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Lee Sbamster, Chief Justice.
This suit involves a written lease agreement between the appellant, the lessor and the appellee, the lessee, whereby certain business property located in Wynne, Arkansas was leased to appellee for a seven year period. Appellant filed suit in St. Francis Circuit Court seeking to recover damages in the amount of $10,012.22 against the appellee based on the alleged breach of the provisions of said lease to make repairs to the property and surrender the premises in good condition at the termination of the lease. The appellee filed a cross-complaint containing two counts. Count I alleged water damage of $2,000 to appellee’s goods, wares, merchandise and fixtures due to appellant’s failure to repair the roof of the building as required by the terms of the lease and Count II alleged fraudulent representations on the part of the appellant whereby appellee was led to believe that a new lease would be tendered at the expiration of the old lease and appellee purchased large quantities of merchandise which he subsequently had to dispose of at a loss of $7,900.
On April 1, 1946 the lessee, E. M. Collins, entered into a written lease agreement with the lessor, Eugenia B. Ferrill whereby he leased the ground floor of a two story business building for a period of seven years. The contract details obligations of upkeep, enjoining upon the lessee a duty to take good care of the property at his own expense, making all inside and outside repairs, including sidewalks, windows, glass, and inside painting. At the termination of the lease period the premises were to be returned in good order and condition. The lessor was not to be called upon for any outlay whatsoever, except to make a conscientious and reasonable effort to keep the roof in good repair. A covenant in the lease excluded the lessee from use of the second floor where tlie lessor had certain merchandise stored therein. The door to the second floor was kept locked at all times.
The lease expired March 31, 1953. Conversations relating to the drafting of a new lease occurred from time to time, starting in September, 1952. These discussions culminated in the drafting of a tentative contract which was written by the attorney of the appellant. This proposed contract was presented to Collins on February 2G, 1953 at which time he asked for and secured additional time so that he might examine the contents of the proposed contract more thoroughly. Collins took a copy of the proposed contract to Forrest City where he had his attorney examine and copy the proposed contract. He contended that the new contract was unacceptable because it required construction expenditures inconsistent with what had been thought to be Ferrill’s assurances of renewal, and it limited the duration of the lease to a term of 39 months with no option to renew the lease. He also objected to the paragraph that limited his business activities in Wynne to this one store.
On March 4th the landlord wrote Collins whereby demand was made for possession of the premises by March 31st. A suggestion was that Collins remove his air conditioning unit at once in order that any repairs rendered necessary either by installation or removal could be made by the lessee before March 31st. Other repairs and restorations, except archways and the two front entrances, were to be made by March 31st. Attention was directed to a contractual provision extending to the lessor a specific time within which to give notice regarding restoration of the archways and front entrances.
In reply, Collins -wrote March 28th that there was a hole in the plaster near the rear of the building that he felt he should repair; also there might be some other work that would fall upon him under terms of the lease, but he had not checked this building with this thought in mind. Ferrill thought that he received the keys to the building from Collins on April 3, 1953.
On April 27, 1953, Eugenia B. Ferrill sued Collins for $10,012.22. For necessary inside repairs and conditioning she asked $2,467.22; for outside work $5,945; and for the reasonable rental value of the premises $400 per month for four months, or $1,600.
Collins’ answer was coupled with a cross-complaint containing two counts. The jury found for Collins on appellant’s complaint and awarded him the sum of $3,500 on his cross-complaint without making any apportionment as to the two counts.
' The appellant urges four grounds for reversal. Initially it is insisted that the court erred in excluding evidence relating to repairs to the second floor of the building, and in giving an instruction requested by counsel for Collins. By this instruction the jury was told that Collins was not required to make repairs to any outside portion of the leased premises except that he was obligated to maintain the sidewalk, the windows of the first floor, glass in the first floor of the leased premises and outside painting to the first floor, etc.
The court’s error, it is said, was the failure to give effect to Collin’s obligation to make repairs, “including . . . windoAVs, glass, and all outside and inside painting, and to conform to all reasonable regulations governing said building . . . and to make any reasonable repairs . . . that the lessor may deem necessary for the protection and preservation of said building and its appurtenances.”
What the appellant fails to consider is that the contract (Paragraph II) from Avhich the excised quotation is taken — including deletions as they appear in the brief —begins with this language: “The lessee hereby covenants and agrees to take good care of the leased premises and at all times to keep the same in good and proper repair and condition at his own cost and expense, making all inside and outside repairs, including all sidewalks, windows, glass, and all outside and inside painting, i . . the lessor is to make a conscientious and reasonable effort to keep the roof of the building in good repair . . . ’ ’ Tlie 8th paragraph of the 1946 lease states: “It is further understood and agreed that the lessee is not to have access to the second floor of the building.” The leased premises in so far as Collins was concerned could mean nothing but the ground floor. He was expressly forbidden access to the second floor. The lease was prepared by Mrs. Ferrill’s agent and it is not ambiguous. The objection cannot be sustained.
The trial court rightfully held that under the instant lease, the appellee was not required to make repairs or improvements to the second floor which was that part of the building not under his control as demised in the lease. In determining the construction of the lease, the court had to look to the whole contract in order to determine its meaning and had to reconcile paragraphs 1, 2 and 8. A tenant’s covenant to keep premises in repair did not extend to parts not under tenant’s control. Capital Amusement Co. v. Anheuser-Busch, Inc., 94 Colo. 372, 30 P. 2d 264; Rathbun Co. v. Simmons, 90 Cal. App. 692, 266 P. 369; Mederlander v. Cadillac Clay Co., 264 Mich. 434, 250 N. W. 281. The construction put upon the 1946 lease by the appellant, would require the lessee to repair the entire building and would be in direct conflict with paragraph 8 which denies tenant access te the second floor and with the expressed terms of the paragraph of the lease which provides that the lessor is to keep the roof of the building in good repair.
Appellee’s instructions Nos. 6 and 7 dealing with damage to the merchandise through failure of the landlord to satisfactorily repair the roof are alleged to be erroneous. Mrs. Ferrill’s commitment was to make a conscientious and reasonable effort to keep the roof in good repair. The evidence shows that on one occasion she spent eight dollars to stop leaks. But there is substantial testimony that Collins complained of the condition. It is also true that shortly after repossessing the property an entirely new roof was placed on the building by the appellant. While standing alone this reconstruction is not conclusive of the proposition that the old roof was virtually useless, it is a circumstance from which a factual inference of practical necessity could be drawn.
Attention is directed to Kennedy v. Supnick, 82 Okla. 208, 200 P. 151, 28 A. L. R. 1520, and Amer. Jur., Vol. 32, § 711, p. 588, which states: “As we have before said, the plaintiff had no access to or control over the upper part of said building. By the clause in said lease above quoted the first party agreed to keep said building in such repair that the party of the second part’s stock of goods shall not be damaged by the elements. Under this provision in the lease it was not incumbent upon the plaintiff, Supnick, to give any notice whatever to Dr. Kennedy. It was Dr. Kennedy’s business to see that the upper part of said building over which he had control was kept in such condition that the plaintiff’s goods would not be damaged by any rains that might fall. On his failure to do this, he was liable for whatever damage the plaintiff might sustain. ’ ’ In the case at bar the tenant was expressly excluded from the second floor. He had no means, during rainy periods, of making an inside examination of the roof to identify small leaks. Certainly an outside examination would have been unsatisfactory unless the deterioration became obvious. Mrs. Ferrill’s obligation was to make a conscientious and reasonable effort to keep the roof in good repair. It was for the jury to determine whether, in the light of competent evidence, a reasonable effort was made, and whether, in view of Collins’ exclusion from the second story, he acted as an ordinarily prudent man to prevent progressive damage to his merchandise.
Instruction No. 8, given on request of counsel for Collins, permitted a recovery if it should be found (a) that Mrs. Ferrill assured Collins that the lease could be renewed in substantially the same form; (b) that if relying solely upon such representation Collins purchased large quantities of merchandise; (c) that if the representations were made at a time when the landlord did not intend to renew the lease in substantially the form of the old lease, and (d) if the representations were coupled with fraudulent intention of putting Collins in a position where he either had to suffer a serious financial loss or execute a lease on unconscionable terms: if these facts were present and Collins sustained financial loss because of the conduct complained of, damages might be assessed in the sum to reasonably compensate him for such loss, but not exceeding the sum of $7,905.00.
Count II of the cross-complaint alleged that Mrs. Ferrill represented to Collins that it was her intention and purpose to execute a new lease substantially in the same form as the old one. There was no assertion that the assurance was fraudulently made to the determent of the appellee.
Collins was asked repeatedly regarding the representations of inducements held out by the Ferrills respecting a renewal of the lease, or the negotiation of a new lease. Finally, on cross-examination, he was admonished “ . . . to be careful about this, and as correctly as you can tell what was said with reference to the building being yours.” Quoting Ferrill he replied: “You have made us an excellent tenant and you know we are going to give you every consideration; so as soon as we can decide exactly what terms we want and how much we want for the building, we will proceed with the lease.”
There was no showing of any definite statement or understanding to support Count II; it was speculative and indefinite; no evidence exists of its being the proximate cause of any damage to appellee; it refers to the future and not to the past or present; and the elements of fraud have not been proven. Therefore, no cause of action accrued against the appellant simply because she did not submit a contract that was acceptable to the appellee. An oral lease of land for more than one year is void under the Statute of Frauds. An option in a written lease to renew upon terms and conditions to be agreed upon is void for uncertainty. Keating v. Mitchell, 154 Ark. 267, 242 S. W. 563. See also Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559.
Therefore, we must reject for want of substantial proof of promissory estoppel any allowance for misleading conduct incidental to renewal of the lease. The testimony indicates that the negotiations between the parties were indefinite and speculative as to the form and terms of the proposed lease. When asked about his objections to the proposed lease, Collins stated that the only terms and conditions that were objectionable to him were: the terms that called for him to make repairs to the building, which would include upkeep on the roof; the fact that the lease had a duration of only 39 months, with no option for renewal; and the clause in the lease that limited his business activity to this one business in Wynne.
We think that the trial court correctly sustained appellee’s motion to strike all items for repairs to the second floor of the building involved and was correct in giving appellee’s instruction No. 2. However, we think that the trial court should have directed a verdict in favor of the appellant on Count II of the cross-complaint and for the error in failing to do so that cause of action will have to be reversed, with directions to dismiss Count II of the cross-complaint. Since the amount of damages was not apportioned as to the two counts of the cross-complaint, the case is remanded for a new trial upon all issues except Count II of the cross-complaint.
This is the second appeal in this case. See Ferrill v. Collins, 222 Ark. 840, 262 S. W. 2d 885. | [
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Sam Robinson, Associate Justice.
A petition for a referendum on Act No. 94 of the Acts of the General As sembly of Arkansas for 1955 was filed with C. G. Hall, Secretary of State. Acting upon the opinion of the Attorney General that the petition was insufficient because no popular name or ballot title was designated, the Secretary of State refused to certify it to the election officials. Contending that the petition is valid in every respect, Alex H. Washburn, and others, have filed an original action in this Court to compel the Secretary of State to certify the petition. The Attorney General, on behalf of the Secretary of State, has responded. Joe Ray, and others, Officers and Directors of the Arkansas Poultry Federation, have filed an intervention. The principal point in issue is whether Amendment No. 7 to the Constitution of Arkansas and Act No. 195 of the General Assembly for 1943, Ark. Stats. Sec. 2-208, have been complied with by the sponsors of the referendum petition.
Amendment No. 7 reserves to the people the right to refer and initiate laws; with reference to the petition to submit a measure to a vote of the people, the Amendment provides: “At the time of filing petitions, the exact title to be used on the ballot shall, by the petitioner, be submitted with the petition . . .” This amendment was adopted at the General Election in November 1920; it is in substitution of the I. and R. Amendment approved February 19, 1909. The enabling act for the 1909 amendment, Act No. 2 of the Extraordinary Session of the General Assembly for 1911, is repealed only in so far as it is in conflict with the 1920 amendment. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. We mention the 1911 Act at this point because Section 2 thereof provides: “The petition and order for referendum shall be substantially in the following form.” Then follows the form that must be used in preparing the petition.
In 1943, the General Assembly adopted Act No. 195, which is now Ark. Stats. § 2-208. It provides: “Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft thereof to the Attorney General, with a proposed legislative or ballot title and popular name. The Attorney General shall, within 10 days, approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each such amendment or act; the ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure. If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in such premises, they may, by petition, apply to the Supreme Court for proper relief.
As heretofore mentioned, the act which petitioners seek to refer is Act No. 94 of the Acts of the General Assembly of 1955. The substance of this act is that it exempts all feedstuffs used in growing or producing livestock and poultry from what is known as the Gross Receipts Tax Act and the Arkansas Compensating Tax Acts, otherwise the Sales Tax. On April 1, 1955, Mr. Wash-burn, one of the petitioners, wrote to the Attorney General as follows: “I submit herewith an original draft of a petition for a referendum on Act No. 94 of 1955 for your consideration in accordance with Sec. 2-208 Ark. Stats. 1947.” With the letter was enclosed the original draft of the petition. The petition is headed in bold face capital letters: ‘ ‘ PETITION FOR REFERENDUM. ’ ’ Then printed under the above is: “ Sales Tax Exemption for Livestock and Poultry Feed.” Following, in very small print is: “This law was House Bill No. 222 by Teague of Carroll, et al.” Next is the petition itself and following the petition is: “Act No. 94, approved February 22, 1955 ’ ’; thereafter is set out the act in full, including the title and enacting clause. On April 5, 1955, the Attorney General wrote to Mr. Washburn: “I have examined your form for petition for referendum on Act No. 94 of 1955 and in accordance with Ark. Stats. 1947 (2-208), the same as submitted is hereby approved.”
Nothing is mentioned in either the letter from Wash-burn to the Attorney General or from the Attorney General to Washburn about a popular name or ballot title. The sponsors of the petition proceeded to obtain signatures thereto and when a sufficient number were obtained, the petition was filed with the Secretary of State. There immediately arose the question of whether Amendment No. 7 and Ark. Stats. Sec. 2-208, Act 195 of 1943, had been complied with in respect to obtaining the approval of the Attorney General as to the popular name and ballot title before the petition was circulated. The Secretary of State promptly asked for the Attorney General’s opinion about the matter. The Attorney General answered the Secretary of State as follows: “It is my opinion that, since the sponsor has not submitted a ballot title and popular name as required by Section 2-208, and has not submitted a ballot title to the State Board of Election Commissioners as required by the 7th Amendment, as Secretary of State or as a member of the State Board of Election Commissioners, you have no authority to certify, order or place this question on the ballot as the provisions of the Constitution and Statutes which h'ave not been complied with are mandatory.” The Secretary of State, in accordance with the opinion of the Attorney General, refused to certify the petition to the election officials. Shortly after receiving a letter from the Secretary of State refusing to certify the petition, the sponsors filed this original proceeding. It is the contention of the petitioners that the sub-heading on the petition “Sales Tax Exemption for Livestock and Poultry Peed” is the popular name and, since the act itself contains a title, this title should be considered as the ballot title; and that, in any event, the petitioners should be allowed to amend the petition by designating a popular name and ballot title.
Act No. 195 of 1943, Ark. Stats. § 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should sub stitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Here, the Attorney General was not asked to approve a popular name or a ballot title. Nothing was pointed out to him as a popular name or ballot title which the circulators of the petition intended to use as such. The Attorney General says that he was not asked to approve or disapprove a popular name or ballot title and that he has not done so; that he only gave his opinion as to the form of the petition. The form of the petition is set out by Act No. 2 of the Extraordinary Session of 1911, and that part of the Act as to the form of the petition was not repealed by the 1920 amendment to the Constitution.
It is clear that the framers of Act 195 of 1943 intended that the Attorney General should pass on the sufficiency of the ballot title and the popular name before the petition is circulated. The Act provides: “If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in the premises, they may, by petition, apply to the Supreme Court for proper relief.” There is nothing complicated about Act 195; it is not difficult to follow; it is not calculated to make troublesome the right to take advantage of the I. and B. Amendment. It goes without saying that before any one could safely undertake to refer a measure to the people it would be necessary to review the Constitution and the Statutes pertaining to such referendum. It would be very easy to say to the Attorney General: “Now here is what we propose as a ballot title and this is what we propose as a popular name.” And the Attorney General would be required to either approve that which had been submitted or substitute something else. If the sponsors should feel aggrieved at his acts, they would have the right to apply to the Supreme Court for proper relief. This is not a contest between the Attorney General and the sponsors of the referendum petition. It must be remembered that Act No. 94 was adopted by the General Assembly of the State of Arkansas; and the sponsors of the Act, who we presume are the intervenors here, have some rights in the matter. If the Attorney General approved a ballot title and popular name that was calculated to be misleading or not suitable to the question to be voted on, there would be a remedy in the courts. But those interested in the adoption of the measure could hardly attack a popular name or ballot title when neither had been designated as such; and, especially so, when the Attorney General had not passed on a ballot title or popular name and in fact states that he had not been requested to give an opinion in respect to such title and name.
Petitioners cite Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, where a petition to initiate a county salary act was filed with the County Clerk. It appears that the act as filed had a title which was sufficient to convey a fair meaning of the act; but such title was not designated as a ballot title. The Court held that although the title of the act was not designated the ballot title, there was substantial compliance with Amendment No. 7. This was also the holding in Blocker v. Sewell, 189 Ark. 924, 75 S. W. 2d 658; but both of those cases were decided many years prior to the adoption of Act No. 195 of 1943, Ark. Stats. § 2-208.
The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must contain no partisan coloring. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. See also Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. The proposed popular name and ballot title should be submitted specifically to the Attorney General in order that he may determine whether the name and ballot title meet these requirements.
In Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547, Mr. Justice Prank Smith said: “It appears, therefore, that a very small per cent of our population may, at each general election, assemble the electorate into both a gen eral assembly and a constitutional convention. The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the Constitution conferring these powers should be required. ’ ’ And it might be added that there should be substantial compliance with the statutes enacted in aid of the Constitution. “The great body of the electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.” Westbrook v. McDonald, supra. There should be no confusion, no uncertainty, nothing indefinite, about what is designated as the popular name and ballot title when the petition is presented to the Attorney General. The popular name and ballot title should be called to the Attorney General’s attention specifically so that he may act in accordance with the statute. Here, this was not done and the Attorney General has rendered no opinion approving a popular name or ballot title and the Secretary of State correctly refused to certify the petition to election officials.
As to petitioners’ contention that time should be allowed to amend the petition for referendum by designating a popular name and ballot title, Ark. Stats. § 2-208 provides for obtaining the Attorney General’s approval of popular name and ballot title before the petition is circulated; therefore, of course, it could not be amended by getting such approval after the circulation of the petition.
The petition to require the Secretary of State to certify the referendum petition is denied.
Justices MoFaddin and Millwee dissent.
Justice George Rose Smith disqualified. | [
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Per Curiam.
Appellee Florence D. Cassidy obtained a $30,000 judgment against appellant Marjory Holt Rudolph in a personal injury case and the cause is here on appeal. Appellant has filed in this court a motion to be permitted to file a supersedeas bond in the sum of $25,000, alleging that she is insolvent and cannot make a $30,000 bond but that she has liability insurance and is able to make a $25,000 bond. The insurance carrier is not a party to the litigation. Since appellant alleges in the motion that she is insolvent it is obvious that a bond for only part of the judgment is for the benefit of one who is not a party to the action. Appellant is not merely asking that she be permitted to file a bond for a part of the judgment — she wants a particular $25,000 superseded —the $25,000 for which the insurance carrier may be liable. Otherwise the motion would be meaningless, as an order of this court merely allowing a supersedeas bond for part of the judgment and leaving appellee at liberty to attempt to collect the other part pending appeal would leave the judgment creditor in position to proceed against the carrier for that part of the judgment not superseded.
Actually, there are only two parties before this court: the appellant Rudolph and the appellee Cassidy. Appellant Rudolph says she should be allowed to make a bond for part of the judgment because she cannot make bond for the judgment in full. The fact that she is insolvent and cannot make a supersedeas bond for the full amount of the judgment is no justification for this court authorizing a bond for a lesser amount, even assuming, but not deciding, that we are permitted to do so by Act 555 of 1953. If the insurance carrier were a party to this suit and seeking to make a bond only for the amount for which it could be held liable under the terms of its policy there might be good grounds for permitting it to do so, but the insurance company is not a party.
Appellant further contends that Ark. Stats., § 27-2125, authorizes the making of a bond for part of the judgment. The statute provides: “The supersedeas may be issued to stay proceedings on a part of a judgment or order, in which case the bond shall be varied so as to secure the party superseded.” This statute has no application in a case where there is a money judgment against one person in favor of another person. If the judgment is for something in addition to money, such as a lien, as in Royal Theatre v. Collins, 102 Ark. 539, 144 S. W. 919, it could be “varied so as to secure the party superseded,” and § 27-2125 would apply. But here, if appellant were permitted to make a supersedeas bond for only part of the money judgment appellee would have no security at all for the balance. Ark. Stats., § 27-2121, provides: “A supersedeas shall not be issued until the appellant shall cause to be executed before the clerk of the court which rendered the judgment or order, or the clerk of the Supreme Court, by one or more sufficient sureties, to be approved by such clerk, a bond to the effect that the appellant shall pay to the appellee all costs and damages that shall be adjudged against the appellant on the appeal, or in the event of the failure of appellant to prosecute said appeal to a final judgment in the Supreme Court, or if said appeal shall for any cause be dismissed, that said sureties shall pay to the appellee all costs and damages and shall perform the judgment of the court appealed from; also that said appeal shall be prosecuted without delay; also, that he will satisfy and perform the judgment or order appealed from in case it should be affirmed, and any judgment or order which the Supreme Court may render, or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, . . . ”
The motion by appellant to be permitted to make a supersedeas bond for less than the full amount of judgment is denied.
Seamster, C. J., not participating. | [
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McCulloch, C. J.
Defendant, Eli Roy, was indicted by the grand jury of Lee County for the crime of grand larceny, and was convicted. The accusation is that he stole a cow, the property of one Mary Overton. The stolen animal was identified by the ear-marks, general appearance, and color,.and the evidence tended to show that defendant, after stealing the cow, drove her to Marianna and sold her to a butcher. The defendant lived about two miles distant from Mary Overton, and the evidence establishes the fact that he knew that the cow belonged to her. The cow was running out, but was accustomed to coming home about every two weeks to be salted. Witnesses testified that they saw defendant driving the cow to Marianna, and the butcher testified that defendant sold her to him.
We are of the opinion that the evidence was sufficient to warrant the belief that the cow which defendant sold to the butcher was the property of Mary Overton, and that it w.as stolen by defendant. The evidence was sufficient, therefore, to sustain the verdict.
The State introduced as a witness one Lonnie Burnsides, and undertook to prove by him that, on or about September 16, the day which the evidence shows defendant sold the cow to the butcher in Marianna, he (witness) passed defendant’s house late one evening and saw this cow in defendant’s lot. The witness stated that he didn’t see the cow in the lot, but saw her on the outside and near the side of the road with a drove of cattle. Witness then proceeded to testify that he had frequently seen this cow since then, even as late as about three weeks before the trial, and that he notified Mary Overton’s son of the fact that he had seen the cow. He further testified that Mary Overton’s son was with him on one occasion, and saw the cow, which was long after defendant is alleged to have stolen her and sold her to the butcher.
The prosecuting attorney then asked this witness, for the purpose of impeaching him, if he had not stated, at a certain place and on a certain occasion, in the presence of witnesses that he saw the cow in defendant’s lot, and the witness denied that he had made any such statement. Later the prosecuting attorney was permitted to prove, over defendant’s objection, that the witness, Lonnie Burnsides, had made the statement, on the occasion named, about seeing the cow in defendant’s lot.
Our statute provides that the party producing a witness “may contradict him with other evidence, and by showing that he has made statements different from his present testimony. ” Kirby’s Digest, § 3137.
Counsel for defendant invokes the rule, which seems to be sustained by authority, that it is error to permit a party to thus impeach his own witness except where the witness testifies to some matter prejudicial to the party introducing him. Conceding that this is the correct rule, it has no application to the present case for the reason that the testimony of the witness, Burnsides, was highly damaging to the State’s case. The testimony, if true, established the fact that he had seen the cow long after the time when, according to the State’s contention tion, she had been stolen by defendant, sold to the butcher and killed. In fact, the testimony of that witness, if true, established the fact that the cow was alive, in the range, after the defendant was indicted by the grand jury. The State therefore had the right to break down the testimony of the witness by introducing contradictory statements concerning a material fact.
It is also insisted that, as the proof of the contradictory statements was only for the purpose of impeaching the witness, it was error for the court to admit the testimony without cautioning the jury to consider it for no other purpose. It is true that when such testimony as that which was introduced is competent for one purpose, it is the duty of the court, when requested, to explain to the-jury the purpose for which it is admitted and to admonish the jury not to consider it for any other purpose. The party objecting can not, however, complain or object unless he has requested the court to give such admonition. Where the testimony is competent for one purpose, if the other party conceives that it is likely to be considered by the jury for another purpose, and thus become prejudicial to his rights, it is his duty to call the matter to the attention of the court and ask an instruction limiting its consideration. We have held to this rule fin a good many cases. Counsel rely upon language used by Judge Riddick in his opinion in Thomas v. State, 72 Ark. 582; but when the whole opinion is considered, it is evident that Judge Riddick was not attempting to lay down any rule contrary to our present views. That case was reversed on account of the insufficiency of the evidence, and he was merely stating what appeared to be reasons for the unsupported verdict, and, among other things, said the jury were probably misled by impeaching testimony. However, we, are convinced that it would be laying down an incorrect rule to say that a party would be entitled to a reversal on account of the court’s failing to do something which he did not request the court to do.
This is the only error complained of, and we are of the opinion that no grounds exist for the reversal of this case. The judgment is therefore affirmed. | [
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McCulloch, C. J.
George Remshard was a soldier of the United States in the Mexican war, and was honorably discharged from the military service in August, 1851, at Fort Constitution, in the State of New Hampshire. He was married to Elizabeth P. Boggs at the city of Philadelphia in the year 1855, and had five children, the issue of that marriage. He disappeared and deserted his family in 1876, and they heard nothing of him until after his death, which occurred in 1907 at Jonesboro, Arkansas, where he then resided. His wife, Elizabeth P., died in 1884, and, under the name of Renshaw, which he assumed after leaving his former home and family, he was married to appellee, Anna M-, at Jonesboro, Arkansas, in February, 1890. He bore that name during the remainder of his life, and his wife and acquaintances knew him only by that name. He told his wife that he had no children or other kin dred. When he died, he owned a homestead in the city of Jonesboro, which he acquired after his intermarriage with appellee. He also owned, in addition to his household effects, other property consisting of money in bank. Appellee administered on the estate of her deceased husband, and paid all debts of said estate. She filed her final settlement account as such administratrix, showing that she had paid all the indebtedness of the estate and that-the chancery court of Craighead County had rendered a decree vesting in her all the property of said decedent; and the probate court on July 15, 1908, entered an order approving said account and discharging her. She instituted an action in the chancery court of Craighead County against the unknown heirs of George Renshaw, and in April, 1908, that court rendered a decree reciting a finding that George Renshaw left no children or other heirs at law and vesting in her the title to all of the property of said decedent. Appellants, who are the children and grandchildren of George Remshard, instituted the present action on May 31, 1910, against appellee in the chancery court of Craighead County for the purpose of cancelling said former decree as a cloud on their title as heirs of said decedent to the real estate owned by him at the time of his death, and also requiring appellee to account to them for the personal estate of said decedent. The chancery court decided that, as to the real estate, appellee is entitled to a lien thereon for the sum of $1,542.08, which amount the court found had been used of her funds in constructing the dwelling house on the lot in question, and, as to the personal property, the court decided that appellants are barred by the judgment of the probate court confirming appellee’s final settlement account as administratrix.
As the chancellor did not uphold the former decree vesting title to the real estate in appellee, but decreed the title to be in appellants subject to appellee’s homestead right and her lien aforesaid, we need not consider the question of the validity of the former decree, and will confine ourselves to an inquiry whether the chancellor was correct in declaring a lien in appellee’s favor. The evidence tends to establish the fact that appellee received from her own separate estate the sum of $946 in money, which was used by her husband in paying for the construction of the dwelling house on the lot in Jonesboro which he had purchased. At least, a portion of the money was received after the house was completed, but it was used in discharging a mortgage on the property given for borrowed money used in building the house. Her husband represented to her that he had no children or other relatives, and that upon his death she would inherit all his property. In reliance upon those representations,. she permitted him to use her money in paying for the construction of the house and in discharging the mortgage on the property. The chancellor found those to be the facts, and his decision in delcaring.a lien in her favor was correct. The money used was a part of her own estate and remained her separate property as long as she chose. She parted with it and allowed her husband to use it in improving his own property and in discharging the mortgage .lien solely on the faith of his false representations that the property would come back to her at his death because of there being no other heirs. The result is the same as if she had entrusted the money to him as her agent, and he had wrongfully used it in improving his own property and in discharging liens thereon. In that case he would be held to be a trustee for her, and a lien in her favor for the money wrongfully used would be declared on the property into which the money could be traced. Atkinson v. Ward, 47 Ark. 533. She is entitled to subrogation to the extent of the amount of her money used in discharging the mortgage lien. Spurlock v. Spurlock, 80 Ark. 37.
Counsel for appellants invoke the principle that a resulting trust will not be declared on account of payment of purchase money unless the same be paid at the time of the purchase. Milner v. Freeman, 40 Ark. 62; Red Bud Realty Co. v. South, 96 Ark. 281. That principle has, however, no application to the facts in the present case. Appellee is not seeking to enforce a resulting trust, but she seeks to enforce a lien by reason of a constructive trust arising from the wrongful use of her money. Atkinson v. Ward, supra. The court did not decree the title to be in her as cestui que trust, but merely declared a lien in her favor for the money wrongfully used in improving her husband’s property and in discharging the prior lien. The evidence was sufficient to warrant the conclusion that the money was used in the way the appellee claimed.
“Whenever another’s property has been thus wrongfully appropriated and converted into a different form, equity impresses a constructive trust upon the new shape it may take, and the right to follow and claim, or charge with a lien, the product of or substitute for the original thing in the hands of the trustee ‘only ceases,’ as Lord Ellenborough says, ‘when the means of ascertainment fails.’” Atkinson v. Ward, supra.
The contention of appellants, that this case is ruled by Butterfield v. Butterfield, 79 Ark. 164, can not be sustained for in that case there was merely a voluntary loan, by a sister to her brother, of money used in payment for property subsequent to the purchase thereof, and the court held that there was no resulting trust. The question of 'wrongful use of funds did not arise in that case.
The appellants insist that the chancellor allowed $56.28 too much in computing interest, and we find that contention to be correct. The decree to that extent will be modified. This error does not appear to have been called to the attention of the chancellor, otherwise it doubtless would have been corrected.
As to the personal property, appellee’s settlement accounts as administratrix in the probate court were not successfully assailed for fraud, and the judgment of that court approving the final account is conclusive as to the amount of property received by her and the amounts distributed in the payment of debts and expenses of administration. Those accounts show that she received $1,004.76 in money, and paid out $375.15 on debts and expenses of administration. She was entitled to retain $300 in accordance with the provisions of section 3 of Kirby’s Digest (there being no minor children), and the further sum of $150 under section 74 of the Digest (the estate being solvent), and, in addition thereto, she was entitled to the sum of $334 as her dower out of said funds. Ex parte Grooms, post p. 13. These amounts to which she was entitled aggregate the sum of $784.92, leaving a balance of $219.84, which is less than the amounts which she expended in the payment of debts and expenses of administration. It appears somewhere in evidence that there were household effects of the value of about $500, which she retained, but the evidence as abstracted by appellants does not show of what articles this property consisted. Appellee was entitled to take advantage of the provisions of section 72 of the Digest, which allows thé widow to retain ‘ ‘ all the wearing apparel of the family for their own use, her wheels, looms, sewing machines, and other implements of industry, all yarn cloth, and clothing made up in the family for their use, and such grain, meat, vegetables, groceries and other provisions as may be necessary for herself and her own and her husband’s family residing with her, for a period of twelve months; also, her household and kitchen furniture, beds and bedding, sufficient for herself and family residing with her.”
The question, whether she had the right to retain all the household effects has not been argued, and therefore we need not inquire further whether all the articles fall within the provisions of section 72 above quoted.
Upon the whole, we think that the chancellor’s decree was correct, whether- based on correct reasons or not. With the modification indicated above, the decree is affirmed. | [
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Kirby, J.,
(after stating the facts). Of the many errors assigned in the motion for a new trial only such will be noticed as are necessary to the decision herein.
It is first strongly urged that the court erred in permitting the jury to separate during the trial before the case was sub mitted to them. It is within the discretion of the trial court to permit the jury to separate, or to keep them together, after admonishing them as the law requires, in the charge of a proper officer, before or after the case is submitted to them. Sections 2390-2893, Kirby’s Digest. But this discretion of the court in allowing the separation of the jury should be exercised with the utmost caution, especially in trials for felonies, since it is possible for great prejudice.to-result from such separation. Johnson v. State, 32 Ark. 309.
In Ferguson v. State, 95 Ark. 430, the court said: “The rule as to the separation of jurors during a trial in a felony case is stated in Maclin v. State, 44 Ark. 115, 119, as follows: 'But it has long been the rule of this court in case of felony that a separation of a juror from his fellows pending the trial casts upon the State the burden of showing that no improper influence was brought to bear upon the juror during his absence. In other words, the mere fact that a juror separates from his fellows without the order of court is prima facie ground for a new trial, unless it affirmatively appears that the separating juror was not subjected to any noxious influence.’ The object of this rule is apparent. The jury are kept together, and an officer is put in charge of them and directed to see that they do not separate to protect the defendant against outside influence. They are not allowed to have any communication with outside persons with respect to the guilt or innocence of the defendant on trial, and it is the duty of the officer in charge to see that they do not. This protection is due to the defendant, and the State should see that he receives it. It is not expected of him to employ some one to watch the jury and report any misconduct on their part. Hence, when they separate, the burden is upon the State to show, by circumstances or directly, that the absent juror was not subjected to any injurious influence.”
It is true in this case the judge permitted this juror to separate from the others that he might attend his sick wife, and admonished him properly as to his conduct during his absence from the jury, and that he should return as soon as possible, but the court had already decided that it was necessary in order to secure the accused a fair trial that the jury should be kept together and placed them in charge of an officer properly directed for that purpose. Having exercised the discretion to keep the jury together, the statutory requirements should have been complied with, in order to preserve the integrity of the trial, as was said in Southerland v. State, 76 Ark. 488.
Conceding, without deciding, that the judge, under the circumstances could permit it, he should have required an officer to accompany the juror, during his separation from the others, after having héld that it was necessary that the jury be kept together. Not having done so, the case is not different from that where it is shown a juror was separated from the jury, without the court’s order, after it was put in charge of the officer to be kept together, and such separation is prima facie ground for a new trial, unless it affirmatively appears that the separating juror was not subjected to any noxious influence. And the burden is upon the State to show that no prejudice in fact resulted from such separation, and it could have been discharged by the court having the juror sworn and questioning him as to his conduct during the separation, but, there being no testimony in this case to remove the presumption, the court erred in not granting a new trial.
It is further insisted that there was a fatal variance in the proof, it being alleged that the rape was committed upon Ella Hardcastle, and proved that she had been married and that her husband’s name was Musser. We do not think this contention sound, however. She testified that she had not taken her husband’s name, since he was away at medical school, and that she was a trained nurse and commonly known as Ella Hardcastle. Bishop on Criminal Procedure, 686; Joyce on Indictments, 356. See also Ford v. State, 129 Ala. 16; Whittington v. State, 121 Ga. 193; Bartlett v. State, 128 Ia. 518; Durham v. People, 5 Ill. 172; Stallworth v. State, 41 So. (Ala.) 184.
Numerous assignments of error are urged as to the giving and refusing of instructions, and especially because of the court’s failure -to .give certain instructions upon reasonable doubt. Some of these instructions requested correctly stated the law, but the court gave numerous instructions correctly submitting the question and carefully guarding appellant’s rights upon this phase of the law, and committed no error in refusing to give others upon the same point.
We have carefully examined the charge, and find it full, fair and correct, and that defendant’s rights were in no wise prejudiced thereby.
For the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Robinson, J.
This is an appeal from an order overruling defendant’s motion that the case be dismissed because he had not been brought to trial within three terms after the filing of the information. This is an appealable order. Ware v. State, 159 Ark. 540, 252 S. W. 934.
Ark. Stats., § 43-1709 provides: “If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which such indictment is pending, which shall be held after the finding of such indictment, and such holding to bail on such indictment, he shall be discharged, so far as relates to such offense, unless the delay happened on his application. ’ ’
The record reflects that on the 8th day of May, 1953, the Prosecuting Attorney filed in the Circuit Court an information charging the defendant with murder in the first degree. On the 12th day of May, 1953, defendant was released on bond. The term during which the information was filed ended in September, 1953, with a new term beginning at that time. The case was set for trial for the 2nd day of November, 1953, which was during the September term, and which was the first term subsequent to the time that the information was filed. The record shows that the case was continued on the motion of the defendant. The next term of court began in March, 1954, and the case was not set for trial during that term. The case was again set for trial for December 3, 1954, which was during the September, 1954, term. Prior to December 3, 1954, the defendant filed a motion for continuance which was granted. He then filed a motion to dismiss. * \..
The leading case on the subject is Stewart v. State, 13 Ark. 720. There it was held that the term at which the defendant is indicted is to be counted as one of the three terms mentioned in the statute. In other words, the statute is applicable, where the defendant is not brought to trial at the end of "the second term held after the term during which the indictment was filed. Here, the case was set for trial at the first term following the term in which the information was filed. Although the record shows that the case was continued at that time on motion of the defendant, it is contended by the defendant that the Prosecuting Attorney actually did not intend to try the case because of insufficient evidence that; the case was not brought to trial because the State was not ready. In any event, the record clearly shows, according to the testimony of defendant’s counsel, that the defendant acquiesced in the continuance. The Prosecuting Attorney testified that, as he remembered it, the defense counsel moved for a continuance, and that the State did not oppose it. This motion was made during the first term subsequent to the filing of the' information.
The case was not set for trial during the March, 1954, term of court, but was set for December 3 during the September, 1954, term. In other words, the case was set for trial twice, and both times the defendant either moved for a continuance or acquiesced in a continuance. At no time did two terms of court following the filing of the information expire without the case being set for trial. The statute is not applicable where the delay is due to the application of the defendant, or where the defendant concurs in the delay. Stewart v. State, supra; Dillard v. State, 65 Ark. 404, 46 S. W. 533; Fox v. State, 102 Ark. 393, 144 S. W. 516; Williams v. State, 210 Ark. 402, 196 S. W. 2d 489.
Affirmed. | [
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Kirby, J.,
(after stating the facts). No complaint is made of any of the instructions given, nor of the introduction or rejection of testimony, but only that the verdict was contrary to the law and the evidence.
The jury found by their verdict for the appellant that the appellee had negligently left open and unguarded an excavation in the street of the city, into which appellant drove in the night and was injured, but it assessed only one dollar damages for the injury, although the testimony was virtually undisputed that the damages suffered by appellant on account of such injuriés amounted to a much larger sum.
If appellant was entitled to a verdict in his favor, as the jury have found upon sufficient testimony that he was, they should not have disregarded the undisputed evidence relative to the damages in fixing the amount thereof and found contrary thereto. Having done so, the court should have granted the motion for a new trial. Dunbar v. Cowger, 68 Ark. 446.
The court erred in refusing to sustain the motion, and the judgment is reversed and the case remanded for a new trial. | [
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McCulloch, C. J.
This is an action instituted by appellant, Hope Spoke Company, a concern engaged in operating a manufacturing plant at Hope, Arkansas, against the Maryland Casualty Company, to recover on a policy of employers’ liability insurance the amount of a loss sustained by reason of appellant’s liability for an injury to Homer E. Presley, one of its employees. Presley sued appellant, and recovered judgment for damages, and on appellee’s refusal to pay the judgment appellant paid it and instituted this action. The parties entered into a stipulation in the lower court to the effect that, in the event appellant should be entitled to recover at all, the amount of such recovery should be the sum of $3,812.03, with interest from September 6, 1910, the date of the judgment of the circuit court in Presley’s action against appellant. Appellee defended solely on the ground that “immediate notice’’ of the accident was not given, as provided for in the policy, and on that ground that the trial court directed the jury to return a verdict in appellee’s favor.
So much of the policy as is material to the question now presented reads as follows:
“In consideration of forty-nine and 50-100 dollars ($49.50) initial premium, which is based on the estimated compensation set forth in the schedule below, * * * the Maryland Casualty Company, of Baltimore, herein called the company, hereby agrees t o indemnify Hope Spoke Company, of Hope, * * * against loss from the liability imposed by law upon the assured. for damages on account of bodily injuries, including death resulting therefrom accidentally suffered by any employee of the assured while upon the premises * * * occupied by the assured in the conduct of the business and at the places mentioned in the schedule below; provided such bodily injuries or death are suffered as a result of accidents occurring within the period of twelve months, beginning on the 1st day of April, 1909, at noon, and ending on the 1st day of April, 1910, at noon. * * * The company’s liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to one person is limited to five thousand and 00-100 dollars ($5,000), and subject to the same, limit for each person, the company’s total liability for loss from an accident resulting in bodily injuries, including death therefrom, to more than one person is limited to ten thousand and 00-100 dollars ($10,000). In addition to these limits, however, the company will, at its own cost (court costs being considered part thereof), investigate all accidents and defend all suits, even if groundless, of which notices are given to it as hereinafter required, unless the company shall elect to settle the same. * * * Immediate notice of any accident and of any suit resulting therefrom with every summons or other process must be forwarded to the home office of the company, or to its authorized representative. ”
It appears from the evidence adduced at the trial that appellant had for some years carried this kind of insurance in another company, the Standard Life & Accident Insurance Company, of which W. W. Carnes & Son, of Memphis, Tennessee, were the general agents — the policy being procured by appellant from those agents through the local agent at Hope, Arkansas. Subsequently the Standard Company decided not to carry the insurance any longer, and Carnes & Son procured a policy for appellant from appellee company through its agent, D. A. Fisher, of Memphis. This was in April, 1908, and the policy was renewed by issuance of the present policy dated April 1, 1909, both of which policies were delivered to Carnes & Son, who forwarded the same to the local agent at Hope for delivery to appellant, the last policy being accompanied by their letter reading as follows:
“We now inclose you herewith the above liability policy renewing last year’s contract. We have rewritten this policy on the same basis as last year, and trust that you will find the same in order and be able to deliver. We also inclose you herewith payroll statement which we would thank you to have completed by the spoke company, showing the amount of wages actually expended by them during the last policy year. Your attention to this matter will be appreciated by
“Yours very truly,
“W. W. Carnes & Son.”
In procuring the insurance from the Fisher agency, Carnes & Son were acting as brokers. The evidence shows that there is a custom or usage of business in insurance circles that “if, for any reason, an agent is not in a position to take care of a certain policy or class of insurance in the company that he represents, it is customary for him to place that in another company through their agent, ” and that after a policy has been issued and delivered, “in order to show a proper courtesy to the broker, all transactions of any nature, either claims, or substitutions of policies, or indorsements, should be handled through the broker, and not direct with the assured.”
Presley was injured on December 22, 1909, and on the same day the local agent at Hope, upon appellant’s request, forwarded notice thereof by mail to Carnes & Son, using for that purpose blanks furnished by appellee. The evidence tends to show that appellant’s manager was for some reason laboring under the mistake that the liability insurance was still carried under a policy of the Standard Company. Carnes & Son overlooked the fact that the risk had been changed from the Standard to the appellee company and delivered the notice to the claim agent of the Standard Company for investigation. The first notice mailed to Carnes & Son was lost in the mail, and appellant, on learning of that fact from subsequent correspondence with Carnes & Son, mailed them another notice on January 3,1910. The claim agent of the Standard Company was sick when the notice was delivered at his office, and on January 17, 1910, when he returned to work, he proceeded to investigate the circumstances of the injury to Presley under the belief that the risk was carried by his company. He ascertained on January 24, 1910, that his company did not carry the policy, and he called the attention of Carnes & Son to that fact, who realized the mistake they had made, and called up the Fisher agency by telephone and gave verbal notice of Presley’s injury. This notice was referred to appellee’s claim agent,
who went to Hope and made a complete investigation of the circumstances of the accident, but did so under an express agreement that the investigation would not operate as waiver of any of the requirements of the policy. Appellee subsequently denied liability on account of the alleged failure to give immediate notice, and thereafter Presley’s action against appellant was instituted, of which appellee was duly notified. There is also testimony to the effect that, a few months prior to Presley’s injury, the injury of another employee was reported to Carnes & Son in the same manner that this notice was given, that Carnes & Son gave notice to appellee, and that the claim was investigated by appellee and a check in payment of the claim duly forwarded, all of the correspondence being conducted through Carnes & Son.
It will be seen from the foregoing statement that appellee’s agent, D. A. Fisher, who issued the policy, received actual notice of Presley’s injury 32 days after it occurred,- and that appellant, in giving the notice to Carnes & Son, did so under the honest belief that the latter was agent of appellee with authority to receive notice. ' It is also apparent from the testimony that appellee sustained no injury by reason of notice not having been given earlier, for it made a full investigation in due time, and it is not claimed that it suffered by the loss of evidence or otherwise on account of the' omission to give the notice. The contract of insurance does not in express terms make the provision with reference to giving notice of an accident a condition upon which liability of the insurer depended. The absence of language indicating an intention to make compliance with that provision a condition of recovery is noticeable. It does not in express terms declare a forfeiture of the insured’s right to recover upon failure to give notice; nor can it be fairly implied from the language of the contract that the provision was intended as a condition precedent to the right to recover. On the contrary, the form of the policy and the language employed in it indicate a contrary intention. The first paragraph declares an absolute and unqualified undertaking on the part of the insurer to indemnify the insured against loss from liability for accidental injuries to employees. The next paragraph specifies that the liability shall be limited to the sum of five thousand dollars for injury to one person and ten thousand dollars for all injuries, and then provides that, in addition thereto, the company will, at its own expense, investigate all accidents and defend all suits, even if groundless, “of which notice is given as hereinafter required.” This undoubtedly makes the right to recover expense of investigating accidents and the cost of suit depend, as a condition precedent, on a timely giving of notice in accordance with the requirement of the policy. But it is significant that the preceding paragraph, declaring the liability of the insurer for loss from the accident itself, does not refer to a notice, nor use any language indicating that such liability depends on the giving of notice; nor is the paragraph providing for the notice couched in language from which an intention to make it a condition of recovery can be implied. Under the maxim, “expressio unius est exclusio alt'erius,” the fact that a condition is expressed in one of the clauses of a contract excludes the idea that an unexpressed condition was intended to be declared in another clause.
The language of the policy is that of the insurer and, when it is doubtful or ambiguous, must be given the strongest interpretation against the insurer which it will reasonably bear. American Bonding Co. v. Morrow, 80 Ark. 49, and cases there cited.
Chief Justice Fuller, speaking for the Supreme Court of the United States in McMaster v. New York Life Ins. Co., 183 U. S. 25, said that “the rule is that if policies of insurance contain inconsistent provisions or are so framed as to be fairly open to construction, that view should be adopted, if possible, which will sustain rather than forfeit the contract.” •
The following ■ authorities fully sustain the view that failure to give notice within a specified time in accordance with the terms of the policy does not operate as a forfeiture of the right to recover, unless the policy in express terms or by necessary implication makes the giving of notice within a time specified a condition precedent to recovery. Accident Ins. Co. v. Fielding, 35 Col. 19, 9 Am. & Eng. Ann. Cases, 916; Southern Fire Ins. Co. v. Knight, 111 Ga. 622; Kenton Ins. Co. v. Downs, 90 Ky. 236; Tubbs v. Dwelling House Ins. Co., 84 Mich. 646; Steele v. German Ins. Co., 93 Mich. 81; Mason v. St. Paul F. & M. Ins. Co., 82 Minn. 336; Taber v. Royal Ins. Co., 124 Ala. 681; Vangindertaelen v. Phoenix Ins. Co., 82 Wis. 112.
Nothing in the opinion- of this court in Teutonia Ins. Co. v. Johnson, 72 Ark. 484, conflicts with the views we now express, for that decision was based upon the fact that under the terms of the policy the requirement for notice was made a condition precedent to recovery.
It is urged that, in construing a stipulation of that kind in a policy, a distinction should be made between employer’s liability insurance and other kinds of insurance. We perceive no reason for such distinction. The purpose of requiring notice is to give the insurer an opportunity to investigate the facts and circumstances affecting the question of its liability and the extent thereof. The reasons for enforcing the requirement, therefore, apply to one class of insurance as well as another. Learned counsel for appellee bring to our attention the following cases as sustaining their contention that such distinction should be made: Rooney v. Maryland Casualty Co., 184 Mass. 26; Deer Trail Consolidated Mining Co. v. Maryland Casualty Co., 36 Wash. 46; N. W. Tel. Exchange Co. v. Maryland Casualty Co., 86 Minn. 467; Underwood Veneer Co. v. London Guarantee & Accident Co., 100 Wis. 378; Columbia Paper Stock Co. v. Fidelity & Casualty Co., 104 Mo. App. 157; Travelers’ Ins. Co. v. Meyers, 62 Oh. St. 529. Most of those cases deal with a provision similar to the one in the case now before us, and treat it as a condition precedent to a recovery, but they fail to give any reason for the distinction. In most of those cases it appears that there were other clauses in the contract providing that the stipulation for giving notice should be deemed a condition precedent. For instance, in the case of Deer Trail Consolidated Mining Co. v. Maryland Casualty Co., supra, which was against the same defendant as in the case now before us, the provisions of the policy were different from the policy in this case. There the stipulation was as follows: “ This insurance is subject to the following conditions, which are to be construed as conditions precedent of this contract: 1. The assured, upon the occurrence of an accident, shall give immediate notice thereof in writing with the full particulars to the home office of the company at Baltimore, Md., or to its duly authorized agent.” That stipulation, of course, distinguishes the case from the present case.
In Rooney v. Maryland Casualty Co., supra, and N. W. Tel. Exchange Co. v. Maryland Casualty Co., supra, the stipulation was as follows: “The assured, upon the occurrence of an accident, shall give immediate notice thereof in writing, with all particulars, to the home office of the company in Baltimore, Md., or to its duly authorized agent. He shall give like notice, with full particulars, of any claim which may be made upon account of such accident.”
Without stating whether the contract expressly provides, as in that mentioned in the Washington case, that “this insurance is subject to the following conditions, which are to be construed as conditions precedent of this contract,” the court in both those cases held that the stipulation constituted a condition precedent. The Miñnesota court seems to lay stress upon the fact that the contract made a distinction between notice of the occurrence of an accident and notice of claim for damages, and this may have had some weight with the court in determining whether the stipulation was intended as a condition precedent. It is certain, however, that, though the cases were against the same defendant as in this case, the language of the policies was somewhat different.
In Underwood Veneer Co. v. London Guaranty & Accident Co., supra, the policy by its express terms provided that it was issued and accepted “subject to the agreements and conditions indorsed thereon, ” among which was a stipulation for immediate notice of an accident.
In Columbia Paper Stock Co. v. Fidelity & Casualty Co., supra, the court merely stated the stipulation as to giving notice was a condition, without giving the language of the policy declaring it to be a condition.
The Ohio case cited above is the only one which really sustains appellee’s contention, and in that case the court said that “it is obvious that this stipulation is of the essence-of the contract in insurance of this kind. It is not merely a stipulation as to the form of bringing to the notice of the insurer the fact of a loss, as in policies of insurance.”
Cooley, in his briefs on the law of insurance (vol. 4, p. 570), states the rule to be, citing the above cases relied on by learned counsel for appellee, that the stipulation for notice is of the essence of the contract, being designed, as he says, “to enable the insurer to investigate the circumstances of the accident while the matter is yet fresh in the minds of all, and to make timely defense against any claim filed. ”
In the absence of an express stipulation declaring this requirement to be of the essence .of the contract, and therefore a condition precedent to the right of recovery, we do not think that it is correct to say that such a requirement is of the essence of the contract unless it is shown to materially affect the rights of the parties in the given case. We fail to see why it should be so in an insurance policy, any more than in any other kind of a contract where strict compliance with every specification of the contract is generally held not to be of the essence of the contract unless made so by the terms of the contract or by necessary implication. Lenon v. Mutual Life Ins. Co., 80 Ark. 568. The facts of this case illustrate the justness of the conclusion we reach on the question. Appellee received notice of the accident in time to make a full investigation and to investigate to its satisfaction. It is not claimed that it suffered any loss or injury by reason of not having received the notice earlier. The defense is purely technical and without any substantial merit. To hold that the appellee should escape liability on account of the failure to receive notice strictly in accordance with the terms of the contract would be to absolve it from its just obligation on a point which was not in the slightest degree material to its rights. We are, therefore, of the opinion that the trial court erred in giving a peremptory instruction in favor of appellee. Judgment under the undisputed facts should have been in favor of the appellant. The cause will be remanded, to the circuit court with directions to enter judgment in appellant's favor for the amount of liability mentioned in the stipulation. It is so ordered.
Wood and Hart, JJ., dissent. | [
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Kirby, J.,
(after stating the facts). No exceptions having been saved to the instructions given by the court, they can not be reviewed here.
It is insisted that the verdict is not sustained by the evidence, and that it was contrary to law, and that the court erred in refusing to instruct a verdict for appellant, and we have concluded this contention is correct.
The contract of employment was written and executed by the parties and the money paid in accordance with its terms; and if appellant agreed to refund the money in case he failed to procure the loan, as the prosecuting witness states he did, but which fact he denies, it is singular that it was not so specified in the contract. It was a valid contract, made without fraud practiced by appellant, or any misunderstanding of its terms by the prosecuting witness; and if there was afterwards an agreement to return the ten dollars in case of not procuring the loan and a failure to do so, it was but a breach of such agreement, for which no criminal prosecution would lie.
In either event, if it had been so specified in the written contract, or if he afterwards agreed to return the money in case of failure to procure the loan, which he denies, he would not have been guilty of larceny or embezzlement in refusing to return it. It would have been but a breach of the terms of the contract, for which he could not be held criminally liable.
The evidence does not show that he agreed to return the money, and he denied, when called upon to do so, that he had made any such contract or agreement.
The evidence is not sufficient, in our opinion, to support the verdict, and the judgment is reversed, and the case dismissed. | [
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Minor W. Millwee, Associate Justice.
Defendant, Ross Cook, was charged with assault with intent to kill in the shooting and critical wounding of Richard Nowlin at Hampton, Arkansas, on the night of July 27, 1954. At the trial held July 14, 1955, the jury found defendant guilty and fixed his punishment at 21 years in the penitentiary.
Evidence adduced by the State tended to show that Richard Nowlin drove from his home in the Long Lake community to Hampton on the night of the shooting to listen to the returns of the Democratic Primary Election held on that date. He went to Jodie’s Cafe where he drank some beer and then to the courthouse where he remained until about midnight. He then returned to the cafe and drank another bottle of beer. The defendant came in the cafe and drank some beer but left while Nowlin was still there. Nowlin purchased four cans of beer to take home and started to his jeep which was parked across the street when he saw defendant sitting on a car near the cafe. As Nowlin approached, the defendant said to him, “I thought you was my friend.” Nowlin replied, “I am. I try to be a friend to everybody.” Defendant then reminded Nowlin of an occurrence several months previously when defendant had tried unsuccessfully to persuade Nowlin and his brother to procure and give false testimony favorable to defendant in a hog-stealing case in which defendant was implicated. After telling Nowlin to wait just a minute so that he could talk to him further, defendant walked across the street where he procured a .38 caliber pistol from his truck. He then returned and, after cursing Nowlin, drew the gun and shot him four times before he fell and once more through the ear while Nowlin was lying on the ground. Nowlin was unarmed and had paid no attention to defendant when he left to get his gun.
The only defense interposed by defendant was that he was too drunk at the time of the shooting to form the specific intent to kill necessary to sustain the charge. It is argued that no motive was shown for the shooting which could have only amounted to an aggravated assault. While defendant testified that he was too drunk to remember anything that happened after his arrival at Hampton in the afternoon prior to the shooting, his testimony was disputed by the sheriff and several other witnesses who observed and talked with him shortly before and after the shooting. Dr. P. H. Pinson, a defense witness, also testified that one in the condition of the defendant, as disclosed by his own testimony and that of his wife, was capable of forming the intent to kill at the time of the shooting.
While we do not agree that a motive for the shooting was lacking, the State is not bound to prove a motive and its absence is only a circumstance to be considered with other facts and circumstances in determining guilt or innocence. Hogue v. State, 93 Ark. 316, 130 S. W. 167. The specific intent to kill need not have existed for any appreciable length of time and, in determining whether such intent existed, the jury may take into consideration the manner of assault, the nature of the weapon and the manner in which it was used and all other facts and circumstances tending to show the defendant’s state of mind. Clardy v. State, 96 Ark. 52, 131 S. W. 46; Tatum v. State, 172 Ark. 244, 288 S. W. 904. The evidence here, viewed in the light most favorable to the State, was sufficient to sustain the jury’s conclusion that defendant shot Nowlin with the specific intent to take his life.
In response to hypothetical questions based upon the testimony of defendant and his wife, Dr. Pinson stated that one in defendant’s condition was capable of forming the intent to kill at the time of the shooting. While there was no plea of surprise by defendant at this testimony of his own witness, it is now argued that the court erred in limiting further interrogation to the question of defendant’s ability to form an intent to kill. Since the shooting was admitted and there was no plea of insanity or any other defense except that of inability to form an intent to kill because of drunkenness, we hold there was no abuse of the trial court’s discretion in confining the testimony of the witness to that issue.
Nor do we concur in defendant’s contention that the evidence was insufficient to warrant the action of the jury in fixing his punishment at the maximum provided by law. The evidence is overwhelming that defendant committed a murderous assault upon Nowlin while he was unarmed and making no hostile demonstration of any kind toward defendant, and we find no abuse of dis cretion by the jury in fixing the punishment. We have examined other assignments and find no reversible error. The judgment is therefore affirmed. | [
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George Rose Smith, J.
The question in this case is whether the appellant, as the vendor in a conditional sales contract, has elected to retake the property in satisfaction of the debt and has thereby lost his right to recover the purchase price. The trial court, by the two orders now appealed from, lielcl that the seller had elected to pursue his remedy against the property sold.
In 1950 the appellant sold a threshing machine to the appellee for $1,875. The purchaser was allowed a credit of $300 for a trade-in and executed a conditional sales contract for the unpaid balance of $1,575. By mutual mistake, however, the two promissory notes that were given for this balance totaled only $1,475 instead of $1,575.
Upon the appellee’s failure to make any payment of either principal or interest the appellant brought this suit in equity. By his complaint he asked (a) that the notes be reformed to reflect the true amount of the debt, (b) that he have judgment for $1,575 with interest, (c) that, if the judgment were not paid within a reasonable time to be fixed by the court, the sheriff be directed to take and sell the thresher, and (cl) that the plaintiff have execution for any deficiency remaining after the proceeds of sale had been applied on the judgment. The appellee was served with summons on May 30, 1952, but made default. On September 8, 1952, the chancellor entered a default decree by which the plaintiff was awarded precisely the relief sought. Upon the appellee’s failure to pay the debt within the time fixed by the court the sheriff, in obedience to the decree, took the threshing machine from the appellee, advertised it for public sale, and on September 20,1952, held the sale, at which a third person bought the property for $50.
On November 13, 1952, which was before the term of court had lapsed, the appellee filed a petition asking that the decree be amended to eliminate personal liability for any deficiency remaining after the application of the proceeds of sale. A hearing on this petition was delayed by the illness and death of the plaintiff’s attorney; but in December of 1954 and January of 1955 the court entered the orders now under review. By these orders the sale was confirmed, the appellee’s request for an amendment of the decree was granted, and the creditor was denied execution for the unsatisfied balance of the purchase price.
It is contended by the appellant that his complaint is primarily a demand for a money judgment and that the prayer for a sale of the thresher should be treated as a request for a specific attachment — a remedy available to a conditional seller. Ark. Stats. 1947, §§ 34-2301 et seq. The appellee in turn argues that the complaint is an impermissible attempt to foreclose a conditional sales contract and that, apart from the equitable cause of action for reformation of the notes, the suit is in substance an action in replevin. Upon this premise the appellee invokes the familiar rule that a conditional vendor who replevies the property cannot have judgment for the purchase money as well.
It is unnecessary to determine whether this suit is in effect one for specific attachment or an effort to “foreclose” the contract, for in either event the appellee’s position is not well taken. The complaint was specific in asking for relief which the appellee now contends to be without precedent. This asserted defect, however, did not involve a complete want of judicial power. Within the time allowed for answer the defendant was free to raise the objection now urged, thereby either forcing the plaintiff to elect his remedy or preserving the objection as a basis for appeal.
Instead of pleading to the complaint the appellee let the matter go by default. The decree directed that any overplus resulting from the sale be paid to the. appellee. It was not until the property had been sold to a third person for an amount less than the debt that the appellee finally appeared in court and sought at the same time to take advantage of that part of the decree which might be construed as an election by the plaintiff and to reject that part of the decree which imposed personal liability on the defendant. “A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset, to repudiate it in toto or take it cum onere, and when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others.” Dismukes v. Halpern, 47 Ark. 317, 1 S. W. 554. Having chosen to remain silent and speculate upon the possibility of deriving a benefit from the decree, the appellee cannot now be permitted to change his position to the plaintiff’s prejudice.
Reversed.
Seamster, C. J., not participating. | [
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Wood, J.
Section 4 of act 165 of the Acts of 1909, provides as follows: “Any judge or clerk, serving at any such primary election, who shall in any manner falsify the returns of the same, or knowingly make a false count of the ballots cast, or aid or abet any such act of any other person, or knowingly permit such to be done, shall be deemed guilty of a felony, etc.”
