use in their farming operations, and executed deeds of trust each year to secure these advances. These deeds of trust included the gin properties described in the oil company’s deed of trust and other property, both real and personal, in addition, and each of these deeds of trust executed previously to 1931 to the bank by Sanderson & Orton recited the priority of the oil company’s deed of trust as to the gin properties therein described.
In February, 1931, representation was made to the bank by Sanderson & Orton that the gin properties were no longer subject to the oil company’s deed of trust, and a new deed of trust was then taken by the bank from Sanderson & Orton which contained no reference to the oil company’s deed of trust. This deed of trust was given to secure a large balance then due the bank, and an additional advance of $2,000, which the bank agreed to make and which was later made; in fact, the subsequent advances by the bank to Sanderson & Orton largely exceeded that amount. This deed of trust, executed in February, 1931, embraced not only the gin properties but a large amount of other property, both real and personal, owned by Sanderson & Orton.
In the meantime, Sanderson & Orton were buying and selling seed to the oil company under their seed contract. Pursuant to this contract the oil company made large advances of money, which were not fully repaid by seed delivered under that contract, and the notes above referred to, dated June 1, 1926, due November 1, 1926; July 31, 1927, due ninety days after date; and April 1, 1930, due November 1, 1930, were executed to cover deficiencies arising out of the purchase of seed. The two notes for $5,000 each, specifically described in the deed of trust to the oil company, due, respectively, December 1,1923 and 1924, were paid, but the note due December 1, 1925, for $4,903.96, was not paid. However,- on November 18, 1930, the oil company indorsed on that note a credit of $89.62 which it contends it was authorized to do, as having on that date that balance on hand to the credit of Sanderson & Orton. The oil company also contends that the $4,903.96 note had been kept alive by the repeated acknowledgments of its validity by Sanderson & Orton and by their repeated promises to pay it, in consideration for which promises the date of payment had been extended.
We have therefore for decision the following questions: Was the $4,903.96 note barred? Were the advances made subsequent to the execution of the seed contract secured by that contract alone, or were they secured also by the deed of trust from Sanderson & Orton to the oil company? Did the oil company’s deed of trust secure advances made after December 1, 1925? Conceding that the oil company’s deed of trust was intended to secure," and did secure, the three notes of Sanderson & Orton executed in 1926, 1927 and 1930, was the right of foreclosure not barred as to the bank?
Other facts will be stated in the discussion of these questions. Separate answers were filed by both the bank and Sanderson & Orton, but they present a common defense.
The agreement referred to as the seed contract contemplated the advancement of large sums of money by the oil company to Sanderson & Orton, which were made during each of the years it continued in effect, and all parties agree that it was extended orálly and was in effect until the termination of the relations out of which this litigation arose. The said contract was dated Oc tober 10,1922. Tbe deed of trust was dated January 22, 1923. The deed of trust specifically described the two $5,000 notes above referred to and the note for $4,903.96, due December 1, 1925.
The deed of trust further recited that “This deed of trust shall also be a security for any other indebtedness that the first parties may now or may hereafter owe to the third party; and shall also be security for any notes, drafts, accounts or debts of whatsoever kind that the said third party may hold against the first parties herein, by purchase as an assignee thereof, or otherwise, and for all future advances during the life of this trust.”
The deed of trust further provided that: “If the said parties of the first part * * * shall pay all sums of money due thereon, as aforesaid, when the same shall become due and payable, together with all other indebtedness as aforesaid that may be due by the parties of the first part to the party of the third part, * * *, then this deed of trust shall be null and void, and shall be released at the expense of the parties of the first part; but if default be made in the payment of said note or notes, or either of them, or the interest thereon, * * * when the same shall become due and payable, or in the payment of any other indebtedness that the parties of the first part may be due the party of the third part, when the same shall become due and payable, as aforesaid, then all of the said indebtedness shall become due and payable at once.” The deed of trust contained the usual provisions in regard to sale in the event of default.
The two notes for $5,000 each described in the deed of trust were paid, but the note for $4,903.96 was not paid. Sanderson & Orton did not repay all the advances made in their operations for the 1925 season, and that balance was covered by the note dated June 1, 1926, for $1,844.35, due November 1, 1926. The advances for the 1926 season were not all paid, and the balance due on the operations for that season were covered by the note dated July 31, 1927, for $1,568.44, due ninety days after date. The advances for the 1929 season were not all paid, and that balance was covered by the note dated April 1,1930, for $1,178.82, dne November 1, 1930. It is alleged that ■the deed of trust secured these three notes, as well as the note for $4,903.96, and the foreclosure of the deed of trust was prayed to enforce their payment.
As we have said, the court found that the note for $4,903.96 was barred, and the cross-appeal questions the correctness of this finding.
Unless the payment of $89.6'2 indorsed upon.the note was authorized and was made, that note was barred when the suit was brought. It was contended by the oil company that this note had been kept alive by the promises of Sanderson & Orton made from time to time to pay it, in consideration of which promises the time for its payment had been extended. It is also contended that the credit was authorized, and was made by applying the balance then in the hands of the oil company as a credit on the note. Sanderson & Orton denied there was such a credit, and denied also that they had made promises to pay the note, in consideration of which promises the note had been extended. The chancellor found, upon conflicting evidence, which we do not recite, that the note had not been extended, and, as this finding does not appear to be contrary to the preponderance of the evidence, that finding must be affirmed, and it is so ordered.
The principal and controlling question in the case is whether the deed of trust secured the three notes above described, executed since the date of the deed of trust.
In the excellent briefs of opposing counsel, there have been collected and cited most, if not all, of our recent cases dealing with the question of future advances under mortgages and deeds of trust. These oases have clearly defined the law of that subject, and we shall not review them. In some of those cases such advances were held to be secured; in others, not; the distinction depending upon the provisions of the various instruments under review. One of the latest of these cases is that of American Bank & Trust Company v. First National Bank of Paris, 184 Ark. 689, 43 S. W. (2d) 248, where a number of the earlier eases are reviewed, and their holdings are summarized in that opinion by the following statements of the law:
One may execute a valid mortgage to secure a debt to be contracted in the future, but, in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future.
That a mortgage or deed of trust given to secure future advances is valid, but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not be presumed where the instrument does not contain a general description of the indebtedness secured so as to put one who examines it on notice that this was its purpose, in order that such person may pursue the inquiry which such knowledge would suggest.
And further, that the circumstances attendant upon the execution of the instrument and the nature of the transaction subsequent thereto are to be taken into account in determining the effect of the instrument, and each case therefore calls for a construction of the language employed in the instrument to determine whether it secures future advances or not.
We there also said that, for future advances to be secured by an instrument, that purpose must be unequivocally stated, and, unless the nature of such advances are otherwise clearly defined, they must bear some relation to the subject-matter for which the primary debt is incurred and which the mortgage is given to secure.
Under these tests we have concluded that the notes in question (except the one for $4,903.96) are secured by the deed of trust here sought to be foreclosed.
The seed contract was the one under which the parties began to operate. At the time of the execution of the deed of trust, it was contemplated that these operations would be enlarged, and that large future advances would be made, and the purpose of the deed of trust was to secure them. We think the language of that in strument, quoted above, manifests that purpose. Tbe purpose of both the seed contract and tbe deed of trust was to secure tbe payment of tbe large advances contemplated by tbe parties, and wbicb were later made. There was no inconsistency in taking tbe additional security wbicb tbe deed of trust afforded. Under tbe seed contract only seed delivered could be applied to tbe advances. Under tbe deed of trust tbe gin properties were offered as additional security. All these transactions bore tbe most intimate relation to each other; indeed, it is very difficult to separate them. Tbe oil company not only advanced money to buy seed, but also advanced money to buy large quantities of bagging and ties, and no separate accounts were kept distinguishing these advances. They were all a part of tbe contemplated operations of tbe parties under both tbe seed contract and tbe deed of trust. Tbe bank was advised of tbe fact that tbe oil company was relying upon tbe security of its deed of trust for the payment of all these advances, and in all of tbe deeds of trust wbicb tbe bank took to secure its own advances to Sanderson & Orton except tbe last, that dated February 11, 1931, it was expressly recited that those instruments were subject to tbe deed of trust to tbe oil company. The bank’s last deed of trust did not contain this recital.
Tbe notes to tbe oil company covering, advances, as herein stated, were all taken before tbe $4,903.96 note, specifically described in tbe deed of trust, was barred. The trust created by that instrument bad not therefore been discharged when tbe notes here involved were taken, and they were therefore advances made within tbe life of tbe trust.
Tbe views here expressed render it unnecessary to consider other interesting questions discussed in tbe briefs except tbe effect of tbe accelerating clause set out above. It is argued that the effect of this clause reading that “when tbe same shall become due and payable, as aforesaid, then all of tbe said indebtedness shall become due and payable at once,” was to limit the security of the deed of trust to such advances as had been made on or before the date of the maturity of the $4,903.96 note. We do not agree, however, that this was the purpose or effect of the clause quoted. The three notes here involved were all executed subsequent to the maturity of the note for $4,903.96, but before that note was barred and within the lifetime of the trust.
The case is distinguishable from the case of Patterson v. Ogles, 152 Ark. 395, 238 S. W. 598. In that case it was held (to quote a headnote) that: “Under a mortgage to secure a certain note and ‘any and all other and further indebtedness which the grantors or either of them may contract to pay to the grantee for future loans, advances or acceptances, made during the existence of this mortgage, and any renewal or renewals of note or notes for said present or future indebtedness; this mortgage to mature and be enforceable at the maturity of said note or subsequent notes, or renewal note or notes’; held that the mortgage limits the secured debt to advances made up to the maturity of the note or any renewal thereof.”
In the instant case the language quoted (which appears in the defeasance clause) does not provide that the deed of trust shall mature and be enforceable at the maturity of the notes. On the contrary, we construe the deed of trust to mean, when all of its provisions are read together, that it shall be security for the payment of any other liability or indebtedness of the grantor already or thereafter contracted until the right to foreclose the deed of trust was barred. Price v. Williams, 179 Ark. 13, 13 S. W. (2d) 822. It may be conceded that the deed of trust was barred when the debt was barred, but the note for $4,903.96 was not barred until five years after the date of the maturity, which date was December 1, 1925. But before that note was barred, and while the lien of the deed of trust was in effect, the notes here involved were executed, and they, too, were secured by the deed of trust, because that instrument so expresslv provides.
Learned counsel for appellant quotes from § 139 of the chapter on Limitation of Actions, 17 B. C. L., page 771, as follows: “If a contract provides that on default in the payment of one of several notes the remaining unpaid notes shall become due, according to the weight of authority, the stipulation has the effect of fixing a contingency upon the happening of which the debt is to mature at a time earlier than the dates given in the notes for their maturity, and the statute of limitations begins to run against the entire debt upon such default. And the creditor cannot by his act alone change that effect, but the parties may by mutual agreement change the effect of the default and treat the contract as if no default had been made. ’ ’
Here the evidence shows that the parties, by mutual agreement, changed the effect of the default and treated the contract as if no default had been made by executing other notes within the life of the trust. We think this conclusion is fairly inferable from the conduct of the parties to this instrument. There was no attempt or threat of foreclosure, which would, no doubt, have been had if either party had taken the position that the trust had been closed by the maturity and nonpayment of the $4,903.96 note. If only this note was secured, there has been such delay as would have barred the foreclosure of the deed of trust. On the contrary, the parties continued to operate under the faith of the security afforded by the deed of trust, and advances were made and received pursuant thereto, the balances due thereon being evidenced by the notes here sued on.
The ba,nk took six mortgages from Sanders on & Or-ton securing its advances, and the latest of these, dated February 11, 1931, was the only mortgage which did not recite the priority of the oil company’s deed of trust. The last mortgage previously executed, and which, like those antedating it, recognized the priority of the oil company’s deed of trust, was dated February 10,1930, and only one of the three notes here involved was executed on a later date. But all three of the notes here involved were exe cuted prior to the date of the bank’s last mortgage, the one which did not expressly recognize the priority of the oil company’s deed of trust. As all three of the notes were executed during the life of the trust created by the oil company’s deed of trust, we hold that this lien securing their payment is prior to the lien of the bank.
In the case of Hollan v. American Bank of Commerce & Trust Company, 168 Ark. 939, 272 S. W. 654, a mortgage had been given to secure two notes, there specifically described, and upon the foreclosure of that instrument it was sought to include other indebtedness, but it was insisted that the language of the mortgage should be interpreted to refer only to indebtedness incurred up to the date of the maturity of the two notes described in the mortgage. It was there said: ‘ ‘ Placing that interpretation on the language of the mortgage does not help appellant’s cause, for, according to the undisputed evidence, there was an agreement extending the date of the maturity of the notes to a date beyond the time that the additional indebtedness was incurred. But we are of the opinion that the construction contended for by counsel for appellants is not the correct one. In the case of Fort v. Black, 50 Ark. 256, 7 S. W. 131, there was involved the interpretation of a mortgage to secure a promissory note and to secure ‘supplies furnished and to be furnished,’ and this court held that the mortgage covered only advances made up to the date of the maturity of the note. In later cases involving mortgages, using broader language, we have held that the mortgage covered any indebtedness up to the time of the foreclosure. Each instrument, of course, must be interpreted according to its particular language, and, in order to interpret the present mortgage in accordance with the contention of counsel for appellants, it would be necessary to wholly reject the language in the mortgage which has an unmistakable meaning. Howell v. Walker, 111 Ark. 362, 164 S. W. 746; Word v. Cole, 122 Ark. 457, 183 S. W. 757. We must interpret the language of this mortgage to mean just what it says — that it secures any indebtedness incurred up to the time of. the foreclosure. It is a matter of contract between the parties, as there is no limitation upon the right to contract with reference to the extent of the debt secured by a mortgage, and the province of the court is merely to interpret the language and declare the rights of the parties in accordance with their intention as expressed in the language used.”
Here we have an instrument which secures “all future advances during the life of this trust,” and, as the advances were made during the life of the trust, they were secured by it.
The decision of the court below conformed to this view, and, as we think this-is the correct construction of the deed of trust, that decree must be affirmed, and it is so ordered. | [
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Kirby, J.
This appeal is prosecuted from a judgment denying appellant the right to recover $300 of school funds alleged to have been wrongfully retained by appellee as an attorney’s fee for the collection of moneys for the school district.
It appears from the testimony that W. A. and Ida Tomlinson made their will in the State of Texas, county of Jeff Davis, providing that $3,000 out of their estate he paid-to the public school fund of Calhoun County.
Sikes was appointed executor of the will, and the $3,000 was collected out of the estate, but he failed to pay same to the school fund, paying it to C. L. Poole instead, who was alleged to be without authority to accept it for the* school fund, and Poole acting for Sikes, executor, did pay the school fund of said county the sum of $2,700, wrongfully retaining $300' as a fee for the collection of it, and it was alleged that both he and the executor were liable to the county school board therefor.
Poole answered denying- any indebtedness, and alleged that he had the right to and did retain the $300 out of the money collected as a fee for professional services rendered.
The testimony shows the "services necessary to be performed, which were done by Poole and an assistant employed by him in having the will, which appeared to have been lost for a time, probated in Denton County, Texas, where Ida Tomlinson died, a copy of the lost will being procured from Pilo Pinto County where it had first been probated. The necessity for procuring affi davits from the subscribing witnesses from Jeff Davis County, etc., was shown. The money was finally collected after three trips made to Texas by appellee and paid over to the public school fund, except $300 retained by Poole as his fee in accordance with what he claimed to be his contract of employment.
He testified that he had talked with the board at regular meetings two or three times about the employment and the necessity for it, and that finally the president of the board with another man came over to his office and told him to proceed with the collection; that he accordingly collected the money after three trips down into Texas at an expense of about $75 each and retained his fee agreed upon, as he had the right to do.
Several members of the board testified that Mr. Poole had come before the board and stated the necessity for having some one employed to collect the money from the estate, but that the board had never employed him; that Sikes, the executor, was Poole’s brother-in-law, his wife being a daughter of the testator, as was also Poole’s wife, and that the board thought it could collect the money without the employment of counsel.
Sometime after Poole had begun to proceed about the collection and before it was actually made, the board passed a resolution to rescind any previous action towards employing an attorney to collect the money willed to the school fund of the county by Mr. Will Tomlinson and leave it in the hands of Mr. Sikes of Monticello.
The jury under instructions not complained of returned a verdict in favor of appellee Poole, from which this appeal comes.
It is insisted for reversal that the school board was without authority to employ a lawyer to collect the money given to it under the terms of the will, that the testimony is insufficient to support the verdict, and that the court erred in not granting a new trial on account of newly discovered evidence.
The county board of education is granted certain powers by the statute, § 8873, et seq., Crawford & Moses’ Digest, in effect substituting the county boards of education for the county court in the supervision of school affairs, the duties of the board being set forth in § 8876 of the Digest. The right of the county board to bring suit for the protection of the common school fund and for the purpose of requiring the county treasurer to transfer moneys to the common school fund appears to be recognized in County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2. Although the authority is not expressly given, it would necessarily be implied from the authority conferred to manage and control school funds, etc. The jury decided the fact as to whether there was a contract between appellee “Poole and the county board of education to collect the fund, and there is sufficient evidence to support the verdict. All admitted Mr. Poole appeared before the board at one or two meetings, stated the conditions about the collection of the fund and his desire to represent the board in the collection, agreeing to do so for the amount of $300. Although several members denied that he was ever employed and stated that the minutes of the board meetings did not show any such employment, he testified that the president of the board came to his office after the last conference with them and told him to proceed with the collection, which he did. The president was not very definite in his recollection of what occurred when he spoke to Poole about it, but he admitted that he called at the office for some purpose and had a conversation with Poole. Then the resolution passed by the board after appellee was proceeding with the collection of the fund, which was afterwards paid to him, to rescind any previous action toward employing an attorney to collect the money indicates that the board thought that an attorney may have been employed for whose services it would be bound, unless it did take such action. If appellee had been employed, as some of the testimony tends to show and the resolution indicates, the board could not discharge ox-refuse to pay him a reasonable fee for the services necessarily rendered in the collection of the money to which the board was entitled. He stated what his services consisted of, the necessity of payment of expenses of three trips to Texas, the employment of a local attorney to assist, aixd it cannot be said that the fee charged for making the collection, if one had not beeix agreed upon, was more than the services rendered were worth.
Neither was error committed in refusiixg to grant the motion for a new trial oix account of newly discovered evidence. No diligence was shown to procure the testimony of'the witness, which was claimed would furnish the newly discovered evideixce, no subpoena having been issued for him, and, although he was a party to the suit, appellaxxt could not have a íxew trial because of the disappointment of its expectatioxxs that said witixess would necessarily be at the trial and could be introduced by it as a witness for appellant. The testimony claimed to be newly discovered was largely cumulative too, about the payment of the expenses of the attorney for his trips to Texas, one witxxess having- testified he had seen the account and the statement of it and its paymexit by the executor, etc.
We do not find any prejudicial error in the record, and the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). It is insisted by appellant that the court erred in holding the lease invalid as being executed by the Commissioner without authority of law, and also in declaring the suit could be maintained by the appellees.
The conveyance of the lands upon which the Ex-Confederate Home was already constructed was made by individuals, trustees for the establishment of the home, for the use of soldiers of the Confederate Army. It will suffice to say that the deed conveying the lands to the State conveyed the whole title without any trust being imposed upon the State, the grantee, for the maintenance of the home thereafter that could be enforced to prevent the disposition of the lands by the State.
The statute, which it is claimed authorized the lease made by the Commissioner of Revenues, is § 6789, Crawford & Moses’ Digest, as amended by act 212 of 1929, and reads as follows:
“Section 6789. Hereafter it shall be unlawful for any person, firm, company, corporation or association to take sand and gravel, oil and coal, or other minerals from the beds or bars of navigable rivers and lakes, or from any and all other lands held in the name of the State of Arkansas, without first procuring the consent of the Commissioner of Revenues. Such consent may be withheld unless such person, firm, company, corporation or association shall agree in writing to keep an accurate record and account of all sand and gravel, oil, coal and other minerals taken by him or them from said rivers and lakes, and from any other lands owned by the State of Arkansas, and render to the said Commissioner of Revenues at the end of each month an itemized, verified statement of all the number of cubic yards of sand and gravel, and gallons of oil and tons of coal and other minerals taken out each day during the month. At the time of making such statement the person, firm, company, corporation, or association shall pay into the State Treasury two and one-half cents for each cubic yard of sand and five cents per cubic yard of gravel so taken, and one-half cent for each gallon of oil and six cents per ton of coal, and, if any other valuable minerals be found in such rivers, lakes or under other lands owned by the State of Arkansas, any firm, company, corporation or association taking the same out shall make a contract with the Commissioner of Revenues stating the amount due the State of Arkansas under said contract.”
This section makes it unlawful to take sand and gravel, oil and coal, and other minerals from the bed and bars of navigable rivers and lakes, “and from any and all other lands owned by the State of Arkansas,” or “held in the name of the State of Arkansas,” or “under other lands owned by the State of Arkansas.” It provides also the procedure for obtaining the consent of the Commissioner of Revenues therefor and for payment for such minerals taken from the said lands owned by or held in the name of the State of Arkansas, or under lands owned by the State of Arkansas.
Appellant insists that these phrases necessarily include any lands owned by the State or held in the name of the State, and authorized the Commissioner of Revenues to dispose of the minerals thereon or thereunder; while appellees insist that the “lands of the State” under the provisions of this statute would be such as are included within the chapter 107, Crawford & Moses’ Digest, which it has authority to sell.
It was the evident purpose of this statute to allow the sale and disposition of these minerals from the bed and bars of navigable rivers and lakes and any other lands owned by or held in the name of the State of Arkansas — “lands of the State” being such as are included within the said chapter 107 of the digest of the statutes— and the meaning could not be extended to lands that were in fact owned by the State already dedicated to other uses with improvements thereon. The lands here constituted one of the State’s charitable institutions, and there was no intention of the Legislature, under a proper •construction of any of the language used in said act, to authorize the disposition of minerals under the foundations or grounds of the buildings constituting its charitable institutions, or its Capitol, for instance. These-lands, while owned by the State, are a part of such institutions, arid no fair construction of such statute gives authority for the disposition of minerals that might be found under the buildings or within the grounds of such institutions.
The parties to the lease evidently doubted that authority was granted by the statute for the disposition of the minerals made in the execution of the lease therefor, since the Governor and the Attorney General were required to approve the lease and did do so, although the statute does not require it done. Such approval could give the lease no greater validity bhan it had already as executed by the Commissioner under the authority of the statute, which does not require the execution and approval of the lease by them. Neither could the Commissioner execute a valid lease of the minerals, as was attempted to be done in this case, since the statute, neither by express words or necessary implication, granted him the authority to make such disposition of minerals under a part of the grounds and foundations of the buildings of one of the State’s charitable institutions. The Legislature could have done so, of course, the State having the title to the property, but it did not, and, if there was any such intention, it is not fairly deducible from the language of the statute, which should use such language as shows an unmistakable intention to authorize it done— too plain to admit of construction.
Neither did the court err in refusing to dismiss the suit as one that could not be prosecuted by the appellees as taxpayers and eligible to be inmates of the charitable institution and beneficiaries of the use of 'it. It was not necessary for the appellees to first request the Attorney General to bring the suit and then allege his refusal to do so in order to proceed, since the law does not require a vain thing done, and the Attorney General was a party to the lease, having given his approval thereto as shown by the lease exhibited with the complaint. Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380.
It makes no difference that the lease does not appear to have been improvidently made, or without due regard for the protection of the improvements in the mining of the minerals, nor whether the purpose was good in attempting to dispose of the minerals for the better maintenance of the home, and in providing increased comforts for the inmates thereof, since the statute did not authorize its execution.
The lease having been executed without authority, it was necessarily void, and the court did not err in so holding. The decree is accordingly affirmed. | [
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Smith, J.
This cause was heard in the court below upon an agreed statement of facts from which we copy the following essential recitals.
The Home Bank of DeWitt suspended business on January 4, 1929, and its assets are now in charge of the State Banking Department for purposes of liquidation. At the time of the bank’s suspension, Arkansas County Road Improvement District No’. 5 (a road improvement district created by special act of the General Assembly) had on deposit $19,799.21, which was a general deposit subject to check.
The deposit was made pursuant to the supposed authority conferred by act 182 of the Acts of 1927 (Acts 1927, page 634). At the time of the deposit the bank held certain warrants drawn bjr the board of directors of Special School District No. 1 of DeWitt, Arkansas, on the county treasurer in the sum of $10,572.59.
It is recited in the agreed statement of facts that “the sum of $11,699.80 has been paid on the deposit by delivery of $9,000 in U. S. bonds which had been separately pledged on June 22, 1927, to secure $9,000 of the aforesaid deposit, and by a twenty-five per cent, dividend by the successor to and purchaser of the assets of the Home Bank of DeWitt, leaving unpaid $8,099.41 of said deposit, and the school warrants aforesaid are worth their face value of $10,572.59, and thereby have excess value of $2,473.18 over the unpaid balance of the deposit.”
The school district was a legally organized school district under the laws of the State of Arkansas, and the deposit was made under a contract for the payment of three per cent, interest on daily balances.
The deposit was made under a written contract whereby the school warrants and the Government bonds were deposited in the First National Bank of DeWitt, to be delivered to the road improvement district npon the failure of the Home Bank to repay the funds upon the check or order of the road district.
The school warrants deposited in escrow had been drawn by the school district for teachers ’ salaries, janitor service, and other small necessary supplies. The school warrants were in regular form and such as are in general use throughout the State, and were valid orders for the payment of the indebtedness of the school district upon presentation to the county treasurer out of any funds in his hands belonging to the school district, and would have been paid upon presentation to the county treasurer when settlement had been made by the collector of taxes collected for the school district.
Upon these facts it was decreed that the State Bank Commissioner “is the owner of all the school warrants described in the pledge, * * * and that all said school warrants be surrendered and delivered by the escrow agent, First National Bank of DeWitt, to Walter E. Taylor, State Bank Commissioner, and be held by him free of all claim of the said Arkansas County Road Improvement District No. 5, or any of the other parties to this action,” and this appeal is from that decree.
It is said that 'the decree from which this appeal comes was rendered upon the ■authority of the case of Arkansas-Louisiana Highway Improvement District v. Taylor, 177 Ark. 440, 6 S. W. (2d) 533, and in our opinion the law there announced was correctly applied to the facts herein stated.
In that case the Bank Commissioner brought suit to recover the assets of an insolvent bank which was in his hands for the purposes of liquidation. • The insolvent bank had, a short time before closing its doors, pledged certain notes payable to its order for the purpose of securing a general deposit made by a road improvement district. In that case, as in this, the deposit had been made under the supposed authority conferred by act 182 of the Acts of 1927, supra, and that case depended, as does this one, on the construction of that act.
Section 1 of this act provides that the officers of road and other improvement districts shall, before depositing money belonging to such districts in any bank, require a surety bond, conditioned for the apt, full and complete payment of all funds so deposited, together with interest thereon. It was provided, however, that in lieu of such surety bond the bank might “deposit United States bonds or notes of the State of Arkansas, the bonds of any legally organized school, levee, drainage, or other improvement district of the State of Arkansas, which bonds and all proceedings concerning the issuing* of same have been approved by some reputable attorney who is recognized by the bond buyers of the United States as such, as collateral security, and such bonds shall be deposited in escrow with some other bank than the depository of the funds of such .district to be delivered to such district only on failure of the depository of such funds to repay the said funds to the district or to pay same on the order of the district.”
It was held in the former case, above cited, that this act should be strictly construed for the benefit of stockholders and depositors, and that the power to deposit assets as collateral by a bank should not be held to extend beyond the express authority there given by the act. This holding was made upon the view, there expressed, that: “If a bank could pledge any portion of its assets to secure deposits, it could pledge all of its assets, because, if the authority to pledge its assets exists at all, it is without limit. And a few large depositors might be able to secure the entire assets of the bank as a pledge for their deposits, to the injury of every depositor and the stockholders. The act relied on should be strictly construed for the benefit of the stockholders and protection of the depositors, and the power to deposit assets by a bank should not be held to extend beyond the express authority given in the statute.” The 'Bank Commissioner was permitted in that case to recover the assets which had been pledged contrary to the provisions of the act.
The attempt is made to distinguish that case from the instant case, upon the ground that the warrants of the school district are, in legal effect, the same as the bonds of the district, and that as the authority is conferred to pledge bonds to secure deposits, the authority also exists to pledge school warrants for the same purpose. The correctness of this contention is the controlling question in the case.
The opinion in the case of Gaster v. Dermott Special School District, 184 Ark. 536, 42 S. W. (2d) 990, is decisive of this question. There a school district sought to refund both its bonded and floating indebtedness under the authority of §§ 59 and 60 of act 169 of the Acts of 1931, page 476.
By § 59 of this act all school districts are authorized to borrow money for certain designated purposes and “for funding any indebtedness created for any purpose and outstanding at the time of the passage of this act, as provided in this act.”
Section 60 of the act of 1931 reads as follows: “No bonds shall be issued at any time that would make the' total of outstanding bonded indebtedness of the district at that time, exclusive of interest, exceed seven per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. This shall not prohibit bond issues refunding present bonded indebtedness that exceeds seven per cent.”
It was there held that the Dermott district might issue bonds in excess of seven per cent, of the last county assessment only for the purpose of refunding' the bonded indebtedness of the district, and that bonds could not be issued in excess of the seven per cent, limitation for the purpose of paying the floating indebtedness of the district evidenced by school warrants, such as those pledged to the Home Bank in the instant case. It was there said: “Here, under the allegations of the complaint, the school district has outstanding thousands of dollars of warrants, issued for teachers’ salaries and other current expenses, attached to notes given for this borrowed money, and, while this is indebtedness of the district, it is not bonded indebtedness, and there is therefore no authority to issue bonds to cover those debts, for the reason that the district has now outstanding bonds in excess of seven per cent, of the assessed value of the property of the district.”
School bonds and school warrants are not synonymous terms. The characteristics of each are well known, and so also is the difference between them.
- In the case of Shelley v. St. Charles County Court and Another, 21 Fed. Rep. 699, Mr. Justice Brewer (later an associate justice of the Supreme Court of the United States) said: “There is a vast difference between bonds and warrants. Warrants are general orders payable when funds are found, and there is propriety in the rule providing that they shall be paid in the order of presentation, the time of presentation to be indorsed by the treasurer on the warrants. But bonds are obligations- payable at a definite time, running through a series of years. They are payable when the time of their maturity arrives, independent of any presentation.”
The obligations of school districts which the act of 1927, supra, authorizes the banks to use as collateral security are bonds, “which bonds and all proceedings concerning the issuing of same have been approved by some reputable attorney who is recognized by the 'bond buyers of the United States as such.” These bonds have a defined security- behind them, and, with the interest thereon, are payable at fixed definite periods, whereas the ordinary school warrant is payable on presentation when funds for that purpose are available. These school warrants are not ordinarily subjected to that scrutiny which precedes the approval of a bond issue, The Legislature evidently intended to require, and lias required, a higher form of security than a mere school warrant, and the deposit in question was not therefore authorized by the act of 1927. This being true, there was no authority in law for the pledge, and the opinion in the former case, above cited, applies and sustains the decree here appealed from. It is therefore affirmed. | [
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Humphreys, J.
Appellee, a creditor of the estate of S. A. Gregory, deceased, brought this suit in the name of the 'State of Arkansas for its use and benefit in the circuit court of Jackson 'County against Arthur Gregory, as administrator of said estate, and his bondsmen, the appellants herein, to recover $248.16 surcharged against the administrator’s account in the probate court, for failure to pay said amount to the administrator in succession. It was alleged in the complaint that appellee’s claim in the full amount of $509.62 was allowed and declared a fourth-class claim hy the probate court on September 3, 1921; that, on account of the indebtedness of said estate being greater than the assets, said administrator reported to the court that he could pay only 42 per cent, of claims allowed in said class, and that he was thereupon authorized and directed hy the court to pay such dividend on the claim's allowed, and to obtain and file receipts therefor; that he filed his first and final report on November 3, 1923, showing payment of the 42 per cent, dividend to all the creditors whose claims had been allowed, except appellee; that on January 2, 1924, appellee filed exceptions to the report, which were sustained, and said settlement was surcharged with $248.16 as the amount due it.
To this complaint a general demurrer was filed hy appellants, which was overruled, and, appellants saving their exceptions and standing upon their demurrer and refusing to plead further, judgment was rendered against them for the amount of the dividend, from which is this appeal.
Appéllant’s contention is that the court erred in overruling the demurrer since the complaint was fatally defective, because it did not allege that, after surcharging the settlement, the probate court ordered the administrator to pay over to the use of appellee or to the administrator in succession the sum so found due from him. Appellant overlooks the allegation in the complaint that theretofore an order had been made hy the probate court ordering the administrator to pay the creditors, including appellee, 42 per cent, of its original claim, which original claim had been allowed in the full amount of $509.62. The surcharge was the exact amount of the 42 per cent, which the court had authorized and directed the administrator to pay said appellee on September 3, 1921. It was unnecessary to repeat this order, as no change had been made in the amount hy the surcharge. This court ruled in the case of Statham v. Brooke, 140 Ark. 187, 215 S. W. 581, that an order of distribution or an order to pay over, and a failure to comply with, the order by an executor or administrator is what constitutes a breach of the administrator’s or executor’s bond, and fixes the liability on the bondsmen.
No error appearing, the judgment is affirmed. | [
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Frank Holt, Justice.
The appellant issued to the appellee a policy of liability insurance coverage. Subsequently appellee was involved in an accident which resulted in a verdict and judgment against him. On appeal we affirmed. W. G. Shook et al v. Mrs. Jack Kellar et al, 241 Ark. 616, 408 S. W. 2d 880 (1966). Thereupon the appellant paid the judgment to the extent of the policy limits and refused to pay the amount in excess. The appellee paid said excess and brought this action against the appellant to recover that payment. The appellee alleged in his complaint that an offer of settlement within the policy limits was made to the appellant insurance company, that the appellee made a demand upon the appellent to accept the offer of settlement; that the appellant refused to accept the offer; and that upon proceeding to trial a verdict and judgment were rendered in an amount of $1,300 in excess of the policy limits which appellee had to pay. The appellee alleged “ [T]hat defendant assumed all liability incurred on the trial of said cause, No. 5501, when plaintiff made demand on the defendant within policy limits, • * * The trial court overruled appellant’s demurrer and when the appellant refused to plead further, a judgment was rendered for appellee against the appellant for the excess of the policy limits plus interest, statutory penalty and attorney’s fees.
On appeal appellant contends for reversal that the appellee’s complaint does not state a cause of action and the appellant’s demurrer should have been sustained and the complaint dismissed. We agree with appellant that the complaint was subject to a demurrer.
The appellant and appellee appear to be in agreement that- under our cases a liability insurer may be liable to its insured for the amount of a judgment in excess of policy limits if the insurer, in refusing to settle a claim within the policy limits, was guilty of negligence or acted in bad faith. Southern Farm Bureau Cas. Ins. Co. v. Parker, 232 Ark. 841, 341 S. W. 2d 36 (1960); Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S. W. 2d 153 (1961). See, also, 44 Am. Jur. 2d, Insurance, § 1530, Appleman, Insurance Law & Practice, Vol. 7 A, § 4711, et seq.
In appellee’s complaint there is no allegation that the refusal to settle within the policy limits was based upon bad faith or negligence. It is appellant’s theory that in order to state a cause of action in the case at bar the complaint must allege that the insurer either acted in bad faith or was negligent, or both, when the insurer rejected the proffered settlement within the policy limits Appellee, however, submits that although neither the words “negligence” nor “bad faith” ap pear in the complaint, the allegations of the offer of settlement within the policy limits and the rejection by the appellant, resulting in appellee having to pay the excess, were sufficient allegations of fact from which negligence or bad faith, or both, could be reasonably inferred.
Appellee relies upon the well established rule that in testing the sufficiency of a complaint against a demurrer all well pleaded allegations and all inferences which can be reasonably drawn therefrom are admitted to be true and that every reasonable intendment and presumption are made in favor of the complaint and the demurrer should be overruled if the facts stated, together with every reasonable inference, constitute a cause of action. In other words, pleadings are liberally construed and every reasonable inference and intendment are indulged in favor of the pleader. James v. Lloyd, 196 Ark. 568, 118 S. W. 2d 284 (1938); Central Supply Co. v. Wren, 198 Ark. 1090, 133 S. W. 2d 632 (1939); Dillinger v. Pickens, 200 Ark. 218, 138 S. W. 2d 388 (1940); Shopfner v. Clark, 246 Ark. 70, 436 S. W. 2d 475 (1969).
In the case at bar we are of the view that an allegation that the settlement was rejected through negligence or bad faith is essential to the cause of action. In Purtle v. Wilcox, 239 Ark. 988, 395 S. W. 2d 758 (1965), the appellant alleged in his complaint that the appellee had conspired with another to defraud the appellant. However, no specific acts or details of the conspiracy were set forth. The trial court sustained a demurrer to the complaint. On appeal we held that the allegation of fraud is a mere legal conclusion and insufficient to support the complaint against a demurrer. There we quoted with approval:
“The complaint must be so framed as to allege the wrong complained of with sufficient certainty to clearly apprise the court and the defendant of the nature of the claim asserted. Mere legal conclusions are fatally defective unless substantiated by sufficient allegations of ultimate fact; and every fact essential to the cause of action must be pleaded distinctly, definitely, and clearly.”
See, also, Wilburn v. Moon, 202 Ark. 899, 154 S. W. 2d 7 (1941); L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S. W. 2d 717 (1969); 41 Am. Jur., Pleading, § 212, p. 442.
In the case at bar appellee’s complaint, when liberally construed, was subject to appellant’s demurrer inasmuch as the complaint did not include the essential elements of negligence or bad faith. However, we do not agree with appellant that appellee’s cause of action should be dismissed on appeal. The appellee should have the opportunity to amend his pleadings to contain the essential allegations of bad faith and/or negligence. Otherwise, the demurrer will be sustained.
We do not reach appellant’s other point urged for reversal. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed and remanded. | [
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Lyle Brown, Justice.
In an eminent domain proceeding by the Arkansas State Highway Commission, appellant here, a jury awarded $20,000 as just compensation to the landowners, Louis Carter and wife, the appellees. The taking was in fee simple. The sole question on appeal is whether the amount of the verdict is supported by substantial evidence.
Three value witnesses testified for the lanclowners. They were Louis Carter (owner), Glenn West, and Theo Bell, the two last named being real estate brokers in the area. It is not disputed that the three witnesses established the necessary qualifications. With respect to direct examination of those witnesses, they supported their opinions on just compensation by substantial testimony. The real basis asserted for reversal is that cross-examination of those tnesses destroyed the substantiality of the testimony given on direct examination.
Cross-examination of Louis Carter. On direct examination Mr. Carter gave an across-the-board after value of $20,000 to land and improvements. On cross-examination he was asked to assign a separate after value to a 65-acre parcel and to another parcel of fifteen acres. He was unable to fix separate values and stated that he was considering the entire remainder as a whole since he was interested in selling all that remained — “just the whole thing is for sale.” He was questioned about the after value of his home and he said, “Well, I knew it would be reduced way down — oh, six or seven thousand, but still, at the same time, I just wanted to get loose.” Finally, he was asked if he was “just speculating” in arriving at his after value of $20,-000, to which he replied, “I don’t know what you’d call it.”
Cross-examination of Glenn West. It was shown that the witness estimated damage, by the taldng, to five acres in the right-of-way of an existing highway running through a corner of the property; in assessing dam ages to the home, the witness stated that it would no longer be located on a main road, and that damage is asserted by appellant to be an improper element of compensation. (There was no motion to strike the latter assertion.)
Cross-examination of Theo Bell. The witness admitted that he was not familiar with the fact that the construction plans called for a six-by-six box culvert to be constructed under the highway and connectiiig the landowners’ divided parcels. He was.asked if that fact would make a difference in his appraisal. He conceded the culvert would be of some advantage but he could not say it would actually enhance the sale value of the property.
Before we could reverse this judgment for insubstantiality of evidence we would have to hold that the summarized testimony materially destroyed the reasonable bases for valuations given on direct examination. The most that can be said critically of the evidence elicited on cross-examination is that it tended to weaken the strength of the direct evidence; and that fact is for the jury’s consideration in weighing the witnesses’ testimony. In Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), it is made clear that evidence elicited on cross-examination must demonstrate that the witness “had no reasonable basis whatever” for his original opinion before the evidence in chief on the same point can be voided.
Finally, it is not insignificant that the jury discounted the testimony of all three of appellees’ value witnesses. Just compensation was estimated by Carter to be $40,000 and by the lower estimate of his two appraisers to be $25,000.
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Carleton Harris, Chief Justice.
This appeal is an effort to persuade this court to extend the rule announced in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (rehearing denied on July 15, 1968) to permit suits in tort against counties. On the night of July 24, 1967, Joseph Sullivan was killed on the Woodson Lateral Road, a county public road, in Pulaski County. Death occurred when the Sullivan vehicle left the road on a curve, and plunged into a tree. The administrator of the estate instituted suit against Pulaski County, alleging negligence against the county because of its failure to erect and maintain visible markers, effective warning signs, or luminous reflectors. Other similar allegations of negligence were asserted, and damages were sought in the sum of $100,000.00. The county demurred to the complaint on the basis of county immunity from tort liability, and upon hearing, the trial court sustained such demurrer. From the order so entered, appellant brings this appeal.
While there are probably several reasons why appellant cannot prevail in this litigation, we deem it sufficient to simply call attention to the action of the General Assembly of Arkansas in enacting legislation which became Act 165 of 1969. This act became effective on March 5, 1969, and is entitled:
“AN ACT to Declare It to Be the Public Policy of the State of Arkansas That the State and Its Political Subdivisions Shall Not Be Liable for Tort Under the Laws of the State of Arkansas and to Provide That No Action Shall Be Maintained Therefor; to Require All Political Subdivisions to Carry Liability Insurance On Their Motor Vehicles; to Declare An Emergency; and for Other Purposes.”
Section 1 provides as follows'
“Tt is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be im mune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.”
Tilia statement of public policy is plain and unambiguous. and leaves no room for doubt.
Of course, we made it clear in Parish v. Pitts, supra that the decision only applied to municipalities, and the liability of other governmental units or political subdivisions was not involved. It is interesting to note that, even if ¡Sullivan’s death had occurred within the city limits, there would have been no cause of action against the City of Little Eock for the reason that the accident and death occurred on July 24, 1967, almost a year before Parish v. Pitts became effective. The opinion in that case definitely stated that, except for the plaintiff, Mrs. Dora Parish, the decision was prospective as to all other causes of action.
Affirmed.
Section 3 of the act requires that all political subdivisions shall carry liability insurance on all motor vehicles in the minimum amounts prescribed in the “Motor Vehicle Safety Responsibility Act.”
This court said: “We declare the rule of liability to be applicable to this case and all other causes of action arising after this decision becomes final. This serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given to this Court the opportunity to rid the body of our law of this unjust rule. The impact of retroactive application on the present defendant is not likely to create any major crisis. Being prospective as to all other causes of action the municipalities are given time in which to procure insurance and take measures to protect themselves in suits thereafter arising.” | [
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Lyle Brown, Justice.
Appellant Arkansas State Highway Commission instituted this action in eminent domain to acquire from Alma S. Wallace, appellee, 2.55 acres needed for the relocation of State Highway No. 9. The jury fixed the landowner’s damages at $18,000. On direct appeal the Commission argues error in the admission of certain value testimony and in an admonition to the jury which is attacked as being a comment on the evidence. The landowner cross-appeals, alleging error in the giving and refusing of certain instructions and in allowing the Commission to proceed on the assumption that the taking did not impair ingress and egress.
Mrs. Wallace’s 143-acre tract, part of which is located in the city limits of Morrilton, was used before the taking as her home and for a dairy operation conducted by her husband. The land had a narrow frontage (some 300 feet) along Highway 9. before the relocation, and then ran eastward a distance of slightly more than three-quarters of a mile. The relocation moved the highway eastwardly which resulted in1 a severance of the westerly ten acres from the remainder of the tract.
' The first point for reversal on direct appeal concerns the value testimony of Mrs. Wallace. In her estimate of values she considered, the immediate use as a home and dairy operation; then she envisioned, in. .the foreseeable future, the utilization of the land for urban development, the latter being considered the highest1 and best use. On direct examination Mrs. Wallace described generally the land and improvements, the dairy Operation, future adaptability to homesites, and estimated the value before the taking to be $120,000. She then testified that the severance had substantially impaired the land for development into lots and explained the reasons for that conclusion. She also asserted that a dairy operation was no longer feasible. She was then asked the value of the property after the taking and she replied, “I guess $85,000.” Her computations were not based on allocation of values, rather they were her conclusions of overall estimates. - v '
Her testimony which formed the basis of the reversal point under discussion occurred on cross-examination. After having testified that the taking had closed down the dairy business, there was this question and answer:
Q. Are you counting the fact as an element of damages that he is no longer in the dairy business'?
A. That’s right. He is no longer in the dairy business, and the equipment is just there.
Thereupon the condemnor moved that Mrs. Wallace’s testimony on just compensation be stricken because her figures included an improper element, being loss of the dairy business. The request was denied. That element of damage is not proper in ascertaining, in these cases, damages to lands and improvements. City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846 (1914).
It is highly significant that Mrs. Wallace did not allocate a specific figure to business loss. It was therefore impossible for the jury to know the amount of damages included for that item. They might have speculated the figure to be $8,600 because her estimate was that much higher than her expert witness, Pearce; hut of course we do not propose to encourage speculation. Specifically, we hold that when a witness testifies to a total just compensation figure and it is shown that an impermissible element of valuation has been incorporated in that figure, the value testimony so affected cannot stand unless the improper amount can be distinguished. Of course the witness should he afforded an opportunity to specify the amount improperly included when that fact is revealed.
In its second point for reversal the Commission contends that appellee’s appraisers erroneously considered the taking would make it possible for the highway department to restrict the landowner’s ingress and egress to and from the highway. We find the contention to be without merit. The subject matter will later be discussed in our treatment of the landowner’s cross-appeal. The Commission’s third point concerns an admonition given the jury with reference to Mrs. Wallace’s value testimony. In view of our holding on' the first point that problem is not likely to arise on retrial.
The first three points on cross-appeal are concerned with the effect of a taking in fee simple upon the landowner’s right of ingress and egress on and across the relocated highway which divides her property. The Commission contends that it condemned the lands ‘ ‘ pursuant to a statute under which it does not have the power to regulate and control the access of abutting landowners.” Mrs. Wallace argues that the taking, being in fee simple, subjects her right to cross the highway at all points along the new frontage strip to the control of the Commission. She does not insist that she would be completely blocked, as in the case of a controlled access facility, but she strongly argues that the taking in fee simple gives to the Commission the power to control access in such manner as would serve the best interests of the paramount use of the lands taken.
The complaint was filed “pursuant to the authority and provisions of Act No. 419 of the 1953 General Assembly of the State of Arkansas, Ark. Stat. Ann. § 76-532 et seq.” That law provides that the Commission may acquire lands for stated purposes by condemnation and that title may be acquired in fee simple or any lesser estate. In its complaint the Commission stated that it was necessary to condemn the subject lands in fee, excepting from the taking only drainage rights to oil and gas. That was also the content of the prayer of the complaint. The judgment recites that “fee simple title to said lands described be and it is hereby vested and confirmed in the Arkansas State Highway Commission.”
For a number of reasons, some of which we shall shortly discuss, we hold that the fee simple taking of the subject property vested in the Commission a most substantial control over the right of this property owner to go to and from her lands on each side of the new highway.
In the first place, the Commission did not take an easement; to the contrary, it took the highest estate possible. In 28 Am. Jur. 2d, Estates, § 10, we are told that fee simple “defines the largest estate in land known to the law and necessarily implies absolute dominion over the land. ’ ’
Ark. Stat. Ann. § 76-544 (Repl. 1957) tells us that the acquisition of the property is to be “held inviolate for state highway purposes.” Some exceptions are .provided in that section which would allow, with the Commission’s consent, the use of the right of way by political subdivisions, rural electric cooperatives, rural telephone cooperatives, and public utilities. No exception is listed whereby private landowners are given any type of described access for ingress and egress.
Section 76-532 specifically provides that highway purposes shall include not only the use of the property taken for public travel, but for such projects as roadside parks, the culture and support of trees and shrubbery, drainage, maintaining an unobstructed view for the traveling public, the elimination -of public or private crossings, and the protection of the highway system from physical and functional encroachments of any kind. We have recited only a few of the eleven projects authorized in the statute. We perceive that Mrs. Wallace’s unfettered access would be subordinate to any of the authorized uses.
Under § 76-548 the Commission would be authorized to later sell the property taken from Mrs. Wallace if it became no longer necessary or desirable for highway purposes. It is true that Mrs. Wallace or her successors in title would have the option to acquire the property by paying a price fixed by appraisers. That power of sale is cited to point np the difference between fee simple acquisition under Act 419 and the conventional acquisition of easements under prior law. Under the easement statute the lands, when declared surplus, reverted to the adjoining landowner.
We hold that a fee simple taking under Act 419 places the predominant control of all lands within the right-of-way in the Commission; that the utilization of the acquired property for highway purposes and for such purposes as are delegated to political subdivisions and utilities will as a matter of law take precedence over all other uses; and that Mrs. Wallace’s use of the highway for going in and out of her property can reasonably be expeeted to be affected.
The landowner’s first point for reversal on cross-appeal is the refusal of the court to give this requested instruction:
DEFENDANT’S INSTRUCTION NO. 1. The Arkansas State Highway Commission in this case alleges in its complaint that it is proceeding under Arkansas Statutes, Section 76-532, which provides that the State Highway Commission is hereby authorized to acquire real property, or- any interest therein, deemed to be necessary or desirable for State Highway purposes, by condemnation. Such lands or real property may be acquired in fee simple or any lesser estate.
The Arkansas State Highway Commission alleges in its complaint filed in this case that the lands owned by Mrs. Alma Summers Wallace are needed for State Highway purposes, ‘and it is necessary that said lands be condemned by order of this court and title in fee simple (save and except drainage rights to the oil and gas therein and thereunder as do not interfere with surface use for highway purposes) thereto be adjudged and vested in the Arkansas State Highway Commission.’
The instruction should have been given. It sets out in an unbiased manner (1) the authority of the Commission to take land for highway purposes, and (2) correctly states that in this case the Commission is taking a fee simple title excepting the drainage’rights to oil and gas.
The landowner’s second point is that the court erred in giving the following instruction:
INSTRUCTION NO. 13. You are instructed that the highway in question here today is not what is known as a controlled access facility. The abutting landowners along this highway will have a right of reasonable egress and ingress to their lands from the highway.
That contention is meritorious. From what has been said it is apparent that the nature of Mrs. Wallace’s access may well be substantially impaired; certainly the right of ingress and egress was not established as a matter of law.
On both direct appeal and cross-appeal we are asked to say whether the landowner’s appraisal witnesses had a right to consider the fee simple taking a factor which would reduce the market value of her lands; that was on the premise that it would be reasonably expected to affect an unrestricted right of ingress and egress. Our answer is that the witnesses properly considered that element. 'They did not attempt to assess a certain monetary figure because that would have been impossible; but certainly an informed prospective buyer, in noting the fee taking, would realize that his access to the highway would surely be subordinated to the needs of the highway department and those political subdivisions or utilities utilizing the untraveled portion of the right-of-way.
Reversed on direct appeal and cross-appeal. | [
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John A.-Fogleman, Justice.
Dura Craft Boats, Inc., as employer, and Employers Insurance of Wausau, as carrier, bring this appeal from an order of the circuit court holding that a workmen’s compensation claim of appellee, as employee, was not barred by the statute of limitations. Appellants assert that the claim was barred by Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960). Appellants also seek reversal of that part of the judgment of the trial court awarding claimant compensation for permanent partial disability. We find that the circuit court was correct in reversing the order of the Workmen’s Compensation Commission holding that the claim was -barred but in error in undertaking to award compensation to the claimant.
Daugherty sustained a compensable injury on April 6, 1963. He was paid temporary total disability benefits for a period of thirteen weeks and two days. The last payment of compensation was in September of 1963. Thereafter the claimant retained the services of James A. Boss as his attorney. Mr. Boss filed a claim in his behalf on December 8, 1964. The exact nature of this claim is not disclosed by the record before us. On January 11, 1965, Daugherty’s attorney and the carrier were advised by the Secretary of the Commission that the claim was being placed upon the “hold” docket and that the commission would not take any further action in regard thereto unless requested by one or both of the interested parties.
On October 21, 1965, Mr. Boss addressed the following letter to the claims manager of the carrier:
“I have lost all contact with Mr. Daugherty, and I will ask to be relieved as attorney of record.”
On October 24, 1965, the claims manager of the carrier requested the commission to dismiss the claim for lack of prosecution. On October 26, 1965, the commission entered an order dismissing the claim for lack of prosecution. This order recited the receipt of the claim on December 8,1964, and the lack of action by the claimant thereafter to prosecute his claim. A letter was addressed by the Secretary of the Commission to the claims manager of the carrier and to the attorney for the claimant on October 26, 1965. The record reflects the receipt of this letter and copy of the order of dismissal by both Boss and the carrier’s claims manager on the following day.
On December 7, 1966, a claim for permanent partial disability was filed by Mr. Clifton Bond on behalf of the claimant. Mr. Bond had been employed by the claimant at some time in 1966.
At a hearing before the Workmen’s Compensation Commission, appellee contended that the order of dismissal was void on the ground that the olaim ant did not have notice and w.as, therefore, denied due process. The commission held that the statute of limitations had run on the claim filed in December 1966. Daugherty then appealed to the Circuit Court of Drew County. On this appeal, the judgment now before us was entered.
Appellant contends that the order of dismissal was valid and properly served. In support of his position that the order of dismissal was void, the appellee urges that Ark. Stat. Ann. § 29-107 (Repl. 1962) be applied. We agree with the appellant that this section, relied upon by the trial court, is not applicable to an order of the Workmen’s Compensation Commission. This section by its own language applied only to judgments and orders of the courts of this state.
The Workmen’s Compensation Commission is not bound by technical or formal rules of procedure. Ark. Stat. Ann. § 81-1327 (Repl. 1960). The commission is specifically authorized to make such rules and regulations as may be found necessary for the purpose of administering the provisions of the act. Ark. Stat. Ann. § 81-1342 (f) (Repl. 1960). The third paragraph óf Rule 13 of the Commission reads:
‘ ‘ Upon meritorious application to the Commission from either party in an action pending before said Commission, requesting that said claim be dismissed for want of prosecution, the Commission may, upon reasonable notice to all parties thereto enter an order dismissing said claim for want of prosecution.”
Clearly this procedural rule requires reasonable notice to the claimant before his claim is dismissed for want of prosecution. The obvious purpose of this notice is to permit the claimant to resist the dismissal and to show, if he can do so, that the application for dismissal is without merit. No such notice was given or attempted. The rule can only be designed to permit the commission to see that the rights of the claimant are not prejudiced. We can hardly conceive of an employer or carrier being prejudiced by a claimant’s dismissal of his claim. Notice after dismissal would not afford the protection provided.
We have held that a party to an action who was not served with process thereon and who was not in fact aware of a cross complaint against him was entitled to have a decree thereon vacated. Taylor v. Harris, 186 Ark. 580, 54 S. W. 2d 701; Woods v. Quarels, 178 Ark. 1158, 13 S. W. 2d 617. Although the copy of the letter transmitting the order of dismissal indicated that a carbon copy was addressed to Daugherty on Route 5, Monticello, Arkansas, Daugherty denied ever having received it. There is no receipt for registered or certified mail signed by him, and he testified that he had moved to Route 2, Monticello. The Workmen’s Compensation Commission made no finding that Daugherty received this letter. In view of this testimony and the fact that Ross had lost contact with him, it could hardly be said that Daugherty had actual notice of the dismissal or request therefor. He flatly denies that he did. There is no evidence of any effort to give notice to him or his attorney prior to the entry of the order. According to Daugherty, Ross talked to him about getting another attorney sometime during the political campaigns of 1966. It was not shown that anything was said about the order of dismissal. Daugherty’s testimony is the only testimony offered on this subject. Under these circumstances, we think the finding of the trial judge, that the order of dismissal was void, is correct.
It was clearly beyond the powers of the circuit court to make a finding as to the extent of appellee’s permanent disability, since this issue depends upon findings of fact by the Workmen’s Compensation Commission which it has not made. The only power of the circuit court in this situation was to remand the case to the Workmen’s Compensation Commission. Long-Bell Lumber Company v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920.
We are unable to ascertain from the record before us the nature of the claim pending before the commission at the time of the entry of the order of dismissal. Consequently, we can only remand this case to the circuit court with directions that it be remanded to the Workmen’s Compensation Commission for further proceedings not inconsistent with this opinion.
It is conceded that there is no indication or evidence that Ross ever made such a request of the commission. (Footnote ours.) | [
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John A. Fogleman, Justice.
The question involved in this appeal is whether a letter written by the chan cellor constituted a decree, so that the court could not change the terms thereof after the expiration of the term during which the letter was written. The chancellor, Judge George Eldridge, heard this divorce proceeding, the third in a series involving the same parties, on July 5, 1968. On the following day he directed the following letter to the attorneys then representing the respective parties:
“In connection with the testimony heard this date in the above cause, the Court makes the following findings:
1. The plaintiff, Mary Aline O’Dell, has an inchoate right of dower and homestead in the 29 lacres running along Kittel Road, including the acre on which the house is located, and this will be converted in the decree to a tenancy in common. Plaintiff will be given the right to occupy the homestead with the minor children of the parties.
2. The parties to this action now own as an estate by the entirety the lands on East Broadway on which are located both the filling station and the studio.
3. The Court does not find that either is the guilty party in this action.
The plaintiff will be granted a decree of divorce from the defendant, and the decree will incorporate the above findings. The decree will also require that the defendant make the monthly payment to the Veterans Administration and will make to the plaintiff bi-monthly payments, in two equal payments, beginning July 15, 1968, of the following sums: $150.00 child support for each of the children of the parties, and $150.00 per month alimony. Out of these payments the plaintiff will pay all utilities, automobile expenses and all other living expenses. The attorney for the plaintiff will be allowed a fee of $250.00, costs of this action to be borne by the defendant.
The decree will provide also that the plaintiff will provide major medical hospitalization insurance for the minor children.
All household furnishings in the residence will go to the plaintiff, and all professional equipment in the studio will go to the defendant.
The defendant will be allowed to take the children as dependents on his federal income tax return. Reasonable visitation rights will be provided. Mr. Long will prepare the decree, submit it to Mr. Patton for his approval as to form, and to me for my signature.”
"When the attorneys failed to present a precedent for a decree, Judge Eldridge, without hearing further evidence, prepared and filed the following decree on November 8:
“On this 5th day of July, 1968, this cause comes on to be heard upon the complaint and amendment thereto, the answer of the defendant, and this being the date regularly set for the trial, the parties are present in person, and the plaintiff by her attorney, Jim Patton, and the defendant by his attorney, Fletcher Long. Upon consideration of the record herein, including the testimony of witnesses and exhibits thereto, the Court finds as follows:
1. (Omitted as not pertinent.)
2. The plaintiff is entitled to a decree of absolute divorce and other relief as stated herein on the ground of three years separation without cohabitation, and the Court fails to find any misconduct by either party against the other such as to entitle either party to a divorce save upon the ground of three years separation without cohabitation.
3. The defendant is the owner of the following described real estate: * * * (Description of 30-acre tract which included one acre upon which dwelling house was located omitted.)
4. The parties to this action own by the entireties the following described property in the City of Forrest City, St. Francis County, Arkansas. * * * (Description of property on East Broadway omitted.) The Court finds that it is to the best interest of the parties that said property be hereafter held as tenants in common, and that to order a sale of the same at this time would jeopardize defendant’s ability to provide for the minor children and for the plaintiff, and if a partition is made and the property sold, this Court shall re-examine this decree as to the equities.
IT IS THEREFORE CONSIDERED, ORDERED AND DECREED that the plaintiff be and she hereby is granted a decree of absolute divorce from the defendant on the ground of three years separation without cohabitation, and without fault on the part of either party. The Court further orders the following as disposition of other property, custody, and property and maintenance rights of the parties respectively:
1. Plaintiff shall have custody of the minor children of the parties, subject to the defendant’s right to reasonable visitation, and shall have .a life estate to the one acre, more or less, described, in Paragraph 3, the same being the property mortgaged to U. S. Veterans Administration. The defendant will make the installment payments to the holder of the mortgage on said property, said mortgage payments to include payment of taxes and insurance on improvements only.
2. The property described in Paragraph 3 of the findings, less the described exemption is vested in the defendant free of any claims arising on account of dower and homestead in the plaintiff.
3. The property described in Paragraph 4 of the findings and formerly held by the entireties shall hereafter be held by the plaintiff and the defendant as equal tenants in common.
4. The defendant shall provide major medical and hospitalization insurance for the minor children by procuring .a policy of insurance adequate for such purposes at his own expense.
5. The defendant will pay to the plaintiff the sum of $150.00 per month for each child for support and maintenance, in addition to the residence house provided for them heretofore set forth, and will pay to the plaintiff the sum of $150.00 per month alimony and support for her own use and benefit. Said payment shall be made in equal semi-monthly installments on the first and fifteenth of each month hereafter, the first said payment being due and payable July 15, 1968. Plaintiff shall have custody of said children and may not remove them from the Court’s jurisdiction to reside without notice and hearing.
6. All household goods in the residence formerly occupied by the parties shall become the separate property of the plaintiff; all professional equipment and other property in the photographic studio occupied by the defendant shall be the sole and separate property of the defendant.
7. It is directed that the defendant will be permitted to enter the minor children of the parties as dependents on his Federal and State income tax returns.
8. The defendant will pay to plaintiff’s attorney the sum of $250.00 attorney fees, and such Court costs as may have been incurred by the plaintiff.
9. Other than as stated herein, each party is forever foreclosed from any property right in the possessions or real estate of the other which may have arisen by reason of the marital relationship. The Court retains the jurisdiction of this cause for such further orders as may be necessary or desirable with respect to visitation right of the defendant, support payments for the minor children, and alimony for the plaintiff, and for such purposes as may be necessary to enforce the continuing portions of this order.”
The letter was written during the June term of the St. Francis Chancery Court and the decree filed during the October term. On February 14, 1969, appellant filed her motion to set aside the November 8 decree, asserting that the letter of July 6 was a decree which could not be modified by the court’s decree filed November 8 because of the expiration of the June term of court. This motion was denied by the present chancellor. This appeal was taken from the order of denial.
It seems to be undisputed that the home in which the parties and their children resided together is located upon one acre of a 30-acre tract, the title to which is vested in appellee, and that the parties owned property on which appellee (usually with the assistance of appellant) operated a photographic studio and on which a gasoline filling station had been erected.
It should be noted particularly that the letter simply states that the parties hold the commercial properties as an estate by the entirety, without any specific indication as to whether that estate shall be continued or dissolved. It should also be noted that the chancellor did not there attempt to point out how the inchoate right of dower and homestead in the 29 acres would be converted into a tenancy in common and did not state the undivided interest to be vested in appellant or the duration of the tenancy. Seasonable rights of visitation of the children are not definitely fixed in either document, hut jurisdiction is retained in the decree actually filed to make appropriate orders in that regard.
We held in Thomas v. McElroy, 243 Ark. 465, 420 S. W 2d 530, that opinions and findings of a court do not constitute a judgment or decree but merely form the basis upon which the judgment or decree is subsequently to be rendered. We also said that a judgment must specify clearly the relief granted or other determination of the action. We cannot say that the chancellor’s letter met these requirements in that there are uncertainties at least as to dower and homestead rights, the disposition of the tenancy by the entirety and visitation rights.
We recognize the rule stated in cases such as Chatfield v. Jarratt, 108 Ark. 523, 158 S. W. 146; American Inv. Co. v. Hill, 173 Ark. 468, 292 S. W. 675; and Piggott Junior Chamber of Commerce, Inc. v. Hollis, 242 Ark. 205, 412 S. W. 2d 595, that there is a difference between pronouncement and entry of a judgment, the former being a judicial act and the latter a ministerial one. Those cases and others like them, such as Wright v. Curry, 208 Ark. 816, 187 S. W. 2d 880, recognize the rule that judgments not entered in a record book or noted on a docket are not void but may be entered nunc pro tunc, if it is clearly shown that the judgment of the court has been announced in open court or otherwise actually rendered. Here there is no indication that anything was done by the chancellor except to transmit his letter to the interested attorneys. This memorandum seems to have been written while the court was in vacation or recess and there is no indication that it was filed in the clerk’s office. As pointed out by the present chancellor, the letter of July 6 contained no order of the court, but constituted only a directive to counsel for preparation of a proper decree for entry.
Appellant relies strongly upon our holding in McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44. Unlike this case, the trial judge there rendered judgment for the plaintiff for the amount sued for in a foreclosure suit and noted his action on the docket. He instructed the attorneys for the plaintiff to prepare a precedent; but when a dispute arose as to the rate of interest which applied, he refused to approve the precedent presented by plaintiff’s attorney, saying that the mortgage would have to be reformed to show that it secured the notes sued on, rather than those described in the mortgage. An amended complaint was then filed by plaintiff, seeking reformation. We held that the court had no jurisdiction to set aside its original judgment after the expiration of the term during which it was rendered. We said, as we did in Thomas v. McElroy, supra, that strict formality in language is not required, and that a “judgment” is to be tested by substance not form. We also said that a judgment is sufficient if the entry thereof shows that the issues between the parties have been passed upon by the court and the merits of the case finally determined. It must, we said, finally dispose of the issues between the parties and finally settle and adjudicate all the rights in controversy. It was also stated that the entries made by the judge in that case specified clearly the relief granted, after it was noted that our statute requires that a judgment must do so. See Ark. Stat. Ann. § 29-116 (Repl. 1962); C. & M. Dig. § 6276. We said that once a decision was reached, announced by the court and sufficient memorandum made on the chancery docket, it was a final judgment. We do not feel that the chancellor’s memorandum of findings here sufficiently specified, “the relief granted, or other determination of the action” to constitute a final judgment.
The order of the trial court is affirmed.
Appellant moved for allowance of costs of appeal and attorney’s fees thereon. After reviewing the record, the majority of the court feels that allowance should be made of costs of $163.15, enumerated in appellant’s motion, plus the cost of printing her brief, but that no allowance be made for attorney’s fees. | [
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Lyle Brown, Justice.
This second appeal stems from the entry of the chancellor’s order on our mandate issued out of the first appeal, Arnett v. Lillard, 245 Ark. 939, 436 S. W. 2d 106 (1969). The trial court took the position that Nancy Lillard, appellee, should be permitted to prepay the mortgage debt owed the United States and thereby terminate any interest in the land held by Robert Arnett and wife. The chancellor’s order on the mandate contained that provision and the Arnetts appeal.
Nancy Lillard executed a warranty deed to her farm to her son-in-law and daughter, Robert and Beatrice Ar-nett. The Arnetts mortgaged the lands to the United States to pay off an indebtedness owed by Mrs. Lillard and secured by the lands. We reformed the deed to reflect the true agreement between the parties. In the first opinion we said that the evidence clearly showed an agreement that appellants were to take over the farm and operate it until the debt was paid; during the period of operation it was anticipated that the operators would make and retain the profits; appellee would continue to live on the farm; and after payment of the debt to the United States the land “would be reconveyed to appellee or her heirs and assigns.” The opinion then proceeded to detail the status and tenure of the trust:
We feel that the appropriate equitable remedy here is reformation of the deed to reflect the agreement of the parties, i. e.; to vest title in appellants as trustees of an express trust to cultivate the lands, or cause them to be cultivated, and collect the rents, income, and profits therefrom, paying therefrom all taxes, insurance premiums on improvements, and costs of repairs and maintenance and the annual installments of the mortgage debt, and retaining any excess for their own use and benefit, and to maintain the dwelling house occupied by appellee as a home for her as long as she lives. The title to the property shall vest in her heirs and assigns as soon as the mortgage indebtedness is retired.
Appellants contend that our opinion precludes appellee from prepaying the mortgage and cancelling the trust. In other words appellants assert that the effect of our decision was to establish a forty-year trust, the normal life of the payments. We do not agree. Unfortunately the question of prepayment was not mentioned in the previous trial or in the briefs. In fact the tenor of evidence there would lead any reasonable person to believe that prepayment was at least not soon anticipated. Otherwise, we could and would have treated the subject in detail. On the other hand, the opinion does not fix a specific date of expiration of the trust, rather it pro vides that it would be terminated when the debt was paid. The indebtedness constituted a lien upon lands to which appellee held legal title and it would hardly be logical to say that she intended to establish a trust that would deprive her of any possibility of redemption until she attained the age of 110.
We agree with the chancellor that the trust may be terminated as of the date appellee pays the government mortgage. However, appellants should be afforded the opportunity to present a fair accounting of their tenure under the trust and they should be reimbursed in the event they have to that date suffered an unavoidable loss. No such contention was made at the trial level and a loss in actuality may not exist; however, it would be putting form above equity to permit an early and unexpected prepayment to burden appellants with a financial loss and to the benefit of appellee. We are clothed with discretion to order a case reopened in exceptional circumstances for additional proof if that is necessary to achieve equity. See Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728 (1949).
Affirmed as modified. | [
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Frank Holt, Justice.
Appellee, a Faulkner County-road employee, brought this action against the appellant to recover damages for injuries appellee sustained when the road grader he was operating overturned upon striking appellant’s underground baffle. A jury awarded appellee $20,000 and from the judgment on that verdict comes this appeal. Appellant first contends for reversal that the appellee was a trespasser upon its easement and, therefore, appellant is not responsible for appellee’s injuries since no duty of care is owed to him.