Appellant, who was a clerk at the primary election held in Monroe County on January 15, 1910, was indicted under the above section. The indictment charged him with the crime of “falsifying returns of election, committed as follows:” The indictment then sets out his official character, and recites that a primary election was called, etc.; then recites that appellant “did then and there unlawfully, wilfully, falsely, fraudulently and feloniously and knowingly falsify the returns of Brinkley Township in said election to the central committee, in that the said Tom Kelley did then and there falsely, fraudulently and knowingly take from W. L. Hinton, a candidate for- county treasurer of Monroe County at said primary election, 68 votes so cast for the said W. L. Hinton aforesaid, and credit the same to W. L. Graham, a rival candidate for treasurer aforesaid, ” etc.
The case was, upon change of venue, tried in the southern district of the Prairie County Circuit Court. The appellant, after a verdict of guilty was returned against him, moved an arrest of judgment, setting up that the court was without jurisdiction because there was not filed in the Prairie Circuit Court a certified copy of the indictment, nor of the motion for change of venue filed in the circuit court of Monroe County before the commencement of the trial, etc. And also alleging that the indictment used in the Prairie Circuit Court did not charge appellant with a public offense.
It appears that the clerk of the Monroe Circuit Court, after an application for change of venue had been filed and an order of the court made ordering the case transferred to the circuit court of Prairie County, Southern District, made a transcript of the record entries showing the orders of the court up to and including the granting of the change of venue, but, instead of making a transcript of the indictment and other papers, mailed the indictment and other papers filed in the case to the clerk of the Prairie Circuit Court, and attached to his transcript of the record entries a certificate to the effect that the foregoing contained a true copy of the record, and then further certified as follows: “I further certify that the original indictment, the demurrer, the motion for a continuance and the motion for change of venue are also transmitted with this cause.”
After change of venue is ordered in criminal cases, the statute requires that “the clerk of the county in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the peti tion therefor, if any, and the recognizance of the defendant, and of all witnesses, and shall immediately transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal of the cause is ordered. ” Kirby’s Digest, § 2326.
The appellant contends that the failure of the clerk of the Monroe Circuit Court to certify copies of the indictment and application for change of venue was not a compliance with the above statute, and that therefore the Prairie Circuit Court had no jurisdiction.
The purpose of the statute was to enable the court in the county to which the venue, was changed to have before it as a part of the record the contents of the indictment, so that the court and jury before whom the cause was to be tried should be informed of the nature of the charge against the accused. It was absolutely necessary, to give the court jurisdiction, that there should be a copy of the indictment that was returned by the grand jury in the county where the cause originated. There could not be a trial without a copy of the indictment or the original indictment itself. While the statute does not contemplate that the original indictment shall be sent to the county to which the change of venue is ordered, nevertheless where this is done, under the certificate of the clerk showing that it was the original indictment, it is sufficient to give the court to which the case is sent jurisdiction. A copy of the indictment could not advise the court any more accurately of the charge than the original indictment'. The irregularity in the transmission of the original, duly certified to, instead of a copy, as the statute directs, works no prejudice to the right of the accused to have the court and jury before whom he is tried notified of the charge made against him, and to be fully advised himself of such charge.
Under our statutes and decisions a case will not be reversed where the defects and irregularities in the proceedings are merely formal, and do not result in prejudice to the accused. The defect in the record complained of here was not substantial, and could not possibly have resulted in any prejudice to appellant. Kirby’s Digest, § 2605; Lee v. State, 73 Ark. 148, and cases there cited.
Under the statute it is an offense to falsify the returns of a primary election, and also an offense to knowingly make a false count of the ballots cast. These are separate and distinct offenses. The indictment names the offense, “falsifying election returns, ” but in setting forth the particulars constituting the offense it shows that the real offense charged is that of a “false count of the ballots.”
A discrepancy or mistake in the naming of an offense in an indictment will not vitiate the same if the particular facts necessary to constitute the offense are specifically and accurately described. “The name of the crime is controlled by the specific acts charged, and an erroneous name o’ the charge does not vitiate the indictment,” State v. Culbreath, 71 Ark. 80; Johnson v. State, 36 Ark. 242; Lacefield v. State, 34 Ark. 282; Harrington v. State, 77 Ark. 480. The indictment is valid as a charge against appellant for making a false count of the ballots cast.
There was evidence tending to show that at a primary election in Monroe County, held in January, 1910, a number of votes which were cast for W. L. Hinton for county treasurer were counted for his opponent, W. L. Graham. A number of witnesses testified that at such election they had voted for Hinton. When the ballots bearing the numbers opposite their respective names were examined, they appeared to have been cast for Graham, an opponent of Hinton for the nomination' to the office of county treasurer. One of the witnesses introduced by the State testified that he was on a table in the dining room of the hotel and looked under the transom that was raised by having a 38-calibre cartridge placed under it. He was looking through that small crack; could partly see in the room where the election was being held. When a party voted, he would hand his vote to Mr. Hawkins (who was one of the judges of election); he would open the ticket, and it seemed that some of the tickets were acceptable and all right. The ballot box was in front of him on the table. “Mr. Hawkins would put them in, and would reach over in front of Mr. Kelley and take a substitute, and put the original in his pocket and reach over and get one in front of Mr. Kelley and call out the number and put it in the box. I never saw any one hand in the tickets that were in front of Kelley. Hawkins burned the tickets something like every twenty minutes. I saw him burn them twice. Kelley was three or four feet from Hawkins. Kelley was an arm’s length from the tickets on the table. I saw him scribble on them. From where I was, I could not tell what he was doing. He would lay them in a pile. Hawkins might not have put the ballots that were voted in the fire; it might have been ballots that folks had attempted to vote, and that he mutilated or destroyed in some way; but he put something in his pocket and took something out of his pocket and burned it; burned the same kind of paper that the ballots were. Could not see the names of the persons on the paper.”
Among other instructions, the court gave, over the objection of appellant, the following:
“ 1. You are instructed that if you find from the evidence that the defendant substituted ballots cast at the election held January 15, 1910, in Brinkley Township, Monroe County, Arkansas, and that said substitution resulted in taking votes from W. L. Hinton and giving the same to Wallace Graham, or that he knowingly permitted others to so change or substitute balldts in this manner, or consented or connived at such changing of such ballots, you will find the defendant guilty. ”
“3. You are instructed that knowingly making false returns of any primary election to the central committee of any political party which has ordered the holding of such primary is a felony; and if you find from the evidence that the defendant knowingly made false returns to the central committee of the election held January 15, 1910, by substituting other ballots than the ballots cast by the voters to conceal such false returns, you will find the defendant guilty.”
“5. You are instructed that if you find from the evidence that W. L. Hinton was a candidate for treasurer of Monroe County, Arkansas, on the 15th day of January, 1910, at a primary election called and held by the Democratic party of that county to nominate candidates for county treasurer, and that at said primary election he received more than twenty-four votes; and that the defendant, knowing this fact, knowingly and fraudulently certified to the central committee that he, the said Hinton, received only twenty-four votes, then you will find him guilty in this case.”
The statute under which the appellant was indicted does not define “election returns.” Indeed, the statute is very de fective and uncertain in this particular. But under our general election law, which the Legislature doubtless had in mind, an idea by analogy of what is meant by “election returns” is obtained from section 2832 of that law, which is as follows:
“After the examination of the ballots shall be completed the number of votes cast for each person shall be enumerated under the inspection of the judges, who shall prepare and sign in duplicate a certificate showing the number of votes given for each person and the office for which such votes were given, which certificates shall be attested by the clerks. And, after making such certificate, the judges before they disperse shall put under cover one of said tally sheets, certificates and poll books and seal the same, and direct it to the board of county election commissioners.”
The meaning of “returns” is defined in 15 Cyc., p. 376, as follows:
“Returns consist of the poll books in which is entered the certificate of the officer conducting the election, together with a list of voters, and one or more of the tally sheets, all of which are to be carefully enveloped, sealed and delivered to the officer or board designated by statute.” See also State v. McFadden, 65 N. W. 800-2; People v. Ruyle, 91 Ill. 525-528, and other authorities cited in appellant’s brief.
'From the above it will be seen that the offense which the proof tends to show that the appellant committed, if he committed any offense, was not that of “falsifying the returns” of an election. The court erred, therefore, in submitting the question to the jury upon that theory. As above stated, if appellant is guilty of any offense at all, under the charge and under the proof it was the offense of making a false count, and “not of falsifying returns.” Appellant was indicted for “falsely, ” etc., taking votes cast for Hinton and crediting same to Graham. There is no charge that appellant “knowingly permitted others” to “change” or “substitute” ballots. Instruction No. 1 was therefore erroneous and prejudicial because it submitted an issue that was not alleged. Nothing should be assumed, and nothing can be taken by intendment in a criminal charge of this kind. The appellant was entitled to a trial upon the charge as laid against him.
The court therefore erred in its instructions to the jury, and for this error the judgment must be reversed, and the cause remanded for a new trial.
Kirby, J., dissents. | [
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Frauenthal, J.
The plaintiffs, Jones & Company, were customers of the defendant, which is an incorporated bank. They deposited with it $2,302.05, and from time to time drew checks on it which were promptly paid, except the last, which was protested, the defendant claiming that plaintiffs had overdrawn their account before its presentation. The plaintiffs claimed that' they had drawn checks on defendant to the amount of $2,230.37, thus leaving a balance of $71.68 undrawn and due to them. They instituted this suit for the recovery of that sum, and also $3.15 the protest fees paid by them on the check which they claimed was wrongfully dishonored. On the other hand, the defendant claimed that the plaintiffs had drawn on it checks amounting to $2,354.37, which it had paid, thus making plaintiffs indebted to them in the sum of $52.32, the amount which they had overdrawn. By way of counterclaim, defendant asked for judgment for that sum.
The controversy grows out of the alleged invalidity of two checks presented to and paid by defendant. The two checks were signed by plaintiffs and made payable to one James Hale. The plaintiffs claimed that the two checks were altered after their issuance, and without their knowledge or consent, by being changed in date and raised in amounts. One of the plaintiffs, W. A. Flannigan, testified that he had signed both checks and delivered them to the payee; that one was dated January 28, 1911, and was for two dollars, and the other was dated February 9," 1911, and was for. three dollars. When these two checks were presented to and paid by defendant, they appeared as dated February 11, 1911; and the first was for $29 and the last for $100, both of which latter amounts the defendant paid thereon. The jury returned a verdict in favor of defendant for the amount of the counterclaim, and judgment was rendered accordingly.
It is urged by counsel for plaintiffs that the court erred in its refusal to give‘certain instructions asked by them. The plaintiffs admitted the genuineness of the signatures to both checks, but denied the genuineness of their dates and amounts. In effect, they requested the court to instruct the jury that, if they found that the checks had been altered as to amounts, then the defendant was not entitled to credit therefor; that it devolved upon defendant to establish by the preponderance of the evidence the genuineness of the checks in every material part, and if it failed to make such proof it was not entitled to credit for the checks, even though they found that the alleged alterations were so made as to leave no trace or appearance thereof upon their face. The court, however, instructed the jury in effect that if from the evidence they found that the two checks in controversy were drawn by the plaintiffs for the amounts as shown by the checks, which were presented at the trial, and that these checks were paid by defendant, then it was entitled -to credit therefor. It further instructed the jury as follows: “But, on the contrary, if you find that the checks have been raised in amount and are not as they were when issued and p'ut in circulation by Jones & Co., and the bank paid these checks after they had been altered, then the bank would be liable; in other words, it resolves itself down to whether or not they have been altered since they left Jones & Co., and in that the burden of proof is upon the defendant bank to prove that the checks have not been altered.”
The original checks have not been brought up with the record. From the testimony, it appears that there is a conflict as to whether or not the alleged alterations were apparent on the face of the checks. It has been settled by this court that the alteration of a check duly signed and delivered, without the knowledge or consent of the drawer, “although done in such manner as to leave no mark or indication of an alteration observable by a man of ordinary priidence, avoids the check as to the drawer, even in the hands of one to whom it is negotiated before maturityfor a valuable consideration and without notice of the forgery.” Fordyce v. Kosminski, 49 Ark. 40. But whether or not a check has been altered is a question of fact to be determined by a jury from the evidence adduced upon the trial of the case. There is a distinction made as to where the burden of proof rests relative to proving or disproving the genuineness of the check, bill or note, in cases where the alteration is apparent on the paper, and in cases where the paper appears fair upon its face. Inglish v. Breneman, 5 Ark. 378; Chism v. Toomer, 27 Ark. 108; Gist v. Gans, 30 Ark. 285; LeMay v. Williams, 32 Ark. 166; Klein v. German National Bank, 69 Ark. 140.
In the case at bar, however, it is not necessary to note or pass upon this question upon whom the burden of proof rests, because the court instructed the jury that the burden rested with the defendant to prove that the checks had not been altered. In no event, therefore, have the plaintiffs any ground for complaint relative to the instructions given on this question, for it was favorable to them.
It is also urged in this connection that the court erred in stating in the presence of the jury that the defendant had made out a prima facie case by proof of the genuineness of the signatures of the plaintiffs to the checks and the introduction thereof. It appears that during the progress of the trial defendant offered in evidence the two checks, after it had been admitted that both had been signed by plaintiffs. In the argument made before the court relative to the admissibility of the checks, the court remarked to the attorney that the introduction of the checks nade out a prima fade case for defendant, to which remark counsel for plaintiff excepted. This remark was, however, not directed to the jury, but to the attorney, and it can not be said that the jury considered it as an instruction influencing them. On the contrary, the court in the instructions given by it specifically told them that the burden of proof devolved upon defendant to show that no alterations had been made in the checks. It appears that the counsel for plaintiffs simply excepted to the remark thus made by the court to the attorneys, but it does not appear that he requested the court to state to the jury that they should not regard it; and we do not think that the remark thus made can be considered such an abuse of discretion as to constitute error so prejudicial as to call for a reversal of the judgment.
It is earnestly insisted that the verdict is not supported by sufficient evidence. It appears from the testimony that plaintiffs were engaged in railroad construction work, and that James Hale was employed by them as a laborer. The testimony on the part of plaintiffs tended to prove that he worked for them a few days in January and February, and that the entire amount of his labor was less than $25; that part of this was paid by check, which he transferred to another person whom he owed, and which is not involved in this case. Mr. Flannigan, the person who signed the checks in controversy, testified that he wrote the entire written portions of both checks, and that the amounts as written by him had been raised in both checks. Defendant, however, introduced testimony of expert witnesses which tended to prove that neither of the checks presented in evidence had been raised or altered in the amount thereof. The written checks were exhibited to the jury; and these, taken in connection with this testimony of these witnesses expert in handwriting, were sufficient to sustain the verdict. The question as to whether the amounts in the checks had been raised was one peculiarly for the jury to decide under this testimony; and, they having determined the question under instructions of which plaintiffs can not complain, their verdict is final. The judgment is accordingly affirmed. | [
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Frauenthal, J.
A number of persons owning real estate in Pulaski County presented to the county court of that county a petition asking for the formation of a road improvement district under the provisions of an act of the Legislature approved May 2, 1907, entitled, “An act to provide for the creation of road improvement districts, or building, constructing, maintaining and repairing of public roads in the State of Arkansas,” as amended by the act approved June 1, 1909 (Acts 1907, p. 568; Acts 1909, p. 1151)., A remonstrance was, filed to the petition by a number x>f owners of real estate in the proposed district. Upon a hearing of the matter in the county court, that court found that the petitioners had complied with the provisions of the above acts, and thereupon adjudged that the territory described in the petition be formed into a road improvement district and known as Road Improvement District No. 2 of Pulaski County, Arkansas. The remonstrants prayed and obtained an appeal from said order to the circuit court. In the circuit court the matter was tried upon an agreed statement of facts. From this it appears that the petition was signed by a majority in value of the owners of land to be affected in the district. All of the district lies outside of the corporate limits of the city of Little Rock, but is adjacent thereto, and is built up thickly with residences, and most of it is improved in the same manner as other residence portions of said city. The district is situated in what is known as Braddock’s Boulevard Addition to the city of Little Rock, which was laid out and platted into lots and blocks, and the plat thereof was filed in the office of the recorder of said county on November 9, 1891, and thereon a public highway noted as a street, and known as High Street, was dedicated to the public. This highway is a continuation of what is known as High Street in the city of Little Rock, and by this proceeding it is sought to improve the highway which is outside the corporate limits of said city. Although said addition was laid out and platted, and the highway thereon was dedicated as a street to the public, the street has never been accepted by the city of Little Rock, and that city has no authority to exercise any jurisdiction over the same or any part of the territory included within the proposed district.' The property lying to the west, north and east of the district and adjacent thereto is built up and used as residence property, and the improvement contemplated is for the purpose of improving the one highway running north and south, and the cost of the construction thereof will be assessed to the property on each side thereof for 300 feet. While the improvement district is sought to be formed for the purpose of benefiting the property in the district, one of its effects will be to benefit what is known as Braddock’s Park, all of which is acreage property, unplatted, and only about three acres of which is included in the district. This park lies just south of and adjacent to the proposed improvement district. For more than fifteen years before the filing of the petition, all that part of the highway or street which is sought to be improved by this district was used by the public as a public highway. After the above named addition had been platted, all property thereafter sold was sold with reference to this and other highways in said addition, and the lots and blocks as represented on such plat. This highway begins at the southern limits of the city of Little Rock and extends through said Braddock’s Boulevard Addition to what is known as Thirty-sixth Street in said addition, where Braddock’s Park abuts it on the south.
It appears also from this agreed statement that the chief petitioner owned said Braddock’s Park,' and, prior to the filing of this petition, had entered into an agreement with a contractor to grade, curb and pave this highway. It was also provided in said agreement that, in event an improvement district should be established in said territory, the contractor would enter into an agreement with said improvement district to grade, curb and pave said highway or street and release said petitioner therefrom.
The circuit court found that it was sought by this petition to form a district for the purpose of improving a highway which, while not in the corporate limits of the city, was still a street in the city of Little Rock, and that the highway had never become a public road legally. It further found that some of the property included in the district would receive a less benefit than other property which was without the district and which would not be assessed for the improvement.. The court further found that the provisions of said acts of the Legislature under which this proposed improvement district was sought to be created were applicable only to rural roads, and not to those highways which were in effect streets within towns and cities. It thereupon ordered and adjudged that the petition seeking the formation of said improvement district should be dismissed, and ordered that the organization of the district be declared invalid. From this judgment of the circuit court the petitioners have appealed to this court.
It is urged by counsel for the remonstrants that the order of the county court creating this improvement district is invalid; (1) Because the highway which is sought to be improved is not one of the public roads of said county; and (2) because the acts of the Legislature under which the proceeding is had are applicable only to rural public roads, and not to streets in a municipality, and it is contended that this highway which is sought to be improvedois in effect such a street.
It appears from the agreed statement of facts that on February 4, 1910, the county court of Pulaski County made an order declaring and establishing that part of High Street between the south boundary of the city of Little Rock and the south boundary of Thirty-sixth Street in said Braddock’s Boulevard Addition a public road or highway. In that order it was recited that a petition seeking the establishment of said public road had been duly filed, signed by the requisite number of resident property owners, as prescribed by law, and that upon hearing thereof the court found that the above part of High Street outside of the limits of the city of Little Rock had been for more than ten years openly, continuously and notoriously used as a public highway, and that in December, 1891, by a bill of assurance the owners of the land over which that portion of High Street runs had dedicated same to the public for use as a highway, and that it was to the best interests of the people of the county that the same should be a public highway. ' Thereupon said court did order and adjudge that said portion of High Street extending through said Braddock’s Boulevard Addition to the limits of the city of Little Rock should be established and opened as a public highway, and did thereby declare the same a public road of said county.
It is contended that this order establishing said public road is null and void, for the reason that it does not appear that proper notice was given of the filing of such petition seeking the establishment of said road or of the appointment of viewers, or of their report thereon. By virtue of section 28 of art. 7 of the Constitution of 1874, the county court is given exclusive jurisdiction over all matters relating to roads, and thereby it obtained jurisdiction of the subject-matter to which this petition applied. The county court, in the matter of laying out and establishing public roads of the county, is a court of superior jurisdiction. This is a collateral attack made upon a judgment of that court. The judgment of a court of superior jurisdiction, like that of a court of general jurisdiction, is presumed to be valid. Having jurisdiction over the subject-matter, which by the Constitution is granted to it, it will be presumed that the county court has exercised the powers thus confided to it in a legal and valid manner. To give it full and complete jurisdiction, it was only necessary that notice should be given, as prescribed by the statute, of the presentation of this petition, in order that all persons might be bound thereby. Unless it'appears from the record itself, or from evidence aliunde, that the facts essential to .the jurisdiction of such court did not exist, a collateral attack upon a judgment rendered by it establishing a public road will not prevail. Brumley v. State, 83 Ark. 236. Such order or judgment may be attacked collaterally where it is affirmatively shown that there was a want of jurisdiction in such court, either of the subject-matter or by failure to give said notice required by law. No proof was introduced to rebut the presumption that said notice was given as required by the statute, and it does not appear from the record itself that such notice was not given. The county court had the power to determine whether notice had been given as required by law for the institution of the proceeding for the establishment of this public road and the sufficiency of the proof thereof. It was not required to spread upon the record the evidence by which it ascertained that notice had been given. The record of the county court purporting to establish a public road is at least prima facie evidence that it has been legally established, and this is especially true upon collateral attack. 15 A. & E. Ene. L. 387; Lingo v. Burford, 112 Mo. 149; Willis v. Sproule, 13 Kan. 257; Anderson v. Com’r of Hamilton County, 12 Ohio St. 635. The county court having jurisdiction over the subject-matter of a petition seeking to establish a public road, and notice in the first instance having been given as required by statute, the jurisdiction of the county court to proceed therein became complete. Thereafter the failure to take the various further steps prescribed by statute were but irregularities in the exercise of the county court’s jurisdiction, which could be corrected upon appeal, but which would not make its order establishing the road null and void. Lonoke County v. CarlLee, 98 Ark. 345.
In addition to this, however, the necessity for giving the notice of the presentation of the petition or the pendency of the proceeding for the establishment of a public road and the various steps thereafter to be taken arises only in cases involving the right of the land owner across whose land the road is opened to attack the proceeding upon the ground that his land is taken or injured by the public road; and if it should be held that the absence of such notice as to such landowner would render the judgment establishing such road void, because it would be taking his land without due process of law, it would not have that effect where such rights of the land owner were not involved. 15 A. & E. Enc. L. 365.
It appears from the agreed statement of facts in this case that the owner of the land upon which this highway is laid actually dedicated the same to the public, and now recognizes their right thereto. Thereafter, the public claimed and continuously exercised the right of using it for a public highway for more than seven years prior to the time the county court assumed jurisdiction over it as a public road by virtue of this order. In the case of Patton v. State, 50 Ark. 53, it was held that the public may obtain and acquire the right to use the land upon which a public highway is opened by adverse possession and that such right is acquired when the public holds the open, exclusive and hostile possession thereof for more than seven years. See also Howard v. State, 47 Ark. 431.
The county court, in making its order establishing this road, found that the public had obtained the same by dedication, use and adverse possession thereof, so that, in any event, the road was a public road, and no person other than the owner of the land upon which it runs could attack collaterally the order of the county court assuming jurisdiction thereof. By virtue of this order the county court assumed the juris diction of this road as one of the public roads of the county. This was all which, under the law, was necessary to give to the county court the authority under the above acts to form it into an improvement district.
It .is contended that the above acts of the Legislature providing for the formation of a road improvement district are applicable only to rural public roads, and it is urged that the road involved in this proceeding is not such a road, but rather a street in 'a municipality. This contention is based upon the ground that it lies next to the city of Little Rock, that upon each side thereof are lots and blocks with residences, and that the land lying adjacent thereto is platted and built up thickly with residences in the same manner as portions of the city of Little Rock. But we are of the opinion that this road, although called a street, is in fact one of the public roads of the county. It lies entirely outside of the limits of the city of Little Rock and that municipality therefore has no jurisdiction of it. The county court is the only public authority that could have jurisdiction over it as a highway.
It is provided by our statutes and Constitution that the common councils of cities and towns shall have- the power and right to form improvement districts within the limits of the municipalities. By the above acts of the Legislature it is provided that road improvement districts may be formed outside of the limits of municipalities, and we are of the opinion that the provisions of said acts are applicable to all roads lying outside of the limits of municipalities, whether they are adjacent thereto or not, and without reference to the character of the improvements that are near it or the fact that the lands abutting such road are laid out into lots and blocks, or remain acreage property. In the construction of these acts, it was held by this court in the case of Park View Land Co. v. Road Imp. Dist. No. 1, 92 Ark. 93, that they authorize the formation of part of the county into road improvement districts for the repairing, maintaining and improving of roads then in existence, and that the county court has the power to create improvement districts for the improvement -of portions of its public roads. The highway involved in this case was a public road of Pulaski County over which the county court assumed jurisdiction prior to the presentation of the petition seeking to improve it by the creation of a road improvement district. It lay entirely outside of the limits of any municipality, and was, in fact and in law, a public road of Pulaski County. Its character as a public road was not altered by the fact that it lay next to the city of Little Rock, or that the lands abutting it were platted into lots and blocks and improved with residences. This might occur in any portion of the county far removed from any municipality. These lands, though laid out in lots and blocks, can be entered and described upon the assessor’s books equally as well as acreage land, and assessments made against them for the benefits received. We do not think that the provisions of section. 13 of said last act, prescribing that the land shall be entered upon the assessor’s books in convenient subdivisions as surveyed by the United States Government, is intended to exclude any character of lands that may lie in the improvement district, whether it consist of a few acres or of a few feet; nor do we think that it was the intention of the Legislature that the act should only apply to acreage lands by reason of the provisions of this section prescribing the manner in which acreage lands shall be entered upon the assessor’s book.
The mere fact that land lying outside of the improvement district may also be benefited does not deprive the county court of the jurisdiction and power to create an improvement district in which shall be included lands which are benefited. Having the power to create improvement districts, the county court has the discretion to determine what lands should be included therein and what should be excluded. Other lands in the county, although not immediately adjacent to the improvement district, may be benefited, and usually are, .by the creation of a road improvement district. But that fact can have no effect upon the power and authority of the county court to establish an improvement district of those lands which it finds are benefited by the formation thereof. Whether or not it has abused its discretion in the matter of the territory which it has included therein, or excluded therefrom, is a different question.
We are of the opinion, therefore, that the highway or street involved in this proceeding is, and was, one of th'e public roads of Pulaski County; that, inasmuch as the territory comprised within this improvement district and the highway which it is sought thereby to improve lie entirely without the limits of any municipality, the highway is a public road which the county court has the power to improve, and the lands benefited thereby are such territory which the county court has the authority to create into an improvement district for that purpose; and that it was within the discretion of the county court, subject to review for an abuse of such discretion, to determine whether or not the improvement district should be created out of the territory and lands included in the proposed district.
It follows that the circuit court erred in adjudging that the county court did not have the jurisdiction to create said improvement district and in dismissing the petition therefor. The judgment of the circuit court is reversed, and this case is remanded for further proceedings not inconsistent with this opinion. | [
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Wood, J.,
(after stating the facts). The testimony of appellant Reeder and of witness Matheny tends to prove that the alleged claim for which this suit was brought would not be due until the appellee had returned from the penitentiary after serving the term of his imprisonment. According to this testimony, appellee and Wright had in contemplation that appellee would serve his term in the penitentiary, and that the balance of the fee claimed by Wright would not be due until the year for which he was sentenced had expired, or at least until the time that he should legally serve under the sentence had expired. Reeder testified that they did not contract with reference to appellee making his escape.
We are of the opinion that, according to this testimony, the amount claimed was due at the expiration of the period for which appellee was sentenced to the penitentiary. But for the fact that appellee had made his escape from the penitentiary, this action could have been commenced against him at that time, and the statute of limitations, had he not made his escape, would have commenced to run at that time also.
But section 5088 of Kirby’s Digest provides as follows:
“If any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times respectively limited after the commencement of such action shall cease to be so prevented.”
The escape of appellee from the penitentiary was an unlawful and improper act on his part, which, under the above statute, suspended the running of the statute of limitations from the time when the alleged debt was due until appellee was pardoned. The law in regard to service of summons upon convicts makes provision only for service upon convicts who are imprisoned in the penitentiary. Kirby’s Digest, § 6051. Therefore, one who occupied the status of an escaped convict, although he may have been living openly and publicly at the place where he resided before his sentence, can not set up that the statute of limitations was running during the time he was an escaped convict, nor can he complain of a lack of diligence in not serving him with summons in a civil action during such time. In contemplation of law, a convict who has escaped from the penitentiary during the period of such escape and before pardon has no usual place of abode where he may be served with process under the provisions of section 6042, subdivision 3, Kirby’s Digest.
It will be observed from what we have said that the cause was tried upon a misconception of the law.
The instructions of the court were based upon this misconception of the law, and were therefore erroneous and prejudicial. Prayers for instructions 4, 5 and 6 on behalf of appellant, in the view we have expressed, were correct, and the court erred in not granting the same.
For the errors indicated the judgment is reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
The plaintiff, Dan Walker, disaffirmed a deed of conveyance which he alleges was executed by him to the defendant, J. E. Goodlett while he was under twenty-one years of age, and he instituted this action to cancel said conveyance.
The defendant denied in his answer that the plaintiff was under twenty-one years of age when he executed the deed, and this presented the only issue which the chancellor was called on by the pleadings to decide.
The deed was executed on December 28,1908, and plaintiff alleged that he was bom on September 2, 1888, which, if true, made him twenty years and about three and one-half months old at the time he executed the deed. He testified to his age and produced the Bible of his deceased grandfather, in which the date of his birth had been recorded. Tom Walker testified that he had known plaintiff since the latter was a small boy, and that he was about twenty-three years of age at the time the witness testified. Roger Walker testified that plaintiff was born in September, 1888, and produced a Bible in which the dates of plaintiff’s birth and of others were recorded. He stated the place and the particular house where plaintiff was bom, and said that he made the record of the birth on the day-plaintiff was born. Emma Walker, the widow of plaintiff’s grandfather, testified that she knew plaintiff’s age, and that he was only twenty years of age when he executed the deed. Bettie Johnson testified that she was an intimate friend of plaintiff’s mother, and knew his age, and stated that he was bom in September 1888. Sam Walker, plaintiff’s putative father, testified that the plaintiff was bom in September, 1888, and that, as the plaintiff’s mother told him he was the father of the boy, he recorded the date of the birth in his Bible.
Defendant introduced testimony tending to establish the fact that plaintiff was born in September, 1887, which made him a little over twenty-one years of age when he executed the deed. Mrs. Whissen, a lady on whose farm the mother of plaintiff lived, testified that her twin children were born in February, 1888, and other testimony adduced by the defendant tended to show that plaintiff was bom in September before the birth of the Whissen twins. Clay Porter testified that he had known plaintiff since the latter’s infancy, and that he was on the Whissen place in September before the birth of the twins. He stated that plaintiff was a “good big baby,” meaning, as he states, three or four months old, when the twins were bom, and that plaintiff’s mother waited on Mrs. Whissen at that time. Martha Porter testified that the birth of plaintiff was near the date of the birth of the twins, but she contradicted herself several times as to the date, whether plaintiff or the twins were bom first, so that her testimony is of little, if any, value. Iverson Brown testified that he had known plaintiff since infancy, that his (witness’) brother, Cornelius, was bom on October 8, 1888, and he remembered, when his brother whs bom, that his mother sent him to Ozan that day, and he went by the Whissen place and saw plaintiff, who was then a “good big baby.”
This is the state of the testimony. It is clear that plaintiff was born in September, either in 1887 or 1888. Five witnesses, in addition to plaintiff himself, testified that he was under twenty-one years of age when he executed the deed, and two witnesses (not including Martha Porter) 'testified that he was a little over twenty-one. Plaintiff’s witnesses were mostly his kindred; the others were mere acquaintances who lived in the neighborhood. In addition to the numerical preponderance of plaintiff’s testimony, we are of the opinion that the weight in other respects was on that side. Martha Porter’s testimony was, as already stated, so contradictory that it was not entitled to any value. Brown was only about ten years of age when plaintiff was bom, and the only reason that he remembered the fact is that his brother was bom in October, 1888, and the plaintiff was a good sized baby at that time. It is improbable that, being so young himself at the time, he could accurately remember so long afterwards the age of another child. Clay Porter is the only witness on that side whose testimony is not inherently weak, and it, too, is weakened by the fact that he is not related to plaintiff nor interested in him except as a neighbor and acquaintance, and there is little reason why he should remember plaintiff’s age. It is true that there are weak points in some of the testimony adduced by plaintiff, but we are convinced, upon the whole, that there is a decided preponderance of the testimony in his favor, and it becomes our duty, under those circumstances, to set aside the decree.
It appears from the testimony that a part of the consideration for the conveyance was a debt for supplies furnished plaintiff by defendant to enable the former to make and gather a crop. The remainder of the consideration was a debt of Emma Walker, who joined in the conveyance.
An infant can bind and incumber his estate for the value of necessaries furnished to him, (Cooper v. State, 37 Ark. 421), but can not irrevocably alienate his estate, even for that purpose.
Reversed and remanded with directions to enter decree for plaintiff in accordance with this opinion. | [
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Wood, J.
The question in this case is whether or'not the assignee of a note given for a patent right and patent-right territory for value before maturity is an innocent purchaser for value so as to preclude the maker of the note from setting up the defense of payment when sued by the assignee where there was no fraud or deception practiced upon the maker by the payee in the purchase of the patent right or patent-right territory.
It is contended by the appellee that the only defense against a holder of such note who has bought same before maturity and paid value therefor are fraud practiced upon the maker of the note at the time of its execution, or failure of consideration by reason of defect of title, or some legal defense to the payment of the note growing out of the original contract on which the note was executed.
The statute provides that the payer or drawer-in all notes, executed in payment of any patent right or patent-right territory shall be permitted to make all the defenses against any assignee, indorser, holder or purchaser of such note that could have heen made against the original payee, whether such note be assigned or transferred before maturity or not. The statute further provides that the vendors of patent rights who may effect the sale of same to any citizen of this State on a credit, and who take a negotiable instrument in payment of the same, shall have such instrument executed on aprinted form, showing upon its face that it was executed in consideration of the patent right, etc.; and further provides: “No person shall be considered an innocent holder of the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument.”
It will be observed that the statute makes no exception in favor of the assignee in cases where there has been no fraud or deception practiced upon the maker of the note by the seller of the patent right. The statute is comprenhensive in its terms, and its language is unambiguous. There is really nothing left for construction.
The statute allows the “payer to make all the defenses against any assignee that could have been made against the original payee,” and provides, “no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity.” Kirby’s Digest, § § 513, 514. In other words, under the statute there can be no such thing as an innocent holder for value of a note that is executed in payment for a patent right and patent-right territory. Prospective purchasers of such note are given warning1 by the face of the paper and the law that they buy such paper at their peril.
The statute was enacted to promote wise public policies, and is a valid exercise of the police powers of the State to regulate and control commerce of the particular class mentioned therein. Woods v. Carl, 75 Ark. 328; Columbia County Bank v. Emerson, 86 Ark. 155; Ozan Lumber Co. v. Union County Nat’l Bank, 207 U. S. 257; Woods v. Carl, 203 U. S. 358.
A decided preponderance of the evidence shows that the appellee paid the note before the same was assigned to appellant. The cause on this point seems to have been fully developed.
The chancery court held that appellee was an innocent purchaser. The judgment in his favor is erroneous, and the cause is reversed, and the complaint dismissed for want of equity. | [
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Lee Seamster, Chief Justice.
The Arkansas Workmen’s Compensation Commission rendered an opinion, whereby Frank H. Furstenberg, was awarded benefits under the provisions of the Arkansas Workmen’s Compensation Act. The award of benefits was predicated upon a finding that Furstenberg contracted silicosis, an occupational disease, while in the employment of the Hixson Coal Company, appellant herein. On appeal to the Logan Circuit Court, Northern District, the action of the Commission was affirmed. Upon appeal to this court, it is the contention of the appellants that Frank H. Furstenberg did not contract silicosis while working in the Hixson Mine, nor was he subjected to his last injurious exposure to the hazards of such occupational disease, while working in the Hixson Mine. The appellants also earnestly insist that Furstenberg’s claim is barred by the statute of limitations, since Furstenberg did not give notice of the injury to Hixson, as required by law.
Shortly after this cause was appealed to this court, Frank H. Furstenberg died. This cause is revived against Theodora Furstenberg, administratrix of the estate of Frank H. Furstenberg, appearing as appellee herein.
The record reveals that Frank H. Furstenberg had worked in coal mines since 1905. He was employed by the Watson Coal Company from 1936 to 1946, at which time the Hixson Coal Company took over the operation of the Watson Coal Company. Furstenberg continued to woik for the Hixson Coal Company until December of 1949; when he terminated his employment with Hixson and went to work for the Sims Coal Company, as a pumper. On November 7, 1950, he terminated his employment with the Sims Coal Company, where he was employed as a pumper and was subjected to little, if any, dust. Shortly thereafter, he went to work for the Jewel Mining Company, in the capacity of a wall boss. He was compelled to terminate this employment on March 15, 1951, when the disabling effects of silicosis rendered him totally disabled.
It is generally conceded that Furstenberg became afflicted with silicosis while engaged in his occupation as a coal miner. The question before the Commission was not whether Furstenberg had silicosis, but where he received his last injurious exposure to the disease. In silicosis, the injury may occur many years before the disease becomes manifest, as the accumulated effects of the deleterious substance are of a slow, insidious nature.
After a careful review of the record, it is apparent that Furstenberg became afflicted with his silicotic condition, prior to the time of his employment with the Jewel Mining Company. There is ample competent evidence in the record to show that the disease was actually incurred in his employment with the Hixson Coal Company, even though disablement did not occur until March 15, 1951. Furstenberg had acquired enough harmful quantities of the silica dust by December, 1949, so as to produce or cause the disease for which claim is made in this case. There is evidence that he was last injuriously exposed to the hazards of such disease, in December of 1949, while in the employment of the Hixson Coal Company.
Furstenberg testified that for approximately two years prior to his termination of employment with appellant, Hixson Coal Company, he was bothered with breathlessness; it progressed to such an extent that he could not walk out of the Hixson Mine without resting, and finally got to the point that it became necessary to ride out, being unable to walk. This testimony was corroborated by the statements that Furstenberg made in 1949, to the Veterans Administration, in his application for non-service connected disability benefits. These statements were to the effect that he was compelled to terminate his employment with the Hixson Coal Company, due to the fact that his physical condition had progressed to a point that he was unable to perform his work in the Hixson Mine. Furstenberg, at this time, was of the opinion that his breathlessness was caused by asthma.
Furstenberg was admitted to the Arkansas Tuberculosis Sanatorium on March 26, 1951. After an examination, he was classified as a case of far advanced tuberculosis and silicosis. In the doctor’s opinion, Furstenberg was totally and permanently disabled. Subsequent examinations were made by other qualified doctors, and in each instance he was diagnosed as being totally disabled by reason of silicosis. Competent medical reports disclose the beginning of the silicotic condition in 1943; which, at that time, was not disabling. Continued exposure and inhalation of the silica dust brought on the progression of the disease.
From a review of the record, we are unable to say that there was no substantial evidence to support the findings and action of the Arkansas Workmen’s Compensation Commission. We have many times held that the Workmen’s Compensation Law should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. The rule is firmly established that the findings of the Commission, which is the trier of the facts, will not he disturbed on appeal if supported by substantial evidence. Meyer v. Seismograph Service Corp., 209 Ark. 168, 189 S. W. 2d 794; Harris Motor Company v. Pitts, 212 Ark. 145, 205 S. W. 2d 21; Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.
The claim was filed within the time prescribed by statute, therefore, the appellants’ last contention that the claim is barred by statute is without force and cannot be sustained.
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Sam Robinson, Associate Justice.
Appellant Hazel Hill filed this suit asldng that she be granted a divorce from the appellee, J. C. Hill. The answer was a general denial and, in addition, appellee filed a cross complaint in which he asked that he be granted a divorce. Later the defendant amended his cross complaint by withdrawing his prayer for a divorce and by mailing the allegation that he had an interest in certain real and personal property in the possession of the appellant. He asked for a judgment for the value of his alleged part of such property.
At the trial Hazel was granted a divorce, and there is no appeal from the decree in that respect. The Chancellor made a finding that Hill was the owner of an interest in the property in question and appointed a receiver to take charge of the property and act as a master in making a determination as to the equities of the parties, and to sell the property and divide the proceeds accordingly. Hazel has appealed from that part of the decree holding that appellee has an interest in the property involved.
The parties were married on October 23, 1950, and separated in the first part of October, 1954. Hill is about 40 years of age, and his wife a little older. There is no showing that Hill had accumulated any property, real or personal, at the time of the marriage. Subsequent to his marriage in 1950, he bought a 1937 model Chevrolet. Latér, he bought a newer model car but failed to make the monthly payments and it ivas repossessed by the seller. He did not own a car at the time of the- trial.
At the time of her marriage in 1950, Mrs. Hill owned and operated the Elite Cafe. She owned her own home and, in addition, she owned an adjoining lot on which was situated a small building that was later moved to the front of the lot and converted into a restaurant. Subsequently, three tourist cabins were also constructed on this lot. In raising the money to do this work, Mrs. Hill sold the Elite Cafe for $1,100, borrowed $1,000 from her sister and mortgaged her home for $1,500. She later mortgaged the lot on which were situated the restaurant and cabins to get money to enlarge the restaurant.
Hill claims that some of the money he earned was used in the construction of these buildings and in furnishing them. He also says that he did some of the construction work and as a result he owns an interest in the buildings and in the furnishings. Even if some of Hill’s money went into construction of the buildings and in furnishing them, he has not proved by a preponderance of the evidence any definite amount that would support a judgment. To say that he furnished any amount of money over and above the sum required to support himself and his wife would be pure speculation. And, the Chancellor could not make a determination from the evidence as to just how much Hill put into the business, if anything. During the time of the marriage, Hill earned an average of about $177.00 a month. After supporting himself and his wife he surely could not have had much left for investment purposes.
Since the Chancellor could not determine from the evidence how much money Hill had put into the business, if any, a receiver was appointed to take charge of the property and to act as a master and state an account between the parties. But the case appears to have been fully developed, and a receiver or a master would be in no better position than the court to arrive at a conclusion. The burden of proof was on Hill to prove the allegations of his cross complaint by a preponderance of the evidence. Since he failed in this respect, it cannot be said he has shown that he has any interest in the property involved. His cross-complaint should be dismissed for want of equity. The decree is accordingly reversed. | [
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J. Seaborn Holt, Associate Justice.
Francis W. Fleming, appellant, is the wife of Joe W. Fleming and has, for the past 15 years, owned a small farm in Washington County. Appellee Cooper in 1939, under an oral lease agreement with Joe W. Fleming, became Fleming’s tenant from year to year on a fifty-fifty basis and so continued until January 22, 1952, when he left the premises to avoid eviction by the Sheriff. On August 4, 1952, Cooper sued Joe W. Fleming, as the owner of the leased premises (In Case 12872), for his share of the profits alleged due under his lease. Fleming answered, admitting that Cooper was his tenant, and in a cross-complaint alleged, in effect, that under the tenancy agreement, Cooper owed him a substantial amount for expenses incurred in 1949, 1950 and 1951. Cooper filed a reply and also a cross-complaint. Upon trial the court, on September 30, 1953, rendered a decree in favor of Cooper. On appeal here that decree was affirmed. Reference is made to that opinion — Fleming v. Cooper, 224 Ark. 10, 271 S. W. 2d 772, for the complete decree which appears embodied therein.
Pending execution on the mandate from this court in the above decree, appellant, wife of Joe W. Fleming, on November 12, 1954, filed the present suit alleging, in effect, that Cooper became her tenant in October, 1939, on the same land involved in the first suit above (12872) and continued as her tenant until the close of 1951: that during 1951 and 1952 she spent substantial sums of money on the land, that her husband, Joe W. Fleming, was her manager and that Cooper had orally agreed to pay her the money she had expended; that in November, 1951, she and Cooper became involved in a disagreement or controversy as to the correct amounts owed to each party, and as to further occupancy of the real estate, and that she had served notice on him to vacate; that on January 15, 1952, Cooper, through his attorney, proposed an accord and satisfaction based on two letters attached to her complaint, and that she agreed to his proposal. She sought to enforce this accord and satisfaction agreement. She further alleged that Cooper had a judgment against her husband, Joe W. Fleming, in the amount of $828.80, proceeds from the 1952 crop on the above land, which she alleged to be her property, and further prayed for judgment for this amount. Her husband, as garnishee, answered that he had paid this money to his wife, Francis W. Fleming, November 18, 1954, and ashed to be discharged. Joe W. Fleming on December 6, 1954, paid into the registry of the court $917.43 which amount he had paid to his wife on November 18, 1954. A demurrer to Francis W. Fleming’s complaint was overruled and on February 5, 1955, Cooper filed a combined motion to dismiss and an answer. His answer was a general denial and he specifically pleaded that Francis W. Fleming was barred, in the present suit, by the statute of limitations, and by the former suit (12872) on the ground of res judicata and estoppel.
On a trial the court, February 26, 1955, sustained Cooper’s plea of res judicata and estoppel, dismissed appellant’s complaint for want of equity, and awarded Cooper $941.10 plus interest and costs. From that decree is this appeal.
Appellant relies on two points: “I. The court erred in sustaining the motion to dismiss filed by the appellee in that the defense of res judicata and estoppel does not apply under the facts in this case and was not established by the appellee. II. The appellee did not discharge the burden of proof necessary to establish the defense of res judicata and estoppel.” In the decree of February 26, 1955, the trial court found in part — “. . . the examination and study I have made of the instant case and prior case No. 12872 convinces me in truth and in fact that the two cases were identical in that the plaintiff (appellant) having set up and pleaded a contract, proceeds to plead and set up in almost precisely the same language, the earlier accounts of debit and credit and the same basis for debit and credit and the same prayer for relief as was embodied in the complaint in the first suit; ... It is my belief that the pleader in this case had asked for the specific relief that the plaintiff in the former complaint had asked for in his prayer of relief and that the relief in both cases was based on the same set of facts; that there was the same previously pleaded owner-tenant farm arrangement; that the court does not pass on whether or not the newly alleged contract was a proper contract but it is clear to me that the two cases are the same; that the first case was tried in my court and appealed to the Supreme Court and decided by the Supreme Court; that res judicata is simply the basic proposition of estoppel; ... It is, therefore, on particular facts involved in the case concerned, its pleadings and the particular circumstances existing, that sometimes a wife may be collaterally estopped by reason of her husband’s act or acts as in the instant suit by reason of the relationship of husband and wife where the wife has knowledge of such acts. . . . She knew about the other suit because she stated in the notice to vacate “ ‘Yon are hereby notified to quit and vacate our property’ and that such notice was signed by Joe W. and Francis W. Fleming, owners.
“In the original suit I do not recall that it was alleged or admitted in specific terms that Joe W. Fleming was the owner of the land but it is certainly clear to me from the pleadings and the testimony all the way through that Joe Fleming asserted himself to'be the owner; that in this action the plaintiff says: ‘I am the owner and Joe Fleming was my manager, under my immediate supervision, and that certain things were done. ’ The plain tiff then knowledgeably acquiesced in her husband’s assertion of rights on his own account, and now she seeks to assert those same rights on her own account relegating her husband to the role of farm manager, or owner’s agent. I think it boils down to the fact that the Flemings were husband and wife. In the second suit in which Francis Fleming is plaintiff, she is trying the second time to cover the same ground that her husband covered in the original suit.”
"We agree that the preponderance of the evidence supports the above findings. These two cases covered the same subject-matter, the same evidence, and involve, in effect, the same issues sought to be raised in the present suit. The only difference is that Francis W. Fleming, the wife of Joe W. Fleming, was not made a party in the first suit. We are convinced, however, that in that first suit her husband with her knowledge and consent and within the scope of his authority was acting as her agent and manager; that all the while she stood idly by with full knowledge of what was going on, the pendency and progress of the suit, and the final result thereof. In fact, appellant seems to concede that her husband was her agent until the alleged contract of January 19 (based on the letters). She says: “In this case, the appellant alleged that Joe W. Fleming was her agent during the rental of the farm and in the negotiation of the contract with the appellee, but nowhere does she allege that he was her agent after the contract of January 19th was entered into.” It appears conclusive that she must have known about the suit because she and her husband had the following Notice to Vacate served on Cooper.
“TO ELLIS COOPER, Route 2, Springdale, Arkansas.
“You are hereby notified to quit and vacate our property, more particularly described as follows: [describing it]. You are to vacate said property within ten (10) days after the service of this notice upon you. Witness our hands this 9th day of January, 1952.
/s/ Joe Fleming
/s/ Francis Whitlow Fleming, Owners.”
In this notice it will he observed that they both claim to be owners of the property involved. It further appears that Francis W. Fleming, following the above notice, called the court reporter several times inquiring about the progress of the suit, and in the circumstances, we hold that she ivas in privity with him and being his wife was equally bound and concluded by the first suit above. The general and applicable rule is stated in 50 C. J. S., Page 342, § 798 (Judgments). “There is no legal privity between a husband and wife in such a sense that a judgment for or against the one will conclude the other, where the action concerns their separate property, rights, or interests not derived from, each other. . . .
“Under some circumstances, however, a judgment against one spouse is binding on the other spouse. A wife will be concluded by a judgment in an action for or against her husband with respect to any right or interest which she claims through or under him; and so likeAvise will a husband be concluded by a judgment for or against the wife in respect of a right or interest which he claims through or under her. Also either spouse may be concluded where he or she was joined as a party with the" other and such joinder Avas not improper, or where, although not a formal or nominal party, he or she Avas the real party in interest, or sanctioned the suit, or assumed a right to control or actively to participate in the trial or its management. Where the husband acts as agent for the wife, not only in the litigation but in the transaction out of which it arises, she is bound by the judgment where the litigation is.conducted in his name, or originally in the names of both of them and, on appeal, in his name alone, and he is bound, where the litigation is in her name.”
In a someAAdiat similar situation, in effect, this court in Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, reversed the loAver court’s judgment in Avhich it had refused the plea of res judicata offered by defendant. The plea of res judicata seemed to be based upon a chancery decree involving title to real estate in which action the wife had not been made a party. We there said: “It is the opinion of the majority of the judges, that Senie Hervey being the wife of Isom Hervey, living with him at the time, she was represented by the husband in the suit, was in privity with him, and equally concluded by the proceedings.
“A judgment in favor of or against the husband in an action involving a debt due the community will bind the wife regardless of her nonjoinder. . . . And even in jurisdictions where both husband and wife are necessary parties in actions affecting community real property, a judgment either for or against the husband in an action to which the wife is not a party is not necessarily void on collateral attack; where the action was brought by the husband alone, the judgment is binding on the wife, unless she avoids it by showing that it was commenced and prosecuted without her knowledge or consent. 31 C. J. 160.” See also Haffke v. Hempstead Co. Bank & Trust Co., 165 Ark. 158, 263 S. W. 395.
In the circumstances Cooper’s plea of res adjudieata against the present suit is well founded and must be sustained. In our recent case of Missouri Pacific Railroad Company, Thompson Trustee, v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we said: “As stated in 30 Am. Jur. 908: ‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in.the same or any other judicial tribunal of concurrent jurisdiction.’
“And in 30 Am. Jur. 957, in discussing who aré privies within the rule of res judicata, it is stated: ‘In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to meart- parties claiming under the same title. ’ ’ ’
Appellant’s earnest contention that the present suit was based, in effect, upon a written contract evidenced by the two letters above referred to from Cooper’s attorney to Joe W. Fleming, is, we hold, without merit. The first letter (January 15, 1952) was as follows: “Dear Joe: Ellis Cooper has brought to me this Notice to Vacate you had served on him. Ellis has consulted me for some time about your difficulties.
“You realize, of course, the same as I do that where a man is renting on a year to year basis, to give him a valid legal notice you have to give him a six months notice directed towards the end of the term, so legally to have required Mr. Cooper to vacate on January 1, 1952, notice would have had to have been given on or before July 1, 1951.
“But that is neither here nor there. You want your place and Ellis wants to give you the place. He has been talking to me about several of the things for which you owe him; the repairs on the pump and the sprayer, the tractor, and putting in the fall cover crop after harvesting the grapes, and I have long since learned that every difference has two sides so I am quite sure you have things that you feel he owes you for.
“Let’s do this. You give him a receipt in full setting up that he doesn’t owe you any further; that every debt he owes you is paid in full and then I will have him give you a similar receipt in full; then when that is done he tells me that he can move off the place probably within the time you have specified and certainly by February 1. ’ ’
.The second letter (January 19, 1952) as follows: “Dear Joe: Ellis was in this afternoon, and I went over with him in detail our conversation of Thursday. He asks me to advise you that he will have the premises vacated entirely by 6:00 p.rn., Tuesday, Jan. 22nd, 1952.'”
These letters evidently were efforts on the part of Cooper’s attorney to adjust Cooper’s controversy with the Flemings without a lawsuit' and contemplated further- negotiations. No meeting of the minds necessary to a contract' can be gleaned from them. The most that resulted was that after Mr. Lovell imparted to his client, Cooper, the conversation that he, Lovell, had had with Joe W. Fleming, Cooper vacated the property on January 22, 1952, without settling their differences. We think it is clear that no accord and satisfaction was had here. “A discharge of claims by way of accord and satisfaction is dependent upon a contract, express or implied; and it follows that the essentials necessary to valid contracts generally must be present in a contract of accord and satisfaction. Therefore, the following elements are essential: (1) A proper subject-matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration.” 1 Am. Jur., § 5, page 217.
We think that in addition to the absence of meeting of the minds, necessary to support an accord and satisfaction, there were also lacking competent parties. Finding no error the decree is affirmed.
Justice Smith dissents. | [
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Ed. F. MoFaddin, Justice.
The question posed is whether the 10-acre tract here involved is a public park. The Chancery Court held that the tract was owned entirely by Appellee Lackey. The Town of Mountain Yiew (appellant) claims that the tract is a public park. The other appellants, Storey et al., claim that if the 10-acre tract is not a public park then it is owned by Storey et al., as tenants in common with Lackey. We hold that the 10-acre tract is a public park; and such holding makes it unnecessary for us to consider any part of the controversy between Storey et al. and Lackey.
I. Dedication. Mountain View (hereinafter called “Town”) is and was at all times here involved an incorporated town. In 1921 Messrs. Lackey, Storey, Webb, Evans and Rosa — as partners — owned a tract of 186 acres north of and adjoining the Town. The partners platted this 186-acre tract into lots, blocks, streets, alleys and areas, and called the tract “White Water Addition to the Town of Mountain View. ’ ’ On this plat there was the herein disputed 10 acres labelled, “Laid out for City Park — 10 acres”; and there was shown in the park the location of two springs of great notoriety in the community. This plat was placed of record; and lots and block were sold with reference to it. By 1926 more than half of the property in White Water Addition had been sold to the public. At the present time all of the property in the Addition had been sold except the 10-acre park here in issue.
We have many times held that when the owner of land makes a plat thereof and sells lots with reference to it, this amounts to a dedication of the streets and public ways shown on the plat. See Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003. In Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395, the rule is stated:
“The law bearing on the question of dedication of property to the public use is well settled by the decisions of this court. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. He will also be held to have thereby dedicated to the public use squares, parks, and other public places marked as such on the plat. The dedication becomes irrevocable the moment that these acts concur. Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, Id. 221; Dickinson v. Ark. City Imp. Co., Id. 570; Brewer v. Pine Bluff, 80 Ark. 486; Stuttgart v. John, 85 Ark. 520.”
In the case at bar the surveyor who made the original plat of White Water Addition testified that all of the five partners authorized him to make the survey and the plat, and to record it. A real estate broker testified that the said five owners of White Water Addition gave him a copy of the plat showing the 10-acre park and told him to sell the lots with particular emphasis on the fact that the park contained the two springs always to be open to the public. One witness testified that he purchased lots for himself and his relatives, just across the street from the park, because of the fact that it was a public park. Thus there was a dedication within the holdings of our cases.
II. Acceptance of Dedication. It is urged by Appellee Lackey that in 1921 the White Water Addition was outside the boundaries of the Town so there could be no acceptance of the dedication by the Town. We conclude that this contention is without merit. Act 85 of 1913 (as now found in § 35-901, Ark. Stats.) gives municipal corporations the power of eminent domain to condemn property for parks, etc.; and the Statute provides:
“. . . and, in case of municipal corporations, such parks and boulevards may be situated at a distance of not exceeding five miles from the corporate limits and shall yet remain under the jurisdiction of the municipal corporation. ’ ’
Certainly if a municipal corporation has the power of eminent domain to acquire a park within five miles of the municipal boundaries, the municipality can likewise accept the dedication of a park within such distance. Here the park was one-fourth of a mile from the corporate boundaries of the Town in 1921. Therefore the Town had the Legislative authority to acquire the park. In Hankins v. Pine Bluff, 217 Ark. 226, 229 S. W. 2d 231, we said:
“The two essential elements of a dedication are the owners’ appropriation of the property to the intended use and its acceptance by the public. No specific duration of the public user is required to complete the dedication. Ayers v. State, 59 Ark. 26, 26 S. W. 19. Nor need the dedication be evidenced by a deed. Conner v. Heaton, 205 Ark. 269, 168 S. W. 2d 399.”
The Town Council of Mountain View did not adopt a Resolution formally accepting the park; but the fact of the actual acceptance is shown by a number of witnesses. One witness testified that he helped improve the park because he was helping the Town; that benches were built, paths cleared, stairways erectéd; that campers used the park; that many people came to use the water; and that rock steps were built from the springs leading toward the Town. The same witness testified that he lived across the street from the park from 1922 to 1928 and that he saw and participated in the improvements made in the park; that the work was done by the public and without any compensation; that a passageway was prepared from the springs in the park directly toward the Town; that no one in the area had a well; and that all depended on the springs for water supply.
Another witness testified that he, along with six or seven other persons, worked two or three days cutting-underbrush, erecting benches and cleaning up the 10-acre area; and that the work was 'done at the behest of the Town. Witnesses testified that when the water works were installed in Mountain View in 1936 the springs in the park were checked to determine whether they could furnish enough water for the Town, as the Town at that time considered it owned the 10 acres in controversy. Another witness testified that he, along with several others, helped clean up the park area for the Town; and that the work was donated.
The case at bar is in many respects similar to, and ruled by, the case of Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395. The case of Mebane v. Wynne, 127 Ark. 364, 192 S. W. 221, is differentiated from the case at bar in factual matters: because in Mebcme v. Wynne the opinion recites:
“. . . the space designated,as ‘Franklin Square’ has never at any time been put to any public use, and has never been accepted by the City Council as a public place. . . .”
In the case at bar the 10-acre park was used by the public over the years; the springs are still being used; and the cleaning up and improvement of the park was done “at the behest of the Town.” In Gowers v. Van Buren, 210 Ark. 776, 197 S. W. 2d 741, we quoted earlier cases to the effect that a formal acceptance of dedication is not necessary; it is sufficient if there be in fact an acceptance of such dedication. The facts in this case clearly show actual acceptance of the dedication.
III. Limitations. In the Lower Court Appellee Lackey claimed that he had acquired deeds from all of his former partners to all of the White Water Addition; that by 1946 all of the Addition had been sold except the 10-acre park here involved; and that since 1946 Lackey has paid taxes on this 10-acre park. This plea of limitations is without merit for a number of reasons, only one of which need be mentioned: Act 666 of 1923 (as now found in § 37-109, Ark. Stats.) has this pertinent language:
“Hereafter no title or right of possession to any . . . public park . . . shall or can be acquired by adverse possession or adverse occupancy. . . .”
.Since appellee does not claim any adverse possession to have started prior to 1923 the said Act 666 is a bar to his claim because the park was dedicated and accepted by the public prior to the effective date of the 1923 Act.
Conclusion.
It follows that the decree of the Chancery Court is reversed and the cause is remanded with directions to enter a decree declaring the 10-acre tract to be a public park in accordance with the views expressed in this opinion.
Chief Justice Seamsteb not participating.
These appellants are Messrs. Storey and Rosa, and the heirs of Messrs. Webb and Evans.
For other cases and statements regarding “dedication by plat” see Butler v. Emerson, 211 Ark. 707, 202 S. W. 2d 599; 16 Am. Jur. 365; 39 Am. Jur. 808; 19 C. J. 935; 26 C. J. S. 82; and 7 A. L. R. 2d 607.
We have not overlooked Amendment No. 13 to our Constitution adopted in the General Election in 1926 which allows municipal corporations to issue bonds for the purchase, etc., of public parks “. . . located either within or without the corporate limits of such municipality. . .' But Act 85 of 1913 was the law in 1921 when the transactions involved in this case had their inception.
For other cases and writings regarding acceptance of dedication see Poskey v. Bradley, 209 Ark. 93, 189 S. W. 2d 806; Lester v. Walker, 177 Ark. 1097, 9 S. W. 2d 323; 16 Am. Jur. 416; and 26 C. J. S. 103. | [
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Ed. E. McFaddin, Justice.
This is the second appeal of this case. The first appeal involved only the matter of venue: the present appeal challenges the giving and refusing of certain instructions in the trial. The appellant is Woodruff Electric Cooperative Corporation (hereinafter called “Woodruff”). The appellees are Woodrow James (an individual) and Weis Butane Gas Company (hereinafter called “Weis Butane”).
This case resulted from a series of traffic mishaps which occurred on U. S. Highway 79 about 2% miles west of Marianna. At the place of the traffic mishaps the highway runs in an east and west direction; the concrete pavement is 23 feet wide with a suitable gravel shoulder, dirt shoulder and borrow pit on each side of the highway. About 6 p. m. February 27,1951, a Chevrolet sedan, going-west, collided with a Farmers’ Supply truck going east, causing several persons to be injured. The Farmers’ Supply truck went off the highway into the south side borrow pit and the Chevrolet sedan came to rest crosswise the highway, occupying all of the south lane of the concrete slab and a small portion of the north lane.