This accident occurred in 1965 when appellee was shaping and widening a road which both parties agree is a public road established by prescriptive or adverse use for some forty years. In 1957 the appellant, by virtue of its utility easement, installed its underground toll cable upon lands adjoining the road and across and underneath the public road at a depth of about 5 feet. When the cable was installed the appellant, for purposes of soil erosion control, embedded a baffle or revetment near the south side of the road and within its own easement. This baffle was constructed with pieces of telephone poles and crossarms driven into the ground. It formed a wall diagonal to the cable ditch. The top of the baffle was constructed flush with the ground. Appellant erected two signs which warned of the presence of the cable and that no one should dig in this area without notifying the telephone company. One of the signs was at the site of the baffle on the south side of the road and the other sign was on the north side of the road. When the appellant laid its cable in 1957 within its easement, the traveled portion of the highway was about 12 feet wide with a 3-foot bar ditch on the south side. For approximately 8 years following the installation of appellant’s cable, the county’s maintenance of the road was restricted to grading the roadbed and taking dirt from the adjoining bar ditch to fill holes in the road as well as to provide drainage. These maintenance operations were at infrequent intervals. Thereafter, or in 1965, the county officials decided to “rehabilitate” and widen this road from 12 to 24 feet to meet the needs of increased traffic. To accomplish this, a bulldozer was first used by the county to skin off the scrub trees, underbrush and surface of a portion of the adjacent lands. This was done at the site of appellant’s easement. There a quantity of dirt was scraped off or removed from appellant’s easement on the hillside south of the road. This was for the purpose of filling or building up the roadbed on the north side. In the process, a bulldozer operator knocked down appellant’s warning sign and “shaved over” thé top of the baffle. The telephone company was notified and the sign was not reinstalled by either the company or the county. About two weeks later the appellee, a motor grader operator, began grading and shaping the newly widened road. When the motor grader blade struck the baffle upon appellant’s easement it caused the machine to overturn and injure appellee.
There was evidence that the baffle was located 11 feet from the south edge of the original bar ditch of the public road as it existed in 1957 and that following the widening of the road in 1965, this 11-foot distance was decreased to 4.4 feet at the nearest and 5.5 feet at the most distant point. It appears that the baffle does not exactly parallel the road. Appellee takes the position that the distance of 11 feet or 4.4 feet is immaterial because the use of this space upon appellant’s easement was reasonably necessary to backslope the existing ditch in order to maintain, improve and widen this admittedly public road which had no definitive boundaries. Therefore, appellee could not be a trespasser upon this portion of appellant’s adjoining property or easement.
We cannot agree. It is true that one who holds a right-of-way easement does have the right to preserve and maintain it. However, this right is subject to the limitation that in doing so nothing will be done to injure or damage the adjoining property rights of others. Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18 (1957). There we quoted with approval:
* * It is a general rule that the owner of an easement of way may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate nor am unwarranted interference with the rights of common owners or the independent rights of others.”
Further:
a* * * As a general rule, when the character of an easement is once fixed, no material alterations can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement. ’ ’
See, also, 76 A. L. R. 2d 555 (1961).
An easement is a property right and as such is entitled to all the constitutional safeguards afforded to other property rights. Arkansas State Highway Comm’n v. Arkansas Power & Light Co., 231 Ark. 307, 330 S. W. 2d 77 (1959).
In the case at bar the county, in rehabilitating and improving the existing road, was in the process of widening the road, relocating the ditch, changing the grade of the roadway and its drainage facility. In doing so, the appellee removed from appellant’s adjoining easement several feet of overburden which was used as fill for the new roadbed on the other or north side. It cannot be said that the portion of appellant’s easement which the county used in backsloping and widening the existing public road was dedicated in any manner to the public use for a road. The public had established no title or rights by adverse use to any of the adjoining-property extending beyond the traveled portion and the adjacent 3-foot bar ditch. The width of the public road before or after enlargement, viewed most favorably to the appellee, never extended closer than 4.4 feet to the baffle on appellant’s property or easement. Such a width was all that was ever deemed necessary by the county for forty years in order to make the road a usable highway. This prescriptive right did not vest in the public the additional right at a later date to widen or enlarge this prescriptive use except by just compensation to or permission of the adjoining easement owner or landowner. Appellant, as an easement owner, has the same independent rights from unwarranted interference as was enjoyed by the landowner from whom it acquired this easement. It was private property and not subject to acquisition or use by the county in the manner contended by appellee. To hold otherwise and accept appellee’s contention that this was a reasonable use of appellant’s adjoining easement would be taking property without just compensation. Further, it would subject all landowners adjacent to a public road to possible liability where injury to one such as appellee results from ob jects left by the landowner flush with his ground within a few feet of a public road which needs to be improved and. widened. Such concealed objects could include stumps, concrete emplacements, abandoned and covered wells and other items in addition to revetments.
Therefore, we must agree with the appellant that the appellee was a trespasser when the blade of his motor patrol struck the baffle upon appellant’s easement. The only duty owed to a trespasser is not to willfully or wantonly injure him after his presence is known. Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S. W. 30 (1923); Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 237 S. W. 2d 895 (1951); Webb v. Pearson, 244 Ark. 109, 424 S. W. 2d 145 (1968); AMI No. 1102 and No. 1106. In the case at bar there is no substantial evidence of any willful or wanton act on the part of appellant, and, therefore, we must hold that appellee’s evidence was insufficient to submit the case to a jury. It becomes unnecessary to discuss other points appellant urges for reversal.
Reversed and dismissed. | [
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George Rose Smith, Justice.
In 1966 the appellant Curtis Lee Wells, a youth apparently now in his twenties, pleaded guilty to a charge of burglary and received a five-year suspended sentence. In April, 1969, the trial judge revoked the suspension after a hearing at which four witnesses testified. In appealing from that order Curtis contends that the court abused its discretion in setting aside the suspension.
The pivotal point at the hearing was Curtis’s complicity in a burglary at Madison on January 20, 1969. On that date Eldridge Butler’s place of business was broken into. The missing articles included transistor radios, cigarettes, a gold ring, and several wrist watches. Three or four days later Curtis left the county in a car and drove to Detroit.
Another youth, James Louis Wilson, was charged with having participated in the burglary. He denies his guilt. At the hearing below James testified that he was present when Curtis left his parents’ home to go to Detroit. James said that Curtis brought out from the house and put in the car a transistor radio, a gold ring, and two wrist watches. There was testimony to support a finding that those articles had come from Butler’s place. An officer testified that other items of the stolen property were found in the home of Curtis’s parents in the course of a search under the authority of a search warrant.
Curtis flatly denied the accusations made by James Louis Wilson. He said that after receiving the suspended sentence in 1966 he worked in Detroit until he was drafted for military service. After his discharge he visited his parents in January, 1969, before driving to Detroit. There he was interviewed by the F.B.I. and at their suggestion returned to St. Francis county to try to straighten out his supposed connection with the burglary. Specifically, Curtis testified that he did not have any of the stolen property with him when he left his parents’ house and that he was not implicated in the burglary of Butler’s store.
Those, we think, are all the material facts. In a case of this kind the question on appeal is whether the trial judge abused his discretion in revoking the suspended sentence. Our cases were discussed at length in Gross v. State, 240 Ark. 926, 403 S. W. 2d 75 (1966), where we said that the circuit court’s revocation would not be disturbed except upon a showing of a gross abuse of discretion.
We do not find that showing in the record before us. The controlling issue at the hearing below was primarily one of credibility. According to the State’s witnesses, Curtis left the State a few days after the burglary with some of the stolen property in his possession. Curtis denied that accusation. The trial judge, who had the immense advantage of observing all the witnesses as they gave their testimony, concluded that the State’s version of the matter was the truth. With the evidence in irreconcilable conflict we have no sound basis for saying that he was wrong.
Affirmed. | [
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George Rose Smith, Justice.
In this condemnation proceeding the jury awarded the appellee landowner $20,000 for the taking of 3.94 acres, which works out at about $5,075 an acre. It was stipulated that a highway department appraiser would testify that the land taken was worth $6,000 an acre. The condemnor nevertheless insists that the verdict is excessive, upon the theory that the construction of the new highway will benefit the landowner’s remaining 23.29 acres in an amount exceeding the value of the 3.94 acres actually taken. That contention presents the sole question to be decided.
We hold that the testimony raised a question of fact for the jury. Mrs. Tilley’s 27.23-acre tract, before the taking, was situated in what is described as a fine-home residential district. It was the site of her home, valued at from $25,000 to $31,300. The tract was already crossed by Highway 39. The taking is for a new controlled-access thoroughfare, referred to as the Highway 63 Bypass. After the new construction Mrs. Tilley’s land will be divid ed into two parcels. Her home will be on the larger parcel, west of Highway 39. The smaller parcel, east of Highway 39, will consist of 8.44 acres and will have some access to an off-ramp from the new facility. The witnesses for the highway department testified that the 8.44-acre tract will be an ideal site for a filling station or a motel or both and that the enhancement in its value will exceed the value of the 3.94 acres being condemned. Those expert witnesses, without going into much detail with respect to comparability, cited marked enhancements of real estate values that had resulted from the construction of highway bypasses at or near Jonesboro (the vicinity of the land now in controversy), El Dorado, Fort Smith, Brinkley, and Forrest City.
'That testimony was disputed by the landowner’s two expert witnesses, both of whom were of the opinion that the new facility would not increase the value of Mrs. Tilley’s remaining land. We are unable to agree with the appellant’s insistence that the landowner’s witnesses gave no reasonable basis for their conclusions. One of them believed that the neighborhood would continue to be residential in character, so that the smaller tract could not be given a commercial value. The other testified that the tract would not be a suitable site for a service station, owing to its limited access to the highway and also owing to its contours, which included elevations fifteen to twenty feet above the road. That witness also attached some weight to the irregular shape of the 8.44-acre parcel.
At the trial the witnesses for both sides pretty well, agreed upon the value of the strip being taken by. the highway department. The disputed question of fact was whether the new bypass would enhance the value of the rest of Mrs. Tilley’s land. Upon that issue the substantial evidence was in such conflict that we are unable to say that there was no issue for the jury’s determination. Hence the verdict is conclusive of the only question argued here.
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Conley Byrd, Justice.
The appellee Sylvia Crabtree on Sept. 25, 1967, slipped and fell in the Hand-I-Pak grocery store operated by appellant Virgil Dennis in Camden, Arkansas. As a result of the fall Mrs. Crab-tree suffered personal injuries for which she had expended in excess of $3,000 for medical expenses. The jury returned .a verdict for $3,500. From the judgment entered thereon, appellant Virgil Dennis appeals contending that the trial court erred in not directing a verdict in his favor.
Mrs. Crabtree entered the store about 4 o’clock to buy some cat food. After passing by the check-out stand, five or six feet from the door, she turned to her right and entered the second aisle between the shelves or gondolas erected to display merchandise. After walking a few steps down the aisle she slipped and fell. When she yelled for help Mr. Dennis came to her aid and helped her to sit up. While she was sitting, Mr. Bill Jones, a store employee, came by and found a bottle cap 18 inches from her right foot. On cross-examination Mrs. Crab-tree testified that she did not know what she slipped on when she fell and that all she knows is that she did slip and that after she fell there was a bottle cap there. She stated, “Well, there was something under my foot, yes, when I went down, because when I took that step my foot just slipped real quick and I was down.”
Mr. Jones described the store as having only one entrance. According to him a person entering the store would find the check-out stand some five or six feet inside the store. Behind the check-out stand were gondolas or shelves, 23 feet 6 inches long, erected to hold canned goods and so constructed as to permit passage around the end of the gondolas before reaching the wall or rear of the building. The person entering the store would find to his left a coke box and magazine rack, and to the right a shopping cart used as an empty drink bottle drop. Mr. Jones testified that after he heard Mrs. Crab-tree yell, “Somebody help me”, he finished checking his customer and went to see what, was the matter. Some 18 inches from Mrs. Crabtree’s foot he found a bottle cap which he put in a waste container. He described the bottle drop as being 30 feet from the point where Mrs. Crabtree fell. With reference to the bottle drop and its usage Mr. Jones testified:
“Q. Bill, with regard to people coming in the store and placing, say, empty bottles in this hamper here, most generally how do people carry them in to be placed in the hamper?
A. Oh, they’re usually in cartons. Sometimes they bring them in paper bags and sometimes they’re just loose in their hands.
Q. Have you ever seen any bottle caps or other extraneous material deposited in there with these bottles?
A. Occasionally you do.
Q. Is this hamper such or so constructed that, say if a bottle cap were placed in the hamper —what would happen to that bottle cap?
A. It would lodge in the bottom of the buggy unless it fell on the outside of it.
Q. Is there any possibility that it would fall through the bottom of the buggy?
A. If it went up and down like that.
Q. There is that possibility?
A. It’s a possibility.”
Jones testified that he had swept the floor during the month of September, 1967, and did not recall sweeping up any bottle caps. This included the area around' the bottle drop. He did find bottle caps occasionally around the coke machine.
Johnny Strickland testified that he had been in the store on several occasions and had seen bottle tops to the left of the check-out counter near the Pepsi machine. That about the time Mrs. Crabtree fell he had been in the store and got a Pepsi from the machine and the bottle top holder was full and caps were on the floor.
Appellant contends that Mrs. Crabtree had the burden of proving that a dangerous condition existed which proximately caused her injuries and, second, that the condition existed sufficiently long for appellant to be chargeable with negligence in having failed to discover it. This argument is based upon our holdings in Owen v. Kroger Co., 238 Ark. 413, 382 S. W. 2d 192 (1964), and Jackson v. Hemphill, 245 Ark. 699, 434 S. W. 2d 818. Appellee’s argument is as follows:
“Appellee submits that a notice requirement is indeed proper; but in a proper case, such as this one, the notice requirement does, or at least should, refer to notice, actual or constructive, of. the general condition of the premises, not of the specific object or ■ substance on -the floor.”
Appellee’s argument is based upon the holdings of courts in Bozza v. Vornado, Inc., 42 N. J., 355, 200 A. 2d 777 (1964), and Mahoney v. J. C. Penny Co., 71 N. M. 244, 377 P. 2d 663 (1962).
In the latter case it was held:
“Where the dangerous condition is not an isolated one . ... but is foreseeable because of a pattern of conduct, a recurring incident, a general condition, or a continuing condition, then we hold that the rule most conducive to.justice is that rule which holds that, absent a showing of due care, plaintiff need not prpve that defendant had actual or constructive knowledge of the specific item forming part of that pattern of conduct, recurring incident, etc. . .”
Based upon these authorities, Mrs. Crabtree argues:
“This is merely a case where the jury was properly permitted by the Trial Court to determine that appellant was negligent in (1) providing a receptacle that allowed bottle caps to fall through it to the floor; and. (2) in locating the receptacle in the most heavily traveled portion of the premises.
“There was certainly evidence from which the jury could have reasonably inferred that (1) the plaintiff fell on a bottle cap; and (2) the bottle cap came from the receptacle. The jury could have, and in fact did, further find that the type of receptacle and its location created an unreasonable risk of hazard to the plaintiff. Hence, notice, actual or constructive, of the length of time the bottle cap remained on the floor would be immaterial to this case.
“In this regard, Appellee submits that it is noteworthy that the defendant also had actual notice of the condition, i. e., the type of receptacle in use and that caps fell through it to the floor. Likewise there is no evidence whatsoever of any customer having been in the store at the time of the fall, or at any time immediately, or even shortly, prior to the fall (evidence, we would point out, which always is going to be in the exclusive possession of the occupier of the premises).”
We agree with Appellant that the trial court should have directed a verdict. We are unable to find in the testimony any showing of a dangerous condition existing around the bottle drop because of a pattern of conduct or recurring incident as was the situation in the Bozza and Mahoney cases, supra. Neither can we find any evidence relative to how long the bottle cap was permitted to remain on the floor. In this regard we note that contrary to .appellee’s argument there is evidence of other customers having been in the store at the time of the fall.
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J. Fred Jones, Justice.
This is an appeal by Arthur Gr. Brickey, Sr., administrator of the estate of Mabel Brickey Ayres, from an order of the Mississippi Probate Court allowing a claim by B. L. Lacy against the Ayres estate in the amount of $8,028.26. The only point in issue is stated in the point relied on by Brickey as follows:
“The probate court erred in allowing the claim of B. L. Laej because the claim is barred by the statute of nonclaim. ’ ’
This case is a sequel to Arthur G. Brickey, Sr., Adm'r v. B. L. Lacy et al, 245 Ark. 860, 435 S. W. 2d 443, and the facts are as follows: Mrs. Ayres owned farm lands in Mississippi County, Arkansas, and for a number of years had rented some of her land to Lacy on a year-to-year basis running from January 1 to January 1 the following year, and requiring six months’ notice for termination. (See Jonesboro Trust Co. v. Harbough, 155 Ark. 416, 244 S. W. 455). Mrs. Ayres died on September 7, 1963 — too late in the year for her administrator to terminate the year-to-year lease by giving the required notice six months before January 1, 1964. Brickey was appointed administrator of Mrs. Ayres’ estate and gave a quit notice to Lacy on November 27, 1963. Brickey sought and obtained an order of the probate court authorizing him to bring an action against Lacy in unlawful detainer and such action was commenced in February 1964, by Mr. Brickey as administrator. Lacy elected to surrender possession rather than retain it under cross-bond, but filed an answer denying Brickey’s right to possession and praying damages caused by his ouster. The trial of the unlawful detainer action in the circuit court resulted in a judgment for damages in favor of Lacy, which was sustained by this court on appeal, in the amount of $8,028.26 (Brickey v. Lacy, supra). Lacy filed claim against the estate for the amount of the judgment and the claim was .allowed by the probate court.
We do not agree with the appellant that this claim was barred by the statute of nonclaim. Ark. Stat. Ann. § 62-2111 (Supp. 1967) provides, in part, as follows:
“Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause to be published a notice of his appointment, stating the date thereof, and requiring all persons having claims against the estate to exhibit them, properly verified to him, within six months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate.”
The statute of nonclaim relied on by Brickey, Ark. jStat. Ann. § 62-2601 (a) (Supp. 1967), provides as follows:
“. . . all claims against a decedent’s estate, other than expenses of administration and claims of the United States which, under valid laws of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States, and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, or otherwise, shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.”
We are of the opinion that the demand of Lacy in the case at bar arises as a cost of administration and is not such demand as is contemplated by § 62-2601 (a), supra, and is not barred by the six months’ period for exhibition provided in § 62-2111, supra, and presented or filed as provided in § 62-2601 (a).
In his petition to the probate court for authority to evict Lacy, Brickey, as administrator, simply set out that all the heirs of the decedent had not been determined; that
“in order to preserve the property, to protect the rights and interests of persons having interest therein and for the benefit of the estate, the administrator should be permitted and authorized to contract for and collect rents and earnings therefrom, pay taxes and special assessments thereon, make necessary repairs thereon, maintain the same in a tenantable condition, preserve same against deterioration, protect same by insurance, and maintain or defend an action for the possession thereof, or to determine or protect the title until such property is sold or is delivered to the distributees thereof, or until the estate is settled.” (Emphasis supplied) .
Brickey then alleged that Lacy still owed for advances made by the decedent for the 1963 crop, and that it would be to the best interest of the estate that the farm be rented to some other person. The petition set out that Brickey had been offered the sum of $45.10 per acre cash rent for the property for 1964 by W. S. Cockerham and in order to rent the land to Mr. Cockerham it would be necessary to eject Mr. Lacy. The petition then concludes as follows:
“WHEREFORE, petitioner prays an order of this court authorizing and directing him to lease the lands in question to said W. S. Cockerham for the sum of $45.10 per acre for and on behalf of the heirs at law and the estate of Mabel Brickey Ayres, deceased, and that he be authorized and directed to file suit of ejectment against the said B. L. Lacy and any and all persons holding possessions of said lands unlawfully; that he be authorized and directed to pursue and maintain or defend all actions for the possession of said property and for the preservation of same and that the court make a finding that this action is necessary for the preservation of the property, to protect the rights and interest of persons having interest therein, that it is for the benefit of the estate and that it meets all the requirements necessary in Arkansas Statutes Section 62-2401 for the purpose of enabling the Administrator to act for and on behalf of the heirs at law of Mabel Brickey Ayres.”
Lacy had leased the property involved from Mrs. Ayres before her death and when she failed to terminate the year-to-year tenancy relationship by six months ’ notice, Lacy was entitled to continue in possession under his year-to-year tenancy relationship during the calendar year 1964. Lacy had no claim against Mrs. Ayres prior to her death and no claim against her estate, contingent or otherwise, at the time of her death.
In 31 Am. Jur. 2d, Executors and Administrators, § 318, appears the following:
“Contractual obligations which survive the death of the obligor are binding on his executors and administrators in their representative capacity and are enforceable against his estate. Thus, it is not only within the power of an executor or administrator to complete a contract made by his decedent, it is his duty to carry out the contract. If he fails to perform a contract of his decedent which is binding on the estate, he may be compelled to pay damages out of the assets in his hands. . .”
Mr. Brickey Avas the personal representative of the decedent, Mrs. Ayres, and in his representative capacity Avas obligated to honor and carry out the agreements she had made. He alleged that it was to the best interest of the estate and the heirs to eject Mr. Lacy from the land and rent the land to another person for $45.10 cash per acre. He proceeded to eject Mr. Lacy but did so wrongfully and to Mr. Lacy’s damage in the amount of $8,028.26. Mr. Lacy had no claim to file against the estate until it was created by Brickey’s own act in his official capacity as administrator, and as finally determined by this court in Brickey v. Lacy, supra. We hold that the statute of nonclaim, as set out in Ark. Stat. Ann. § 62-2601 (a), supra, does not apply to the facts in this case.
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Tom Glaze, Justice.
This appeal involves a substantial question of law concerning the interpretation of Rule 3.1 of this court’s Rules of Criminal Procedure. Specifically, the appeal requires us to determine the extent to which an officer, during a traffic stop, may detain a person whom the officer suspects of committing a separate, drug-related offense. In early 1998, Blytheville Chief of Police Jesse King wrote to the Director of the Arkansas State Police, Colonel John Bailey, seeking permission for the Blytheville Police Department to patrol along portions of Interstate 55 that run through the Blytheville city limits. Colonel Bailey wrote back,- giving that permission, in April of1998. Following that exchange, the Blytheville Police Department formed an “Aggressive Criminal Enforcement Team,” (“ACE Team”), which was formed to interrupt the flow of drugs through Blytheville. Officers were assigned to work this stretch of interstate beginning in mid-2000.
The record and testimony show that on July 17, 2001, Officers Daniel Willey and Beverly Alexander were patrolling the Interstate around mile marker 67, when they saw a Chevy Tahoe traveling northbound. Willey believed the vehicle “might be impeding traffic.” As Officer Willey made a U-turn across the median and pulled in behind the vehicle, he noticed that its left rear brake light was out, so he had the driver pull over.
Willey walked up to the driver’s side of the car and spoke to the driver, appellant Billy Sims; he told Sims that he had pulled him over because of the defective brake light. Sims said that he wanted to see for himself, and got out of his vehicle to look. Willey described Sims as appearing nervous and not listening to what Willey was telling him. Sims eventually asked his passenger, a Mr. Kimbrough, to step on the brakes to see if the light was out. Willey observed that Sims was beginning to sweat. Sims then stated that he had just been at Wal-Mart to look at a swing set; Willey thought this statement was strange. Willey asked Sims where he was going, and Sims, who had Illinois tags on his car, replied that he had picked up a friend in Mississippi who was going to do some yard work for him. Kimbrough, on the other hand, said that he was traveling with his “brother.” When Willey asked Sims’s passenger, Kimbrough, for identification, Kimbrough could only produce a birth certificate. Officer Alexander wrote up a warning, citing Sims for having a defective brake light. Alexander had also run a criminal history check on both Sims and Kimbrough, which revealed that both men had prior drug arrests, although the officers did not know a time frame on those arrests. Officer Willey then returned Sims’s identification information to him and let him start walking back to the vehicle, because the “traffic stop was done.”
At that point, however, Willey proceeded to ask Sims if Sims had anything illegal in his vehicle. Sims replied that he did not, but as he was returning to his car, Willey asked, “Would you give me consent to search your vehicle?” According to Willey, Sims responded, “I don’t have anything illegal in the vehicle. I don’t have time for you to search.” That response raised Willey’s suspicions, and Willey decided to “hold him there long enough to run the dog.”
Willey then had Sims and Kimbrough step aside, and Alexander brought the drug dog to Sims’s car. The dog alerted on the car, and Willey again asked if there was anything illegal in the vehicle. Sims said that there was none that he knew of. Willey’s comments to Sims following this exchange were captured on a videotape from Willey’s police car:
Okay. Well, what we’re going to do is, the drugs, the canine alerted on your vehicle, so there’s some kind of narcotics in the vehicle or has been narcotics in the vehicle. What we’re gonna do — I don’t need your consent to search the vehicle anymore, okay? Once the canine alerts and tells us there’s been something in the vehicle or is something in the vehicle, then we search it, okay? What we’re going to do is go ahead and search the vehicle. I want to know [inaudible] is there anything in there [inaudible]?
Willey’s subsequent search of the car turned up thirteen grams of cocaine. At the suppression hearing, Willey testified that less than two minutes elapsed between the time Sims denied consent to search and when the dog alerted. The officers arrested Sims and charged him with possession of a controlled substance with intent to deliver.
The suppression hearing in Sims’s case was combined with three other defendants who had experienced similar encounters with the ACE Team on the same stretch of Interstate 55 through Blytheville. After the hearing, the trial court granted two of the four defendants’ motions to suppress. Sims’s motion was denied, but the judge expressed serious reservations about the police officers’ tactics in conducting the searches. Sims then entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b); he was sentenced to 126 months’ imprisonment, with an additional five years suspended.
On appeal, he first argues that the trial court erred in denying his motion to suppress. In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Sims begins his argument by contending that the totality of the circumstances makes it clear that the officers on the ACE Team are “randomly stopping motorists in pursuit of a general scheme (searching for drugs) without individualized suspicion.” He submits that the actions of Officers Willey and Alexander in pulling him over amounted to a pretextual stop. Sims further asserts that, under Ark. Const. art. 2, § 15 and State v. Sullivan, 348 Ark. 782, 74 S.W.3d 215 (2002), Arkansas provides greater protection from unreasonable searches and seizures than does the Fourth Amendment.
We first note that the officers’ initial decision to pull Sims over was entirely legal. In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Laime, 347 Ark. at 153; Travis, 331 Ark. at 10. Here, Willey testified at the suppression hearing that, when he first saw Sims’s vehicle, he believed it was obstructing traffic in the left lane. See Ark. Code Ann. § 27-51-301 (b) (Supp. 2003). In addition, once Willey had pulled in behind Sims, he observed that the left taillight and brake light of the Tahoe was not functioning, which is a violation of Ark. Code Ann. § 27-36-216(a) & (b) (Repl. 2004). Thus, there is nothing inherently unconstitutional or invalid about the initial traffic stop.
The next issue is the validity of Willey’s subsequent detention of Sims. Under Ark. R. Crim. P. 3.1, a detention without arrest may transpire under certain circumstances:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
(Emphasis added.) The rule is precise in stating that the reasonable suspicion must be tied to the commission of a felony or a misdemeanor involving forcible injury to persons or property. Brazwell v. State, 354 Ark. 281, 119 S.W.3d 499 (2003) (citing Laime, supra).
Our criminal rules further define “reasonable suspicion” as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P. 2.1. In Laime, supra, this court held that “whether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Laime, 347 Ark. at 155.
In the present case, although the trial court denied Sims’s motion to suppress, the court specifically found that Officers Willey and Alexander did not have a reasonable suspicion based on the facts or circumstances that Sims was committing a crime, and therefore, Sims’s rights were violated by the continued detention. We agree.
Although Officers Willey’s and Alexander’s initial traffic stop of Sims was permissible, the analysis must focus on what happened after Willey handed Sims back his driver’s license and registration, along with a warning for having a broken tail light; it was at this point that the legitimate purpose of the stop had terminated. This court has held with respect to the issue of whether probable cause to arrest exists that (1) after-acquired knowledge is irrelevant to the probable cause analysis, and (2) only what the police officer knew at the time of arrest enters the analysis. Laime, supra; Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993) (citing Beck v. Ohio, 379 U.S. 89 (1964)). The same principle holds true with respect to a decision on whether to detain under Rule 3.1. Laime, supra.
It is true that, as part of a valid traffic stop, a police officer may detain a traffic offender while the officer completes certain routine tasks, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. See Laime, 347 Ark. at 157-58 (citing United States v. Carrazco, 91 F.3d 65 (8th Cir. 1996)). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered. Id. at 158. However, after those routine checks are completed, unless the officer has a reasonably articulable suspicion for believing that criminal activity is afoot, continued detention of the driver can become unreasonable. See United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) (citing United States v. Mesa, 62 F.3d 159 (6th Cir. 1995)); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643 (8th Cir. 1999). In Mesa, supra, the Sixth Circuit stated that “[o]nce the purposes of the initial traffic stop were completed, there is no doubt that the officer could not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention.” Mesa, 62 F.3d at 162. Similarly, the Tenth Circuit has held that, in the absence of a reasonable, articulable suspicion of some drug-related criminal activity, once the purpose of the traffic stop is completed, the operator of the vehicle should be allowed to proceed on his way, without being subject to further delay by police for additional questioning. United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).
As noted above, the trial court specifically found that Willey did not possess particular facts, whether taken singularly or as a whole, that would have given rise to an objective and particularized basis for a reasonable suspicion of criminal activity like that required by Rule 3.1, as set out above. Although Willey testified that Sims appeared nervous and was sweating, this court has held that mere nervousness cannot constitute reasonable sus picion of criminal activity and grounds for detention. See Laime, 347 Ark. at 159. Further, there is nothing odd or unusual or suspicious about Sims’s sweating, as the traffic stop occurred in the middle of July. Similarly, Willey asserted that Sims’s “strange” comment about having just come from Wal-Mart made him suspicious, but this comment could have been merely a nervous attempt at conversation. Again, nervousness does not automatically give rise to reasonable suspicion. In sum, the trial court found Willey had no particular facts in his possession that would have given rise to an objective and particularized basis for a reasonable suspicion of criminal activity. Therefore, the continued detention of Sims after the legitimate purpose of the traffic stop had ended was a violation of Rule 3.1.
In conclusion, we recognize that the Supreme Court has held that a dog sniff is not a “search” within the meaning of the Fourth Amendment, see United States v. Place, 462 U.S. 696 (1983) (concluding that a dog sniff is “sui generis”), and that our court of appeals has determined that a canine sniff of the exterior of a vehicle does not amount to a Fourth Amendment search. See Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003); Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002); Vega v. State, 56 Ark. App. 145, 939 S.W.2d 322 (1997). However, we are concerned here with the fact that Willey, in the absence of any reasonable suspicion, unlawfully detained Sims beyond the permissible limits of Rule 3.1. None of the three court of appeals cases cited above mentions Rule 3.1 or analyzes the relevant issues in light of that rule. Furthermore, we do not disagree that a canine sniff of the exterior of a vehicle is not a Fourth Amendment search. Instead, we conclude only that, once the legitimate purpose of a valid traffic stop is over, an officer must have, in accordance with Rule 3.1, a reasonable suspicion that the person he has stopped is committing, has committed, or is about to commit a felony or a misdemeanor involving danger to persons or property. Addition ally, under Ark. R. Crim. P. 2.1, “reasonable suspicion” means a suspicion based on facts or circumstances that give rise to more than a bare suspicion, not an imaginary or purely conjectural suspicion. The facts of this case are clear that Officer Willey did not have a specific, particularized, and articulable reason indicating that Sims was involved in any drug-related criminal activity. Therefore, we hold that the trial court erred in denying Sims’s motion to suppress.
Sims raises a second point on appeal, namely, that the trial court erred in denying his motion to present additional evidence that he claimed was relevant to proving that the Blytheville Police were consistently stopping motorists along Interstate 55 without individualized suspicion. Because we reverse on his first point, it is unnecessary to reach or discuss his second argument on appeal.
Section 27-51-301(b) provides that “[m]otor vehicles shall not be operated continuously in the left lane of a multilane roadway whenever it impedes the flow of other traffic.”
These statutes mandate that motor vehicles be equipped with “a stop lamp or lamps on the rear of the vehicle,” § 27 — 36—216(a)(1), and “lamps showing to the ... rear for purposes of indicating an intention to turn either to the right or left.” § 27-36-216(b)(l).
We also note that, at the suppression hearing,Willey initially testified that when Sims denied consent to search the vehicle,Willey felt he had“something there besides a traffic stop” and felt that he had “reasonable suspicion to detain him.” Willey quickly retracted that statement, saying that Sims’s refusal to consent to a search would not give rise to a reasonable suspicion to detain Sims. Of course, one’s invocation of his Fourth Amendment rights cannot be the sole basis for probable cause to search. See Laime, 347 Ark. at 158 (citing Florida v. Bostick, 501 U.S. 429 (1991)). | [
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Betty C. Dickey, Chief Justice.
The State appeals an order of the Pulaski County Circuit Court, acquitting appellee Debbie Hagan-Sherwin on two counts of violating Ark. Code Ann. § 23-64-223 (Repl. 2001), and declaring a mistrial on the remaining four counts. The State claims that the trial court committed prejudicial error by instructing the jury with the choice-of-evils defense and a non-statutory defense of entrapment by estoppel. Ms. Hagan-Sherwin contends that this case is not properly appealable by the State under Rule 3 of the Arkansas Rules of Appellate Procedure— Criminal. We agree and dismiss the State’s appeal.
On December 13, 2002, appellee Debbie Hagan-Sherwin was charged with six counts of violating Ark. Code. Ann. § 23-64-223 (Repl. 2001). Each count alleged that Hagan-Sherwin either diverted or appropriated to her own use insurance premium monies in violation of the statute. In June 2002, the appellee’s motion to dismiss the charges against her was denied, and the case went to trial in early October 2002.
At trial, the appellee testified that in 1997 she bought Campbell and Company insurance agency. After the purchase, she discovered that the company was worth over a million dollars less than the books had reflected. Campbell’s wife performed an audit of Campbell and Company’s books, confirming that over a million dollars was missing. Harold Campbell, the former owner of Campbell and Company, owned 20 percent of the bank, and the bank refused to renew appellee’s one million dollar line of credit. The appellee failed to obtain a loan or other capital infusion in order to continue coverage for her insureds.
At a meeting with the Arkansas Insurance Department (“the Department”), appellee stated that she lacked sufficient cash to pay upcoming bills. The Department and the appellee agreed that, to avoid a lapse in coverage for her insureds, she must sell her agency. Bob Roddey of the Department told the appellee to do whatever she had to do to keep the doors open at her insurance agency. Hagan-Sherwin told both Roddey and Lanita Blasingame, also of the Department, that she was diverting monies from premiums in order to pay operating expenses. Gregory Shadducks, a former investigator for the Department, testified that they were aware that the appellee was using premium monies for operating expenses. Shadducks said at no time did they ever tell the appellee to stop, or that it was wrong, or that she could not use premium monies to keep the business in operation. Roddy testified that at no time did he tell her that using money from premiums to pay operating expenses was legal or that she should do that.
The appellee decided to try and sell her agency to two out-of-state companies, Travelers and Hartford. Unfortunately, according to the appellee, Joie Tester from the Department called the Travelers’ financial division and told them Hagan-Sherwin was having financial difficulties, which summarily killed the deal. The company was put into receivership and later went out of business. The appellee testified, and the Department concurred, that had the sale gone through, not a single one of the appellee’s insured would have lost one second of coverage.
The appellee moved for a directed verdict at the close of the State’s case, again at the close of the defendant’s case, and a third time, at the close of all evidence. All three motions for directed verdict were denied. Over the State’s objections, the circuit court instructed the jury on the affirmative defense of choice-of-evils from AMCI 2d 702, and the court gave a non-model jury instruction on the affirmative defense of entrapment by estoppel. The jury acquitted the appellee on counts two and six, but the jury could not reach a verdict on the remaining four counts. On January 15, 2003, the trial court entered an order consistent with those verdicts, and the State appealed.
The State brings two points on appeal: 1) the circuit court erred by instructing the jury with the statutory defense of choice-of-evils; and 2) the circuit court erred by instructing the jury with a non-statutory affirmative defense of entrapment by estoppel, or alternatively that the instruction misstated the law. The threshold issue of this case is whether the State has properly brought this appeal under Ark. R. App. P. — Crim. 3. The rule provides in pertinent part:
When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R. App. P. — Crim. 3(c) (2003). The appellee contends that this case is not appealable by the State because it does not raise an issue “important to the correct and uniform administration of the criminal law” as required under Rule 3(c). In State v. Ashley, we laid out the jurisdictional requirement for an appeal by the State as follows:
In criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter, is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Guthrie, supra; State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).
Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (“Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).
State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002).
As to the State’s assertion of error in instructing the jury with the statutory defense of choice-of-evils, we first consider the circumstances under which the State may appeal the giving of a particular jury instruction. In the case sub judice, the State contends that the statutory affirmative defense of choice-of-evils should not have been given in a case that does not involve imminent physical injury or destruction of property. In State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000), we considered the issue of whether the State may challenge the giving, or not giving, of a particular jury instruction. In McCormack the State appealed the trial court’s refusal to give a certain jury instruction. There we dismissed and explained that a proper appeal by the State would include an issue of statutory interpretation and would not include a review of a trial court’s application of a statutory provision. Id. In other words, we said we will review a trial court’s refusal to give a jury instruction if it has misinterpreted a statute, but we will not review a trial court’s refusal to give a jury instruction based on an alleged misapplication of the statute to the facts surrounding a particular case. Id; see also State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002) (citing McCormack, supra.).
Applying these principles to the present case, we must determine whether the trial court interpreted the language of Ark. Code. Ann. § 5-2-604 to include cases involving non-physical harm as the basis for giving the choice-of-evils instruction, or whether the trial court was merely applying the statute concerning choice-of-evils to the facts surrounding the appellee’s case. Before the close of evidence the following colloquy occurred, regarding whether the choice-of-evils instruction should be given:
The Court: Does the State have any objection?
Mr. Simpson: Yes,Your Honor, the State would object to the proffering the choice of evils jury instruction in this matter, and it’s my understanding that the choice of evils jury instruction is when you’re trying to divert — you steal a car because someone has been shot and needs a ride to the hospital or something like that. It’s a physical injury. Or there’s a fire or something like that as opposed to a business keeping its doors open or not.
Mr. Simpson: Your Honor, if I could have just a moment, I know I’ve seen it and I’ve looked at the commentary stating the case when the choice of evils is allowed and under what circumstances, and I believe there’s a strict instruction concerning the choice of evils.
Ms. Looney: 52604. (sic).
Mr. Simpson: Your Honor, I also believe that, in the context of stealing, that’s a mitigation factor for sentencing as opposed to a choice of evils, like stealing to feed your family.
Ms. Looney: May I comment or do you want me to wait for Mr. Simpson? I do have some assistance to the Court in regard to giving that instruction.
Mr. Simpson: Your Honor, I believe subsection C of that also states that defense is unavailable in prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. Clearly, in this case, the culpable mental state is purposely, knowingly, or recklessly.
Ms. Looney: Your Honor, in regard to the instruction on the Arkansas Model Jury Instructions, Criminal, that particular paragraph is added, that paragraph being, the defense is not available if you find that Debbie Hagan-Sherwin was reckless in appraising the necessity for her conduct. That is true. The defense is not available, but the instruction can be given because that particular paragraph is only used when the offense with which the Defendant is charged includes recklessness as — or negligence to convict. And therefore, the jury can be instructed on the choice of evils and it would be up to them to determine whether or not it was available to Ms. Hagan based on whether or not they found her to be reckless or not.
Additionally, the case of Parson v. State 21 Ark. At 107-730 S.W.2d 250, 1987, stems from the proposition that, in order for this defense to be available, there must be proof of extraordinary attendant circumstances requiring emergency measures to avoid an eminent (sic) public or private injury. That is consistent with the evidence in this case, even testimony from the Department specifically in regard to there being an extraordinary circumstance, and then the testimony of the Defense witnesses, that would require emergency measures in order to avoid an eminent (sic) public or private injury, that being the loss of coverage for thousands of insureds in the State of Arkansas.
Mr. Simpson: Your Honor, the supplementary commentary under Coons v. State (sic) the choice of evils, the defense of choice of evils was based upon a section of the model penal code.The Court went onto hold that the language was to be narrowly construed and applied that it was — and under that case, it was determined that, because the evidence bore no similarity to the examples provided by the original commentary or the commentary to the model penal code, requested instruction was properly refused as inappropriate to the facts of the case.
In this case, the Defense is alleging that it was more important to keep the Hagan agency open than it was to protect the insureds who were purchasing policies.
Ms. Looney: No, I think — actually, I think Mr. Simpson misunderstands my point. It was more important to protect the insureds, i.e., by-keeping the business open, and if need be, pursuant to understanding with the Insurance Department, the violation we’re talking about is an alleged violation of using premium monies, and that choice of evil, i.e., use premium monies or let everybody lose their coverage, that choice of evils existed. And accordingly, the choice that was made was made in an effort to avoid — what is the word I’m looking for — a eminent (sic) public or private injury.
Mr. Simpson: Your Honor, in this case, Ms. Looney just stated that the premium monies were used to keep the Hagan agency open so that policies would — so that the insureds would remain covered. Well, in this case, premium monies were used, and as a result, their policies were cancelled. So the justification that she’s alleging that premium dollars be diverted so that insureds’ policies remain in effect is not — that’s not true because the fact that the premium monies were transferred for purposes other than what they were intended, those policies were cancelled or subject to questionability on the Delta Plastics and the other one that was subsequently reinstated, Berwin Square.
Mr. Boyles: Your Honor, if I may add, on Coons versus State, (sic) I think it’s quite clear that the type of choice of evils is intended to be something similar to the ones listed in the original commentary. And the one thing you see in the original commentary fists destruction of buildings or other structures to keep fire from spreading, breaking of levies to prevent the flooding of a city causing, in the process, flooding of individuals’ property, temporary appropriation of another’s personal vehicle to remove seriously injured person to a hospital. These are all things dealing with an actual physical harm to persons and property as opposed to a financial loss, which is perfectly compensable in a court of law at a later date. I think, for those reasons, even in looking at things in the light most favorable to Ms. Looney’s argument, this instruction still should not be given.
The Court: I’m going to give it over objections of the State. I’ll make a ruling on this next one. I’ll number it at that time.
After reviewing the colloquy, it is clear that the trial court did not engage in a statutory interpretation of Ark. Code Ann. § 5-2-604. Instead, the trial court simply applied the statute to the evidence presented at trial.
Because the State’s argument merely raises the issue of application, and not the interpretation, of a statutory provision, the appeal does not involve the correct and uniform administration of the criminal law. State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). Such an argument is not a proper basis for an appeal by the State, so this point on appeal must be dismissed.
For its next point on appeal, the State argues that the trial court erred in instructing the jury with a non-statutory affirmative defense of entrapment by estoppel. In Arkansas, an affirmative defense is defined as any matter: (1) so designated by a section of this code; or (2) so designated by a statute that is not a part of this code. Arít. Code Ann. § 5-1-111 (d) (Repl. 1997).
The State attacks the trial court’s instruction on entrapment by estoppel in two ways. First, the State contends that because entrapment by estoppel is not an affirmative defense designated by the criminal code or other statute, the trial court was not authorized to give such an instruction on this defense. The appellee does not dispute that entrapment by estoppel is not available under Arkansas law. However, she does assert that because the affirmative defense of entrapment by estoppel is derived from the due process protections guaranteed by the United States Constitution, the State cannot prohibit its use.
In its brief, the State failed to address the appellee’s argument that entrapment by estoppel is guaranteed by due process. Rather, it argues that Ms. Hagan-Sherwin’s case is not the type of case where due process is concerned. In other words, the State contends that Ms. Hagan-Sherwin’s particular circumstances do not warrant the entrapment-by-estoppel instruction in this particular case. Thus the State is not asking for an interpretation of the law, but rather a ruling on the application of the law to the facts of this particular case. Because the State’s argument merely raises the issue of application, and not the interpretation, of a statutory provision, the appeal does not involve the correct and uniform administration of the criminal law. State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). Such an argument is not a proper basis for an appeal by the State, so this point on appeal must also be dismissed.
In its second attack on the entrapment-by-estoppel defense, the State contends that the trial court’s instruction on entrapment by estoppel misstated the law. The State contends that even if this defense is available in Arkansas, the instruction should have been worded differently. However, the State failed to proffer a typewritten copy of its proposed instruction. This court has held on numerous occasions that the failure to proffer or abstract a proposed instruction precludes us from considering the issue on appeal. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).
In sum, the State’s appeal merely presents issues of factual application. We do not accept such appeals by the State. Ark. R. App. P. — Crim. 3(c) (2003). State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002). In addition, we note that we express no opinion on the propriety of the instructions given by the trial court in this case.
Appeal dismissed.
Glaze and Brown, JJ., dissent. | [
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Robert L. Brown, Justice.
The State of Arkansas appeals an order suppressing contraband seized from the home of appellees Jaye Brown and Michael Williams. The State raises two points on appeal: (1) that the circuit court erred in holding that Article 2, § 15, of the Arkansas Constitution requires that advice of the right to refuse consent be given by law enforcement officers before a consensual search may be found to be voluntary; and (2) that the circuit court erred by holding under the same constitutional provision that police officers must disclose all information known to them before a consensual search may be found to be voluntary. We hold that the circuit court correctly concluded that a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution. For that reason, we affirm.
The facts are that on August 23, 2002, at about ten o’clock in the morning, three agents of the Fifth Judicial District Drug Task Force (Chris Ridenhour, Johnny Casto, and Shawn Armstrong) approached the residence of appellees Brown and Williams in Russellville. They did so because of information received from two anonymous sources that Brown and Williams were involved in drug activity and that a small child inside the trailer had become ill due to drug manufacturing. Upon reaching the door to the trailer home, they smelled a strong and familiar chemical odor. Agent Ridenhour knocked oh the door, and Brown answered. The agent told her that the three agents had information that someone was possibly growing marijuana there or there was other illegal drug use at the residence and that they wanted to investigate.
Brown asked the agents to wait a minute. She closed the door but then returned a short while later. Agent Ridenhour presented her with a consent-to-search form to sign which read:
Jaye Brown and Officer Ridenhour signed the consent form. Jaye Brown did not circle “vehicle” or “residence.” A search of the residence by the agents ensued.
At that point, appellee Michael Williams, who apparently had been asleep, emerged from the bedroom. There was also a child present in the trailer home. Agent Armstrong observed evidence of methamphetamine use. Agent Ridenhour looked in the bedroom and saw evidence of precursors used to manufacture methamphetamine. Brown and Williams were arrested, and Agent Ridenhour subsequently sought and received a search warrant to search the residence and seize any evidence or contraband found. The search warrant was executed, and evidence of methamphetamine manufacture and usage as well as marijuana growth and possession was seized. Brown signed a statement that same day which said that Williams was manufacturing methamphetamine and that she told him to stop. Williams also signed a statement and admitted to the manufacture and use of methamphetamine. He said in his statement that he had been living with Brown for about four years. Brown and Williams were later charged with manufacture of methamphetamine and marijuana and possession of methamphetamine with intent to deliver.
Brown and Williams filed separate motions to suppress the evidence seized, because, they contended, it was seized as part of an illegal search. Williams specifically raised the issue of an invalid search under Article 2, § 15, of the Arkansas Constitution. A hearing ensued before the circuit court. Brown testified at the hearing that she was told that the agents wanted permission to search for marijuana. She said she signed the consent form because she thought she had to do so. She testified: “Thought I had no choice but to sign it.” She added that she did not know that she could say “no” and not sign it. Williams also testified that the agents announced that they were searching for marijuana.
Agent Ridenhour testified at the hearing that the agents did not tell Brown that she was not required to sign the consent form. Agent Armstrong testified that it was not Drug Task Force policy to advise occupants that they did not have to consent to a search. Agent Ridenhour testified that he told Brown that the search would be for marijuana and “other illegal use of drugs.” He admitted, however, that methamphetamine was not mentioned. He testified that he did not advise her that she could refuse to sign the form.
On June 13, 2003, the circuit court issued a letter opinion, which read:
The facts of this case represent the concerns the Arkansas Supreme Court Justices had in the recent case of Griffin v. State, 347 Ark. 788, 67 S.W.3d 582.
In the present case Officer Ridenhour testified about a phone call advising him of a child at defendants’ residence being sick because of drugs. The drug task force went to the mobile home residence. Officer Ridenhour talked with defendant Brown and told her he had infonnation that there was marijuana in the residence or that it was being grown there. There was no mention of a child being sick because of drugs. The officers obtained a written consent from defendant Brown and entered the residence.
It is undisputed the officers did not have probable cause for a search warrant at the time a consent to search was obtained.
The “knock and talk” procedure used in this case is simply a way to avoid the burden placed on law enforcement officers in obtaining a search warrant.
It would appear that if deception were used in stating the purpose of a requested search then a consent obtained would not be an informed and valid consent.
This Court feels that a “knock and talk” policy of police officers can survive a constitutional challenge only if the right to refuse consent is in writing or is explained before consent is obtained.
Based upon the above factors, this Court feels that the consent to search obtained in this case was not valid; therefore, the motions to suppress filed by both defendants should be granted.
An order was entered that same day granting the two motions to suppress.
I. Jurisdiction
We first address whether this court has jurisdiction to hear this State appeal pursuant to Arkansas Rule of Appellate Procedure — Criminal 3. The State contends that we do because the appeal implicates Article 2, § 15, of the Arkansas Constitution and whether that section of our state constitution requires that a home dweller be advised of the right to refuse a consent to search prior to a consent being given. We agree with the State that this appeal raises a significant search-and-seizure issue involving the procedure known as “knock and talk.” Accordingly, it is a matter which concerns the correct and uniform administration of the criminal law which requires review by this court. See Ark. R. App. P. — Crim. 3(c). See also State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002). This court has jurisdiction to review the matter.
II. Consensual Search
The State raises two issues relating to a consensual search. It first contends that the Arkansas Constitution does not require that police officers must advise home dwellers that they have the right to refuse consent to search. Secondly, the State claims that our state constitution does not require police officers to disclose all information known to them before a consensual search may take place. According to the State, the circuit judge in the case at hand decided to suppress the evidence seized for both reasons. Because we conclude that the circuit judge correctly construed the Arkansas Constitution to require law enforcement officers to advise home dwellers of their right to refuse to consent to a search, we need not address the second point raised by the State.
This case presents the second opportunity for this court to consider whether the police procedure known as “knock and talk” is constitutionally permissible under Arkansas Constitution Article 2, Section 15,.in the past two years. In Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002), a constitutional attack was mounted against the procedure under our state constitution. We decided that case, however, on the ground that police officers had begun an illegal search of the defendant’s car and shed before they approached the defendant’s front door to ask for consent to search. Hence, the Griffin opinion did not decide the validity of the “knock-and-talk” procedure under our state constitution. Nevertheless, in three concurring opinions, the “knock-and-talk” procedure was called into question under the state constitution by three justices of this court. See Griffin v. State, supra (Corbin, J., concurring; Brown, J., concurring; Hannah, J., concurring).
A brief description of the “knock-and-talk” procedure is in order. The procedure has become fashionable as an alternative to obtaining a search warrant when police officers do not have sufficient probable cause to obtain a search warrant. What generally occurs is that several law enforcement officers accost a home dweller on the doorstep of his or her home and request consent to search that home. If an oral consent is given, the search proceeds. What is found by police officers may then form the basis for probable cause to obtain a search warrant and result in the subsequent seizure of contraband. It is the intimidation effect of multiple police officers appearing on a home dweller’s doorstep, sometimes in uniform and armed, and requesting consent to search without advising the home dweller of his or her right to refuse consent that presents the constitutional problem.
This court recently discussed the constitutional ramifications of warrantless entries into private homes:
A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984); Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search. See Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002) (citing Ark.R.Crim.P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)). This court has established that the State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. Holmes v. State, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). A valid consent to search must be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Any consent given must be unequivocal and may not usually be implied. Holmes v. State, supra; Norris v. State, supra (citing U.S. v. Gonzalez, 71 F.3d 819 (11th Cir. 1996)).
Stone v. State, 348 Ark. 661, 669, 74 S.W.3d 591, 595-96 (2002). We further observed that the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See id.
This court has further held that the “knock-and-talk” procedure is not per se violative of the Fourth Amendment to the United States Constitution. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002) (citing Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001); United States v. Jones, 239 F.3d 716 (5th Cir. 2001); United States v. Johnson, 170 F.3d 708 (7th Cir. 1999); United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). Indeed, the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), while recognizing that the Fourth Amendment protects the privacy of a home dweller against arbitrary intrusions by police officers, held that the Fourth Amendment did not require knowledge of the right to refuse consent as a prerequisite to a showing of voluntary consent.
Despite the federal constitution and federal case law, this court has made it abundantly clear that though the search-and-seizure language of Article 2, § 15, of the Arkansas Constitution is very similar to the words of the Fourth Amendment, we are not bound by the federal interpretation of the Fourth Amendment when interpreting our own law. See, e.g.,Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002); Griffin v. State, supra. Indeed, in Griffin, we underscored this point:
. . . However, we base our analysis of this case upon our own state law as expressed by our state constitution, statutes, and cases, recognizing that while we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards. See Arkansas v. Sullivan, 532 U.S. 769 (2001).
347 Ark. at 792, 67 S.W.3d at 584.
It is true that in Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995), which involved the search of a motor vehicle, this court stated that we would interpret Article 2, § 15, in the same manner as the United States Supreme Court interpreted the Fourth Amendment. But the Stout case involved the search of a motor vehicle, and we noted in Stout that it seemed especially appropriate to follow Fourth Amendment interpretations, because of the difficulty in balancing interests and setting rules for search and seizure of automobiles. The case before us concerns the search of a home, which is altogether different and which invokes Arkansas’ longstanding and steadfast adherence to the sanctity of the home and protection against unreasonable government intrusions.
Article 2, § 15, of the Arkansas Constitution reads in relevant part:
The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
Ark. Const. art. 2, § 15. This provision was adopted as part of the 1874 Arkansas Constitution and is almost identical to the Fourth Amendment. In Griffin v. State, supra, we traced the history of this constitutional provision and the reasoning behind it:
The principle that a man’s home is his castle, and that even the King is prohibited from unreasonably intruding upon that home, was particularly well-developed in the rough-and-ready culture of the frontier, and no less pronounced in the Arkansas Territory. In our 1836 Constitution, the people of our newly admitted state expressed this principle succinctly in the following language:
§ 9. That the people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and that general warrants, whereby any officer may be commanded to search suspected places without evidence of the fact committed, or to seize any person or persons not named whose offenses are not particularly described and supported by evidence, are dangerous to liberty, and shall not be granted.
Id. (emphasis added).
347 Ark. at 792, 67 S.W.3d at 585. Our 1864 Constitution had the same provision. It was with our 1868 Constitution that the people adopted language substantially identical to the present constitutional provision.
This court emphasized the home dweller’s right to privacy at nighttime in Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). In Fouse, we said: “The privacy of citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules [of Criminal Procedure], but also by our state and federal constitutions.” 337 Ark. at 23, 989 S.W.2d at 150-51 (quoting Garner v. State, 307 Ark. 353, 358-59, 820 S.W.2d 446, 449-50 (1991)).
We proceeded in the same vein when we imposed greater protection for persons in their bedrooms against unreasonable government interference in Jegley v. Picado, supra, and struck down the state’s sodomy statute as unconstitutional when applied to consenting adults in their homes. In Picado, we held that the right to privacy implicit in the Arkansas Constitution is a fundamental right which requires a compelling state interest to override it. This rich tradition of protecting the privacy of our citizens in their homes justified our deviating from federal common law in Picado with respect to constitutional protection in our homes. Indeed, the legal principle that a person’s home is a zone of privacy is as sacrosanct as any right or principle under our state constitution and case law. See Jegley v. Picado, supra; Griffin v. State, supra. The same analysis applies to the instant case. Arkansas has clearly embraced a heightened privacy protection for citizens in their homes against unreasonable searches and seizures, as evidenced by our constitution, state statutes, common law, and criminal rules.
Though it is clear that this court may deviate from federal precedent, the more relevant question is when should we do so? Without question, a slavish following of federal precedent would render this court’s opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own state constitution and follow our own state law. Yet, we admit to a concern about deviating too much from federal precedent based solely on our state constitution. A proper balance must be struck between the two. Justice David Souter, when he served as a justice on the New Hampshire Supreme Court, said it best:
... It is the need of every appellate court for the participation of the bar in the process of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent.
State v. Bradberry, 129 N.H. 68, 82-83, 522 A.2d 1380, 1389 (1986) (Souter, J., concurring specially). For a general discussion, see Robert L.- Brown, Expanded Rights Through State Law: The United States Supreme Court Shows State Courts The Way, 4 J. App. Prac. & Process 505 (2002).
This state’s constitutional history and preexisting state law regarding the privacy rights of a home dweller in his or her home combine to support our decision to discard federal precedent and adopt an interpretation of our state constitution compatible with state law. See, e.g., State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). It would be redundant for us to retrace this state’s strong history and tradition in favor of protecting privacy in our homes, which has already been expansively set forth in Jegley v. Picado, supra. Suffice it to say that this State has adopted and endorsed the principle of privacy in a citizen’s home clearly and unmistakably since the time Arkansas was admitted to statehood.
This court is cognizant of what other states have done under their state constitutions in assessing the constitutionality of the “knock-and-talk” procedure as an alternative to obtaining a search warrant. In State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 (1998), the Washington Supreme Court analyzed the “knock-and-talk” procedure under the right to privacy as found in the Washington Constitution, as well as under the protection given to its citizens against warrantless searches and seizures. In doing so, that court said: “Especially evident is the fact that [i]n no area is a citizen more entitled to his privacy than in his or her own home. For this reason, the closer officers come to intrusion into a dwelling the greater the constitutional protection.” 136 Wash. 2d at 112, 960 P.2d at 931 (internal quotations omitted). The supreme court concluded that preexisting state law amply supported review under the state constitution and that privacy in one’s home was “primarily a local concern.” Id., 960 P.2d at 931.
The Washington Supreme Court next admitted that when considering voluntary consent under the Fourth Amendment of the United States Constitution, its court of appeals had concluded that it was in lockstep with federal law. But the court emphasized that for the privacy right in one’s home, there is a heightened protection for state citizens against unlawful intrusion into the home, and this “places an onerous burden upon the government to show a compelling need to act outside of our warrant requirement.” Id. at 114, 960 P.2d at 932. The court then held that “knock and talk” was inherently coercive to some degree, but that these coercive effects can “be mitigated by requiring officers who conduct the procedure to warn home dwellers of their right to refuse consent to a warrantless search.” Id. at 116, 960 P.2d at 933. The court concluded:
. . . We, therefore, adopt the following rule: that when police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
Id. at 118-19, 960 P.2d at 934. The absence of the required warnings rendered the procedure constitutionally infirm under the Washington Constitution.
In Graves v. State, 708 So. 2d 858 (Miss. 1997), the Mississippi Supreme Court held to the same effect. In focusing on whether a knowledgeable waiver occurred in the “knock-and-talk” context, the court held that under the Mississippi Constitution, such a waiver is “defined as consent where the defendant knows that he or she has a right to refuse, being cognizant of his or her rights in the premises.” Graves, 708 So. 2d at 864. The court remanded the case to the -trial court to determine whether a knowledgeable consent had been given.
Early on, the New Jersey Supreme Court held that the United States Supreme Court decision of Schneckloth v. Bustamonte, supra, only controlled state court decisions in their construction of the Fourth Amendment. See State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975). For purposes of the search-and-seizure provision of the New Jersey Constitution, Schneckloth was not binding, and the state of New Jersey was free to impose a higher standard under state law. The New Jersey Supreme Court did so and interpreted its state constitution to require a home dweller’s knowledge of the right to refuse consent as an essential element of any voluntary consent to search.
A fourth appellate court has noted that though the United States Supreme Court has not required it, “the better practice in conducting a knock and talk investigation would be for the officer to identify himself and advise the occupant of his right to deny entry.” Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App. 2003). The procedure, the court added, would minimize needless suppression motions, hearings, and appeals.
We are convinced that the courts in these states have reached the correct conclusion. As in the case of the State of Washington, our right-to-privacy tradition in Arkansas is “rich and compelling.” Jegley v. Picado, 349 Ark. at 632, 80 S.W.3d at 349-50. We have held that there is a fundamental right to privacy in our homes implicit in the Arkansas Constitution and that any violation of that fundamental right requires a strict-scrutiny review and a compelling state interest.
The dissent cites a raft of cases where this court has adhered to the Schneckloth v. Bustamonte standard when interpreting the Fourth Amendment to the United States Constitution. Only one of those cases, King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), adopted the Bustamonte standard when interpreting Article 2, § 15, of the Arkansas Constitution with respect to a knowing consent to search. We now depart from our holding in King and overrule that case to the extent it stands for the proposition that a homeowner need not be apprised of his or her right to refuse a consent to search as a prerequisite to a valid consent to search that home.
The United States Supreme Court overrules cases based on the United States Constitution with some regularity. See, e.g., Crawford v. Washington, 541 U.S. 36 (March 8, 2004) (interpreting the Confrontation Clause for out-of-court statements of witnesses and overruling Ohio v. Roberts, 448 U.S. 56 (1980)); Lawrence v. Texas, 123 S. Ct. 2472 (2003) (interpreting the Fourteenth Amendment with regard to homosexuals’ rights to liberty and overruling Bowers v. Hardwick, 478 U.S. 186 (1986)); Ring v. Arizona, 536 U.S. 584 (2002) (interpreting the Sixth Amendment right to a jury trial where trial court, sitting alone, had determined the presence or absence of aggravating circumstances in a death case and overruling Walton v. Arizona, 497 U.S. 639 (1990)); Payne v. Tennessee, 501 U.S. 808 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), regarding victim-impact evidence and noting that in the past twenty years, thirty-three of its previous constitutional decisions had been overruled in whole or in part).
This court has said that although as a general rule we are bound to follow precedent, we will break with precedent when the result is patently wrong and so manifestly unjust that a break becomes unavoidable. See Aka v. Jefferson Hosp. Ass’n, 344 Ark. 627, 42 S.W.3d 508 (2001) (citing State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 215 (1995)). In Aka, we held that a viable fetus is a “person” for purposes of the wrongful-death statute and did so based on the express public policy of the General Assembly. In our Aka decision, we also alluded to Amendment 68 of the Arkansas Constitution with its declaration that the policy in Arkansas is to protect the life of every unborn child. We have overruled other cases based on an evolving statement of public policy from our General Assembly. See, e.g., Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (striking down Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), based on high duty of care placed on sellers of alcoholic beverages by General Assembly regarding sales to intoxicated persons); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (striking down dramshop precedent relative to minors based, in part, on General Assembly’s enhanced protection of minors). We conclude that Arkansas’ strong public policy in favor of privacy in one’s home warrants today’s opinion and our overruling of King v. State, supra.
We hold that the failure of the Drug Task Force agents in this case to advise Jaye Brown that she had the right to refuse consent to the search violated her right and the right of Michael Williams against warrantless intrusions into the home, as guaranteed by Article 2, § 15, of the Arkansas Constitution. We affirm the suppression of all evidence seized in this case that flowed from this unconstitutional search. While we do not hold that the Arkansas Constitution requires execution of a written consent form which contains a statement that the home dweller has the right to refuse consent, this undoubtedly would be the better practice for law enforcement to follow.
Affirmed.
Dickey, C.J., Glaze and Imber, JJ., dissent. | [
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Jim Hannah, Justice.
Ronald Dee O’Neal appeals his conviction for capital murder and sentence of life without parole. O’Neal asserts that he should receive a new trial because the trial court erred in finding that the State presented sufficient evidence to support his conviction, erred in admitting speculative testimony regarding trauma to the victim’s genitals, and erred in admitting prejudicial photographs of the victim’s decomposed body. We hold there is no reversible error and affirm. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2003).
Facts
By O’Neal’s own admission, he killed Stacy Ellis on May 13, 2001. Earlier that day, Ellis’s mother’s best friend Yolanda Austin called Ellis and asked if she wished to move in with her for a while. According to Austin, Ellis told her that she would like to do that, but she would first need to speak with her landlord to see if she could be freed from the obligations of her lease. Again, according to Austin, Ellis was to call her later to arrange for Austin to give her a ride, but Ellis never called.
O’Neal was one of three on-site managers for the apartments where Ellis lived and was one of several people who accepted rent. Ellis’s roommate Shameka Yancy testified that on the morning of May 13, 2001, Ellis told her that O’Neal wanted to give her $100. At trial, O’Neal attempted to assert that such a sum might have been the $100 deposit Ellis paid to move into the apartment, but O’Neal stated to investigators that he did not deal with deposits.
Yancy testified further that she left to go to her grandmother’s apartment that morning, and that when she left, Ellis was wearing jeans, a black shirt and black house shoes. Yancy further testified that as far as she knew, Ellis never left the apartment in house shoes, and that even if she was just going to Wal-Mart, she would dress up. Yancy stated that she later returned to the apartment that she shared with Ellis, but the door was locked, and Ellis did not answer her knock. Yancy then saw O’Neal and asked him to open the door. O’Neal opened the door for Yancy. When she entered the apartment, she did not find Ellis, but her things were all still there. Shameka testified that she asked O’Neal where Ellis had gone, and he told her Ellis had walked to the park.
Joe Garza of the Pulaski County Sheriffs Department made initial contact with O’Neal regarding Ellis. O’Neal was not a suspect at that time, and Garza was speaking with a number of people who might have last seen her. According to Garza, O’Neal stated that he last saw Ellis leaving the apartment complex laundry room with Yancy and others, and that Ellis was wearing blue jeans or blue jeans shorts. Again, according to Garza, he asked O’Neal if O’Neal told Yancy that he saw Ellis go to the park. According to Garza, O’Neal denied having said that; however, Garza stated that in a later interview on May 20, 2001, O’Neal stated that Ellis told him she was going to the park to meet someone.
On June 19, 2001, O’Neal was again interviewed and confessed to causing Ellis’s death. He denied intending to kill her. Instead, O’Neal explained that he was approached by Ellis and asked to return her deposit because she needed the money. O’Neal told police that he informed Ellis he could not do that because he did not handle deposits. O’Neal then further told police that Ellis became irate and began to demand that he give her money under a threat that she would tell O’Neal’s girlfriend that O’Neal had propositioned her. O’Neal told the detective that Ellis then turned to leave, and fearing she was going to call his girlfriend and tell her a lie, O’Neal stepped to Ellis and grabbed her. O’Neal then reported that Ellis laid down on the floor, that he sat on her, and that he tried to talk to her. O’Neal asserted that then Ellis began to demand more money and began to cuss.
O’Neal stated that when he heard someone enter the laundry room nearby, he put his hand over Ellis’s mouth to keep the person from overhearing their argument. O’Neal then alleged that he put pressure on Ellis’s artery in her throat, what he characterized as a “sleeper hold” he had been taught in the Marines. O’Neal told investigators that he only intended to make her pass out and be quiet. He reported that after she passed out, he put a piece of duct tape over her mouth and answered a couple of phone calls that came in. O’Neal then recounted that a few minutes later he came back to Ellis and discovered that she was not breathing. O’Neal told Garza that he found he had inadvertently placed the duct tape so it not only covered Ellis’s mouth but also obstructed her nostrils. According to O’Neal, he tried to get her breathing again but was unable to do so. O’Neal then stated that he' panicked, and dumped her body in the river using the trash can, cable, concrete, and other materials.
Dr. Charles Kokes of the Arkansas Medical Examiner’s Office testified as a forensic pathologist. According to Dr. Kokes, application of pressure to the carotid arteries for a matter of ten to fifteen seconds would cause a person to pass out, but that it would take several minutes of pressure to kill her. Dr. Kokes also testified that because there was no outward sign of homicidal trauma such as a stab wound, and because the body was discovered tied to a trash can in the river indicating homicide, Dr. Kokes concluded that the cause of death was strangulation. Dr. Kokes testified that Ellis’s body had been in the river so long that the typical signs of strangulation such as bruises to the neck and petechical hemorrhages were not present. Dr. Kokes also testified that if duct tape were applied to a person’s mouth after application of pressure to the carotid arteries just long enough to cause unconsciousness, the person would revive enough to try to remove the tape.
Dr. Kokes also 'testified that Ellis’s body was retrieved clothed, but that she had signs of antemortem trauma to her labia minora and a tear in the tissue just the left of her labia. However, Dr. Kokes also testified that while not inconsistent with a sexual assault, he could not say with a reasonable degree of medical certainty that the evidence of injury to Ellis’s genitals was evidence of a sexual assault. Dr. Kokes did testify that the injury was consistent with blunt force trauma.
Sufficiency of the Evidence
O’Neal first challenges the sufficiency of the evidence. This court recently discussed sufficiency of the evidence in Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003), where we stated:
We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Fairchild, 349 Ark. 147, 76 S.W.3d 884; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).
Edmond, 351 Ark. at 501-2.
We must thus determine if the conviction for capital murder is supported by substantial evidence. O’Neal admits that he caused Ellis’s death, so there is no issue of whether O’Neal was the person who caused Ellis’s death. However, O’Neal was convicted of causing the death of another person with the premeditated and deliberated purpose of causing the death of that person. As set out in Ark. Code Ann. § 5-10-101, a person commits capital murder where he or she:
With the premeditated and deliberated purpose of causing the death of another person, he or she causes the death of any person;
Ark. Code Ann. § 5-10-101(a)(4) (2003). We discussed premeditation and deliberation in Ford v. State, 334 Ark. 385, 976 S.W.2d 915 (1998):
Deliberation has been defined as ‘weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.’ Davis v. State, 251 Ark. 771, 773, 475 S.W.2d 155, 156 (1972). Premeditation means to think of beforehand, and it is well established that it is immaterial as to just how long premeditation and deliberation exist, so long as they exist for a period of time prior to the homicide. Id. Premeditation and deliberation may occur on the spur of the moment, Westbrook v. State, 265 Ark. 736, 747, 580 S.W.2d 702 (1979), and may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).
Ford, 334 Ark. at 389.