Immediately after this traffic mishap a Nash car driven by Captain and Mrs. Fagan, arrived at the scene and stopped on the north side of the highway, either on the concrete slab or the gravel shoulder. The Fagan car, facing west and with its headlights on, stopped a short distance west of the Chevrolet sedan. The Fagans stopped so that they could render aid to the injured parties. At about the same time the Weis Butane truck going east stopped on the gravel shoulder on the south side of the highway just west of the Chevrolet sedan. Woodrow James, the driver of the Weis Butane truck, also stopped to render aid to those injured in the Chevrolet sedan-Farmers’ Supply truck mishap. Woodrow James and Captain and Mrs. Fagan assisted in loading the three injured parties into a vehicle going to Marianna ; and the Fagans Avere in the process of giving their names and addresses to James, when the Woodruff truck came from the west and crashed into the rear of the Weis Butane truck, resulting in the claims and counter-claims that are involved in the present case.
Woodruff filed action against Weis Butane and Woodrow James for damages to the Woodruff truck, and claimed: (1) that James had stopped on the highway, without having his rear lights burning or without putting out flares; and (2) that the headlights of Captain Fagan’s car caused the driver of the Woodruff truck to be unable to see the Weis Butane truck. After the venue question was settled in the first appeal, as previously mentioned, Weis Butane and Woodrow James each filed answer and cross-complaint alleging: (1) that the driver of the Woodruff truck was solely negligent, and (2) that such negligence resulted in property damage to Weis Butane and physical injuries and loss of earning capacity to Woodrow James. Trial to a Jury resulted in a verdict and judgment for Woodrow James for $6,250 and Weis Butane for $2,500. Woodruff brings this appeal and presents four points, all relating to the giving or refusing of instructions. The total instructions given by the Court consume 17 typewritten pages in the transcript.
1. Defendant’s Instruction No. 6. This instruction, as given by the Trial Court, reads:
(A) “You are instructed that, as a general rule, the test of whether one is to be charged with negligence because of his acts in particular circumstances is to be measured by a legally established standard of conduct; that is, whether he acted as a reasonably prudent person would have acted under the same or similar circumstances.
(B) “You are instructed, however, that when one is impelled by humanitarian impulses, those human instincts which prompt people to aid others who are in danger, the law itself makes allowances within the scope of the established standard for his acts in such circumstances, and he is not held to as high a degree of care or caution as he would ordinarily be.
(C) “So, in this case, if you should find from a preponderance of the evidence that at the time of the collision complained of, Woodrow James was acting under the stress of a situation with which he was suddenly confronted, and as a result of which he might reasonably have thought others were in peril of substantial injury or loss of life, and further find that he acted as he did in an endeavor to render aid to those he reasonably thought were injured or in danger; and, if you further find that in so acting he did as the ordinarily prudent person would have done when confronted by the same circumstances and conditions, then you are instructed that you should take all of these factors into consideration in determining whether Woodrow James was guilty of negligence as charged in the complaint. ” (Paragraph letters and italics are our own.)
Appellant objected in the Trial Court to this instruction for three reasons which we now list and discuss:
1. The first objection was that the instruction “. . . ignores the fact that it is possible that the emergency had passed at the time of the accident here involved. ’ ’ The testimony showed that Captain and Mrs. Pagan stopped their car at practically the same time that Woodrow James stopped the Weis Butane truck; that James and the Pagans supervised the loading of the three injured persons into a passing vehicle and sent them to Marianna for medical aid; that Captain Pagan stated that he was en route to Pt. Hood, Texas, on military orders for arrival at a definite time and could not delay any longer; that he offered to give his name and address to Woodrow James to be delivered to the proper persons; and that while James and the Pagans were writing out this information the Woodruff truck drove into the rear of the Weis Butane truck causing the injuries and damages involved in this present litigation. Thus only a few minutes elapsed from the time of the arrival of James and the Pagans until the Woodruff-Weis Butane collision. Paragraph (C) of the instruction submits ■to the Jury the decision of the question, whether “. . . at the time of the collision - complained of Woodrow James was acting under the stress of a situation, . . .” etc. If Woodrow James stopped because of the “rescue doctrine” and was continuing to act for such reason then the objection to the instruction is without merit. The “rescue doctrine” is now to be discussed.
2. The second objection to the Instruction No. 6 is “. . . that it is not pertinent to the situation.” We find this objection to be without merit. This Instruction No. 6 is framed to submit to the Jury the “rescue doctrine.” In Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S. W. 12, we had occasion to consider this doctrine and Mr. Justice Humphreys, speaking for the Court, there said:
“Under the rescue doctrine, human life being involved, a liberal rule prevails with relation to contributory negligence. In such cases one is called upon to act quickly AYithout much time to consider results, and is not held by the law to as strict account as AAdien performing-ordinary acts in doing his Avork. The laAv excuses him when engaged in extraordinary duties or emergencies to save the life of human beings, unless his act is rash and reckless. The rescue doctrine is Avell stated in syllabus No. 1 in the case of Corbin v. Philadelphia, 195 Pa 461, 45 A. 1070, 49 L. R. A. 715, 78 A. S. R. 825, which is as follows: ‘A rescuer Avho, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the May Avords of condemnation of his bravery, because he rushes into danger to snatch from it the life of a felloAY creature, imperiled by the negligence of another, but he should rather listen to Avords of approval unless regretfully Avithheld on account of the unmistakable evidence of his rashness and imprudence.’”
In the case at bar, Woodrow James had stopped to render aid to the injured parties. He had driven the Weis Butane truck entirety off the concrete slab and on the gravel shoulder of his extreme right side of the highway and had left all of his front, rear and side lights burning. Thus Woodrow James was certainly in the role of a rescuer and some instruction on the rescue doctrine was clearly pertinent to the situation existing at the time James received his injuries.
3. The third objection offered by appellant to the Instruction No. 6 was “. . . that it unduly singles out for consideration the humanitarian instinct of the driver of the Butane truck, Woodrow James, and Captain and Mrs. Fagan, the driver of the Nash.” We find no merit in this objection. In stopping to render aid, the Fagans and Woodrow James did only what , good people have been urged to do ever since the parable of the Good Samaritan as contained in Holy Writ. As previously mentioned, there were many instructions in the case. The Court had prefaced all of them by saying :
“You are instructed that you are not to single out any one of these instructions and consider it alone, but you are to take the instructions altogether and consider them altogether as one harmonious whole as the law in this case.”
Then, after other instructions, the Court had told the Jury:
‘ ‘ If you find from a preponderance of the testimony that Woodrow James was guilty of any negligence and that such negligence was the proximate cause of the collision in which plaintiff’s truck was damaged then you will find for the plaintiff, Woodruff Electric, in such amount as will fairly compensate it, under the other instructions of this Court, unless you should find that the plaintiff was guilty of negligence which caused or contributed in any degree, however slight, to the collision, in which event the plaintiff cannot recover.”
The Court then gave a series of instructions on the applicable traffic Statutes; and in Instruction No. 5, said:
“The Court in these instructions has referred to certain traffic laws of Arkansas. If you find that any party or parties violated any traffic law or laws as defined in these instructions, such violation,' if any, does not constitute negligence in and of itself, but is only evidence for you to consider, along with all other evidence in the case, in determining whether such party was guilty of negligence.”
Immediately following the last quoted instruction the Court gave the Instruction No. 6 here challenged. We give all of the foregoing to show that Instruction No. 6 did not “. . . unduly single out for consideration the humanitarian instinct.....” While the Instruction No. 6 is long and not worded as smoothly as it should have been, and certainly not to be used as a model in other cases, nevertheless it is a good instruction against the objections made by the appellant. What the instruction really says is, that what the ordinarily prudent person would do in an emergency situation is the test in rescue matters, rather than what the ordinarily prudent person would do in a non-emergency situation. The language that saves the instruction from fatal error is found in the last paragraph thereof, and heretofore italicized by us, to-wit:
“. . . and if you further find that in so acting he did as the ordinarily prudent person would have done when confronted by the same circumstances and conditions. . . .”
The conduct of the ordinarily prudent person under the same or similar circumstances was used as the yardstick by which to measure the conduct of Woodrow J ames.
II. The Trial Court Refused to Give the Plaintiff’s Instruction No. 12, which reads:
“If you find that Woodrow James violated any of the State laws referred to, and you find also that the violation was the proximate cause of the collision, then your verdict should be for the plaintiff, unless you are convinced by a preponderance of the evidence that defendant was not guilty of negligence, or, by á preponder anee of the evidence, that plaintiff was guilty of contributory negligence.”
The Trial Court was correct in refusing to give this instruction. It was a binding instruction and one designed to emphasize a claim that the burden of proof shifted in the ease. Certain language of this Court in Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676, was seized on by the appellant as the basis for this instruction. But such language in the cited case was not designed to support such an instruction. Insofar as the Instruction No. 12 was correct it was covered by the defendant’s Instruction No. 5 which was given and which reads:
“The Court in these instructions has referred to certain traffic laws of Arkansas. If you find that any party or parties violated any traffic law or laws as defined in these instructions, such violation, if any, does not constitute negligence in and of itself, but is only evidence for you to consider, along with all other evidence in the case, in determining whether such party was guilty of negligence.”
III. The Court Gave the Defendant’s Instruction No. 8 which permitted the Jury to consider as an element of damages, Woodrow James’ loss of earning, past, present and future; and the appellant complains of the instruction. The complaint alleged the loss of earnings, past, present and future. There was evidence that Woodrow James had been in the hospital and incapacitated for a considerable period of time; and the appellant introduced into the record a medical report dated May 4, 1951 (more than 60 days after the accident), which report said of Woodrow James: “Patient may return to his old occupation with a permanent loss of 5%> of his earning-capacity.” In view of the foregoing, and also of other evidence in the record, we hold that the Trial Court committed no error in giving defendant’s Instruction No. 8.
IY. Along with other instructions on the highway safety statutes and the traffic laws, the Court, gave an instruction to the Jury almost verbatim from % 75-652, Ark. Stats., concerning more them three people in the driver’s seat of a car. Appellant says that this instruction should not have been given; but the evidence shows that four men were riding in the front seat of the Wood-ruff truck at the time it drove into the rear of the Weis Butane truck. One of the four persons testified that he could not see to the left because the head of one of his companions was in the way. In view of this testimony, and other in the record, the case of Warren v. Hale, 203 Ark. 608, 158 S. W. 2d 51, is authority for the Court to give the instruction herein challenged.
Affirmed.
For first appeal, see Woodruff Electric Cooperative Corporation v. Weis Butane Gas Company and Woodrow James, 221 Ark. 686, 255 S. W. 2d 420.
For Annotations on the rescue doctrine see 19 A. L. R. 4 and 158 A. L. R. 189. See. also, American Law Institute’s Re-Statement on “Torts,” Vol. 2, § 472; and 166 A. L. R. 752. | [
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Paul Ward, Associate Justice.
This appeal involves the interpretation of Act 44 of 1953 [Ark. Stats., § 43-2324, Supplement] and its application to a situation where a person, upon a plea of guilty, is given a suspended sentence for one year in the penitentiary and the suspension is revoked by the trial judge more than a year later.
Appellant, Johnny Canard, on December 3, 1953, pled guilty to the crime of grand larceny in the Circuit Court of Stone County. At the same time the presiding judge signed this order <£. . . Johnny Canard is hereby sentenced to serve one year in the state peniten tiary at hard labor, which sentence is hereby suspended on recommendation of all the parties hereto, upon the good behavior of the defendant for said period of time, and upon the payment of all the costs of this action.” On the original criminal docket sheet, which is a part of the record, in the case styled “State of Arkansas v. Johnny Canard,” appears the following notation: “12/3/53 D. waives arraignment — plea of guilty — suspended sentence of one year . . .”
On May 2, 1955 the presiding judge of the Stone Circuit Court, upon a showing by the prosecuting attorney that Canard had violated the conditions of his suspended sentence by law violations in February 1954 and by failing to pay the costs, revoked Canard’s suspended sentence and ordered him to begin serving the sentence formerly announced. From this order of revocation Canard has appealed to this court.
We have reached the conclusion that, under the above factual situation, the trial court had no authority on May 2, 1955 to revoke the suspended sentence given appellant on December 3,1953. This conclusion has been reached after a careful analysis of the various Acts of the Legislature relative to this situation and the interpretations placed thereon in our former decisions.
The first announcement of the Legislature relative to this matter was Act 76 of 1923. Section 1 of this Act gave Circuit Courts in criminal cases, upon a plea of guilty or a verdict of guilty, the authority “to postpone the pronouncement of final sentence and judgment” (emphasis supplied). Section 2 gave the trial judge the power to revoke the suspension and postponement mentioned in Section 1.
Act 158 of 1945 [Ark. Stats., $ 43-2326] gave all courts of record authority “to suspend the execution of jail sentences or the imposition of fines, or both in all criminal cases pending before said courts” (emphasis supplied).
Act 262 of 1945 [Ark. Stats., § 43-2324] reenacted Section 1 of the 1923 Act above mentioned and added the following: “Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence” (emphasis supplied).
Act 358 of 1949 purported to amend Act 76 of 1923. The Act referred to Pope’s Digest, § 4035, but evidently meant to refer to § 4053 which is the same as the 1923 Act. It provides that “all postponements of final sentences . . . shall run from the date of the plea or verdict of guilty and for the period of the statute of limitation for each offense and at the expiration of said period of limitation shall expire in like manner as if sentence had been pronounced.”
In 1953 Act 44 was passed which is exactly like Act 262 of 1945 except that it applies to “criminal trials in all courts of record” while said Act 262 applied to “criminal trials in Circuit Court(s)” (emphasis supplied).
This court in the cases of Davis v. State, 169 Ark. 932, 277 S. W. 5, and Ketchum v. Vansickle, 171 Ark. 784, 286 S. W. 948 [both decided after the 1923 Act but before the 1945 Acts] made a clear cut distinction between (a) the act of postponing the date of pronouncing sentence and (b) the act of postponing the execution of a sentence already pronounced. The 1923 Act dealt with situation (a) while Act 158 of 1945 dealt with situation (b). Therefore it was held in the Davis case, supra, that where the trial court first pronounced sentence and then attempted to postpone the execution thereof the action was void and the defendant could later be made to serve out his sentence. In speaking of the 1923 Act the court there said: “Indeed, the Act only gives the circuit court authority to postpone the pronouncement of final sentence and does not give it authority to stay the execution of a sentence already pronounced.” In the Ketchum case, supra, the same factual situation obtained and the decision there was rested on the decision of the Davis case, supra. It is noted that in both of these cases the suspension was for an indefinite period of time.
In the case of Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353, decided in 1940, the factual situation is not entirely clear. Apparently Calloway pled guilty and was sentenced to 10 years in the penitentiary with a provision that the sentence should be suspended during good behavior. This is much the same factual situation as that of the case under consideration. However when the court, within the 10 year period, revoked the suspended sentence the trial court apparently considered that it had only postponed the pronouncement of sentence because in referring to the same the order states: “That pronouncement of such sentence should be suspended during the good behavior of defendant. ’ ’ This court treated the case as coming under the provisions of the 1923 Act and held that the trial judge had a right to revoke the suspension of sentence [before the 10 year period expired].
In the case of Bodner v. State, 221 Ark. 545, 254 S. W. 463, where apparently the sentence was pronounced and execution thereof suspended this court treated the case as coming under the provisions of Act 262 of 1945 [Ark. Stats., § 43-2324] and applied that statute.
A careful reading of some of the above mentioned decisions leaves the impression that a clear distinction has not at all times been made between (a) the act of postponing the pronouncement of the sentence and (b) the act of postponing the execution of a sentence already pronounced. However we are convinced, after a careful analysis of Act 44 of 1953 in its relation to all the previous Acts mentioned above, that no distinction need now be made, and that it is immaterial whether the trial court actually (a) postpones the pronouncement of the sentence or (b) postpones the execution of the sentence already pronounced. It is obvious that a great deal of confusion and hardship was inherent in the practice of trial courts in giving indefinite suspensions, and that the Legislature, by enacting the several statutes set forth above, intended to remedy this situation. They accomplished this by providing [in the 1953 Act] that the suspended sentence should begin to run on the day of the plea or verdict of guilty and that it should terminate on a definite date fixed by the trial judge in the order of suspension. It is also provided in the last paragraph of Section 1 of the 1953 Act just how the suspension may be revoked. This paragraph reads: ‘ ‘ Provided however, the court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence” (emphasis supplied).
We think the facts in the case under consideration fall squarely within the provisions of Act 44 of 1953 as we have interpreted it above. Appellant’s plea of guilty was received by the court on December 3, 1953 and on that day he was given a “suspended sentence of one year. ’ ’ The trial court had the authority to revoke that sentence, either for bad behavior or for failure to pay costs, at any time previous ot December 3, 1954, but we think he had no authority to revoke it on May 2, 1955.
It is also argued by the State that the payment of costs was a condition precedent and that the suspended sentence did not start to run until the costs were paid. This contention of course cannot stand in the face of the statute which specifically says that the suspended sentence shall begin “running from the date of the plea or verdict of guilty.”
The above views call for a reversal and dismissal of the judgment of the trial court, and it is so ordered. | [
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G-eorgb Rose Smith, J.
This is a suit by the appellees, Arlis and Lela Clark, for damages resulting from a head-on collision between their car and a truck being driven by A. B. Poynor. Mr. and Mrs. Clark were injured in the accident; their infant son was killed. The action was brought against Poynor and also against the appellant, R. W. Milum, it being alleged that the collision was partly caused by Milum’s negligence in allowing a cow to run at large on the highway. The jury returned a $4,500 verdict for Clark against Poynor, a $4,000 verdict for Mrs. Clark against Milum, and a $500 verdict for Clark as administrator against Milum. Milum alone has appealed.
The plaintiffs’ proof shows that on the evening of February 2, 1954, the Clark and Poynor vehicles were traveling toward each other on a stretch of highway that runs through a farm owned by Milum. When the vehicles were a short distance apart Poynor swerved to his left to avoid a cow in the road, but in doing so he entered the path of the Clark car and collided with it. The plaintiffs introduced evidence to show that cattle of unknown ownership had frequently been seen on the highway in this vicinity and that the cow which caused the accident was owned by Milum.
The weak point in the plaintiffs’ case lay in their proof that Milum had been negligent. There was very little evidence to show that Milum’s cattle had ever been permitted to range along the highway or that he had been careless in allowing the animal in question to escape from its fenced pasture. In attempting to prove negligence on Milum’s part the plaintiffs called Doyle Eoff as a witness. Eoff testified that he reached the scene soon after the collision, but the only cow he saw was a roan animal a quarter of a mile or more off the road. He said he did not know who owned the cow he saw. Asserting surprise, plaintiffs’ counsel asked Eoff if he had not previously told certain persons that he had seen a roan cow at the scene of the accident, that the cow belonged to Milum, and that it had been running the highway all summer and fall. Eoff denied having made those statements. The plaintiffs were then permitted to prove by the persons named that Eoff had made the statements mentioned. The court instructed the jury that the testimony could be considered only as affecting the credibility of Eoff and not as establishing any material fact in the case.
The admission of this testimony was error, and, since it was the principal proof having a tendency to indicate negligence on Milum’s part, the error was prejudicial. There is, of course, no doubt that in a proper situation a party may contradict his own witness by showing that he has made statements contrary to his present testimony. The Civil Code so provides, and the rule has been followed in many cases, both civil and criminal. Ark. Stats. 1947, § 28-706; Ward v. Young, 42 Ark. 542; Shands v. State, 118 Ark. 460, 177 S. W. 18; Graves v. Gardner, 137 Ark. 197, 208 S. W. 785.
For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeach a witness who merely fails to give the positive testimony that the party expected from him. Doran v. State, 141 Ark. 442, 217 S. W. 485; Murray v. State, 151 Ark. 331, 236 S. W. 617; Williams v. State, 184 Ark. 622, 43 S. W. 2d 731. The reason is that the prior statements are not competent evidence of the basic fact, being hearsay, and are admissible only as bearing-on the issue of credibility. Comer v. State, 222 Ark. 156, 257 S. W. 2d 564. Bnt if the witness has testified to nothing his credibility is immaterial. Here, for example, the plaintiffs called Eoff to prove that Milnm’s cow had roamed the highway for several months. Eoff neither affirmed nor denied that fact. His earlier assertions were not competent to prove that the cow had actually been at large. And since Eoff’s credibility was unimportant the testimony could serve no legitimate end and yet would involve the danger that the jury might treat it as substantive evidence, despite the court’s cautionary instruction. Wigmore on Evidence, § 1043. It should therefore have been excluded.
It is argued by the appellee that Eoff’s credibility was really in issue, for the reason that certain statements made by him on cross-examination were detrimental to the plaintiffs. This argument is unsound. It is true that Eoff testified that Milum’s fences were good and that he had never seen Milum’s cows along the highway. As to the fences, however, every witness who described these fences said in effect that they were excellent. An attack upon Eoff’s veracity would not have justified the jury in disregarding the undisputed proof that the fencing was good. As to the other point, there is virtually a total want of proof that Milum’s cattle had been permitted to run at large. Again an attack upon Eoff’s veracity would not have supplied substantial evidence to support the verdict. It is evident that the exclusionary rule would be nullified if the prior statements could be introduced under the guise of testing the witness’s credibility upon a point having no significance in the case.
The appellant insists that the verdicts are so contradictory as to require judgment in Milum’s favor. We do not agree. The finding that Milum is liable for Mrs. Clark’s injuries and for the infant’s death is not necessarily inconsistent with the finding that Milum is not liable for Clark’s injuries. The jury may have believed that Clark was guilty of contributory negligence not im putable to Ms passengers. And if it be argued that Clark’s verdict against Poynor negatives the existence of negligence on Clark’s part, the answer is that the appellant is not entitled to complain of such an inconsistency. Leech v. Mo. Pac. R. Co., 189 Ark. 161, 71 S. W. 2d 467; Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64. It is also argued that the case should be dismissed for want of any substantial evidence of Milum’s negligence. We need not analyze the sufficiency of the testimony, for it is evident that the plaintiffs were surprised by Eoff’s failure to testify to facts that may be susceptible of proof by other witnesses. In these circumstances we are unwilling to say that the case has been fully developed. Longer v. Carter, 102 Ark. 72, 143 S. W. 575; Reynolds Metal Company v. Ball, 217 Ark. 579, 232 S. W. 2d 441.
In this court the appellees have filed a motion to require the appellant to reimburse them for the cost of a supplemental abstract of the record. See Supreme Court Rule 9 (e). This additional abstract consists of (a) testimony describing the injuries sustained by Mrs. Clark, and (b) a detailed account, including extensive quotations from the record, of the proceedings pertinent to Eoff’s testimony and its subsequent contradiction.
This motion misconceives the court’s purpose in revising Rule 9. Since the new rule has not previously been discussed in an opinion, an explanatory comment may be of assistance to the bar as a whole. In its old form Rule 9 required the appellant to submit a fair abstract of the record, under penalty of dismissal of the appeal if the abstract were found to be insufficient. The penalty was so severe that it caused lawyers to resolve all doubts in favor of making a complete abstract of everything in the record, whether relevant to the issues on appeal or not. The result was that nearly every abstract was unnecessarily long, to the detriment alike of the lawyer who labored to prepare it, of the client who paid for its printing, and of the judges who were required to study much irrelevant matter.
It was to remedy this situation that Rule 9 was revised in 1954. The present rule requires that the abstract consist “of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” The penalty of dismissal for insufficiency of the appellant’s abstract has been eliminated, the rule now permitting the appellee at his option to supplement an abstract thought deficient. Compensation for the cost of the supplement may be awarded by the court in its discretion.
It is the purpose of the revised rule to encourage the submission of abstracts that are confined to those matters pertinent to the points involved on appeal. By this test we find no deficiency in this appellant’s abstract. Since there is no contention that the verdicts are excessive, the testimony concerning Mrs. Clark’s injuries was properly omitted. The original abstract of the Eoff testimony is amply sufficient to present the issue of law involved. The appellees’ motion for reimbursement is denied.
Reversed and remanded. | [
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George Rose Smith, J.
On May 23,1955, the county court of Crittenden County, without notice or a hearing, entered an order purporting to remove the appellant from office as a commissioner of Road Improvement District No. 7, the court finding that its action was “to the best interests of the district. ’ ’ The appellant promptly filed a petition in the circuit court for a writ of certiorari to quash the county court order as being void. The circuit court sustained a demurrer to the appellant’s petition upon the ground that no cause of action was stated, and the action was dismissed. The sole question is whether the county court, as an incident to its power to appoint the commissioners of the district, has the power to remove them for causes other than those specified in the governing statute.
This district was created by Act 55 of the 1919 Road Acts. Sections 5 and 8 of the statute invested the county court with power to appoint the original commissioners and to fill any vacancies that might occur. There is no fixed term of office for the commissioners, and the only provision for their removal is this sentence in § 8: “ The said County Court may remove any commissioner for neglect of duty, incompetency or malfeasance in office, but only after a public trial on written notice served as a summons.” The demurrer admits that the statutory procedure for the removal of a commissioner was not followed by the county court. The appellee insists, however, that the power of removal is a necessary incident to the power of appointment and may be exercised, without notice, for any reason other than the grounds specified by the statute.
This argument must be rejected upon the controlling authority of Taylor v. Wallace, 143 Ark. 67, 219 S. W. 314, and Payne v. Malone, 164 Ark. 323, 261 S. W. 632. The Taylor case arose under the general road law, which authorized the county court to appoint road district commissioners and to fill vacancies. There was, however, no express power in the county court to remove a commissioner. In holding that the power of removal did not exist we said: “The power conferred upon the county court to appoint three road commissioners at the time of making the order establishing the road district, pursuant to the terms of the act, is a special, and not a general, power. No such power exists in the county court except by enactment of the General Assembly. The general power of supervision by the county court over roads, conferred by the Constitution, invests said court with no such power or authority. The delegation of the power being special, the extent thereof is limited to the express grant.”
Even more directly in point is the Payne case, supra, which, like this one, arose under a special act creating a road improvement district and conferring authority on the county court to appoint the commissioners and to fill vacancies. The act was silent on the subject of removing the commissioners. A taxpayers’ action was instituted in the county court to remove the commissioners for misconduct in office. In adhering to the rule announced in the Taylor case the court said: ‘ ‘ The decision in that case is conclusive of the question that the county court has no right to remove commissioners unless the statute confers that power.” It follows that in the case at bar the county court’s power of removal must be exercised in conformity to the statute.
The decisions earnestly urged by the appellee, such as Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828, are not in conflict with our own decisions. The Shurtleff case, for example, involved a general power to appoint a subordinate for whose conduct the appointing authority was responsible. In such a situation, as is more fully explained in Myers v. United States, 272 U. S. 52, 47 S. Ct. 21, 71 L. Ed. 160, and Humphrey’s Executor v. United States, 295 U. S. 602, 55 S. Ct. 869, 79 L. Ed. 1611, the power to remove an incompetent employee is essential if the appointing officer is to be held responsible for the proper discharge of the duties imposed by law upon his department. Consequently, as the court said in the Shurtleff case, ‘ ‘ The right of removal would exist if the statute had not contained a word upon the subject.” But the present case presents a fundamentally different situation. The county court is not responsible for the conduct of road improvement district commissioners. It is reasonable to suppose that the General Assembly vested tbe power of appointment in the county court to avoid the inconvenience that would attend the exercise of that power by the various landowners in the district. In these circumstances the court’s power of appointment is special, as the Taylor case held, and does not carry the power of removal as a logical incident thereto.
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J. Seaborn Holt, J.
This is the second appearance of this case here. February 9, 1953 in our former opinion, Shelton v. Gaston, 221 Ark. 583, 254 S. W. 2d 679, we reversed the judgment and remanded the case for a new trial, for error of the trial court in submitting to the jury the issue whether a partnership existed between Gaston and Westall. We said in that opinion:
‘ ‘ This suit involves an alleged conversion of several head of cattle. . . .
“Appellant, G. P. Shelton, contends that he is the owner of certain cattle which he turned over to Antone Westall under an agreement whereby Westall would receive one-third of the increase, as consideration for look ing after the cattle. On the other hand, Westall contends that not only was he to get one-fonrth of the increase but was to be the owner of one-fourth of the entire herd, as consideration for his services.
“Westall, without the knowledge of the appellant, sold one-third of the cattle to appellee, Carl Gaston. Soon after Shelton learned of the sale, he filed suit against Gaston for conversion. Upon trial the jury returned a verdict in favor of Gaston. . . .
“From the pleadings in the case and the testimony of the witnesses, it appears that the only dispute between the parties is that appellant, Shelton, maintains Westall was to receive only one-fourth of the increase from the cattle as a consideration for looking after them, whereas Westall claims that he was to be paid, as such consideration, one-fourth of all the cattle. . . .
‘ ‘ Reversed and remanded for a new trial. ’ ’
The mandate from this court was filed with the Clerk of the Izard Circuit Court March 17, 1953. Thereafter, March 22, 1954, appellant filed motion in effect for judgment on the pleadings and evidence on the former trial, which motion was overruled. On March 28, 1955, more than a year later, appellant filed a second motion which was in effect a renewal of his first motion. This second motion contained this language: ‘ ‘ Said plaintiff [Appellant] now announces to the Court that he will stand upon said motion and still insists upon the same and to his objections and exceptions to the said ruling of the Court and will now proceed no further in this case in this Court.” This motion was also overruled, whereupon appellant refused to plead further and the cause was dismissed.
For reversal appellant argues that the action of the trial court was contrary to the law and the evidence. We do not agree. As indicated under our directive, this cause was reversed and remanded for a new trial. Appellant steadfastly refused to avail himself of the opportunity to try the case again. In this situation the case stands as if no action had been taken, or trial had, in the trial court. Our rule is clearly announced in the situation such as is here presented in Deason & Keith v. Rock, 149 Ark. 401, 232 S. W. 583. We there said: . . . “‘when a cause is remanded broadly for a new trial, all the issues in the case are open for trial anew the same as if there had been no trial. On a reversal of a cause by this court, it seldom occurs that the same is remanded for a new trial; but when such is the direction of this court, then the case stands for trial precisely the same as if there had never been any trial.’ It follows, therefore, from this expression of the court that, unless the direction for a new trial is specifically made upon a part or all of the issues involved, a direction for further proceedings according to law and not inconsistent with the opinion can mean nothing more than to render a decree in accordance with the record made.”
“When on an appeal or writ of error a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court,” Hartford Fire Insurance Company v. Enoch, 79 Ark. 475, 96 S. W. 393. See also Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040.
Judgment affirmed. | [
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McHaNey, J.
On November 7, 1930, while riding-in a car owned and operated by one Hanley, appellee suffered painful injuries in an automobile accident at Carlisle, Arkansas, caused by collision between Hanley’s car and another car driven by one Halloway. Appellant had issued in the State of Ohio a policy of automobile liability insurance to Hanley which provided among.other things the following: “II. (2) Bankruptcy or insolvency of the assured shall not relieve the company of any of its obligations hereunder. Any person or his legal representatives who shall obtain final judgment against the assured because of any such bodily injury or injury to or destruction of property and whose execution against the assured is returned unsatisfied because of such insolvency or bankruptcy, may proceed against the company under the terms of this policy to recover the amount of such judgment, either at law or in equity, but not exceeding the limit of this policy applicable thereto. Nothing in this policy shall give to any person or persons claiming damages against the assured any right of action against the company except as in this paragraph (2) provided.”
“V. (B) In the event of accident 'written notice shall be given by or on behalf of the assured to the company or any of its authorized agents as soon, as is reasonably possible thereafter, irrespective of- whether or not any injury or damage is apparent- at the time. Such notice should contain information respecting the time, place, and circumstances of the accident, with the name and address of the injured and any available witnesses. If such information is not reasonably obtainable, particulars sufficient to identify the assured shall constitute notice. The assured shall keep the company advised respecting further developments in the nature of claims or suits when and as they come to his knowledge. The assured shall cooperate with the company and, upon the company’s request, shall assist in effecting settlement, securing evidence, and the attendance of witnesses, hut the assured shall not voluntarily make any payment, assume any obligation or incur any expense other than for immediate surgical relief, except at his own cost.”
Thereafter suit was brought against Hanley by ap-pellee, and a judgment recovered in the sum of $1,500 against him. Execution was issued on said judgment and returned unsatisfied, and this suit followed to recover the amount of said judgment and cost from appellant. A trial resulted in a verdict and judgment against appellant for the amount sued for.
The principal contention made by appellant for a reversal of the judgment against it is the refusal of the court to direct a verdict in its favor at its request. The following facts and section Y (B) are relied upon to support this contention: The poliey was written in Ohio where Hanley was a resident. Shortly after the accident Hanley reported same to appellant at its Ohio agency in a lengthy telegram, giving the names of a number of witnesses to the accident, in addition to the names of the occupants of the other car, four colored persons. He did not report the name of a woman passenger riding in the car with him and appellee, nor did he disclose such fact to appellant’s investigator in Little Ro'k a few hours later when statements were taken from him and appellee, tending to exculpate him from any liability because of the accident. The statement submitted by Hanley to appellant’s investigator, together with a diagram of the position of the two cars, showed him to he on the left-hand or wrong side of the road. Later Hanley gave counsel for appellee a statement regarding the accident, but, as we view this later statement, it does not differ from that given appellant in any material degree, and we therefore do not set out these respective statements. When Hanley was sued in the former action, he promptly notified appellant, and it undertook the defense of his case and made some investigation in preparation for trial. Four days before the trial, May 15, 19-31, Hanley called at appellant’s office in Memphis and agreed to be present in Little Rock for the trial on the 19th, stating that he had to be in Jackson, Miss., to attend some kind of meeting in the interest of his employer, for whom he was a traveling salesman, and would leave there about 3 o’clock on the afternoon of the 18th and drive to Little Rock by the morning of the 19th. This he failed to do. On the morning of the 19th, when' the case was called for trial, counsel for appellant, who were also representing Hanley up to that time, stated to the court they were not ready for trial because of the absence of their client Hanley, and orally moved the court for a continuance. The motion was resisted by appellee, and the court overruled same. Ap-pellee announced ready for trial, whereupon counsel for Hanley, after having him called without response, asked leave to withdraw from the case, which was granted. A jury was impaneled and assessed appellee’s damages at the sum of $1,500. No written motion for a continuance was filed in compliance with the statute.
On these facts appellant contends that the court should have directed a verdict in its favor because of Hanley’s failure to cooperate with it in the defense of the suit as provided in section V (B) of the policy, the language being: “The assured shall cooperate with the company and, upon the company’s request, shall assist in * * * securing evidence,” etc. It is contended that his failure to attend the trial wherein he was the nominal defendant and to testify therein, and his failure to disclose the name of the woman who was riding with them at the time, constituted a failure to cooperate with appellant in violation of the express provision of the policy requiring him to cooperate. We cannot agree with appellant in this contention. It is true that it was the duty of the assured to cooperate with the defendant by lending aid and such information as he possessed in preparing the case for trial and to attend the trial and testify as to the true facts and circumstances concerning the accident. Without his presence and aid the insurance company was seriously handicapped. But there is nothing in this record to show the reason for Hanley’s absence from the trial. For aught we know, he may have been seriously ill or dead. We are therefore of the opinion that it was the duty of the insurance company in this action to go further than showing his mere absence from the trial in order to show lack of cooperation, and to show the reason for such absence. Appellant cites and relies upon numerous cases from other jurisdictions holding that it is the duty of the assured to attend the trial and to cooperate with the company in defending the action against him, but in practically all of them it is shown that the assured’s absence was premeditated and wilful. Such was the case in Schneider v. Autoist Mutual Ins. Co., 346 Ill. 347, 178 N. E. 466, where the assured refused to return to New York, where the original .judgment was obtained, to testify in the case, giving as a reason that he'had been arrested, thrown into jail without reason, and that he would not return under any circumstances. So also in Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 160 N. E. 357, 72 A. L. R. 1443, where an employee of the defendant refused to testify unless the policy was. enlarged to cover any judgment that might be had against him, and so it was in nearly all of the cases cited by appellant that the absence of the defendant was wilful and deliberate. Here, however, the evidence fails to disclose any reason why Hanley was absent. Only four days before tbe trial be stated bis intention to be present at tbe trial and to cooperate. Prior to that time be bad cooperated by furnishing appellant a statement of bimself and appellee and giving it tbe names of a number of available witnesses. "We cannot therefore say as a matter of law that bis failure to attend tbe trial, in tbe absence of any proof or explanation as to why be so failed, establishes a breach of the contract in this regard. On tbe contrary, we think it a question for tbe jury, and that it was tbe duty of appellant in this trial to show that Hanley had no good reason to absent bimself from the trial.
As to Hanley’s failure to disclose tbe name of the .woman riding in tbe car with them, we are unwilling to say, as a matter of law, that this was sufficient to breach tbe contract. Tbe most we can say is that it was a circumstance to go to tbe jury for what it was worth as tending to show lack of cooperation. This failure, as well as his mere failure to attend tbe trial, constituted questions for tbe jury, and its finding is against appellant.
Tbe court gave an instruction on its own motion as follows: “Now, if you find in this case that William Hanley cooperated with tbe insurance company in the defense of the case against him, which has been heretofore tried, then your verdict should be for tbe plaintiff. If you find in that case that William Hanley did not cooperate with tbe insurance company, and, in other words, that be failed to cooperate with tbe insurance company, which be was bound to do under the terms of bis policv, then tbe insurance company bad a right not to defend that case, and your verdict should be for tbe defendant. In other words, there was a mutual obligation under tbe terms of this policy. Tbe policy provides tbe insurance company would pay tbe liability of William Hanley for any damage be may cause by bis negligence that was tbe obligation of the insurance company. William Hanley in tbe terms of tbe policy agreed to cooperate with tbe insurance company in tbe establishment of all claims against William Hanley for which the insurance company might he liable. Now, the question for yon to decide is, did William Hanley cooperate with the insurance company in the defense of that suit heretofore tried against him? If he did, then your verdict should he for the plaintiff in this case. If he did not, your verdict should he for the defendant in this case.”
Appellant argues that it is erroneous for the reason, as it says, that it fails to define what cooperation meant in the policy. We do not agree. It tells the jury Hanley’s agreement was to cooperate with the appellant “in the establishment of all claims against William Hanley for which the insurance company might he liable.” We do not think the jury could have misunderstood what the court meant by cooperating with appellant in the establishment of claims against him. The word “cooperate” is a simple word, and any one with sufficient intelligence to qualify as a juror in a civil action would .know that it simply means to operate with or work together.
All of the instructions requested by appellant and refused by the court were peremptory in nature as admitted by appellant and were properly refused. We do not set them out and comment on them separately, as no useful purpose could be served thereby. The only issue in the case was whether Hanley cooperated with appellant in the suit by appellee against him, and we have already seen this was a question for the jury which the court submitted under an instruction as plain and simple as could be given.
We find no error, and the judgment is accordingly affirmed. | [
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Kirby, J.,
(after stating the facts). .Appellant insists that the court should have directed a verdict in its favor, it being undisputed that the line of poles was placed on the strip of land condemned by the Highway Department for changing the highway, which had authority under the statute, and granted it permission to erect the poles where they were placed, and that, having done so, they were not liable to the payment of any damages to appellee for their erection upon such right-of-way.
The statute provides, § 3989, Crawford & Moses’ Digest, for construction and operation of telegraph and telephone, etc., lines “along and over the public highways * * * and streets of the cities and towns of this State, and on and over the lands of private individuals * * * provided the ordinary use of such public highways, streets, etc., he not thereby obstructed, * * * and that just damages shall be paid to the owners of such lands, railroad and turnpikes by reason of the occupation of said lands, etc., * * * by said telegraph or telephone corporations.”
The relocation of highway No. 67 running along in front of appellee’s property was made pursuant to an order of the county court of Hot Spring County in 1930. The Constitution (art. 7, § 28, Constitution of 1874) and our statute (§ 5249, Crawford & Moses’ Digest) gives the county courts exclusive authority to open new roads and to make such changes in old roads as they may deem necessary and proper. Our court has held that said statute authorizes telephone companies to construct and operate and maintain its lines along and over the public highway and streets of the cities and towns, provided “the ordinary use of such highways and streets be not obstructed by reason of the occupation by said telephone companies.” Ahrent v. Sprague, 139 Ark. 416, 214 S. W. 68; St. Louis, I. M. & S. Ry. Co. v. Batesville & Winerva Telephone Co., 80 Ark. 499, 97 S. W. 660.
The authority given by the said statute (§ 3989, Crawford & Moses’ Digest) for telephone companies to construct, operate and maintain their lines over the public highways, etc., only gives them the free use of such highways, provided they be not obstructed thereby, so far as the State’s interest and that of the public is concerned, expressly providing that “just damages shall be paid to the owners of such lands, * * * by reason of the occupation of said lands, * # * by said telegraph or telephone companies.” The statute could not authorize the free use of appellee’s land in any event in this instance by the telephone company, since the injury complained of was not for erection of the poles and lines upon an old highway, already long established, but upon appellee’s lands just being taken for a change in the location of such highway. Article 2, § 22, Constitution of 1874.
It is not denied that appellee had no notice of the condemnation proceedings, and certainly the statute did not contemplate that the landowner in a proceeding for condemnation of his lands for public use should not he allowed damages for the value of it, nor would he be expected to he hound hy the allowance made for damages of which he had no notice, nor does the statute contemplate that he should he held to look to the county alone for payment of damages for his land taken for such public use.
We also think that the erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for use as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted.
The testimony for determining the value of such lands and the damage thereto is largely a matter of opinion of the witnesses, who are familiar with the location of the lands and the use for which they are best suited, having weight only as the reason given by such witness for such opinion of value may tend to convince the jury. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440. The evidence is sufficient to support the verdict for damages, and the appellee could not evict the telephone company from the premises, and was limited to a suit for damages, as his remedy, not having been compensated therefor under the provision of the statute, § 5'249, Crawford & Moses’ Digest.
We find no error in the record, and the judgment is affirmed. | [
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Hart, J.
Both appellant, Minnie Hawkins, and appellees, Annie Gray, John Gray, Fannie Humphries and Nellie Watson, are children of .Jesse Gray, deceased. This bill was filed in the chancery court by ■ appellees against appellant to set aside a conveyance of a house and lot to her by her father.
Jesse Gray died on January 20,1916, and was eighty-three years old at the time of his death. He was a man of limited education, but of considerable force of character. At one time he had owned a valuable river bottom farm, which had fallen into the Arkansas River by reason of that river having changed its course. Gray had property of the value of about $7,000, which consisted of a business house and two residences situated in the town of Mórrilton, Arkansas. The larger residence, which is the subject-matter of this litigation, was his homestead, and its value was variously estimated at from one thousand to one thousand five hundred dollars. He lived with Mrs. Minnie Hawkins, the appellant, about eleven years prior to his death. She kept house for him before she was married. During most of this time he was afflicted with a cancer upon his face which gradually grew worse until, something like two years before his death, it destroyed his eyesight. After he became blind, or nearly so, his daughter, Annie Gray, took charge of his business and collected his rents, The sum of $10 per month was paid to appellant toward the support of their father. About two months before his death, Jesse Gray made a deed to his homestead to the appellant. The chancellor found that the deed was invalid and entered a decree canceling and setting it aside. The case is here on appeal.
It is first sought to uphold the decree of the chancellor on the ground that the facts recited created a confidential relation which made the deed prima facie void because the grantor did not have independent advice at the time he executed the deed. In other words, it is claimed that the deed should be held void merely because Jesse Gray had not independent advice at the time he executed it.
(1) The cases on the subject in this State do not go to the extent of rendering void all gifts between parties occupying confidential relation to each other where the donor did not receive independent advice. The question of whether or not such advice was given is a material one to be considered with other surrounding facts and circumstances, such as the nature and purpose of the gift, and the condition and relation of the parties; but the advice of a third person to the donor is not a necessary condition to the validity of a conveyance between parties occupying confidential relations toward each other. Giers v. Hudson, 102 Ark. 232; Rogers v. Cunningham, 119 Ark. 468; Boyd v. Boyd, 123 Ark. 134; Boggianna v. Anderson, 78 Ark. 420.
In Giers v. Hudson, a daughter, twenty-two years of age and unmarried, but who had always lived with her father, conveyed property to him. The conveyance was upheld, although she had no independent advice. The court adopted the general rule that in such cases the circumstances attending the transaction should be jealously and carefully scrutinized by the court in order to ascertain whether there had been undue influence in procuring it, and the court held that unless it was found to have been made voluntarily and with a full understanding of the facts, it would be invalidated.
In the later cases of Rogers v. Cunningham and Boyd v. Boyd, the gift was from parent to child, and while there was no-formal discussion of whether or not the lack of independent advice made the gift avoidable, the effect of both decisions was to hold that the deeds should not be declared void merely because the donor had not independent competent advice on the subject. Whatever may be the rule elsewhere, it is the settled law of this State that independent advice is not necessary to the validity of a deed of gift between parties occupying confidential relations.
(2) This brings us to the question of whether or not Jesse Gray had sufficient mental capacity to execute the deed and as to whether or not its execution was procured by undue influence on the part of the appellant, his daughter. After a careful consideration of the testimony we have come to the conclusion that there is an entire absence of undue influence in procuring the deed and that the grantor was capable of understanding the nature and effect of conveying his property to his daughter.
It is true that according to the testimony of the appellees themselves and that of one of his grandchildren, Jessie Gray was not mentally capable of understanding what he was doing when he executed the deed to his daughter. They all stated that the cancer had so progressed that it destroyed his eyesight about two years before he died, and from that time on he suffered severe pain and was not capable of transacting any business. None of these children, however, resided with him or visited him except at infrequent intervals. They also stated that appellant had told them on the occasions they did visit their father that his mind was not good and that he was incapable of transacting business. Appellant denies this, however, and states that her father fully understood what he was doing when he conveyed the property to her. She stated that on other occasions before that time he had wanted to make the deed but that she and her hus band had objected because they feared that the other, children would not like it.
It is certain that appellant waited on her father faithfully during all the time that he lived with her. She said that during his blindness she was paid $10 a month out of his rents in order that she might secure household help so as to be able to devote more time and attention to her father. It was necessary that his eye be bathed several times during the day, and his daughter was required to wait upon him constantly. Offensive odors emanated from the cancer, so that it was necessary to constantly use disinfectants in the house. Appellant was very devoted to her father throughout his long years of suffering and gave him every care and attention that would tend to promote his comfort or insure his happiness. That he appreciated the care and attention his daughter had given him is shown by the fact that he had on other occasions wanted to deed her the house and lot in question. This fact is established not only by appellant’s own testimony, but by that of other disinterested witnesses.
The justice of the peace, who took Gray’s acknowledgment to the deed, had known him for many years. He stated that Gray had told him about six months before that he wished to convey his home place to his daughter in appreciation of her care for him in his sickness and old age.
Another friend of the family who had known Gray for the greater part of his life, testified that he had told-him the same thing several years before his death. Four women who were neighbors to him testified that they had, during the time Gray resided with appellant, made frequent visits to the house and knew that appellant had given him every care and attention that was necessary for his comfort. They said that although he suffered severe pain at times from his cancer, that when he was free from pain that his mind was clear and that he took an active interest in what was going on in the world and was fully capable of transacting business.
The justice of the peace who took his acknowledgment to the deed in question and the deputy sheriff who accompanied him, 'both stated that Gray fully understood what he was doing at the time he executed the deed. Complaint is made that the justice of the peace brought a witness with him when he came to acknowledge the deed. The record does not show why he did this, but it is not shown that he did it from any bad motive. Be that as it may, both the justice of-the peace and the deputy sheriff: who accompanied him testified that although the old man was blind and ill, that they talked with him sufficiently to know that he fully realized what he was doing and that he wished to make the conveyance to-his daughter.
Another friend of Mr. Gray, who had known him all his life, testified that although a man of but little education, he was a good business man. He stated that his mind was perfectly clear up to within a few days of his death, and that he was fully capable of transacting business at the time he executed the deed in question. This is the witness referred to above as stating that Gray expressed to him several years before his death that he wished to deed the house and lot in question to appellant as a token of his appreciation of her care for him.
The family physician of appellant testified that when called there he frequently saw Gray and talked with him, that he was fully capable of transacting business at the time he executed the deed in question. He stated that he talked with Gray a few days before his death and at that time he still retained his mental faculties and was able to tell about his condition and appreciated ¿t. Three other physicians who knew Gray were propounded the hypothetical question based upon the evidence and stated that they were of the opinion that he fully understood what he was doing when he executed the deed in question.
We think a preponderance of the evidence shows that there was no undue influence on the part of appellant in procuring the deed and that Gray fully understood what he was doing when he executed the deed and that he was only carrying ont a preconceived plan on his part which had existed in his mind for several years prior to its execution. The conveyance was reasonable to the grantee and just to the grantor.
It follows that the decree of the chancellor will he reversed and the cause remanded with directions to dismiss the complaint of appellees for want of equity. It is so ordered. | [
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McHaney, J.
At the time of his death, Aaron McMul-lin was indebted to the Bank of Tyronza on nine promissory notes in the sum of $15,542 and accrued interest. Said bank was or became insolvent and was taken over by the State Bank Commissioner for liquidation. The notes had been hypothecated with a Memphis bank to secure a loan from it. On June 10,1931, the Commissioner caused a claim to be prepared and presented to the executors of the estate of Aaron McMullin with copies of said notes attached to the claim and exhibited to the executors who allowed the claim. This claim, as- allowed by the executors, was filed in the probate court on July 24,1931, and in December following, the claim was presented to, allowed and properly classified by the probate court. Appellants, who claim to be creditors and devisees under the will of Aaron McMullin, objected to the allowance of the claim in the probate court on several grounds, the principal one being that the original notes were not exhibited to the executors in compliance with § 100, Crawford & Moses’ Digest. From the order allowing the claim in the probate court, appellants appealed to the circuit court, where the appeal was dismissed on the grounds. (1) that appellants made no showing that they or either of them had any right to he made parties to the proceeding in the probate conrt, or to appeal from the judgment of such conrt; and (2)-' that the executors had knowledge of the existence of the original notes, although copies only were exhibited, and the allowance of the claim was based on such knowledge.
Assuming for the purpose of this opinion that appellants were proper parties and had the right to appeal, we are of the opinion that the judgment of the court in dismissing the appeal, which amounts to an affirmance of the judgment, is correct.
The undisputed proof is that the executors were familiar with this indebtedness, knew of the existence of the notes, that they had not been paid, and that it was a valid subsisting claim against the estate. Whether we say the statute was substantially complied with, or that the executors waived the requirement of ‘ ‘ exhibiting the original,” the result would be the same.
This court has at least three times held that the administrator may waive the copy required by the statute. Borden v. Fowler, 14 Ark. 474; Grimes v. Bush, 16 Ark. 647; Grimes v. Booth, 19 Ark. 224. Section 100 of the statute reads as follows: “Any person may exhibit his claim against any estate as follows: If the demand be founded on a judgment, note or written contract, by delivering to the executor or administrator a copy of such instrument, with the assignment and credits thereon, if any, exhibiting the original, and if the demand be founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereon, if any. ’ ’
If the executor or administrator may waive the copy required by the statute, we think it necessarily follows that he may waive the exhibiting of the original. It is true that we held in Friend v. Patterson, 150 Ark. 577, 234 S. W. 978, that the provision of the statute requiring the original to be exhibited is mandatory, but in that case the administrator, Friend, contested the allowance of the claim on the ground that the original written instrument was not exhibited. The court there stated the reason for the rule and the purpose of the statute as follows: “The statute conserves a wise purpose, inasmuch as it was intended to prevent possible mistakes, frauds, or forgeries, by giving to the executor or administrator the opportunity to examine the original instrument which is the basis of the claim before approving or rejecting it.” The court, in the cases above cited, gave a similar reason for the provision of the statute relating to a copy. In the case of Friend v. Patterson, there was no evidence of waiver, and no substantial compliance. Here, however, when the claim was presented to the executors, they promptly allowed it, knowing of its justice, and made no demand for the original notes.
There was substantial evidence to support the findings of the circuit court, and its judgment is affirmed. | [
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Smith, J.
The Northern Road Improvement District of Arkansas County, which embraces about one-half the area of that county, was organized under special act 247 of the 1919 session of the General Assembly (vol. 1, Road Acts, 1919, page 1071). The district constructed and improved 111 miles of highway, of which 48 miles were taken into and became a part of the State highway system, under the provisions of the Martineau Road Law of 1927 (act 11, Acts 1927, page 17). The act creating the district authorized it to borrow money and issue bonds therefor to construct the proposed improvements, and this it did. These bonds are being paid by the State under the Martineau act, supra, hut no provision was there contained for State maintenance of the 63 miles of road which were not taken into the State highway system.
The special act creating the district provides that “The district shall not cease to exist upon the completion of the roads, hut shall continue to exist for the purpose of preserving them and keeping them in repair. ’ ’
While the act contains express authority to issue bonds with which to raise money for construction purposes, this authority does not appear to have been conferred for maintenance purposes.
The 1927 session of the General Assembly, however, made provision for maintenance of roads constructed by improvement districts which were not taken into the State highway system. This authority is found in act 112, Acts 1927, page 312. Section 9 of this act reads as follows: “With the approval of the county court, the commissioners in each district whose roads are not wholly included in the State highway system may annually, as necessary, levy a tax not to exceed one per cent, on the assessed benefits in tbe district, for the purpose of constructing, repairing and maintaining roads of the district which are not included in the State highway system, and for such purpose, in order not to delay such necessary work, such road improvement district may issue and sell certificates of indebtedness, bearing interest at a rate of not exceeding six per cent, per annum, and for an amount not exceeding one annual tax, which certificates shall be and are hereby made negotiable, and shall mature and be made payable within one year after their issuance, and shall constitute a lien and charge against the funds of such district. Provided this section shall not repeal Section one (1) of act 180 of the Acts of the General Assembly of 1923.”
The 1931 session of the General Assembly passed an act numbered 63 (page 171) creating a fund to be known as “County Highway Fund,” paragraphs (g) and (h) of § 1 of this act containing the following provisions in regard to its disbursement:
“(g) From the allotment made to each county, as provided for in paragraph ‘f’, the State Treasurer shall deduct the amount required to pay seventy-five per cent. (75%) of the maturing bonds and interest of all bonds issued by road improvement districts issued since February 4, 1927, or hereafter issued by existing road districts or annexes to existing road districts, and fifty per cent. (50%) of the maturing bonds and interest of all bonds issued by road improvement districts created after the passage of this act. The amounts for retiring-such road district bonds issued by districts of any county shall be deducted from that particular county’s allotment and be placed in the State Treasury to the credit of the respective districts. It being distinctly understood that no part of the allotment from one county shall be used for retiring road district bonds of any other county.
“(h) The entire allotment of each county, where there are no such outstanding road bonds, and the residue due each county where there are such outstanding road bonds, shall, after deducting the respective seventy-five per cent. (75%) and fifty per cent. (50%) of such maturing road bonds and interest, be remitted within ten days (10) after such allotment to the county treasurer of each county for credit to the county road fund, to be disbursed by the county judge of said county for any of the following purposes:” * * *
The third paragraph of § 6 of this act reads as follows: “Road district bonds under the terms of this act shall apply to all road district bonds issued since February 4, 1927, and all road maintenance district bonds in each of said counties, and to the payment of any bonds or coupons for improvement of public thoroughfares issued since February 4, 1927, where such district was organized under act 126 of the Acts of the General Assembly of 1923 and amendments thereto, and under act 183 of the Acts of the General Assembly of 1927 and amendments thereto, or organized under other existing laws.”
Under the authority of § 9 of the act of 1927, swpra, the road commissioners petitioned the county court for authority to levy a tax of one-half of one per cent, of the assessed benefits of the lands in the district for the purpose of repairing and maintaining the roads of the district not taken into the State highway system, and, pursuant to this authority, which the county court granted, the tax was levied. The tax thus levied amounted to $20,966.66, of which $15,176.15 was collected. The balance was not paid by the landowners, and is now delinquent. Upon levying this tax, the commissioners issued, in the name of the district, certificates of indebtedness amounting to $8,221.85, covering that amount of borrowed money.
Under act 63 of 1931, supra, there was allotted to Arkansas County, for the year 1931, the sum of $46,-950.25, of which $40,641.50 was paid to the county treasurer to the credit of the “county highway fund” of that county. The balance of $6,308.75 was paid to the road improvement district by the State Treasurer under the supposed authority of act 63 of the Acts of 1931, supra.
This suit was brought by the county judge of Arkansas County to restrain further payments of the county highway fund to the improvement district, and to recover from the district the payment made. The chancellor granted the relief prayed, and this appeal is from that decree.
The question for decision is therefore whether the certificates of indebtedness issued by the district pursuant to the act of 1927, supra, are maintenance bonds within the meaning of the act of 1931, supra.
We think the legislative scheme as to maintenance of improvement district roads not taken into the State highway system was to provide, when necessary and when authorized by the county court, an annual tax for that purpose not exceeding one per cent, of the better-ments, but that this revenue might be anticipated by the issuance of certificates of indebtedness to be paid out of the revenues when collected. We are also of the opinion that these certificates of indebtedness are not bonds within the meaning of paragraph 3 of § 6 of act 63 of the Acts of 1931.
It is not contended that the improvement district has any bonds issued subsequent to February 4, 1927, unless the certificates of indebtedness referred to are such bonds, and it is our opinion that the word “bonds,” as used in act 63 of 1931, was used in its technical sense, and that the certificates of indebtedness in question are not embraced within that meaning.
Certificates of indebtedness cannot be issued until the authorization of the county court has first been obtained, and their issuance is predicated upon a tax levied for their payment. Certainly these certificates of indebtedness are not to be twice paid, first with the proceeds of the tax levy and again from the county’s part of the county highway fund. Nor is to be supposed that this tax money should first be collected from the land owners and later returned to them when the county had been allotted its proportionate part of the county highway fund.
This one per cent, maintenance tax is levied annually, if at all, and the authorization of the county court must first be obtained in each instance, and certificates of indebtedness may or may not be issued when this authorization has been obtained, but, if and when issued, they are payable out of this annual levy.
The word “bond” is not ordinarily applied to short-time obligations. Bonds are ordinarily issued to cover a loan payable over a period of years, while the payment of the certificates of indebtedness in question was contemplated out of the revenue derived from the tax of a single year, and within one year after their issuance. In other words, the issuance of the certificates of indebtedness was authorized as a temporary expedient whereby the collection of the tax for a single and particular year was anticipated and used in advance of its collection.
Cases such as Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377, are cited as authority to support the contention that the terms “bonds and certificates of indebtedness” are used interchangeably, and as being synonymous in the road legislation relating to their issuance and payment.
It was held in the Kerby case, supra, that the Mar-tineau Road Law, authorized payments on the construction cost of the roads built by the various road improvement districts, whether evidenced by bonds or by certificates of indebtedness. But, as was there pointed out, this was true because the purpose of that legislation was to assume and pay the construction costs of the roads constructed by the various road improvement districts in the State, however evidenced.
That holding was reviewed in the case of Gaster v. Dermott School District, 184 Ark. 536, 42 S. W. (2d) 990, and the distinction was pointed out between bonds and other evidences of indebtedness, and the subject need not be again reviewed.
The court below was therefore correct in holding that the improvement district had no rig'ht to have its maintenance certificates of indebtedness paid out of the “county hig’hway fund,” and the decree must therefore he affirmed, and it is so ordered. | [
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Kirby, J.,
(after stating the facts). It is insisted that the court erred in the giving of certain instructions requested for the plaintiff Nos. 1, 2, 3, 4 and 5, it being contended that said instructions were erroneous in directing the jury to find in appellee’s favor, if they found the facts as stated therein, without consideration at all or mention of the appellant’s alleged defense of contributory negligence.
In instruction No. 4 the jury were told that, if they found the defendant was negligent or that his negligence was the proximate cause of plaintiff’s injuries, “then it is your duty to return a verdict for the plaintiff.” Objection was made specially to this instruction for the reason that it directed a verdict for the plaintiff without taking into consideration any issue of defense. There was a plea of contributory negligence, and the testimony was in conflict thereon.- The court should not therefore have instructed the jury that they might find for the plaintiff, and that it was their dnty to do so without consideration of such issue, and erred in so doing. Herring v. Bolinger, 181 Ark. 925, 29 S. W. (2d) 676; Newell Cons. Co. v. Lindahl, 181 Ark. 272, 25 S. W. (2d) 1052; Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676; Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396; Wisconsin-Arkansas Lbr. Co. v. Hall, 170 Ark. 576, 280 S. W. 363; National Gas & Fuel Co. v. Lyle, 174 Ark. 146, 294 S. W. 395. This instruction also uses the words “safe transportation,” when under the law the driver of an automobile is only bound to the use of ordinary care in the transportation of the passengers in his car and is not bound as an insurer for the safety of persons riding- therein whether by sufferance or invitation.
Instruction No. 9 is objected to as assuming that defendant was negligent and allows the jury to find against the defendant even if the taxicab driver was negligent, etc., omitting entirely the issue whether the plaintiff himself was guilty of contributory negligence.
It was insisted in the oral argument that the specific objections to the instructions had not been properly made and should not be allowed for the reason that they were permitted to be written out by the trial court after the instructions were read to the jury, thereby depriving plaintiff of any knowledge of such objections before the conclusion of the trial and preventing him from consenting to or meeting such objections if he cared to do so and thus avoiding the errors, if any. The objections were permitted to be made however by the court, doubtless because he thought the instructions were not subject to the objections and that they were entitled to be given without regard to said specific objections. It is not complained that the objections were not made general or specific, as shown in the bill of exceptions,. but only of the practice in permitting them to be made after the case had gone to the jury, which the bill of exceptions does not show was done.
Because of the errors already pointed out, it is not necessary to pass upon the question of the excessiveness of the verdict for damages, nor upon the admissibility of the testimony of certain witnesses as experts about nervous disorders, who did not claim to be qualified as experts to give opinions thereon, as these things will not likely occur upon the new trial.
For the errors designated the judgment is reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
The appellees, except G. M. Caruthers, as administrator of the estate of S. W. Hightower, deceased, brought a suit on August 21, 1916, against appellants in the probate court of Fulton County, contesting the will of S. W. Hightower, deceased. The will was signed by mark on November 25,1912. No one signed the will as a witness to the signature by mark. The names of O. N. Halcomb and F. L. Lefevers were signed as subscribing witnesses to the will. The will was filed for probate on the 14th day of August, 1916.