O’Neal denies that he intentionally killed Ellis. According to the story that O’Neal told the detective, he only intended to compel Ellis to be quiet when he applied pressure to her carotid arteries and placed duct tape over her mouth. He asserted that he did not intend that the duct tape would also cover her nostrils. O’Neal told the detective that he tried to resuscitate Ellis and only put her body in a trash can and tried to hide it in the Arkansas River when he panicked.
Dr. Kokes testified that a person could pass out from pressure to the carotid arteries within seconds, but that it would take minutes to cause death. He also testified that if pressure is put on a person’s carotid arteries and then removed once the person passes out, as O’Neal said he did, the person would revive and try to remove the duct tape. In short, the story O’Neal told investigators is inconsistent with Dr. Koke’s testimony and indicates that Ellis was strangled for several minutes, not the seconds that O’Neal alleged.
The evidence provided by O’Neal, combined with Dr. Koke’s testimony, constitutes substantial evidence, or in other words, evidence of sufficient force and character that it would, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. An admission to strangling another, and admission to the use of duct tape over the mouth and nose of another, constitutes substantial evidence supporting the jury’s conclusion of guilt. O’Neal’s own story provides evidence of planning to keep Ellis quiet. At the same time that planning coupled with evidence that Ellis was strangled long enough to cause death amounts to evidence of premeditation and deliberation. There is evidence that O’Neal weighed what he was about to do and that he engaged in planning prior to the murder. It may have occurred in a moment, but the evidence is there and supports the conviction.
Further, O’Neal admits that he considered how he would deal with his alleged altercation with Ellis, and that he grabbed her and held her against her will to keep her from talking to his girlfriend. Whether keeping Ellis from talking to his girlfriend was truly his motive or not is of no moment. O’Neal admits that he grabbed Ellis and sat on her to force her to do as he wished.
Antemortem Genital Injury
O’Neal challenges the admission of evidence of injury to the victim’s labia, including testimony by Dr. Kokes about the condition of the body and a photograph, exhibit 13, showing the injuries. The standard of review on admission of evidence is abuse of discretion. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). This court has stated of abuse of discretion:
Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Nazarenko v. CTI Trucking Co., Inc, 313 Ark. 570, 856 S.W.2d 869 (1993). Here, the court erred, but we cannot say that the trial court’s action in admitting a statement for the purpose of impeachment was improvident, thoughtless or without due consideration. We conclude that the trial court’s actions do not require reversal as an abuse of its discretion.
Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002).
O’Neal makes two arguments with respect to evidence of injury to Ellis’s labia. First, O’Neal argues that the sole issue in this case is whether he killed Ellis with premeditation and deliberation, and that evidence of the vaginal injury casts no light on premeditation or deliberation. O’Neal also alleges that Dr. Kokes’s testimony about the injury to the labia was equivocal and that ultimately Dr. Kokes could not testify with a reasonable degree of medical certainty that the injury was the result of sexual assault. O’Neal further argues that Kokes testified that the injury might be the result of decomposition.
Dr. Kokes testified that the discoloration that appeared to be antemortem bruising was in a relatively protected place and also noted that Ellis’s body was recovered with her pants fully on and in place. Dr. Kokes also testified that he did not find any other “areas of discoloration on Ellis’s body that were quite like the ones found in the genital region.” As noted, Dr. Kokes testified that the discoloration in the genital area was consistent with antemortem bruising. He also testified that all other discoloration he found on Ellis’s body was different in color and consistent with decomposition. He did testify that the discoloration could have come from decomposition, but that must be countered by his testimony that the discoloration at the labia was unique on this body and consistent with antemortem trauma. We also note that O’Neal stipulated to Dr. Kokes’s qualifications.
Further, the evidence of injury to the genital region was relevant on several grounds. It tends at the least to corroborate O’Neal’s story that he struggled with Ellis. Dr. Kokes testified that the injury might have been caused by blunt force trauma. The struggle was relevant to the lesser-included offenses involved in jury deliberations and would arguably cast light on whether O’Neal killed Ellis purposely, knowingly under circumstances manifesting extreme indifference to value of human life, recklessly, or negligently. The motive for the slaying given by O’Neal was that he accidently killed Ellis while using a “sleeper hold.” Dr. Kokes’s testimony directly contradicts this explanation by O’Neal and makes relevant any other evidence showing that O’Neal intentionally or negligently killed Ellis.
Additionally, a sexual motive for his detention and assault on Ellis casts light on whether O’Neal intentionally, negligently or accidentally killed Ellis. The evidence of injury to the labia had a tendency to make it less probable that Ellis’s death was the result of an accident or mistake and, thus, the evidence was relevant under Ark. R. Evid. 401 (2003). The evidence bears on intent. The evidence was offered to show intent and lack of mistake or accident in the presently charged crime. The evidence is independently relevant proof of O’Neal’s intent and the absence of mistake or accident in committing the offense. Hence, the evidence is relevant under the intent and absence-of-mistake-or-accident exception to Ark. R. Evid. 404(b) (2003). Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001).
O’Neal told investigators that he grabbed Ellis to get her to be quiet, and that he specifically stopped Ellis to keep her from telling his girlfriend that he had propositioned Ellis. O’Neal thus admitted that he used physical force to detain Ellis against her will. O’Neal also acknowledged to police that he knew that Ellis worked as an exotic dancer. He admitted that he had gotten in trouble with his girlfriend for supposedly flirting with girls in the complex, including a request by him that one of the girls put on certain shorts and help him paint an apartment. O’Neal also told investigators that his girlfriend had specifically challenged him about whether he had been down to Ellis’s place of employment to watch her dance. The complained of evidence was relevant in that it made it more probable that O’Neal purposely, knowingly, recklessly or negligently killed Ellis. The evidence also makes it more probable that O’Neal did not accidently kill Ellis. This court in Matthews v. State, 352 Ark. 166, 99 S.W.3d 403 (2003), stated:
As part of its case-in-chief, the State sought to demonstrate the appellant’s motive and intent for the commission of the offense. The admission of evidence showing motive is a matter left to the discretion of the trial court, which will be reversed only for an abuse of that discretion. E.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). In Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), we reiterated the long-held rule that where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Id. at 494, 79 S.W.3d at 287.
Matthews, 352 Ark. at 173-74.
O’Neal moved in limine to exclude any reference to injury to Ellis’s labia minora as lacking in relevance and prejudicial. The State argued that the injury was “very suspicious” and relevant. We also note that in his notice of appeal, O’Neal designated the entire record excluding voir dire, opening statements and closing arguments except where an objection was made. Pursuant to Ark. Sup. Ct. R. 3-4(b) (2003), empaneling and swearing of the jury is not transcribed unless requested in the notice of appeal. Pursuant to Ark. Sup. Ct. R. 4-3(h) (2003), this court must review all adverse rulings in a case where the penalty is life imprisonment, and apparently, O’Neal is satisfied with review based on requesting the court reporter to generate only a record of any objections in opening statements and closing arguments. Nothing is transcribed from the opening statements or closing arguments, so we are left to assume there were no adverse rulings to review. The theories of the case put forward by O’Neal and the State must be gleaned from the testimony. The better approach would be to provide this court with a complete record where penalty of life without parole is imposed.
Expert testimony must be relevant and not misleading or confusing to the jury. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Sera, supra. In this case, the evidence tended to show that there was an altercation between O’Neal and Ellis corroborating other evidence. Abuse of discretion requires that the trial court act improvidently, thoughtlessly, or without due consideration. Williams, supra. Here, even if the trial court erred, we cannot say that the trial court’s action in admitting a statement for the purpose of impeachment was improvident, thoughtless or without due consideration. We conclude that the trial court’s actions do not require reversal as an abuse of its discretion. Threadgill, supra.
Admission of Photographs
O’Neal further challenges the admission of other photographs. In Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002), this court stated:
The admission of photographs is a matter left to the sound discretion of the trial court. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. (citing Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995)). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Id.
Davis, 350 Ark. at 35, quoting Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).
O’Neal objected to exhibit 13, the photograph of injury to Ellis’s labia. O’Neal argues the trial court erred in failing to make a specific finding in weighing the probative value against the potential prejudicial harm as required by Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003), where this court stated that it “expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature.” Newman, 353 Ark. at 455. O’Neal objected to exhibit 13 based on relevance and prejudicial harm, arguing that it did not cast light on the elements of the crime. O’Neal also objected at the same time to exhibit 35 which shows the body as it was received from the coroner. O’Neal asserted that neither exhibit 35 nor exhibit 13 made Dr. Kokes’s testimony more understandable and should have been excluded based on the potential prejudicial harm. Both objections were overruled without comment by the trial court. O’Neal argues that the trial court failed to make a specific finding in carrying out the prejudicial harm versus probative value test as required in Newman, supra. The record does not reveal why the trial court overruled the objections. Further, the record provided does not show that the trial court did or did not weigh the probative value against the potential prejudicial harm. No abuse of discretion in admission of the photographs is shown. Photographs are admissible to show condition of the body. Newman, supra. Additionally, given Dr. Kokes was performing an autopsy, condition of the body as received before the autopsy would be relevant to showing what was done and would be helpful in showing the jury what was done in the autopsy.
O’Neal also objects to exhibit 12, which showed Ellis’s face and neck in the condition when the body was retrieved and to exhibit 14 which showed how the body was attached by the cable to the concrete weight. Both photographs show the condition of the body, and it was not an abuse of discretion to admit them. The evidence of the method of disposal of the body in this case was also relevant because it tended to show that O’Neal was being truthful in admitting he killed Ellis. In the course of his interview with the investigators, O’Neal described how he would “theoretically” dispose of a body, which included methods and materials actually used in disposing of Ellis’s body that were known only to the investigators who retrieved the body. Investigator Jim Dixon testified to this at trial.
Rule 4-3 (h)
Appellant received a sentence of life imprisonment without parole. Because a life sentence was imposed, the record submitted in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for adverse rulings objected to by Appellant but not argued on appeal. No such reversible errors were found.
Affirmed.
Brown, J., not participating. | [
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Per Curiam.
On January 22, 2004, this court issued a per curiam order in which we recalled our mandate issued on January 1, 2004, and reestablished jurisdiction over this case. In that same per curiam order, we announced that we would appoint a Master to advise this court regarding compliance with our November 21, 2002 opinion, Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002).
We hereby appoint Bradley D. Jesson, former Chief Justice of the Arkansas Supreme Court, and David Newbern, a former Justice of the Arkansas Supreme Court, to serve as Masters to this court in this case. The task of the Masters will be to examine and evaluate legislative and executive action taken since November 21, 2002, to comply with this court’s order and the constitutional mandate that the State “maintain a general, suitable and efficient system of free public schools and . . . adopt all suitable means to secure to the people the advantages and opportunities of education.” Ark. Const. art. 14, § 1. The Masters will then report their findings to this court. We direct that the Masters examine and evaluate the actions taken by the legislative and executive branches both before January 1, 2004, and after January 1, 2004, in reporting their findings to this court.
The report of the Masters shall focus on what steps the legislative and executive branches have taken to bring the educational system of this state into constitutional compliance since this court’s opinion of November 21, 2002. The Masters shall examine and evaluate the following items and present their findings to this court:
(1) The Adequacy Study prepared for the General Assembly and the steps taken by that body to implement the study;
(2) The steps taken by the State to put in place a system to assess, evaluate, and monitor public school curricula offered in all primary and secondary schools in the state;
(3) The steps implemented by the State to assure that a substantially equal curriculum is made available to all school children in this state;
(4) The steps taken by the State to assess and evaluate public school buildings and educational equipment across the state;
(5) The steps taken by the State to implement measures to assure that substantially equal school buildings and school equipment are available to all school children in this state;
(6) The measures in place to assure that teacher salaries are sufficient to prevent the migration of teachers from poorer school districts to wealthier school districts or to neighboring states;
(7) The accountability and accounting measures in place for the State to determine per-pupil expenditures and how money is actually being spent in local school districts;
(8) The accountability and testing measures in place to evaluate the performance and rankings of Arkansas students by grade, including rankings in-state, regionally, and nationally;
(9) The measures taken by the General Assembly to enact a school funding formula and to fond it so that the school children of this state are afforded (a) an adequate education, and (b) a substantially equal educational opportunity so as to close the gap between wealthy school districts and poor school districts; and
(10) The measures taken by the General Assembly to assure that funding education is the priority matter in the budgetary process.
The Masters, in addition, are authorized to examine and evaluate any other issue they deem relevant to compliance with this court’s November 21, 2002 opinion and to report to this court accordingly.
The Masters shall immediately hold a prehearing conference with the named parties and intervenors and their attorneys. With respect to Lake View School District No. 25, both of the attorneys who participated in oral argument on January 22, 2004, may appear. The purpose of the conference will be to delineate the issues and the procedure to be followed with respect to gathering the necessary documents and materials and the taking of additional testimony, if necessary. The Masters shall further decide whether additional briefing by the parties and a hearing for attorneys to be heard on the issues listed above would prove beneficial.
We appreciate the significance of the task facing the Masters. We view the Masters’ job as largely one of examining documents and materials relating to the listed issues and those actions taken by the State, both legislatively and administratively, since our opinion was handed down on November 21, 2002. Nevertheless, should the Masters want to take testimony, resources will be made available for that purpose. The Administrative Office of the Courts shall assist the Masters in this task and will make available office space, equipment, and supplies as well as administrative and technical support.
The Masters shall have the powers enumerated under Rules 53, 45, and 37 of the Arkansas Rules of Civil Procedure, which shall include the authority to issue any summons for any persons or subpoenas for any witnesses and for the production of documents, books, records, or other evidence in the same manner as is provided for civil process pursuant to the Arkansas Rules of Civil Procedure. It shall be regarded as contempt of the Supreme Court for a person not to appear or for documents or other evidence not to be produced in accordance with subpoenas. This court will decide whether refusal to comply with any subpoena of the Masters constitutes contempt of court under Supreme Court Rule 6-5.
We direct that the Masters furnish this court their report on or before sixty days from the date of this per curiam.
Glaze, J., concurs.
Imber, J., not participating.
Special Justice Carol Dalby joins. | [
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COURTNEY HUDSON HENRY, Judge.
liAppellant Intong Sivixay appeals the decision of the Arkansas Workers’ Compensation Commission denying his claim for wage-loss benefits. For reversal, he contends that the Commission’s findings are not supported by substantial evidence. We agree and reverse and remand for proceedings consistent with this opinion.
The record reflects that appellant, age forty-seven, began his employment with appellee Danaher Tool Group in 1989. In September 2002, he worked in the forge department, as he had done for the past five or six years. Appellant’s duties required him to use a ten-pound prong to lift a fifteen-pound, super-heated piece of steel from a heater onto a hammer machine. After the hammering process, appellant placed the steel into a trimmer. Appellant transferred six to seven hundred pieces of steel in this fashion every day.
[¡On September 14, 2002, appellant sustained a work-related injury when a piece of hot metal penetrated his abdomen. According to the medical reports, the incident involved a missile-type injury and a thermal injury as well. As a result, appellant underwent four surgeries, including the resection of eighty percent of his stomach, the resection of the left one-half of his liver, the resection of a significant length of his transverse colon, and the resection of multiple feet of the small intestine. Appellant also underwent a procedure to reverse his colostomy.
Appellant returned to work with a colostomy at light duty in the assembly department in January 2003. At first, appellant worked only two hours a day, but he gradually increased his workload to an eight-hour day. Appellant has continued under the care of a doctor for the treatment of chronic digestive difficulties, and in November 2004, appellant saw Dr. Gary Mof-fitt for an independent medical examination. In his report, Dr. Moffitt stated that appellant had reached maximum medical improvement, and the doctor assigned a permanent anatomical impairment rating of thirty-five percent.
Following Dr. Moffitt’s report, appellant submitted a claim seeking additional temporary total or temporary partial disability benefits. He also claimed entitlement to wage-loss benefits in addition to the anatomical impairment rating assessed by Dr. Moffitt. Appellee accepted and paid the thirty-five percent impairment rating but controverted appellant’s claim for wage-loss and further temporary disability benefits.
[¡At the hearing before the administrative law judge in September 2008, appellant testified that he weighed 110 pounds in September 2002 but that his weight had fluctuated since the accident. He said that he currently weighed somewhere between 90 and 100 pounds. Appellant said that the injury has affected his eating habits. He stated that he cannot eat much at one time and that he vomits and has trouble digesting his food. He takes medication to alleviate his digestive problems. Appellant said that he had not regained his strength following the injury and that he grows tired after physical exertion.
Appellant further testified that he earned $12.86 per hour in his present job as a machine operator and that he was earning more than $17 an hour when he worked in the forge department. He agreed that appellee had offered him a position in the forge department. Appellant said that he declined that job because he was not physically capable of performing the required duties, which he described as being physically demanding. He testified that he experiences pain, becomes dizzy, and has headaches after lifting heavy objects. Appellant stated that he also could not do yard work or other activities of that nature at home and that he relied on his wife to do those chores.
Kay Henson, appellant’s supervisor, testified that she offered appellant his former position in the forge department in 2005 when appellant was released to full duty. She said that appellant did not accept this job and that she was not aware of appellant being placed under any restrictions. Henson also testified that employees receive higher wages in the forge |4department due to the skill level required and because “[fit’s hot, it’s hard, [and] very physical.”
The law judge also received into evidence the report authored by Dr. Moffitt. Dr. Moffitt indicated that appellant suffered a significant amount of permanent impairment in assigning the thirty-five percent permanent impairment rating associated with the injuries to appellant’s abdomen and digestive system. He stated that appellant suffered from “dumping syndrome” and had problems maintaining nutrition. Dr. Moffitt also observed that appellant weighed ten to twenty percent below his desired weight and that appellant had symptoms of organic upper digestive tract disease. Dr. Moffitt observed that appellant’s “physical activity is limited somewhat due to his weakness in association with his disorder,” and the doctor noted appellant’s need to take frequent breaks from work to eat.
The law judge denied appellant’s claim for additional temporary benefits but found that appellant had suffered a loss in wage-earning capacity.in the amount of twenty-five percent. Appellee pursued an appeal to the Commission to protest the award of wage-loss benefits. The Commission reversed the law judge’s decision, finding that appellant was ineligible for wage-loss benefits because appellant refused a bona fide and reasonably obtainable offer of employment at the same wages he was earning at the time of the accident.
Appellant argues on appeal that substantial evidence does not support the Commission’s decision. He contends that the evidence shows that he is not physically capable of returning to his job in the forge department. Appellant asserts that his lack of capacity is |fisupported by Dr. Moffitt’s report that his physical activities are limited as a result of weakness associated with his condition.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Id. Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss disability benefits in excess of permanent physical impairment. Henson v. Gen. Elec., 99 Ark.App. 129, 257 S.W.3d 908 (2007). A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to the full assessment of wage loss. Logan County v. McDonald, 90 Ark.App. 409, 206 S.W.3d 258 (2005).
An employee who is extended a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident is not entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment. Ark.Code Ann. § 11 — 9—522(b)(2) (Repl.2002). The | (¡employer has the burden of proving a bona fide offer of employment. Ark.Code Ann. § ll-9-522(c)(l).
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Johnson v. Latex Constr. Co., 94 Ark.App. 431, 232 S.W.3d 504 (2006). Substantial evidence exists if reasonable minds could reach the same conclusion. Whitlateh v. Southland Land & Dev., 84 Ark.App. 399, 141 S.W.3d 916 (2004). When a claim is denied because the claimant has failed to show an entitlement to compensation, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Johnson, supra. Questions concerning the credibility of witnesses and the weight to be give their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep't of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). However, these standards must not totally insulate the Commission from judicial review because this would render this court’s function meaningless in workers’ compensation cases. Bohannon v. Walmart Stores, Inc., 102 Ark.App. 37, 279 S.W.3d 502 (2008).
In denying appellant’s claim for wage-loss benefits, the Commission noted that appellant was released to full duty without restrictions and had reached maximum medical improvement in November 2004. The Commission also observed that in 2005 appellee offered appellant his former position in the forge department but that he refused that job in |7favor of one that paid less wages. The Commission gave little weight to appellant’s claim that he was unable to perform his previous job. In making that determination, the Commission observed that appellant performed his current job without apparent difficulty and that appellant had made no attempt to return to his former position.
From our review of the record, we cannot conclude that the Commission’s decision displays a substantial basis for the denial of relief. The question before the Commission was whether the job in the forge department was a bona fide offer of employment that disqualified appellant from receiving wage-loss benefits. Obviously, an employee must be capable of performing the required job activities in order for the proposed position to be considered a bona fide offer of employment. According to the description of the job and appellee’s own witness, the work in the forge department takes place in a hot environment, and the job is strenuous and physically demanding. Following the accident, appellant underwent multiple surgeries that involved the removal of eighty-percent of his stomach, multiple feet of the small intestine, a significant portion of the transverse colon, and half of his liver. As a result, appellant suffers from digestive maladies that have caused a significant loss in weight that he has not been able to regain in the six years following the accident. Dr. Moffitt opined, and appellee accepted, that appellant sustained a significant degree of physical impairment of thirty-five percent, noting that appellant’s “physical activity is somewhat limited due to his weakness” associated with his chronic condition. Based on the objective evi dence, the Commission’s decision that the position in the forge department was a bona fide offer of ^employment defies common sense and logic. Reasonable persons with the same facts before them could not conclude that a 100-pound man,-who has trouble eating and maintaining nutrition and whose weight fluctuates due to digestive problems caused by the resection of large portions of his internal organs, is physically capable of performing a labor-intensive job in a hot environment on a day-to-day basis. Accordingly, we reverse the Commission’s decision and remand for proceedings consistent with this opinion.
Reversed and remanded.
KINARD, GRUBER, BAKER, and BROWN, JJ., agree.
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Donald L. Corbin, Justice.
Appellant Kirby Joe Coggin appeals the order of the Craighead County Circuit Court convicting him of the capital murder of his wife Carolyn Sue Coggin. On appeal, Appellant argues that the trial court erred: (1) in denying his motion for directed verdict, as the State failed to provide sufficient evidence that he acted with premeditation and deliberation, and (2) in denying his motion to suppress because the search warrant relied on by authorities lacked any probable cause that a crime had been committed. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.
On December 10, 2001, Natalie Barker reported to authorities that her mother, Carolyn, was missing, along with her 1993 white Mazda Protege. Barker, who lived across the street from Appellant and her mother, explained that she last saw her mother on December 6, 2001. She noticed that her mother did not appear to be at home the following evening, but did not grow concerned until the next day when Carolyn was still not at home. Barker called Investigator John Moore, with' the Craighead County Sheriffs Office, on December 10 and expressed concern that her mother was missing. Moore, along with Investigator Gary Etter, were assigned to investigate the disappearance of Carolyn.
Moore and Etter attempted to reach Appellant to obtain information about Carolyn and finally met with him on December 14, 2001. During this meeting, Appellant told the investigators that he last saw Carolyn on Friday, December 7. Appellant stated that he believed Carolyn had taken the day off from work because she was not feeling well. He also stated that he had an appointment with his attorney at 2:00 p.m. to discuss filing bankruptcy and that he then went to look for a house where he had heard there might be a job. According to Appellant, on his way home he had a flat tire, and he managed to flag down another driver who gave him a ride to Wal-Mart. At Wal-Mart, Appellant called Carolyn and asked her to bring him some things to repair his flat tire. Carolyn picked Appellant up and drove him to his truck. Appellant told the investigators that Carolyn then got agitated and started asking him if he had a girlfriend. Appellant tried to calm her down and suggested they drop her car off and go get something to eat. They then left her car at a nearby Country Mart grocery store, and Carolyn got in the truck with Appellant. Appellant claimed that Carolyn again started accusing him of cheating on her and grew more agitated, so he took her back to her car and dropped her off between 7:00 and 8:00 p.m. Appellant claimed that that was the last time he had any contact with Carolyn. Appellant also told the investigators that it was not like Carolyn to disappear like she had or to not show up for work.
Because Appellant indicated that Carolyn might have left the area, the Arkansas State Police were asked to assist with the investigation. Investigator Phil Carter, with the State Police, met with Appellant on December 19, 2001. During this particular meeting, Appellant stated that Carolyn began to accuse him of having a girlfriend about a week prior to her disappearance, after she found a piece of paper with the names and numbers of two women. He also told Carter that he and Carolyn had been arguing during the day of December 7, so he left home around 3:00 p.m. to find Rob Merrill to see if he had any work for him. He claimed that he went to Merrill’s house, but that he was not home, so he drove around for a while until he had the problem with the flat tire. His statements regarding the events that followed were similar to the ones he gave Moore and Etter. Appellant also told Carter that it might be wise to look for Carolyn in rehabilitation facilities in Memphis, Hot Springs, or Little Rock, because he thought she might have checked herself into such a facility.
In the course of investigating Carolyn’s disappearance, Moore and Carter interviewed Quinn Greer. Greer told the officers that on December 8, 2001, Appellant came to his home in Black Rock and asked him to go to Jonesboro with him to check on a job. He then told Greer that his wife had left him, and he was going to teach her a lesson by hiding her car. They drove to the Scottish Inn, where Appellant told Greer to drive his truck to a car wash across the street from the Country Mart grocery store. Soon after, Appellant arrived at the car wash driving Carolyn’s Mazda Protege. Greer washed Appellant’s truck, while Appellant washed Carolyn’s car. Appellant then had Greer follow him to the GAW Mini Storage in Walnut Ridge, where he parked Carolyn’s car inside Unit 70. Immediately thereafter, Appellant went across the street to a Dollar General Store and purchased two padlocks that he used to secure the storage unit.
On December 27, 2001, after receiving the information from Greer about Carolyn’s missing vehicle, authorities obtained a search warrant for Unit 70. When police arrived at the GAW Mini Storage, they discovered two padlocks on the door to Unit 70. Once inside the unit, police discovered the missing vehicle. The vehicle’s trunk lining had been removed and was sitting on top of the car. They obtained a subsequent warrant to search the interior of the vehicle and to search other items stored in the unit. In a large utility box, officers discovered Carolyn’s body. Inside the trunk of the car were two large trash bags. Inside the trash bags were several Wal-Mart sacks containing various items. Items discovered included a pair of white tennis shoes, paper towels that appeared to be stained with blood, and rubber and latex gloves. Officers also discovered a Wal-Mart bag containing a long-sleeved Duck Head shirt, a pair of blue jeans, a white cap, and a pair of socks. These clothes were later identified as belonging to Appellant.
Later that day, as officers were completing the processing of the crime scene, Appellant arrived at the storage unit. When he saw the police, he began to hurriedly leave. Moore and Carter then followed Appellant. After losing him in traffic, they noticed a truck similar to his parked in a nearby carport. After confirming that the truck belonged to Appellant, officers approached and discovered Appellant hiding in the truck. He was then taken into custody.
Following his arrest, Appellant gave a taped statement claiming that he had a flat tire on December 7 and that Carolyn came to pick him up and take him back to his truck. After he fixed the flat, Carolyn followed him back to town. Appellant drove to the Scottish Inn, where he claimed he left his truck and got into the car with Carolyn, and the two eventually drove to Otwell. Appellant asked her to stop the car, so that he could urinate. Both Carolyn and Appellant got out of the car, and Carolyn, who was agitated, pulled a gun on him and fired two shots. According to Appellant, he then grabbed for the gun, and when he tried to take it away from Carolyn, she fell back and was struck by a bullet. In response to a question about how many times he shot Carolyn, Appellant stated that she “was doing all this jerking and stuff and I was scared to death and I couldn’t stand her suffering like that. I didn’t know what else to do.” Appellant then claimed that he did not know how many times he shot Carolyn. Appellant said that he found a plastic drop cloth in the trunk of Carolyn’s car and that he used it to wrap around Carolyn’s body. He then placed her body in the trunk of the car. The next morning, Appellant took Carolyn’s car to the storage unit in Walnut Ridge. Appellant returned to the storage unit the next morning with a utility box and some duct tape. He then put Carolyn’s body inside a couple of trash bags and placed it inside the box.
Appellant was charged with capital murder. A jury trial was held on August 5-8, 2002. Following the presentation of evidence, Appellant was found guilty of capital murder and sentenced to a term of life imprisonment without the possibility of parole. From that order, comes the instant appeal.
I. Sufficiency of the Evidence
For his first point on appeal, Appellant argues that the trial court erred in denying his motion for a directed verdict, because the State failed to introduce sufficient evidence proving that he acted with premeditation and deliberation in the death of his wife. Appellant argues that the State merely introduced circumstantial evidence of his mental state. The State counters that circumstantial evidence may constitute sufficient evidence of an accused’s mental state, as it did in this case. We find no error and affirm on this point.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004); Reed v. State, 353 Ark. 22, 109 S.W.3d 665 (2003). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In other words, ifyou have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt, which is not enough to support a conviction. Howard v. State, 348 Ark. 471, 79 S.W.3d 273; cert. denied, 537 U.S. 1051 (2002); Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Upon review, this court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Edmond, 351 Ark. 495, 95 S.W.3d 789. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; rather, the test is one of substantiality. Id.
In Arkansas, a person commits capital murder if “[w]ith premeditated and deliberated purpose of causing the death of another person, he or she causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Supp. 2003). As for proof of the premeditated and deliberate intent necessary for capital murder, 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. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002); Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). Intent may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id. In addition, one is presumed to intend the natural and probable consequences of one’s actions. Id.; Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995).
While the evidence supporting Appellant’s conviction is of a circumstantial nature, the evidence is consistent with the sole conclusion that Appellant acted with premeditation and deliberation in the murder of his wife. First, there was testimony regarding the couple’s volatile relationship and that Carolyn feared for her own safety at the hands of Appellant. Barker testified that over the last six months preceding her. death, her mother had expressed concern for her safety and told Barker that if anything ever happened to her, Appellant would be responsible for it. According to Barker, the last time Carolyn expressed such concern was approximately four to six weeks before she disappeared.
The State also presented evidence that Appellant and Carolyn were experiencing financial difficulties, which, in turn, caused problems in their marriage. Garland Gibson, a loan officer with MidSouth Bank testified that he had worked with Appellant and Carolyn on some loans they had through the bank. Particularly, Gibson testified about a loan the pair had for a Chevrolet truck. They fell behind on the payments, and Carolyn wished for the bank to repossess the truck, but Appellant did not want that to happen. According to Gibson, Carolyn expressed concerns for her safety, as she was afraid she would set Appellant off while trying to convince him to relinquish the truck. Gibson also related a conversation he had with Appellant after he went to Appellant’s home to repossess the truck. Appellant refused to turn over the keys to the truck and told Gibson that he was going to file bankruptcy and that he would bring him a copy of the bankruptcy filing.
Clarence Fisher testified that Carolyn contacted him on December 6, 2001, seeking financial assistance. Fisher owned a note on Carolyn’s home, and she wanted to refinance the note. She told Fisher that Appellant wanted to declare bankruptcy, but that she did not want to do that. The next day, Fisher advised Carolyn to return the truck to the bank and that Gibson would refinance her loans and put her on a payment plan. Carolyn told Fisher that she would find Appellant and convince him to return the truck.
In addition, the State presented testimony of persons whom Appellant had contact with immediately following Carolyn’s murder. This evidence established Appellant’s attempt to conceal the crime. This court has recognized that efforts to conceal a crime, as well as lying to friends and police about one’s involvement in a killing, can be considered as evidence of consciousness of guilt. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); Leaks, 345 Ark. 182, 45 S.W.3d 363.
James Stallings testified that on the evening of December 7, at approximately 10:00 p.m., Appellant came to his room at the Scottish Inn and told him that he was having problems with Carolyn and that she had asked him to move out. Appellant told Stallings that he was going to meet someone who was going to help him move his belongings but that he did not want his truck seen at Carolyn’s house. Fie asked Stallings to ride with him to Wal-Mart and then drive his truck back to the Scottish Inn and park it towards the back of the motel so that it could not be seen from the street. Stallings complied, and later that evening, at approximately 12:30 a.m., Appellant returned and retrieved the truck key from Stallings. Two weeks later, Appellant again visited Stallings and showed him an article that appeared in the Jonesboro Sun newspaper regarding his wife’s disappearance. After Stallings read the article, Appellant told him not to tell anyone that he had seen him or that he had been at Stallings’s room.
Greer testified that on the morning of December 7, Appellant came to his home looking to buy some marijuana. They left Greer’s house and drove to Pocahontas to buy the marijuana. Greer did not see Appellant again until the next day, when he came back to Greer’s house, asking him if he wanted to go to work installing windows in some house. Greer then recounted going to the Scottish Inn and meeting Appellant at a car wash across the street from the County Mart grocery store. He also testified that he followed Appellant to Walnut Ridge, where Appellant drove around looking for a storage facility. Greer witnessed Appellant call and make arrangements to rent a storage unit. They then took Carolyn’s vehicle to the storage facility. A couple of weeks later, Appellant returned to Greer’s house. When he asked Appellant if he had heard any news on his wife’s disappearance, he replied, “No, and ain’t going to.” Greer asked Appellant what he meant, and Appellant then confessed to Greer that he had killed Carolyn. Appellant explained to Greer that he took Carolyn to the Cache River and shot her. When Moore and Carter interviewed Greer on December 27, he told them about hiding Carolyn’s car and Appellant confessing to her murder. He then took the investigators to the storage unit in Walnut Ridge.
Rodney Snyder, a loss-prevention officer with Wal-Mart, testified that in early December, two members of Carolyn’s family contacted him and explained that Carolyn was missing and wanted to know if the store had any videotapes that might help ascertain her whereabouts. This request led Snyder to discover that Appellant had purchased a can of Fix-A-Flat, some tire plugs, and a 9 x 12 drop cloth from the store at approximately 8:40 p.m. on December 7. In all of his statements to authorities, Appellant never mentioned purchasing a drop cloth. During a second interview with Moore and Carter, Appellant was asked about purchasing a drop cloth at Wal-Mart on the night of the murder. Appellant claimed that he forgot to mention the drop cloth, but that he bought it because the area where he was going to have change the tire on his truck was muddy. In fact, he used this drop cloth to wrap around Carolyn’s body before placing her in the trunk of the car.
Finally, the medical evidence in this case is consistent with a conclusion that Appellant acted with premeditation and deliberation. Dr. Stephen Erickson, a forensic pathologist with the Arkansas State Crime Lab, testified regarding the nature of Carolyn’s injuries. Based on his review of the file in Carolyn’s case, Erickson stated that the crime lab received the utility box containing Carolyn’s body, which was wrapped in several layers of trash bags and a blue tarp. He testified that the examination of the body revealed three gunshot wounds. The first wound was a close-range shot to the left cheek, which exited the right cheek. According to Erickson, this wound would not have caused instantaneous death, as it hit no vital neurological structures. A second gunshot wound was located about two and one-half inches from the first one, resulting in the bullet entering Carolyn’s brain. This second wound was also the result of a close-range gunshot. According to Erickson, these two wounds located on the left side of Carolyn’s head came in succession, either first and second or second and third. A third wound was discovered on the right side of Carolyn’s forehead. This wound was also a close-range gunshot wound. Dr. Erickson opined that this wound would have been fatal in and of itself. Based on the nature of her wounds, Erickson opined that Carolyn’s death was a homicide.
Appellant testified on his own behalf at trial, providing further evidence of his intent to murder his wife. During his testimony, he recounted the flat-tire incident and getting in the car with Carolyn and driving to Otwell. Appellant testified that after they got out of the car, Carolyn fired a gun at him. He stated that he tried to reach for the gun and that she fell and the gun discharged, hitting her in the head. He claimed that Carolyn was suffering greatly, so “I picked up the gun and I shot her two more times in the head and stopped her suffering.” Appellant further stated, “I knew she was dying. I’ve hunted all my life, you know, I mean that’s — people are animals too, you know, I mean, you just — I just had a gut feeling.” Appellant’s explanation that he shot Carolyn only after she fell to the ground, however, is inconsistent with the finding that each of these gunshot wounds were very close-range wounds. In fact, on cross-examination, Dr. Erickson opined that the shooter would probably have been less than one foot away from Carolyn at the time the shots were fired. In addition, the shot that was not fired in succession with the others would have been fatal, according to Dr. Erickson. This conclusion is inconsistent with Appellant’s account that after the first shot Carolyn was moaning and jerking and that he shot her two more times in order to end her misery.
This court has held that the jury may resolve . questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Barrett, 354 Ark. 187, 119 S.W.3d 485; Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). Moreover, a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Thus, the jury was not obligated to believe that Appellant shot his wife with the belief that he was putting her out of her misery. To the contrary, the jury could infer from Appellant’s testimony that he formed the requisite premeditation when he picked up the gun and fired it at his wife. It is well settled that premeditation need not exist for a particular length of time, as it may be formed in an instant. Bangs, 338 Ark. 515, 998 S.W.2d 738.
Finally, this court has held that flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001), cert. denied, 540 U.S. 930, 124 S. Ct. 344 (2003). When Appellant arrived at the GAW Mini Storage and realized that authorities had searched the unit, he fled the scene and attempted to evade authorities; thus, providing more circumstantial evidence of his guilt.
In sum, the fact that the evidence establishing Appellant’s guilt is circumstantial does not render it insufficient. As this court has stated, evidence of guilt is not less because it is circumstantial. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). In fact, the evidence in the present case overwhelmingly establishes proof that Appellant acted with premeditation and deliberation. To be sufficient, circumstantial evidence must simply be consistent with Appellant’s guilt and inconsistent with any other reasonable conclusion, as it was in this case. Accordingly, the trial court did not err in denying Appellant’s motion for a directed verdict.
II. Motions to Suppress
Appellant also argues on appeal that the trial court erred in denying his motions to suppress evidence. In this regard, Appellant argues that the physical evidence seized as a result of a search warrant should have been suppressed, as the search warrant lacked any probable cause that a crime had been committed. Appellant further argues that if the physical evidence is suppressed as a result of an invalid warrant, the statements he gave following his arrest should also be suppressed as fruit of the poisonous tree. The State counters that there is no requirement that a specific crime be alleged in order to render a search warrant sufficient and that the warrant in this case was based on a sufficient affidavit. The State is correct.
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004); Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
The test for the adequacy of an affidavit set out in Illinois v. Gates, 462 U.S. 213 (1983), and adopted by our supreme court in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), was quoted in State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999), whereby this court stated:
[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concludfing]” that probable cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993); Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).
Id. at 312, 993 S.W.2d at 494.
Nothing in Rule 13.1, nor in our case law setting forth the appropriate analysis in determining the sufficiency of a warrant, requires probable cause that a specific crime has been committed be established before a warrant can be issued. In fact, as this court recognized in Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), in order for a search warrant to issue, evidence, either direct or circumstantial, must be provided to show that the contraband or evidence of a crime sought is likely in the place to be searched. In addition, an affidavit for a search warrant must set forth facts and circumstances establishing probable cause to believe that things subject to seizure will be found in the place to be searched. Id.
Turning to the affidavit supporting the search warrant in the present case, it is clear that the affidavit prepared and signed by Investigator Moore established probable cause that Carolyn’s vehicle would be found in the storage unit. The affidavit stated in relevant part:
Quinn Greer told Investigators Carter and Moore that on Saturday morning around 8:00 a.m. on 12-08-01, that Kirby Coggin came to his home in Black Rock, Arkansas and asked him to go to Jonesboro to check on a job with him. They drove to the Scottish Inn on Parker Road in Jonesboro where Coggin then told Greer that his wife had left him and he was going to teach her a lesson and hide her car. Greer said that Coggin told him to drive his pickup to the car wash across from the Country Mart grocery store on Hwy. 49 and the 63 Bypass and that he would drive his wife’s white Mazda to that same location. Greer said that when they arrived at the car wash that Coggin had him wash the pickup and Coggin washed the white Mazda. He said that Coggin then had him follow him to Walnut Ridge to the mini-storage where they put the white Mazda inside storage #70 and then Coggin went across the street to a Dollar General and bought two pad locks and placed them on the mini-storage. Greer said that Coggin then drove him home to Black Rock.
Clearly, the facts provided in the affidavit give rise to an inference that a crime had been committed. The affidavit stated that the officers were investigating the disappearance of Carolyn and her vehicle. The facts contained in Moore’s affidavit were sufficient to establish probable cause that Carolyn’s vehicle was located in the storage unit and also gave rise to an inference that a crime had been committed. Accordingly, the trial court did not err in denying Appellant’s motion to suppress.
III. Rule 4-3 (h) Review
In accordance with Ark. Sup. Ct. R. 4-3(h), the transcript of the record before us has been reviewed for adverse rulings objected to by Appellant, but not argued on appeal, and no such reversible errors were found.
Affirmed.
During oral argument of this case, counsel for Appellant attempted to concede that there was sufficient evidence to support the conviction if this court did not agree with his second argument on appeal regarding the suppression of evidence. Despite this concession, we are still obligated to review the evidence as we are required to address challenges to the sufficiency of the evidence first due to double jeopardy considerations.
Medical Examiner Dr. Charles Kokes actually performed the autopsy on Carolyn, but was unavailable to testify at trial due to a medical problem. | [
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Ray Thornton, Justice.
After a Greene County Deputy jound what appeared to be a meth lab in a shed on the property of appellant, Myron George, both appellant and Martin Strugala were arrested. Following appellant’s arrest, a search, executed pursuant to a warrant, revealed a working meth lab, components used to produce methamphetamine, and finished methamphetamine. In a criminal information, appellant was charged with being an accomplice in the manufacturing of methamphetamine, possession of methamphetamine, and theft by receiving.
Prior to trial, appellant filed a pro se motion seeking to suppress all evidence obtained during the search of his property . An in-chambers hearing was held on appellant’s motion to suppress, but the record does not contain a transcript of the proceedings relating to the suppression hearing . A notation on the docket sheet merely states that appellant’s motion was denied.
During the process of the trial, appellant’s attorney informed the trial court that he objected to Nila Keels, a court reporter who was not certified, transcribing the proceedings. The trial court noted the objection, but stated that he had granted Ms. Keels an emergency certification which would permit her to transcribe the trial. When appellant’s counsel persisted in his objection, the trial court ordered him to proceed or face contempt charges.
At the close of the evidence, the trial court granted appellant’s motion for a directed verdict on the charge of theft by receiving, but permitted the remaining charges to be considered by the jury. The jury found appellant guilty as an accomplice to manufacturing methamphetamine and possession of methamphetamine. Appellant was sentenced to ten years’ imprisonment for his convictions.
Appellant filed a notice of appeal from his convictions. The deadline for filing the record on appeal was August 9, 2001. On August 8, 2001, appellant tendered a partial record and filed a motion seeking a rule on the clerk. We remanded the matter back to the trial court and directed it to take “whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter.” George v. State, 346 Ark. 22, 53 S.W.3d 526 (2001). Upon remand, the trial court held a hearing and entered an order finding the there were “no substantive defects in the transcript as prepared by Nila Keels.” It further found that “the transcript is sufficiently accurate for use and consideration by the Arkansas Supreme Court for all appellate purposes.” Thereafter, appellant’s attorney filed a renewed motion for a rule on the clerk. We granted appellant’s motion and permitted our clerk to file the record prepared by Nila Keels. George v. State, 351 Ark. 209, 209 S.W.3d 931 (2002). This appeal followed.
On appeal, appellant offers four points for our consideration. We remand this case to the trial court for the limited purpose of conducting an on-the-record hearing on appellant’s motion to suppress.
In his first point on appeal, appellant argues that the trial court erred when it denied his motions for directed verdicts on the charges of being an accomplice to the manufacturing of methamphetamine and possession of methamphetamine. We must address this point before considering other assignments of error in order to preserve appellant’s right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider evidence, which may have been inadmissible, in the light most favorable to the State. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Appellant was convicted of violating Ark. Code Ann. § 5-64-401 (Supp. 1999). The jury concluded that appellant was manufacturing methamphetamine. Appellant’s criminal liability was based upon his status as an accomplice. In cases where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002).
Arkansas Code Annotated § 5-2-402 (Rep. 1997), articulates the elements necessary to establish that a person is criminally liable for the conduct of another person. The statute provides:
A person is criminally liable for the conduct of another person when:
(1) He is made criminally liable for the conduct of another person by the statute defining the offense; or
(2) He is an accomplice of another person in the commission of an offense; or
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.
Id. Arkansas Code Ann. § 5-2-403 (Repl. 1997), gives the statutory definition of an accomplice:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
Id. We have explained that relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).
Mindful of the relevant statutory provisions and case law, we must determine whether there was sufficient evidence to support appellant’s conviction. Deputy Mark Davis of the Greene County Sheriff s Department testified that he was on patrol when he drove past appellant’s home at approximately 4:00 a.m. As he drove past the home, he noticed a light on in a shed located on appellant’s property. When Deputy Davis drove back by the location, the light was turned off, and he decided to stop and investigate. Deputy Davis then discovered that a vehicle owned by Martin Strugala, an individual previously arrested for manufacturing methamphetamine, was parked in appellant’s driveway. Upon exiting his car, Deputy Davis smelled anhydrous ammonia coming from the shed. As he approached the shed, Deputy Davis noticed a smoldering bum pile that contained strips of aluminum and coffee filters. He also saw a plastic gas container and what he described as a “pill soak jar.” Additionally, Deputy Davis testified that he saw some stripped lithium batteries. Deputy Davis explained that acid from the lithium batteries is used by individuals who manufacture methamphetamine. Deputy Davis then instructed appellant to exit the shed. Appellant complied with Deputy Davis’s order, and Martin Strugala also exited the shed. As Strugala exited the shed, Deputy Davis saw a cloud of smoke coming from inside the shed. Deputy Davis explained that he had seen this occurrence many times in other meth labs. Deputy Davis testified that he would consider what he observed at appellant’s home to be a working meth lab.
Toby Carpenter, formerly a narcotics investigator with the Greene County Sheriffs Department, also testified at appellant’s trial. He explained that after appellant and Mr. Strugala were arrested, a search warrant for appellant’s property was obtained. Officer Carpenter testified that during the search of appellant’s shed, property, and home, law enforcement officials found coffee filters, quart jars, a Coleman fuel can, a can of acetone, two five-gallon propane tanks, salt, drain cleaner, a hydrochloric generator, lithium batteries, and several containers with white residue on them. Officer Carpenter explained how each component was used in the process of manufacturing methamphetamine. Officer Carpenter also testified that they found lithium salt on coffee filters in the burn pile by the shed on appellant’s property. Lithium and salt are also used to manufacture methamphetamine. During the search, a white powder, which was forty-five percent methamphetamine hydrochloride, was also in appellant’s shed. Additionally, law enforcement officials found methamphetamine at various stages of processing in appellant’s shed. Officer Carpenter stated that based on his experience, it appeared to him that appellant and Mr. Strugala had been manufacturing methamphetamine on the night of their arrest. Finally, Officer Carpenter testified that appellant informed him that he knew that the “meth lab” was in his shed, and he knew that Mr. Strugala was manufacturing the drug.
Martin Strugala testified that he was serving an eighteen-year sentence in the Arkansas Department of Correction. He was appellant’s co-defendant and pleaded guilty to drug-related charges. Mr. Strugala admitted that he was manufacturing methamphetamine on the day that he and appellant were arrested and that he had stored the items needed to make the drug in appellant’s shed. He further stated that appellant knew that the items were stored in his shed. Finally, Mr. Strugala testified that the hydrochloric generator, the drain opener, the jars-located outside of the shed, and the battery metal did not belong to him.
After reviewing the foregoing evidence, we conclude that there was sufficient evidence whereby a jury could have concluded that appellant was acting as an accomplice to Martin Strugala in the manufacturing of methamphetamine. Accordingly, the trial court properly denied appellant’s motion for a directed verdict.
Next, we must determine whether there was sufficient evidence to establish that appellant possessed methamphetamine. The drug was found in appellant’s shed and in a vehicle parked on his property. We have explained 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. Walley, supra. Constructive possession may be established by circumstantial evidence. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Id. This control can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).
In the case now before us, methamphetamine was found in a container on the seat of a truck parked on appellant’s property. The container was located next to beer that belonged to appellant in a vehicle Mr. Strugala identified as appellant’s. Additionally, methamphetamine was found in the floor of a shed located on appellant’s property. Deputy Davis testified that he witnessed appellant exit the shed prior to the drugs being discovered. The components needed to manufacture the drug were found in appellant’s home, in appellant’s shed, and on appellant’s property. Additionally, appellant admitted to Officer Toby Car penter that he had a “meth problem” and that he purchased drugs from Martin Strugala, an individual who was present prior to the drugs being discovered in appellant’s shed and in the vehicle Strugala testified was driven by appellant. We conclude that there was substantial evidence whereby the jury could have concluded that appellant possessed methamphetamine.
We next consider appellant’s argument that the trial court erred when it denied his motion for a new trial that was based on an alleged discovery violation made by the State. Specifically, appellant argues that the State violated Rule 17.1 of the Arkansas Rules of Criminal Procedure by failing to provide him with a copy of a statement made by him to Officer Toby Carpenter. This issue is not preserved for our review.
To preserve an issue for appeal a defendant must object at the first opportunity. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Id. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id:
In the case now before us, Officer Carpenter testified that appellant informed him that he had used methamphetamine and that the drugs were supplied by Martin Strugala. Officer Carpenter also testified that appellant told that him that he knew Mr. Strugala was manufacturing methamphetamine in his shed. After Officer Carpenter had been excused, appellant’s attorney raised an objection based on the State’s alleged failure to comply with the rules for discovery. This objection, which was not made at the first opportunity, was untimely. Accordingly, we conclude that appellant has waived a challenge to the admission of this evidence on appeal.
Appellant’s next two allegations of error are intertwined. First, appellant argues that the record was not properly completed and that the trial court failed to comply with our order on remand because there is no record of the hearing held on his motion to suppress. Next, appellant argues that the trial court erred when it denied his motion to suppress, and that because the record does not contain a transcript from the hearing on his motion, we cannot conduct our de novo review of this issue.
On August 8, 2001, appellant filed a partial record and a motion seeking a rule on the clerk. In his motion, appellant explained that Nila Keels was not a certified court reporter at the time of his trial and requested that we accept a record for his appeal that did not contain a transcription of the testimony that occurred at trial. George v. State, 346 Ark. 22, 53 S.W.3d 526 (2001). We denied appellant’s motio'n and remanded the matter back to the trial court with instructions that it “take whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter.” Id.
Upon remand, the trial court entered an order finding the there were “no substantive defects in the transcript as prepared by Nila Keels.” George v. State, 351 Ark. 209, 209 S.W.3d 931 (2002). It further found that “the transcript is sufficiently accurate for use and consideration by the Arkansas Supreme Court for all appellate purposes.” Id. Thereafter, appellant’s attorney filed a renewed motion for a rule on the clerk. In the per curiam in which we considered appellant’s motion, we explained the procedure whereby we will accept a record that was not transcribed by a certified court reporter. Citing Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam), we wrote “our Supreme Court Clerk would only be directed to accept a record prepared by an uncertified court reporter upon certification by the attorneys of record by means of affidavits that the transcript was true, accurate, and complete.” George v. State, 351 Ark. 209, 209 S.W.3d 931 (2002). By contrast, in this case now under consideration, we were provided a certification from the prosecuting attorney and a finding of accuracy by the trial court. However, appellant’s attorney refused to certify as to the accuracy of the record. We concluded that the trial court’s findings and the prosecuting attorney’s affidavit certifying the transcript to be a fair and accurate record of appellant’s trial sufficiently satisfied the Mitchell requirements to allow our clerk to accept the record for filing. George v. State, 351 Ark. 209, 209 S.W.3d 931 (2002).
Although we accepted the record for filing with our clerk on the basis of the certification by the prosecuting attorney and the finding of sufficiency by the trial court, we agree with appellant that the record now before us is flawed. Specifically, we are unable to conduct a de novo review of the disposition of appellant’s motion to suppress because there is no transcript of the hearing that was held on the motion.
Administrative Order No. 4 provides “unless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.” See also Ark. Code Ann. § 16-13-510; Ark. R. Crim. P. 20.3(e); Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003); Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996).
In the case now before us, appellant, relying upon Rule 16.2 of the Arkansas Rules of Criminal Procedure filed a pro se motion seeking to suppress “all evidence illegally obtained.” A review of the docket sheet reveals that a hearing on appellant’s motion was held “in chambers” and that the motion was “denied.” However, a verbatim account of the hearing is not included in the record. In his brief, appellant notes:
Counsel for defendant has a definite memory of the hearing which was supposed to be on the record. The prosecutor... stated... that he had no memory of whether the hearing was on or off the record, but noted that it would be unusual for his office to allow a suppression hearing off-the-record. Ms. Keels [the court reporter] could find no record she made of the hearing.
On appeal, appellant argues that the trial court erred when it denied his motion to suppress. The record on this issue is unclear. If the hearing was held, but was not recorded verbatim, the trial court ignored Administrative Order No. 4. If the hearing was held and properly recorded, but omitted from the record filed with our clerk, the trial court disregarded our previous order to take whatever actions are necessary to secure. . . a full and complete record for appeal in this matter.” Under either scenario, we find that the trial court erred.
To resolve this error, we will employ the limited-remand procedure, which we have used in other cases. See Rankin, supra (remanded for a new suppression hearing on voluntariness of statement because the record did not contain an account of any such hearing); Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996) (remanded for a new suppression hearing on voluntariness of statement because material police witness not present at first hearing); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (remanded for a Denno hearing); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980) (remanded for an explicit determination by the trial court on voluntariness of confession); Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977) (remanded for hearing to determine whether defendant struck a deal with the prosecutor to give a statement in return for immunity). We direct the trial court on remand to hold a hearing on the record with a certified court reporter for the limited purpose of developing the evidence, arguments, and allegations relating to a full consideration of appellant’s pretrial suppression motion.
After conducting the hearing, if the trial court determines that the evidence was illegally obtained, the trial court should suppress the evidence and order a new trial. If the trial court determines that the evidence was not illegally obtained, a new trial will not be required. Rankin, supra. Because we are remanding this matter for a new hearing on appellant’s motion to suppress, and because a denial of appellant’s motion in this hearing will be appealable, we need not reach the issue relating to the trial court’s denial of appellant’s motion to suppress in this appeal.
Remanded.
Although not fully developed in his pretrial motion, appellant argued at trial that the evidence should have been excluded because Deputy Mark Davis lacked reasonable suspicion to stop at his home and that this unlawful stop and search led to his arrest and the issuance of a warrant for a further search of his property.
Because we have no record of the suppression hearing, we do not know what evidence or arguments were presented in support of appellant’s motion. | [
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Per Curiam.
Appellant Daniel Nobice Peters, by and through his attorney, has filed a motion for rule on clerk. His attorney, Phillip A. McGough, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Battle, J.
(after stating the facts.) Appellees granted b> appellant a “right of way, of the width of six rods, for the purpose of locating, constructing and maintaining a railroad over, across, through or upon any land owned by them, situate or being' in the counties of Garland and Hot Spring, or either, and covenanted that it should quietly and peaceably enjoy the possession of the same. No other right of way or property was protected by this covenant.
Appellant did not allege in its complaint that it located or constructed its railroad “over, across, through or upon” any land owned by the appellees, but that it located and constructed it in and upon Benton street, in the city of Hot Springs, between the lots owned by the appellees and abutting on said street. There is no allegation that the appellees owned Benton street, or any interest therein, which they could grant as a right of way, or that appellant held, claimed or appropriated any part of the lots-abutting thereon for right of way.
On the ioth óf October, 1882, appellees brought an action for the recovery of damages for the injury which they alleged “had accrued to their lots and to their easement in Benton street, * * * and for injury and impairment of their right of access from said lots to and from said street by reason of the location, construction and maintenance of said railroad * * * in and upon said street in alleged violation of their rights and easements in said street as-adjacent landowners.” If this be true, they did not thereby disturb the quiet enjoyment by appellant of any right of way granted to it by appellees over their lands or protected by their covenants, but recovered damages for the injury to their lots caused in the manner stated in appellant’s complaint. These damages, or the rights or property out of the injury to which they arose, were not incident to, or any part of, the right of way granted by appellees; the railroad having been constructed in a street of the city Of Hot Springs. They had not waived such damages, and, under the constitution of this state, were entitled to recover them. Hot Springs R. Co. v. Williamson, 45 Ark. 429.
In the second paragraph of its complaint appellant fails to show a cause of action. Appellees covenanted that it should have quiet and peaceable possession of the right of way granted by them. No paragraph in the complaint shows a breach of this covenant.
Judgment affirmed. | [
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Riddick, J.
The defendant, J. H. Bryant, was at the September term of the Greene circuit court for 1902 indicted for selling liquor without license. The indictment, which was numbered 35, charged that the offense was committed on the 17th day of June, 1902. At the same term of court another indictment was returned against him, in which he was charged with having sold liquor without license on the 20th day of July, 1902, and this indictment was numbered 36.
The only witness for the prosecution in each of these cases was William Kendall. Bryant was tried on indictment No. 35, in which he was charged with selling on the 17th day of June, and was convicted on the testimony of the prosecuting witness, William Kendall. When the trial for the second indictment came on, the defendant entered pleas of former conviction and of not guilty. To sustain his plea of former conviction, he took the stand as a witness, and testified that he never had any other transaction with William Kendall than the one investigated in the first trial, and that the offenses charged in the two indictments were the same. He also introduced a copy of the evidence given by William Kendall on the former trial, which showed that the testimony in that case was not limited to an offense committed at any particular time, but covered all transactions of the kind between the witness and the defendant occurring within one year before the indictment.
In a similar case Chief Justice Cockrill said that “the state may preclude the possibility of more than one conviction, even where there have been many sales, by taking a wide range in the proof, putting all the guilty sales in evidence, and relying upon the whole proof for a single conviction. In that case the defendant can be convicted upon the proof of any one of the sales made within a year of the finding of the indictment, and it is the established rule that the former conviction is a bar to a subsequent indictment for any offense of which the defendant might have been convicted upon the testimony under the indictment in the first case. State v. Blahut, 48 Ark. 34.
Now, in this case the evidence shows that the state relied in each case for conviction upon proof of a sale which it was charged that the defendant had made to William Kendall. But on the first trial the testimony of this witness was not limited to sales in June, but he was asked to state and testified generally about sales of liquor made by Bryant to him within one year before the finding of the indictment, which would, include sales made in July as well as in June. There is nothing to show that on the trial of indictment 35 the jury were .directed not to consider the sales made in July, but, on the contrary, the evidence tends to show that all of this testimony went before the jury as evidence upon which the defendant might be convicted. This case then comes within the rule laid down in State v. Blahut. The evidence of the defendant made out a prima facie case in favor of his plea of former conviction; and as there was no contradictory evidence introduced on the part of the state, we are of the opinion that the court erred in overruling his plea. 9 Enc. Plead. & Prac. 637.
Judgment reversed, and case remanded for a new trial. | [
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Riddick, J.
(after stating the facts). This is a suit in equity to reform a note for $200 and a mortgage given to secure the same, so as to raise the amount to be paid from $200 to $250, and to foreclose the mortgage and recover judgment for balance due against defendant.
The plaintiff testified that he loaned the defendant $250 at 10 per cent, interest, but that, through the mistake of the agent who drew the note and mortgage, the amount of the debt was stated as $200 only. His testimony is supported to some extent by the figures 250 with dollar mark preceding them, which appear on the upper left hand corner of the note, and by the further fact that it is admitted that for several years the defendant paid the annual sum of $25 as interest on the'note.
On the other hand, the defendant testified that he only borrowed $200, and intended to give his note for that amount only. He is supported by the fact that the amount of the debt, as written in both note and mortgage, is $200, and it seems a little improbable that a mistake of that kind would have been made in both instruments when drawn by one who knew all the facts.
In addition to this testimony by the plaintiff and defendant, the agent who loaned the money and who drew the note and mortgage testified that the amount named in the note was the result of a mistake, as he intended to make it $250. He testified further on this point as follows: “I remember distinctly that Denny got $250, less perhaps $25 interest in advance for the first year after date of note. The note drew interest at the rate of 10 per cent, per annum from date, but it was Barber’s custom at that time to take out one year’s interest at the time the note was made, but sometimes he would require two years’ interest in advance, and may have done so in this instance. I do not recollect distinctly how much interest was charged in advance.”
Taking the whole of the testimony of this witness together, it is evident that he does not remember that Denny received over $200 from Barber. It is. true, he says that he remembers that $250 was loaned at 10 per cent., but he says that $25 or $50 may have been deducted for advance interest, thus leaving only $200 to Denny. If that is true, then there may have been some misunderstanding between the parties as to the amount of the note. If Denny received only $200, he may not have intended to execute his note for a greater sum than he received. Before a written instrument is reformed so as to increase the liabilities of the defendant in that way it should appear that the mistake in the amount of the note was common to both parties, and that the contract as written expresses the agreement as understood by neither. The evidence of the mistake must be clear and convincing. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52.
There is room for a difference of opinion about the facts of this case, but, after considering it, we are of the opinion that the evidence of a mistake is not shown with sufficient clearness to justify a reformation of a written instrument.
It has been argued with'much force that the payment of $25 as annual interest on the note at 10 per cent, shows that the parties at that time thought 'he principal of the note was $250, instead of $200, and this is one of the strongest circumstances in favor of the contention of plaintiff. But defendant states that, at the time he made these payments, he had not seen the note in over a year, and made the payments relying on the statements of the agent that it was the correct amount. While this explanation may not be quite convincing, still it is often the case that men forget the amount of such debts. As he took a receipt for the amount, it was not very important to pay the exact amount of interest, for the principal of the note was at that time overdue, and upon a settlement any excess of interest would go on the principal. Besides, it should require very strong evidence to show that a draughtsman who had acted as agent for the loan of money made the same mistake in stating the amount of the loan both in note and mortgage when the correction is asked to be made twelve years after they were executed. Plaintiff had them in his possession all that time, and should have discovered the mistake sooner. As he did not do so, the contract should stand as written, in the absence of any convincing evidence of a mistake.
On the whole case, we are of the opinion that the evidence of a mistake is not sufficiently clear, and we feel that it is safer to stand by the contract as written. The judgment is therefore reversed, and the cause remanded, with directions to dispose of the case on the basis of a loan of $200 only. | [
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Bunn, C. J.
The appellee, R. L. Johnson, being indebted to his co-appellee, the Riverside Lumber Company, in the sum of $470, evidenced by his promissory note of that date, bearing interest at the rate of 10 per centum per annum, to secure the payment of the same, executed and delivered to it his mortgage on his residence, of even date with said note, and as alleged agreed to keep said premises insured for the benefit of said Riverside Lumber Company accordingly as its interests might appear, but, failing for some reason to take out insurance at the time, the lumber company did so for its own protection. This insurance expired on the 16th day of April, 1899, and thereupon the lumber company requested Johnson to take out insurance on the mortgaged property for its protection as he had'in the beginning agreed to do. Insurance was accordingly effected by Johnson in the month of August, 1899, but he failed to have the lumber company named as a beneficiary therein, according to the agreement. This is the insurance policy involved in this litigation. The amount of insurance named in the policy is $500, $100 of which is on the household goods, and $400 on the dwelling house. The house and household goods were totally destroyed by fire in the afternoon of the 31st of January, 1900, and on the 19th of February, 1900, the Riverside Lumber Company instituted this suit in the Woodruff chancery court.
The complaint contained a petition for restraining order, restraining the said Johnson from collecting and the said insurance company from paying over to him the insurance on said property, and the same was granted, and a restraining order issued. Prayer 'of the bill was for judgment against Johnson on his note, and direction to pay the insurance direct to said lumber company as its interest might appear, and for other relief. The defendants, Johnson and the Teutonia Insurance Company, answered; the insurance company on the 16th day of April, 1900, and Johnson on the 9th day of April, 1900, the latter asking damages for the issuance of the restraining order in the sum of $100, and praying that the cross bill of the insurance company be dismissed for want of equity, and for judgment against the insurance company for the amount of the policy.
The cross, complaint of the insurance company sets up, among other things, that defendant Johnson failed to notify it of the time and circumstances of the fire in writing, as required by the conditions of the policy; that he, in his alleged proof of loss on the building made out on the 5th of April, 1900, falsely swore that the fire occurred on the 7th of February, 1900, when, in fact, it occurred on the 31st of January, 1900, as he well knew; that, had said false statement as to the date of the fire been true, his said proof of loss would have been made out and presented in time, but, being false, and the true date being the 31st January, 1900, as before stated, his said proof was not made out within the sixty days after the fire, as provided on the policy, and that such false swearing and delay in making the proof of loss, as well as failure to give notice of the occurrence of the fire in writing, with inventory, constituted breaches of the conditions of the policy, such as defeat the right of recovery thereon.
The answer of Johnson to the cross complaint of the insurance company admits the incorrectness of the date as named in his proof of loss, and that it should have been the 31st January, 1900, as claimed by the insurance company, but says that the error was a mistake on his part, and that it was not intentionally committed, and that it was immaterial in this, that he filed his proof of loss within the sixty days of the true date of the fire, to-wit: on the 13th day of March, 1900; and further he says that he was not required by the conditions of the policy to give notice of the occurrence of the fire in writing, and that he gave all the notice required of him.
The evidence shows that a friend of Johnson’s, at his instance, sent a postal card signed by himself to the local agent of the insurance company on which was stated that Johnson’s house had burned up on the 31st January, or words to that effect, and this was sent by the local agent to the general agent at Tittle Rock; that Johnson sent an inventory of the personal property alleged to have been destroyed to the 'general agent at Little Rock, who, observing that the same was not in compliance with the conditions of the policy, sent him a blank form or forms upon which to make out his proof, expressly stating that he could do so if he desired. Johnson delayed making out his proof of loss until the 5th of April following, and then made out the same as to the house and on a separate sheet as to the personal property.
The conditions of the policy touching the questions involved are as follows, to-wit:
If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, * * * and within sixty days after the fire, unless such time is extended in writing by this company; shall render a statement to this, company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies; all changes in the title, use, occupation, location and possession or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire.” Also the following: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” It is also provided that false swearing as to any of the matters involved will defeat recovery.
Upon the findings and evidence the chancellor found in general ap-ainst the contentions of the insurance company, and rendered judgment against it, directing the payment of $200 to the Riverside Lumber Company and $300 to Johnson of the insurance, and dismissed the cross bill of the insurance company.
The proof of loss, granting that the same was sufficient, was not made within the sixty days. This delinquency constitutes a bar to the action, and a breach of the conditions of the policy. The fire occurred on the 31st of January, 1900, and this suit was instituted on the 19th day of February, 1900. The courts cannot make contracts between parties, nor can the courts at all times determine what is material and what is not. These things are left to the parties to determine for themselves, as a general rule. We cannot also see the particular reason the parties have in mind when making their contracts. We construe the meaning of these contracts, when construction becomes necessary; but when undisputed conditions are made, we are bound by them as are the parties to such contracts. It appears to us that there was one or more plain breaches of the conditions of the policy, and that these breaches by the insured prevents his recovery thereon.
Reversed, and decree entered here for the appellant. | [
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Battue, J.
Charlie Jones was indicted for stealing cotton, and was convicted. He moved for a new trial because the verdict of the jury was contrary to the law and the evidence, and because he had, since his trial, discovered evidence which impeaches the credibility of the principal witness that testified against him. The court overruled his motion, and he appealed.
The evidence was sufficient to sustain the verdict in this court.
It has often been held by this court that, as a general rule, “newly discovered evidence that goes only to impeach the credit of a witness is no ground for a new trial.” Wallace v. State, 28 Ark. 531; Minkwitz v. Steen, 36 Ark. 260; Campbell v. State, 38 Ark. 498; Walker v. State, 39 Ark. 221; Redman v. State, 40 Ark. 445; Foster v. State, 45 Ark. 328; Holt v. State, 47 Ark. 196; Hudspeth v. State, 55 Ark. 324. The newly discovered evidence in the case at bar is no exception to the general rule.
Judgment affirmed.
Bunn, C. J., and Hughes, J., absent. | [
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Riddick, J.
(after stating the facts). This is an action for libel, brought by John Patton against C. E. Cruce to recover damages on account of certain publications made by defendant, and which the plaintiff alleges were libelous. The defense set up by defendant against this action of the plaintiff was that the publications complained of were made in response to publications against him made by defendant, that the publications by plaintiff were made necessary by the attacks of the defendant, and went no further than was required in order to make a full and fair reply to those publications.
The presiding judge, in his charge to the jury, gave a very satisfactory and clear statement of the law of the case to the jury, with the exception of one instruction, which he gave at request of defendant. That instruction was as follows: “If the plaintiff and defendant voluntarily engaged in a newspaper controversy, and lavished slanderous imputations upon each other, and both were equally at fault, neither of them can claim damage from the other, and your verdict should be for the defendant.” The evidence shows that these parties did engage in a newspaper controversy, and, taking all the evidence in reference to that controversy that we have before us, we do not see that the defendant was more culpable than plaintiff himself. If the law was as stated in the above instruction, it would therefore be our duty, as well as our pleasure, to affirm the judgment;, for, if one libel could be set off against another, we do not think that plaintiff would be entitled to anything in this action. But one libel cannot be set off against another independent libel. Yet, under the instruction quoted, the jury may have found that each of these parties were guilty of separate and independent libels against each other, and that, being equally to blame, neither could maintain an action therefor against the other. We are therefore of the opinion that this instruction was incorrect and misleading. Brewer v. Chase, 121 Mich. 526, s. c. 46 L. R. A. 397.
If one’s good name and character is assailed in a newspaper, he may, of course, reply, and defend himself, and if his reply is made in good faith, without malice, and is not unnecesarily defamatory of his assailant, the reply will be privileged. 18 Am. & Eng. Enc. Law, 1033.
And even if, in the heat of passion, he should go beyond what a full and fair reply required, and published a separate and independent libel against his opponent, the jury, in estimating the damages, may take into consideration the previous libel committed against him and the provocation under which he labored, and, if they find that plaintiff himself was greatly to blame, the}'- may if they deem proper, allow him only nominal damages. In other words, in determining the amount of damages to which the plaintiff is entitled for a libel, it is proper to take into consideration the circumstances under which the libel was committed, and whether plaintiff was himself to blame for the controversy. Kelly v. Sherlock, L. R. 1 Queen’s Bench Cases, 686.