On August 21, 1916, the same day appellees filed the contest, J. P. Price appeared and filed his affidavit in substance swearing that he signed S. W. Hightower’s name to the will at his request, and that Hightower made his mark in the presence of the subscribing witnesses and himself, and in their presence declared the instrument present in court to be Ms last will and testament. The contest proceeded to a hearing on the pleadings and it was adjudged by the probate court that the will was not entitled to probate. An appeal was taken to the circuit court.
On the 7th day of July, 1916, G. M. Oaruthers took out letters of administration on the estate of S. W. High-tower, deceased, and on July 15, 1916, brought suit against Allie Hightower in the Fulton County Circuit Court to recover the personal property belonging to said estate. On the 28th day of August, 1916, Allie Hightower answered, claiming that she and her two children, Claude and Madeline Hightower, owned' all of said property under the terms of the will then in course of probation.
The case appealed from the probate court was consolidated with the suit brought by the administrator and the cause was heard on the pleadings, the affidavit of J. B. Price, introduced over the objection of contestants, and on an agreement in substance as follows: That J. H. Hightower was dead when the will was executed, and that the names of his three children, William Hightower, Maude A. Mitchell and Martha McCollum were omitted from the will and were grandchildren and heirs of S. W. Hightower, deceased; that J. H. Hightower was the son of S. W. Hightower, deceased; that S. W. Hightower’s name was subscribed to the will in the following form:
His
S. W. Hightower X
Mark
that nothing appeared on the face of the will to show who signed S. W. Hightower’s name thereto.
The court instructed the jury as follows: “Gentlemen of the Jury: I instruct you to return a verdict for the contestants herein, for the reason that the will is not signed as required by law, and for the further reason, that under the evidence in the case, the names of all the heirs of S. W. Hightower are not mentioned in his will.”
In the will contest case proper, appealed from the probate court, the jury rendered the following, verdict: “We, the jury, find for the plaintiffs, and that the will of S. W. Hightower is void. J. N. Hunt, Foreman.”
In the case of Gr. M. Caruthers, administrator of the estate of S. W. Hightower, deceased, the jury returned a verdict in favor of the administrator for specific property or its value.
A separate judgment in each case was rendered in conformity to each verdict. The necessary steps were taken and the consolidated case is here on appeal.
The first assignment of error, insisted upon by appellant for reversal, is the giving of a peremptory instruction by the trial court to find for the administrator and contestants. Appellant then proceeds to attack the reasons assigned by the trial court for giving the peremptory instruction. It is immaterial whether the reasons given by the court are correct, if for any reason it was proper to give a peremptory instruction favoring the contestants. The will on its face disclosed the fact that it was signed by mark. The ex parte affidavit of J. E. Price is the only evidence in the record tending to show who signed the testator’s name to the will, or that the testator made his mark. This affidavit was introduced over the objection of appellees. If not competent evidence, then there is no legal evidence in the record establishing the execution of the will, and no evidence whatever to support a verdict in favor of the validity of the will, had the question been submitted to the jury. Section 8013, Kirby’s Digest, requires that the party signing the name of one who can not write should attest the signature by writing his own name as witness. Had this been done, the genuineness of the signature would have been sufficient without other proof. Fakes v. Wilder, 70 Ark. 449; Ward v. Stark, 91 Ark. 268. This not having been done, it follows that the genuineness of the signature by mark must be established by other proof. In the instant case, the execution of the will was drawn in issue by the pleadings. This court held, in the case of Smith, Admx., v. Felts, 42 Ark. 355, that “A statement or declaration, though made under the sanction of an oath and reduced to writing, is not allowable as evi deuce on the trial of an issue raised by the pleadings, unless an opportunity has been afforded the adverse party to cross-examine the witness.” The rule of evidence laid down in that case was reaffirmed in the case of Western Union Tel. Co. v. Gillis, 89 Ark. 483. In rendering the opinion in that case, the court used the following language: “The affidavit of Dr. Cheatam was properly refused to be introduced in evidence. He was not a witness in the case, and his ex parte affidavit could not be used as independent evidence.” Under this view of the law, it is unnecessary to consider the other questions raised and argued in appellant’s brief.
No competent evidence having been introduced or offered to establish the genuineness of the testator’s signature by mark to the will, it became the duty of the trial court to direct the jury to return a verdict in favor of contestants and against contestees. The judgment is affirmed. | [
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Riddick, J.,
(after stating the facts.) The first question raised by the appeal in this' case has reference to the action of the circuit judge in permitting declarations made by Bass after the shooting to be introduced as evidence on the part of the state. Appellant contends that it was not shown that these declarations were made under a sense of impending death. Thelaw bearing on the admissibility of dying declarations is very clearly stated in Greenleaf on Evidence as follows: “It is essential to the admissibility of these declarations, and is a preliminary fact' to be proved by the party offering them in evidence, that they were made under a sense of impending death. But it is not necessary they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction, whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the ease, all of which are resorted to in order to ascertain the state of the declarant’s mind.” 1 Greenleaf, Evidence (16th Ed.) § 158; Dunn v. State, 2 Ark. 229; Mattox v. United States, 146 U. S. 140, 151; 3 Russell on Crimes (International Ed.) 391; People v. Simpson, 48 Mich. 474.
Now, in -this ease Bass was shot in front on the right side of the chest. The bullet passed through him, and came out at his back at a point some lower than where it entered. The effect of this wound was such that Bass reeled in the saddle, and, after being carried by his horse about half a mile from the place of the shooting, fell to the ground, and lay with his face downward, unable to move. A man, who lived near', seeing him fall, came to him, and turned him over. Finding his condition was such that he could not easily be moved, he brought a quilt, and laid Bass upon that while he summoned a physician and the neighbors. The physician testified that the wound made by the bullet in front was as large as his middle finger, and that in the back where it came out it was as large as his thumb. Bass was very weak, and was suffering greatly. The physician saw that the wound was mortal, though he expressed no opinion to Bass. Bass did not ask the doctor for his opinion, nor say anything to show whether or not he had hopes of recovery, but only asked for something to relieve his pain. Among those who came to see Bass was his grandfather. He leaned over Bass where he lay on the quilt, and said, “John, what is the matter?” Bass answered, “I am shot.” “Who did it?” asked his grandfather. “New-berry,” replied Bass. His grandfather, then still leaning over him, and in the same tone of voice, said: “Now, boys, listen to him while he tells how it happened before he dies.” In response to these words of his grandfather, Bass made the statement admitted in evidence as his dying declaration. The statement that he made is not long, but the witnesses say that he was so weak that it took him an hour to make it. He was gasping for breath, and to those who saw him it was evident that death was only a short distance ahead. The probability is that Bass realized his situation, for when his grandfather intimated to him that death was near, and that he should make a statement, he at once commenced to do so, thus showing that he assented to the opinion expressed by his grandfather. He died in five hours after being shot, and about three hours after making the statement.
The admission of dying declarations as evidence in prosecutions for homicide to show the circumstances of the death of the declarant is justified on the ground of necessity. The slayer and the slain may have been the only persons present at the tragedy, and, if the dying declarations of the circumstances of his death made by the deceased could not be shown, it would at times be impossible to punish the guilty. Even when there are other witnesses, they may be unfriendly to the deceased, or may be ignorant of essential facts. For these reasons it is important that the circumstances as they appear to the deceased should also be shown. Especially is this true now, since under modern statutes the defendant is allowed to testify and give his view of the facts. The law therefore admits such declarations when made under a sense of impending death. Whether they were so made being a preliminary question of fact for the trial judge, his finding to that effect will not be overturned when there is evidence supporting it. The circumstances in proof here support the finding of the judge on that point, and such finding must stand.
■ Such declarations can be admitted only to prove the circumstances attending or leading up to the homicide, and some of the declarations of. Bass relating to the controversy about the key were not properly admitted, but we do not see that they were prejudicial. Whether Bass or Newberry was-right in the controversy about the key did not justify Newberry in killing Bass. The instruction asked by defendant that the jury in determining the weight to be given the statement of Bass might take into consideration his mental condition at the time, and the fact that defendant had no opportunity to cross-examine, might well have been given, but the court did tell the jury that it was for them to determine the weight to be given to such statements, and that they could, with other circumstances, consider whether such statements were voluntarily made, and whether they covered all the circumstances of the shooting. Taking the Avhole charge together, we think the case was fairly presented to the jury, and that no prejudice resulted from the refusal to give the instruction asked.
The evidence as presented in the transcript makes out a strong case of unlawful killing. It is undisputed tbat when the controversy about the key commenced Bass was sitting on his pony, about forty feet from Newberry, who was seated on a mule. Bass was unarmed. Newberry had a Winchester rifle. Bass stated that he refused to retract a statement to the effect that Newberry had promised him another key, and that thereupon Newberry got off Ms mule, and shot him. Newberry testified that Bass was riding toward him with his hand in his pocket, threatening to kill him, and that he got off his mule and shot Bass while Bass was ten or twelve feet away on Ms pony. He admits that at this time he saw no weapons, and Bass had none except a small pocket knife. There was other testimony that the tracks of a pony and a mule were seen in the road at the place where the shooting occurred. The tracks of Newberry where he stood beside his mule at the time he fired, and the tracks of the pony when it whirled in the road after the shot, were seen, and showed that Bass did not advance upon Newberry. A careful consideration of tbe evidence leaves no doubt in our minds tbat tbe killing of Bass was not done in self-defense. Tbe verdict of tbe jury was as favorable-to the defendant as the evidence warranted, and, finding no error, the judgment is affirmed. | [
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Hughes, J.,
(after stating the facts.) The jury found by their verdict for the plaintiff that the defendant had made a wrongful and unlawful assault upon, and had beaten, the plaintiff, which there was ample testimony to support. But they assessed only one dollar damages, while the evidence is unquestioned that the damages suffered by the plaintiff by reason of his injury amounted to a very much larger sum. To suffer such a verdict as to the damages to stand would be a travesty upon justice. It is evident that the motion for a new trial in the circuit court ought to have been granted. For refusal to grant said motion, the judgment is reversed, and the cause is remanded for a new trial. | [
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Hughes, J.
This is a suit in replevin, brought in the Jefferson circuit court, by Mansur & Tebbetts Implement Company, of St. Louis, against C. H. Triplett, assignee of H. C. McGaughy, who failed in business in Pine Bluff in February, 1897, making an assignment to C. H. Triplett; the goods, wares and merchandise amounting to $1,339.01. The complaint states that the plaintiff (appellee herein) is a Missouri corporation, engaged in the manufacture and selling of hardware, machinery, tools, plows, grist mills, etc.; that the defendant, C. H. Triplett, assignee (appellant herein), is the assignee of H. C. McGaughy, a hardware merchant of Pine Bluff; that during the years 1896 and 1897 the said McGaughy purchased from this plaintiff the goods, wares and merchandise set out; that no title passed to the said McGaughy in said goods until they were fully paid for, according to the contract and agreemeent entered into between appellant and appellee at the time of said purchase, as follows: “And it is also agreed’that the title to and ownership of all goods which may be shipped as herein provided, or during the cui’rent season, shall remain in, and their proceeds in case of sale shall be the property of, Mansur & Tebbetts Implement Company, and subject to their order, until full payment shall have been made for same by the said McGaughy; but nothing in this clause will release the undersigned from making payments as herein agreed.” Prayer, that judgment be given for possession of said goods and costs. The necessary affidavit and bond in replevin were filed by appellee.
The answer admitted the sale of the goods mentioned by appellee to the said McGaughy, but denied that appellee was the owner and entitled to the possession thereof, or any part thereof, or that appellee retained the title to said goods, or any part thereof, but stated the appellant was the owner and entitled to the possession of said goods.
The case was tried before a jury on December 8, 1897. Judgment in favor of appellee for $1189.19 and costs, and in favor of appellant for $95.18. Motion for new trial filed and overruled, and appeal granted to this court.
W. B. Neff, a witness on behalf of appellee, testified: That he was in the employ of appellee, and worked for it when MeGaughy purchased the goods replevied herein; that he knew the goods replevied were the .same as were bought of appellee; that he demanded goods from appellant before replevying them. Against the objection of appellant, counsel for appellee introduced the order made by said MeGaughy for the goods replevied, upon the back of which was printed the following: “It is also agreed that the title to and ownership of all goods which may be shipped as herein provided, or during the current season, shall remain in, and their proceeds in ease of sale shall be the property of, Mansur & Tebbetts Implement Company, and subject to their order, until full payment shall have been made for the same by the undersigned in money; but nothing in this clause will release the undersigned from making payment, as herein agreed.” “Q. You have looked over these contracts of sale. Look at these notes, and see if they are given for the goods covered by this contract of sale. Ans. They are.” With the changes for dates and amounts, said notes are as follows: $216.10. Pine Bluff, Ark., November 17, 1896. December 15, 1896, after date, the subscriber, H. C. MeGaughy, promises to pay to the order of Mansur & Tebbetts Implement Company, or order, $216.10, payable at the Merchants’ & Planters’ Bank, with exchange on New York or St. Louis. Collection charges and interest at 8 per cent, per annum from November 15,1896, until paid. Value received. If this note is collected by suit or through an attorney, the subscriber agrees to pay ten per cent, additional for costs of collection. H. C. MeGaughy.” The said notes were not paid by the said MeGaughy at the time of his assignment to appellant herein. Only goods for which the notes were given and unpaid were replevied. Those purchased before ■ and paid for were not taken. The goods sold by appellee to said MeGaughy and replevied herein were such goods as were carried for sale in a hardware or implement store.
The evidence shows that there had been a partial payment of two hundred dollars on the one note originally given for the price of the machinery appellant purchased, and for the balance two new notes were executed.
The appellant says that there are two questions of law involved in this case, of far-reaching effect and importance:
Fii’st. Where one sells goods, wares and merchandise to a retail merchant, where the purpose of the sale is that the goods may be re-sold, as where a manufacturer or wholesaler sells to a retail dealer personal property on a credit, for the purpose of re-sale, does the doctrine of conditional sales apply or govern such a sale, in a controversy as to such articles between the original vendor and: the assignee and creditors of the original vendee?
Second. Where there is a conditional order and sale in the first place, and subsequently, after the delivery of the goods to the vendee, the amounts due for such purposes are closed by notes, which notes do not set out or state that the title to the goods, wares and merchandise for which said notes are given is retained, is not the giving of said notes and their acceptance such a payment, unless the parties entered into another agreement at that time reserving title as will preclude the original vendee from claiming title to said goods when they have passed by assignment into the hands of an assignee for the benefit of creditors? And where one of said notes is paid, partly in money and partly in other notes, would not the title or lien reserved be at an end, unless the parties entered into another agreement at that time reserving title?
In answer to the first proposition of the appellant, we have to say that the question propounded therein is not involved in this case. It will be proper to decide that question,' when it is presented for decision. In the case at bar the goods replevied were in the hands of the assignee of the appellant, and had not been resold to customers in the usual course of business.
In answer to the second proposition of appellant, we have to say that the giving of notes for a debt is no payment of the debt, unless by agreement of the parties the notes are taken in payment. Blunt v. Williams, 27 Ark. 374; Henry v. Conley, 48 Ark. 267. By agreement of the appellant’s assignor with the appellee made, at the time the goods were ordered, he was to execute his notes for the purchase price, and the title to the goods was to remain in the appellee until the goods were fully paid for. Execution of a renewal note for the debt or part of it was not'payment of the debt, unless taken as such. According to the contract of the parties, if the goods were sold by McG-aughy, they were to be sold as the property of the appellee, and the proceeds of the sale were to be and remain the property of the appellee. Such an agreement is valid. New Haven Wire Co. Cases, 5 L. R. A. 300; S. C. 37 Conn. 332; F. J. Dewes Brewery Co. v. Merrit, 9 L. R. A. 270; 58 Pac. Rep. 384.
The appellant concedes, and the law is, that when personal property is sold under an agreement that the title to the property shall not pass, but remain in the vendor until fully paid for, no act of the buyer can prevent recovery of the property by the seller, if the same is not paid for. “When a chattel is sold, with reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed, and a purchaser from the vendee acquires no title, though he buys in good faith for a valuable consideration and without notice of the condition.” McIntosh v. Hill, 47 Ark. 363; Simpson v, Shackelford, 49 Ark. 63; Edgewood Distilling Co. v. Shannon, 60 Ark. 133. Arkansas cases passim.
The judgment is affirmed. | [
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Smith, J.
Appellee, B. 0. Smith, was the owner of a dwelling house and barn, which he conveyed to J. H. and W. T. Maux, by deed dated January 12, 1914. The deed recited a consideration of $1,001, and was, in fact, the sum of $1,000, consisting of two notes, each for $500. No part of the consideration had been paid, except by the execution of these notes. A fire insurance policy was issued by the appellant insurance company, covering this property, on July 8,1915, for the sum of $600. This policy was issued to, and in the name of, B. O. Smith, as the owner. The property, was destroyed by fire on October 10, 1915. Smith, soon thereafter, applied at the office-of the insurance agency, which had written the policy, for the necessary blanks upon which to make proof of his loss, and, in making this proof, he inserted his own name as the owner of the property, both at the time of the issuance of the policy, and the occurrence of the fire, and he made an affidavit in connection with this proof of loss.
The insurance company denied liability, and this suit was accordingly brought. The denial of liability is based upon the following clause contained in the policy:
“This entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void, if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple. ’ ’
This condition of the policy, and the existence of the facts set forth above, would, of course, render the policy void under ordinary circumstances. It is said, however, that this provision of the policy was waived, and the evidence in support of this waiver is to the following effect. An agent of the appellant company- applied to Smith for authority to write a policy of insurance against this property. Smith explained to the agent that he had sold the property, and had executed a deed therefor, but that no part of the purchase money had been paid. This agent stated to him that, if this was true, the property was his, and could be insured in his own name, and the policy was accordingly written. There was also evidence that this explanation was made to the agents of the company before the proof was made, and the insured was directed to make the proof in his own name as owner, and he accordingly did so.
The instructions in the case are not set out, and we must, therefore, assume that the cause was submitted to the jury under correct instructions, and we must affirm the judgment of the court below if we find the evidence set out above is legally sufficient to support the verdict.
Smith’s interest in the property was an equitable one, yet he insured it as if he were the owner of the legal unencumbered title. This was in contravention of the provisions of the policy set out above. However, such provisions are for the benefit and protection of the insurer, and may be waived by it.
In the case of Queen of Ark. Ins. Co. v. Laster, 108 Ark. 261, we said: “This court has often ruled that the warranty of no encumbrance is waived where the insurer’s agent was notified, when application was made for the policy, that the property was encumbered. (Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508; Capital Fire Ins. Co. v. Johnson, 82 Ark. 90).”
Other recent cases holding such provisions may be waived are Hutchins v. Globe Life Ins. Co., 126 Ark. 360, 190 S. W. 446; Home Fire Ins. Co. v. Wilson, 118 Ark. 442; Royal Ins. Co. v. Morgan, 122 Ark. 243.
Smith was not the owner of this property within the meaning of the policy, although his equitable interest equalled that of its value, as evidenced by its purchase price. But, with knowledge of this fact, the company elected to issue this policy in the name of Smith, rather than in the name of his vendees, and, under the doctrine of the above cited cases, it must be held to have waived the provision of the policy set out above. The decree of the court below is, therefore, affirmed. | [
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, -Wood, J.
Section 6595 of Kirby’s Digest provides that a bell of at least 30 pounds in weight or a steam whistle shall be rung or blown at the distance of at least 80 rods from the place where the railroad shall cross any other road or street and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $200 for any neglect, to be paid by the corporation owning the railroad.
The only question presented by this appeal is whether or not the above statute, is applicable to a receiver operating a railroad in his capacity as such receiver. The intention of the Legislature was to prevent, as far as possible, accidents that might otherwise occur if travelers at the crossings of a railroad with other roads were not warned of the approach of the train at such crossings. The statute was leveled, at whoever should be operating the railroad rather than the corporation who might have the technical ownership thereof. Any one operating a railroad, whether as the technical owner, or as the lessee or receiver, who, for the time being, has the road in charge, and is operating the same, is comprehended within this statute and comes within the purpose of the lawmakers in enacting the same.
In 1879 the Legislature of Pennsylvania enacted a law requiring, among other things, the owners of factories to provide and cause to be affixed to every such building permanent fire escapes under a penalty not exceeding $300. A tenant who had leased a factory was sued for damages caused by a failure to provide a fire escape as required by the statute. In passing on the question as to whether or not the tenant was an owner within the terms of the statute, the Supreme Court of Pennsylvania said: “It is certainly a highly penal statute. It imposes a duty unknown to the common law, and punishes a neglect of that duty in the manner above stated. It is almost needless to say that such an act can not be extended by implication to parties who do not clearly come within its terms. ’ ’ Then the court held that, for all practical purposes, the tenant in possession was' the “owner” until the end of his term. Schott v. Harvey, 105 Pa. 222.
In statutes prescribing certain duties to be performed by the “owners” of railroad companies and providing a penalty for failure to perform those duties, it is held that the word “owners” is used in the popular, rather than in the technical, sense, and the word is construed “so as to include all who are operating the railroad, whether as owners of the property or as lessees, receivers or the like.” State v. Corbett, 57 Minn. 345, 353; The State of Missouri to the Use of Ray County v. St. Joseph, St. Louis & Santa Fe R. Co., 46 Mo. App. 466.
In the last case the court, in construing a statute almost identical with ours except as to the amount of the penalty, among other things, said: “More than this, whether defendant was operating this railroad as absolute owner, lessee, or otherwise, it was liable for the violation by it of the provisions of this statute. It filled the requirement of ‘owner’ under this statute.” See, also, Baltimore & Ohio Rd. Co. v. Walker, 45 Ohio St. 577.
Since the design of the Legislature in enacting this law was to protect travelers against accidents that -might, occur at crossings in the operation of trains, were not the precautions prescribed in the statute taken, it would not comport with its purpose to construe it so as to exclude receivers while operating railroads in this State.
In Chicago, R. I. & P. Ry. Co. v. State, 84 Ark. 409, the statute under consideration was before the court, and we said: “In the construction of statutes regard must be had to their various provisions, and such effect given them as the provisions indicate they were intended to have, and as will render the statute operative. We are of the opinion that the operating corporation is the ‘corporation owning the railroad’ within the meaning of the statute. ’ ’
So it may be said here, that the receiver, while operating the railroad under the orders of the Federal Court, is the “owner” within the meaning of the statute.
In Jordan v. Harris, 98 Ark. 200, speaking of the relation of the receiver of an insolvent corporation, we held (quoting syllabus): “The receiver of an insolvent corporation stands in the place of the corporation, and has only such rights, as it had, so that the rights of third parties are not increased, diminished or varied by his appointment.” So here the receiver stands in the place of the corporation owning the railroad.
The judgment against appellant for a violation of the statute, as thus construed, is correct, and it is therefore affirmed. | [
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Butler, J.
The respondent has made a concise statement of the case, which we adopt and set out as follows:
“E. J. Lynch and H. Levinson, doing business as E. J. Lynch & Company, brought a suit in the Pulaski Chancery Court against the chairman and members of the Arkansas State Highway Commission seeking to recover, as upon a quantum meruit,-the value of labor and materials furnished the commission in the construction of certain roads and bridges in the State highway system. The highway commission filed a demurrer to the complaint upon the ground that the Pulaski Chancery Court was without jurisdiction of the case because it is one against the State of Arkansas. The demurrer was overruled. The Commission thereupon filed in this court a petition for a writ of prohibition to prevent the chancery court from proceeding with the case.
“In the case in the Pulaski Chancery Court it is alleged and admitted by the demurrer that the plaintiffs performed the work for the highway commission under certain written contracts requiring the construction of roads and bridges in the State highway system, and, further, that the work performed, labor done and materials furnished were in every respect in accordance with the plans and specifications of the State Highway Commission applicable to such construction work; that, after performance, the Highway Commission accepted the work, labor and materials furnished by plaintiffs; and that the roads and bridges built are now in use by the public as a part of the State highway system.
‘ ‘ The suit in the chancery court is brought to recover upon a quantum meruit for the reasonable and fair value of materials and labor furnished, because, though the work was done under written contracts, let after competitive bidding, there was no previous advertisement of the work as required by the statutes of this State.”
It is conceded that, if the petitioners are correct in the position taken, and that the court improperly overruled the demurrer, prohibition is the proper remedy. Section 4, art. 7, of the Constitution; Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59; Roberts v. Tatum, 171 Ark. 148, 283 S. W. 45; Ark. State Highway Commission v. Dodge, 181 Ark. 589, 26 S. W. (2d) 879. It is insisted by the petitioner that tbis is a suit against the State, differing' in essential particulars from Ark. State Highway Commission v. Dodge, supra, and that this snit cannot be maintained because of § 20, art. 5, of the Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts. ’ ’
It is secondly insisted that, even though the suit might be maintained, the State is under no liability to Lynch & Company, and that, if there is a moral obligation, the G-eneral Assembly is the only source of relief. It seems to us that a consideration and discussion of the second point raised would at this time be premature and improper. The question we should now determine is, has the court below jurisdiction to hear and determine the case? and, if so, the question of liability would be first for its decision. Therefore, we proceed to a consideration of the question whether the suit can be maintained against the petitioner.
In Ark. State Highway Comm. v. Dodge, supra, where the right to maintain a suit against the Highway Commission was upheld, the case of Grable v. Blackwood, 180 Ark. 311, 26 S. W. (2d) 41, was cited in support of that holding. That was a suit brought against the State Highway Commission to enforce the payment of outstanding indebtedness incurred prior to January 1, 1927, against a road improvement district under act No. 153 of the Acts of 1929, which provided for the ascertainment of valid outstanding indebtedness incurred prior to the date mentioned against any road district, and for the payment thereof by the Highway Commission out of appropriations provided for the payment of road district bonds and interest obligations. Act No. 153 and the right of the plaintiffs to maintain the action was attacked on various constitutional grounds, but § 20, art. 5, was not invoked. It was held that the act did not violate the Constitution, and that the suit might be maintained against the Highway Commission. The case of Urquhart v. State, 180 Ark. 937, 23 S. W. (2d) 963, was also cited in the majority opinion in support of the conclusion reached by the writer. That case was really an issue as to the extent of the liability of the State for interest upon a contract to purchase a State convict farm and the suf.-fieiency of the appropriation to discharge the obligation, when its extent was adjudged by the courts of Pulaski County, the agencies created for that purpose. The following quotation was made from Urquhart v. State, supra: “The Legislature itself might have ascertained the amount, both of principal and interest, and have made an appropriation accordingly, but it elected to constitute another agency to make this finding of fact, and made an appropriation in what was assumed to be a sufficient amount to pay both the principal and interest, and, under the remittitur which has been entered, the appropriation is sufficient,” and the court said: “It is true that suit was brought by the State, as the act provided it should be, but the act also provided that the State’s vendor might litigate his claim for interest, and that either party should have the right to appeal from an unfavorable decision. ’ ’
Mr. Justice Smith and Mr. Justice Mehaffy adopted the reasoning of Mr. Justice Graves in the case of State, etc., v. Bates, 317 Mo. 696, 296 S. W. 419, and quoted with approval from that opinion as follows: “It (State Highway Commission) is an entity, with powers of a corporation, established and controlled by the State for a specific public purpose, but that does not make this legal entity the sovereign State. No contract it is authorized to make is made in the name of the State, but in the name of the Commission. The sovereign State could have contracted for the building of its public highways in its own name, but it chose to create a legal entity for this work. This act gave to this legal entity no part of the State’s sovereignty, but authorized it to proceed to do certain work which the State could have done by private contract made direct with the State. Thus it has been well said in 14 C. J., at page. 75: ‘Although a corporation may be public, and not private, because established and controlled by the State for public purposes, it does not necessarily follow that such a corporation is in effect the State, and so not subject to the rules of law governing other corporations, for the State may, by engaging in a particular business through the instrumentality of a corporation, divest itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations. Thus, although incorporated banks, established by the State for its own public purposes and owned and controlled entirely by the State, are undoubtedly public corporations, it has been held that they are not for that reason invested with the attributes of sovereignty, but are mere corporations, and subject generally to the rules of law governing other corporations.’ ”
The conclusion was that the Highway Commission, as created and functioning, was in effect a quasi corporation clothed with the power to make contracts in its own name, and to discharge obligations out of moneys appropriated for the purpose of enabling it to carry out the duties prescribed by law, and that it was therefore an entity or juristic person, and suits against it arising out of an alleged default in its obligations in the conduct of the business intrusted to it would not be suits against the State, and that the action was authorized. Chief Justice Hart and Mr. Justice Humphreys, concurring, were of the opinion that the Highway Commission was but an agency of the State. They held, however, that § 20, art. 5, of the Constitution, properly interpreted, was merely a declaration of the general rule that a State may not be sued without its consent, but that the State had consented that suit be maintained against this agency, and said: “We can perceive no good reason why a State should not consent to being sued in her own courts upon such terms and conditions as her Legislature might prescribe. We do not think that the consent can be given except by the Legislature, which alone can declare the public policy of the State. If the State is to exercise its sovereign power in building roads, and in constructing bridges across navigable streams, it would seem that there should be a tribunal somewhere which might pass upon the claims of those with whom the agency of the State had contracted with reference to the matter, and what tribunal could be a more appropriate and safe guaranty of the equal protection of the laws than the courts established by the State for the protection of its citizens, and for such citizens who might come within its borders for pleasure or gain. * * * It seems to us that the State’s sovereignty will be better preserved and protected by holding that a State may through its Legislature waive its immunity from suit and select the forum and prescribe the terms and conditions upon which it may be sued than to allow the Legislature to parcel out the State’s sovereign functions to various bodies, by whatever name called, and allow them to be sued, thereby accomplishing by indirection what they say the State may not do directly.”
The writer, Mr. Justice Kirby, and Mr. Justice Mo-Haney, dissented from the reasoning and conclusions reached by the other members of the court for the reason, as stated in our concurring opinion, in the case of Baer v. Ark. State Highway Commission, 185 Ark. 590, 48 S. W. (2d) 842, that, in our opinion, the Highway Commission was merely the agent through which the State acted, and, construing art. 5, § 20, as mandatory, we thought that under no circumstances could suits against the State Highway Commission be maintained. That case was decided also by a divided court, one view being that the suit which sounded in tort might be maintained under the authority of the Dodge case, supra, but that there was no legislation authorizing such character of suit. The Chief Justice, dissenting, insisted, as in the Dodge case, that there was no constitutional inhibition against the power of the State to consent to being sued in its courts, and very justly argued that, since it is recognized that the Legislature might establish commissions to pass upon the validity of claims and for their establishment, it would be unreasonable to deny it the right to designate the courts as. forums for such investigation, and said: “It seems anomalous to us to say that the framers of the Constitution meant to say that the State, through its Legislature, could not provide the particular court or courts in which claims might he established, but could provide for their establishment before the Highway Commission or other board or court of claims. Such counee would be unnecessarily cumbersome and expensive, and less in keeping with the dignity of the State than to allow itself to be sued in its own constitutional courts upon such terms and conditions as its legislative body may prescribe. * * * We do not think that the act limits claims to those founded on contract. If the Hig’hway Commission negligently injures a person in the construction of the State highways, there would be the same liability under the act as where it took or injured property, or committed a breach of contract relating to road construction.” To this construction of the statute, Mr. Justice Mehaeey agreed.
It will be seen that, out of the conflicting views of a majority of the several members of the court, a very definite result has been reached, i. e., that in a proper case the Highway Commission may be sued when authority for the bringing of the suit may be found in the statute. Since this is the effect of the holding in both the Dodge and Baer cases, supra, we think it more important that this question be definitely settled than a too firm insistence be held to our individual views, and we now hold that, in all cases where the statute authorizes a suit, it may be maintained against the Highway Commission, whether it be thought to be a juristic person or whether § 20, art. 5, be merely declaratory of the general doctrine that the State may not be sued in her courts unless she has consented thereto.
The question remains, is this suit authorized by the statute? There are a number of statutes which authorize suits against the Highway Commission and which were considered by the court in previous cases, including the Grable, Dodge and Baer cases, supra. We have held that suits ex contractu and for damages to property taken or injured in its exercise of the right of eminent domain are authorized by statute, and three óf the justices have thought the statutes broad enough to include actions for recovery of damages for personal injuries. In that view, certainly, a suit upon quantum meruit, which is a contract the law implies, would come within the purview of the statute. One of the acts authorizing the bringing of suits against the Highway Commission is act No. 2 of the special session of 1928, but which the office of the Attorney General, in its able brief, contends was not within the purview of the Governor’s call, and, because of that, invalid. It is argued that, since the call was “to enact a statute to require bonds in certain suits against the Highway Commission,” this related only to suits of such a character as were then pending or threatened in the courts, and the authority to sue given by the act must be limited to suits of that nature. We do not think the language used justifies that narrow construction. It did not say in so many words that it related only to suits then pending, and this was not the way in which the Legislature construed the call. We must therefore, under well-settled rules, where the question is doubtful, place the same interpretation on the call as the Legislature. As we have seen, the Legislature in a number of acts has signified the State’s assent to suits against the Highway Commission, and again registered that assent by § 17 of act 15 of the special session of 1932. The question of the validity of this act is now pending, but, whether valid or not, it is an indication of the Legislative will, but without it the authority sufficiently appears, and; if the act be upheld, it of itself makes absolute that intention.
In Leonard v. State, 185 Ark. 998, 50 S. W. (2d) 598, in holding that the Commission was required to let contracts for the construction and maintenance of highways in conformity with the requirements of the statutes, and that its neglect to do so rendered such contracts void, where it was argued that, although the contracts be held void, the contractors should not be precluded from setting up whatever rights they might have, based upon quantum meruit, we said: ‘ ‘ The only question presented by this appeal, the only one urged by appellants, and the only one we do decide, is the validity of the contracts mentioned in the bill of complaint”; and, in response to the argument that there might be contractors who, by reason of having furnished labor and materials to the Commission in the construction and repair of roads, and who had certain personal defenses or rights, ought to recover, even though the contracts might be void, we further said: “We are not undertaking to adjudicate any such rights in this opinion. ’ ’
The result of our views is that the court below has jurisdiction to hear and determine the question of liability of the Commission, and its extent, for the work and material of which it has received the benefit. It follows therefore that the writ is denied. | [
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McCulloch, C. J.
This is an action to recover possession of a lot of finished marble which had been shipped by railroad from Canton, Georgia, to Little Rock, Arkansas, consigned by defendant, the Georgia Marble Finishing Works, to plaintiff, W. W. Minor. On the trial of the case below there was a verdict in plaintiff’s favor for the recovery of the property sned for and damages in the sum of $50, judgment was rendered therefor and defendant has appealed.
The plaintiff was engaged in Little Rock in the business of preparing and selling monuments and tombstones. He purchased the material from concerns engaged in the business of quarrying and finishing marble and he put the inscriptions on the stones after receiving them at his marble yard in Little Rock. He purchased material from the defendant, which is a corporation engaged in that line of business in Canton, Georgia. His first transaction with the defendant in the way of purchases were under agreement to pay the price on delivery of the marble by the carrier, but later he made arrangements for a line of credit and the material was to be shipped to him by direct consignment on open bill of lading. A line of credit to extend to the sum of $200 was arranged for, and he ordered a bill of marble which amounted to a little more than that sum, and defendant consigned it to him in three shipments, only a few days apart. The shipments were consigned to plaintiff on open bill of lading, and according to the undisputed evidence it was the intention of managers of defendant’s business to have the bills of lading made direct to the plaintiff, but failed to so instruct the shipping clerk, and the latter attached a draft to the bills of lading and forwarded the same to a bank in Little Rock in accordance with the custom in former transactions with plaintiff. Plaintiff took up one of the bills of lading and paid the draft attached: thereto and received the material and used it, but refused to pay the drafts attached to the other two bills of lading, for which the invoices aggregated $188. Correspondence took place between the parties immediately, and the plaintiff reminded the defendant of the agreement to give a line of credit, and there upon the manager of defendant’s business replied that the mistake would be corrected if he would have the bank return the bills of lading. Before the bills of lading could be returned defendant received unfavorable information concerning the financial condition of the plaintiff and then refused to surrender the bills of lading or allow the material to be delivered to plaintiff without payment of the price. This action was then instituted against the railroad company and defendant, the Georgia Marble Finishing Works, but after the latter had appeared in the case and filed an answer the case was dismissed as to the railroad company and the action proceeded to judgment between the two parties to the original contract of sale.
(1) It is first contended on the part of defendant that according to the undisputed evidence the judgment is erroneous for the reason that there was no delivery of the property, that the sale was, therefore, incomplete, and that the remedy of the plaintiff, if any, was an action for breach of the original contract of sale. This contention would be entirely sound if the record disclosed the consignment of marble to have been to the shipper’s own order. In that case there would have been no delivery so as to consummate the sale, and, as contended, the remedy of the plaintiff would have been a suit to recover damages on account of a breach of the contract. A delivery, either actual or constructive, is essential to the consummation of a sale of chattels and the title does not pass until there has been such a delivery. Hodges v. Nall, 66 Ark. 135; Deutsch v. Dunham, 72 Ark. 141.
(2) The evidence adduced in the case as brought forward in the abstract is that the marble was shipped on open bills of lading and consigned to plaintiff, and that brings the case within the rule that a delivery of goods to a common carrier, in pursuance of the directions of the purchaser, constitutes a delivery to the purchaser, and consummates the sale. Burton v. Baird, 44 Ark. 556; Hope Lumber Co. v. Foster, 53 Ark. 196; Gottlieb v. Rin aldo, 78 Ark. 123; Bray Clothing Co. v. McKinney, 90 Ark. 161; Roberts Cotton Oil Co. v. Grady, 105 Ark. 53.
(3-4) The question of delivery depends largely, however, upon the intention of the parties, and notwithstanding the delivery to the carrier, it may be shown by other proof that consummation of the sale by a delivery of the property was not in fact intended. Gibson v. Inman Packet Co., 111 Ark. 521. In the present case, notwithstanding the fact that there was a consignment to plaintiff on an open bill of lading, it was competent for the shipper to prove that there was no intention to deliyer and the fact that the bill of lading was not forwarded to plaintiff, but on the contrary was held in the control of the shipper, was admissible in evidence for the purpose of showing that there was no intention to deliver. The undisputed testimony is that the retention of the bill of lading by the shipper was entirely through the mistake' of the shipping clerk and that there was in fact an intention to consummate the sale by delivery to the carrier. At least this state of facts was sufficient to warrant the inference of an intention 'to consummate the sale by delivery, and as the instructions of the court are not abstracted it is assumed that the question was properly submitted to the jury on correct instructions, and we must treat that issue as settled by the verdict of the jury.
(5) It is also contended that under the evidence adduced in the case the defendant had the right to exercise its privilege, as the vendor, to stop the material while in transit and before final delivery by the carrier to the consignee ; but that depended upon the fact of insolvency of the purchaser, and there is a conflict in the testimony which we must treat as settled in plaintiff’s favor by the verdict of the jury. The evidence adduced by the defendant was sufficient to warrant the finding that plaintiff was insolvent and unworthy of the credit extended to him under the contract of sale, but that testimony conflicted with that adduced by the plaintiff which tended to show that he was perfectly solvent at the time. We are of the opin ion, however, that the court erred m its instructions on the measure of damages, and also that the verdict was not supported by the evidence. The court told the jury in the instructions that the measure of damages was “the value of the time lost and the amount of storage he (plaintiff) was compelled to pay by reason of said stoppage. ’ ’ Plaintiff paid out the sum of $7.20 for storage charges and he is entitled to recover that amount by way of damages, but the evidence is not sufficient to warrant an assessment of damages in any further amount.
Plaintiff was in the monument business and there was delay of a few weeks in the delivery of this material, and in the meantime there was correspondence between the parties concerning the delivery. As soon as the defendant refused outright to make the delivery without payment of the draft this suit was instituted. Plaintiff testified that he had about $800 worth of material and •'equipment in his shop, and it does not appear that his business was shut down on account of the failure to receive the bill of material. If there had resulted any loss on sales, the profit of which plaintiff would have been deprived, that would have been an element of damages, but the evidence does not show that there was any injury of that kind. Plaintiff could not sit down and wait for delivery of the material and charge up his lost time against the defendant, for as soon as it refused to deliver the material he ought to have instituted his action for the recovery of possession of the property, or ordered it elsewhere. The judgment will, therefore, be modified so as to reduce the amount of recovery of damages down to the sum of $7.20. | [
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McHaNey, J.
Appellees sued, and recovered judgment against appellant in the sum of $210 damages, $210 penalty and $50 attorney’s fee on account of the killing of a mule owned by them by the operation of a passenger motor car by appellant. At the conclusion of the testimony,-appellant requested the court to direct a verdict in its favor, which was refused, and this is the only assignment of error we find it necessary to consider, as we are of the opinion the request should have been granted.
Only two witnesses testified to the circumstances and conditions attending the killing of the mule, Tom Harris, for appellees, and C. L. McDonald, appellant’s engineer on the electric motor car, for appellant. Harris testified on cross-examination that he saw the mule killed while sitting on his front porch, about five or six hundred feet from the point of the accident; that the ringing of the bell and blowing of the whistle attracted his attention; that his house is on the west side of the track, and the motor car was going south; that he heard the bell and whistle, looked up and saw the mule struck, but did not see where it came from; could have seen it had it been on the track; that the motor car was running fifteen or twenty miles per hour when it struck the mule; and that there was a pile of stacking strips alongside of the loading track, parallel to the passenger track, about as high as his head. McDonald, the engineer, testified that, as he was coming into the village of Link, running at about 50 miles per hour, and keeping a constant lookout, he saw the mule come running out from behind a pile of strips in an old lumber yard toward the track; that he immediately started the automatic bell ringing and the whistle working; that the mule was thirty or forty feet from the track when he saw him at a distance of about 300 feet; that he shut off the power, applied the brakes and had slowed down to about 15 miles per hour when the corner of the motor struck the mule on the rump; that the mule never did g-et on the track, but ran up to it and turned back just as the car struck it; that it was a clear day, and the track was straight; and that he did everything possible to avoid the collision.
This testimony stands undisputed. There is no conflicting evidence, and there is no internal conflict, contradiction or controversy therein. Of course, the mule being killed by the operation of a train, the statute makes appellant prima facie negligent, but this presumption is overcome when evidence contradicting such inference is offered by the railroad company, and the presumption thereafter cannot be considered as evidence by the .jury. St. L. S. F. Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. (2d) 992.
We think the undisputed testimony of McDonald, which was corroborated by Harris, shows that everything was done that was reasonably possible to avoid the accident, and that appellant was not negligent in any respect. The case is therefore ruled by the recent case of St. L. S. F. Ry. Co. v. Harmon, 179 Ark. 248, 15 S. W. (2d) 310, where a great many of the former cases are collected and cited, and by the Cole case, supra.
The learned trial court should have directed a verdict for appellant. The case will therefore be reversed, and, as it appears to have been fully developed, the cause will be dismissed. It is so ordered. | [
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McHaNey, J.
Petitioner is the receiver of the St. Louis Joint Stock Land Bank, and respondent is the judge of the chancery court of Lawrence County. It is sought to compel, by mandamus, the respondent to appoint a receiver in certain mortgage foreclosure suits now pending in his court. In addition to the mortgage indebtedness and default in its payment, the complaints alleged that the lands were not of sufficient value to pay the amount of the judgment that should be rendered against them, and that the mortg’ag’ors were insolvent. The respondent declined to appoint a receiver or to hear any testimony in support of the above allegations, because of the provisions of § 1 of act 253, Acts 1931, p. 791. This section reads as follows: “In an action by a mort gagee for the foreclosure of Ms mortgage, and the sale of the mortgaged property, a receiver may be appointed where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably insufficient to discharge the mortgage debt; provided, however, that no receiver shall be appointed at the instance of the holder of the mortgage where it appears that the debtor or mortgagor has mortgaged his crops, or his interest therein, for the purpose of obtaining money or supplies for the making of the crop and/or waived his rents, for said purpose, and that said mortgage debt and/or the consideration for said waiver of rents has not been repaid. ’ ’
This statute does not make it obligatory on the court to appoint a receiver, but the provision is that it “may” do so, except in case the mortgagor has mortgaged his crops or waived his rents to obtain money to make the crops, which is thé situation in the cases now pending in respondent’s court.
The writ of mandamus will not issue to control the judicial discretion of an inferior court, but only to compel an exercise of such discretion. Such has always been the rule in this court since Gunn v. County of Pulaski, 3 Ark. 427, and still is. Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002. The respondent was vested with the discretion to appoint or to refuse to appoint a receiver. He exercised such discretion by refusing to appoint, and his action in so doing can be reviewed in this court only by appeal on the whole case. In this court, on a proper showing that the fruits of the litigation might be lost through delay, the case would be advanced.
Therefore petitioner had a complete and adequate remedy by appeal, and the writ of mandamus will be denied. | [
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Mehakfy, J.
The appellee, Ed Watt, began this action in the Hot Spring Circuit Court against the Missouri Pacific Railroad Company for personal injuries alleged to have been caused by the operation of one of appellant’s trains at Malvern, Arkansas.
W. E. Kelly, a minor, by Zoa Kelly, mother and next friend, and Tom Belote, brought suits against the appellant for injuries alleged to have been caused by the same accident alleged in Watt’s case. These cases were consolidated for trial.
It was alleged in the complaints that William Kelly was driving a truck belonging to Tom Belote, and, while attempting to cross the railroad track on Main Street in the city of Malvern, and while in the exercise of due care, the agents in charge of and operating one of appellant’s trains negligently and carelessly caused the motor truck to be turned over and wrecked, and the occupants of the truck injured.
Appellant’s train had stopped near the crossing, and it is alleged that, as appellees undertook to cross the track in the truck, the train was negligently, carelessly, suddenly, and without warning, started onto said crossing, thereby placing the occupants of the truck in a posi- tión of extreme peril, and, in order to avoid being struck and run over by said train, tbe driver of said truck was compelled to swerve it suddenly and abruptly into tbe curb, turning tbe truck over, wrecking it, and injuring appellees.
It was alleged that tbe employees operating tbe train negligently failed to keep a lookout, and, if they bad kept a lookout, they would have discovered tbe approach of tbe parties in tbe truck in time to have avoided tbe injury.
It was further alleged that tbe appellant maintained a flagman at tbe crossing whose duty it is to give signals and warning of tbe approach of trains to persons in vehicles and pedestrians; that said flagman was present at tbe time of tbe accident and negligently failed to give any signal or warning, and, by reason of such negligence, tbe parties in tbe truck, in tbe exercise of ordinary care, believed it safe to cross at tbe time.
Tbe complaint then alleged tbe manner in which tbe parties were injured and a prayer for damages in each complaint. Kelly and Watt sought to recover damages for personal injuries, and Belote for damages to bis car.
Tbe appellant filed an answer to each complaint, denying all tbe material allegations of tbe complaints. It denied that it was guilty of any negligence, but that, if tbe parties were injured, tbe injuries were due to their own fault and carelessness in not stopping, looking, and listening for tbe approach of trains, and in disobeying tbe signal lights, and alleged that tbe accident was caused by tbe negligence of William C. Kelly, and that appellee Belote was negligent in permitting tbe truck to be driven by a young and inexperienced driver.
When tbe cases were called for trial, appellant filed motion to quash tbe jury panel, and for cause stated that Tom Belote, one of tbe appellees, was a member of tbe regular panel of tbe jury, and bad been sitting on said petit jury and served as juror in many cases determined by tbe jury at that term, and bad been with tbe jury, associated with tbe jurors, and bad deliberated with them, and for that reason, the appellant moved the court to quash the jury panel.
Evidence was taken on this motion. The clerk of the Hot Spring Circuit Court was called as a witness, and testified that he had a list of the petit jurors who served at the present term of court, and that Tom Belote had been serving as a special petit juror; had served for three days; that he had only served as juror at the present term of court in one case; that Belote was summoned as a special juror, and is not on the regular panel. He was summoned late Wednesday afternoon. The court overruled appellant’s motion to quash the panel, and exceptions were saved. .
The evidence introduced by appellees tended to show that the parties were hauling dirt from the Mal-vern Brick & Tile Company, and it was necessary to cross the railroad tracks of appellant at the main street crossing. They were in a Chevrolet truck and were going north at about 4:30 p. m., and were running between 10 and 15 miles per hour; that they shut off for the crossing, and put on the brakes, and brought the truck to almost a complete stop, and saw the southbound passenger train taking water, and the engine was 12 or 15 feet from the crossing. They saw the engine standing and saw the fireman on the back of the tender; noticed him reaching over to get the water nozzle. The bell was not ringing, but the flagman was standing about in line with the right sidewalk; was on the opposite side of the track from the truck, and was hacking on the telephone post with his flagstick and not looking in the direction of the truck. No signals were given by the operators of the train before starting up, and when the truck was about 30 feet from the track the occupants noticed the train beginning to move. The driver of the truck put on his brakes, and swerved to the right to keep from striking the train. The truck hit the curb and turned over.
Witness testified that no signal had been given from the train, the flagman was not out there, and nothing was done to warn the parties that the train was starting. If the driver had not swerved, the truck would either have struck the signal sign or run in front of the engine. There was nothing the driver could have done to prevent the accident.
Witnesses then described the injuries received, and physicians were introduced who testified as to the injuries. The truck was going down a pretty steep grade, and the driver was using his brakes coming down the street. The driver was looking ahead and saw the signal lights at the crossing’, and knew there was danger. He knew that the crossing was dangerous, but he saw the engine standing and saw the flagman there, and he did not give them any signal. The truck was stopped some distance from the track, but they saw the engine was not moving, saw the fireman on top of the tender, and, as no warning was given, either by the trainmen or flagman, they thought it was safe to cross the track.
The evidence on the part of the appellant tended to show that the engineer stopped the engine even with the water spout, and that the front of the engine was about the edge of the sidewalk; that there was an automatic bell ringing when they came into the station. The employees in charge of the train saw the truck coming down the street, and thought nothing of it until it got within about 20 feet of the train; that the engine was at that time moving, the engineer having received a signal from the fireman. The bell was ringing, and the flagman was in the middle of the crossing, and when the train came in, the flagman was in the middle of the street with his stop sign up. There was nothing to prevent the driver of the truck from seeing the train.
' The evidence of appellees’ witnesses was in conflict with the evidence introduced by appellants as to negligence. Attention will be called to such parts as necessary in discussing the issues.
The jury returned a verdict in favor of William C. Kelly for $100, for Ed Watt for $1,000, and in favor of Tom Helóte for $150. Motion for a new trial was filed and overruled, and the case is here on appeal.
Appellant’s first contention is that the court erred in overruling its motion to quash the panel of petit jurors, and it says that Belote had served and sat as a juror in other cases with the jury that tried his case; that he had associated daily with the jurors, and that this influenced other jurors may be seen because in the Belote caso, the verdict was unanimous, and in the Kelly and Watt cases it was not unanimous. The Belote case, however, was for damages to his car, and the other cases were for personal injuries. The jury might very well agree unanimously as to the value of the car, and they might not all agree as to the amount appellees were entitled to recover for personal injuries.
Appellant quotes from 35 C. J. 333 as follows: ‘‘Where a litigant serves on a jury at a term at which he has a case to be tried by a jury, all of the other jurors with whom he has been serving are incompetent to sit in the trial of his case.”
Appellant’s attorney doubtless thought, when he filed his motion to quash, that Belote was a member of the regular panel. The evidence, however, shows that he was summoned as a special juror and served in one ease. The record is silent as to whether he was summoned for the purpose of serving in that case alone. It does show however that he was not on the regular panel, and that he served in but one case, and it fails to show any association at all with the other members of the panel, and there is no evidence in the record tending to show that any juror who tried this case had associated with Belote at all, or even knew that he had been subpoenaed as a special juror and served in one case.
Appellant also calls attention to note one in volume 35 of C. J. 333, but there is nothing in the evidence in this case tending to show any association or unfair advantage or that any of the jurors who served in this case had at any time served with Belote. It would certainly not disqualify the panel because 'Belote served in one case, when there is not any evidence tending to show that he served with any of the jurors in his case.
Appellant next contends that the court erred in sending the instructions into the jury room after the jury had deliberated some time, with the word “pltf.” in pencil at the left hand top corner of plaintiff’s instruction No. 2, and the word “This” on plaintiff’s instructions Nos. 4, 6, 8 and 12.
It appears that the penciled notations on the margin of the instructions were put there during the argument of counsel with no intention or expectation that the jury would see them. The notations were put there for the convenience of the attorney in making his argument, and no one seemed to think about it, and the attention of the court was not called to it. If the court’s attention had been called to it, or there had been any request to do so, he would doubtless have erased the marks.
Whether appellant’s attorney knew about the marks being there before the instructions were given to the jury is not shown by the evidence. He probably did not know of it, but there is no evidence in the record tending’ to show that they were noticed by the jury or influenced the jurors in any way.
It is next contended that there is no liability under the law and evidence in this case, and that the trial court should have directed a verdict in favor of appellant.
It is true that the train did not strike the truck, but an injury may be done or caused by the running of a train without the train actually striking the person or property. If the appellant was guilty of negligence in the operation of the train at the time, and that negligence injured the appellees, while they were in the exercise of ordinary care, this would be damage done and caused by the running of trains. Section 8562 of Crawford & Moses’ Digest.
It was the duty of the appellees to exercise ordinary care for their own safety, and to look out for the trains, but the evidence on behalf of appellees shows that the engine, was not moving, that the fireman was on the tender, and that the flagmán, whose duty it was to warn travelers, was there and gave no warning’, and there was no warning given by the engine crew before starting the engine.
Persons crossing a railroad track where a flagman is kept, whose dnty it is to warn travelers, and when he is standing at his usual place hut does not give any warning, have the right to assume that they may cross the track with safety. Travelers must exercise ordinary care, and that means such care and precaution as a person of ordinary prudence would use under the circumstances.
It is true that they saw the signal lights flicker, and they would have known the train was there whether they had seen the lights or not, because they saw the engine. They knew the engine was not moving, and, according to their testimony, no signal was given before the engine moved.
The question of the negligence of the appellant and the question of the contributory negligence of the appel-lees was submitted to the jury under proper instructions. Whether one is guilty of negligence or contributory negligence is a question of fact to be determined from the evidence introduced, and, if there is any substantial evidence to support the verdict, this court is not authorized to disturb such verdict.
The crossing at which the injury occurred was where the main street of the city of Malvern crosses appellant’s railroad track, and the travel is considerable, and for that reason, doubtless, a flagman is kept, and any one undertaking to cross when the flagman has indicated that it was dangerous to do so would be guilty of negligence, but to travelers knowing that a flagman was kept at this place, seeing him at his place at the time, the failure by him to give any warning to the travelers would be an invitation to cross.
There was no error in permitting defendant’s witness to be asked on cross-examination questions, the answers to which tended to show that he had failed to perform his duty. The answers to these questions would tend to show the credibility of the witness, and no prejudice could possibly have resulted from admitting this testimony.
Appellant had placed the flagman on the stand and asked him about his performance of duty at the time.
Appellant calls attention to the case of Pugsley v. Tyler, 130 Ark. 491, 197 S. W. 1177, and Railway Co. v. Harrell, 58 Ark. 454, 25 S. W. 117. It is true that you can not establish negligence in any given case by showing that the party was negligent in some other case. The evidence on the part of the appellees must show negligence on the part of the appellant, and, while you can not prove negligence by showing that one was guilty of negligence on a former occasion, one whose constant duty is to warn and protect the public at a place where there is constant travel may be asked on cross-examination, for the purpose of testing his truthfulness or credibility, what his habits have formerly been, with reference to the same matter.
Defendant offered to prove by Mr. Halbert, former city attorney of Malvern, that there was an ordinance requiring people using vehicles or automobiles to stop before going across the Main Street crossing. Court and counsel withdrew from the presence of the jury, and Halbert testified that, when he was city attorney, there was an ordinance which required drivers of vehicles to stop at intersections of streets where there were stop signs, and that during his term as city attorney people had been fined in the mayor’s court for not stopping at the railroad crossing in disregard of the stop sign. Witness also testified that he did not know where the ordinance was, but knew that it was passed and published.
The court refused to admit this evidence. This was not error. Appellees admitted that there was a flagman at this crossing with a stop sign, but that he was not displaying it at the time of the accident. There was no controversy about the duty of the travelers to stop if the sign was displayed, and the ordinance which appellant desired to introduce, according to the evidence, was with reference to stop signs at intersections, and whether there was or was not snch an ordinance would in no way tend to prove negligence on the part of the appel-lees because, according to their evidence, there was no stop sign displayed, and it was conceded that, if the stop sign was displayed, it would he negligence to cross.
The appellant urges a reversal because of the giving of certain instructions by the trial court, and its refusal to give others. There were numerous instructions offered, some given and some refused. It would serve no useful purpose to set them out at length. After a careful examination of the instructions given, as well as those refused, we have reached the conclusion that the instructions as a whole constituted a correct guide, and the court therefore did not err in either giving or refusing instructions.
The judgment of the circuit court is affirmed. | [
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Mehabty, J.
Appellant brought suit in the Grant Chancery Court on a note for $800, the payment of which was secured by mortgage on certain real estate. The note and mortgage had been executed by William C. Vick-ry and wife, Homie E. Yickry, to the Conservative Loan Company. The note and mortgage were afterwards assigned, and the appellant who brought the suit was the owner at the time of the suit.
In addition to the note for $800 and mortgage securing it, there were other notes given secured by a second mortgage for interest, but there is no controversy about the foreclosure of the second mortgage.
W. A. Mathis filed answer and intervention, alleging that one acre of the land was sold under a mechanics’ lien, and that he became the purchaser.
Paul J. Clark also filed an intervention, alleging that Yickry, after the execution of the note and mortgage sued on, sold the lands to A. L. Hartón; that A. L. Hartón sold these to J. W. Hensley, and that Hensley conveyed the lands to the intervener, Paul J. Clark, and that said in- tervener, Clark, purchased the lands at delinquent tax sale, but the lands had been redeemed. Clark claimed to be the owner by reason of his purchase from Hensley.
The appellants, David Williams and E. L. Carter, filed answer to the interventions, and the case was tried on an agreed statement of facts, and the court entered a decree in favor of E. L. Carter for $41.26 against William C. Yickry and Homie E. Vickry; found that W. S. Mathis held a mechanics’ lien against one acre, which was included in the mortgages; that said lien was for repairs made upon the dwelling house situated on one acre of ground, and that a deed by the commissioner had been executed to W. A. Mathis. The court, however, found and held that Carter, had a second lien on all the lands described in mortgages, except one acre claimed by Mathis, and, as to that one acre, that Carter had a first lien.
The court held also that the mortgage securing the note held by David Williams did not give the date of the maturity, and that there had been no memorandum of credit or of extension entered upon the margin of the record, and that said mortgage was barred by the statute of limitations as to the rights and interests of Mathis to the one acre described in the commissioner’s deed.
The court held that Williams had a prior lien against all the land described in the mortgage except the one acre claimed by Mathis. The court held that the deed to Clark was executed after this suit was begun, and that he was not an innocent purchaser.
There was no appeal from the judgment and decree in favor of Carter, and therefore the only question for our consideration is whether Williams ’ lien was prior to the claims of Mathis and Clark; that is, whether appellant’s claim was barred by the statute of limitations as to the claim of Mathis to the one acre and the claim of Clark under his deed.
The appellee contends that, since the mortgage did not show on its face when it was due, it became due immediately, and that Mathis and Clark had a right to believe, since no memoranda were on the margin of the record, that Williams ’ note and mortgage was, as to them, barred by the statute of limitations.
They contend that, since this mortgage was made in 1920 to secure the payment of a- note mentioned in the mortgage, and since the mortgage did not give the date of the note, the statute of limitations began to run at once, and was barred when this suit was begun.
We do not agree with the appellees in this contention. Where a mortgage is conditioned for the payment of a certain sum with interest, according to the tenor and effect of the note, to secure which the mortgage was given, and the note provides for the payment of interest annually, as shown by the interest coupons of this $800 note,, the terms of such note are imported into the mortgage, and the note and mortgage are to be read and construed as one instrument.
The mortgage provides: “The foregoing conveyance is on condition that whereas the said grantors are justly indebted to the said Conservative Loan Company in the sum of eight hundred dollars for borrowed money, evidenced by certain promissory note of even date herewith executed by the mortgagors to the mortgagee herein, with interest thereon at 10 per cent, per annum, the interest from date until maturity being evidenced by coupons attached to said note (or in partial payment prior to maturity, in accordance with the stipulation of said note). “Now if, the said grantors shall pay or cause the said note to be paid, with interest, according to the tenor and effect thereof, then this instrument to be null and void; otherwise to be and remain in full force and effect.”
There are numerous other provisions in the mortgage, but what we have quoted above is sufficient to show that the note was described, and it also clearly appears that the note was not due immediately, for it is expressly provided that the interest from date until maturity is evidenced by coupons attached to said note.
How could any one assume that the note matured immediately when the mortgage shows on its face that the interest to maturity was evidenced by coupons attached to the note!
If no such provision was in the mortgage, a person desiring to purchase the land would know, at least he would be put on inquiry, as to when the note matured, because, as we have already said, the note and mortgage are to be construed together as one instrument, and the statement in the note as to when it becomes due is imported into the mortgage. 41 C. J. 452; Scheibe v. Kennedy, 64 Wis. 564, 25 N. W. 646.
Where a mortgage contains no express promise of interest and specifies no time of payment, it has been held that it is a mortgage due presently, or as soon as given. There are many authorities holding this, but no authority has been called to our attention holding that, where a mortgage describes a note, shows not only that it bears interest, but that interest coupons are attached to the note, such note is payable presently. The great weight of authority seems to be that, where the mortgage describes the note as bearing interest, and gives the amount, the note and mortgage must be construed together as one instrument.
Not only is this position supported by the weight of authority, but this court has approved this doctrine. It was said:
“The $6,000 note was sufficiently identified in the mortgage. The date and amount were given, together with the interest it bore. The only requirement is that the description be sufficient to put interested parties upon inquiry,' which, when followed up, will inform them of the extent of the incumbrance. ’ ’ Bank of Dyer v. Cole, 157 Ark. 583, 249 S. W. 32.