The plaintiff had, as before stated, six counts in his complaint, and he asked the court to instruct the jury that each of the counts except the sixth “describes and sets up a libel, and is libelous per se, and that the verdict should be for the plaintiff.” Now, the words set out in some of the counts, we think, were libelous per se. For instance, the second count alleges that by the language therein set out the defendant intended and did accuse plaintiff of being a secret slanderer and scandal monger, with betraying his friends, and telling lodge secrets. This, if proved, was clearly libelous per se. But the instruction requested stated that each of the counts except the sixth sets up language that was libelous per se, and in this form we think was properly refused, for, while this may be true of some of the counts, it is not, we think, true of all.
' Again, most of these publications of which plaintiff complains seem to have been directly called forth by publications on his part in which he attempted to ridicule and make sport of the defendant. Some of these replies made by defendant were, it seems to us, very mild retorts when the provocation under which they were made is considered. Plaintiff must have known that his shots at the defendant would provoke a return fire. In fact, he stated on the stand that some of these articles were written for that purpose. “I meant,” he said, “for Cruce to come back at me.” This being so, we do not see that he has much right to complain because Cruce did come back at him. Plonors in that respect were so nearly even between them that we see very little reason why either should recover damages from the other. While, therefore, we feel considerable doubt as to whether the plaintiff is entitled, under the proof, to any substantial damages, yet for the error referred to the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Riddick, J.
(after stating the facts.) This is an action brought by the attorney general against Thomas Cox and four other defendants, who were appointed by the governor to serve as members of the board of state capital commissioners created by act of the last legislature. The act in question provided that the members should be elected by the two houses of the legislature in joint session. Acts of 1903, p. 249. In pursuance of this provision of the act, commissioners were duly elected by the legislature. But the governor, acting on the theory that the legislature had no power to make such selection, and that the power to appoint the members of the board was vested in him, appointed the five defendants to serve in that capacity, and this action was brought to test the validity of the appointments made by the governor. All parties wish to have the matter determined, and no objection is made to the form of the action or to the proceeding adopted, and we will proceed to consider the questions presented.
Pirst, as to the power of the legislature to make appointments to office: In the United States the general power to appoint officers is not inherent in the executive or in any other branch of the government. It is a prerogative of the people, to be exercised by them or that department of the state to which it has been confided by the constitution. The legislature has, we think, power to make appointments to office unless its powers in that respect are restricted by the constitution, either expressly or by implication. Hovey v. State, 119 Ind. 386, 21 N. E. 890; People v. Hurlbut, 24 Mich. 64, 9 Am. Rep. 103; State v. George, 22 Oregon 142, 29 Pac. 356, 29 Am. St. Rep. 586; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122, and extended and full discussion found in note; Cooley, Const. Lim. (6th Ed.) 104-133; 23 Am. & Eng. Enc. Law (2d Ed.) 340.
Now, an examination of our constitution will show that it not only contains no general or express prohibition against the exercise of the appointing power by the legislature, but it affirmatively shows that it was the intention of the framers of the constitution to permit the legislature to exercise such power to a limited extent. This is shown by the provision to the effect that if in an election for governor, secretar}'- of state, treasurer, auditor or attorney general, two or more candidates for either of said offices shall receive an equal number of votes, then one of those persons receiving the highest votes “shall be chosen by the joint vote of both houses of the General Assembly.” Art. 6, § 3, Const. 1874. It is shown also by the section which declares that “whenever an officer, civil or military, shall be appointed by the joint or concurrent vote of both houses, or by the separate vote of either house of the General Assembly, the vote shall be taken viva voce, and entered on the journals.” Art. 5, § 14. The contention that this section refers only to the officers of the General Assembly, such as clerks, pages and others necessary to discharge of the duties of that body, does not seem to be borne out by the language used. Why should it speak of the appointment of officers, “civil or military,” if that was the meaning? We do not recall any military officer attached to the legislature, or to either of its branches, and we think that the language used is too broad to justify the construction contended for. It is, of course, not usual to have vacancies in office filled by appointment made by the General Assembly, and under our constitution there are many offices which could not be filled in that way. But, though not the usual method, the language of the constitution above quoted shows that the framers of that instrument intended that it might be done in some cases not otherwise provided for, and this is not the only instance in which such power has been exercised by the legislature. It is well known that the last legislature made provision for digesting the statutes of the state, and appointed both a digester and an examiner to do the work required. The act by which these appointments were made by the legislature was approved by the governor, who thus inferentially approved the contention that the legislature has in some cases power to make appointments, and that a statute which attempts to confer this power is not necessarily unconstitutional and void on that account. Acts of 1903, p. 414. We are, then, of the opinion from the language of the constitution itself that the legislature may to some extent, in cases not otherwise provided for, exercise the appointing power. It is also plain, we think, that the governor has no inherent power, by virtue of his position as chief executive of the state, to make these appointments. If he has such power, it must be because the constitution has conferred it upon him, and thus, inferentially at least, forbidden the legislature to make them.
The next question, then, is whether the power to appoint commissioners to serve on a board such as the one created by this act has been conferred upon the governor by the constitution in such a way as to prohibit the legislature from making the appointments. There are only two sections of the constitution quoted by counsel for appellants as conferring this power upon the governor. One of these is as follows: “When any office, from any cause, may become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have the power to fill the same by granting a commission, which shall expire when the person elected to fill said office at the next general election shall be duly qualified.” Art. 6, § 23. The other section quoted is one of the amendments to the constitution, and is in the following language, towit: “The governor shall, in case a vacancy occurs in any state, district, county or township office in the state, either by death, resignation or otherwise, fill the same by appointment, to be in force until the next general election.” Both of these provisions, by their terms, plainly refer to elective offices — to those state, county, township and other offices the incumbents of which are selected by election at regular intervals. This is shown by the fact that each of those sections limits the term of the appointee of the governor appointed under them to the time when the person elected to the office at the next general election Shall qualify and assume the duties of the office, thus making it plain that they refer to elective offices. Neither o'f these sections, we think, has reference to commissioners such as the members of the state capítol board; a board created for a special purpose, the members of which are not elective, and'whose terms and offices will both expire with the completion of the work for which the board was created. If no mode for the selection of this board had been provided, it may be that the governor would have had the, power to make the appointments, but we need not concern ourselves with that matter here, for in this case the statute expressly points out the method by which these commissions shall be selected.
We do not think it necessary to undertake to define very precisely what is meant by the term “public officer/’ as counsel has invited us to do, for, whether the members of this board can be said to be public officers or not, it is 'certain that, though the duties devolving upon them are of great importance, the positions they hold are of such a peculiar and limited kind that they do not come within the provisions in reference to the regular officers of. the state found in the constitution. As we see it, there is nothing in the constitution which forbids that the members of such a board shall -be selected by the legislature. The method of selecting the members of such boards Is a matter to be determined by the legislature, which can leave it to the governor to-make the appointments, or can, if deemed safe, make them itself.
We are, therefore, of the opinion that the legislature had the. right to provide for the selection of the state capital board in the way pointed out by this act, and that the appointment by the governor of these defendants to serve as members of that board was without any authority in law to support it, and conferred no power whatever upon them to act as such board.
The judgment of the circuit court was, in our opinion, right, and it is therefore affirmed. | [
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Riddick, J.
(after stating the facts). This is an action by a firm of contractors against Lawrence county to recover the sum of $300, which they claim is the balance due them by the county for building a courthouse. There is no dispute about the facts. The county admits that it agreed to pay plaintiffs a stipulated sum for completing the courthouse, that the courthouse was completed before the action commenced, and that it has not paid the $300 claimed. But the county contends that, as the work was not completed within the time specified in the contract, the plaintiffs, by virtue of the terms of the contract, became liable to damages at the rate of $10 a day for each day they were in default; and that these damages equal! or exceed the amount claimed by the plaintiffs. On the other hand, the plaintiffs contend that the county waived the right to claim such damages: (1) By making a payment on the work after .the day specified for its completion, and after it was known that the contract had not been complied with in that respect. (2) By permitting the circuit clerk to take possession of a room in the building for his office when the building was not completed, and had not been accepted. (3) By directing and permitting the building to be used and occupied by the circuit court before it had been accepted by the county commissioners.
The circuit court sustained the first and third grounds of plaintiffs’ contention, but after considering the matter we are of the opinion that neither of these contentions should be sustained. As a general rule, a waiver, to be binding, must either operate by way of estoppel, or be supported by a valuable consideration. 28 Am. & Eng. Enc. Law (xst Ed), 531. Now, making a part payment of the amount due the contractors after the time specified for the completion of the building, although the building was still incomplete, was not inconsistent with the claim for damages on account of delay in completing the building, for the county still retained enough of the consideration to cover the damages claimed by it on that account. The fact that the building was not completed within the time required did not justify the county in refusing to make any further payments, for by the terms of the contract payment for the work was to be made as it progressed, and the entire consideration was not forfeited by the failure to complete within the time specified. The amount of damages that the county could recover in such event was fixed by the contract, and the county would not have been justified in withholding a much larger amount than was sufficient to cover the damages arising from such default. The county is not asking judgment against plaintiffs for a return of the money it paid them, and we can therefore see nothing in such a payment that could have misled the plaintiffs in any way.
Nor is the fact that the county authorized the clerk to use an office in the building and allowed the circuit court to use the building before it was accepted inconsistent with the claim for damages set up by the county in this case. This possession bv the clerk and the use of the building by the court was with the consent of the contractors. It was directly to their advantage, for it prevented a further accumulation of damages. The county is not asking for damages for delay in completing the building after the clerk took possession, or after the building was used as a courthouse, but for the damages that under the contract had already accrued at the time this partial possession of the building was taken, and we are not able to see anything in such possession that is inconsistent with such claim.
As the report of the commissioners shows that the contractors had performed their work well, and that the delay was more or less unavoidable, we should on this account be-glad to sustain the judgment of the circuit court, but we have no power to set aside a valid contract in that way. It may be a hardship for the contractors to have to pay damages for the failure to complete the building by the time specified in the contract when the delay was caused by a failure of the railroad to deliver material they had ordered, but they took that risk when they made the contract. It is not shown that the county or its officers misled or hindered the contractors, or was in any way responsible for the delay, and it has the right to insist on the enforcement of'the contract as made.
Deducting the damages as provided in the contract for the admitted delay, it seems to us that the county owed the contractors nothing, and that the jury should, under the facts in evidence, have been directed to find for the defendant. The judgment is therefore reversed, and the cause remanded for a new trial. | [
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Riddick, J.
(after stating the facts). This action was brought in the circuit court to recover 160 acres of land which the defendant had conveyed to the plaintiff. The action was resisted on the ground that the deed was obtained by duress, and on that account the court was asked to cancel the deed, and the case was transferred to the chancery court to determine' the issues involved.
It is a well-settled rule that one who would avoid his deed on account of duress must bring his action within a reasonable time, and if the only alternative here was to take the view contended for by plaintiff and uphold the deed, or that contended for by defendant and declare it void in toto, we are not sure that the finding would not have to be against the defendant, on the ground that he delayed too long before commencing proceedings to set it aside. But there are two facts established by the evidence in this case very plainly. One is that at the time Hobbs conveyed this land to Ida D. Ward he was indebted to her husband for a considerable sum on the two land notes and for goods and supplies furnished him. The other is that this deed was executed in settlement or as a security for that indebtedness. There seems from the evidence never to have been any dispute between Hobbs and Ward as to the amount of this indebtedness. The difference, if any existed between them, was on the question of whether Hobbs should make an absolute deed in satisfaction of this debt or only give security for it. Hobbs’ own testimony shows that. The deed was executed at the residence of John Ward, the husband of, plaintiff, after he had failed in business, Dr. Ward, his father, being present at the time, and Hobbs testified on this point as follows, towit:
“Dr. Ward asked me to give them something to secure the money. I told them that I was willing to give security for the money, but they wanted a deed to Mrs. Ward. Dr. Ward said that John’s creditors were about to take everything he had away from him, and they wanted me to make a deed to Mrs. Ward for this land. I declined to do that. When I told John Ward that, he commenced to walk backward and forward on the gallery, and said, ‘By God, you’ve got to give it up; you have it to do. I will kill- you if you don’t do it,’ and then I did it, and went down to the store and acknowledged the deed.”
There was other testimony tending very strongly to show duress, but the whole testimony shows that the duress was exercised to force Hobbs to execute an absolute deed, instead of a mortgage. Hobbs’ testimony, above quoted, shows that Ward wanted security for his debt, but, as his creditors were pressing him, he wanted it in the form of an absolute deed to his wife, so as to shield it as much as possible from his creditors, whereas Hobbs only wanted to give security for the debt in the ordinary form. Not only this testimony of Hobbs, but the fact that he was allowed to remain on the premises for several years after the deed was executed without, so far as the proof shows, paying any rent, lends color to the belief that this deed was really intended as a security. Now, the court on the hearing below seems by its decree to have treated the deed as a mortgage, but in determining the amount due from Hobbs it gave, we think, too great weight to his testimony, and thus found that the debt he owed Ward had been discharged, when it seems to us that he still owed some $600 or $700. Hobbs admitted that he had not paid the two $300 notes, but stated that Holloman, the owner of the notes, had at one time offered to let him have the two notes for a cash payment of $500; that he made arrangements to secure the money with which to take up his notes, but found out that Ward had purchased the notes, and he refused to settle at that price. Now, there is nothing in that evidence to reduce the amount of the debt, but the court on this evidence directed the master to charge Hobbs with only $500 on account of the two notes, when, according to his own testimony, he had never paid any portion of those two notes. The owner of the notes had the right to sell them, and Ward had a right to purchase them. The mere fact that the owner- had previously offered to sell them to Hobbs for less than their face value did not show anything constituting a payment on the notes, or estop Ward from claiming the face value thereof.
Then, again, Hobbs did not set up this claim of duress until after the death of Ward, the party to whom the debt was due, and who would naturally be supposed to know as much or more about this debt than any one else. If any relief is granted Hobbs at this late day, justice requires that it should be done on the assumption that the amount named in his deed is the correct amount of the indebtedness due from him to Ward at the time the deed was executed. It would be very unfair and unjust to plaintiff to permit Hobbs to contradict that statement of the consideration after this lapse of time, and the death of plaintiff’s only witness familiar with the dealings between Ward and Hobbs.
Plaintiff testified that she paid the amount named in the deed to Hobbs in money, but the weight of evidence is decidedly against this theory, and the chancellor was justified in rejecting it. On the other hand, Hobbs testified that nothing was paid. We take it that he meant by this that no money was .paid, for his own evidence, as well as the other testimony, shows that there was a consideration for the deed. That consideration was the debt which Hobbs owed Ward. The amount named in the deed was the amount of that debt, as understood by the parties at the time the deed was executed, and we feel convinced that it was a correct statement of the sum due from Hobbs at that time, and that substantial justice can be done by taking it as the basis of a settlement between the parties and of the decree in this case.
The finding of the court that there was evidence of duress sufficient to justify the court in treating this deed as ,a mortgage will be sustained, but, following the rule that he who asks equity should do equity, the relief against the deed should be granted on condition that he pay his debt.
The clerk of this court is therefore ordered to state an account between the parties by charging Hobbs with the amount named in the deed with interest from that date, giving him credit with value of the timber and rent as found by the lower court.. The clerk will make the computation, and ascertain in this way the balance' still due from Hobbs, and the judgment will be reversed, and the cause remanded, with directions that the court below render a decree for that amount against Hobbs, and that the same be declared a lien on the land, and that, .unless paid, the land be sold to pay the same. | [
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Battre, J.
The defendant, the Arkansas Central Railroad Company, a railroad corporation, was indicted by a grand jury of the circuit court of Sebastian county for the Greenwood District for a misdemeanor, committed by the defendant failing in the month of November, 1899, to erect and maintain a board at the place where its railroad crosses a public road in said county, “known as road district No. 8,” as required by section 6197 of Sandels & Hill’s Digest, which section is as follows: “Every railroad corporation in this state shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained across each public road or street where the same is crossed by the railroad on the same level. Said boards shall be elevated so as not to obstruct travel, and to be easily seen by travelers; and on each side of said board shall be painted, in capital letters of at least thd size of nine inches each, the words 'Railroad Crossing— Look out for the cars while the bell rings or the whistle sounds’; but this shall not apply to streets in cities or villages, unless the corporation be required to put up such boards by the officer having charge of such streets.”
The defendant pleaded not guilty. A jury was impaneled to try the issues. It was proved that the defendant failed to erect and maintain a board as charged, and that the railroad and property of the defendant were in the hands of a receiver at the time of such failure. The defendant was found guilty, and appealed.
Appellant contends that, its railroad and property being in the hands of a receiver, it was relieved of the duty imposed by section 6197 of the Digest. But this is not true. Notwithstanding the appointment of a receiver, it still existed as a corporation, clothed with its franchises. It could have exercised such franchises, and discharged the duties imposed upon it by statute, as before the appointment, so far as it could have done so without interfering with the rightful management of its road and property by the receiver; and it was its duty to do so. In this case it was not relieved of the duty to erect and maintain boards as required by the statute because a superior duty or force prevented a compliance. It could have done so without interfering with the receiver in the rightful discharge of his duties. Ohio & Mississippi Railway Co. v. Russell, 115 Ill. 52, 57; Kansas Pacific Railway Co. v. Wood, 24 Kan. 619; High on Receivers (3rd Ed.), § 3971 Beach on Receivers, § 727- This is unlike the duty of a railroad company to ring a bell or whistle when. its trains approach a public crossing. In .such cases the railroad company could not do so, if its railroads and trains are in the hands of a receiver, without interfering with the rightful possession and discharge of the duties of the receiver. The omission in the latter case is not the default of the railroad company.
Judgment affirmed.
Bunn, C. J., dissents. | [
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Battue, J.
Gib Ford sold the shingles in controversy to G. H. Van Etten Company. At the time of the sale John Bard held a laborer’s lien on the shingles for $126.95, the amount Ford owed him for work and labor performed in their production. This fact seems to be conceded. But it is contended that the Van Etten Company purchased without notice of the lien, and therefore is not affected by it. This is not true. Bard did not lose his lien by the sale. Van Etten Company paid the entire purchase money by crediting Ford with the same on his previous indebtedness to it. It was not a bona fide purchaser, and did not acquire the shingles free from the lien. Pape v. Steward, 69 Ark. 306, 310; Jetton v. Tobey, 62 Ark. 84.
Reverse and remand, with instructions to the court to render a judgment in accordance with' this opinion. | [
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Riddick, J.
(after stating the facts.) In this case the attorney general has confessed that there was error in the instructions given by the court, and, after considering the same, we concur in that opinion, and sustain the confession of error. The second instruction given by the court of his own motion would justify the conviction of the defendant if he did nothing more than purchase whiskey for others at their request and with their money. But there is nothing in our statute that makes it unlawful for one to purchase whiskey for another without license. The license is required of those who sell, not of those who buy, and one may purchase, either for himself or another, all the whiskey in the state, and under our statute he commits no crime by making the purchase.
The presiding judge was no doubt fully conscious of this, and he undertook to cover that phase of the law by his third instruction. But this instruction, though correct in the main part, is in certain respects somewhat too stringent. It correctly states the law that it is lawful for one to buy' or order whiskey for another, but it seems to make the lawfulness of the transaction, so far as the agent is concerned, depend upon the good faith of the party ordering the whiskey, whereas, if one pretends to purchase whiskey for another, his guilt or innocence, so far as the crime of making a sale instead of a purchase is concerned, depends upon his own good faith in doing only that which he pretends to do, for the law rarely if ever makes the guilt of one party depend upon the intention or the good faith of another.
There is another respect in .which this instruction seems to be misleading, though it probably did no harm under the facts of this case. The language used seems to carry the idea that, to ■ make the purchase of whiskey for another lawful, the purchase money»- and other expenses of the purchase must be paid in advance. But a purchase of whiskey is like the purchase of any»- other commodity, and, as one may advance money and purchase wheat or corn for another without making the transaction a sale of wheat or corn by him to the other, so in like manner he may purchase whiskey. If one seeing his neighbor on his way to town requests him to purchase for him a bottle of whiskey, promising to return the purchase money when he sees him, and the neighbor does so, and leaves the bottle at the house of the one for whom he purchased, this does not render the party purchasing the whiskey guilty of making a sale of whiskey. Nor, if he acted In good faith about the matter himself, would he be guilty, although the money was never returned, even though it should turn out that the buyer acted in bad faith and never intended to repay it, for the transaction would be nothing more than the loan by the neighbor of the price of the whiske}'- to the party for whom he purchased.
There would, no doubt, be considerable profit in the retailing of whiskey and other intoxicating beverages if the business could be safely carried on without the payment of a license. To evade the law and accomplish this purpose, subterfuges of various kinds are at times resorted to by those who have no scruples about violating the law. But crimes of this kind may be established by circumstantial evidence, as other facts may be thus proved; and whenever the illegal sale is shown to have been made, the law inflicts the penalty, without regard to what the parties may have agreed to call the transaction. The evidence in this case makes it seem not improbable that the defendant, under the pretense of ordering whiskey for others, may have been engaged in the business of buying and selling whiskey to others as a source of profit to himself. But whether a sale is made is generally a question of fact which should be fairly submitted to the jury for their decision, and we think that the instructions do not do that in this case.
We have not overlooked the fact that the defendant himself asked for an instruction somewhat on the same lines as these given by the court of which he complains. If the instructions were substantially the same, we should affirm the judgment, notwithstanding the error in instructions, on the ground that the defendant has no right to complain of a statement of the law which he indorsed and induced the court to give, for, if error was thus committed, it was one which he himself invited.
But the instructions asked by the defendant, though not a correct statement of the law, are not the same as those given by the court of which he complains. The defendant’s instruction No. 5, set out in the statement of facts, tells the jury not to convict unless the defendant “solicited and got others to make orders through him, either directly or indirectly,” while the instruction given by the court of which he complains, which is also set out in full in the statement of facts, tells the jury that if the defendant procured the sale of intoxicating liquors for others by taking* orders therefor, and by purchasing the liquor and distributing it among them according to their orders, he would be guilty of making an unlawful sale of liquors to those parties. Now, while these instructions are not the same, so that we cannot say that by asking for one of them the defendant invited the court to give the other, yet the defect in each of them arises from a similar cause, and that is in each of them there is an attempt to make an act which may or may not be evidence of a sale equivalent to the sale itself. The fact that one takes orders from others for the purchase of whiskey, and afterwards delivers the whiskey, may be evidence of a sale, but it does not in all cases constitute or prove a sale, and the question as to whether such evidence amounts to a sale is generally a question for the jury. The fact that one solicits another to permit him to purchase or order whiskey for him may tend to show that the one who solicits intends to make a profit out of the transaction, and that he really intends to make a sale of the whiskey to the party for whom he pretends to order. But, though it may be evidence of a sale, it is not the same thing as a sale, and the party who solicits may be entirely innocent of making a sale. If one wishing to purchase a half gallon of whiskey comes to the conclusion that he can procure it on better terms by getting his neighbor to join with him in the purchase of a gallon, each taking a half gallon, he has, under our statute, the right to do so, and it is therefore incorrect to say that if one solicits another to allow him to purchase whiskey for him, and the other permits him to do so, the one soliciting is guilty of selling whiske}''.
There is nothing in the decision in Hunter v. State, 60 Ark. 312, 30 S. W. 42, that supports the instructions given as requested by the defendant or given by the court. In that case the facts were peculiar, and a majority of the judges were of the opinion that the defendant was guilty because they found that he aided and assisted a distiller in violating the law, which forbade him to sell in quantities less than five gallons. But it is not claimed in this case that the party in St. Louis had no right to ship this whiskey to the parties ordering in ' any quantities that they might order, nor is there any evidence to show that the defendant was acting as agent of the seller, so we think the reasoning of that case does not apply here.
Though there is evidence sufficient to sustain the conviction, had the case been properly submitted, we are of the opinion that there was prejudical error in the instructions. The judgment is therefore reversed, and a new trial ordered. | [
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Battle, J.
F. N. Hancock commenced an action against B. Gibson in the Sebastian circuit court for the Fort Smith district upon a, promissory note executed by the defendant. Plaintiff alleged in his complaint that he had reason to believe that the American National Bank, of Fort Smith, Arkansas, had in its hands moneys, credits, property and effects belonging to the defendant. And he asked for judgment against, the defendant for the amount of the note and interest, and that a writ of garnishment be issued for the American National Bank, requiring it to answer what moneys, credits, property or effects it had in its hands, possession or control belonging to the defendant.
The defendant at the time resided in Polk county, in this state, and the domicil of the American National Bank was in the Fort Smith district of Sebastian county, Arkansas. A summons directed to the sheriff of Polk county, commanding him to summon the defendant to answer the complaint, was issued, and was served upon him in that county; and a writ of garnishment was issued in accordance with the prayer of the complaint, and was served upon the American National Bank in° the Fort Smith district of Sebastian county.
The question in this case is, was this action properly brought in the Sebastian circuit court for the Fort Smith district? The circuit court held that it was not, and rendered judgment accordingly.
Section 5696 of Sandels & Hill’s Digest provides: “Every other action (other than those airead}' named of which an action like this was not one) may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” This is section 96 of the Code of Practice in Civil Cases. Section 31 of the same Code, section 5630 of Sandels & Hill’s Digest, shows who is meant by the word “defendant” in the former section. It provides who shall be defendants in an action as follows: “Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the question involved in the action.”
The matter in controversy in the action against the defendant is the indebtedness evidenced by his note. The garnishee has and claims no interest therein, and is not a necessary party to a complete determination of the question presented by the action against the defendant. Hence the American National Bank was not a “defendant” within the meaning of section 96 of the Civil Code, and is denominated a “garnishee” to distinguish it from the defendant. It was not affected by the action against the defendant until it was served with the writ of garnishment, and was not bound then or liable to judgment until the termination of that action by a judgment in favor of the plaintiff upon the note. Bergman v. Sells, 39 Ark. 97; Johnson v. Foster, 69 Ark. 617.
Plaintiff argues that the writ of garnishment is in the nature of an attachment against the property of the defendant, and that therefore this action was properly brought in the Fort Smith district of Sebastian county, where the garnishee was served. This contention is based upon section 223 of the Civil Code (section 3*32 of Sandels & Hill’s Digest), which is as follows:, “Attachments may be sued out, and the action in which the same-are obtained may be prosecuted, in any county in which property, may be attached, or a garnishee who is indebted or has property belonging to the defendant is served with process.” But this section has reference only to attachments and garnishments sued out in the cases and upon the grounds enumerated in section 216 of the Civil Code, and section 323 of Sandels & Hill’s Digest, which provide: “The plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant, in the cases and upon the grounds hereinafter stated, as a security for the satisfaction of such judgment as may be recovered:
“First. In an action for the recovery- of money, where the action is against—
“1. A defendant or several defendants who, or some of whom, is a foreign corporation or nonresident of tne state; or
“2. Who has been absent therefrom four months; or
“3. Has departed from this state with intent to defraud his creditors; or,
“4. Has left the county of his residence to avoid the service of a summons ; or,
“5- So conceals himself that a summons cannot be served upon him; or,
“6. Is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff’s claim or the claim of said defendant’s creditors; or,
“7. Has sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder or delay his creditors; or,
“8. Is about to sell, convey or otherwise dispose of his property with such intent * * *.
“Second. In an action to recover possession of personal property where it has been ordered to be delivered to the plaintiff, and where the property, or part thereof, has been disposed of, concealed or removed, so that the order for its delivery cannot be executed by the officer.” The eight succeeding sections of the Digest provide how and where orders of attachment and writs taf garnishments may be obtained in the cases and upon the grounds enumerated in section 216 of the Code, and section 325 o'f the Digest, of which eight sections section 332 of the Digest is one. In such cases and upon such grounds the attachment or garnishment may be sued out, and the sections in which they are obtained may be prosecuted, in any county where the property may be attached, or garnishee is served with process.
This action was not based upon, and could not have been brought under, those sections. The defendant was a resident of this state, not absent therefrom, was not seeking to evade process, and was not guilty of any act which subjected his property to seizure under an order of attachment, so far as is shown by the record in this case. An order of attachment or writ of garnishment could not have been sued out in this action under those sections.
In Johnson v. Foster, 69 Ark. 617, cited by plaintiff, the defendant was a nonresident. An affidavit and a bond were filed, and a warning order was made and published. The question in this case was not presented or decided in that case.
This action should have been brought in Polk county, where the defendant resided and was served with process.
Judgment affirmed. | [
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Wood, J.
The testimony of experts introduced on behalf of appellant tended to show that deceased’s death was not caused by the blows received at the hands of appellant, but was the result of opiate poison of some kind. The testimony on behalf of the State tended to show that deceased was killed by the blows of appellant. The question as to how deceased came to his death was fairly submitted to the jury upon the proper instructions, and the jury was fully warranted in its conclusion that appellant killed deceased. The uncontradicted proof on behalf of the State, and also the testimony of appellant himself, shows that the defendant was guilty of murder in the second degree. He received the lowest punishment for this offense, and therefore could not have been prejudiced by any of the rulings of which he here complains, even if they were erroneous.
Affirm. | [
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Riddick, J.
(after stating the facts). This is an action of ejectment by David N. Ousler and other heirs of David K. Ousler, deceased,, to recover 160 acres of land which was owned and occupied by him at his death. The defendants claim the land under a sale and conveyance made by the administratrix of the estate of Ousler, and also, as to half of the land, under a sale made by virtue of an overdue tax decree.
The evidence tends to show that the land was the homestead of Oysler, and after his death became the homestead of his widow and children. On this account it is contended that the sale by the administratrix was void, but we need not notice that point, for an inspection of the order made by probate court for the sale of the land shows clearly that it did not direct or authorize the administratrix to sell the land that was set aside for dower, or the reversionary interest of the heirs therein. The order recites that after assignment of dower there would remain 320 acres of land subject to sale for the payment of debts, and then directs that, after the dower is set apart, the lands be appraised and sold. Taking the whole 'of the order into consideration, it is clear that the administratrix was only authorized to sell the 320 acres of land remaining after the assignment of dower. The administratrix, it seems, attempted to sell the reversionary interest of the heirs in the dower land, but she had no authority to do so. The sale was never confirmed until after the commencement of this action, and the heirs appealed from the order confirming it. We think the order of the chancellor confirming that portion of the sale should not be sustained, and that the title of the, heirs to the 160 acres in controversy, which had been set apart to their mother as dower, was not affected by this attempted sale of the reversion, and that the defense based thereon must fail. As to the 80 acres which defendants claim under the overdue tax decree, it is said that the decree was never confirmed. Now, it is not absolutely necessary that the confirmation should appear by a formal order to that effect. “It is sufficient if the confirmation can be gathered from the whole record.” 17 Am. & Eng. Enc. Law (2d Ed.), 991, 992.
But there appears to have been a regular and formal confirmation of the sale of the lands under the overdue tax decree, which order of confirmation was made in 1888. In addition to this order, to which we see no valid objection, the record shows that in 1886 the commissioner who'made the sale appeared in court and acknowledged the deed set up by the defendants, and the court ordered that a copy of the order of acknowledgment be indorsed on the deed, and certified by the clerk of the court, “to the end that the same may be entitled to record,” and further directed that a writ of possession issue on demand of the purchasers. This also tends to show that the court approved the sale; otherwise it would not 'have ordered a writ of possession. But we need not discuss that question further, for, as we have stated, the record here shows a formal order confirming the sale.
Again, it is said that the defendant Robinson was in possession of the land at the time the taxes for which the land was sold accrued, and should have paid them, and that he could not strengthen his title by purchase at a sale for taxes brought about by his own default. But the record does not sustain this contention, or show that Robinson was in possession of the land at the time the taxes accrued. Taking tlie record as we have it here, there is nothing to show that- the sale under the overdue tax decree was invalid.
As to the statute of limitations, we think that the right of action did not accrue until the death of the mother of plaintiff and the termination of her life estate in the land which had been purchased by Mary E. Robinson and held by- defendants after her death. As, this action was commenced within less than two years after the termination of this life estate, it follows that it was not barred by limitation.
• On the whole case, the judgment of the chancellor as to the 80 acres held by defendants under the overdue tax decree will be affirmed; but the judgment as to the remaining 80 acres will be reversed, and the cause remanded, with an order that a decree therefor be rendered in favor of plaintiffs, with such judgment for rents and profits as the evidence may demand. | [
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Riddick, J.
(after stating the facts). This is an appeal from a judgment convicting the defendant o!f ithe crime of seduction. On the trial the presiding judge was requested to reduce his instructions to writing. He refused to do so, and delivered the charge orally to the jury, but directed the stenographer to take it down in shorthand as delivered, and afterwards to copy it in full from the notes thus taken. But this copy was not made, so the bill of exceptions state, “until after the trial.” '['he first question presented is whether this procedure met the requirements of the law. The constitution requires that in jury trials judges “shall reduce their charge or instructions to writing on the request of either party.” Const. 1874, art. 7, § 23. Now, while it may be said that taking the charge in shorthand is in a certain sense reducing it to writing, yet it seems clear that, taking the words of the constitution above referred to in their ordinary sense, they mean something more than this. And so it ■has been generally held that the requirement that a charge shall be reduced to writing is not fulfilled by merely taking it in shorthand. Shafer v. Stinson, 76 Ind. 374; State v. Bennington, 44 Kan. 583; Crawford v. Brown, 21 Col. 272; Bowden v. Achor, 95 Ga. 243.
It is probably true that most of the purposes for which this provision of the constitution was intended can be accomplished by the method adopted by the judge in this case. If the charge had been copied by the stenographer, and read by the judge to the jury before the case was finally submitted to them, it is probable that no prejudicial error would have been committed. National Lumber Co. v. Snell, 47 Ark. 407. But one purpose of this provision was to obtain a carefully considered charge and to place it in such a shape as to avoid any possible dispute or misunderstanding as to its exact praseology. Stenographers, like other persons, sometimes misunderstand what is said, and make mistakes; and, as comparatively few people can read shorthand, the parties under the procedure adopted in this case would ordinarily have no means of guarding against and detecting such mistake. An instruction reduced to writing is open to the inspection of every one, and is the safeguard which the law gives the litigant to protect himself against controversies of that kind. The provision that secures it is imperative, and, even if we deemed it unwise, we could not disregard or refuse to enforce it. Bor these reasons we are of the opinion that the course pursued did not fully meet the requirements of the law, and the contention of appellant in regard thereto must be sustained.
The court in his charge to the jury said that “the testimony in this case tends to show that subsequent to the returning of the indictment against the accused he married the prosecuting witness, and in that way the prosecution was suspended.” Now, as a matter of fact, the record here shows that the indictment copied in the transcript was not found until over a year after the marriage of the parties referred to. Whether there was a previous indictment, not shown by the record, we are not able to say, but it is obvious that this statement worked no prejudice to the defendant, for it seems to be conceded that the prosecution against defendant had commenced before his marriage to the prosecuting witness. Counsel for defendant do not object to the statement on account of the inaccuracy noted, but they say that it was an invasion of the province of the jury for the trial .judge to tell them that a prosecution had been instituted against the defendant which was suspended by his marriage to the prosecuting witness. But the record seems to show that these facts were conceded at the trial, and undisputed facts may always be stated to the jury by the presiding judge, when it is necessary for him to do so in order that they may understand the issues presented for their decision. The purpose of a jury is to determine issues concerning disputed facts, and it is not only unnecessary, but often improper, and prejudicial, to submit undisputed facts to the jury as if they were in issue. St. L., I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Pacific Life Ins. Co. v. Walker, 67 Ib. 147.