We therefore hold that the interveners were not innocent purchasers. The provisions in the mortgage were sufficient to put them upon inquiry and it was their duty to ascertain when the note matured.
The evidence conclusively shows that' the note was not due until 1930, and it would not have been barred until five years after that time: No payments had ever been made on it, except the interest had been paid up to 1929, and no extension of time had ever been agreed to. There was therefore no payment made on the note, and no extension of time, and the statutes providing for memorandums on the margin of the record, have no application.
It follows from what we have said that the decree on appeal must be reversed, and, on cross-appeal, affirmed.
The decree of the chancery court is reversed, and the cause is remanded with directions to enter a decree foreclosing the mortgage of appellant, and in accordance with this opinion. | [
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Hart, J.,
(after stating the facts). This action was commenced by Ella 8. Sears, the beneficiary named in the policy. During the pendency of the action and before the case was tried she died and the suit was revived in the name of Dan Taylor, as special administrator of her estate. This was done over the objection of the defendant. The motion to revive was accompanied by the affidavit of three persons showing that Ella S. Sears had died at Salt Lake City, Utah, and that no administration upon her estate had been had. There was no error in the action of the court in this regard.
In Anglin v. Cravens, 76 Ark. 122, the court said: “When the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative; and if there be no general administrator or executor, the revivor shall be in the name of a special administrator appointed by the court in which the action is pending. The order to revive may be made forthwith—as soon as the court in which the action is pending convenes after the death of the plaintiff, and must be made within one year after that time, except by consent of parties. The limitation of time in the statute applies equally where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator.”
(1) Again, in Keffer v. Stuart, 127 Ark. 498, the court held that under our statute when a plaintiff dies the revivor may be made in the name of his representatives forthwith, whether the defendant consents to it or not. The court further said that the statute does not require that the defendant be consulted until after the expiration of a year from the time when the order of the revivor might have been first made, but that after that time, the order of revivor could not be made without the consent of the defendant.
The court also gave at the request of the plaintiff, among others, the following instructions:
“1. If you believe from the evidence that the deceased came to his death as the result of a pistol shot fired by some person other than himself, your verdict will be for plaintiff.
“2. The burden is upon the defendant insurance company to establish by a preponderance of the evidence that the deceased committed suicide, and unless you so find, your verdict will be for the plaintiff.”
It is insisted that the court erred in giving instruction No. 2.
(2) The burden was on the plaintiff to establish that the death of the insured resulted directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means; but he was not required to prove that the death of the insured did not result from suicide, which by the terms of the policy would relieve the company from liability thereunder.
(3-4) When the plaintiff proved that the insured was found dead with a pistol wound through his head and that this caused his death, he had made out a prima facie case under the policy. The reason is that there is a presumption that one does not commit suicide. Such a presumption being one of evidence, stands until overthrown by evidence. As stated by Judge Agnew in Allen v. Willard, 57 Pa. 374, “The natural instinct which leads men in their sober senses to avoid injury and preserve life is an element of evidence. In all questions touching the conduct of men, motive, feeling and natural instincts are ab lowed to have their weight and to constitute evidence for the consideration of courts and juries.”
(5) The defendant claimed that the insured had committed suicide, which is made an exception to the risk < of the policy. This was a defense and the law cast upon the company the burden of proving it.
The policy insures against death to Sears by external, violent and accidental means. It is made subject to a condition that the defendant is not liable in case of the suicide of the insured. The occurrence of this condition operates to defeat the policy, and this fact should be shown by the party relying on it. 1 Cyc. 289; 1 Corpus Juris, § § 278 and 284, pp. 495 and 496; 14 R. C. L., § 416, pp. 1235 and 1236; Travellers Ins. Co. v. McConkey, 127 U. S. 661; Coburn v. Travelers Ins. Co., 145 Mass. 226; Starr v. Aetna Life Ins. Co. (Wash.), 4 L. R. A. (N. S.) 636, and case note; Cronkhite v. Travelers Ins. Co., 75 Wis. 116, 17 Am. St. Rep. 184; Meadows v. Pac. Mut. L. Ins. Co,, 129 Mo. 76, 50 Am. St. Rep. 427; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 97 Am. St. Rep. 560; Ins. Co. v. Bennett, 90 Tenn. 256, 25 Am. St. Rep. 685; Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205.
In a case note to 9 A. & E. Ann. Cas. at page 921, it is said that accident policies generally contain a clause, the purpose of which is to relieve the insurer from responsibility in case of death of the insured caused by intentional injuries inflicted by the insured or some third person, or caused by disease, or caused by voluntary exposure to unnecessary danger, etc.; and that where the insurer sets up the breach of one of these conditions as a defense, the burden is of course upon it to prove by a preponderance of the evidence that death was caused by a breach of one of these conditions.
The rule, we believe, is not only supported by the better reasoning but is in accord with the great weight of authority as shown by the cases cited in the note just referred to. This general rule is also in accord with the trend of our decisions bearing on the question.
In Grand Lodge of Ancient Order of United Workmen v. Banister, 80 Ark. 190, it was held that where, in a suit upon a benefit certificate, the insurer claims nonliability upon the ground that the insured committed suicide, the burden of proving that fact is upon the defendant. It is true this was an action on a life insurance policy and that there is a difference in the amount of proof required to recover on a life insurance policy and on an accident policy. In the former, all that is necessary for the plaintiff to show to make out a prima facie case is the contract and death. In the latter, in addition to this, the plaintiff in order to recover must prove that the death or injury was accidental within the meaning of the terms of the policy. This difference, however, does not in any manner affect the reasons for the rule casting upon the defendant the burden of proving suicide when that is alleged as a defense to the policy. Both in actions on life and accident insurance policies, the plaintiff must first make out a prima facie case, and when that is done, the defendant having set up a breach of a condition of the policy as a defense, the burden is upon it to prove by a preponderance of the evidence that the death was caused by a breach of this condition.
In the present case it is shown beyond question or dispute that the insured came to his death by external and violent means. The only controverted question of fact in the ease is as to whether or not he committed suicide. This being the case under the principles of law above announced, the court did not commit reversible error in giving the instruction complained of.
(6) The jury returned a verdict for the plaintiff in the sum of $8,000, and there is no claim that the plaintiff was not entitled to recover this sum under the terms of the policy. The court fixed the attorneys’ fee at $1,000. It is claimed that this is excessive, as being evidently made upon the basis of a contingent fee. We do not agree with counsel in this contention. We have held that the court should only allow a reasonable fee for legal services performed and that this should not be made on the basis that the fee was contingent. Mutual Life Ins. Co. v. Owen, 111 Ark. 554. In that case the policy sued on was $10,000 and the court allowed a fee of $2,000. We held that this was unreasonable and'that $1,000 would have been a reasonable fee. Here the recovery was for $8,000 and we do not think, when all the circumstances of the case are considered, that a fee of $1,000 was excessive. Three attorneys who testified on the question stated that $1,500 would have been a reasonable fee, but we think that the court properly fixed it at not exceeding a thousand dollars.
The judgment will be affirmed. | [
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Hughes, J.,
The appellant was indicted in Arkansas county for the larceny in that county of four steers.
Appellant contends that there is no proof of the venue as .laid in the indictment. There is no direct proof that the steers were stolen in Arkansas county, but there is circumstantial evidence that they were stolen in that county. The testimony tends to show that they ranged thirteen miles southeast of Stuttgart, in Arkansas county, and were in charge of P. W. Turley; that they were missed from their range the latter part of September, and were sold in Lonoke county 2d of October following. Yenue may be proved, like any other fact, by circumstantial evidence, as well as by direct testimony, by a. preponderance of the evidence. 3 Rice on Evidence, 345; Com. v. Harmon, 4 Pa. St. 269; Wilder v. State, 29 Ark. 293; Wilson v. State, 62 Ark. 497.
The question as to the identity of the person who sold the cattle in Lonoke county with the defendant was raised in the evidence, and this was a question for the jury. While-there seems to be some conflict as to this, we could not disturb the verdict in any respect upon the evidence, which tended to support the verdict.
In declaring the law in the case, the court said to the jury: “If you believe that any witness has sworn falsely as to any material fact, you are at liberty to disregard his entire testimony, or you may receive that portion you may believe to be (rue, and reject that you may believe to be false.” This was excepted to by defendant, and is insisted on as error in his motion for a new trial. The instruction is erroneous and prejudicial, according to the decision in the case of Frazier v. State, 56 Ark. 244, which holds that, before you can disregard the testimony of a witness for false swearing, the false swearing must be wilfully done. In the case of Frazier v. State, 56 Ark. 244, in passing on an instruction similar to the one under consideration, this court said: “False swearing as to u particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is incomplete in omitting this. Moreover, the instruction might be construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely, to some other fact. Thus con - strued, it does not reflect the law; for, although a witness is found to have wilfully testified falsely to a material fact, the jury will not be warranted in disregarding other parts of his testimony which appear to be true.”
For the error in giving this instruction, the judgment is reversed, and the cause is remanded for a new trial. | [
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Butler, J.
On July 23, 1929, Mrs. O. E. Bell was severely burned by an explosion which occurred while she was endeavoring to start a fire in her kitchen stove by applying a lighted match to a pile of kindling and wood upon which she had poured coal oil. From the fire resulting from this explosion the dwelling in which Mr. and Mrs. Bell were living and the household belongings therein were destroyed. This suit was brought to recover damages resulting from the explosion and fire.
There was a trial and judgment for plaintiffs in the trial court, from which is this appeal.
The liability of the appellant, Magnolia Petroleum Company, is based on the contention that the coal oil or kerosene used in starting the fire was purchased by the appellee, O. E. Bell, from a retail dealer in gasoline and kerosene, who had purchased the same from the appellant, which fluid was not kerosene, but a mixture of kerosene and gasoline; that this mixture was highly inflammable and explosive, and that the explosion occurred because it was such mixture. The appellees depended upon circumstances to establish the charge of negligence against the appellant for selling an impure product, and the court, at their instance, instructed the jury that proof of this was not required by direct evidence, but might be proved by circumstances, and if, from the circumstances adduced in evidence, a fair and reasonable inference might be drawn that defendant (appellant) sold as kerosene a different fluid which was dangerous and explosive in its nature, and this was the proximate cause of the injury, liability would attach to the defendant (appellant).
It is the contention of the appellant that the circumstances proved were not sufficient to meet the test laid down by the court, and that the verdict of the jury was without substantial evidence to support it. It is well settled that this court must view the evidence, with all the inferences reasonably dedueible therefrom, in the light most favorable to the appellee, but, applying this rule, we are unable to discover any substantial testimony or proof of any circumstance to support the finding of the jury that the appellant sold to the retailer, Middle-brook, who in turn sold to the appellee, Bell, a fluid as kerosene which was not such, but a mixture dangerous in its character, from the use of which the injuries to ap-pellees resulted.
Prior to this suit, a suit on the same cause of action had been instituted in the Federal District Court of the Western District of Arkansas, and evidence was fully developed on that trial. That case, however, was non-suited, and on the trial of the instant case it was agreed that the evidence taken might be used for the purpose of showing the testimony of any witness in said trial for the purpose of contradiction, or in regard to any statement of testimony of any witnesses who testified in said trial. The testimony of the witnesses in this case and the admissions made as to their testimony in the former trial established the circumstances upon which the appellees rely which are as follows: The appellees lived in the village of Hartman, a short distance from the place of business of Middlebrook, who, among other things, sold gasoline and kerosene, and that it had been their custom to purchase kerosene from him to use in starting- fires in their kitchen stove and under their wash pots; that on or about the 9th day of July, 1929, the ap-pellee, O. E. Bell, applied to Middlebrook for the purchase of a gallon of kerosene. The alleged kerosene was put into a gallon can which appellee kept for that purpose, and he returned with it to his premises. A quantity of this fluid was poured upon some fuel under a wash pot and was ignited by the application of a lighted match. Mr. and Mrs. Bell noticed that it appeared to flame up more quickly than the usual kerosene, which alarmed them and made them think it was dangerous and “looked like it might burn you up. ’ ’ Bell went back to see Middle-brook who told him it was all right, and they continued to use the fluid some three or four times for the purpose of starting- fires before the occurrence on the 13th day of July. The can of kerosene was kept in the garage near the dwelling house and before the date of the explosion Bell had drawn out a small quantity in a bottle which he carried to the woods for the purpose of putting it on a saw, and after the explosion he went to the woods and found this-bottle with some fluid still in it and took it to a chemist for analysis about September TOth. The fluid was found to be a mixture of equal parts of kerosene and gasoline. The chemist who made the analysis stated that the fluid would be highly dangerous for use in lamps and to use to build fires, and if used generally throughout a community would cause a great many casualties.
On July 13th Mrs. Bell cleaned out her kitchen stove, removing the ashes with her hands. She then placed some wood and kindling in the stove and got the can of kerosene and ponred some of the fluid on the fuel in the stove, and upon touching it with a lighted match the explosion followed. Immediately after the explosion the kerosene can was found on the floor near the stove. Appellee testified that on the day his house was burned he saw Mr. Spanke, the agent of appellant, and his driver came to Middlebrook’s place of business and moved the tank in which the kerosene was kept out of his building and took another one off of the truck and put it on the inside, and that Middlebrook was there at the time. A witness by the name of Tinner stated that he was at Middlebrook’s filling station and saw some person, or persons, whom he did not know, change the kerosene in the tank that the oil was carried out of the tank in a five-gallon can and other oil substituted for it. All of this was disputed by Middlebrook and Spanke who testified that no agent of the appellant came to Middlebrook’s place of business on that day and neither the tank nor its contents were changed. There were three witnesses who gave some testimony regarding trouble they had experienced with kerosene bought from Middlebrook, which will be commented upon later in this opinion.
The facts about which there is no dispute are to the effect that the kerosene handled by Middlebrook was all purchased by him from the appellant company through its agent Spanke at Clarksville; that the kerosene in the tank at his filling station out of which he sold a gallon to the appellee, Bell, was purchased about the first to the 10th of July and was drawn into the appellant’s tank truck from a large supply tank. This kerosene had been inspected at the point of shipment and again after it had been put into the tank of the local agent, Spanke, and the test showed it to be kerosene of good quality which came within the test required by law. Middle-brook was a retail dealer in gasoline and kerosene. The tanks in which his gasoline was stored were sunk in the ground outside his building and á small tank was located inside of his building in which he kept kerosene. Appellant’s tank truck was divided into separate compart ments, in one of which was kerosene and in the others gasoline, with outlets from each compartment. The kerosene delivered to Middlebrook from the first to the 10th of July was delivered in the ordinary way without admixture with any other fluid or substance. Prom the storage tank of Spanke the local agent of appellant, kerosene was sold to a number of retailers about this time in that territory, who in turn retailed the same to their customers, and no complaint was made by any person who used it. Middlebrook had a number of customers in the village of Hartman, and out of the particular quantity of oil from which the sale was made to appellee, Bell, Middlebrook sold to various other customers the balance of the oil. They used it in their lamps and for the purpose of making fires. This amount, from July 1st to 13th, the date of the explosion in question, was about thirty gallons and was sold in small quantities to the householders in the village who used it in the customary way to light fires and burn lamps and they had no trouble in its use.
The trouble Tinner experienced was that when he started to blow out his lamp the oil ignited down in the lamp and exploded when it was thrown into the yard, but the condition of the lamp was not stated, and it is therefore uncertain whether or not that caused the flame to descend into the lamp or whether it was caused from the character of the oil. Brazier testified that he kindled a fire with the kerosene in his stove about the first of July, and the caps or lids were blown off the stove, but the manner in which the fire was kindled is not disclosed by the testimony- — whether the oil was poured on a smoldering fire or whether the stove was hot or cold— so that that explosion may have been caused by the character of the oil used or from some other cause. It is in the undisputed evidence that kerosene, when poured upon a smoldering fire or under certain other conditions, quickly forms a gas which, upon application of a flame will explode. The witness, Smith, testified that he was not pleased with some kerosene purchased and returned it — but be was unable to say with any degree of certainty when the purchase was made. It would, therefore, be but speculation to say that it was from the same quantity of kerosene out of which the sale to Middlebrook was made in July, 1929. It seems reasonably certain, from the definite and undisputed evidence relating to the character of the kerosene purchased by Middlebrook from appellant in July, 1929, that it was unadulterated and fit for use. Such being the state of the evidence, if it may be said to be established that the kerosene in the gallon can was mixed with gasoline when Mrs. Bell used it for starting the fire in the cook stove, how it became adulterated is a matter of conjecture. There was some testimony that a small quantity of gasoline was kept on the premises in a glass jar, and it appears equally as reasonable that it was inadvertently mixed with the kerosene as it is to say, in view of all the attendant circumstances, that it was mixed in Middlebrook’s tank before the sale was made to Bell, or, as Bell himself furnished the container, that some gasoline might have been in it when the kerosene was purchased by him. It is certain that on the 10th day of September, 1929, the fluid in the bottle given by Bell to the chemist for analysis was found to be half gasoline and half kerosene, but it must be remembered that the time the fluid in the bottle was alleged to have been taken from the gallon can of kerosene is nowhere shown, nor where it was or in whose possession from that time until a date long after the accident resulting in the damages to Mrs. Bell and the destruction of the premises.
We have not overlooked the testimony of Bell and Tinner relative to the agents of appellant making some change of the tank of kerosene in Middlebrook’s filling station on the day of the accident, but no particular significance can be attached to this because the testimony of Bell and his witness, Tinner, are contradictory to each other and there was nothing out of the ordinary in the action of the agents of the appellant, as it was a part of the business to visit the retail dealers from time to time and deliver gasoline and kerosene to them, and, especially. in view of the other circumstances in the case, it is insufficient to show any essential fact.
The essential fact in this case which must be established to fix liability on the appellant is that it delivered to Middlebrook kerosene mixed with gasoline and that it was a part of this mixture that was sold by Middle-brook to the appellee, Bell. While we may have inadvertently omitted mention of some circumstance in evidence, we have carefully reviewed it and believe that we have stated the circumstances in as favorable a light for the. appellee as is warranted. We conclude that there is no substantial testimony which would justify a reasonable inference of the existence of the essential fact upon which a verdict might have been based. It is well settled that the verdict of the jury based on mere conjecture or speculation, as we find this verdict to be, will not be permitted to stand. St. L., S. F. R. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102, and cases therein cited.
Appellees rely on the case of Pierce Oil Corp. v. Taylor, 147 Ark. 100, 227 S. W. 420, to support their contention that the evidence in the instant case is sufficient to support the verdict. In that case, however, the evidence clearly established the fact that the retail dealers sold kerosene only and not gasoline, and that on the truck of the oil corporation at the time of the delivery to the retail dealer were four barrels of kerosene and four of gasoline. Two of these barrels were delivered to the retail dealer and two days later a can of coal oil, supposedly, was purchased which was drawn from one of these barrels. In starting a fire with this fluid there was a violent explosion of sufficient force to burst the can nearby, and immediately after the explosion some of the oil was taken from the barrel from which the oil had been purchased, and the sample, after being securely sealed, was sent to a chemist in Port Smith for analysis, who found that it flashed at a temperature of 80 degrees and contained ingredients found in gasoline and not properly present in kerosene. Prom, this evidence the reasonable inference conld be drawn that at least one of the barrels delivered from the corporation’s truck to the retail dealer contained gasoline and not kerosene. The mere statement of the facts in that case distinguish it from the facts of the case at.bar and make it inapplicable thereto.
We deem it unnecessary to discuss the alleged negligence of Mr. and Mrs. Bell or the contention that they used the fluid with full knowledge of its dangerous character. We have examined the instructions and find that some of them erroneously declare the law, but, in view of our conclusion as to the sufficiency of the evidence, it is unnecessary to discuss those instructions. It follows from what we have said that the judgment of the trial court must be reversed, and the cause dismissed. It is so ordered. | [
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Bunn, C. J.
This is an indictment against the defendant J. C. McCasMll and others for the crime of “removing property upon which a lien existed,” as charged in one paragraph, but, as charged in another, “of accessory before the fact to removing property upon which a lien existed.” A demurrer in short upon the record was interposed to both counts of the indictment,’ and, the same being overruled, defendants moved for a severance on the trial, which motion being sustained the defendants elected to try J. C. McCaskill first, and a trial was accordingly had, resulting in a verdict against him assessing the punishment at one year in the penitentiary.
The defendant then moved the court in arrest of judgment because of the disqualification of the special judge, the Hon. Eugene Lankford, who tried the case, in this, that the trial was heard during his term as state senator. The motion in arrest being overruled, defendant filed his motion on thirty-one several grounds, to set aside the verdict and for a new trial, which being overruled defendant filed his bill of exceptions and appealed.
In brief of counsel the discussion is narrowed down to only a few of the errors complained of in the motion for new trial, and the second of these is as to the allegation of the existence of the lien and the want of evidence in relation thereto. In a case like this, the allegation of the existence of the debt at the time the offense is alleged to have been committed is a material allegation. It is material because, without the existence of the debt, there can be no lien, and the existence of the lien on the property removed, when taken in connection with the act of removal, is the vei’y gravamen of the charge against the defendant. State v. Gustafson, 50 Ia. 194; Satchell v. State, 1 Texas App. 438. It goes without saying that the prosecution must sustain by evidence every material allegation in the indictment. The indictment in this case contains the allegations referred to in both counts. The existence of the lien in a mortgage is wholly dependent upon the existence of the debt it is intended to secure, for such, in express terms, is the condition upon which the mortgage is given. In this case there is no proof of the existence of the debt at the time the offense is alleged to have been committed. There is, consequently, no proof that the lien existed at that time. The charge, therefore, that the defendant had removed property upon which the beneficiaries in the mortgage had a lien at the time, or had aided and abetted others in such removal, knowing of the existence of the lien thereon, for the purpose of defeating the beneficiaries in the collection of their debt, is not sustained by the evidence in the case, and for that reason the judgment must be reversed.
As some of the objections will not arise on a new trial, and others involve, more or less, a discussion of the weight of the evidence, we deem it unnecessary to say more, trusting to the trial court to avoid all real errors-
Reversed and remanded for a new trial. | [
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Wood, J.,
(after stating the facts.) The doctrine of subrogation has no application here. The staves involved in the replevin suit had been purchased by Blanks from the French Oak Stave Co. He had taken possession of same, through his employees, the defendants in that suit. It was Blank’s tille and right to possession that was determined in that suit, for, confessedly, the defendants had no title and possession of their own. Upon the execution of the bond in replevin, Blanks retained the possession of the staves, and converted them to his own use, making it impossible for, any of the defendants in the suit in replevin to satisfy the judgment for a return of the staves. By so doing he chose rather to pay off the Newton judgment than to return the staves. But his plea was that it was necessary for him to do this in order to protect his interest in the staves and the interest of his immediate vendor, the French Oak Stave Co. Very well, then, if he has any rights of subrogation at all, it must be the right of the French Oak Stave Co. against Matthews. But the French Oak Stave Co. was not a party to the suit in replevin. Its rights against Matthews for a failure of title in the staves was not and could not have been determined in that suit. Now, the proof in this case tends strongly to show that' at the time the judgment in replevin was rendered, and at the time Blanks acquired his interest in same, the French Oak Stave Co. was indebted to Matthews in a large sum for staves, including the staves in controversy in the replevin suit. So that, in any suit that may have been brought against him by his immediate vendee, the French Oak Stave Co., for a breach of his warranty of title to the staves replevied by Newton, he might have shown that the French Oak Co. was indebted to him in an equal or greater amount than any sum that might have been claimed by the French Oak Stave Co. against him for the failure of title to these particular staves. The principle announced in Boyd v. Whitfield, 19 Ark. 447, that a purchaser who loses a chattel by the interposition of one who has a paramount title must look for redress to his immediate vendor, applies here. Blanks acquired only the rights of the French Oak Stave Co. in the staves. He had no right by this proceeding to shut off any defenses which Matthews had against his immediate vendee, to whom alone he was responsible for a breach of warranty.
This ends the ease, and renders it unnecessary to discuss other interesting questions raised by counsel.
Reversed and remanded, with directions to dissolve the injunction, and to dismiss the complaint for want of equity. | [
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Humphreys, J.
W. E. Swink entered into a contract with the Portia School District, on the 28th day of August, 1914, to erect a two-story brick school building, in accordance with plans and specifications, for the consideration of $6,675.00.
Article 5 of the contract is as follows: “Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action the owner shall also be at liberty to terminate the employment of the contractor for said work and to enter upon the premises and take possession for the purpose of completing the work included under this contract, of all materials, tools, and' appliances thereon, and to employ any other person or persons to finish the work, and to provide materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expenses incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor, but if such expenses shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for furnishing the work, and any damages incurred through such default shall be audited and certified by the architect, whose certificate thereto shall be conclusive upon the parties.”
Article 6 of the contract is as follows: “The contractor shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit:
“All work to be completed on or before tbe 20th day of January, 1915. In case of failure of contractors to complete building within the time above mentioned he agrees to forfeit the sum of $10 per day as liquidated damages.”
W. E. Swink had contracts elsewhere and could only be present a part of the time during the construction of the building. He appointed a foreman and arranged with the secretary of the school board to pay his freight, material and labor bills, when O. K’d by himself or his foreman, out of the advances that might be due him from time to time, according to the architect’s estimate. He also executed a bond to the Portia School District with the United States Fidelity & Guaranty Company of Baltimore, Md., as his surety. His bond was filed with the circuit clerk, as required by law. It was the intention of the parties to give a bond required by chapter 101, subdivision 2, of Kirby’s Digest of the Statutes of Arkansas. On January 20, 1915, the secretary of said school board notified W. E. Swink in writing that the building was not completed and ready to be accepted. The work progressed on the building until Fehuary 12, 1915, at which time W. E. Swink sublet the completion of the building to J.H. Snelling, for the sum of $250, by and with the consent of the school board. The work to be done by the sub-contractor was to be to the satisfaction of Clyde A. Ferrell, architect on the building. The building not having been completed by the sub-contractor, on April 12, 1915, the school board, through its secretary, on that day notified W. E. Swink that he had often violated article 5 of the original contract and that under the advice of the architect, the school board intended to take charge and complete the building, and according to said notice did take charge of said building on the 19th day of April, following, and completed it at an expense of $299.36. After completing the building, the school board sold the balance of the material on hand for $121.94.
East Arkansas Lumber Company furnished materials for the construction of this building, upon which there was a balance due of $2,243.34 when.the building was completed. Pfeifer Stone Company furnished materials used in the construction of said building, upon which there was still due $123 when the building was completed.
W. E. Swink was indebted to Ruth Less in the sum of $875, for which amount she had obtained a judgment in the circuit court for the Eastern District of Lawrence county, Arkansas. Under the terms of the contract, the school board withheld fifteen per cent, of the contract price, or the sum of $1,016.25, and applied $299.36 of said amount to labor and materials in completing the building, and now has $716.89 of the contract price in hand and claims the right under the contract to appropriate it as liquidated damages on account of the failure of the contractor to complete the contract on January 20, 1915.
On the 28th day of April, 1915, Mrs. Ruth Less brought a suit in the chancery court for the Eastern District of Lawrence county, Arkansas, setting up her judgment as the basis of her action, alleging that on account'of the insolvencyof Swink, she had been unable to collect same; also alleging that the fifteen per cent, of the total contract price was wrongfully withheld by the school district, same being the property of W. E'. Swink. She prayed that equitable garnishment be directed and the fund be impounded and applied to the payment of her judgment.
On November 25th, following, the East Arkansas Lumber Company and the Pfeifer Stone Company brought suit against W. E. Swink, United States Fidelity & Guaranty Co. of Baltimore, Md., school district of Portia, and J. E. McCall, E. B. Ivie, Whit Matthews, T. W. Petty, W. I. Moore and James Hatfield, directors of Portia school district, alleging as a basis for their action the amounts due for material's furnished in the construction of said school building; also that the fifteen per cent, of the total contract price withheld by the school board was without right or authority and that it was an amount justly due from the school board to Swink; that Swink was insolvent; and asked that the amount be applied to the payment of their claims. T¡hey also alleged that Swink had executed a bond in compliance with chapter 101, subdivision 2 of Kirby’s Digest of the Statutes of Arkansas with the United States Fidelity & Guaranty Company as bondsman, but that by mutual mistake, the Portia school district wa^ named as obligee in the bond instead of the State of Arkansas, and prayed a reformation of the bond and for judgment against the bondsman, United States Fidelity & Guaranty Company, for their claims.
The Portia school district answered the complaint of Mrs. Less and denied that it was indebted to W. E. Swink in any sum growing out of the contract to erect a school building; also answered the complaint of the East Arkansas Lumber Co. and Pfeifer Stone Co., admitting the execution of the contract with W. E. Swink to erect a school building for the amount alleged, but denied it owed W. E. Swink any balance under the terms of the contract; admitted that Swink executed the bond to it for the faithful performance of the contract, but denied it was executed in accordance with law; denied that Swink owed the East Arkansas Lumber Company $2,243.34 or the Pfeifer Stone Co. $123.00 for materials used in erecting the school building; and denied the insolvency of Swink.
W. E. Swink answered the complaint of the East Arkansas Lumber Company and Pfeifer Stone Company, denying any personal liability on account of materials furnished, stating, that if any sum was due them for materials used in the erection of the school building the school board owed it. He admitted making the contract for the erection of the building and the execution of a bond for the faithful performance thereof, but alleged he was released from the contract and that the Portia school district had declined to accept the bond he offered it.
The United States Fidelity & Guaranty Company answered that under the terms of the bond it was released.
These cases were consolidated and tried as one case by the chancellor, which resulted in the dismissal of the complaints of Pfeifer Stone Company and Ruth Less for the want of equity, and the dismissal of the complaint of the East Arkansas Lumber Company against all appellees except the Portia school district, and as against it a decree was rendered in favor. of East Arkansas Lumber Company for $121.94, on account of materials sold after the building was completed. The cause is here on appeal.
(1) Counsel for Ruth Less insist that articles 5 and 6 of the contract provide alternative remedies for damages in the event of failure to complete the building in accordance with the terms of said contract, and that the election of the remedy provided in article 5 estopped the Portia school district from asserting the remedy provided in article 6. Their construction is that the remedy provided in article 6 could be insisted upon in the event that the contractor personally finished the building, and not otherwise, and the contractor having been discharged, and the contract completed by the Portia school district, no right remained in said district to enforce its claim for liquidated damages on account of delay in the completion of the building. We cannot agree with learned counsel in this construction of the provisions in question. We see no conflict whatever between the two sections. Article 5 permits the school district to take charge of said building and complete it at the expense of the contractor in ease he should refuse and neglect to supply a sufficiency of properly skilled workmen, or materials of the proper quality, or failed in any respect to prosecute the work with promptness and diligence, or failed in the performance of any of the agreements contained in the contract. Artiqle 5 clearly refers to any breach of the contract not otherwise specifically provided for in the contract. Article 6 provides that the work shall be completed by the 20th day of January, 1915, and in case the contractor fails so to complete the building by that time, then that he will pay the sum of $10 per day as liquidated damages for the time he is delinquent. Articles 5 and 6 of the contract provide for separate and distinct remedies for different breaches, and not the same breach. We have examined the folio-wing cases cited by appellee in support of this construction of' like provisions in contracts and find them in accord with our views: Watson et al. v. DeWitt County, 46 S. W. 1061; Texas & St. L. Ry. Co. v. Rust, 19 Fed. 239; Collier v. Betterton, 29 S. W. 467; Fruin-Bambrick Const. Co. v. Ft. Smith & W. R. Co., 140 Fed. 465.
(2) The paramount issue presented in this ease is whether article 6 of the contract is for a penalty or liquidated damages. This court has been frequently called upon to construe sections of this character in contracts, and the general rule deduced from all the eases is, that if at the time of making the contract it would be difficult to anticipate and definitely arrive at the amount of actual damages that might result from a failure to complete the building within the time specified^ and if the amount fixed in the contract is not greatly out of proportion to the amount of damages that might be sustained, and if inferable, from the situation of the parties at the time of making said contract, and the language used, that they intended to agree upon a definite or fixed amount for damages; then, the provision will be construed as an agreement for liquidated damages and not for a penalty. Lincoln v. Little Rock Granite Co., 56 Ark. 384; Nilson v. Jonesboro, 57 Ark. 168; Young v. Gaut, 69 Ark. 114; Blackwood v. Liebke, 87 Ark. 545; Kimbro v. Wells, 112 Ark. 126; Nevada County Bank v. Sullivan, 122 Ark. 235; Montague v. Robinson, 122 Ark. 163; Pine Bluff Hotel Co. v. Monk & Ritchie, 122 Ark. 308.
In the ease of Pine Bluff Hotel Co. v. Monk & Ritchie, supra, this court recently said: “The courts are more and more disposed to follow the obvious intention of the parties as expressed in the contract, by upholding a stipulation of this sort as being one for liquidated damages unless it is clear that it was intended as a penalty in disguise.” The facts in the instant case are to the effect that this school building was being constructed on the same block of land upon which the old school building was situated; that the school building was being built for school purposes and that there was no intention whatever to rent it. In fact, there is nothing in the record from which it might be inferred that it. could be rented for any ptirpose, and so it is apparent that the rental value could not be taken as a criterion for measuring damages. The contract itself provides that the amount of $10 a day shall be paid the school board by the contractor as liquidated damages in case of his failure to complete said building upon said date.
In applying the test laid down in the cases cited above to the facts in this case, it can be stated that the actual damages the school district might have sustained would have been hard to anticipate and definitely prove; the situation of the parties at the time, together with the language used in the contract, indicates that the intention of the parties was to provide for liquidated damages and not a penalty; the amount fixed is not greatly out of proportion to the damages that might have been sustained.
Learned counsel for East Arkansas Lumber Company and Pfeifer Stone Company not only joined in the contentions made by counsel for Ruth Less but further contend that their clients are entitled to recover on the bond. The bond is not abstracted by them nor by counsel for Ruth Less. We are precluded by a familiar rule of this court from construing the bond. The answer of the United States Fidelity & Guaranty Co. stated that it was released on the bond because no notice was given it of the failure of the contractor to complete the building on January 20, 1915, as provided by the terms of the bond. We explored the record far enough to ascertain whether the bond required that notice be given it within a certain time of the failure of the contractor to finish the building by January 20, 1915, and found that it did. We presume the failure to abstract the bond is due to the fact that the bond on its face verifies the defefise pleaded by the bonding company.
. The decree of the chancellor is in all things affirmed. | [
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Smith, J.
Wallace Townsend, as trustee of the Little Rock Stave Company, a bankrupt, brought suit in the Pulaski chancery court against appellants, as stockhold- - ers of said company, to recover a ten per cent, dividend which was paid on the capital stock of said company on the 16th day of April, 1912, alleging that, on the 12th day of April, 1912, when said dividend was paid, said corporation was insolvent, and that “the payment of this dividend amounted to the withdrawing and refunding to the stockholders a part of the capital stock of said corporation.”
Appellants answered, admitting payment of the dividend, but denying the corporation was insolvent at the time the dividend was paid, and denying that the payment of this dividend amounted to the withdrawing and refunding to the stockholders part of the capital stock.
The State National Bank brought suit against the directors of the Little Bock Stave Company, and alleged that on April 16, 1912, they had declared a dividend of ten per cent, on the capital stock of said company, wMch was paid, and that said corporation was then insolvent, and that said directors knew said corporation to be insolvent, and that at that time said corporation was indebted to the State National Bank in the sum of $8,828.78. Judgment was prayed against said directors for said sum with interest.
Appellants answered, admitting payment of the divh dend, also the indebtedness of appellee, but denied that said corporation was insolvent on the day alleged, and further denied, if it was insolvent, that they knew such to be the fact.
Appellants also pleaded the statute of limitations.
The two cases were submitted upon the same tran’script of evidence by agreement of counsel. In the first ease the court found that the defendants there named as stockholders of the stave company received payment of a dividend of ten per cent., declared April 16, 1912, on the face value of their stock and that the payment of said dividend amounted to withdrawing and refunding to the stockholders a part of the capital stock of said corporation, and rendered judgment against each stockholder for the amount so withdrawn. In the second case the court found that the directors of the stave company declared, and paid, on the face value of the capital stock cf the stave company, a dividend of ten per cent., and that, at the time said dividend was declared and paid, the company was insolvent, and that the insolvency of the company was known to its directors. There was a finding of the indebtedness due by the company and a judgment for the amount thereof against the directors of the company.
The first of these suits was brought under the authority of section 861 of Kirby’s Digest, which reads as follows:
“Sec. 861. If the capital stock of any such corporation shall be withdrawn and refunded to the stockholders before the payment of all the debts of the corporation for which such stock would'have been liable, the stockholders of such corporation shall be liable to any creditor of such corporation, in an action founded on this statute, to the amount of the sum refunded to them respectively, as aforesaid; but if any stockholder shall be compelled, by any such action, to pay the debts of any creditor, or any part thereof, he shall have the right, by bill in equity, to call upon all the stockholders to whom any part of said stock has been refunded to contribute their proportional part of the sum paid by him as aforesaid.”
The second suit was based upon section 862 of Kirby’s Digest, which is as follows:
“Sec. 862. If the directors of any such corporation shall declare and pay a dividend when the corporation is insolvent, or any dividend the payment of which would render it insolvent, knowing such corporation to be insolvent, or that such dividend would render it so, the directors assenting thereto shall be jointly and severally liable, in an action founded on this statute, for all debts due from such corporation at the time of such dividend.”
The sections of Kirby’s Digest set out above authorize the rendition of the decrees herein appealed from, provided the evidence supports the finding made by the court below, and we have only, therefore, to consider the sufficiency of the evidence for that purpose.
It was shown on behalf of appellants that, at the annual meeting of the stockholders of the stave company held on April 16, 1912, a report of the affairs oi the company was submitted to the stockholders, which report was signed by Penzel, as president, by Sadler, as vice-president and manager, and by McNair, as secretary and treasurer. This report was devoted chiefly to an explanation of the failure to earn money during the year’s business covered by the report. A loss of $1,500 was reported as a result of warm and rainy weather, causing a mould which had reduced the grade of staves owned by the company. It was further recited that the managers of the company had been disappointed in their expectations of shipping their staves in boats, but that on account of the low stage of the river, upon the banks of which the staves had been piled, they had been compelled to haul the staves to the railroad and ship by rail, and that this delay resulted in many staves becoming sun-dried and checked, to the extent that a loss of $1,200 was entailed on that account. It was also recited that it had become necessary to replace steam boxes which had been in use for a period of five years, at an expense of $600; and it was stated that these expenses and the unusual and unexpected losses would, of themselves, have repre-, sented a fair profit on the year’s business. It was also stated in this report that the demand for staves was brisk, and that the price had advanced, but that the company’s timber and expense in the woods had not increased, and a prosperous year’s business was predicted.
The secretary of the company submitted at the stockholders’ meeting a statement, under date of April 1, 1912, showing in detail the assets and liabilities of the company, and, according to this statement, there was a balance in favor of the assets of the company of $11,-039.98. This statement, however, did not include the capital stock of the company, amounting to $16,500, which was fully paid up. The directors testified that they had given attention to the affairs of the company, and held regular monthly meetings for that purpose, and that they believed the company to be solvent at the time the dividend was declared. They stated that the business of the stave company had been uniformly prosperous until that company acquired and took over the business of the Little Eoek Hoop Company, which had proved unprofitable and brought upon the stave company its financial troubles, and that they had, themselves, put into the business of the company the sum of $2,500, thinking and believing that by so doing the affairs of that company would be restored to a healthful condition.
It was shown, however, that, notwithstanding the capital stock of the company, as originally subscribed, was $16,500, the stock had been bought up by the present stockholders at fifty cents on the dollar. That the debts of the stave company, with the interest thereon, amounted to $10,729.47, and that there was being carried cn the books of the company accounts, aggregating nearly eight -thousand dollars, which were worthless, and that these accounts were so carried for two years after they were known to be worthless. The books of the company were audited by a Mr. Orto, an expert accountant, under the direction of-the court, and he testified that the books of the company showed a loss of $4,469.92 on the business for the year 1911; and yet a dividend of ten per cent, on the full amount of the capital stock was declared and paid for that year.
The report of the managing officers set out above explained losses of $3,300.00 and Orto testified that the books of the company showed an additional operating loss for that year of $2,605.75, which was increased by $1,650.00 upon the dividend for that amount being declared. It was also shown that this annual report to the stockholders carried certain assets, consisting chiefly of land and timber, at a valuation which was excessive by more than $1,500.00. It also appears that certain machinery, which was taken into the books at $1,830.00 on April 1,1910, was, on April 1,1912, after two years’ use, carried ,at $2,075.00. Certain sheds were carried on the books originally at a, valuation of $1,500, but, in this statement of April 1, 1912, were carried as worth $2,-001.40. It was also shown that these sheds had' not been enlarged or repaired, and that they stood on the ground held by the company under a lease which required the company to surrender the premises on January;!, 1915, and that after the plant closed down the sheds were blown down because of their dilapidated condition.
The figures compiled by the accountant make it certain that the company was insolvent to the extent of several thousand dollars on April 1, 1912, and to., a still larger amount if deductions .for depreciation were made.
The .only question in the case presenting any difficulty is, whether the directors knew the company was insolvent at the time they ordered the dividend paid. These directors held monthly meetings, and allowed themselves a salary, of $25.00 per month each. They admitted that they knew these statements contained old accounts, of doubtful value, which had been carried on the books of the company after they were long past due, and upon which nothing had been realized. This $2,500 which the directors claimed tp have put into the business, and which they say evidenced their faith in its solvency, was shown to have been a loan which they made to the company on September 15,1910, for the purpose of purchasing materia] and paying operating expenses. This loan was made for ninety days, but the company was unable to pay it upon its maturity. At the annual meeting in April, or thereafter, these directors were all present, when a motion was adopted authorizing the charging off of a loss of $4,469.92, as shown by the company’s annual report, and at this meeting a dividend of ten per cent, of the full face value of the stock was declared. In March, 1912, the directors of the company applied to appellee State National Bank for an increased loan, which the president of the bank testified was made upon the representation that the loan was desired to extend the operations of the company; but, immediately upon receiving the money, the directors repaid themselves the loan they had made to the company.
Such was the condition of the affairs of the stave company when the annual meeting of the stockholders of that company was held in April, 19l2. The report, to the stockholders then made, if given the fullest faith and credit, did not pretend that the company had earned a dollar during the year. In fact, it was chiefly devoted to an explanation of an admitted loss, during the year, of $3,300.00; yet the directors declared a dividend of ten per cent, upon the full face value of the stock; and it is fairly inferable that it was paid out of the proceeds of the loan from the bank made to the company less than a month before that time. '
The hopeless condition of the affairs of this company, as shown by the report of the accountant, makes it certain, as we have said, that this company was insolvent when this dividend was declared. And we think the facts recited support the’ chancellor’s finding that the directors were aware of that fact when they ordered the dividend paid. The decree against both the stockholders and directors is affirmed. | [
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Kirby, J.,
(after stating the facts). The right of sur-vivorship where the real property is held by the entirety has not been destroyed by our statute (Crawford & Moses ’ Digest, § 6232), and it has also been held that the character of such estate by the entirety is not changed by a divorce of the parties. Raulston v. Hall, 66 Ark. 305, 50 S. W. 690; 74 Am. St. Rep. 97; Davies v. Johnson, 124 Ark. 390, 187 S. W. 323; Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463; and Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. (2d) 21.
It is doubtless true, as appellant insists, that this holding is the minority rule, a great majority of the cases holding that the effect of a divorce of the parties is to sever an estate by the entirety and render the parties tenants in common, bnt onr holding has been consistently that a divorce has no such effect, our last case being Heinrich v. Heinrich, supra. As the court could have granted no greater relief, we do not consider it necessary to change our ruling here.
This being true, we do not find it necessary, in view of this holding, there being no cross-appeal, to determine what effect should have been given to the alleged agreement of a division of the property claimed to have been made by appellant and denied by appellee, since both admit that there was no separation of the parties in contemplation at the time of its being made, if it was made.
We find no error in the record, and the decree is accordingly affirmed.
Mehaffy, J., concurs. | [
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Smith, J.
This is a consolidated suit, brought by two plaintiffs, who alleged that they were each members of a mercantile firm operating under the name of the Star Clothing Company, to require an accounting of the earnings of the partnership, and we now have before us the third appeal which has been prosecuted to this icourt in that suit.
The first appeal was from a judgment of the circuit court sustaining a demurrer to the complaint, and the opinion which sets out the allegations of the complaint recites the issues in the case. Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826. We there held that a cause of action had been stated, and the question involved in 'this appeal, like that on the second appeal (Wright v. Lake, 183 Ark. 954, 39 S. W. (2d) 712), is whether the plaintiffs proved their alleged cause of action. There was a verdict and judgment in their favor on the last trial of this cause, from which is this appeal.
For the reversal of this judgment it is first insisted that a verdict should have been directed in favor of appellant, for the reason that the suit was not commenced within three years after the cause of action accrued. This was the theory upon which the court below sustained the demurrer to the complaint, but we held on the first appeal, supra, that, where there had been a fraudulent concealment of a cause of action, the statute of limitations did not begin to run until the fraud was discovered. ‘ This question of fact was submitted at the trial from which the present appeal comes upon conflicting testimony, and is concluded by the verdict of the jury.
Appellant kept the books of the partnership, and ap-pellees were salesmen, and it was shown that settlements were had at the end of each year, and a final settlement was had when appellees severed their connection with the partnership, and it is insisted that these settlements were binding on all parties. So they were in the absence of fraud or mistake, but the question in the case is the one of fact, whether there was a mistake in the settlements and a fraudulent concealment thereof; and, as we have said, this issue was submitted to and was passed upon by the jury.
It is urged for the reversal of the judgment that the court erred in permitting appellee Wright to testify con cerning a proposed compromise agreement between himself and appellant. It is, of course, incompetent to prove an offer of settlement made as a compromise, but the testimony in question was not offered or admitted for that purpose. The court, in admitting tbe testimony, stated that it could be considered by the jury only as a circumstance relating to the question of the concealment of the cause of action. It will be borne in mind that the cause of action was apparently barred by the statute of limitation, and the plaintiff was required to prove, and was endeavoring to prove, that the cause of action had been fraudulently concealed, and that therefore the bar of the statute had not fallen. This testimony was to the following effect: The suit embraced the partnership earnings for the years 1922,1923 and 1924, and Wright testified that he would not have known that the settlements were not correct, had he not received notice from the United States Revenue Department advising him that he owed the Government additional income taxes for the year 1922 on his part of the earnings of the partnership. This notice related only to the earnings for the year 1922, and Wright did not know, when he discussed the settlement with appellant, that a mistake had been made for the subsequent years of 1923 and 1924. There appears to have been no question as to the amount of the mistake for the year 1922, and appellant proposed to pay that amount, but he demanded the execution of a receipt in full for all demands against the partnership. Wright insisted that there be added to the receipt the words, “for the year 1922,” and when appellant declined to permit this áddition the attempt to settle the 1922 account failed. We think this testimony has some probative value tending to show, not only that there was a mistake in the accounts for the subsequent years, but also to show a concealment of, or an attempt to conceal, that fact. The testimony was therefore admissible for the purpose for which it was admitted.
The cause appears to have been submitted to the jury under correct instructions, although certain of them were objected to on the ground that there was no evidence upon which to base them. We think there was, and the instructions given fully submitted appellant’s theory of the case.
The testimony tended to support the allegations of the complaint, which were recited in our first opinion in this case, and we there said that a cause of action was alleged.
The judgment must therefore be affirmed, and it is so ordered. | [
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Mehappy, J.
The appellee, Mike Drotar, brought suit in tbe Prairie Circuit Court against Metbo Tucek, Jan Kajs and Joseph Stipsky. He alleged that be leased and rented to tbe defendants, for tbe year 1929, certain lands, which be described, for tbe sum of $300; that tbe appellants agreed to pay tbe sum of $300 on January 1, 1930. He alleged that $45 bad been paid on tbe contract, and that there was a balance due of $255 and interest. Tbe following is tbe contract sued on:
“'Be it remembered that on this date, February 19, 1929, it is agreed between Mike Drotar and Metbo Tucek, tbe first party agrees to rent all tbe land be owns in section 6 and section 1 in township one (1) south, range 6 west, for tbe sum of $300 for tbe year 1929.
“The second party agrees to pay the first party the sum of $300 on January 1,1930.
“(Signed) Mike Drotar.
“(Signed) Metho Tucek.
“ Jan Kajs
“Joseph Stipsky.”
A demurrer was filed to the complaint, which stated that the complaint did not state facts sufficient to constitute a cause of action.
The court overruled the demurrer, and appellants, Jan Kajs and Joseph Stipsky, filed their separate answer, in which they denied that they entered into any agreement with Drotar, and denied that any contract was executed under which they obligated themselves to pay $300 or any other sum. They also denied that they had paid anything on the account.
Metho Tucek did not make any defense.
There was a .jury trial and a verdict and judgment for $255, with no interest to date of judgment. Motion for a new trial was filed, overruled, and exceptions saved, and the case is here on appeal.
The appellee testified that on February 19 he entered-into a contract in writing with the defendants, Tucek, Stipsky and Kajs, agreeing to rent all of his land in sections 1 and 6 for the year 1929 for $300; that he entered into a written contract; that the signatures at the bottom of the contract were the signatures of defendants.
There were 238 acres in the tract of land leased; that Tucek came over to appellee’s place with Kajs before the contract was made, and Tucek wanted to rent the land. He did not know Tucek before this visit, and Tucek was accompanied by Kajs; that he had received $45 of the rent, and the balance due was $255. Kajs and Stipsky have never paid anything. He received no note evidencing the rent. He received three notes for the sale of some farm machinery sold to Tucek, and these notes were signed as sureties or indorsers by Kajs and Stipsky.
He was not present when the contract was signed by Kajs and Stipsky. He wonld not have let Tucek have the farm unless they would stand for it. They knew they were to pay. The contract was written by Genlisky and his daughter at the request of witness. Witness told them what to put in the contract. He does not know what Tucek said to Kajs and Stipsky to get them to sign the contract. He told Kajs if he would sign the contract he would give Tucek the place. Kajs agreed to stand good for it, and Stipsky also agreed to this.
The contract was then introduced in evidence. Kajs and Stipsky gave witness the contract and signed their names to it, and he knew it was all right. Witness had the contract made up and Tucek took it, got it signed, and brought it back. He told Ka.js that he would not let Tucek have the land unless he stood for it.
Jan Kajs testified that he signed three notes to help Tucek buy some machinery from Drotar, but these notes only covered the purchase price of the machinery; that he signed the contract only as a witness; did not sign it as security; he never promised Drotar that he would pay the rent.
Drotar asked him for the rent after the contract was signed. • He told Drotar before the contract was signed that he would not stand good for the rent. He took Tucek over to see Drotar, and introduced them, but the land was not rented at that time. Drotar did not say anything to him about standing good for the rent. He said nothing about either Kajs or Stipsky signing the contract to secure the payment of the rent. He did not tell Drotar that he would guarantee the payment of the rent, and he only signed it as a witness.
Joseph Stipsky testified substantially the same as Kajs. Both of them testified that they did not sign the contract with the intention of being bound by it, but signed it as witnesses.
Appellant urges a reversal, first, on the ground that the verdict is contrary to the evidence. The contract itself is ambiguous. The parties to this suit are all Slo- yaks. The appellee speaks English, and testified, bnt it is apparent from his testimony, and the language used by him, that he understands very little about the English language. The appellants do not speak English at all, and their testimony was given through an interpreter.
Tucek desired to rent the land from appellee. He was a stranger, and appellee testified very positively that he would not rent him the land without appellants signing the contract, and the proof is undisputed that Kajs went to see the appellee with Tucek.
The contract was signed by appellants on the left-hand side of the paper. There is nothing on it to show that they signed as witnesses, and it made no difference where appellants signed the contract if it was their intention to sign the contract, not as witnesses, but for the purpose of being bound by the contract.
“It is not necessary that the signature of a party to a contract should appear at the end thereof. If his name is written by him in any part of the contract, or at the top, or at the right or left hand, with the intention to sign, or for the purpose of authenticating the instrument it is sufficient to bind him, unless subscription is required by law.” 13 C. J. 306; Gray v. Brewer, 177 Ark. 486, 9 S. W. (2d) 81.
The question here is whether they signed the instrument as witnesses, or signed it with the intention of being bound, and, the contract itself being ambiguous, this was a question of fact to be determined by the jury.
None of the parties, as we have said, knew enough English to know how to write a contract, or to understand it when it was written in English.
The court instructed the jury as follows: Instruction No. 1. “The plaintiff brings this suit against these defendants, Kajs and Stipsky, upon what he contends is a contract entered into between himself and one Metho Tucek. Tucek admits his liability upon the contract, but the plaintiff contends that these two other defendants signed this instrument of writing with the understanding that they were to guarantee the payment under the con tract, whatever that amount is. Kajs and Stipsky deny this fact, hut admit that they, signed it, hut only signed it as witnesses, ‘and that they did not intend by their acts to make .themselves liable thereon, but merely signed it as a witness. That presents a question of fact for the jury to determine whether or not they obligated themselves upon the contract when they signed it, in order to get Tucek the place. If you believe they did that, then your verdict will be for the plaintiff, but, on the other hand, if you believe that they only signed the contract as a witness, then they would not be liable on the contract, and your verdict will be for the defendants, Kajs and Stipsky. If you find for the plaintiff, the form of your verdict should be, we, the jury, find for the plaintiff in the sum of $. If you find for the defendants, Kajs and Stipsky, the form of your verdict should be, we, the jury, find for the defendants. If nine of you gentlemen agree upon a verdict, the nine agreeing will sign their names thereto, but if all agree, you will only sign it by one of your body as foreman. Whatever your verdict is, return same into open court.”
Instruction No. 2. “The plaintiff must prove the material allegations set up in his complaint by a preponderance of the testimony. A preponderance of the testimony doesn’t necessarily mean the greater number of witnesses who might testify in the case, but it does mean upon whom the burden rests is required to offer competent testimony which outweighs, overbalances or preponderates in his favor.”
There is some conflict of authority as to the liability of one signing a contract in which he is not named, but, under the circumstances in this case, we think it was simply a question of the intention of the parties, and this was properly submitted to the jury, and its verdict will not be disturbed by this court.
It is next contended by the appellants that they were guarantors, and that it was void under the statute of frauds. We think the evidence is sufficient to justify the jury in finding that this was a contract signed by the ap pellants, and was binding on them. The jury might bave found that they signed it as witnesses, and that finding would have been sustained by substantial evidence. The question was purely one of fact, and the verdict of the jury is supported by substantial evidence.
Finding no error, the judgment is affirmed. | [
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Frauenthal, J.
This is an action seeking to enjoin the defendants from maintaining a nuisance arising from the alleged wrongful management of a livery stable owned and conducted by them. The complaint contains substantially the following allegations: The plaintiffs are four domestic corporations occupying places of business upon Main Street, in the city of Little Rock; three of them are engaged in the retail dry goods business, and the other in the banking business. The defendants own and conduct a livery, sale and feed stable in a building which is located at the-rear of the business houses occupied by plaintiffs, and separated therefrom by an alley twenty feet in width. In the conduct of their business, the plaintiffs employ a great many persons as clerks; a great many persons visit these stores for the purpose of shopping; and in the rear of the stores, and nearest to the defendant’s stable, are located their offices where other employees and officials transact part of the companies’ business. It is further alleged that the defendants “keep many horses, mules and other stock in their stable, also large quantities of hay, grain, and other highly inflammable material, and that said hay, grain and other inflammable material is stored in the rear end of their building bordering on said alley, and within about twenty feet of the rear end of the stores occupied by plaintiffs, and that by reason thereof plaintiffs’ danger from fires is vastly increased and made more hazardous. That an offensive odor and stench from the animals and the droppings pour into their respective places of business and permeate the same, to the great annoyance and discomfort of the members composing said corporations who work therein, as also the employees who la bor therein, and of the customers who come there for the purpose of buying goods and other wares, to such an extent as to render them uncomfortable, and at times unfit them for the proper discharge of their duties, and that said annoyance and discomfort is continuing and permanent, and has been continuous, and is greatly injurious to plaintiffs’ businesses, it causing an annoyance and discomfort to those desiring to purchase goods, and those waiting upon them as employees, and rendering said buildings unfitted for the purposes for which they are conducted by the plaintiffs.” It is also alleged that the plaintiffs have no adequate remedy at law.
The defendants filed a demurrer to the complaint based upon the grounds: (1) that there was a defect in the parties plaintiff; (2) that plaintiffs, who are corporate and artificial bodies, could not maintain an action seeking injunctive relief from the injuries claimed to arise from the alleged nuisance; (3) because plaintiffs showed no special injury sustained by them different from that sustained by the public generally by reason of the alleged nuisance; and (4) because the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, as it is stated in argument, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it failed to allege that the defendants were guilty of negligence in the manner in which they managed and conducted the livery stable. Plaintiffs refused to plead further, and thereupon the complaint was dismissed.
The action instituted by the plaintiffs is based upon their right to be protected in the use and enjoyment of their property, which, it is in effect alleged, is impaired and partially destroyed by the alleged nuisance maintained by the defendants upon adjoining property. The use and enjoyment of property is the chief element which gives to it value; and the deprivation or impairment of such use and enjoyment is in effect a destruction of the property itself. Every owner of property, whether in fee or for years, has the right to a remedy for the interference with or the deprivation of its use and enjoyment, either by the recovery of damages when that affords adequate relief, or by the restraining power of the court when damages are irreparable. The use and enjoyment of one’s property may be les sened or destroyed by injuries arising from a nuisance. Where the rights enjoyed by the citizens as a part of the public are affected by the nuisance, the authority of the State or municipality may be invoked by its representative officers, either to abate the nuisance or to punish those maintaining it. Where, however, the acts complained of constitute a private nuisance, the individual who sustains special injuries arising therefrom may obtain relief, either by the recovery of damages or by injunction, according to the degree of the injury. Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, whereby it works a special injury to another in the use and enjoyment of his property, will constitute a private nuisance. The same wrongful act and wrongful use of one’s property may at once constitute both a public and private nuisance. Where a special injury, differing from that sustained by the public generally, is'inflicted by such nuisance upon the individual, then the wrongful act complained of constitutes a private nuisance for which the individual is entitled to a remedy upon a suit brought in his own name. Every one has the right to the reasonable use and employment of his own property; but such use and employment of it is not reasonable if it deprives the adjoining owner of the lawful use and enjoyment of his property. If one uses and employs his own property in such an unwarrantable and unreasonable manner as to annoy, injure or endanger the comfort, repose, health or safety of another in the use of his property, then he creates a nuisance, for which the court will grant relief. A livery stable in a town or city is not necessarily a nuisance; or, as it is often expressed, it is not a nuisance per se. It may be, and ordinarily is, both harmless and useful. But if it is conducted or kept or used in an improper manner, if by the unwarrantable and unreasonable use thereof it destroys the comfort of the adjoining owner so as to palpably and sensibly diminish or destroy the lawful use and enjoyment of his property, then the livery stable becomes a nuisance. Durfey v. Thalheimer 85 Ark. 544; Dargan v. Maddill, 9 Ired. 244; Kirkham v. Handy, 11 Humph. (Tenn.) 406; Shiras v. Olinger, 50 Ia. 571; Keiser v. Lovitt, 85 Ind. 240; St. James Church v. Arrington, 36 Ala. 546; Phillips v. Denver, 19 Col. 179.
There are various trades and occupations which are useful and even necessary to the existence and growth of towns and cities, but which may be so conducted as to render the use and enjoyment of adjacent property uncomfortable and intolerable, by infecting the air with noisome smells or qualities injurious to health, or by disturbing noises, and thereby constitute a nuisance. Their necessity and usefulness will not justify an improper and unwarrantable use of them whereby another is deprived of the enjoyment of his property. This well recognized doctrine applies to livery stables. If by the prosecution of the business a nuisance is created, it is no defense to say that it is carried on and conducted in a careful and prudent manner. The injury arising from the maintenance of the nuisance is just the same, whether the nuisance is created by the business.itself or by the improper or negligent manner in which it is conducted. If the nuisance springs from the business itself, as from a slaughter house or from a glue factory, then it is a nuisance per se. If it flows from the improper, unreasonable or negligent manner in which the business is conducted, then it becomes a nuisance. But in either event the complaining party has a right to relief from its discomforting, injurious and baleful effects. As is said in 1 Wood on Nuisances, § 48. “The question of care is not an element in this class of wrongs; it is merely a question of results, and the fact that injurious results proceed from the business under such circumstances would have a tendency to show the business to be a nuisance per se, rather than to operate as an axcuse or defense, and the courts would feel compelled to say that under such circumstances the business is intolerable, except so far removed from residences and places of business as to be beyond the power of bestowing its ill results upon individuals or the public.”
In the case of Bohan v. Port Jervis Gas Light Co., (N. Y.) 9 L. R. A. 711, it is said: “The wants of mankind demand that property be put to many and various uses and employments, and one may have upon his property any kind of lawful business; and, so long as it is not a nuisance, and is not managed so as to become such, he is not responsible for any damage that his neighbor accidentally and unavoidably sustains. * * * But where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies.”
Negligence is not an essential element to establish a cause of action for damages growing out of a nuisance, or for restraining its maintenance.- If the damages necessarily result from acts committed by the defendants, or if they necessarily arise from and are incident to the business conducted by the defendants, the business constitutes a nuisance, and the complaining party is entitled to relief from the injuries arising therefrom, whether they result from negligence or not. The question which then arises is rather whether or not the resulting injuries or damages spring from the business conducted or the acts done, without regard to whether the buisness is negligently conducted or the acts are those of negligence. Joyce on Negligence, § 18.