The evidence showed that after the parties had been married some months they entered into and signed a written agreement to separate, and thereafter they lived separate and apart. Now, the act of 1899 provides that “if any man against whom a prosecution has begun * * * for the crime of seduction shall marry the female alleged to have been seduced, such prosecution shall not be terminated, but shall be suspended; provided, that if at any time thereafter the accused shall willfully, and without such cause as now constitute^] a legal cause for divorce, desert and abandon such female, then at such time said prosecution shall be continued and proceed as though no marriage had taken place between such female and the accused.” It will be noticed that under this statute, after the marriage is consummated, the prosecution cannot be continued against the husband unless he has deserted the wife. The statute says “willfully” ¡deserted and •■abandoned, but, as desertion is the willful separation of one of the married parties from the other without lawful cause, it is plain that the word “willfully” adds nothing to the statute. 1 Bishop on Marriage, Divorce & Separation, § 1665. And as, in law, a separation by mutual consent is not desertion on the part of either unless one of the parties offers to resume cohabitation and the offer is refused, it follows that the prosecution cannot be revived under this act when the parties have separated by mutual consent unless the wife has offered to resume the marital relation, and her offer has been refused by the husband. Lloyd’s Law of Divorce, p. 172. But a mere formal consent to the separation on her part will amount to nothing if she has been compelled thereto by the wrongful acts of her husband. “If by pressure and unfair means,” says Mr. Bishop, “a husband obtains his wife’s agreement to a separate living, this termination of the cohabitation, to which her consent is not real, being brought about by his will, is a desertion of her by him.” 1 Bishop on Marriage, Divorce & Separation, § 1690; Warner v. Warner, 54 Mich. 492; Dagg v. Dagg, 7 Prob. Div. 17; Lloyd’s Law of Divorce, 172; 9 Am. & Eng. Enc. Law (2d Ed.), 770, and cases cited. And so in this case, if the defendant, with the intention of forcing his wife to agree to a separation, commenced and carried out a course of conduct towards her, such as unmerited reproach, rudeness, contempt and neglect, which rendered her condition in life intolerable, and caused her to consent to the separation against her real wishes, this, being brought about by his wrongful conduct, would in law be a desertion on his part, after which the prosecution against him can be revived. The instruction of the court on this point was substantially correct.
The presiding judge in his charge read to the jury section 1900 of Sandels & Hill’s Digest, upon which the prosecution was based. This section declares that “any person who shall be convicted of obtaining carnal knowledge o!f any female by virtue of any feigned or pretended marriage, or of any false or feigned express promise of marriage,” shall be punished as therein provided. After reading this section, he told the jury that if they found from the evidence beyond a reasonable doubt that the defendant “seduced the prosecuting witness, Fannie Burton,” under “a feigned or expressed promise of marriage,” they should convict. This part of the charge — probably because it was oral, and the stenographer failed to catch the exact words used — does not follow the words of the statute, 'for the language of the statute is “any false or feigned express promise of marriage.” The statute 'requires that there must be an express promise of marriage, whether it be false or feigned, and the indictment charges that there was “a false express promise of marriage.” But the court, in effect, told the jury it was sufficient if there was “a feigned or express promise of marriage.” This would probably have worked no harm if the court had given the first instruction asked by the defendant, which, in effect, told the jury that, before they could find the defendant guilty, they must find -beyond a reasonable doubt that by reason of a false express promise of marriage he induced Fannie Burton to have sexual intercourse with him. The presiding judge refused this instruction on the ground that he had already covered it in his charge. He had told the jury, if they found beyond a .reasonable doubt that the defendant seduced Fannie Burton under “a feigned or express promise of marriage,” to convict. The instructon asked by the defendant was a counterpart of that given by the court, and might be inferred from that, if we overlook the slight departure from the statute made by the court, and to which we have called attention. But in a trial before a jury a defendant is entitled to have the law plainly and fully stated to the jury, to avoid any possible misunderstanding on their part, and we think this instruction No. 1 should have been given.
We do not think, as contended by defendant in some of the instructions asked by him, that the promise of marriage must have been made or repeated at the time the act of sexual intercourse took place. It is sufficient that it was previously made, and that the defendant thereby induced the woman to have sexual intercourse with him.
Judgment reversed, and cause remanded for a new trial. | [
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Battle J.
Martin and wife conveyed, by deed, to Urquhart lands lying in the county of Pulaski and State of Arkansas, and described them therein as follows:
“The property known as the, J. J Martin plantation, embracing the east two-thirds of the north fractional half of section 6, township 1 north, range 11 west, except the land conveyed to Adolph Topf by the grantors herein by warranty deed on the 10th day of June, 1889, which' is now of record in Deed Book 26, page 412, in the office of the recorder of Pulaski county, Arkansas; except also the lands conveyed by grantors by their warranty deed on the 24th day of April, 1893, to the Crescent Cotton Oil Company, which said deed is now of record in the office of the recorder of Pulaski county, Arkansas, in Deed Book 40, page 522. Also the east fractional half and east two-thirds of the southwest quarter of section 31, township 2 north, range 11 west, but said grantors reserve a half acre of land to be laid off by them in a square in the said southeast quarter of the southeast quarter of said section 31, and embracing the land enclosed as the family burial ground, so long as it is used as such.”
After the deed was executed and the consideration was paid, Martin refused to surrender a tract of four acres on which were located valuable improvements, on the ground that he had not conveyed it. The evidence in this case proved, and the jury found, that it was a part of the J. J. Martin plantation. Was the deed sufficient to convey it ? The1 words “the property known as the J. J. Martin plantation,” used in the deed, were sufficient to describe the tract of four acres. The words following that allege that the J. J. Martin plantation embraces certain lands do not limit or restrict their meaning, or except any lands save those expressly reserved. They were not intended to show that the lands described constitute the whole of the plantation, for they do not; the tract of four acres being a part. Neither do they except the four acres from conveyance by the deed. If the words “the property known as the J. J. Martin plantation” included only the lands thereafter described or specified, they are meaningless and purposeless. There is nothing in the deed to indicate such to be the fact. They could have been reasonably used only for the purpose of conveying the whole of the J. J. Martin plantation, except the lands expressly reserved; were obviously used for that purpose; and such was their effect.
Judgment affirmed. | [
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Battle, J.
Joe L. Green brought an action against the Planters’ Mutual Insurance Association to recover the sum of $1,500 on a policy of insurance executed to him by the association on the 16th day of February, 1900. The property insured was a stock of goods, wares and merchandise and a storehouse. The defendant admitted the execution of the policy, but denied that it was liable thereon, because it contained the following clause: “This entire policy, unless otherwise provided by agreement indorsed thereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy;” and because the plaintiff, after the execution of the policy procured other insurance upon the stock of goods, wares and merhandise, in the sum of $1,000, without its knowledge or consent.
The plaintiff recovered judgment, and the defendant appealed.
The policy sued on contains said clause. After its execution appellee procured other and additional insurance for $1,000 on the stock of goods, wares and merchandise. Before doing so he wrote a letter to appellant, saying that he intended to procure additional insurance. The letter was properly stamped and mailed, and it was never returned. The presumption, in the absence of evidence to the contrary, is that it was received. Oregon Steamship Co. v. Otis, 100 N. Y. 451. But this presumption may be rebutted. The uncontradicted and unimpeached, evidence in this case shows that''the letter was not received by the appellant. There was no evidence that appellant consented to the additional insurance. The policy was voided by the additional insurance.
Reversed, and remanded for new trial. | [
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Riddick, J.
This was an action brought in, the chancery court of Chicot county by J. Kaufman against Henry and Mattie Love to foreclose a mortgage on land executed by them to him to secure the payment of certain promissory notes given by Henry Love to Kaufman, which are set out in the complaint. There was a judgment by default in favor of the plaintiff, from which judgment the defendants have appealed. The main contention made here is that the record does not show any service of summons upon the defendants, and that the court had no jurisdiction over the person of the defendants, and therefore •no right to render the judgment. But the decree recites that the defendants “were duly served with summons herein as required by law,” and under our statute this was even on appeal prima facie evidence of the fact, and must be taken as true, unless there is something in the record to contradict it or tending to show to the contrary. Sand. & H. Dig. § 4191; White v. Smith, 63 Ark. 513; Coons v. Throckmorton, 25 Ark. 60.
Now, while it is true that no summons has been copied in the record, and there is no return of the sheriff showing a service of summons upon defendants, yet the complaint has the following indorsement upon it: “Filed March 12, 1900, and writ issued. [Signed] Johnson Chapman, clerk.” The record shows that on the 5th day of April following the court appointed a receiver to take charge of and rent the land covered b3r the mortgage. The order recites that “all parties concerned being present in court either in person or by attorney and consenting” to the order. There is nothing in this to contradict the recital in the record that the parties had been duly summoned as required by law. On the contrary, as it appears here that summons was issued by the clerk on the 12th da3^ of March, and that after-wards on the 5th of April the parties appeared and consented to the appointment of a receiver, it tends to show that the defendants had notice of the action, and supports the recital in the record, for the summons and return are not copied in the transcript. Waiving, then, the question as to whether the appearance for the purpose of consenting to the appointment of a receiver was an appearance in the action, so as to dispense with service of summons, we think that, under the state of the record we have here, the recital that the defendants were duly summoned must, under our statute, be taken as correct, for the record here is clearly incomplete. It shows that summons was issued, but, as before stated, neither the summons nor the return thereon is copied in the record, and we are therefore not able to say that the court erred in holding that the defendants were duly summoned, for it appears probably that the full record upon which the court acted is not before us. Sand. & H. Dig. § 4191; White v. Smith, 63 Ark. 513. See, also, Turner v. Jenkins, 79 Ill. 228; Kahn v. Matthai, 115 Cal. 689; Riverside v. Stockton, 124 Cal. 222; 3 Cyc., p. 282.
As to the law in the absence of such a statute, see 2 Cyc., p. 1034, and cases cited.
There may be some doubt as to whether the court did not allow more interest on the notes than was due, but, as this is a matter of computation only, we shall direct the clerk to make the computation and report the amount of interest due on the several notes at date of the decree, and if the judgment is excessive in that respect, plaintiff will be permitted to enter a remittitur. | [
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Riddick, J.
(after stating the facts). The only question raised by- this 'appeal is whether, in an ordinary action by a passenger against a railway company to recover damages for injuries received on account of the negligence of an employee of the company, and when no statutory regulation of the state has been violated, the plaintiff may, if he makes out his case, recover, in addition to his damages, a reasonable attorney’s fee. The statute of 1887 provides that in all actions against railway companies “for the violation of any law regulating the transportation of freight or passengers” the plaintiff, if successful, shall also recover a reasonable attorney’s fee, to be taxed as part of the costs. But this' provision, we think, refers to actions against railway companies for violations of statutory regulations of the state in regard to transportation of freight and passengers, for, if we should hold that it applied to all actions arising against railroads in the carriage of freight or passengers, whether any statute had been violated or not, it is doubtful if it would be a constitutional law (Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150; St. Louis, I. M. & So. Ry. Co. v. Williams, 49 Ark. 492) ; for the legislature cannot single out railroad companies, and tax them with attorney’s fees in cases where judgments are recovered against them, when other defendants are not thus taxed, unless there be some reason upon which to found the discrimination so made. Statutes allowing attorney’s fees to be taxed against railway companies where judgments are recovered against them for the violation of statutory regulations are upheld on the ground that such a fee is in the nature of a penalty imposed upon the company for failure to comply with the police regulations of the state. But in this case no statute was violated, and there is no reason why a penalty should be imposed. Dow v. Beidelman, 49 Ark. 455; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150.
Statutes taxing attorney’s fees against defendants in common with other statutes imposing penalties should be strictly construed, and, looking at the statute in that light, we are of the opinion that it does not apply to cases like the one before us where no statute has been violated.
The judgment for the attorney’s fee is reversed, and the motion therefor dismissed. | [
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BRANDON J. HARRISON, Judge .
h Marcus Millsap entered a conditional plea of no contest' to delivery of a controlled substance and possession with the purpose to deliver, and he now appeals, arguing that the circuit court erred in denying -his motion to suppress. We affirm. .
I. Facts
On 1 May 2014, agents working with the Fifth Judicial Drug Task Force (DTF) met with a confidential informant to set up a controlled purchase of methamphetamine from Millsap. In the early morning, hours of May 2, after the purchase had been completed, officers initiated a traffic stop of Millsap and arrested him. In June 2014, Millsap was charged with delivery of methamphetamine, possession with the purpose to. deliver, and-possession of a controlled substance.
On 8 April 2015, Millsap filed a motion to suppress any and ‘all evidénce seized after the warrantless traffic stop and his arrest, asserting that there was no probable cause to 12stop his vehicle. On 23 April 2015, Millsap amended his motion to suppress to include his -custodial statement made after his arrest. He argued that he had asked- that the recording of -his interview be stopped and had asserted-his Miranda rights,-but the State violated Ark. R.Crim. P. 4.7 (2014) when it failed to preserve, on audio/visual equipment, the part of the interview when he verbally invoked his Miranda rights during the interview. Rule 4.7 governs the recording of custodial interrogations.
The circuit court held a suppression hearing on 4 May 2015. Tony Haley, a narcotics investigator with the Arkansas State Police, testified that on 1 May 2014; he used confidential informant Bruce Hurley to make a controlled buy of methamphetamine. He explained that he had known Hurley for approximately ten years, that Hurley had an extensive criminal history, and that in exchange for assisting the police, Hurley would not be charged with two-counts of delivery of methamphetamine. ' Haley testified that he had been familiar with Millsap for five or six years and that Hurley was supposed to purchase four ounces of methamphetamine from Millsap for $3600. Haley explained that the transaction was scheduled to occur at Hurley’s residence on 1 May 2014 and that on the afternoon of May 1, he, met with Hurley at his residence, searched Hurley’s person and residence for controlled substances and found none, and then listened to Hurley make telephone contact with Millsap. Once Millsap was on his way to the residence, Haley equipped Hurley with an electronic-monitoring device, set up a video recorder inside Hurley’s residence,, and gave Hurley $3600 in buy money. Haley then hid in an abandoned car in the front yard and. observed the residence.
IsHaley watched ’Millsap and a female, identified as Christy Hamilton, arrive at Hurley’s residence. Haley stated that Millsap and Hamilton were in the residence less than thirty minutes, and then they, along with Hurley, left in Millsap’s vehicle. Hurley texted Haley and told him that the deal had not yet taken place and that they were going down the road to look at a trailer house that Millsap was interested" in buying. After approximately one hour, the three of them returned and went back into Hurley’s residence.' After another hour, Millsap and Hamilton left the residence. Haley-then entered the residence, confirmed with Hurley that the purchase had taken pla'ee,' and retrieved approximately two ounces of methamphetamine from Hurley. Haley then gave ¡the order to nearby officers to stop Millsap’s vehicle and arrest him. Other officers picked up Haley, and they proceeded to the Russellville DTF office. Haley testified that he arrived at the office at approximately 1:15 a.m. on May 2; Deputy Noyes with the Pope County Sheriffs Office brought Millsap in and escorted him to an interview room soon after. .
: Haley stated that Millsap was in the interview room approximately five minutes before he and Agent Chad Stephenson went into the room. Haley said that he told Millsap what he was charged with and that the officers wanted to speak to him, and that he advised Millsap of his Miranda rights. Haley explained that he read the Miranda-rights form' to Millsap and that Millsap acknowledged and understood his rights. Millsap initialed the Mi-rando-rights form and signed a waiver of rights, which was introduced as State’s Exhibit 1. Haley stated that the interview room was set up so that interviews are recorded and that the recorder was on that night. The recording system had only been ^operational for a couple of months, and only a few interviews had been conducted since the recording system’s installation. Haley explained that after Millsap had signed the Miranda waiver of rights, he asked if the interview was being recorded, and Haley confirmed that it was. According to Haley, Millsap then stated, “If you will turn it off, I will talk to you.” Haley asked Agent Stephenson to turn off the recorder, which he did, and Haley then proceeded to question Millsap about the drugs that had been found in his vehicle. Haley said that Millsap took ownership of the drugs and said that he was selling drugs “to support [his] habit.” Millsap then told Haley about other individuals from whom Millsap could purchase a large amount of methamphetamine.
Haley stated that Millsap was forty-eight years old, very intelligent, and familiar with the legal system. He explained that Millsap had previous convictions for possession of a controlled, substance, delivery of a controlled substance, drug paraphernalia, and retaliation against a witness. Haley denied making any threats, or promises to Millsap.
Haley also explained that in preparing this case for prosecution, he attempted to recover the recording of Millsap’s interview, up to the point where he asked that the recorder be turned off, but the recording was not there. On cross-examination, he confirmed that all verbal communications between himself and Millsap, including his explanation of Millsap’s Miranda rights and Millsap’s request to turn off the recorder, had been erased. He also testified that he was aware that Hamilton was Hurley’s ex-wife. Haley explained that Hurley was not a “good citizen” but that was why he took steps to eliminate the opportunity for Hurley tn lie to him. In response to the question of whether Hurley might have- motive to set up Millsap, Haley stated, “Anything is 15possible.” He also explained that the video recorder inside Hurley’s residence did not function properly and acknowledged that he could not see what had occurred inside the residence. He also acknowledged that in the audio recording of the controlled buy, the words “drugs” or “controlled substances” are not used and that when Millsap says he will have to meet Hurley in Little Rock later “to get the other two,” he does not identify what he is talking about. Haley agreed that he relied on Hurley.
Jeffrey Noyes, a patrol division supervisor for the Pope County Sheriffs Office, testified that on May 1, 2014, he assisted the DTF by stopping a vehicle for them. He explained that shortly before 1:00 a.m. bn May 2, DTF officers called him and gave him a description of Millsap’s car. Noyes located the vehicle a short time later and arrested Millsap, who was driv- mg the car. Noyes searched Millsap and found a large amount of currency, roughly $3700, and a small plastic bag containing what Noyes believed to be methamphetamine. Noyes transported Millsap to the DTF office and placed him in an interview room;
David Davis, a coordinator for the DTF, testified that he participated in the search of Millsap’s car after his arrest. He testified that between the passenger seat and the console, he found a black bag containing two ziploc baggies of what he believed to be methamphetamine -and a large amount of cash. He stated that the money found in the black bag matched the money that was given to the informant for the controlled buy, and the bag contained about three ounces of methamphetamine. Davis explained that as the DTF coordinator, he was responsible for the recording equipment in the interview room. Davis said that he thought the recordings would be kept until the hard - drive was full, | nwhich would take months, but after the recording in this case could not be retrieved, he learned that recordings were only kept for a thirty-day period, and then deleted. He said that he had since taken steps to rectify the situation.
Chad Stephenson, an officer with the Pope County Sheriffs Office who is assigned to the DTF, testified that he participated in the interview with Millsap on May 2, that Haley advised Millsap of his Miranda rights, and that Millsap asked them to shut off the recording device. Stephenson explained that he left the room to shut off the recorder and then returned to the interview room, where Millsap said that the drugs in the; car belonged to him and told officers of other people from whom he could buy methamphetamine.
Millsap testified too. He- said that when he was stopped, he did hot understand that he was arrested, only that he was wanted for questioning. He testified that Deputy Noyes took him to th'e DTF- office, and he agreed that he asked the officers to turn off the recording of the interview. Millsap agreed that- it was his understanding that whatever he said would not be used against him, and he also agreed that he invoked his right to counsel. The officers, according to Millsap, .continued to talk to him, just “casual conversation,” after he asked for an attorney. On cross-examination, he. agreed, that no threats had been made against him, that he was familiar with the Miranda rights, and that those rights had been given to him in this case. He also stated that he invoked his right to an attorney after he had asked the officers to turn off the recording. When asked why he did not invoke his right to an attorney while the recording was still on, Millsap said that he “was in a very nervous situation.” And he . repeated that any questions the police asked |7after he had requested an attorney were “just conversation” and that he “didn’t consider it questioning.” •. On redirect, Millsap reiterated that he did not believe that what he said to the police would be used against him because it was “off the record.”
Tony Haley was recalled and testified that Millsap did not request an attorney at any time during the interview.
In closing arguments, the defense argued that there .was no. showing of reliability, of the informant and that the stop was not based on probable cause. The defense also argued that the State had a duty to preserve any recording under Ark. R.Crim, P. 4.7.
From the bench; the court made the following findings. First, it -found that “there was reasonable suspicion to believe that a felony had taken place. Thus there was authority to arrest without a warrant based on -the facts of the controlled buy.” Second, the court declined to read Rule 4.7 as a rale requiring automatic exclusion-if there is a failure to preserve a recording. The court found that Davis gave a “satisfactory explanation” of why the recording was deleted and that there was no bad faith on the part of the police. And finally, the court found that whether Millsap invoked his right to counsel was “purely a credibility issue,” which the court resolved in' favor of the State. ■ It stated,
I’m going to find that he did not, and -I credit the testimony of Officer Stephenson and Officer Haley the best evidence of that. While you don’t have a recording, which you didn’t need one because Mr. Millsap testified all that occurred— supposedly occurred after the recording was turned off: The Miranda right's form is the best evidence, along — coupled with Mr. Millsap’s familiarity with the Miranda warnings through his previous criminal history and the fact that he would be advised , of his Miranda rights'' and understand his Miranda rights and then get the recorder' turned off, which they complied with his request, and then he invoked counsel just doesn’t | «make sense. It seems to me a person would invoke counsel while the recorder was on to preserve that important right.
The motion to suppress was therefore denied.’ .
Following this ruling, Millsap entered a conditional plea of no contest to delivery of a controlled substance and possession with purpose to deliver and was sentenced to ten years’ imprisonment on each count, to run consecutively. (The possession charge was nolle pressed,) Millsap has now appealed, arguing that the .circuit court erred in denying his motion to.suppress., . .
II. Standard of Review
When reviewing»a circuit court’s denial of a motion to suppress ■ evidence, the- appellate court conducts a de novo review based on the totality of the circumstances,- reviewing findings of historical facts ' for clear error ■ and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the circuit court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. Á finding is clearly erroneous, even.if there is evidence to support. it, when.the appellate court, after reviewing the entire evidence, is left with the definite and-firm conviction that, a mistake has been made. Id. ■ We defer to the circuit court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.. -, -
. III. Suppression of Evidence From the Traffic Stop
An officer may stop a vehicle and make a''warrantless search if it is on a public highway, and he or she has 'reasonable cause to believe the vehicle contains evidence Subject to seizure, and the circumstances require immediate action to prevent- destruction or removal of the evidence. Willett v. State, 298 Ark. 588, 769 S.W,2d 744 (1989). ^Reasonable cause as required by Ark. R.Crim- P. 14.1 exists when the officers have reasonably trustworthy information, which must be more than, mere suspicion, that the stopped vehicle .contains evidence subject to seizure and a person-- of. reasonable, caution would be justified in believing an offense has been committed or is being committed. Id. The test for reasonable cause for stopping and searching a vehicle depends on the collective information of the police officers: and not solely on the knowledge of the officer stopping the vehicle. Id.
■Millsap argues here, as he did below, that the warrantless traffic stop lacked probable cause. He asserts that the State failed to establish the reliability. of the informant, citing Hurley’s criminal history and the circumstances of the controlled buy as described by Haley. Millsap specifically contends that Hailey “admitted that he had to rely upon hearsay of the unreliable informant to know whether a controlled buy had occurred and to order the stop of the vehicle.”
Millsap compares this case to Jones v. State, 2011 Ark. App. 683, 2011 WL 5429498, in which this court affirmed the denial of a motion to suppress under similar facts. In Jones, police officers set up a controlled buy between the informant and a person named Latisha Longneeker. Officers watched the informant enter an apartment; Longneeker enter the apartment; Longneeker exit the apartment and get into the passenger seat of a white Mitsubishi driven by Jones (who was previously identified by the informant as “the dope guy”); Longneeker reenter the apartment; and the informant exit the apartment and present a small bag of an off-white,. rock-like substance, later identified as cocaine, to the officers. Jones argued that because the police did not testify that the informant was reliable, they'were “relying on 11flthe hearsay of an unproven person to use as a basis for the stop.” Id. at 3. In affirming,' this court explained,
Here, the officers observed the controlled buy visually to the extent possible and also listened to the conversation between the informant" and Longneeker. Based on their observations, they knew that Longneeker Rid not have the drugs when the informant first arrived. After goihg out to the white Mitsubishi, however, she returned with what she represented to be drugs. Based on the officers’ own observations, it was reasonable to conclude that the Mitsubishi driver .was involved in ■ the drug transaction.
Therefore, probable cause existed regardless of the informant’s reliability.
Id. at 4-5. Millsap argues that Jones is distinguishable'from' the present case because “Haley admits that he could not observe the transaction” and “the informant had plenty of opportunity to retrieve [the] controlled substance, and put money in the’Appellant’s vehicle other than from the Appellant.”
We are not persuaded that Jones is distinguishable in a'-meaningful way. In Jones, the officers Could not see an exchange of contraband between Jones and Longneeker or Longneeker and the informant, but we concluded that from the totality of 'the circumstances, including the officers’ observation, the audio of the conversation between the informant and Longneeker, and the informant’s pdsses-. sion of drugs immediately after the transaction, that the stop of.Jones’s car was supported by probable cause. The same analysis applies here: Haley did not actually see the purchase of methamphetamine that took place inside Hurley’s residence; but based on the totality of the circumstances, ineluding Haley’s observation of Millsap’s arrival and departure, the audio of the conversation between Hurley and Millsap, and Hurley’s possession of methamphetamine immediately after his interaction with Millsap, we hold that probable cause existed to justify the warrantless stop and arrest of Millsap, regardless of the informant’s reliability.
InIV. Suppression of the ■ Custodial Statement
A statement made while in custody is presumptively involuntary, and the burden is on the State to prov¿ by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly .and intelligently made. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 186 (2003). To determine whether a waiver of Miranda rights is. voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. See id.
For his first argument under this- point, Millsap appears to argue that the officers employed some type of deception in obtaining his statement. • He states that he knew Haley “from [a] previous relationship” and that “he trusted. Haley when Haley, promised him that he could talk off the record and that his statement would not be used against him.” But Mill-sap never made this argument to the circuit court. Arguments not raised below are waived, and parties cannot change the grounds for an objection on appeal but are bound by the scope and nature of the objections and arguments made at trial. See Abshure v. State, 79 Ark.App. 317, 87 S.W.3d 822 (2002).
Millsap also argues that the circuit court should have suppressed the use of his custodial statement due to the State’s failure to comply with Rule 4.7 of the Arkansas Rules of Criminal Procedure. Rule 4.7 provides that, whenever practical, a custodial interrogation- should be electronically recorded. Ark. R.Crim. P. 4.7(a). The rule also | ^provides that in determining the admissibility of any custodial statement, the court may consider, together with all other relevant evidence and consistent with existing law, whether an electronic recording was made, or if not, why an electronic recording was not made. Ark. R.Crim. P. 4.7(b)(1). However,
(2) The lack of a recording shall not be considered in determining the admissibility of a custodial statement in the following circumstances:
(F) a statement made during a custodial interrogation by a suspect who requests, prior to making the statement, to respond to the interrogator’s questions only if an electronic recording is not made of the statement, provided that an electronic recording is made of the . statement of agreeing to respond to the interrogator’s question, only if a recording is not made of the statement^]
Ark. R.Crim.- P. 4.7(b). Finally,- the rule dictates that an electronic recording must be preserved until' the later of (1) the date on which the defendant’s .conviction for any offense relating to the statement is final and all direct and postconviction proceedings are exhausted, or'.(2) the date on which the prosecution for all offenses relating to the statement is barred by law. Ark. R.Crim. P. 4.7(c).-
Millsap agrees that there is no dispute that he asked" for the recording to be turned off. He does argue, however, that under Rule 4.7(c), the State had a duty to preserve the recording that was made until the time he asked for it to be stopped, and because that was not done, his custodial statement (made , after the recording had been stopped) should have been suppressed.
, We disagree. Rule 4.7 does not require automatic' exclusion, and subsection (b)(2)(F) clearly states that the lack of a recording is not considered in determining the admissibility of a custodial statement if the person interviewed asked for the recording to Itabe- stopped, which -is what happened here. We affirm the circuit court’s denial of the motion to suppress.
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree.
. The record reveals that Millsap never testified that Haley made any promises to him and specifically never testified that Haley promised his statement would be "off the record” and not used against him, Millsap only agreed during direct examination that it was his “understanding” that whatever he said would not be used against him. | [
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Johnson, C. J.
Appellee instituted this suit in the Washington County Circuit Court against appellants, as receivers of the St. Louis-San Francisco Railway Company, to compensate a personal injury received by him on March 8, 1933. The complaint, in part, alleged that:
“Plaintiff states that the said C. H. Garrison, foreman, and with full authority to direct him, and with full knowledge of his physical condition and the peril to which he would be subjected by heavy lifting, negligently and carelessly directed him to assist another employee in unloading said engine boxes or bearings from said baggage car onto the trucks at the station; that he, at the time, advised said foreman, C. H. Garrison, that he was not able to lift said boxes or bearings, but was again ordered and directed in a very harsh manner to proceed with the unloading of said boxes or bearings, and that, through fear of losing his job if he refused to obey the orders and commands of his superior, who was C. H. Garrison, he proceeded to assist in the unloading of said boxes or bearings; that in unloading the same it was necessary to lift said heavy machinery, and while attempting to lift one of said boxes or bearings he wrenched and sprained the muscles of his back in the left lumbar region, thereby causing pyelitis and lumbar weakness, and as a result of said injury, which was caused by the negligence and carelessness of said defendants, their agents and employees, as aforesaid, he has, since said 8th day of March, 1933, been totally disabled and mil be continuously, for the balance of his life, totally disabled from following any occupations; that be has, by reason of said injury, suffered great pain and will continue to suffer ; that he has been, and will continue to be, under the care and treatment of a physician, and has and will be forced to expend money for doctors’ bills and medicine.” Damages were laid at $25,000.
Appellants answered the complaint thus filed by general denial and affirmatively pleaded assumed risk and contributory negligence in bar of recovery. Upon trial to a jury testimony was adduced in behalf of appellee to the following effect: That on March 8, 1933, appellee, was in the employ of appellants at Fayetteville, Arkansas, as caretaker of a motor car and certain railway coaches, and that C. H. Garrison was his foreman; that on said date the train which arrived from. Muskogee, Oklahoma, had on board two boxes containing bearings for locomotive engine drive wheels each of which weighed approximately six hundred pounds, and Garrison as foreman directed appellee and one Robinson to unload said boxes of bearings; that appellee upon being- directed by Garrison to assist in the unloading of said boxes advised Garrison that he was physically unable to make such heavy exertion, and in response thereto Garrison responded: “If you can’t lift them, you can roll them”; that appellee and Robinson unloaded the first box of bearings by rolling it and without accident or injury; that in unloading the second box of bearings appellee received his injury in the following manner: That it was necessary to lift or carry the second box of bearings because it was located behind a post at or near the end of the car and that appellee was seriously and permanently injured in effecting this lift.
The jury returned a verdict in favor of appellee and against appellants for a substantial sum, and a judgment was accordingly entered, from which this appeal comes.
By timely request for a ■ peremptory instruction, which was properly reserved in its motion for a new trial, appellant contended in the lower court, and asserts here on appeal, that the testimony advanced upon trial was insufficient to support appellee’s contention of actionable negligence, and we think this contention must be sustained.
There is no actionable negligence established by the testimony in this case.
The law is that where the perils of the employment are known to the mastér but unknown to the employee, the master has the duty of apprising the employee thereof, and a neglect by the master of such duty creates actionable negligence; but where the employee’s knowledge of the perils of the employment equals or surpasses that of the master, then there is no duty upon the master to apprise the employee of something already well known to him. In the recent case of McEachin v. Yarborough, 189 Ark. 434, 74 S. W. (2d) 228, we stated the applicable rule as follows:
“It is a. fundamental rule in the law of negligence that liability exists when the perils of the employment are known to the employer but not to the employee, and no liability is' incurred when the employee’s knowledge equals or surpasses that of the employer. 18 R. C. L., p. 548; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S. W. 113. The uncontradicted testimony here shows that the employer had no superior knowledge to that of employee in reference to the nature of the stone being” used, therefore had no duty to perform 'the neglect of which would create liability.”
In 18 R. C. L., § 62, p. 548, the rule is tersely stated as follows:
“Knowledge, then, or opportunity by the exercise of reasonable diligence to acquire knowledge, of the peril which subsequently results in injury to the employee is the foundation of the liability of the employer. Liability exists when the perils of the employment are known to the employer but not to the employee; and no liability is incurred when the employee’s knowledge equals or surpasses that of the employer.”
Our holding in the McEachin case cited supra finds support in the case of B. & O. Ry. Co. v. Berry, 286 U. S. 272, 52 S. Ct. 510, wherein the court said:
“There was no evidence that either the conductor or respondent knew that the caboose had stopped on the trestle, and, as they were together in the cupola of the caboose when the train stopped, their opportunity for knowledge, as each knew, was the same. Hence there is no room for inference that the conductor was under a duty to warn of danger known to him and not to respondent, or that respondent relied or had reason to rely on the conductor to give such warning. Nor was the request to alight a command to do so regardless of any danger reasonably discoverable by respondent. * * * There was no evidence that respondent could not have discovered the danger by use of his lantern or by other reasonable precautions, or that he in fact made any effort to ascertain whether the place was one where he could safely alight. * * *
“The conductor could have no knowledge of such danger, nor was he in position to gain knowledge, superior to that of other trainmen, whose duty it was to use reasonable care to ascertain, each for himself, whether in doing this work he was exposing himself to peril. * * *
“There was no breach of duty on the part of the conductor in asking the respondent, in the performance of his duty, to alight or in failing to inspect the place where he alighted or to warn him of the danger. If negligence caused the injury, it was exclusively that of the respondent. Proof of negligence by the- railroad was prerequisite to recovery under the Federal Employers’ Liability Act. ’ ’
The undisputed testimony adduced in the instant case is to the effect that appellee knew his physical condition equally as well as did Garrison, even.after Garrison had been apprised thereof, and appellee was the sole factor in applying his strength in the- removal of the heavy box of bearings whereby he received his injury. If this were negligence, it is exclusively that of appellee’s, and appellants are not responsible for the resultant in jury. See M. P. Rd. Co. v. Martin, 186 Ark. 1101, 57 S. W. (2d) 1047; Crawfordsville Trust Co. v. Nichols, 121 Ark. 556, 181 S. W. 904.
Since the testimony adduced by appellee, when viewed in the light most favorable to him, does not show any actionable negligence on the part of appellants which proximately produced or contributed' to his injury and resultant damage, it follows that the judgment in his behalf must be reversed, and remanded for a new trial. It is so ordered. | [
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