These principles of law relating to nuisances are well settled and uniformly recognized by the courts. The difficult questions involved, and to be determined in each case, are whether or not the annoyance, discomfort and injury is sufficient in degree to constitute a nuisance, and, if so, whether or not an adequate relief can be obtained by an action for damages, and whether or not the damages are irreparable. It is only in cases where the damages are constantly recurring and irreparable that courts of equity will lend their aid in abating the nuisance or in restraining its maintenance. The right of the complaining party to relief necessarily depends upon the degree of the injury arising from the alleged nuisance, which is chiefly determined by the evidence. The injury and resultant damages flowing therefrom may be great or they may be slight; and the determination of the rights of the complaining party and his remedy must necessarily depend upon the varying circumstances of each case. It is well settled that the injury must not be fanciful or imaginary, nor such as to result in a trifling anoyance, inconvenience or discomfort which may affect those who possess too sensitive a nature or too fastidious a taste. The law is applied only to the normal man, the man of ordinary habits and ordinary sensibilities. The law only takes cognizance of sensible and substantia] discomforts and inconveniences. The necessities of the life and growth of towns and cities require the establishment and continuance of certain occupations, business enterprises and works, in the conduct of which some degree of annoyance and discomfort is necessarily incident. The jurisdiction of a court of equity to afford relief by interfering with a private nuisance, by way of injunction, is based upon the ground of preventing irreparable injury or the multiplicity of suits. The mere diminution in the value of property or of the business by the nuisance, without irreparable injury, will not furnish sufficient cause for equitable relief. The nuisance must be of a constantly recurring and permanent nature; and from such nuisance there must flow injuries causing substantial, tangible and material discomforts and inconvenience, which result in a loss of health, loss of trade, partial but substantial destruction of business or the ruin of property and the deprivation of its use and enjoyment to a material and substantial extent, before a court of equity will interfere by injunction to restrain the maintenance of or to abate the alleged evil. 2. Story’s Equitable Jurisprudence, 926; Joyce on Nuisances, § 427; Wood on Nuisances, § 778.
In determining whether or not a demurrer to a complaint should be sustained, every allegation made therein, together with every inference which is reasonably deducible therefrom, must be considered. Cox v. Smith, 93 Ark. 371. Viewing the allegations of the complaint in this manner, we are of the opinion that it states facts sufficient to constitute a cause of action.
It is contended by counsel for defendant that there is a defect in the parties plaintiff, but we do not think that this contention is well taken. The several plaintiffs own separate properties, and for the actual damages thereto arising from the injuries caused by the alleged nuisance they could not bring a joint suit, but would be compelled to institute separate actions for such damages. This is because their interest in such actions and the remedy therefor would be distinct and separate. But where there is a community of interest by the several parties plaintiff in the relief sought, and where the very injury caused by the nuisance is common to all, then the several parties may be joined as parties plaintiff in the prosecution of the action of injunction founded upon such wrong. Joyce on Nuisances, § 446; 2 Wood on Nuisances 791; Brady v. Weeks, 3 Barb. (N. Y.) 157.
We are also of the opinion that a corporation may be entitled to the relief granted by a court of equity against the maintenance of a nuisance which renders physically uncomfortable and substantially diminishes the ordinary use, occupation and enjoyment of its property by its employees, agents and officers, whose presence and occupancy of its premises is necessary to the conduct of its affairs and business.
In the case of Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 318, Mr. Justice Field, in delivering the opinion of the court, says: “Private corporations are but associations of individuals united for some common purpose and permitted by the law to use a common name, and to change its members without a dissolution of the association. Whatever interferes with the comforatble use of their property, for the purpose of their formations, is as much the subject of complaint as though the members were united by some other than a corporate tie.” Joyce on Nuisances, § 442; Northern Pac. R. Co. v. Whalen, 149 U. S. 157; First Baptist Church v. Schenectady & Troy R. Co., 5 Barb. 79.
It follows that the court erred in its ruling in sustaining the demurrer to the complaint. The judgment will therefore be reversed, and this cause remanded with directions to overrule the demurrer, and for further proceedings. | [
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Sam Robinson, Associate Justice.
This is a contest of a will of Alice A. Love executed on June 27, 1953, and a proceeding to establish the validity of a will executed by her on May 30, 1953. Appellants, Nellie Orr and other collateral heirs of Dr. George M. Love and Alice Love, are the contestants of the June 27 will and the proponents of the May 30 will; Elaine Love and the Board of Regents of the University of Wisconsin are the proponents of the June 27 will. Alice Love wrote five purported wills. The first was written in 1949, the second on May 30,1953, the third on June 1,1953, the fourth on June 24, 1953, and the fifth and last was executed on June 27, 1953. The last alleged will of June 27 was sustained by the Probate Court. In contesting this will, appellants claim that it was the result of undue influence and fraud, and ask that the May 30 will be probated instead.
George M. Love was a doctor and lived with his wife Alice in Rogers, Arkansas for many years. They had one child, George R. Love, who was also a doctor. In 1923, soon after the son’s graduation from medical school, he married and located in Oconomowoe, Wisconsin, a small city near Milwaukee. George M. Love had made a will years before his death leaving all of his estate, with the exception of $500.00 for his son, to his wife Alice. In 1949, acting on the advice of her son, George R. Love, Alice Love made a will leaving all of her property to her son, or to his estate in the event he predeceased her.
On May 26, 1953, the son, George R. Love, died leaving an estate valued at more than half a million dollars. Four days later, the father, George M. Love who lived in Rogers, died leaving an estate valued at about $125,000. The son, George R. Love, left a will setting up two trusts, one known as the Elaine Love Trust and the other known as the George R. Love Trust. His widow Elaine Love, the appellee herein, is the principal beneficiary. In addition to her rights under the Elaine Love Trust, she is to receive the income from the George R. Love Trust for life. After Elaine Love’s death, the income from the George R. Love Trust goes to her parents for their lifetime; the corpus of the George R. Love Trust then goes to the Board of Regents of the University of Wisconsin to be used to assist athletically minded students in obtaining an education. Elaine Love and Mr. Lynford Lardner, attorney for George R. Love who is now representing his widow, were named as trustees. Under the terms of the will, the trustees have almost unlimited powers; they may move the situs of the trust to any State or foreign country, and are not required to account to anyone for their actions. The George R. Love will setting up these two trusts is very long and involved and consists of over fourteen typewritten pages. For a thorough understanding of its terms considerable study is required.
Mr. Claud Williams, an attorney in Rogers, Arkansas, had represented Mrs. Alice Love for many years. His secretary, Mrs. Jeff a Scott, had looked after business matters for Alice Love and prepared her income tax statements for several years. Elaine Love knew of .the close professional relationship between Mr. Williams and Mrs. Alice Love. When George R. Love died on May 26,1953, Elaine thought it better to let Mr. Williams notify Alice of her son’s death; Elaine therefore had her attorney, Mr. Lardner, telephone Mr. Williams. Four days later on May 30, at about 3 o’clock in the morning, Alice Love’s husband, Dr. George M. Love, died; Elaine was promptly informed of his death. About 10 o’clock that same morning, Alice Love went with Jeff a Scott to Claud Williams’ office where she made a new will leaving the bulk of her estate to her two sisters and to the brother and sister of her late husband. She also left $500.00 to the Rogers Public Library, $500.00 to Cecil Miller, $100.00 to Elaine Love, as well as other bequests of $100.00 each to several nieces and nephews. After Mrs. Love signed this will, she left it in Mr. Williams’ office.
Elaine Love arrived at Joplin, Missouri by plane on May 31 and was met there by Cecil Miller, longtime friend of Dr. Love and his wife Alice. During the trip from Joplin to Rogers by automobile, Miller told Elaine about Alice Love having made a new will. Elaine was extremely displeased upon learning this. She did not go directly to the Love home in Rogers but stopped at a hotel, obtained a room and while there put in a long distance call to Mr. Lardner, her attorney in Milwaukee, to discuss with him the fact that Mrs. Love had made another will. She apparently discussed with Lardner the advisability of having Mrs. Alice Love execute still another will and also talked about obtaining a power of attorney from Alice. Following this conversation Elaine went to the Love home, and the next morning took Alice Love to the office of Mr. Williams where Alice obtained the will she had executed two days before. Although there is some confusion in the testimony as to just exactly what happened next, it appears that Alice Love took the will and put it in her lock box at the bank. Elaine then took Alice to Bentonville to the office of Mr. Vol Lindsey, an attorney of that city. There Alice made a new will leaving her entire estate to Elaine. This will was executed on June 1, only two days after Alice had executed the will drawn by Mr. Williams at her request. Mr.* Lindsey was not told about the May 30 will.
In the meantime, Elaine had again called Mr. Lardner and had instructed him to prepare a power of attor ney. Mr. Lardner drafted a general power of attorney and sent it to Elaine in Rogers. This document gave Elaine authority to do anything she might wish with any and all property belonging to Alice, and it was signed by Alice on June 3. On the same day, Alice also changed her bank account, consisting of about $12,000, from a personal account to a joint one with Elaine. On June 4, Elaine returned to Milwaukee. On the 10th day of June she again came to Rogers and returned to Milwaukee on the 13th. A few days later, Alice wrote to Elaine requesting that she return the power of attorney. In the meantime, Alice destroyed the June 1 will which she had executed in Bentonville leaving everything to Elaine, and changed her bank account back into her own name only. On June 24, Alice wrote what purports to be her fourth will, in which she made $1,000 bequests to each of her sisters and to the brother and sister of her late husband, and left Elaine corporate stock apparently valued at about $47,000. This June 24 will then provides: “If any of estate is left then it shall be used to promote my sons education proposition.” As a matter of fact, there would have been under the terms of this document a residuary estate valued at more than $50,-000 after the special bequests. Elaine says that on June 25 Alice called her and asked her to have Mr. Lardner prepare another will. Elaine did this and left Milwaukee on the 27th day of June, taking the new will with her to Rogers. On that same day, while Elaine was present, Alice signed the will. This was the fifth purported will of Alice Love. On June 29, while Elaine was still in Rogers, Alice’s personal bank account of about $12,000 was again made into a joint one with Elaine.
This will of June 27 left the entire estate of Alice Love to the George R. Love Trust. Since Elaine receives the income from this trust for life, she will benefit by approximately $48,000 under the terms of Alice Love’s June 27 will. Elaine was also named executrix to serve without bond.
After Alice signed the June 27 will, Elaine stayed in Rogers for about a week and then returned to Mil waukee. On September 12, Mrs. Alice Love’s health had become, such that it was necessary to move her to a hospital. Elaine returned to Rogers on September 22 and stayed at the Love home until October 10. Mrs. Alice Love died on October 16. The June 27 will was offered for probate and this action contesting it was filed.
We now mentioii some of the rules of law by which we must be guided in reaching a conclusion as to the validity of the will. In a leading case this court said: “The fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them in confidential relations with them at the time of its execution.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. The burden of proving undue influence is on the contestants. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d. 478; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d. 433; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264. But, when it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. Page on Wills, Yol. 2, p. 636. Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will. Ibid., p. 638. This court has said: “When a will is written, or proved to be written by a person benefiting by it, or by one standing in the relation of attorney or counsel, and who is also benefited by it, — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.” The court then quotes with approval from Breed v. Pratt, 18 Pick. R. 115, as follows: “It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid. ’ ’ McDaniel ad. v. Crosby et al, 19 Ark. 533. The presumption of undue influence is not one of law but is a presumption of fact and subject to rebuttal. Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A. L. R. 942. There is also a similar presumption where one who draws a Avill is named a trustee therein and is to receive large compensation for his services. Page on Wills, Vol. 2, p. 644; Zeigler v. Coffin, 219 Ala. 536. The cause is tried de novo here and the preponderance of the evidence rule prevails. Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d. 1019. The question of undue influence and mental capacity are so closely interwoven that they are considered together. Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d. 352. It is necessary to the validity of a Avill that the testator knoAv its contents. In Meek v. Bledsoe, 221 Ark. 395, 253 S. W. 2d. 369, this court quoted with approval from 68 C. J. S. 606: “It is indispensable to the validity of a will that the testator should know its contents at the time of its execution, knoAAdedge after the execution being insufficient. However, as elsewhere shown, knowledge will ordinarily be presumed from the execution of the instrument, although the presumption is only a prima facie one and may be rebutted. If it appears affirmatively that he did not read the will and that it was not read to him, it must be shoAvn that the contents were in some way known to him.”
We must bear in mind that Elaine is one of the principal beneficiaries named in Alice Love’s June 27 will, and that the will was prepared by this beneficiary’s laAvyer at her request and according to her instructions. Moreover, Mr. Lardner is one of the trustees named in the George R. Love Trust which is incorporated by reference in Alice Love’s June 27 will. In the event of Elaine Love’s death, Mr. Lardner would be the sole trustee. With the broad powers given to him as trustee, he could benefit considerably from the George R. Love Trust and hence from the June 27 mil of Alice Love. Since both Elaine and Mr. Lardner would benefit under the terms of the June 27 will, and since Lardner was acting on instruction from Elaine when he prepared the will, it is the proponents’ burden to prove not only that Alice Love had the mental capacity to execute a valid will but that she was free from undue influence and understood the terms of the will. The proponents of the will have not met this burden.
Elaine attempts to make a reasonable explanation of everything that was done and to show that the will was not made because of any undue influence on her part, and that there was no fraud in failing to fully inform Alice Love about the George R. Love Trust. Both sides offer expert and lay testimony as to the mental capacity of Alice Love. But this is a case where actions speak louder than words.. Undue influence may be inferred from facts and circumstances. Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. “Undue influence is generally exercised in secret, not openly, ... its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes. ” Hyatt v. Wroten, 184 Ark. 847, 43 S. W. 2d. 726. The undisputed facts and the reasonable inferences to be deduced from such facts inevitably lead to the conclusion that Alice Love was not acting according to her own free choice in executing wills at any time after Elaine’s arrival in Rogers on May 31, 1953. In the first place, on May 30 Alice Love had gone to her lawyer’s office and made a will. She had gone to a man she had known and trusted for many long years, the same man who had been selected by Elaine to notify Alice of her son’s death. This lawyer’s secretary had also been Alice’s longtime friend and business advisor. It is argued that Jeff a Scott, the secretary, wrongfully induced Alice to go to Mr. Williams ’ office and execute the May 30 will, wherein Jeff a was named executrix. But we are not convinced at all that Alice went to Mr. Williams’ office due to importunities on the part of Jeff a Scott. On May 27, the day after the son, George R. Love, died, a Mrs. Chandler was present in the Love home in Rogers and heard Alice say to Jeffa Scott: “Now, Jeffa, I want to get that will [the 1949 will] changed and I want to get it right.” And Jeffa replied: “Now, Mrs. Love, there’s plenty of time to do that. You don’t need to rush anything like that.” We are convinced that Alice went to Mr. Williams’ office because she wanted to dispose of the business of making a will as quickly as possible. By the recent death of her husband, she had acquired a large estate and the unexpected death of her only son had changed the situation considerably. In her May 30 will she did the natural thing, the thing that anyone would expect her to do; the large bulk of her estate was left to her two sisters and to the brother and sister of her late husband. The evidence is convincing that the May 30 will was the free and voluntary act of the testator.
It is argued that Alice Love had not been in contact with her two sisters for a long time and was hardly acquainted with the brother and sister of her husband; but she was certainly better acquainted with them than with the parents of Elaine to whom she left a contingent life estate under the terms of her June 27 will. Furthermore, the record indicates that the relationship between Alice and Elaine was not a close one. Alice lived in Rogers, Arkansas, and Elaine in Wisconsin. They had only seen each other on a few visits during their entire lives. There is no evidence of any correspondence written prior to June, 1953, that shows any affection whatever between them, and yet, the day after Elaine’s arrival in Rogers on May 31, she took Alice to an attorney’s office in Bentonville where Alice made a will leaving her entire estate to Elaine. Elaine tries to explain taking Alice to an out-of-town lawyer’s office by saying that she was mad at Mr. Williams, claiming that he had wrongfully prevailed on Alice to make a new will so soon after the death of her husband. The record does not justify a conclusion that Mr. Williams induced Alice to make a new will or any will at all. Actually, May 30 was a holiday, and Williams did not want to come to the office, only doing so after he was called twice. He charged only a nominal fee of $25.00 for drawing the will, and received no other benefits from it. The fact that Elaine took Alice to an out-of-town lawyer on June 1, and not to Mr. Williams, the lawyer who had been Alice Love’s legal advisor for many years and who had written wills for her on previous occasions, is in itself a suspicious circumstance; especially so in view of the fact that Elaine, upon her arrival in Joplin and being told by Cecil Miller about the May 30 will, called Mr. Lardner, her attorney in Milwaukee, with reference to the will and the advisability of obtaining a power of attorney from Alice.
We do not believe there is a shadow of a doubt but that Elaine called Mr. Lardner seeking advice with reference to avoiding in some manner the May 30 will. Elaine attempts to show that the June 1 will, in which Alice left to her the entire estate, was not due to any conniving on her part, and tries to explain that the June 1 will was only a stop-gap to serve until such time as another will could be prepared in which Alice would leave the bulk of her estate to the George R. Love Trust. It is explained that Mr. Lindsey, the lawyer who prepared the June 1 will, did not have sufficient information about the trust to make a will whereby Alice would leave her estate to that trust. Mr. Lindsey is an able lawyer. He lives in Bentonville, a town very near Rogers, and yet, at no time subsequent to June 1, was he furnished with the necessary information about the George R. Love Trust so that he could prepare another will for Alice Love. Also, when Elaine was in Rogers from the 10th to the 13th of June, she did not mention the will business to Alice, or bring with her from Milwaukee a copy of the George R. Love will.
Another circumstance which carries great weight in establishing the fact that Alice Love was unduly influenced by Elaine is that Alice signed the power of attorney. This power of attorney is very broad. It was prepared by Elaine’s lawyer in Milwaukee and signed by Alice on June 3, just four days after the death of Dr. Love, Sr., and only four days after she had executed the May 30 will, of her own volition, leaving Blaine only a token $100.00. Bnt that is not all. On June 3, Alice’s bank account, consisting of about $12,000, was changed to a joint account for herself and Elaine. Prom the record, we can conclude that Alice Love was very frugal and careful about any expenditure of money, and the evidence in this case is far from convincing that Alice would, of her own free will, give power of attorney or joint account privileges to Elaine. Subsequently, Alice revoked the power of attorney and changed the bank account back to her own name. But the bank account was again changed to a joint one when Elaine next came to Rogers.
Moreover, the record is replete with evidence to the effect that at all times following May 30, Alice Love was using habit-forming drugs that produced both a sedative and hypnotic effect. She was weak physically and mentally. She was worn out from caring for her husband who had been bedfast for several years prior to his death. She was 77 years of age, and lived only three and a half months after the deaths of her husband and only son.
Although there is a rebuttable presumption that Alice knew the effect of her will when she left all of the estate to the George R. Love Trust, 57 Am. Jur. 573, this presumption is overcome by a preponderance of the evidence. Por one thing, Elaine never told Alice about her life estate in the George R. Love Trust or the interest of her mother and father in the trust. Elaine testified that Alice understood her money was to go to the George R. Love Educational Fund and not to Elaine in any way. Elaine even states in the petition for probate of the June 27 will that she has no interest in Alice Love’s estate, when as a matter of fact, under the terms of this will she has a very large interest amounting to about $48,000. Also, Alice never saw a copy of the George R. Love will setting up the trusts, although it is claimed that she read newspaper articles explaining the will. However, the only article that described the terms of the George R. Love will was not published until June 18, and it appears that all the clippings referred to by witnesses which Alice Love saw were published prior to that date.
The record does not lead one to believe that Alice had any idea that she was leaving a life estate to Elaine and then to Elaine’s parents before her money would ever go to an educational fund. There is nothing in Alice’s June 27 will to indicate that she herself had any knowledge of the actual results of the terms of that will. Elaine testified that both she and Alice thought that, under the terms of the June 27 will, Alice’s estate would go directly to the educational fund and that none of it would go to Elaine. This shows conclusively that Alice did not understand the contents of the will.
We have concluded that the May 30 will was the free and voluntary act of Alice Love. Due execution of this will was established. The same evidence which is convincing that subsequent wills grew out of undue influence persuades us that the May 30 will was destroyed as a result of that same undue influence. The making of one and the destruction of the other were parts of one transaction.
In 57 Am. Jur. 323, it is said: “When a testator in destroying his will acts under fraudulent and undue influence, the will is considered not to have been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will and its destruction by reason of such improper influence. The execution of a will and the destruction of a former will may be so closely connected in point of time as to constitute one transaction, indivisible as to inducement and purpose, so as to render inescapable the conclusion that undue influence sufficient to invalidate the later will rendered the destruction of the former will ineffective as a revocation. ’ ’ In support of the text there is cited In re Simmons’ Estate, 166 Minn. 65, 207 N. W. 189, and Neal v. Caldwell, 326 Mo. 1146, 34 S. W. 2d 104, 109. In the Simmons case, 28 R. C. L. 168 is quoted with approval as follows: “A will destroyed by the testator himself in his lifetime, acting under fraudulent or undue influ exice, is not considered as having been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will, and its destruction by such improper influence. ’ ’
It appears that when Mrs. Elaine Love took Alice to Mr. Williams’ office on June 1 to get the will Alice had executed May 30, Alice had not been completely influenced to revoke that will. This is indicated by the fact that the will was not destroyed immediately, but was taken to the bank in Rogers and placed in Alice’s lock box. Later, when Elaine and Alice returned from Bentonville where Alice had executed the June 1 will, they again went to the bank and obtained the May 30 will. There Elaine says that Alice tore it into pieces; but Elaine kept the pieces and delivered them to her lawyer, Mr. Lardner, in Milwaukee. Mr. Lardner kept the torn pieces in his files. They were put back together and later introduced as evidence in this case. The May 30 will is not so badly mutilated that its terms are not clear. Moreover, the notebook of Mr. Williams’ secretary containing the terms of the May 30 will was available as evidence.
Proponents of the will further contend that even if the June 27 will was the result of undue influence, the testator ratified it by not changing the will between the time it was made and the time of her death some three months later. In support of this contention there is cited Cude v. Culberson, 30 Tenn. App. 628, 209 S. W. 2d 506. However, in the Cude case there was a republication of the will in the nature of a codicil executed some fifteen years after the making of the original will. In Page on Wills, Vol. 1, p. 392, it is said: “Since a will must be either valid or void and cannot be voidable, the doctrine of ratification has no application. If the will is invalid when made, the only method by which it can be made valid, in accordance with the statutes of wills, is by re-execution or republication.” In 57 Am. Jur. 257, it is said: “Undue influence, fraud and mistake are recognized grounds for contesting the probate of a will or setting aside probate, except where there has been a valid re-execution or republication of the will.” In the case at bar, there was no republication.
The judgment is reversed with directions to set aside probate of the June 27 will and to admit to probate the will of May 30.
The Chief Justice and Mr. Justice George Bose Smith not participating.
Mr. Justice McFaddin concurs.
Mr. Justice Ward dissents. | [
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George Bose Smith, J.
This is a suit by the appellants to enjoin the members of the Public Service Commission from hearing an application for a rate increase that was filed by the Arkansas Louisiana Gas Company. The chancellor sustained a demurrer to the complaint and dismissed the suit. The only question is whether a cause of action is stated.
The complaint alleges that on March 14, 1955, the gas company filed with the Commission an application for an increase in its rates to industrial consumers. The new schedule proposed by the applicant may be described as consisting of two parts. First, there is the usual graduated scale of prices for gas, the rate decreasing as the purchaser’s consumption increases. The plaintiffs concede that this basic rate schedule is legal in form. Sec ond, there are two escalator clauses which the plaintiffs challenge as being unauthorized by statute. The first clause provides that the basic rates will be increased by the amount of any additional taxes imposed upon the gas company after the new rates become effective. The second clause provides that the basic rates will be increased or decreased to reflect subsequent changes in the cost of gas purchased by the gas company.
The complaint states that on April 4, 1955, the gas company tendered a surety bond for the purpose of putting the new schedule into immediate effect. Ark. Stats. 1947, § 73-217. On April 11 these appellants, as industrial consumers, filed a motion asking the Commission to dismiss the application on the ground that the escalator clauses are illegal. That motion was overruled by the Commission, which issued an order permitting the new basic rates to be collected under bond but refusing to allow the escalator clauses to take effect until the further order of the Commission. Thereafter the appellants filed the present suit for injunctive relief.
The appellants ’ argument is to this effect: Our statutes do not contemplate the use of escalator provisions in connection with public utility rates. The incorporation of such provisions in the gas company’s proposed rate schedule renders the entire schedule void. The Commission is not authorized to put only a part of a proposed schedule into immediate effect under bond. The Commission has therefore acted beyond its jurisdiction and should be enjoined.
We do not find this argument persuasive. The escalator clauses, whether valid or not, are by their nature inherently separable from the scale of fixed basic rates. Those clauses are completely dormant until there is some change in the gas company’s tax liability or in its wholesale cost of gas. If such a change occurs the increase would be passed on, dollar for dollar, to the company’s customers. But if no such change should occur for, say, five years, the basic rates would remain in force for that length of time. It is evident that the basic rates must in themselves be fair and that their fairness is in no way dependent upon the contingent operation of the adjustment clauses.
The complaint concedes that the Commission did not allow the escalator clauses to be put into effect under bond; so the appellants have suffered no pecuniai-y injury from the provisions of which they complain. It is not denied that if the schedule of basic rates had been filed without the escalator clauses the Commission would have had the authority to put those rates in force under bond. It is not denied that if the appellants’ motion to dismiss had been granted by the Commission the gas company could have immediately refiled the same schedule of basic rates and put it into effect under bond. Thus the appellants’ only grievance lies in the fact that the escalator clauses are physically on file in the office of the Commission. Upon that fact alone rest the contentions that the Commission is without jurisdiction and that the appellants have suffered an irreparable injury calling for the extraordinary remedy of injunctive relief. It is a sufficient answer to point out that the appellants have a complete and adequate remedy at law. It is not suggested that the Commission’s hearing upon the merits of the gas company’s application does not afford the appellants ample opportunity to attack the legality of the escalator clauses. In our opinion that is the correct and appropriate forum for the determination of this controversy.
Affirmed. | [
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Mehaeey, J.
In October, 1928, appellee, McWilliams Company, Inc., entered into a contract with the receivers of the Farrelly Lake Levee District of Arkansas and Jefferson counties, an improvement district organized under special act of the Legislature, by the terms of which contract the McWilliams Company, Inc., undertook and became obligated to construct certain parts of the improvement which the levee district was authorized by law to construct, and to furnish, all material and labor necessary therefor.
To secure the faithful performance of its contract, the McWilliams Company, Inc., as it was required by said contract to do, executed and delivered its construction bond, dated October 20, 1928, and executed by the appel-lee, United States Fidelity & Guaranty Company as surety.
The bond was in the sum of $50,000, and conditioned upon full performance by McWilliams Company, Inc., of the obligation contained in the construction contract.
The Southern Coal Company, the appellant, sold and delivered to McWilliams, at the place where said work was performed in Arkansas County, coal for the agreed price of $1,465.92. All of said coal was actually used by McWilliams Company, Inc., in the operation of steam shovels and dredges with which the McWilliams Company, Inc., performed the actual construction work on the improvement being done by the levee district.
The McWilliams Company, Inc., refused to pay, and the appellant brought suit in the Arkansas Circuit Court against the McWilliams Company, Inc., and the U. S. Fidelity & Guaranty Company.
The McWilliams Company, Inc., filed answer, admitting the truth of the allegations in the complaint. The surety company filed a demurrer, alleging that the appellant had no right to sue on the bond, and that the complaint on its face showed that the material furnished was coal, and that this was not material, within the meaning of law and the bond.required for the performance of public contracts for labor and material.
The appellee now concedes that the bond was given pursuant to and in compliance with §§ 6913 and 6914 of Crawford & Moses’ Digest, and that appellant had a right to sue upon the bond. The only question therefore for our consideration and determination is, whether coal is material furnished within the meaning of statute and bond.
The authorities on this question are in conflict. The United States Supreme Court and the Supreme Courts of a number of States have held that coal and fuel furnished as this was is within the law and the bond, and entitle the person furnishing coal to a lien and to an action on the bond of the contractor.
A majority of this court, with which the writer does not agree, is of the opinion that the case should be affirmed, and that it is controlled by the former decisions of this court.
In the case of Pierce Oil Corporation v. Parker, 168 Ark. 400, 271 S. W. 24, the court reviewed the authorities, calling attention to the conflict, and we do not think it necessary to again review the authorities, or discuss the reasons given therein.
In the case referred to, the court said: “Having regard then for the well-defined and established meaning of a similar statute, we think that the fair meaning of the language used in the statute under consideration is only to give persons a lien who supply material directly used in the prosecution of the work, or material substantially consumed in the prosecution of the work, and are practically useless after such use.
“Therefore, we do not think that oil or other fuels used in operating motor trucks engaged in hauling stone for the construction of an improved highway can fairly and justly be said to be used in the prosecution of the work. As above stated, oil so used is only incidental to the operation of the motor trucks, and can be no more considered materials used in prosecution of the work than the motor trucks themselves, or the repairs on them.” Heltzel Steel Form & Iron Co. v. Fidelity Deposit Co. of Md., 168 Ark. 728, 271 S. W. 325; So. Surety Co. v. Simon, 172 Ark. 924, 290 S. W. 960.
In the last case referred to, we said: “We think the declaration was one upon the bond, and that no liability existed against appellant thereon for two reasons: First, the claim for supplying coal was not within the protection of the bond; second, the suit was barred by failure to bring it within six months after the improvement was completed.”
It was again held by this court that the surety on the contractor’s bond was liable only for the value of such material as actually entered into the construction of the road, and that it is not liable for the value of feed furnished the stock which was used in the work on the road. . Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6.
A majority of the court is of the opinion that the cases decided by this court and cited herein are decisive of this case, and it is unnecessary to discuss the cases decided by other courts and cited by learned counsel.
The judgment of the circuit court is affirmed. | [
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Lee Seamster, Chief Justice.
This appeal by the appellants is from a temporary order of the Pulaski Chancery Court, first division, in restraining the appel Hants from picketing the property of appellee. The appellants also seek, by writ of certiorari, to have this Court quash the Chancery Court order which found the appellants guilty of contempt and assessed punishment. The trial court found the appellants guilty of violating the terms of a temporary restraining order in which the appellants were restrained from committing acts of violence against the property and personnel of appellee; from intimidating the employees of appellee and from interfering with the orderly business of appellee.
On March 30, 1955, the appellant, a local of the International Teamsters Union, called a strike of employees of Terry Dairy Products Company, Inc., appellee herein. On March 31, 1955, appellee filed a verified petition in equity seeking an injunction against illegal picketing and other illegal conduct. The verified petition alleged (a) threats of physical harm to appellee’s employees at the picket line and elsewhere; (b) use of force and threats of force to prevent appellee’s employees from entering the plant premises; (c) use of “goon squads” to follow appellee’s employees, who, by threats, intimidation, and physical violence endeavored to cause the employees to discontinue working for appellee; (d) the malicious damaging of property of Terry employees; (e) assault and battery on Terry employees; and, (f) mass picketing to disrupt appellee’s business and to prevent ready access to and from the plant. No response was filed by the appellants.
Upon the verified petition the court, on April 2, 1955, entered a temporary order enjoining threats and acts of intimidation and violence against appellee’s property, officers, agents, employees, or others doing business with appellee, and further interfering with the activities of employees of appellee. Pickets were limited in number to two, and the union, its members and agents, were enjoined from congregating in the general vicinity of appellee’s plant.
On April 25, 1955, the appellee petitioned the court for an order adjudging the appellant union in contempt. Although, no response denying the verified petition was filed by appellants, the court heard evidence in support of the petition on April 28 and April 29 of 1955. The court found the appellant union in contempt of court and assessed a fine of $500 against the union. The court also found one of the union members, Dewey Burchfield, in contempt of court and assessed a $100 fine and a ten day jail sentence against Burchfield. The jail sentence was suspended pending good behavior. The court did not suspend the fines. Without setting out the evidence introduced, we find it was sufficient to justify the court’s order. There was no appeal by either party from the court’s order.
Thereafter, on July 14, 1955, the appellee filed a verified petition for order to show cause, alleging the following acts of violence:
“On the 14th day of July, 1955, at approximately two o’clock A. M., a heavy charge of dynamite was planted in the milk bottling room of plaintiff’s (appellee’s) plant and detonated, resulting in complete destruction of one bottling machine and extensive damage to other machinery and equipment in said room and to the building. On the same morning, a heavy charge of dynamite was placed in each of the boilers at plaintiff’s plant. At approximately five o’clock A. M., when one of said boilers- was turned on the dynamite planted therein was caused to explode, completely demolishing said boiler and seriously damaging other machinery and equipment in the boiler room and the building itself. The second boiler was not placed in operation, but was forthwith examined. Twenty-one sticks of dynamite, together with the necessary fuses and detonators to explode same were found inside said boiler, and said charge would have resulted in an explosion had the boiler been ignited. One of plaintiff’s employees was injured by the aforesaid explosions and might easily have been killed.”
“That on or about the 14th day of July, 1955, at an hour unknown to the plaintiff, some person or persons whose names are unknown to the plaintiff placed syrup or other foreign substances in the gasoline tanks and motors of the trucks operated by the plaintiff to the end that said foreign substances caused material damage to the motors of said trucks when they were started, and wholly prevented their operation in the prosecution of plaintiff’s business.”
On July 15, 1955, the court revoked the appellants’ authority to maintain any pickets, and directed that the fines previously levied, but unpaid, be paid forthwith, and that Burchfield be committed to jail. The court refused to take further testimony and the appellant thereupon filed its formal motion to vacate. The court overruled appellant’s motion to vacate and provided that the order of arrest and commitment of Dewey Burchfield should be stayed pending appeal and that the $500 fine against the union and the $100 fine against Dewey Burch-field should be held by the clerk of the Chancery Court pending final determination of the issues in this cause. This appeal follows. The appellants also seek, by writ of certiorari, to have this court quash the Chancery Court order which found the appellants guilty of contempt and assessed punishment. The cases were consolidated for briefing and hearing.
Initially, the appellants contend that the chancellor, having failed to enjoin all picketing at the hearings on April 2 and April 28 and 29, had no power or authority thereafter to enter such injunction. This contention is based on two premises: (1) the court, having made one order with reference to picketing, could not thereafter modify or change its order; and (2) there being no appeal from the first order, such order became final and unalterable, unless there be proof of a change of conditions.
The appellants further contend that the trial court erred in revoking the suspension of fines and jail sentence of Dewey Burchfield and the Union. This contention is based on three premises: (1) there is no proof or allegation of any misconduct on the part of Dewey Burchfield or the Union; (2) the court’s prior orders were a complete adjudication of the status and legal rights; and, (3) the court’s order was not authorized by law, i. e. the fines and the jail sentence.
The granting or refusing of injunctive relief rests within the judicial discretion of the trial court, and its action in the matter will be sustained on review, if that power has not been abused. This rule applies to the grant or denial of a temporary injunction, and to rulings on motion to dissolve the injunction. In the case of Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, this court said, “the granting or dissolution of a temporary restraining order is within the discretion of the trial court. He can, at any time, make such orders as appear necessary to protect the interest of the parties, and his action will not be disturbed by this court unless it appears that the Chancellor abused his discretion.”
Appellant seeks to attribute to a temporary order the final qualities of a decree or judgment for purposes of applying the doctrine of res adjudicata. An order pendente lite is always subject to the jurisdiction of the court until entry of a final decree. It may be rescinded or modified at the discretion of the court to meet the ends of justice. Its purpose is not to finally dispose of the litigation, but merely to serve the ends of justice until a final hearing can be held. The original order of April 2 specifically provides that it was made subject to the further order of the court. We do not think the Chancellor abused his discretion in this case.
Appellant earnestly contends that the order of the trial court of July 15, 1955, which revoked the suspended jail sentence (previously ordered by the court on April 29, 1955) and directed the sheriff to forthwith take into custody Dewey Burchfield and to commit him to jail for a period of ten days, was invalid. We think the trial court had no authority to revoke the suspended sentence at this later date.
In the case of Stewart, et al. v. State, 221 Ark. 496, 254 S. W. 2d 55, which was a case similar to the instant case, this court held, “We think it best to state explicitly that in these circumstances the suspension of the sentence is in effect its complete remission. In ordinary criminal cases a suspended sentence is a useful deterrent to later wrongdoing. The same considerations do not apply in cases of contempt, and we are aware of no authority for an indefinite suspension in a case of this kind.” So in the instant case, we think that the suspension of Dewey Burchfield’s jail sentence was in effect its complete remission. No additional proof was introduced or pleadings filed to show that.Burchfield had later violated the order of the court. Therefore, the court erred in revoking the suspended jail sentence.
The fines assessed were not suspended and the order issued July 15, 1955, to collect the fines already assessed against the appellants, was a proper order and is therefore approved.
The writ of certiorari will be denied, except as to the jail sentence of ten days assessed against Dewey Burchfield. The petition will be granted and the order sending him to jail will be quashed. With the modification mentioned the case is affirmed. | [
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Frauenthal, J.
This is an action of replevin for the recovery of a yoke of oxen. It was instituted by the appellee, and the trial resulted in a verdict in its favor. The appellant has made no abstract of the instructions given by the trial court, nor of any that it refused. According to the repeated rulings of this court, we will therefore indulge the presumption that no error was committed by the trial court in its rulings upon the instructions.
The sole question which is presented by the record for our determination is whether there is sufficient legal evidence to sustain the verdict which was returned..
The appellee claimed title to the property by virtue of an alleged purchase from appellant. The appellee is a corporation engaged in the mercantile business at Simsboro, Louisiana, and it appears from the testimony introduced upon its behalf that appellant purchased goods from it for several months prior to April, 1911, and upon a credit. In April, 1911, it insisted that appellant should pay or reduce this indebtedness. In consideration of $70, which was credited by the appellee upon his account, the appellant then sold to it the property involved in this suit. The oxen were at that time in the town of Simsboro, and appellant brought them to appellee’s store, and turned them over for the above consideration. It was then agreed between the parties that appellant might retain possession of the property until June following, for the purpose of hauling some ties. This the appellant did; but, instead of returning the property to appellee, he left Simsboro with it in June, and there was some testimony tending to prove that he left in the night time, driving the cattle, and under suspicious circumstances indicating that he was endeavoring to leave with the property without appellee’s knowledge.
In determining whether or not there was a completed sale of the property to appellee under the facts of this case, the controlling question is, was there a delivery of it at the time of the alleged sale? As between vendor and vendee of personal property, the passing of the title is ordinarily determined by a consideration of what was the actual intention of the parties. As between purchaser and seller, it is not necessary that there should be an actual change of the possession of the thing sold in order to invest the buyer with the title, if such is the actual intention of the parties. Priest v. Hodges, 90 Ark. 131; Guion Mercantile Co. v. Campbell, 91 Ark. 240.
If the property is present, and the vendor for an agreed, consideration then makes an unconditional sale of the property to the vendee, who for an agreed price accepts it, and at the time it is understood by both parties that the title to the property shall pass, then, although the actual possession of the property is still retained by the vendor as bailee for the vendee, the sale will still be complete. Under such circumstances, the contract of sale is absolute and binding, and the vendee’s title will be protected, even as against attaching creditors or subsequent purchasers, if no element of fraud is connected with such contract of sale. Shaul v. Harrington, 54 Ark. 305; Hight v. Harris, 56 Ark. 98.
We are of the opinion that there was sufficient evidence adduced upon the trial of this case showing that the property was purchased unconditionally by appellee at the price of $70, which was credited by appellee upon appellant’s account to it, and that legal delivery of the property was made at the time, and actual possession thereof was only retained by appellant as bailee of the appellee. Under these circumstances, the sale was complete, and the title to the property passed to appellee.
The appellant also urges that errors were committed by the trial court in its rulings relative to the introduction of certain testimony. Some of the exceptions which were made to these rulings have not been incorporated in the motion for new trial, and on this account have not been sufficiently preserved to be considered upon an appeal to this court. We have examined those rulings made by the trial court relative to the introduction of testimony to which exceptions have been properly made and preserved, and we do not find that any error was committed in any of these rulings; nor do we think that they are of sufficient importance to here discuss them.
The controlling question which was involved in this case is one of fact, which has been settled by the verdict of the jury. The judgment is accordingly affirmed. | [
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McCulloch, C. j.
An improvement district has been duly formed in the city of Clarendon, Arkansas, for the purpose of constructing a system of waterworks and sewerage, and appellant, a citizen and owner of real property in said district, instituted this action in the chancery court against the board of improvement to restrain the latter from entering into a contract for the construction of said improvement at a cost in excess of 20 per centum of the value of real property in the district and from issuing bonds in excess of said amount. The chancery court sustained a demurrer to appellant’s complaint. It is alleged in the complaint that the board of improvement will, unless restrained from so doing, enter into a contract for making such improvement and issue bonds for the full amount of the cost thereof, and that the interest on the bonds will make the cost of the improvement exceed 20 per centum of the assessed value of real property in the district.
The statute regulating improvement districts in cities and towns provides among other things, that “no single improvement shall be undertaken which alone will exceed in cost 20 per centum of the value of the real property in such district as shown by the last county assessment.” Kirby’s Digest, § 5688.
The question presented is, whether interest to accrue on bonds issued to defray the expense of construction, is within the meaning of the statute, to be included as a part of the cost of the improvement. This court has already decided the question in the affirmative. Fitzgerald v. Walker, 55 Ark. 148.
It is insisted, however, by learned counsel for appellee that the case cited above has been overruled by the recent case of Webster v. Ferguson, 95 Ark. 575. We do not think so. The question of cost of improvement in excess of the statutory limitation did not arise in the latter case. The question there was, whether the statement, in the petition of the property owners, which limited the cost of improvement to a certain amount, included interest, and we held that the statement of the amount referred to actual cost of improvement exclusive of interest.
It is next contended that the decision in Fitzgerald v. Walker, supra, is wrong, and that it should be overruled. This question was directly raised in that case, and the court decided it after what appears from the .opinion to have been a very careful consideration. We see no reason, therefore, for overruling it. Besides, it should be treated as a rule of property, and on that account, if for no other, it should not be changed except by the Legislature. Many improvement districts have been organized in this State since that time, and many of them are now in existence with outstanding interest-bearing indebtedness. Property owners who signed petitions for improvement may have done so in reliance on the decision of this court that assessments could not lawfully be levied in excess of twenty per centum of the value of the real property in such district as shown by the last county assessment. At any rate, they had the right to rely on that decision, and are presumed to have done so, and for that reason the decision is a rule of property and should not be disturbed.
Again, it is contended that, though only one district was formed, it was for the purpose of making two improvements, and that each constitutes a distinct improvement which may, under the statute, be constructed at a cost of twenty per centum of the value of real property in the district. It is true that we have held that one district may, under some circumstances, be formed for the purpose of making two improvements. The two improvements must, however, be treated as one for the purpose of including them in one district. That is clearly the meaning of the opinion in the case wherein we passed upon that question. Wilson v. Blanks, 95 Ark. 496. Judge Battle, speaking for the court, said:
“If the two improvements cover the same territory, and can be made as fully and effectually and in the same manner, and without prejudice to the rights of any of the property owners under the statutes, by one as they can be by two districts we see no valid reason why they should not be combined and made in such manner. In such way they can be treated as one improvement, and as such made in the manner prescribed by the statutes. * * * When, however, one district can not be used to make two improvements in the manner indicated, it would seem to be unauthorized by the statutes, and one district should be created for making each improvement, and in case of doubt is preferable.”
When property owners elect to include two improvements in the formation of a district they must treat them as a single improvement and limit the cost'to the amount specified in the statute. No machinery is provided for levying separate assessments in a single district for more than one improvement.
It follows that the chancery court erred in sustaining the demurrer to the complaint. Reversed and remanded with directions to overrule the demurrer. | [
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Hart, J.
This is an appeal from a judgment convicting the defendant, Arthur Jones, of murder in the first degree, for killing M. E. Yarbrough. Mrs. M. E. Yarbrough testified:
“I was the wife of M. E. Yarbrough, and he was killed about dusk or dark on the 30th of September, 1911. We lived on a hill about a mile from Marianna. About 7 o’clock that evening my husband and I were sitting on the porch playing with our two children. We heard some negroes coming down the road in a buggy. They were cursing and shot once. My husband got up and holloed at them to stop. He said that if they did not stop that shooting and noise he would arrest them. They answered with a curse word, and again shot up the hill. By this time they had got into a deep cut where they could not be seen. Mr. Yarbrough got his gun and went down to meet them when they got to the top of the hill. He was going to arrest them, and I went with him. When he got out to the road, he said: ‘Halt!’ and one of them said ‘Shoot, you white-eyed s— of a b-•!’ One of the negroes shot Mr. Yarbrough twice, and Mr. Yarbrough shot at them twice. He fell on his knees, and holloed that he was shot. I called for help, but no one else seemed to be on the road. I dragged my husband back to the house, and it was about an hour before I got any help. My husband died the next morning at 4 o’clock. We could see the negroes when they first commenced shooting, and my husband told them that if they did not stop he would arrest them. They were about one hundred yards away when we first saw them. I saw them make the first two shots, and after that, as above stated, they disappeared in the cut, and I did not see them any more until they got to the top of the hill, and shot my husband when he tried to arrest them. ”
M. H. Ford testified: “I am sheriff of Lee County. M. E. Yarbrough was my deputy at the time he was killed, and had been for about six years. On the same night after the killing, the defendant voluntarily made a confession to me. He said that he had pulled out his pistol at the branch, and had tried to see if it would shoot. He said that when he got to the top of the bill, some one spoke to him, and that his companion said: ‘Shoot him!’ and that he, the defendant, at once shot Mr. Yarbrough. The defendant, at the time he made the confession, was wounded, and was in a physician’s office.”
Doctor McClendon testified: “I visited Mr. Yarbrough on the night he was shot. He had two wounds on the arm which shattered his elbow and severed the brachial artery, and the other was on his left hip. The wound in the hip went through the small intestines, and there were eight perforations through the small bowels. His death was due to hemorrhage resulting from the gun shot wounds. He said that some people came down the hill cursing and shooting, and that he picked up his gun and went out to arrest them. He said when he got out there and told them to halt, one of them said: 'Shoot him!’ and the shooting began. ”
The defendant testified as follows: “That he was in Marianna on the 30th of September, 1911, and that he left town in John Collins’s buggy; that when he got to Calvin branch he and Collins were talking about the many robberies that had recently occurred along the road; that he took out a pistol that had been pawned to him and shot down in the road to see if the pistol would shoot, and then put the pistol in a sack in the buggy; that when he got up to the top of the hill some one holloed, 'Halt!’ and he told Collins to drive on, and Collins said: 'Shoot him! shoot him!’ and he reached down and got the pistol, but before he could get it up the man had fired, and the shot hit him in the hip and belly; that he could only see the smoke and shot out where the smoke was; that they drove on up the road, and he got sick and came on back to the oil mill and laid down, and Collins came to town and got a buggy and carried him to the doctor; that he only shot one time at the bridge; that he did not hear anybody hollo at him when he was down by the bridge; that the first time that he saw Mr. Yarbrough was when he came out and told him to halt; that he did not shoot until he was shot; that he did not know Mr. Yarbrough; that he did not know there was a house located where Mr. Yarbrough’s is; that it is not true that either of them was using loud and ugly language; that Mr. Yarbrough did not hollo to them and tell them that if they did not stop he would arrest them; that it was dark before they left town; that he never saw Mrs. Yarbrough at the scene of the killing; that Yarbrough said nothing but 'Halt!’ ”
It is first earnestly insisted by counsel for defendant that the evidence did not warrant a verdict of murder in the first degree, but we can not agree with their contention. A careful consideration of the evidence on the part of the State shows the jury were warranted in finding that this was a premeditated and deliberate killing. Mrs. Yarbrough testifies that the negroes were cursing and shooting along the public highway; that her husband saw and heard them, and warned them that if they did not stop he would arrest them. They cursed him and again fired. He went out to arrest them; and when he announced his purpose to them, one of them called him a vile epithet, and said “Shoot!” The other at once shot him. So it will be seen that the jury had a right to infer that all that was done and said was a part of the same transaction, and Yarbrough informed the defendant that he was about to arrest him, and the defendant without any provocation shot and killed him. From the evidence of the State, the jury might have inferred from the acts and conduct of the defendant that he intended to take the life of Yarbrough, and that the killing was done with premeditation and deliberation. Therefore we are of the opinion that the verdict was warranted by the evidence. Howard v. State, 82 Ark. 102; Beene v. State, 79 Ark. 460.
The court correctly instructed the jury on murder in the first degree and murder in the second degree and on the subject of reasonable doubt. No objection is made by counsel for the defendant to these instructions. In addition the court instructed the jury as follows:
“If, after you have considered all of the facts, you have reasonable doubt as to the defendant’s guilt of any grade of offense, you will acquit him, and the form of your verdict will simply be, ‘We, the jury, find the defendant not guilty.’
“You are further instructed that you can not find the defendant guilty of murder in the first degree unless you find from the evidence that at the time the fatal shots were fired there was a specific intent existing in the mind of the' defendant to take the life of the deceased, and that the shots, were fired by him with that purpose, and that such purpose was formed deliberately and premeditatedly, and that the mind'of the defendant was fully conscious of the design to kill and was not the immediate offspring of rashness, negligence, or impetuous temper.
“You are instructed that it is the duty of an officer in making an arrest without a warrant to state to the defendant that he is an officer, and his purpose to arrest them, and if in this case the jury find that the deceased stepped to the side of the road and with a gun drawn called, ‘Halt!’ or‘Hold up!’ with nothing further, the defendant would have a right to'resist.”
The record then shows that the defendant requested the court to instruct the jury on the law of manslaughter, which the court refused to do. The refusal of the court to give any instruction on manslaughter is assigned by the defendant as error. Under the testimony given by the defendant, the jury might, have believed that he shot Yarbrough under the belief that he was about to be assaulted by Yarbrough, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances. Under this view of the testimony the defendant was entitled to an instruction on voluntary manslaughter. Allison v. State, 74 Ark. 444.
The record does not disclose whether or not the defendant presented to the court proper instructions on manslaughter, but simply shows that the defendant asked the court to instruct the jury on manslaughter, which the court refused to do. Assuming, without deciding the question, that it was the duty of the court, under this state of the record, to have instructed the jury on voluntary manslaughter, we are of the opinion that the error was not prejudicial, and it is well settled in this State that the judgment will only be reversed for errors that are prejudicial to the rights of the defendant. Lee v. State, 73 Ark. 148; Hayden v. State, 55 Ark. 342. It will be noted from the instructions given by the court and copied above, that the jury were told that they could not convict the defendant at all if they had a reasonable doubt as to his guilt of any grade of offense, and that they could not convict him of murder in the first degree if the killing was the immediate offspring of rashness, negligence or an impetuous temper. The court also told the jury that it was the duty of an officer making an arrest without a warrant to state to the defendant that his purpose was to arrest him, and that if it should find that the deceased stepped to the side of the road with a gun drawn and called “Halt!” with nothing further, the defendant had a right to resist him. The jury returned a verdict of murder in the first degree, thereby finding that the killing was not the result of rashness, negligence or impetuous temper on the part of the defendant. It is admitted that the court correctly instructed the jury on murder in the second degree, and the jury might have found the defendant guilty of that offense if it had believed the testimony of the defe ndant. Hence it will be seen that the jury found a state of facts to which an instruction of manslaughter would be in applicable, and it becomes certain that the same verdict actually would have been rendered if the court had instructed the jury on manslaughter. The case is ruled by Farris v. State, 54 Ark. 4. There the court held:
“An error in rejecting a prayer for an instruction is not prejudicial if it appears that the jury found a state of facts to which it would have been inapplicable. Thus, where the court charged that defendant could not be convicted of murder in the second degree if he killed deceased in self-defense or in a sudden heat of passion upon provocation apparently sufficient tq make the passion irresistible, and the jury found him guilty of murder in the second degree, and assessed his punishment at the longest term of imprisonment allowed by law for the offense found, the court’s refusal to instruct as to the offense of manslaughter could not have been prejudicial, though there was evidence tending to establish manslaughter.” See also People v. O’Neil, 67 Cal. 378; Baker v. State, 58 Ark. 513.
The judgment will be affirmed.
Kirby, J., dissents. | [
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Frauenthal, J.
This is a suit to recover a broker’s commission which the plaintiff claimed he earned by procuring for defendant the sale of a stock of groceries owned by him. The action was instituted in a court of a justice of the peace upon the following account:
“G.J. Hodges,
“To T. A. Bayley, Dr.
“To 5 per cent, commission on sale of grocery stock to Thornton & Co., on $1,018....................$50.90”
The defendant moved the court to require the plaintiff to make the statement of his cause of action more definite and certain, and the motion was overruled. Upon appeal being taken to the circuit court, the motion was there renewed and overruled. The trial resulted in a verdict in favor of plaintiff.
It is urged that the court erred in refusing to require the plaintiff to make the statement of his cause of action more certain and definite. It is provided by section 4565 of Kirby’s Digest that an action may be commenced in a court of a justice of the peace by filing an account upon which the suit is based. The object of the provision of the statute (Kirby’s Digest, § 6147) requiring a party to make his pleading definite and certain is to inform the opposing party of the facts upon which the alleged claim is based, so as to enable him to prepare his defense. The account filed in this case, we think, was sufficient to advise the defendant of the nature of the claim for which plaintiff sought recovery, so that he might prepare any defense which he had thereto. The defendant does not claim that he was surprised by any testimony adduced by plaintiff or that he was unable to obtain any witness whose testimony he desired to introduce to sustain his defense. He was not prejudiced in any event, therefore, by his motion being overruled.
It is contended that the verdict is contrary to the evidence adduced upon the trial of the case. The testimony relative to the issue decisive of the rights of the parties was conflicting. The plaintiff was engaged in the brokerage business in the city of Fort Smith, selling real estate and personal property upon commission. He had an agent by the name of C. Peterson who testified that he entered into a contract with the defendant by which plaintiff was employed to sell his stock of goods. The amount of the commission tobepaidplaintiffwasnotmentioned, but defendant listed his property with him, and a statement thereof was taken by said Peterson in which a price of $1,200 or $1,300 was placed upon the stock of groceries. The plaintiff procured one Thornton as a prospective purchaser, and introduced him to defendant, who thereafter sold his stock of groceries to him for $1,018. In his testimony the defendant denied that he had listed his property with plaintiff for sale, or that he had employed him in any way relative thereto. He admitted, however, that the purchaser, Thornton, had been introduced to him by plaintiff’s agent, and, after he had consummated the sale, this agent demanded payment of plaintiff’s commission, and that, while he denied owing him anything, he offered to pay him $10 if he was due him any amount.
It may be that the verdict is not sustained by the preponderance of the evidence which was adduced upon the trial of the case. But it is not the province of this court to say whether or not the verdict of a jury is contrary to the weight of the evidence. The rule is that, if there is any evidence adduced which is legally sufficient to sustain the verdict, it becomes conclusive in the consideration of the case upon appeal to this court'.
It has been held that a broker who has been employed to sell property is entitled to his commission where he has brought about between the principal and another negotiations which resulted in a sale which was consummated by the principal. Hunton v. Marshall, 76 Ark. 375. The broker is entitled to his commission in such event, although the principal sold upon terms different from those mentioned to the broker. Stiewel v. Lolly, 89 Ark. 195. If the amount of the commission is not agreed upon at the time of the employment, then the broker is entitled to recover a reasonable amount therefor. We think there was some testimony proving that defendant listed his property for sale with the plaintiff and employed him to secure a purchaser for his stock of goods, and that plaintiff was the procuring cause of the sale thereof which defendant consummated with Thornton; and there was also evidence showing that the amount of the commission recovered was a reasonable and eus-r tomary compensation for like service rendered in making such sales. Branch v. Moore, 84 Ark. 464; Poston v. Hall, 97 Ark. 23.
It is also urged that the court erred in refusing to require plaintiff to produce his broker’s license which was granted to him by the city of Fort Smith. It is not claimed that there was any ordinance prohibiting one from engaging in the brokerage business in that city without having first procured license or vitiating any contract made by an unlicensed person. In the absence of such an ordinance, plaintiff could not be defeated of a recovery because he had not procured a license to sell the character of property which was the subject-matter of this sale. Stiewel v. Lally, supra.
It is contended that the verdict returned was not signed by the foreman or any other member of the jury, and that for this reason it was error to enter judgment thereon. According to the common law, it was not essential that a verdict should be signed by the foreman. 22 Enc. P. & P. 898. By section 6204 of Kirby’s Digest it is provided: “ The verdict shall be written, signed by the foreman and read by the court or clerk to the jury, and the inquiry made whether it is their verdict. ” This requirement, however, we think can be waived by a party; and it is waived by him when the unsigned verdict is rendered in open court and duly received without objection by either party to the cause and thereafter is duly recorded. In the case of Northern Pacific Rd. Co. v. Urlin, 158 U. S. 271, the Supreme Court of the United States, in passing upon a like objection, said: “The contention that the judgment below was invalid because the verdict of the jury was not signed by the foreman as required by a section of the Code of Montana is, in our opinion, without merit. The record discloses that when the verdict was rendered, at the request of defendant the jury was then and there polled by the clerk, and each of said jurors answered that the verdict as read was theirs, whereupon the plaintiff moved for judgment in accordance with the verdict, the motion was granted, and judgment was ordered accordingly. No objection was made or request that the verdict should be signed was then made by defendant, and we think that the court below was justified in treating the irregularity', if such it was, as having been waived.” To the same effect see Morrison v. Overton, 20 Ia. 465; Gurley v. O’Dwyer, 61 Mo. App. 348; Thompson v. Commonwealth (Ky.) 15 S. W. 861; Patterson v. Murphy, 63 Ga. 281; Chicago City R. Co. v. Cooney, 196 Ill. 466. In the case at bar, the verdict was duly rendered in open court by the jury and received by the court without any objection by defendant - and judgment entered thereon. It follows that he waived any right now to object to the judgment which was rendered upon this verdict. Finding no error which was committed in the trial of this case, the judgment is accordingly affirmed. | [
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McCulloch, C. J.
Appellant instituted this action against appellees in the chancery court of Independence County, to recover the contract price for furnishing and installing a heating plant in a building owned by the latter at Batesville, and to enforce a mechanic’s lien. The contract price was $875, of which $350 was paid during the progress of the work, and the action is to recover the balance.
Appellees claim that there was not a substantial compliance with the contract in that the plant was not constructed and installed in a workmanlike manner and of proper material so as to afford satisfactory heat, and they defended on that ground. They also presented a counterclaim, asking the recovery of the sum of $350 which they had paid on the contract price.
At the hearing of the cause, the chancellor found in favor of appellees, and rendered a decree for the amount prayed for in the counterclaim.
According to the terms of the written contract introduced in evidence, appellant agreed, for the stipulated price, to install the plant, “the said heating apparatus to be placed in said building in such manner and located at such a point as shall he deemed best by said heating company for its most successful operation, it being guaranteed that said heating apparatus shall he constructed thoroughly in all respects of good material, and made smoke and gas tight, and that, subject to the requirements hereinafter specified, such heater shall furnish a pure, moist air and have a capacity to provide a temperature of 70 degrees for the building in the coldest and windiest weather.”
The law is settled that a contractor of this sort can not recover unless there has been a substantial compliance on his part with the terms of the contract, or, in other words, unless he has furnished the material and performed the work substantially as provided in the contract. Ark-Mo Zinc Co. v. Patterson, 79 Ark. 506; Harris v. Graham, 86 Ark. 570; Mitchell v. Caplinger, 97 Ark. 278.
The chancellor found that there had not been a substantial compliance with the contract by appellant, and on that ground found in favor of appellees.
The record is very voluminous, and contains the testimony of numerous witnesses. There is a sharp and irreconcilable conflict in the testimony, and the state of it is such that we are unable to say that the chancellor’s finding is against the preponderance. Under those circumstances it is our duty to affirm the decree.
It is insisted by learned counsel for appellants that there is a decided preponderance of the testimony of witnesses introduced by appellant who show an accurate knowledge of this kind of work, and that the testimony of many of the witnesses upon the part of appellees should be disregarded on account of obvious lack of such knowledge. They insist that there should be a considerable degree of expert knowledge on that subject before the testimony of witnesses can be accorded any probative force. We have duly considered these matters, and, upon the whole, we are convinced, as before stated, that the state of the testimony is such that it is impossible for us to say that there is any preponderance in appellant’s favor. No useful purpose would be served in setting out the testimony in detail, even if it were practicable to do so, voluminous as it is.
We should add that, inasmuch as appellees rejected the work and refused to pay for same, it is still the property of appellant, and may be removed from the premises, as far as that can be done without injury to the building. Harris v. Graham, supra. This is doubtless the view that the chancellor took, though he made no mention of that in his decree. The parties have evidently so treated it, as nothing has been said about it in the briefs. We deem it proper to mention that, so that there will be no misunderstanding about the force of the decree which we now affirm.
It is so ordered. | [
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Hart, J.,
(after stating the facts). The telephone company has the right to make and enforce reasonable rules and regulations for the guidance of its subscribers, and, in case the subscriber refuses to obey such regulation, may refuse to furnish telephone service, without being guilty of discrimination, and such right was recognized by the court on the former appeal of this case. We held in addition, on the former appeal, that where a subscriber refuses to pay charges for past services but properly asked the telephone company to reinstate his telephone in his residence, his demand for reinstatement is not barred by his refusal to pay for past service which he claims he does not owe. Mr. Justice Battle, speaking for the court, said:
“A telephone company, being a public servant, can not refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations. It can not refuse to serve him until he pays a debt contracted for services rendered in the past. For the present services, it has a right to demand no more than the rate of charge fixed for such services. It transcended its duty to the public when it demanded more. (Citing authorities.)
“A tender or payment to the telephone company of its rate or charge for service or rent of telephone for any particular time and offer to comply with its reasonable rules and regulations would entitle the applicant to such service or rent. Should the telephone company incur a penalty by refusing to rent or render such service, it could prevent the increase thereof by rendering or offering to render the applicant such service.” Danaher v. Southwestern Tel. & Tel. Co., 94 Ark. 533.
The decision on the former appeal is the law of the case. Therefore, under the undisputed evidence as disclosed by the record, and as stated above, we think the present appeal is controlled by the decision on the former appeal.
Counsel for the defendant with great earnestness and with much force have undertaken to escape this conclusion. The effect of their argument, as we understand it, is that there is no discrimination under the statute where the defendant enforces an unreasonable rule against all who refuse to obey it, but that discrimination arises where the company enforces an unreasonable rule against some and not all, of its subscribers who refuse to obey it. The fallacy of their argument is that by such a course the defendant, by enforcing an unreasonable rule against all of its subscribers who refuse to obey it, could entirely abrogate the statute, release the defendant from the penalties expressly prescribed by the statute, and remit subscribers who refuse to obey its unreasonable rules to their remedy by mandamus or such other remedy as might be available under the common law. They contend that telephone companies under the common law are prohibited from making discrimination in the performance of the service required of them, and that section 7948 of Kirby’s Digest is merely declaratory of the common law. This may be true, but it is equally true that the object and purpose of the statute is to compel telephone companies to perform the duties required of them, both in supplying telephone service and in preventing discrimination to its subscribers. Having held on the former appeal that a telephone company can not refuse to furnish telephone connection to one until he pays a debt contracted for services rendered in the past, it seems to us' that it neces sarily follows that the plaintiff is entitled to recover for the forty days during which her telephone was disconnected and telephone service was refused her. She was ready, willing and able to pay and did pay for the service, and was in the same situation as all other persons who had telephones installed in their residences.
In regard to the twenty-three days subsequent to the 8th of May, the defendant did render her services, but charged her fifty cents more than it did to other subscribers for residence telephones. They say they did this for two reasons: First, because she refused to pay their claim for past services, and second, because under their rules, they allowed no discount to subscribers who were in arrears for past services. It follows from the ruling in the former appeal that the defendant could not make a rule or regulation whereby they would charge a subscriber who was in arrears to them for past services a greater sum for telephone services than it did for those who had paid their bill. The evidence shows that all persons having telephones in their residences received a discount of fifty cents if they paid for the service before the 15th of the month. The plaintiff belonged to this class of persons, and it was a discrimination against her to charge her more than it did other persons who had telephones in their residences. See, also, Southwestern Tel. & Tel. Co. v. Murphy, 100 Ark. 540.
Telephone companies, by the necessities of commerce and by public use, have become common carriers of communications, and as such must supply all alike who are alike situated, and can not discriminate in favor of or against any one. The plaintiff, as above stated, was a resident of the city, and, as above stated, was ready and willing and able to pay for the reinstallation of telephone service in her residence and did pay for the same. Therefore, she was in a similar situation to all other persons who were receiving telephone service in their residences, and, as stated in our former opinion, the telephone company could have obviated the payment of a penalty in this case by rendering to the plaintiff the telephone service.
The judgment will be affirmed. | [
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George Rose Smith, J.
This is a tax assessment proceeding involving thirteen parcels of land owned by the appellee. At its 1953 session the county board of equalization approved valuations totaling $143,100 that had been assigned to the lands by the county assessor. In appealing to the county court the property owner failed to publish, or to have the county clerk publish, the statutory notice that such an appeal had been taken. Ark. Stats. 1947, § 84-708. The county court, after a hearing, entered an order reducing the assessed valuations to $135,650. At the next term of court, however, the court set aside its order upon the ground that publication of the statutory notice was essential to its jurisdiction. That action was later reversed by the circuit court, which reinstated the original county court order. The county assessor has appealed from the judgment of the circuit court.
We think the county court was right in considering the publication of notice to be indispensable to its jurisdiction. It is commonplace for the legislature to prescribe certain jurisdictional steps in appellate procedure. Familiar examples include the filing of a notice of appeal to this court, General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40, and the lodging of the transcript within thirty days after the rendition of judgment by a justice of the peace. Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217.
The statute cited above provides that “the county court shall acquire no jurisdiction to hear such appeal” from the equalization board unless the required notice is published. The legislature could hardly have declared more explicitly that the notice is a prerequisite to the county court’s power of review. Nor is the defect cured by the fact that here the assessor appeared and contested the case in the county court. The notice is more than a mere summons by which the court acquires personal jurisdiction over the assessing officials. The statutory form of notice is expressly for the benefit of “any owner of property” in the county and was doubtless adopted to supply an omission that had been found to exist in an earlier law. Pulaski County v. Commercial Nat. Bank, 210 Ark. 124, 194 S. W. 2d 883; 5 Ark. L. Rev. 368. The legislature evidently believed that the giving of publicity to a matter of interest to other taxpayers is of sufficient importance to be made a condition to the court’s jurisdiction of the subject matter.
It is also argued that the county court was without authority to vacate its original order after the lapse of the term. This order, however, was void for want of jurisdiction, as we have seen, and was therefore subject to the court’s continuing power to expunge such an order from its records. Walsh v. Hampton, 96 Ark. 427, 132 S. W. 214; State v. West, 160 Ark. 413, 254 S. W. 828.
Reversed. | [
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DONALD L. CORBIN, Justice.
liAppellant Roger Schubert appeals the order of the Pulaski County Circuit Court directing a verdict in favor of Appellee Target Stores, Inc. On appeal, Schubert asserts that the circuit court erred in determining that there was not sufficient evidence to submit to the jury the issue of whether Target’s negligence caused Schubert’s injuries. As this is a subsequent appeal, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(a)(7) (2010). We find no error and affirm.
Only a brief recitation of the facts is necessary, as the pertinent facts were set forth in Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917 (2005) (Schubert I), and Schubert v. Target Stores, Inc., 2009 Ark. 89, 302 S.W.3d 33 (Schubert II). Suffice it to say, Schubert was employed by J.B. Hunt Transport, Inc., as a tractor-trailer driver. J.B. Hunt contracted with Target to provide transportation of its goods. On February 19, 1999, Schubert was dispatched to Target’s distribution center in Maumelle. Once there, he hooked up a sealed trailer that | ahad been loaded by Target’s employees with bales of cardboard boxes. Schubert then transported the load to an International Paper facility in Mansfield, Louisiana, for recycling. When Schubert opened the trailer doors, a 1,000-pound bale of cardboard fell from the trailer hitting and injuring him. After Schubert sought and received workers’ compensation benefits, he filed a negligence action against Target in Pulaski County Circuit Court. Initially, the circuit court granted summary judgment in favor of Target on the basis that Louisiana’s exclusive-remedy doctrine applied and barred Schubert’s negligence suit. This court reversed and remanded the circuit court’s order, holding that the substantive law of this state applied. Schubert I, 360 Ark. 404, 201 S.W.3d 917.
Upon remand, Insurance Company of Pennsylvania, who had paid workers’ compensation benefits to Schubert, filed a motion to intervene. The motion was granted and the matter proceeded to trial. Following Schubert’s presentation of evidence, Target moved for a directed verdict on the ground that Schubert had presented no evidence to support his claim of negligence nor could he support his claim by inference using the doctrine of res ipsa loquitur. The circuit court granted Target’s motion, but in entering its order failed to dispose of the outstanding claim in intervention. Thus, on appeal to this court a second time, we dismissed the appeal without prejudice because we lacked a final, ap-pealable order pursuant to Ark. R. Civ. P. 54(b). Schubert II, 2009 Ark. 89, 302 S.W.3d 33. The outstanding claim in intervention has now been dismissed, and Schubert again appeals the order directing a verdict in favor of Target.
^Schubert’s sole point on appeal is that the circuit court erred in granting Target’s motion for directed verdict at the close of his case-in-chief where he presented ample evidence to create a factual question for the jury. Target counters that the directed verdict was appropriate because Schubert’s theory that the accident would not have happened if Target employees had used ordinary care in loading the truck was not supported by any evidence.
In determining whether a directed verdict was properly granted, we view the evidence in the light most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). In order to constitute substantial evidence, the evidence must be of sufficient force and character to compel a conclusion one way or the other with reasonable certainty and must force the mind to pass beyond mere suspicion or conjecture. See Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Mankey, 314 Ark. 14, 858 S.W.2d 85.
In order to establish a prima fa-cie case of negligence, Schubert had to show that he sustained damages, that Target was negligent, and that such negligence was a proximate cause |4of his damages. See, e.g., Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). This court has stated that negligence is the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do. Id.; City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). Proximate cause means a cause, which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred. Mangrum, 359 Ark. 373, 198 S.W.3d 496.
A plaintiff cannot rely on inference based on conjecture to establish a claim of negligence, and the mere fact that an accident occurred is not evidence of negligence. See Nichols v. Int'l Paper Co., 278 Ark. 226, 644 S.W.2d 583 (1983). In other words, negligence is not imposed in the absence of proof. See Bess v. Herrin, 309 Ark. 555, 831 S.W.2d 907 (1992). Moreover, conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Mangrum, 359 Ark. 373, 198 S.W.3d 496. The fact that an accident occurred with nothing more is not evidence of negligence on the part of anyone. Nichols, 278 Ark. 226, 644 S.W.2d 583.
Here, Schubert claimed negligence based on his assertion that Target employees were negligent in loading the trailer with the cardboard bales, thus, causing one of the bales to fall from the trailer, striking and injuring him. To support this contention, Schubert put forth his testimony, the testimony of Rodney Schluterman, a facility-operations group leader at the Target distribution facility, and the testimony of his wife, Lorene Schubert. Schubert testified that when he reached the Mansfield facility, he removed the tamper seal and was opening the |5trailer door when a cardboard bale fell from the trailer, hitting his shoulder and hip. Initially, Schubert testified that there was a “bale laying up on top that should never have been put in that trailer.” Schubert also testified that he believed the accident resulted from someone at the Target facility using a forklift to try to stick the bale in but that it would not go in all the way. Schubert admitted, however, that he did not see the Target employees load the trailer. Moreover, Schubert admitted that he did not see the bale while it was in the trailer and that the first time he saw it was when it was on the ground on top of him. Schubert also testified that there was no indication of a problem with the load and that during transit it pulled well and straight, with no leaning. Finally, Schubert admitted that a load can shift during a haul, which was why he always exercised caution when opening the trailer doors.
Schluterman, who oversees the loading of cardboard bales, testified that while there are no written manuals or procedures advising employees how to handle the bales, they are instructed on the proper way to handle them by utility trainers. He also testified that there were safety protocols in place with respect to the loading of the cardboard bales onto trailers. Schluterman also stated that even though tamper seals are placed on the trailers, drivers can ask that they be removed in order to inspect the load. Finally, Schlu-terman testified that he asked his group leaders about the accident, and no one knew what happened or how a bale could have fallen out of the trailer.
(jLorene Schubert testified that she had no personal knowledge of what happened at the Mansfield facility because she was not there. She also stated that she was surprised that her husband had been injured, because he was always so careful.
While this evidence demonstrates that there was an accident resulting in Schubert being injured, it provides no substantial proof that the accident resulted from the negligence of Target. As stated before, except in cases where the doctrine of res ipsa loquitur applies, negligence must be proven. Bess, 309 Ark. 555, 831 S.W.2d 907.
Alternatively, the circuit court found that this was not a proper case for application of the doctrine of res ipsa lo-quitur. The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant. Mangrum, 359 Ark. 373, 198 S.W.3d 496; see also Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). It applies where the evidence of the true cause is available to the defendant but not to the plaintiff. Mangrum, 359 Ark. 373, 198 S.W.3d 496; Dollins v. Hartford Accident & Indem. Co., 252 Ark. 13, 477 S.W.2d 179 (1972). The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence. Phillips v. Elwood Freeman Co., 294 Ark. 548, 745 S.W.2d 127 (1988).
In order to invoke the doctrine of res ipsa loquitur, a plaintiff must show that (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident which caused the injury |7is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care; and (4) there is an absence of evidence to the contrary. Barker, 343 Ark. 8, 33 S.W.3d 476. We explained in Nichols, 278 Ark. 226, 644 S.W.2d 583, as follows:
It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.
Id. at 231, 644 S.W.2d at 586 (citing William L. Prosser, Handbook of the Law of Torts § 39 (4th ed.1971)). In other words, this presumption is limited to situations where the defendant’s negligence has been substantially proven. See Barker, 343 Ark. 8, 33 S.W.3d 476.
Here, we cannot say that the doctrine of res ipsa loquitur applies. Although Schubert asserts that the trailer was in the exclusive control of Target, as evidenced by the tamper seal placed on the trailer, this, in and of itself, is not enough to establish that res ipsa loquitur applies. Schubert simply did not put forth evidence that would have allowed the jury to eliminate all causes of the accident other than improper loading by Target employees. See Nichols, 278 Ark. 226, 644 S.W.2d 583 (holding that res ipsa loquitur did not apply in a case where all possible causes, other than improper loading of a logging truck, caused the accident). In fact, Schubert admitted that there appeared to be no problem with the load during the trip |sto Louisiana and that the trailer pulled straight as it should have. He also admitted that it is possible for a load to shift during transit, even with normal driving conditions.
Accordingly, we find no error in the circuit court’s order granting Target’s motion for directed verdict.
Affirmed. | [
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RAYMOND R. ABRAMSON, Judge.
| ; Appellant Miles Griffin appeals from a Washington County Circuit Court order denying his request for visitation with his daughter, M.G., and ordering retroactive child support. He further argues that the trial court erred in setting the amount of child support without referencing the Arkansas Child Support Guidelines, without evidence of his actual income and circumstances, and without considering the best interests of the child. Appellants Larry and Misty Madison (Madisons) appeal the trial court’s order denying their petition for guardianship of M.G. Appellee Ashley Osburn contends that the trial court was correct in those rulings but cross-appeals, asserting that the trial court erred in favoring an acknowledgment of paternity over scientific evidence and in granting grandparent-visitation rights to the Madi-sons.
| ¡¡M.G. was born on April 23, 2007. At the time of M.G.’s birth, Griffin and Os-burn had been cohabitating for several months. Griffin and Osburn signed and filed an acknowledgment of paternity naming Griffin as the father of M.G. on April 25, 2007. Griffin’s name was thereafter included on M.G.’s birth certificate.
Griffin and Osburn continued to cohabi-tate until their separation in the fall of 2007. While Griffin continued to see M.G. sporadically, his visitation was infrequent and his financial support was slight. The Madisons, however, were very involved in M.G.’s life and provided some financial support to Osburn. It is undisputed that the Madisons had a significant relationship with M.G. However, in February 2010, the Madisons’ relationship with Osburn deteriorated, and Osburn refused to allow the Madisons any further contact with M.G.
The Madisons thereafter filed a petition for guardianship on March 23, 2010, alleging that they stood in loco parentis over M.G. and that Osburn was an unsuitable parent. Osburn responded, denying Griffin was the biological father of M.G.
On April 8, 2010, Griffin filed a petition to establish paternity, to set child support, and to grant visitation. Osburn filed an answer and, once again, denied Griffin’s paternity. She also asserted that the paternity action had been brought in bad faith solely to further the Madisons’ position in the guardianship action. She then filed a motion for DNA testing on June 23, 2010.
|aThe paternity and guardianship actions were consolidated on June 28, 2010. On July 2, 2010, the Madisons filed a petition for grandparent visitation. Osburn responded, again denying paternity and alleging fraud, mistake of fact in the acknowledgment of paternity, or both.
A hearing on Osburn’s motion for DNA testing and the appellants’ request for visitation was held on July 20, 2010. At the hearing, Griffin testified that he lived with Osburn for four or five months prior to M.G.’s birth. He stated that he was staying with Osburn’s parents when Osburn got pregnant and that he had sexual relations with her around the time of M.G.’s conception. He stated that, at the time he signed the acknowledgment of paternity, he was not sure he was the father of the child, but that they both had a reason to believe he could be the father. He admitted subsequently signing an affidavit acknowledging he was not the biological father of M.G., but that he still considered himself her father and did not want DNA testing to be ordered that might eliminate him as her father.
Osburn testified that Griffin was present when M.G. was born and that he had signed the acknowledgment of paternity. She testified that she had had a caesarean section, was on morphine at the time she signed the acknowledgment, and had no recollection of signing it. She stated that, at the time of M.G.’s birth, she believed Jackey Bohanon to be the child’s father and that she and Griffin had talked about it several times. She stated that Griffin told her that he signed the acknowledgment of paternity because he was scared and nervous and did not know what to do. She did not threaten or coerce Griffin to sign the ^acknowledgment. She further stated that, although her motion for DNA testing indicated that she believed Griffin was the father of M.G., that information was incorrect and had been completed by her attorney.
After hearing the testimony of the parties, the trial court denied Osburn’s request for DNA testing on the basis that Osburn had failed to rescind the acknowledgment of paternity within the time allowed by law and that she had failed to prove fraud, duress, or material mistake of fact in the obtaining of the acknowledgment of paternity. The trial court found Griffin to be the legal father of M G., encouraged Griffin to visit with M.G. during her visits with the Madisons, but denied him separate visitation with the child at that time.
The final hearing was held on September 10, 2010, and continued on October 5, 2010. At the hearing, Osburn submitted a DNA test that identified Jackey Bohanon as the probable father of M.G. The trial court admitted the DNA test into evidence for the sole purpose of assessing Osburn’s credibility. Osburn admitted that the Madisons had a significant relationship with M.G. and that she had completely cut off contact with the Madisons in February 2010. She stated that the Madisons were not M.G.’s grandparents and indicated that the Madisons had become overbearing and that the relationship was becoming unhealthy. There was also evidence admitted at the hearing that Osburn was distant from the child and was content to allow other people, including the Madisons, to parent the child. There was further evidence that Osburn had overnight male visitors and her mother had smoked [smarijuana in the home. Because Griffin did not testify at the hearing on the merits, there was no additional information regarding his financial condition presented.
At the close of the evidence, the trial court denied the petition for guardianship finding that the Madisons had failed to prove that Osburn was an unsuitable parent, but granted grandparent visitation. The court also ordered Griffin to pay $45 per week child support based upon an imputed income of minimum wage and entered a judgment for back support in the amount of $6,820. The trial court denied Griffin’s request for visitation and stated that all back child support must be paid before visitation would be awarded.
The underlying issue upon which all but the guardianship claim relies is whether the trial court erred in finding that Griffin was the legal father of M.G. given that a subsequent DNA test confirmed that Griffin was not the biological father. Therefore, this issue must be resolved first.
I. Paternity
Griffin filed a petition to establish paternity after Osburn denied his paternity in the guardianship action. Osburn thereafter sought a DNA test pursuant to Arkansas Code Annotated section 9-10-108(a)(1) (Repl.2009) to determine whether Griffin was the biological father of M.G. Arkansas Code Annotated section 9-10-108(a)(1) provides:
Upon motion of either party in a paternity action, the trial court shall order that the putative father, mother, and child submit to scientific testing for paternity, which may include deoxyribonu-cleic acid testing, to determine whether or not the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father.
|fiThe trial court denied the motion, finding that Griffin was the established legal father of M.G. based upon the unrescinded acknowledgment of paternity. The trial court was correct.
By signing and filing the acknowledgment of paternity, Griffin became the legal father of M.G. Arkansas Code Annotated sections 9-10-120(a) and (b) (Repl.2009) provide that “[a] man is the father of a child for all intents and purposes if he and the mother execute an acknowledgment of paternity of the child” and that “[ajcknowl-edgments of paternity shall by operation of law constitute a conclusive finding of paternity, subject to the modification of orders or judgments under § 9-10-115, and shall be recognized by the chancery courts and juvenile divisions thereof as creating a parent and child relationship between father and child.” As the legal father of M.G., there was no need for Griffin to establish paternity, and the DNA testing requirements under section 9 — 10—108(a)(1) were not applicable.
Rather, this was substantively an attempt by Osburn to rescind the acknowledgment of paternity. Because more than sixty days had passed since the acknowledgment was filed, Osburn was required to prove that the acknowledgment was procured by fraud, duress, or material mistake of fact. The trial court found that Osburn had failed in her burden of proving fraud or material mistake of fact.
|7The elements of fraud are (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance upon the representation; (5) damage suffered as a result of the reliance. McAdams v. Ellington, 333 Ark. 362, 970 5.W.2d 203 (1998) (citing Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997)). Here, no fraud was perpetrated against Osburn. She testified that she signed the acknowledgment of paternity knowing that Griffin was not the father. Nor was there any fraud perpetrated against Griffin, because Osburn stated that she told Griffin that he was not M.G.’s father before the child was born. Moreover, there was no evidence of fraud against Jackey Bohanon, the person Osburn claimed was the father. Osburn testified that she told him he was M.G.’s father and he knew Griffin signed the acknowledgment of paternity.
Osburn also failed to prove a “mistake of fact.” Both parties signed the acknowledgment knowing that either (1) Griffin was not the father, or (2) at the very least, there was a chance he might not be. Thus, the parties were not mistaken as to any material fact when they signed the acknowledgment. Because Os-burn failed to prove fraud or material mistake of fact in the acknowledgment of paternity, we hold that the trial court did not clearly err in refusing to allow Osburn to rescind her acknowledgment.
Osburn argues that the trial court should have considered the DNA test that established that Bohanon was the father of the child when determining paternity. However, that test was not available at the hearing in which paternity was established. But, even if the test had been available at that time, it would have had no bearing on the issue of whether the | .^acknowledgment of paternity was based on fraud or material mistake of fact. Despite the knowledge that he may not be the biological father of the child, Griffin does not argue that he was defrauded into signing the acknowledgment of paternity and continues to assert the legal and financial responsibility for M.G. Osburn testified that she knew that Bohanon was the biological father when she signed the affidavit of paternity; thus the DNA test merely confirms this fact. It does not, however, prove fraud or mistake of fact, and is therefore irrelevant to the issue of whether the acknowledgment should be rescinded.
II. Visitation
Griffin argues that the trial court erred in conditioning his visitation upon payment of back support. Arkansas Code Annotated section 9-10-114 (Repl.2009) provides that “[w]hen any circuit court in this state determines the paternity of a child and orders the father to make periodic pay ments for support of the child, the court may also grant reasonable visitation rights to the father and may issue such orders as may be necessary to enforce the visitation rights.” Thus, under the statute, the grant of visitation was discretionary for the court.
Here, the court did not abuse its discretion in denying visitation. Griffin had provided little financial support to M.G. after his separation from Osburn. It is also undisputed that his visitation with M.G. was sporadic. Nothing in the order prevents Griffin from exercising visitation with M.G. during her visits with the Madi-sons, and the trial judge encouraged him to do so. Osburn even testified that she was willing to allow M.G. to visit Griffin. Thus, nothing in this order prohibits Griffin from establishing a relationship with M.G. and then petitioning the court for a modification of visitation in the future.
| pHowever, we reverse the trial court’s order making visitation contingent upon the payment of back child support. We hold that visitation should not be conditioned upon the payment of child support.
III. Child Support
Griffin next argues that the trial court erred in awarding back child support when it had not been pled. Here, as the legal father of M.G., Griffin has the legal responsibility to provide financial support for the child. Therefore, we find no error in the trial court ordering back child support.
He also argues that the trial court erred in setting the amount of retroactive and prospective child support by failing to reference the child-support guidelines, by imputing income without sufficient evidence of his actual income and circumstances, and by failing to consider the best interests of the child.
Section (I) of Administrative Order 10 states that the circuit court’s order “shall contain the court’s determination of the payor’s income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart.” Ark. Sup.Ct. Admin. Order No. 10(1). The circuit court’s order does not contain a determination of Griffin’s income, does not refer to the guidelines or the support amount required thereunder, and does not recite whether it deviated from the family-support chart. Therefore, we reverse and remand for further findings by the circuit court in compliance with Administrative Order No. 10.
1 inIV. Guardianship
The Madisons argue on appeal that the trial court erred in finding Osburn to be a suitable parent and in failing to establish a guardianship. A preference for the natural parent must prevail in third-party guardianship cases unless it is established that the natural parent is unfit. See Robbins v. State, 80 Ark.App. 204, 92 S.W.Bd 707 (2002); see also Dunham v. Doyle, 84 Ark.App. 36, 129 S.W.3d 304 (2003) (stating that the law prefers a parent over a grandparent unless the parent is proved to be incompetent or unfit). The evidence in this case does not support a finding that Osburn was an unfit parent. While Osburn’s conduct and lifestyle may not be ideal, there is no evidence that she is such an unfit parent that the child should be removed from her custody. As a result, the trial court did not err in denying the Madisons’ petition for guardianship.
V. Grandparent Visitation
On cross-appeal, Osburn argues that the trial court erred in granting the Madisons grandparent-visitation rights. The fixing of visitation rights is a matter that lies within the sound discretion of the circuit court. Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). The main consideration in making judicial determinations concerning visitation is the best interest of the child. Id. Further, our appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual questions and legal questions. Id. We have stated repeatedly that we would not reverse a finding by a circuit court in an equity case unless it was clearly erroneous. Id. We have also stated that a finding of fact by a circuit court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm |n conviction that a mistake has been committed. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the court to judge the credibility of witnesses. Id. This deference to the circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731.
The Madisons sought grandparent-visitation rights under Arkansas Code Annotated section 9-13-103(b)-(e) (Repl.2009), which allows a grandparent to seek visitation with a grandchild upon a showing that there is a significant and viable relationship with the child and that such visitation is in the best interest of the child. The trial court granted visitation, finding that the Madisons had met their burden.
Here, Osburn alleges that the trial court unconstitutionally applied the grandparent-visitation statute in this case and that it erroneously determined that the Madi-sons had rebutted the presumption in favor of her decision to deny visitation.
As for the constitutionality argument, this argument was not made below. Even constitutional arguments must be raised below and cannot be advanced for the first time on appeal. Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348. Thus, we do not reach this argument.
Osburn next argues that the trial court erred in finding that the Madisons had rebutted the presumption that her decision denying or limiting visitation to them was in the best interest of the child. Here, Osburn does not deny that the Mad-isons had a significant and viable relationship with M.G. Rather, she argues that there was evidence that the Madisons 112would be unable to respect Osburn’s role as the child’s mother and that such evidence proved that the Madisons would be unable to cooperate with her if visitation was allowed. However, while there was evidence of disagreement over parenting styles, there was no evidence that the Madisons did not cooperate with Osburn. Given the trial court’s opportunity to judge the credibility of the witnesses, this determination was not clearly erroneous.
Affirmed in part and reversed in part on direct appeal; affirmed on cross-appeal.
ROBBINS and WYNNE, JJ„ agree.
. During this time, the Madisons, who had been Griffin’s guardians during his minority, Bled a petition to adopt Griffin, which was granted in April 2010.
. An amended petition was filed on July 7, 2010.
. The temporary order was not filed until November 18, 2010 — the same day as the final order.
. Griffin failed to attend the second day of the hearing because he experienced car trouble.
. Arkansas Code Annotated section 9-10-115(d)(1) (Repl.2009) provides that "[b]eyond the sixty-day period or other limitation set forth in subsection (c) of this section, a person may challenge a paternity establishment pursuant to a voluntary acknowledgment of paternity or an order based on an acknowledgment of paternity only upon an allegation of fraud, duress, or material mistake of fact.”
. Arkansas Code Annotated section 9-10-115(d)(2) (Repl.2009) provides that "[t]he burden of proof shall be upon the person challenging the establishment of paternity.”
. One of the statutory factors used in establishing that visitation is in the best interest of the child is whether the grandparent is willing to cooperate with the custodian if visitation with the child is allowed. Ark.Code Ann. § 9-13-103(e)(3) (Repl.2009). | [
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LARRY D. VAUGHT, Chief Judge.
| Appellants Bertha and Fredric Dohle and Kathy and James Dohle appeal the order of the Benton County Circuit Court establishing prescriptive easements over their property in favor of appellees Sue Ann Duffield, Frances Augusta “DeDe” Duffield Johnson, and Jim Johnson. Appellants argue that the trial court clearly erred in awarding the prescriptive easements because appellees’ use of the appellants’ property was neither continuous nor adverse. We affirm in part and reverse in part.
Title to all of the land at issue (an eastern and western tract) was once held by appellee Sue Ann Duffield and her husband Otto Duffield. On January 2, 1985, the Duffields conveyed the eastern tract of their property to their daughter, DeDe Duffield Johnson and her husband Jim. The Johnsons reside in a house on the eastern tract. Water for their residence is pumped from a storage tank located in a spring house (built by the Duffields) on the [¿western tract. A pipe extends from the spring house to the Johnson residence, and the pump in the spring house is served electrical power by means of a power line extending from an electric pole also located on the western tract. The Johnsons pay for electrical service to the spring-house pump.
When the western tract of the Duffields’ property fell into foreclosure, it was purchased by Bertha and Fredric Dohle in 1989. Within the Dohle tract is a two-acre cemetery plot, where members of the Duf-field family have been buried. Access to the cemetery is by means of a road also located on the Dohles’ property. In 1996, the Dohles conveyed title to the cemetery, as well as ingress, and egress to the cemetery, to appellee Sue Duffield. Between the parties’ shared boundary line and the cemetery-access easement, there is a seventy-five-foot gap (the gap) that rests entirely on the Dohles’ property. Over the years, appellees have crossed the gap to enter the cemetery and to access their own property when inclement weather prevented them from using their own private, steep driveway.
On three separate occasions — September 23, 2000, April 18, 2004, and October 23, 2009 — appellants barricaded appellees’ access to the gap. Also, in October 2009, appellants padlocked the spring house, which resulted in a lack of water running to appellees’ house. In response, on October 28, 2009, appellees filed suit for trespass, for prescriptive easements in the gap and the spring house, alternatively, easements by necessity in the gap and the spring house, and injunctive relief. At trial, appellees claimed rights to the gap and the spring house, asserting that they had used them since 1985. Appellants claimed that appellees’ use of the gap 13and spring house was with permission, but conceded that Fredric Dohle barricaded the gap on three occasions after arguments with DeDe Johnson.
After taking the matter under advisement, the trial court entered a letter opinion on April 1, 2010, dismissing appellees’ claim for trespass but granting appellees easements by prescription in the gap and the spring house. In the letter opinion, the trial court found that the relationship between the parties was not one of “good neighbors.” The court concluded that ap-pellees used the gap and spring house “openly and notoriously” and found “the blocking of the [gap] by Dohle from time to time to be real proof and acknowledgment of the adverse nature of [appellees’] use of the Dohle land.” An order establishing prescriptive easements was entered by the trial court on April 9, 2010. Appellants appealed. On February 23, 2011, our court dismissed appellants’ appeal for lack of a final order because it failed to define the boundary lines of the easements. Dohle v. Duffield, 2011 Ark. App. 135, at 3, 2011 WL 693592. On June 23, 2011, the trial court entered an order modifying the order establishing prescriptive easements. Appellants have timely appealed from this order.
We review equity cases de novo on the record and will not reverse a finding of fact by the trial court unless it is clearly erroneous. Carson v. Cnty. of Drew, 354 Ark. 621, 624, 128 S.W.3d 423, 425 (2003). In reviewing a trial court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id., 128 S.W.3d at 425. Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. at 624-25, 128 S.W.3d at 425. A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a |4mistake has been committed. Id. at 625,128 S.W.3d at 425. It is this court’s duty to reverse if its own review of the record is in marked disagreement with the trial court’s findings. Id., 128 S.W.3d at 425.
At issue in this case is the trial court’s finding that appellees established prescriptive easements over the property of appellants.
A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. Like adverse possession, “prescriptive easements ... are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons.” In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. That statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101 (1987). «See also Ark.Code Ann. § 18-11-106 (Supp.1999) (enacted as Act 776 of 1995).
Carson, 354 Ark. at 625, 128 S.W.3d at 425-26 (citations omitted). If the use is continuous and unrestricted for the statutory period of limitations, the rights become permanent and irrevocable. Id. at 626, 128 S.W.3d at 427.
Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Id. at 626, 128 S.W.3d at 426. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Id., 128 S.W.3d at 426. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Id., 128 S.W.3d at 426. The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Id., 128 S.W.3d at 426. The plaintiff bears the burden of 1 fishowing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Id., 128 S.W.3d at 426.
The order of the trial court granting appellees a prescriptive easement in the spring house found that appellees’ use of it was adverse. On appeal, appellants challenge this finding. We hold that the trial court’s finding that appellees’ use of the spring house was adverse is not clearly erroneous because evidence of appellees’ adverse use of the spring house is considerable. The undisputed facts establish that appellees used the spring house to provide water to their residence on the neighboring tract from 1985 to 2009-be-fore and after appellants purchased the property on which the spring house sits. The evidence showed that there was a pipe that ran the water from the spring house, across appellants’ property, to DeDe and Jim Johnson’s home. Evidence showed that appellees maintained and repaired the spring house as well as the pump therein. Not only did appellees use the spring house to furnish water to their home, but they also arranged and paid for electrical utilities at the spring house to run the water pump since 1985.
This evidence — that appellees were maintaining two utilities on appellants’ property — establishes that appellees’ use of the spring house was adverse. Such adverse actions are charged to the landowner.
The general rule is that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed | (¡cognizant of it.
Hannah v. Daniel, 221 Ark. 105, 108, 252 S.W.2d 548, 550 (1952) (citing Waller v. Dansby, 145 Ark. 306, 224 S.W. 615, 617 (1920)). This rule has been applied to prescriptive easements. Childress v. Richardson, 12 Ark.App. 62, 65, 670 S.W.2d 475, 476 (1984); see also Dixie Furniture Co. v. Ark. Power & Light Co., 19 Ark.App. 160, 718 S.W.2d 120 (1986) (affirming summary judgment and awarding a prescriptive easement for a ninety-foot telephone utility structure and transmission lines because the purchasers were charged with notice of the structure and lines, the existence of which was apparent upon an ordinary inspection of the property).
Appellants acknowledge appellees’ extensive use of the spring house. Dohle testified that he knew “from the start” that appellees were pumping water from the spring house and that they were receiving electricity there as well. However, appellants claim that appellees’ use of the spring house was permissive. In dismissing appellants’ claim that appellees’ use of the spring house was with appellants’ permission, the trial court in its letter opinion found that “[i]t is also clear that the relationship between [appellees] and [appellants] has not been one of ‘good neighbors.’ Instead, there have been incidents of overt and outright aggravation and interference, separated by periods of simmering, contemptuous quiet.” The trial court’s finding that appellees’ use of the spring house was not with appellants’ permission is a finding of fact. In reviewing a trial court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Carson, 354 Ark. at 624, 128 S.W.3d at 425. Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. at 624-25, 128 S.W.3d at 17425.
Moreover, there was evidence contrary to appellants’ position that appellees’ use of the spring house was with permission. Dohle testified that he asked appellees for permission to tap into their electricity at the spring house so that he could use his own pump to provide water to his garden. For his use of the electricity, Dohle paid appellees a portion of their electric bills for a six-month period. Finally, DeDe testified that when Dohle asked to use appel-lees’ electricity, he said he would not use appellees’ spring-house water; instead, he said he would be pumping water out of his pond. For all these reasons, we hold the trial court did not clearly err in finding that appellees’ use of the spring house was adverse and in granting appellees a prescriptive easement in the spring house. We therefore affirm on this point.
Appellants also argue that the trial court clearly erred in granting appellees a prescriptive easement in the gap. On this point, appellants contend that not only did appellees fail to establish adverse use, but they also failed to establish continuous and uninterrupted use for the seven-year statutory period. Because our holding on the latter issue is dispositive on this point, we address it first.
In Kelley v. Westover, 56 Ark.App. 56, 938 S.W.2d 235 (1997), our court was presented with facts similar to those in the case at bar accompanied with the issue of continuous and uninterrupted use in the context of a prescriptive easement. There, the evidence was that for twenty years the Kelleys used the Westovers’ driveway as an alternate access during inclement weather because the Kelleys’ driveway was very steep. During that time, however, the Westovers employed various methods to keep the Kelleys from crossing the property: the Westovers asked the Kel-leys by telephone and in person to stay off the | ^property; they ran barbed wire across the road; they replaced barbed wires cut by the Kelleys; they removed a gate installed by the Kelleys and replaced the fence wire; they piled brush, logs, and other debris across the road; they posted no trespassing signs; they called the sheriffs office; and they felled trees across the road. Id. at 58, 938 S.W.2d at 235-36. On this evidence, the trial court found that the Kelleys’ sporadic crossing of the West-overs’ property was not continuous and uninterrupted use sufficient to establish a prescriptive easement. Id. at 57, 938 S.W.2d at 235.
On appeal, our court stated, “any unambiguous act of the owner of the land [that] evinces his intention to exclude others from the uninterrupted use of the right claimed breaks its continuity so as to prevent the acquisition of an easement therein by prescription.” Id. at 60, 938 S.W.2d at 236-37 (citing 25 Am.Jur.2d, Easements and, Licenses § 69 (1996)). Accordingly, we affirmed and held that the Kelleys’ use of the property had not been of such a continuous and uninterrupted nature as to vest in them a prescriptive easement. We stated, “the [Westovers] did not sit idly by and allow [the Kelleys] to use the property. They not only protested verbally, they also pursued a series of overt acts to obstruct the use of the alleged easement.” Id. at 60, 938 S.W.2d at 237.
Like the Westovers, appellants herein did not sit idly by and allow appellees to use the property. The facts in the instant case are undisputed that appellants pursued a series of overt acts to obstruct the use of the gap. Dohle testified that he blocked the appellees’ use of the gap. DeDe Johnson confirmed this, admitting that appellees’ use of the gap was not | continuous:
Q: .Okay. Now, you testified earlier that your use of [the gap] has been interrupted in the past?
A: Yes.
Q: Okay. So you agree with me that your use of [the gap] has not been continuous? That there have been periods when you’ve been interrupted; right?
A: Right.
DeDe testified that Dohle interrupted ap-pellees’ use of the gap on three different occasions — in 2000, 2004, and 2009 — and she offered examples of how Dohle blocked their use of the gap: he gated the open area of the fence; he padlocked his gate; he took down the gate and put up a fence; he placed a big tree stump, railroad ties, trailers, trucks, and tractors in front of the fence “so that there was no way that we could get through if we wanted;” and he posted no-trespassing signs. These blockades resulted in actual interruptions of appellees’ use that continued for days until Dohle removed them. Moreover, despite appellees’ sporadic use of the gap, these three interruptions got appellees’ attention. They were significant enough that DeDe documented them in her journal, and the barricades generated complaints from DeDe on each occasion.
We acknowledge that in Kelley we affirmed the trial court’s finding that the Kelleys’ |10use was not continuous and uninterrupted, and in doing so we stated that the trial court’s finding on such an issue is a question of fact for the fact-finder that we will not reverse unless it is clearly erroneous. Kelley, 56 Ark.App. at 60, 938 S.W.2d at 237. However, in the instant case, we are reversing the trial court because it clearly erred in finding that appel-lees’ use was continuous and uninterrupted for the statutory period. This clear error is demonstrated by DeDe’s admission that appellees’ use was not continuous and uninterrupted. The trial court’s clear error is compounded by the finding in its letter opinion that Dohle “from time to time” blocked the gap. While the trial court relied on this finding to reach its conclusion that appellees’ use of the gap was adverse, this same finding also establishes that appellees did not continuously and without interruption use the gap. Therefore, we hold that the trial court clearly erred in finding that appellees’ use of the gap was continuous and uninterrupted for the seven-year statutory period. Accordingly, we reverse on this point.
Affirmed in part; reversed in part.
HART and ROBBINS, JJ., agree.
. Appellees alleged that appellants and members of their families were trespassing on ap-pellees' cemetery.
. Appellants concede that appellees’ use of the spring house was continuous and uninterrupted for the required seven-year period.
. We refer back to the finding of the trial court that the parties were not "good neighbors,” which we interpret to be a finding that appellees' use of the gap was not with appellants’ permission. If appellees' use of the gap was not with permission, then it was adverse. If appellees’ use of the gap was adverse, then appellants’ blocking the gap on several different occasions using several different means can only be interpreted as an interruption of appellees’ use.
. DeDe testified that her driveway is impassable due to weather approximately one month of the year. There was no testimony about how many times a year appellees visit their cemetery. | [
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ROBIN F. WYNNE, Judge.
|! Mika and Jason Cheney both appeal from the Crittenden County Circuit Court’s order terminating their parental rights to their children, S.C., J.C., and D.C. Mika’s counsel has filed a motion to withdraw that is accompanied by a brief filed pursuant to Arkansas Supreme Court Rule 6-9 and Linker-Flores v. Arkansas Department of Human Services (I), 359 Ark. 131, 194 S.W.3d 739 (2004). Jason’s counsel has filed a merit brief. We affirm the circuit court’s termination order as to both appellants and grant the motion to withdraw filed by Mika’s counsel.
The Arkansas Department of Human Services (DHS) filed a petition for emergency order regarding S.C., J.C., and D.C. on May 20, 2009. The affidavit from a family-service worker that accompanied the petition states that on May 18, 2009, Mika was arrested for possession of controlled substances, driving on a suspended license, and endangering the welfare of a minor. Mika admitted using methamphetamine a “couple of days” prior. The Igchildren appeared dirty, and their diapers were soiled. Jason was contacted and denied any knowledge of Mika’s drug use or any drug use himself; a drug screen of Jason was negative. The affidavit further states that J.C. was born in 2006 with cocaine and marijuana in his system and that D.C. was born in 2007 with cocaine and amphetamines in her system. DHS opened a case on the family in 2008, and the case was still open at the time the affidavit was executed. On May 22, 2009, the circuit court entered an ex parte order in which it continued custody of the children with Mika and Jason; ordered Mika to complete a drug/alcohol assessment and submit to random dnig screens; and ordered both parents to, among other things, make sure the children were properly supervised, obtain and maintain stable housing and employment, notify DHS of address or phone number changes, and follow a safety plan for the children developed by DHS.
On August 3, 2009, DHS filed an amended petition for emergency custody and dependency-neglect. The affidavit that accompanied the amended petition states that during a weekly home visit on July 27, 2009, both Mika and Jason tested positive for methamphetamine, resulting in DHS taking a seventy-two-hour hold on the children. The circuit court filed an order on August 3, 2009, placing the children in DHS custody.
The circuit court entered an adjudication order on October 13, 2009, in which it adjudicated the children dependent-neglected based upon a stipulation by the parents that the facts in the August 3, 2009 affidavit were true. The order states that the goal of the case was reunification. Both Mika and Jason were ordered to submit to random drug screens and remain drug free; maintain stable housing and employment or legal income; notify DHS of ^telephone number or address changes and allow DHS to perform home visits; and cooperate with the Department of Children and Family Services (DCFS) and comply with the case plan during the pendency of the case.
In a review order entered on December 29, 2009, the circuit court continued custody of the children with DHS and continued reunification as the goal of the case. The parents were again ordered to perform all of the tasks set out in the adjudication order and were additionally ordered to attend all visitation sessions with the children and to submit to psychological testing. In another review order entered on March 11, 2010, the court continued the children in DHS custody and continued reunification as the goal of the case. The earlier requirements for Mika and Jason continued, along with a requirement that they enter and complete drug treatment. The circuit court also found that neither Mika nor Jason had substantially complied with the court’s previous orders or the case plan.
In a report to the circuit court dated June 18, 2010, the Court Appointed Special Advocate (CASA) volunteer assigned to the case stated that Mika and Jason missed almost three months’ worth of visitations with the children. The volunteer also stated that Jason was arrested on April 23, 2010, and charged with manufacturing crystal methamphetamine, manufac turing methamphetamine in the presence of a child, possession of drug paraphernalia, possession of a controlled substance with intent to sell, possession of a firearm by a convicted felon, and simultaneous possession of drugs and firearms.
A permanency-planning hearing was held on July 1, 2010. In the ensuing order, the circuit court continued the children in DHS custody and stated that the goal of the case was |4reunification with Mika. The circuit court also found that DHS made reasonable efforts to finalize a plan for reunification, that Mika had substantially complied with the previous orders and case plan, and that Jason had not complied with the previous orders or the case plan. After a fifteen-month review hearing on October 21, 2010, the circuit court entered an order in which it changed the primary goal of the case to termination of parental rights with a concurrent goal of adoption. The order from the hearing was entered on January 6, 2011. The court found that DHS made reasonable efforts toward reunification; however, despite those efforts, Mika had not maintained stable employment and Jason had not maintained stable housing, employment, or income.
DHS and the children’s attorney ad li-tem filed a joint petition for termination of parental rights on March 2, 2011. Mika did not appear for the hearing on the petition. At the hearing, Andrea Sias, a family-services worker with DHS, testified that during the case, Mika had eight positive drug screens and Jason had ten positive drug screens. Ms. Sias testified that since his arrest, Jason had not been able to comply with the case plan and that he did not have stable housing or employment. According to Ms. Sias, Mika had last visited the children on October 21, 2010, and had missed eight visits since that time. Jason missed four months of visitation and had last visited the children on January 14, 2010; since that time he had not had any contact with the children, nor had he sent anything to DHS for the children. Jason paid child support in January, February, and March 2010. Ms. Sias’s last contact with Mika prior to the termination hearing was on October 21, 2010. Ms. Sias recommended that parental rights be terminated due to the lack of a stable environment for | sthe children. Ms. Sias admitted on cross-examination that Jason had not been offered any services since his incarceration; however, she also stated that DHS does not offer services to persons who, like Jason, are incarcerated in the state penitentiary. Margaret Miller, an adoption specialist with DHS, testified that she believed the children were adoptable.
Jason testified that he pled guilty to residential burglary in 2008. As a result of his plea, he was placed on probation for a period of sixty months. In April 2010, Jason violated his probation when he was arrested. Jason’s probation was revoked, and he was incarcerated at the time of the hearing. Jason pled guilty to possession of a controlled substance with intent to manufacture in March 2011, and was placed on probation for ninety months, with a presumptive sentence of between 120 months’ and 480 months’ imprisonment if he violated his probation. Jason also testified that he was in a voluntary substance-abuse treatment program. He stated that his release date was January 3, 2012, that he would be paroled to his uncle’s house, and that his former employer told him to contact them when he got released. Jason admitted on cross-examination that he was not guaranteed to be paroled in January 2012. Jason also stated that he had attempted to maintain con tact with the children, who were placed with his cousin at the time of the hearing. He asked the court to give him four more months to get out of prison and get a job.
On August 9, 2011, the trial court entered an order terminating Mika and Jason’s parental rights. The circuit court found that Mika had not visited the children since October 21, 2010, save for a DHS Christmas party in December 2010, and that Jason had not visited |fithe children since January 14, 2010. The circuit court determined that termination of parental rights was in the children’s best interests because the children were adoptable, there would be a substantial risk of potential harm if the children were returned to the parents, Mika’s whereabouts were unknown, Mika had no stable housing, and Jason was serving a 120-month sentence in the state penitentiary and could not provide stable housing for the children. The circuit court found that DHS proved that the children continued out of the home for a period of twelve months and, despite meaningful efforts by DHS to rehabilitate the home and correct the conditions that led to the removal, the conditions had not been remedied. The circuit court also found that DHS proved that, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrated that the return of the children to the family home was contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances, which prevented the return of the juveniles to the family home. Those subsequent factors included Mika’s neglect and abandonment of the children by having no contact with them since December 2010, Jason’s 120-month prison sentence, and the fact that both parents tested positive for illegal drugs throughout the case, Jason submitted a timely appeal. Due to the inability of her counsel to locate her within the prescribed time for filing an appeal, Mika requested and was granted permission to file a belated appeal.
We review termination of parental rights cases de novo. Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination of parental rights 17must be proved by clear and convincing evidence. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
We will address Mika’s no-merit appeal first. In dependency-neglect cases, if, after studying the record and researching the law, appellant’s counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. Sup.Ct. R. 6 — 9(i)(l) (2011). The petition must include an argument section listing all adverse rulings to the appellant made by the circuit court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explaining why each adverse ruling is not a meritorious ground for reversal. Ark. Sup.Ct. R. 6-9(i)(l)(A). The petition must also include an abstract and addendum containing all rulings adverse to the appellant made at the hearing from which the order on appeal arose. Ark. Sup.Ct. R. 6-9(i)(l)(B). After Mika’s counsel filed a brief and motion to withdraw, the clerk of this court attempted to send her a copy of the brief and motion to withdraw along with a letter informing her of her right to file pro se points pursuant to Arkansas Supreme Court Rule 4-3(i)(3). The packet was returned unclaimed by the post office.
IsMika’s counsel asserts that there would be no merit to a challenge to the sufficiency of the evidence to support the termination. We agree. A circuit court may terminate parental rights if the court finds by clear and convincing evidence that termination is in the child’s best interest, considering the likelihood that the child will be adopted and the potential harm the child would suffer if returned to the parent’s custody; and finds by clear and convincing evidence that at least one statutory ground for termination exists. Fields v. Ark. Dep’t of Human Servs., 104 Ark.App. 37, 43, 289 S.W.3d 134, 138 (2008). In the instant case, the circuit court found that two grounds for termination existed: 1) that the children had been out of the home for a period of twelve months and the conditions that led to the removal had not been remedied and 2) that subsequent factors or issues arose after the filing of the petition for dependency-neglect that demonstrate that returning the children to the parent was contrary to their welfare. The children were brought into DHS custody due to drug use by Mika and Jason. Although Mika made efforts to comply with the case plan at times, she continued to test positive for drugs during the case. As her counsel notes, Mika failed to appear for the termination hearing, depriving the circuit court of the opportunity to determine whether her drug-use issues, which led to the removal of the children, had been resolved.
There was sufficient evidence to show that termination was in the children’s best interest. An adoption specialist with DHS testified that the children were adoptable. There was also evidence that the children would be subjected to potential harm if returned to Mika’s custody. As noted above, the status of her drug issues was undetermined. There was no |9evidence before the circuit court that Mika had either employment or appropriate housing for the children. A challenge to the sufficiency of the evidence to support the termination of Mika’s parental rights would be without merit.
Mika’s counsel has identified several rulings adverse to her during the termination hearing in addition to the decision to terminate. The first ruling was the circuit court’s decision to admit DHS’s court report. Evidentiary rulings by a trial court are reviewed for abuse of discretion. Sparkman v. Ark. Dep’t of Human Servs., 96 Ark.App. 363, 242 S.W.3d 282 (2006). Andrea Sias, the worker who prepared the report, testified and was cross-examined by Mika’s trial counsel. Ms. Sias essentially testified to all of the contents of the report, so, at most, the report was cumulative. Because the contents of the report were included in Ms. Sias’s testimony, Mika would not be able to demonstrate prejudice from the admission of the report, and we will not reverse without a showing of prejudice, as prejudice is not presumed. Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149, 2012 WL 474807.
Mika’s counsel next identifies several rulings on hearsay objections that were adverse to Mika. Mika objected when the caseworker testified that Mika was asked to leave drug rehabilitation and when the caseworker testified that Mika did not have a driver’s license; however, the caseworker obtained that information from Mika herself, placing the testimony within the hearsay exception for state ments by a party-opponent. Ark. R. Evid. 801(d)(2) (2011).
Mika also objected to testimony by the caseworker that she had another child during the case. DHS successfully argued to the circuit court that the evidence was relevant | inregarding Mika’s stability, which is a core issue in a termination proceeding. As the child was never mentioned again, we see no ground for appeal from the ruling. Mika also objected to the admission of Jason’s criminal record. However, as her counsel notes, she had no standing to object to this evidence, and none of the evidence was prejudicial to her.
During the adoption specialist’s testimony, the specialist started to reveal the county in which a prospective adoptive placement lived. The ad litem objected, and Mika argued that the objection was tardy. The circuit court noted that the location of the family was already in the record. Also, as Mika’s counsel notes, the location of the family is not relevant to the termination proceeding. Finally, Mika objected to a statement by the ad litem during closing arguments that indicated Mika did not care about the children. The circuit court overruled the objection, stating that the statement by the ad litem was a reasonable inference under the facts. Given the undisputed testimony that Mika missed many visitations with the children and was not even present during the termination hearing, we see no meritorious issue on appeal from the circuit court’s ruling.
There is one adverse ruling that Mika’s counsel abstracted but does not discuss in the brief. During cross-examination of Ms. Sias, Mika’s counsel asked Ms. Sias if she understood any reasons why Mika suddenly began falling back into drug use. Counsel for DHS objected on the basis that the question called for speculation. The circuit court ultimately sustained the objection; however, Ms. Sias went on to answer the question, responding that she did not talk to Mika about that issue. Although the circuit court’s sustaining of the objection is technically an adverse ruling, the ruling was not enforced because Ms. Sias was allowed to answer the ^question. Nevertheless, our supreme court has held that the failure to abstract or discuss every adverse ruling does not prohibit us from granting counsel’s motion to withdraw and affirming a termination order, when the rulings clearly did not constitute reversible error. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005); contra Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (holding that any such omissions in a criminal no-merit brief require rebriefing by the appellant’s counsel). The adverse ruling that Mika’s counsel fails to discuss clearly does not constitute reversible error. The termination order is affirmed as to Mika, and her counsel’s motion to withdraw is granted.
In his merit brief, Jason’s first argument is that DHS did not make meaningful and reasonable efforts to rehabilitate him because he was not offered services while he was in prison. DHS and the attorney ad litem argue on appeal that Jason waived this argument due to his failure to appeal from either the permanency-planning order or the fifteen-month-review order in which reasonable-efforts findings were made by the circuit court. The permanency-planning order, which was not appealed, states that Jason will only be allowed visitation with the children by letter or mail while incarcerated. The language in the order regarding visitation indicates that Jason was incarcerated at the time the permanency-planning order was entered. Jason’s argument on appeal is that DHS failed to make reasonable efforts to provide him with services during his incarceration. Because Jason failed to challenge the reasonable-efforts finding in the permanency-planning order, he has waived the issue for purposes of appeal. See Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 526, 385 S.W.3d 373.
112Even if the argument were preserved, it would still fail. Jason does not cite any specific services that DHS should have or even could have provided for him while he was incarcerated. At the termination hearing, he did not request that he be given more services; he only requested that the circuit court give him more time to get out of prison. He argues that he was ordered by the circuit court to visit with the children and was not allowed visits while incarcerated. His argument ignores the testimony at the termination hearing that he failed to visit with the children before he was incarcerated. His argument likewise ignores the fact that the permanency-planning order, which, again, was not appealed, only grants him mail visitation with the children while he is incarcerated. He also argues in his brief that he had arranged employment upon his release from prison. However, his testimony at the hearing was that his former employer told him to call after he was released. Jason’s argument is without merit.
Appellant’s second point on appeal is that termination was not in the children’s best interest. He argues that his rights should not be terminated solely because he is incarcerated. What he fails to mention in his argument is that he was sentenced to prison for ten years. He believed at the time of the termination hearing that he would be released within four months but admitted on cross-examination that this was not certain. Moreover, his incarceration was not the sole reason for the termination. The children were taken into custody by DHS due to drug use by Jason and Mika, and Jason pled guilty to a drug-related offense during the case. In combination with the testimony that he had multiple positive drug screens, this calls into question whether he would be capable of living a drug-free life once released from prison. 11sThus, the circuit court’s finding that the children would suffer potential harm if returned to Jason is not clearly erroneous. The circuit court’s termination order is affirmed as to Jason.
Affirmed; motion to withdraw granted.
PITTMAN and HOOFMAN, JJ., agree.
. After his probation was revoked, Jason received a 120-month prison sentence. | [
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BART F. VIRDEN, Judge
_JjThe Cleburne County Circuit Court terminated the parental rights of appellant Rebecca Ladd (now Pompa) to her daughter, H.H. (DOB: 12/27/2008). On appeal, Pompa argues that the trial court erred (1) in terminating her parental rights because the Arkansas Department of Human Services (DHS) failed to prove grounds and (2) in terminating reunification services. She does, not challenge the trial court’s best-interest determination. We affirm.
I. Procedural History
On January 23, 2015, DHS filed a petition for emergency custody and dependency-neglect concerning H.H. based on parental unfitness due to continued drug use by Pompa. Attached to the petition was the affidavit of DHS family-service worker, John Seward. He |2attested that on January 7, 2015, Pompa tested positive for methamphetamine and THC. Because H.H.’s maternal grandmother lived in the home and had agreed to provide care and supervision for H.H., DHS requested a “less-than-custody” order prohibiting Pom-pa from using illegal drugs. In the affidavit, Seward attested that DHS’s first contact with the family was on February 2, 2010, with a true finding for neglect and failure to protect H.H.; however, the case was closed when the parents moved to New Mexico. He stated that on March 25, 2011, H.H. first came into foster care in Arkansas because of inadequate supervision due to the parents’ drug use but that H.H. was returned to Pompa’s custody on August 22, 2012. Seward said that on January 4, 2013, H.H. came into foster care again due to Pompa’s inadequate supervision by permitting Hussman, whom she knew to be using methamphetamine, to care for H.H. on several occasions. On June 6, 2014, H.H. was returned to Pom-pa’s custody; however, DHS continued to monitor the family. Seward stated that, during that time, Pompa tested positive for THC several times, so DHS made a referral for outpatient drug treatment. Pompa attended a couple of sessions and then began missing appointments.
The trial court issued an ex parte order prohibiting Pompa from using illegal drugs and warning her that she risked having H.H. placed in DHS’s custody if she continued her drug use. Pompa stipulated that probable cause existed for the emergency order and agreed to the protection plan involving supervision of H.H. by Pompa’s mother, Ruth Towell-Wright. An adjudication hearing was scheduled for February-18, 2015.
|aOn February 3, 2015, DHS filed another petition for emergency custody and dependency-neglect concerning H.H. on the basis that Pompa had continued to use illegal drugs. In an affidavit attached to the petition, DHS family-service-worker supervisor, Johnelle Switzer, attested that on February 1, 2015, DHS was contacted by the police because someone in the community had seen Pompa parked at an apartment smoking drugs from a glass pipe. Pompa was stopped by the police, and she admitted having used methamphetamine the previous day. On February 2, 2015, Pompa was ordered to submit to a drug test. She could not produce a sample but admitted that she had used methamphetamine. Pompa also admitted having taken H.H. to live with Amy Armstrong in Little Rock in an effort to keep the child out of foster care. DHS took a seventy-two-hour hold on H.H. In an adjudication order entered February 27, 2015, Pompa stipulated to the dependeney-negleet finding based on parental unfitness due to continued drug use. An ex parte order for emergency custody issued, making a second probable-cause hearing necessary. The trial court found that probable cause existed for H.H. to remain in DHS’s custody and that DHS had provided reasonable services, including drug screens and referrals for drug treatment.
On April 13, 2015, DHS filed a motion to terminate reunification, services, alleging that H.H. had been subjected to aggravated circumstances, specifically, that there was little likelihood that additional services would result in successful reunification. DHS alleged that it had been involved with the family since March 2011, that H.H. had been taken into foster care three times due to illegal drug use by her parents, that extensive services had been | ¿offered, and that continued services would not likely result in permanent reunification due to the parents’ continued drug use, noncompliance, and lack of stable living conditions.
On July 14, 2015, a review order was entered. The trial court noted that DHS had requested not to proceed yet on its motion to terminate reunification services. The court stated that the goal continued to be reunification and found that DHS had made reasonable efforts to achieve that goal by offering, among other things, drug screening, referrals for drug treatment, drug assessments, mental-health counseling, family counseling, parenting classes, home visits, and transportation, The trial court found that Pompa was not in compliance with the case plan and ordered her to submit to and complete inpatient drug treatment. ■
DHS filed a petition for termination of both Pompa’s and Hussman’s parental rights on July 15, 2015, alleging grounds under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(o) (twelve-month failure to remedy), (ii)(o) (failure to provide significant material support and maintain meaningful contact), (iv) (abandonment by Pom-pa’s willingness to consent to the adoption of H.H. if she could choose the adoptive parents), (vifife) (other subsequent factors), and (ix)(q) (aggravated circumstances in that there was little likelihood of successful reunification). A hearing was held on October 28 and continuetj on October 30, 2015.
II. Healing Testimony
John Seward testified that DHS first became involved with Pompa in March 2011 and that it was “one continuous protective-services case” since then totaling approximately fifty-five months. According to Seward, Pompa tested positive for THC on July 29, '2015, and started inpatient drug treatment on August 3, 2015, which she completed on September | ⅛ 2015. He stated that Pompa was still attending outpatient drug therapy. He said that “on the surface, she has stopped using drugs for now.” He conceded that Pompa was doing the things she needed to do to address her drug addiction but pointed out that it would be an ongoing problem for any addict. He said that Pompa had shown that she can stay clean for four to six months at a time but that she “falters again.” Seward said • it appéared’ that Pompa • could get sober as long as DHS was monitoring her. He stated that, if not for the history of the. two previous cases, DHS would have possibly recommended increasing visitation.
Seward said that Pompa had regularly attended visits with H.H.; that she was doing well with her 'counseling; that she was employed at a nursing home; and that her home was appropriate. Seward said, however, that Pompa’s new husband, Manuel, had quit his job as a truck driver and was finishing-outpatient drug treatment. Seward testified that H.H.’s current foster parents wanted to adopt her and that DHS was recommending termination of Pompa’s parental rights.
Johnelle Switzer testified that when the case was opened by DHS in 2011, H.H. remained in foster care for twelve months before Pompa began to comply with the case plan; a trial home placement occurred after fifteen months; and H.H. was returned to her mother after a total of seventeen months. In January 2013, H.H. was placed in foster care where she stayed another seventeen months. Switzer said that DHS was ordered to keep the protective-services case open for at least ninety days. She said that she had kept the case open for longer than ninety days based on environmental issues and positive drug screens for methamphetamine. Switzer said that, in her experience, people who have had multiple relapses do not usually end up successfully “kicking the habit.” She said that there is no | ^permanency for a child when DHS returns custody "of a child to the parent only to take that child into custody again after a few months or even a year later. Switzer said that Pompa was facing that day the same challenges she had faced in March 2011. She said that she thought Pompa needed at least one year of sobriety before DHS would no longer have concerns because of Pompa’s history of relapsing. Switzer said that Pompa had married Manuel in September 2015 and that he had failed drug screens. She said that Pompa’s choice to marry another drug user concerned her.
Karissa Clemons testified that she has been H.H.’s foster parent since February 2, 2015, and that H.H. is doing very well. Winter Yielding, a licensed professional counselor, testified that H.H. had become her patient in April 2015 and that H.H. suffered from depression and anxiety. Yielding said that H.H.’s symptoms were characteristic of a child with major life changes, such as going into the foster-care system, and that her symptoms were also the result of instability and early unmet emotional needs. Yielding said that H.H. looked forward to .visits with Pompa, but Yielding attributed H.H.’s improvement to her current attachment to her foster family where she experienced stability.
Pompa testified that she is currently twenty-eight years old, that she began using marijuana when she was eight years old, and that she had used methamphetamine for nine or ten years. She said that she had smoked marijuana “every day, every minute of every hour” and later said that she smoked five or six joints per day. Pompa said that, after H.H.’s most recent removal from her custody, she (Pompa) continued to smoke marijuana for two or three months and that Manuel had used marijuana with her. She said that Manuel had left his job because of her drug use and H.H.’s removal from the home. She claimed that [ 7she had last used marijuana in June 2015 and had last used methamphetamine around the end of January 2015. Pompa said that she had relapsed on methamphetamine because she “was bored” and “went to see some old acquaintances that [she] shouldn’t have.” Pompa said that she had not yet completed her outpatient drug treatment or her mental-health counseling. She said that her outpatient drug treatment could end in three to six months but that she had not been given a completion date for the counseling. She said that she had made a promise to herself that she would never touch drugs again because of the consequences she now faced. Pompa said that she had learned from her mistakes and had turned her life over to a higher power.
Pompa testified that she had met Manuel on Plenty of Fish,' an online dating website, and that he had been there for her and had stepped up to be H.H.’s stepfather. She said, whereas before she had tried to quit drugs on her own with no help and had failed, she now has a wonderful man who supports her. She said that she and Manuel attend Celebrate Recovery every week and that her counselor held group meetings that resembled Narcotics Anonymous meetings, which was “over and above the case plan.” She could, however, identify only two steps of the twelve-step program and stated that she had no sponsor yet.
Manuel testified that he is currently twenty-eight years old and that he had begun using marijuana once a week when he was twenty. He testified that he had known Pompa since November 2012 and had used drugs with her in 2012. He said that he did not use drugs in 2013 or 2014 but used again in 2015. Manuel said that he had stopped smoking marijuana in June 2015 “because it’s no good” and made him sleepy and lazy. He said that he had never been to drug rehab.
| ¡¿Deborah McDonald, a volunteer for CASA (Court Appointed Special Advocates), testified that she had worked on the case involving Pompa and H.H. since March 2011 and that she recommended termination of Pompa’s parental rights.
III. Additional Procedural History and Trial Court’s Findings
A review order was entered on March 14, 2016, and the trial court noted that a hearing on DHS’s petition to terminate parental rights had been held on October 28 and 30, 2015, but that a decision had been delayed due to difficulties obtaining a transcript. A hearing scheduled for April 13, 2016, was continued until May 13, 2016, at which time the trial court stated that it would announce its decision. On August 15, 2016, the trial court entered a posttermination permanency-planning order, an order granting DHS’s motion for no reunification services, and an order granting DHS’s motion to terminate parental rights.
In its order granting the motion for no reunification services, the trial court found that H.H. had been subjected to aggravated circumstances in that there was little likelihood of successful reunification. The trial court went through the history since 2010 and noted that H.H. had been placed in foster care three times due to continued drug use by her parents or Pompa’s poor decision-making. The trial court stated that H.H. had had an open DHS case, whether court ordered or noncourt involved, for approximately fifty-five months and had spent over half her life in foster care. The trial court stated that, although Pompa had been sober for a few months, her drug rehabilitation had been a work in progress for years and that it was “cyclic improvement followed by relapse.” The trial court concluded that termination of reunification services was in H.H.’s best interest.
| sIn its order terminating Pompa’s parental rights, the trial court found that H.H. had been subjected to aggravated circumstances in that there was little likelihood of successful reunification with H.H. The trial court specifically found that the testimony of Pompa and her husband Manuel was not credible. The trial court made many of the same findings as in the no-reunification-services order. The trial court found that termination of parental rights was in H.H.’s best interest and said that “at some point, enough is enough.” The court concluded that Pompa lacked the capacity to remain permanently drug free and that H.H. would be at risk of harm if returned to Pompa’s custody. The trial court also found that H.H. is adoptable, specifically, her current foster parents wished to adopt her.
IV. Standard of Review
We review termination-of-parental-rights cases de novo. Williams v. Ark Dep’t of Human Servs., 2013 Ark. App. 622. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id. Termination |inof parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d 670.
V. Discussion
Pompa argues that the trial court erred in terminating her parental rights and likewise erred in terminating reunification services. Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B). Here, the trial court relied on the aggravated-circumstances ground in section 9-27-341(b)(3)(B)(te)(aj (¾) (A). “Aggravated circumstances” means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in. successful reunification. Ark. Code Ann. § 9-27-341 (b)(3)(B)(ix) (a) (3) (B) (i).
An order terminating reunification services and ending DHS’s duty to provide services to a party shall be based on a finding of clear and convincing evidence that the termination of reunification services is in the child’s best interest and that one or more grounds exist, including a determination by a circuit court that there is little likelihood that |nservices to the family will result in successful reunification. Ark. Code Ann. § 9-27-365(c)(l) & (2)(A)(v).
Pompa argues that this case began in January 2015 when she tested positive for drugs and that, although she tested positive again in July 2015, she was otherwise compliant with the case plan and was doing what she needed to do to regain custody of H.H. Pompa argues that DHS admitted that if her progress had continued, it would have eventually been enough for her to regain custody of H.H. Pompa points out that she was successful twice before in reunifying with H.H., so that “would seem to suggest a decent likelihood of reunification here.” Pompa says, “Under DHS’s doublespeak, past success is a pre dictor of future failure. It didn’t matter how Ms. Pompa did this time around; her history of complying with DHS requirements twice before renders compliance this time meaningless.”
After H.H.’s most recent removal in February 2015, Pompa failed only one drag test. She had completed inpatient drag treatment and was complying by attending outpatient drug treatment and counseling. She also had secured a'job and an appropriate home. While her progress is commendable, even full compliance with the case plan is not determinative; the issue is whether the' parent has become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep’t of Human Servs., 2016 Ark. App. 208, 489 S.W.3d 182. The trial court was not convinced that Pompa would not return to drags.
Pompa has consistently failed to keep her child out of foster care by returning to drags each time custody of H.H. has been returned to her. Pompa’s “multiple successful” drug treatments could also be described as “multiple failures,” given that drug treatment and rehab has as its goal the cessation of drug use. Poiripa has had drug treatment and has been I i «receiving other services from DHS since at least March 2011, yet she could not identify all twelve steps of the NA program and had not grasped the importance of having a sponsor. At the time of the termination hearing, Pompa had been sober approximately three months given that she tested positive for drugs near the end of July 2015. She would have liked the trial court to overlook her past failures and noncompliance, but evidence that H.H. had been in and out of foster care over a seven-year period was relevant to H.H.’s best interest, the likelihood of a successful reunification, and .the potential harm to H.H. See Chapman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 525, 443 S.W.3d 564. The trial court was free to consider Pompa’s actions in previous dependency-neglect proceedings in determining whether termination was appropriate. McKinley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 475, 471 S.W.3d 209. A parent’s past behavior is often a good indicator of future behavior. Shaffer, supra.
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile’s life in all instances in which the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile’s perspective. H.H. needs permanency, and her current foster parents would like to adopt her. The child’s need for permanency and stability may override a parent’s request for more time to improve the parent’s circumstances. Shaffer, supra. Pompa has been given numerous chances. to benefit from services and keep her daughter with her, but she has returned to drugs each time. We | ^cannot say that the trial court clearly erred in terminating Pompa’s parental rights and, for the same reasons, in terminating reunification services.
While Pompa'addressed the other grounds alleged in DHS’s petition, aggravated circumstances was the only ground relied on by the trial' court to support termination with respect to Pompa; and proof of only one statutory ground is sufficient to terminate parental'rights. Sharks v. Ark. Dep’t of Human Servs., 2016 Ark. App. 435, 502 S.W.3d 569.
Affirmed.
Gladwin and Brown, JJ., agree.
. The trial court also terminated the parental rights of H.H.’s father, Kevin Hussman, but he is not a party to this appeal.
. Tetrahydrocannabinol (THC) is the main chemical compound found in marijuana. | [
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ROBIN F. WYNNE, Associate Justice
Lin 1997, appellant Jeffrey Wendell Edwards was found guilty by a jury in the Washington County Circuit Court of rape, attempted rape, commercial burglary, and second-degree battery. In addition, the trial court revoked Edwards’s' probation for prior offenses of residential burglary and theft of property. The sentences for the six offenses were ordered to be served consecutively for a total of 70 years’ imprisonment. The Arkansas Court of Appeals affirmed. Edwards v. State, No. CACR-98-362, 1998 WL 760241 (Ark. App. Oct. 28, 1998) (unpublished).
On May 25, 2016, Edwards filed in the Jefferson County Circuit Court, which is in the county where the headquarters of the Arkansas Department of Correction (“ADC”) is located, a pro se petition for writ of habeas corpus. The circuit court dismissed the petition on the basis , that Edwards had not stated a ground for the writ. Edwards brings this appeal.
LA circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision is clearly erroneous when, although there is evidence to. support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id,
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Edwards argued in his habeas petition that he was' subjected to double jeopardy because the same elements that were used to prove that he committed rape were used to prove that he committed attempted rape. He further contended that the attempted rape of the same victim rendered the judgment invalid because attempted rape is a lesser-in'cluded offense of rape.
|3We affirm the order because Edwards did not state a ground on which a writ of habeas corpus could be issued. While some double-jeopardy claims are cognizable in habeas corpus proceedings, where the petitioner does not show that on the face of the commitment order there was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Fields, 2013 Ark. 416, at 6-7. Edwards’s ' double-jeopardy claim was an attack on the sufficiency of the evidence to sustain his conviction for both rape and attempted rape. This court has held that rape is not defined as a continuing offense. See Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. If there were some argument that could have been made that the rape and attempted-rape charges in his case were such that Edwards could riot legally be found guilty of both offenses, the assertion could have been raised, and settled, at trial and on the record on direct appeal. A habeas proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for raising an issue at trial or on direct appeal. Philyaw, 2015 Ark. 465, 477 S.W.3d 503.
Edwards’s allegation that attempted rape is a lesser-included offense of rape is also an issue that could have been addressed at trial. More importantly, it cannot be discerned from the face of the judgment that Edwards was convicted of an offense and also convicted of a lesser-included offense to that offense. Because the judgment-and-commitment order did not reflect on its face that appellant was convicted of both an offense and a lesser-included offense to that offense and because Edwards did not establish that the trial court laeked jurisdiction in his case, he did not meet his burden of showing that the face of the judgment demonstrated that the judgment was invalid. Russell v. Kelley, 2016 Ark. 224, 2016 WL 3131007.
| ¿Edwards refers in his brief to the fact that the circuit court entered its decision to dismiss his petition for writ of habeas corpus without a hearing. If the statement was intended to raise the failure to hold a hearing as a point for reversal of the order, we have held that a hearing on a petition for writ of habeas corpus is not required if the petition does not allege either of the bases for relief proper in a habeas proceeding; and even if a cognizable claim is made, the writ will not be issued unless probable cause is shown for the writ to be issued. Philyaw, 2015 Ark. 465, at 4, 477 S.W.3d 503, 506. If a petitioner in a habeas proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his burden of demonstrating a basis for the writ to issue. Russell, 2016 Ark. 224. As stated, the claims Edwards raised in his petition were not within the purview of a habeas proceeding. The circuit court was therefore not clearly erroneous in denying habe-as relief without a hearing.
Finally, Edwards contends that the circuit court erred by declaring that the habeas petition constituted a “strike” under Arkansas Code Annotated section 16-68-607 (Repl. 2005). Section 16-68-607 precludes an incarcerated person from bringing a civil action or an appeal therefrom when he has, on three or more prior occasions, brought an action that was frivolous, malicious, or failed to state a claim on which relief may be granted. Habeas petitions that fail to state a claim on which relief can be granted are appropriately counted as strikes under section 16-68-607. Because Edwards’s petition clearly failed to state a claim on which relief was merited, it was not error for the circuit court to declare that the petition constituted a strike under the statute.
Affirmed.
Womack, J., concurs in part and dissents in part.
Baker and Hart, JJ., dissent.
. Even though Edwards is housed in Texas by agreement between the Director of the ADC and Texas authorities, he remains under the jurisdiction of the Director, and a writ of habeas corpus is ' returnable in Jefferson County. Hundley v. Hobbs, 2015 Ark. 70, 456 S.W.3d 755. | [
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JOHN DAN KEMP, Chief Justice
11Appellant Brad S. Hortenbérry was convicted by a Greene County jury of one count of rape and one count of sexual indecency with a child, for which he was sentenced to concurrent, terms' of life and seventy-two months, respectively. The victim of both crimes, D.D., was under the age of thirteen when- appellant performed oral sex on him. For reversal, appellant contends that the circuit court abused its discretion by admitting evidence, in violation of Arkansas Rules of Evidence 403 and 404(b) (2016), that appellant performed similar sexual acts on two other boys, who are around the same age as D.D., and on a physically disabled man who lived with appellant. We affirm.
I. Factual and Procedural Background
A. Pretrial
On November 17, 2015, the State filed a felony information charging appellant with one count of rape, in violation of Arkansas Code Annotated section 5-14-103(a)(3)(A) la(Repl. 2013), and one count of sexual indecency with a child, in violation of Arkansas Code Annotated section 5-14-110(a)(1). Appellant filed a pretrial motion in limine requesting that the circuit court prohibit the State from presenting any evidence of other crimes, wrongs, or acts allegedly committed by him. The State filed a motion in limine seeking a pretrial ruling that the testimony of three witnesses, C.R., D.M., and B.C., would be admissible under the pedophile exception to Rule 404(b) and that evidence of prior acts of sexual misconduct would be admissible to show appellant’s motive, opportunity, intent, plan or knowledge, or absence of mistake.
At a pretrial hearing on the admissibility of the testimony, the State averred that C.R. and D.M. are young boys who alleged that appellant had performed oral sex on them and that the sexual abuse had occurred whenever they spent the night at appellant’s house and were in appellant’s care. Appellant disputed that the boys had been in his care and objected to their testimony. The circuit court found that C.R. and D.M. are around the same age as the victim, D.D., that the sexual acts they described were similar to those acts alleged by D.D., and that the boys were all under appellant’s care and supervision when the acts occurred. Accordingly, the circuit court ruled that the evidence was admissible under the pedophile exception to show “a depraved sexual preference or conduct” similar to that |,qalleged by the victim. The circuit court also ruled that the evidence was admissible under Rule 404(b) because it had independent relevance to certain issues that the jury would have to decide, such as intent and motive.
The State called B.C. to testify at the hearing. B.C., who was thirty-one years old at the time of trial, testified that he has cerebral palsy, that he has been confined to a wheelchair all his life, and that he is “supposed to be mildly mentally retarded.” He further stated that because of his physical limitations, he needs, assistance with things such as getting on and off a toilet, bathing, managing his finances, and preparing his meals. B.C. began living with appellant in Indiana when he was nineteen years old and did so for eléven or twelve years. B.C. moved with appellant from Indiana to Arkansas in 2006. B.C, stated that because he could not bathe himself, appellant would give him baths. B.C. testified that one time, appellant bathed him and then laid him on the bed and said, “I’m gonna show you what feels good.” He said that appellant “sucked my private parts ... and then jacked off into a paper towel.” B.C. pushed appellant away. B.C. said that appellant did the same thing to him on one or two other occasions. B.C. also said that appellant told him that if he ever told anybody what had happened, appellant would get in trouble.
Appellant argued that B.C.’s testimony was inadmissible under Rule 404(b) because it was being offered to show only that appellant was “some bad guy who commits bad acts.” Appellant also argued that B.C.’s testimony did not fit within the pedophile exception because B.C,' was an adult when the alleged sexual conduct occurred. The State responded that, despite B.C.’s age, because of his disabilities and because he was under appellant’s care, the pedophile exception should apply to him. Alternatively, the State argued that B.C.’s | testimony was admissible under Rule 404(b) to show appellant’s plan, scheme, or modus operandi.
The circuit court stated that it was not aware of any cases in which the pedophile exception had been applied to an adult with physical and mental disabilities but noted that those who prey on children could have the same “depraved proclivity for such activities” toward an older person who is physically or mentally unable to resist the sexual advances. The circuit court found that B.C. was under appellant’s “care and control” and that B.C. depended on appellant for his basic needs. The circuit court had the opportunity to observe B.C. while he testified and noted that B.C. had “significant involuntary movement” and “exhibited some exertion ... in an effort just to try to remain sitting on his seat during the course of his testimony.” The circuit court found that B.C. was “relatively defenseless to fight off or challenge ... the sexual approaches” of appellant. In addition, the circuit court found that the acts described by B.C. were “consistent with the type of sexual activity that [appellant] is accused of committing with the victim in this case.” The circuit court' ruled that B.C.’s testimony was therefore admissible under the pedophile exception. Alternatively, the circuit court ruled that “under strictly a 404(b) analysis, regardless of the pedophile exception,” B.C.’s testimony had independent relevance to show appellant’s motive, intent, and absence of mistake or accident. The circuit court further ruled that the probative value of B.C.’s testimony outweighed its prejudicial effect and that it would be admissible at trial.
I bII. Trial
D.D., the victim in this case, was thirteen when he testified at trial. D.D. was a friend and classmate of appellant’s stepson, D.H. D.D. testified that he and D.H. played together at appellant’s home. D.D. sometimes spent the night there. When staying overnight, D.D. slept on the living room floor on a pallet, and appellant slept in a chair in the living room. D.D. testified that appellant touched D.D.’s penis with his mouth “fifteen or more times.” D.D. stated that appellant would put D.D.’s penis in his mouth and “move [ ] his mouth up and down on it.” According to D.D., these incidents occurred in appellant’s living room and back bedroom.
D.D. said that he sometimes spent time with appellant in a hot tub that was in an outbuilding on appellant’s property. D.D. testified that he always wore his swimming trunks while in the hot tub but that appellant was naked whenever he got in the hot tub with D.D. D.D. stated that appellant provided him with alcoholic beverages and that appellant bought video games for D.D. and other children.
D.D.’s mother, Misty Dancer, testified that she had been a close friend of appellant’s for eight to ten years and that her husband had known appellant for approximately twenty years. She stated that she had become acquainted with appellant through D.D.’s friendship with D.H. Dancer stated that she and her family often attended gatherings at appellant’s home. "While there, they frequently spent time in appellant’s outbuilding, which Dancer referred to as a “man cave.” She said that the “man cave” was equipped with a bar and a hot tub. Dancer testified that she allowed D.D. and her other children to spend the night |Rwith appellant and that appellant had bought the kids “numerous things,” such as shoes and video games.
C.R., who was fifteen years old at the time of trial, testified that he would go to appellant’s house when he visited his grandmother, who lived a few miles from appellant’s house. When he went to appellant’s house, he played video games, rode four-wheelers, and walked in the woods surrounding appellant’s property. C.R. stated that he was twelve years old when he started going to appellant’s house and that he sometimes stayed there on weekends or for “weeks at a time.” C.R. stated that the first time he spent the night at appellant’s house, appellant gave him a “tiny white pill” to help him sleep better. C.R. said that the pill made him feel “strange.” C.R. and appellant slept on pallets on the living room floor. C.R. testified that, during the night, when “the medicine wore off,” he woke up and did not see appellant on the pallet next to his. C.R. said that his penis felt wet, and he realized that it was in appellant’s mouth. C.R. testified that another time when he spent the night at appellant’s house, appellant came into the room where he was watching a movie and “asked me if I was horny yet.” C.R. responded, “No,” and appellant left. C.R. also testified that appellant once tried to bathe him and that he saw appellant giving baths to other boys. According to C.R., appellant would help the boys “scrub themselves ... everywhere” on their bodies. C.R. related that on one occasion, appellant was wearing boxer shorts while bathing D.M. C.R. further testified that he saw appellant give “little white pills” to D.D. and D.M. and that he heard appellant tell them that the pills would “help them sleep.” C.R. said that appellant bought him a BB gun, Nerf guns, and headsets and that he had bought similar gifts for other children.
| 7C.R’s mother, Stephanie Bates, testified that C.R. frequently visited appellant’s home, sometimes staying for weeks at a time. Bates said that lots of children spent time at appellant’s home and that while there, they swam in appellant’s pool, rode four-wheelers, and played videogames. Bates testified that one time C.R. could not sleep and asked her if he could have a pill like appellant had given him to sleep. Bates said that appellant bought C.R. many gifts, including a BB gun, a calculator, and Nerf guns. She said that she did not allow C.R. to keep the gifts and sent them back to appellant.
D.M., C.R.’s cousin, was thirteen years old when he testified at trial. D.M. stated that whenever he spent the night at appellant’s house, he usually slept on the living room floor and that appellant slept on the floor with him or in a chair. D.M. further stated that every time he spent the night at appellant’s house, appellant gave him a “round white pill” to help him sleep. D.M. said that the pill made him fall asleep faster than he normally would and that the pill made it harder for him to wake up. D.M. testified that appellant made him uncomfortable because he would “always touch my balls a lot” and would “jack me off [a] lot when we were in the bath.” D.M. explained that when he used the term “jack me off,” he meant that appellant would “move his hand up and down” on D.M.’s penis while D.M. was in the bathtub. D.M. stated that once when he was asleep at appellant’s house, he “woke up feeling something” and realized that appellant was sucking his penis. Appellant took D.M. on outings, and D.M. said that, one time, he and appellant were at a' fair and appellant tried to get D.M. to go into a restroom so appellant could masturbate him. D.M. testified that appellant said, “Come on, come on, I want to go jack you off in the bathroom.” D.M. | «told him no. D.M. also said that appellant took him to Walmart and bought him things, such as movies and clothes.
D.M.’s grandmother, Jerri Haywood, also testified at trial. She said that D.M. lived with her and that she got custody of him when he was six years old. Haywood said that' she first met appellant when D.M. and D.H. were in first grade and played basketball together. She said that she also- attended the same church as appellant and his family. Haywood testified that appellant spent time with D.M. at her house and that they went to appellant’s house for cookouts. She said that she allowed D.M. to spend the night at appellant’s house. Haywood stated that appellant frequently bought gifts for D.M. She said that appellant bought an air gun for D.M., even though she had told appellant not to do so. Haywood testified that appellant bought deodorant and cologne for D.M. and that appellant bought underwear for D.M. “because he wanted him to wear those little boxer shorts.”
The State called B.C. to testify at trial. The substance of his testimony was the same as his testimony at the pretrial hearing.
After hearing additional evidence and closing arguments, the jury retired to reach its verdict. The jury found appellant guilty of rape and sexual indecency with a child. Appellant was sentenced to life imprisonment for rape and a concurrent term of seventy-two months for sexual indecency with a child.
II. Arguments on Appeal
Appellant contends that, pursuant to Rule 404(b), the circuit court abused its discretion in allowing C.R., D.M., and B.C. to testify about appellant’s sexual ¡conduct with them. He also challenges the admission of the bad-acts evidence under Rule 403, |.flcontending that the prejudicial effect of the evidence outweighs its probative value. The State contends that the testimony of C.R, and D.M. was admissible under the pedophile exception to Rule 404(b). The State further contends’that B.C.’s testimony was admissible under Rule 404(b) or, alternatively, under the pedophile exception to Rule 404(b). 1
III. Applicable Law
Rule 404(b) states that
[ejvidenee of other crimes, wrongs, or acts is not admissible to prove the charr acter of a person in order to show that he acted in conformity therewith. 'It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The first sentence provides the general rule excluding evidence of a defendant’s prior bad acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions to that rule. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264. We have explained that evidence, is not admissible under Rule 404(b) simply to establish that the defendant is a bad person who does bad things. See id., 424 S.W.3d 264. Rule 404(b).permits the introduction of evidence of prior bad acts if the evidence is independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. See, e.g., Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
Additionally, this court has recognized a separate “pedophile exception” to the general rule that evidence of a defendant’s prior bad acts cannot be used to prove that the defendant committed the charged crime. Craigg, 2012 Ark. 387, 424 S.W.3d 264. The pedophile, exception allows the State to. ¡introduce evidence of a defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with the person or class of persons with whom the defendant has an intimate relationship. E.g., Hendrix v. State, 2011 Ark. 122, 2011 WL 1177219. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. E.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). There are two requirements for this exception to apply: (1) a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct, and (2) evidence of an “intimate relationship” between the defendant and the victim of the prior act. See, e.g., Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008).
Even if evidence is admissible under a bad-acts exception, the evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403; see, e.g., Holland v. State, 2015 Ark. 341, 471 S.W.3d 179 (stating that evidence to be admitted under the pedophile exception is also subject to exclusion under Rule 403); Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) (noting that even if evidence meets the requirements of Rule 404(b), the evidence may still be excluded under Rule 403). Thus, a circuit court may refuse to admit evidence that is unfairly prejudicial to the defendant, even if it might be relevant.
Finally, we have held that a circuit court .has broad discretion in deciding evi-dentiary issues, and its decision will not be, reversed absent an abuse of discretion. E.g., Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g., Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004).
InIV. Analysis
A. Testimony of C.R. and D.M.
Appellant contends that no exception to Rule 404(b) was applicable to the testimony of the three witnesses. The State responds that the testimony of C.R. and D.M. was admissible under the pedophile exception to Rule 404(b).
C.R. and D.M.’s testimony at trial éstab-lished a sufficient degree of similarity between the acts they alleged and the conduct with which appellant was charged in the instant case. D.D., who was thirteen at the time of trial, testified that appellant performed oral sex on him when he stayed at appellant’s house. C.R., who was fifteen at the time of trial, testified that appellant performed oral sex on him when he stayed at appellant’s house. Likewise, D.M., who was thirteen at the time of trial, testified that appellant performed oral sex on him when he stayed at .appellant’s house. D.D. testified that appellant provided him with alcohol. C.R. testified that appellant gave him a “tiny white pill” to help him sleep. D.M. testified that appellant gave him a “round white pill” to help him sleep. Each boy testified that when he spent the night at appellant’s house, he slept on a pallet on the living room floor. Appellant also slept in the living room—in a chair or on a pallet on the floor. Testimony at trial revealed that appellant bought various gifts for the boys. Here, the similarities in appellant’s conduct toward D.D., C.R., and D.M. demonstrate appellant’s depraved sexual instinct and his proclivity for deviate sexual activity with prepubescent boys whom he has befriended. See, e.g., Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373 (concluding that there was a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct when both the witness and the victim, who 112were around the same age when the alleged abuse occurred, testified to forced masturbation and oral sex and stated that appellant showed them pornographic movies).
In addition, the evidence showed that appellant had an intimate relationship with C.R. and D.M. The boys, at appellant’s invitation, were frequent guests at his home. They were permitted to stay with appellant at his home for weeks at a time. The alleged abuse occurred whenever appellant was entrusted with the boys’ care. Testimony at trial clearly established that their relationship with appellant was “close in friendship or acquaintance, familiar, near, or confidential.” Parish v. State, 357 Ark. 260, 270, 163 S.W.3d 843, 849 (2004); see also Craigg, 2012 Ark. 387, 424 S.W.3d 264 (recognizing an intimate relationship between the perpetrator and victims when the perpetrator held the position of a care-taking adult with attendant authority); Parish, 357 Ark. 260, 163 S.W.3d 843 (concluding that the intimate-relationship factor of the pedophile exception was satisfied when the victim was an overnight guest in the perpetrator’s home); Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998) (stating that an intimate relationship exists when the perpetrator puts himself in a position to obtain access to a child); Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998) (holding that an intimate relationship existed when the witness knew the accused and his family and was allowed to spend the night in the accused’s home). We conclude that the circuit court did not abuse its discretion in ruling that the testimony of C.R. and D.M. was admissible under the pedophile exception to Rule 404(b).
Appellant contends that the circuit court failed to conduct a Rule 403 balancing test before admitting the testimony of C.R. and D.M. We do not address this argument because it is not preserved for our review. Although appellant raised a Rule 403 challenge to the 11stestimony, he failed to obtain a ruling from the circuit court. We do not address the merits of an argument on appeal when the appellant has failed to obtain a ruling from the circuit court. See Henderson v. State, 360 Ark. 356, 363, 201 S.W.3d 401, 406 (2005).
B. Testimony of B.C.
The circuit court ruled that B.C.’s testimony was admissible under the pedophile exception to Rule 404(b) and, alternatively, that B.C.’s testimony was admissible under Rule 404(b) because it had independent relevance to issues before the jury, such as intent and motive. Appellant contends that the circuit court abused its discretion in admitting B.C.’s testimony under the pedophile exception to Rule 404(b) because B.C. was an adult when the alleged sexual conduct occurred. We agree.
Under the pedophile exception, we have approved allowing evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. E.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). We decline to expand the pedophile exception to include evidence of a defendant’s similar acts with an adult. Consequently, we hold that the circuit court abused its discretion in admitting B.C.’s testimony under the pedophile exception.
Appellant next contends that the circuit court abused its discretion in admitting B.C.’s testimony as independent-relevance evidence under Rule 404(b). We disagree. We find persuasive the State’s contention that B.C.’s testimony was independently relevant to show that appellant engaged in a deliberate course of conduct to engage in oral sex with younger men and boys who were in his household and who lacked the ability to resist his | uactions. Therefore, under the unique facts and very limited circumstances of this case, we hold that the circuit court did not abuse its discretion in admitting B.C.’s testimony as independent-relevance evidence under Rule 404(b).
Finally, appellant is mistaken in his contention that the circuit court failed to perform a Rule 403 analysis of whether B.C.’s testimony was more probative than prejudicial. After hearing B.C.’s testimony at the pretrial hearing, the circuit court specifically found that the probative value of B.C.’s testimony outweighed any prejudicial effect.
V. Rule h~3(%)
Pursuant to Arkansas Supreme Court Rule 4—3(i) (2016), the record has been reviewed for all objections, motions, and requests that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age, Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013),
. A person commits sexual indecency with a child if being eighteen years of age or older, the person solicits another person who is less than fifteen years of age or who is represented to be less than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or sexual contact. Ark. Code Ann. § 5-14-110(a)(1) (Repl. 2013). | [
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RAYMOND R. ABRAMSON, Judge
hDeondre’ Johnson appeals the Phillips County Circuit Court order dismissing his declaratory-judgment action against Equity Insurance Company (Equity). On appeal, Johnson argues that the circuit court erred in dismissing the suit. We affirm,
On March 4, 2012, Johnson was a passenger in a car that was rear-ended by a vehicle driven by Anthony Weeden. Equity insured the car that Weeden was driving at the time of the accident. Johnson filed suit against Weeden in'the Phillips County Circuit Court for negligence arising out 6f the accident, and he obtained a jury verdict in the amount of $8,000.
| ¡(Thereafter, on August 18, 2015, Equity filed a declaratory-judgment action against Johnson and Weeden in the Pulaski County Circuit Court. Equity sought an order declaring that its liability coverage on the car did not exist at the time ‘of the accident.
On September 11, 2015, Johnson filed a declaratory-judgment action against Equity in the Phillips County Circuit Court. He sought an order declaring that Equity’s liability coverage on the car extended to the accident. Johnson also alleged a bad-faith claim against Equity. Johnson served Equity with the complaint on September 16, 2015.
On October 1, 2015, Equity filed a motion in the Phillips County Circuit Court to dismiss Johnson’s complaint pursuant to Arkansas Rule of Civil Procedure 12(b)(3) and (b)(8). Equity asserted that because it filed suit first in Pulaski County on the issue of liability coverage, it established venue there, and Johnson’s suit in Phillips County should be dismissed. Johnson responded that the case should not be dismissed because even though Equity filed suit first in Pulaski County, Equity had not served him with a summons in that suit. He pointed out that he perfected service on Equity in the Phillips County case on September 16, 2015. Thus, Johnson argued that the first to both file and perfect service established proper venue. After Johnson had filed his response, Equity served him with the Pulaski County complaint on November 20, 2015.
On January 15, 2016, the Phillips County Circuit Court held a hearing on Equity’s motion to dismiss, and on that same day, the court entered a written order granting the motion and dismissing Johnson’s complaint. Johnson timely appealed the order to this court.
On appeal, Johnson argues that the court erred in dismissing his action because he established venue first by filing suit and serving Equity in the Phillips County'action before [^Equity served him in the Pulaski County action. In making this argument, he relies on our supreme court’s decision in Farm Bureau Mutual Insurance Co. of Arkansas v. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291, asserting that it stands for the proposition that venue is established' only after a complaint is filed and service is obtained. Johnson points out that Gadbury-Swift cites Hicks v. Wolfe, 228 Ark. 406, 413-14, 307 S.W.2d 784, 789 (1967), and Hicks, specifically states that “litigants .,. determine venue by diligence in filing suit and obtaining process.”
We find Johnson’s argument without merit. Gadbury-Swift does not hold that venue is fixed only after service is obtained. Gadbury-Swift holds that the first party to file suit establishes venue and the doctrine of forum nonconveniens cannot be invoked to dismiss a suit when venue is proper in another county. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291. The Gadbury-Swift court cited Hicks only to support its proposition that the doctrine of forum nonconveniens ’ did not apply between counties.
Moreover, the Arkansas Rules of Civil Procedure were adopted following Hicks, and Rule 3 states that an action , “is commenced by filing a complaint with the clerk of the court.” See Ark. R. Civ. P. 3. Arkansas law prior to Rule 3 provided an. action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff. Ark. Stat. Ann. § 27-301 (Repl. 1962); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). Section 27-301 was subsequently changed by an earlier version of Rule 3, which contained a sentence providing that an action would not be' deemed commenced unless service was actually obtained within 60 days of filing the complaint. Green, 304 Ark. 484, 803 S.W.2d 536; That sentence was deleted, leaving the present Rule 3. At the same' time |4the deletion was made in Rule 3, the time requirement for service was moved to Rule 4(i). Id. The Reporter’s Notes on these changes are helpful in interpreting and understanding Rule 3:
This Rule changes Arkansas law. The statute, Ark. Stat Ann. § 27-301 (Repl. 1962), which is superseded by this rule provided, in part, that an action was commenced ■ by filing a complaint and placing it and a summons in the hands of the sheriff of the proper County. Under this Rule, an action will commence without regard to receipt by the process server, subject only to the requirement that service be complete within 60 days from the filing of the complaint, unless the time for service has' been extended by the court.... This rule will do away with uncertainty in “race to venue” and statute of limitation cases as to where or when the action was first .commenced. It will also do away with the need to decide whether the Complaint and Summons have been placed in' the hands- of the sheriff with reasonable expectations of service or whether the Complainant has acted in good faith in trying to effect service.
Ark. R. Civ. P. S rep. notes. In the current Rule 4, the time requirement for service is 120 days. Accordingly, under Arkansas law, an action is first commenced by filing a complaint with, the clerk of the court subject to the requirement that the plaintiff complete service within 120 days. Thus, in this case, the fact that Johnson served Equity first in the Phillips County suit is immaterial. Accordingly, the court properly dismissed Johnson’s action in Phillips County.
Affirmed.
Gruber, C. J., and Harrison, J., agree.
. This is the second time this case has been - before our court. We previously ordered supplementation of the record and rebriefing. See Johnson v. Equity Ins. Co., 2017 Ark. App. 76, 2017 WL 519185. Johnson has satisfactorily addressed the deficiencies. | [
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ROBIN F. WYNNE, Associate Justice
|, Alexander Pokatilov appeals from his conviction for possession of a controlled substance with purpose to deliver, for which he was sentenced to five years’ probation and ordered to pay a $5000 fine. Appellant makes the following arguments on appeal: 1) the circuit court should have granted his motion for directed verdict; 2) the circuit court erred in refusing a proffered jury instruction; 3) the circuit court erred in refusing to reinstruct the jury after it submitted questions during its guilt-phase deliberations; and 4) the trial court erred in denying appellant’s motion to suppress. Our court of appeals affirmed appellant’s conviction, Pokatilov v. State, 2017 Ark. App. 150, 516 S.W.3d 285, and we granted appellant’s petition for review. Because we granted the petition for review, our jurisdiction lies pursuant to Rule l-2(e) of the Rules of the Arkansas Supreme Court (2016). We affirm.
Appellant was the owner-operator of an automobile-transport carrier. On March 6, 2014, he was driving a load of vehicles from the west coast to the east coast when he was | ^stopped on Interstate 40 in Lonoke County. Arkansas Highway Police Officer Jeremy Watkins stopped appellant because he observed the car carrier cross the white line and drive on to the shoulder several times. At that time, there was ice on the shoulder of the roadway. Watkins was certified by the United States Department of Transportation (DOT) to perform inspections of commercial vehicles. During the stop, Watkins instructed appellant to produce his paperwork, including his registration, commercial driver’s license, logbooks, and the bill of lading for each vehicle being transported, as part of an inspection of the car carrier. After his review of the paperwork was complete, Watkins requested and obtained permission from appellant to search the vehicles appellant was transporting. Approximately thirty-two pounds of marijuana were discovered in one of the vehicles, a 1995 Chevrolet Tahoe. Appellant was arrested and charged with possession of a controlled substance with purpóse to deliver.
Prior to trial, appellant filed a motion to suppress evidence, arguing that the stop of his earner was illegal and that the search of the vehicles was illegal. After a hearing on the motion, it was denied. During trial, at the close of the State’s case during the guilt phase and again after close of all the evidence, appellant moved for a directed verdict. Both motions were denied. Appellant subsequently proffered a non-model jury instruction on constructive possession. The trial court declined to give the non-model instruction. When the jury submitted questions to the trial court during its guilt-phase deliberations, appellant again requested that his proffered instruction be given. The request was denied. Appellant was convicted and sentenced as stated above. This appeal followed.
| ¡¡Appellant’s first argument is that the trial court erred by denying his motions for directed verdict, arguing that the State failed to prove that he possessed the marijuana. On appeal from the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence that supports the verdict, and determine whether the verdict is supported by substantial evidence, which is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Turner v. State, 2014 Ark. 415, at 3, 443 S.W.3d 535, 537.
Although circumstantial evidence may provide a basis to support a conviction, it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. It is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proven by constructive possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.
Appellant was the only person in the automobile carrier when it was stopped. However, because the marijuana was not found in the carrier, but was instead located in a vehicle belonging .to another person that was being transported by appellant, this case does I ¿not fit the typical fact pattern for constructive-possession cases, and there exists a question as to whether the analysis required for joint occupancy should be applied. In cases involving joint occupancy of the premises where the contraband is found, some additional factors must be present linking the accused to the contraband. Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785. Those factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. The control and knowledge 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. Id. In addition, an accused’s suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Id.
While it does not appear that this court has ever considered a constructive-possession case involving an automobile carrier, we have decided a case in which drugs were found in the trailer of an eighteen-wheel truck. See. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005). In McKenzie, we stated that the issue of constructive possession of contraband located in the trailer, of an eighteen-wheel truck was one of first impression, and rejected the defendant’s challenge to the sufficiency of the evidence because “the State proved other factors linking [him] to the contraband.” 362 Ark. at 267, 208 S.W.3d at 178. Because the State was required to prove other factors linking the defendant to the contraband in a case | ¡Involving drugs found in the trailer of an eighteen-wheel truck, we hold that the State should likewise be required to prove additional factors in the instant case, where contraband was found in one of several different vehicles, all belonging to persons other than appellant, that were being hauled on an automobile carrier.
As stated above, marijuana was found in a 1995 Chevrolet Tahoe that was on appellant’s carrier. At trial, Watkins testified that appellant’s logbooks contained excessive downtime, which was explained as being unusual because appellant would not be paid for downtime. Watkins stated that the bills of lading were not filled out properly and were “very, very generic.” Some of the bills listed' a first name with no last name; others' had no name listed at all-When Watkins asked appellant if he allowed people to keep items in the vehicles, appellant spontaneously brought up marijuana, stating that if the vehicles smelled like marijuana, he would have a friend in law enforcement check them .out for him. When. Watkins asked appellant if he thought there was anything illegal in the vehicles, appellant responded, “Not real ly.” Watkins testified that appellant appeared “nervous.” Watkins indicated dur7 ing his testimony that he was suspicious of the Tahoe because it was the only one that appellant had. picked up from a location other than a residence. According to Watkins, the fact that the Tahoe was a 1995 model with only 40,000 miles on it also aroused |fihis suspicion that it might be being used to transport drugs. Watkins also stated that he was curious why someone would pay to transport- a vehicle he thought was worth less than the amount paid to transport it.
Randy Couch, whom Watkins called in as backup after he located the marijuana, testified that he found packaging materials similar to those in which the marijuana was wrapped in another vehicle on the carrier. The vehicle also contained a substantial amount of marijuana, rendering it less likely that another person left it in the vehicle for appellant to transport unaware of its presence. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) (stating that the large amount and significant street value of contraband found in a mobile home was strong circumstantial evidence that it was not inadvertently left there by someone else). Appellant had driven the vehicles on to the carrier and retained their keys, making them exclusively accessible to him while they were being transported. We also note that the paperwork for the Tahoe required appellant to perform a thorough inspection of the vehicle on pickup.
Although appellant took the stand and attempted to provide an innocent explanation for the testimony elicited by the State, the jury was not required to believe his self-serving testimony. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). Taken as a whole and viewed in the light most favorable to the State, the evidence adduced at trial presents additional factors linking, appellant to the marijuana sufficient.- for the jury to conclude that 17appellant constructively possessed the marijuana without resorting to speculation or conjecture. The circuit court did not err by denying appellant’s motions for directed verdict, and we affirm on this point.
Appellant contends that the trial court erred by failing to give his proffered jury instruction regarding constructive possession. We will not reverse a circuit court’s .refusal to give a proffered instruction unless there is an abuse of discretion. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006). The jury was given the model jury instruction, AMCI 2d 64.420, which provides in relevant part that
[t]here are two kinds, of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons.
At trial, appellant proffered the following instruction:
In order to prove ■ constructive possession,' the State must establish beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the controlled substance, and 2) that the defendant knew the matter possessed was a controlled substance.
Appellant argues that the trial court abused its discretion by refusing to give his proffered instruction to the jury. We disagree.
In Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003), the defendant proffered a jury instruction on constructive possession that included language stating that the State was required to prove that the defendant knew that the matter possessed was contraband. As here, the jury was given the model instruction. In holding that the trial court did not abuse its discretion by refusing to give the proffered instruction, we stated that just because a proffered instruction may be a correct statement of the law, that does not mean a circuit Iscourt must give the instruction 'to the jury. Walley, 353 Ark. at 601, 112 S.W.3d at 357. We further reiterated that a non-model instruction is only to be given when the model instruction does not correctly state the law or where there is no model rule on the subject. Id. We then declined to overrule prior cases in which we held that the model instruction on constructive possession is a correct statement of the law. Id. This case is controlled by our decision in Walley. Accordingly, we affirm on this point.
Appellant next argues that it became necessary to give his proffered instruction to the jury during the jury’s guilt-phase deliberations. During those deliberations, the jury submitted to the trial court a note containing the following questions: “Are we judging on Defendant’s knowledge of having the drug or just possession!?] Actual possession or constructive possession!?]” Appellant argues that the question makes it clear that the proffered instruction should have been given. Again, we disagree. As discussed immediately above, the model instruction is a correct statement of the law. As such, the trial court did not abuse its discretion by failing to reinstruct the jury with the proffered instruction. Instead, the trial court properly told the jury to apply the instructions given in reaching its verdict. We affirm on this point as well.
In his remaining points on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence seized as a result of the search. When reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Wagner v. State, 2010 Ark. 389, 368 S.W.3d 914. Because the determination of a preponderance of the evidence turns on questions of ^credibility and the weight to be given testimony, we defer to the trial judge’s superior position in this regard. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243.
Appellant first contends that he had standing to appeal the suppression issue through his status as a bailee. The circuit court found that he had standing to contest the search, and the State has not appealed that finding. We need not address this point.
Appellant next argues that the trial court erred in finding that Watkins had probable cause to stop his vehicle. It is well settled that “a police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred.” Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209, 212 (1997). See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). See also Ark. R. Crim. P. 4.1(a) (2016) (permitting warrantless arrest if officer has “reasonable cause” to believe that defendant has committed “any violation of law in the officer’s presence”). “[T]he relevant inquiry is whether [the officer] had probable cause to believe that [the defendant] was committing a traffic offense at the time of the initial stop.” Burris, 330 Ark. at 72, 954 S.W.2d at 212. We have previously explained that probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).
Watkins testified that he witnessed appellant’s vehicle cross the fog line onto the shoulder, which had ice from a recent winter storm covering it, several times. The circuit 11flcourt found that this gave Watkins probable cause to stop appellant pursuant to Arkansas Code Annotated section 27-51-104, which, inter alia, makes it unlawful for a person to operate a vehicle in a careless manner or in such a manner to evidence or cause a failure to maintain control. Appellant contends that no probable cause existed because there is no video evidence of his vehicle crossing the line; if he crossed the line it did not violate section 27-51-104; and if he crossed the line it was reasonable due to the icy roadway. There is no requirement that the traffic violation be observed on video, and appellant points to no authority to support that proposition. The testimony was that the shoulder, not the roadway, was covered in ice. Crossing the fog line onto an icy shoulder several times can reasonably be considered failure to maintain proper control. We hold that the trial court did not err in concluding that Watkins had probable cause to stop appellant,
Appellant next argues that the trial court erred in finding that the continued detention by Watkins for almost one hour was legal. Arkansas Rule* of Criminal Procedure 3.1 (2016) provides that
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 |nsuch 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.
“Reasonable suspicion” is defined 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 (2016). Whether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and ar-ticulable reasons indicating that the person may be involved in criminal activity. Laime v. State, 347 Ark. 142, 155, 60 S.W.3d 464, 473 (2001).
According to Watkins,- he developed a suspicion that appellant was engaged in criminal activity based on appellant’s argumentativeness when he was initially stopped, his nervousness, and the irregularities in his paperwork. Appellant argues that Watkins’s testimony was incorrect and that he was neither argumentative nor nervous, and that he presented proper paperwork. Appellant’s argument rests on credibility determinations and the weight to be given to the evidence. This is a function of the trial court and we defer to its superior position to determine the credibility of witnesses and the weight to be given to the evidence. See Fuson v. State, 2011 Ark. 374, 383 S.W,3d 848. The trial court heard the evidence and credited Watkins’s testimony over appellant’s.
It is undisputed that the stop took approximately one hour. In this case, the length of the stop does not provide a basis to reverse the trial court’s findings. Appellant does not | ^contest that Watkins, in his role as a DOT officer, had the authority to conduct an inspection. The video contains long stretches of silence, which Watkins explained were due to his having to review all of appellant’s paperwork and type up the inspection report. The trial court was permitted to credit this testimony and determine that the length of time was necessary for Watkins to perform his various tasks. We hold that the trial court did not err in determining that the length of the stop was justified, and we affirm on this ‘point. •
Appellant next argues that the stop was pretéxtual and equivalent to an arrest. As discussed above, the trial court found that Watkins had a legitimate reason to stop appellant based on his observation of the automobile carrier crossing the fog line. Regarding appellant’s assertion that his detention was equivalent to an arrest, he neither develops the argument nor does he cite convincing authority in support of his assertion. This court will not develop arguments for parties. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. We affirm on this point.
Appellant’s final argument is, that the trial court erred in finding that his consent to the search was freely given. The State has the burden of proving by clear and convincing evidence that consent to search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R. Crim. P. 11.1(b) (2016). -The United States Supreme Court has held that the test for a valid consent to search is that the consent 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, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The video of the stop clearly shows appellant responding “Nope, not at áll” when asked "if he would mind Watkins performing a search. Although appellant argues that |13he only agreed because he felt like he'would have been unable to leave otherwise, the trial court was not required to believe him. See Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). After hearing the testimony at the suppression hearing and reviewing the evidence, the trial court determined that appellant’s consent to the search was freely given. We see no basis to conclude that the trial court’s finding on this point is clearly erroneous, and we affirm.
Affirmed; court of appeals opinion vacated.
. The opinion states that there was a passenger in McKenzie's truck; the identity of the passenger is not revealed, nor is his or her relationship to either McKenzie or the truck disclosed. The opinion makes it clear that the additional factors were required due to the manner of conveyance and' location of the contraband, not the presence of a second person in the truck.
. In affirming appellant’s conviction, our court of appeals relied on its decision in Barrera v. State, 2012 Ark. App. 533, 2012 WL 4478394, in which it held that a joint-occupancy, analysis was not applicable when contraband was found in a vehicle that the defendant was hauling on a flatbed trailer. To the extent this opinion conflicts with Barrera, Barrera is overruled.
. Appellant vigorously refutes the testimony that he was nervous and points this court to the video of the stop to support his argument; however, the jury, having heard Watkins’s testimony and viewed the video, was charged with determining the weight and credibility to be given to the testimony. See State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).
. Although Couch testified that he .did not retain a sample of the materials from, the other vehicle and could not definitively match them with the materials encasing the drugs, it is for the jury to determine the credibility of the witnesses and the weight to be afforded to their testimony. See Luper v. State, 2016 Ark. 371, 501 S.W.3d 812.
. The trial court also found that Watkins had the authority to stop appellant in his capacity as a DOT-certified officer. Appellant does not challenge that basis for the stop on appeal. Generally, when an appellant fails to attack an independent, alternative basis for a trial court's ruling, we will not reverse the trial court’s finding. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002). However, in this instance, while Watkins asserted that he had the authority to stop appellant for inspection, it is unclear from his testimony at the suppression hearing that he stopped appellant for that specific purpose. Watkins clearly asserted that he stopped appellant due to the observed traffic violation. Under these circumstances, we have elected to review the primary basis for the stop instead of affirming based on the apparent independent, alternative basis found by the'trial court. | [
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DAVID M. GLOVER, Judge
|,This is a no-nierit appeal from the Crit-tenden County Circuit Court’s revocation of Aaron Rector’s probation. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4—3(k)(1) (2016) of the Rules of the Arkansas Supreme Court and Court of Appeals, Rector’s counsel has filed a motion to withdraw on the ground the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal and a statement of reasons why the rulings do not provide a meritorious ground for appeal. Rector was notified of his right to file pro se points; he has filed none. We affirm the revocation and grant counsel’s motion to withdraw.
In March 2016, Rector entered negotiated guilty pleas to the offenses of breaking or entering, a Class D felony, and theft of property, a Class A misdemeanor. He was placed on four years’ probation for the Class D felony and one year’s probation for the Class A misdemeanor. Terms of his probation included paying all fines and court costs at a rate of |¾$25 per month; living a law-abiding life; cooperating with his probation officer and reporting as directed; and promptly notifying his probation officer and the sheriff of any change of address or employment.
In June 2016 the State filed a petition to revoke Rector’s probation for the Class D felony, alleging he had failed to pay fines, costs, and fees as directed; failed to report to probation as directed; failed to pay probation fees; failed to notify probation of his current address and employment; and failed to lead a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law. After a hearing, the circuit court revoked Rector’s probation for the offense of breaking or entering, finding he failed to report to his probation officer as directed and failed to pay his fines, costs, and fees; Rector was sentenced to two years in a regional correction facility, to be followed by a three-year suspended imposition of sentence.
The sole adverse ruling in this case is the revocation itself. Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of probation. Parmer v. State, 2017 Ark. App. 5, 2017 WL 203344. A revocation will not be reversed on appeal unless the decision is clearly against the preponderance of the evidence. Id. Due to the differing burdens, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended-sentence revocation. Maxwell v. State, 2016 Ark. App. 348, 498 S.W.3d 333. The appellate courts defer to the circuit court’s superior position to determine questions of credibility and weight to be given the testimony. Id, The State is required to prove only one violation of the conditions of probation to sustain the revocation. Id.
I a At the revocation hearing, Anitra Thompson, the collector of fines, fees, and costs for the Crittenden County Sheriffs Department, testified that Rector’s total bill was $1060;, he made a $25 payment prior to the hearing, leaving a balance of $1035; and prior to that, she had received no payments on his account. Jennifer Clements, Rector’s probation officer, testified as follows. 'She received him as a probationer on Márch 31, 2016; he had an appointment with her on April 1 and failed to report, even though he called and told her he was on his way but would be late. On May 6, she sent a letter to the Gratz, Illinois, address Rector had provided, setting an appointment for May 19; when Rector failed to keep that appointment, she sent a second letter on May 20 for a June 6 appointment. When Rector failed to report on June 6, she filed a violation report. Clements did not see Rector in June or July, but she did see him on August 3 at the jail after he had been extradited to Arkansas; at that time, he told her he had “messed up” his probation but he wanted to do whatever it took to “make it right.” Clements stated the goal of the'April 1 appointment was to have his probation transferred to Illinois, but it never occurred because Rector never reported.
Rector testified in his own defense, agreeing that he had failed to comply with the terms of his probation. He explained he did not report to his probation officer April 1 because he did not have money for a hotel so he drove back to Illinois with his grandmother, and he did not make it to the probation office on the day of his revocation hearing because he was unfamiliar with the county and did not know where it was located. He admitted he did not get the letters fi’om Clements because he was not residing at- his grandparents’ house during that time; he was living with his girlfriend. Rector testified he was not working |4when he was placed on probation, but he had. been employed for one month at Casey’s -General Store, where he was paid $234 every two weeks; he was also working part time for Realogy Energy on a commission basis.
By his own admission, Rector violated the terms of his probation by failing to report to his probation officer and by failing to pay $25 per month on his fines and fees. The test for filing a no-merit brief is not whether there is any reversible error, but whether an appeal would be wholly frivolous. Young v. State, 2017 Ark. App. 8, 2017 WL 203358. We have reviewed the entire record and counsel’s brief and conclude that Rector’s counsel has adequately explained why there is no meritorious issue on appeal.
Affirmed; motion to withdraw granted.
Abramson and Gladwin, JJ., agree. | [
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KENNETH S. HIXSON, Judge
| Appellant Lonnie Henry Hamilton was convicted in a jury trial of aggravated robbery and two counts of aggravated assault, and he was sentenced as a habitual offender to a total of eighty-five years in prison. Mr. Hamilton’s convictions arose from the robbery of Farmers Bank & Trust (the bank) in Lewisville, Arkansas, on the afternoon of May 22, 2015. On appeal, Mr. Hamilton argues that the trial court erred in denying his motion to suppress his custodial statement, erred in denying his motion for a second mental evaluation, and erred in denying his motion for directed verdict. We find no error and affirm.
On the day of the robbery, a man entered the bank disguised with a scarf over his face and armed with a handgun. He pointed the gun at one of the tellers and demanded money. While the teller was loading money into a bag, the perpetrator pointed the gun at a nearby bank customer demanding that he put his hands up. During this confrontation, the robber fired a shot. The teller handed over the money bag, and the robber took the [ 2bag and left the bank. When the perpetrator reached his car he saw a man who appeared to be trying to read his license plate, and the perpetrator fired a shot in the man’s direction. The robber then drove off with the money.
On the following day, the police stopped a car matching the description of the car used in the robbery. The car was being driven by Mr. Hamilton’s mother, and she gave the police permission to search her vehicle. During the search of the car, the police found a spent shell easing in the back seat that had been fired from the same gun as the shell casing recovered from the bank. Appellant’s mother told the police that Mr. Hamilton had been driving her car on the previous day during the time frame of the robbery.
Four days after the robbery, Mr. Hamilton went to. the police station and turned himself in. Mr. Hamilton signed a waiver-of-rights form and agreed to give a statement. At the outset of the interview Mr. Hamilton was asked why he was there, and he replied that he had robbed the bank. Mr. Hamilton then went into detail about the bank robbery. He stated that he was driving his mother’s car and fired his gun out the window to make sure it worked. Mr. Hamilton then proceeded to the bank,- parked the car, entered the bank, and robbed the bank teller at gunpoint. He told the police that he fired a shot in the air after a bank customer refused to put his hands up. He also told the police that, after he fled the bank with the money, he fired a warning shot in the direction of a man in a truck who appeared to be trying to look at his license-plate. Mr. Hamilton stated that after he committed the robbery he threw the gun in a river and abandoned the scarf and other items of clothing on a road. Mr, Hamilton indicated that he robbed the bank to buy ., drugs, that he had been doing drugs since committing the robbery, but that he had run out of money.
| a After being charged with the crimes; Mr. Hamilton requested and was given a mental evaluation, which was administered at the state hospital by Dr. Samuel J: House. Dr. House based his forensic report on an interview and mental-status examination of Mr. Hamilton, as well as Mr. Hamilton’s mental-health-treatment records and the statement he gave to the police. Dr. House diagnosed Mr..Hamilton with antisocial personality disorder, mild alcohol-use disorder, and severe cannabis- and cocaine-use disorder. However, Dr. House concluded that at the time of the alleged offenses Mr-. Hamilton did not have a mental disease or defect that would have rendered him incapable of purposeful conduct, that he did not lack the capacity to appreciate the criminality of his conduct, and that he did not lack the capacity to conform his conduct to the requirements of the law. Dr. House further' determined that Mr. Hamilton had the capacity to understand the proceedings against him and the capacity to effectively assist his attorney in his own defense.
"Prior to trial, Mr. Hamilton filed a motion to suppress the statement he made to the police. In his motion, he alleged that due to his mental-health conditions he did not understand his rights and did not make a knowledgeable waiver. Mr. Hamilton also alleged that his constitutional rights were violated because he requested an attorney and the interview proceeded without an attorney being present.
At the pretrial suppression hearing, Officer John Rhone testified that he interviewed Mr, Hamilton after reading him his Miranda rights. Mr. Hamilton indicated that he understood his rights and he signed a Miranda-rights form, initialing each of his rights and confirming that he understood them. According to Officer Rhone, Mr. Hamilton never indicated that he wanted a lawyer or asked to stop the interview. Officer - Rhone., testified |4that during the interview Mr. Hamilton seemed cognizant and aware, and that he described in coherent detail what had happened on the day of the bank robbery. Sheriff Obie Simms also took part in the interview, and he testified that Mr. Hamilton was very coherent and spoke in complete sentences. Sheriff Simms indicated that there was never any request for a lawyer communicated-to him, and that he did not remember Mr. Hamilton requesting to do the interview on another day so he could get some sleep.
Mr. Hamilton testified that, while he was in the sheriffs office prior to the interview, he told the sheriff he wanted an attorney. Mr. Hamilton further testified that he was “high and tired,” having not slept in several days, and that he told the sheriff he wanted to postpone the interview until the next day. Mr. Hamilton acknowledged that he signed the Miranda-rights form and that, during the interview itself, he never requested an attorney or complained about being high or needing sleep. Mr. Hamilton testified that he understood what was being asked in the interview and that he competently answered their questions the best he could. At the conclusion of the suppression hearing, the trial court denied Mr. Hamilton’s motion to suppress his statement.
The case proceeded to a jury trial, and during jury selection Mr. Hamilton’s counsel requested a second mental evaluation. Appellant’s counsel advised the trial'court that Mr. Hamilton had stated that he wanted to die, that he had taken a large quantity'of his mental-health medications in an attempt to kill himself,, and that he had somehow cut his wrists in front of the jury panel. Mr. Hamilton was transported by ambulance to the hospital. The trial court took testimony from the jail administrator, Theardis Early, who had transported Mr. Hamilton to trial that day. Mr. Early testified that Mr. Hamilton appeared Rfine before trial and was talking with his attorney. Mr. Early stated that, after Mr. Hamilton was taken to the hospital, the deputies observed that he was coherent and talking and it appeared that there were no major issues. The trial court ordered a recess.
When court resumed, Mr. Hamilton’s counsel renewed his motion for a second mental evaluation on the grounds that Mr. Hamilton stated he wanted to die and would not assist in his defense. The trial court .then took testimony from a jailer, Jimmy Clark, who testified- that he had been at the hospital with appellant and that Mr. Hamilton was communicating with the hospital staff. Mr. Hamilton was released from the hospital. Mr. Early advised the trial court that, after returning from .the hospital, Mr. Hamilton told Mr, Early that he wanted to continue with the trial, but would not participate and would let his- attorney represent him.- The trial court- denied the motion for a second mental evaluation, noting that after Mr.. Hamilton was taken to the hospital he was released without the need for significant treatmént. The trial court noted that Mr. Hamilton had purposely absented himself from the courtroom, that the trial would proceed in his absence, and that Mr. Hamilton could be present for his trial at any time should he so choose.
Curing the jury trial Mr. Hamilton’s custodial statement was introduced into evidence. In addition, the State elicited testimony from the bank tellers. and the assault victims describing the robbery and the shots fired by the perpetrator. Glen Holly was the bank customer present during the robbery, and he testified that he was standing close to the gun when it fired, causing him to very much fear for his life. Glen Moe Talley was in his | ntruck when the robber exited the bank, and he testified that the man shot at him, that the shot ricocheted .off the wall near his truck, and that he was in fear.
Mr. Hamilton called Dr. Ola Dele Ade-bogun, a psychiatrist, and Pam Stoutt, a psychiatric nurse, as witnesses. Dr. Ade-bogun testified that Mr. Hamilton had been a patient of his and that he had diagnosed Mr. Hamilton with schizophrenia. Dr. Adebogun had visited Mr. Hamilton that day prior to testifying, and he stated that Mr. Hamilton was psychotic and hearing voices. Dr. Adebogun, however, did not conduct a forensic examination and did not offer an opinion as to whether Mr. Hamilton was able to assist his attorney. Ms. Stoutt testified that Mr. Hamilton had been a patient of hers, and she also testified that Mr. Hamilton had reported hearing voices. Although Ms. Stoutt was not qualified to make a forensic evaluation, she felt certain that Mr. Hamilton was schizophrenic.
Dr. House, the author of the forensic report, testified that he had spoken with Mr. Hamilton that day prior to testifying. Mr. Hamilton appeared anxious and told Dr. House he did not want to come to court because he was embarrassed about the alleged offense. Mr. Hamilton also told Dr. House that he was hearing voices. Dr. House testified that he observed nothing from talking with Mr. Hamilton that changed the opinions expressed in his previous mental evaluation.
Both during the trial and at the conclusion of the trial Mr. Hamilton renewed his motion for a second mental evaluation, which the trial court denied. The jury found Mr. Hamilton guilty of the charged offenses.
|7One of Mr. Hamilton’s arguments on appeal is that the trial court erred in denying his motion for directed verdict. The denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881. Although listed as appellant’s third point on appeal, we are required to consider challenges to the sufficiency of the evidence prior to reviewing any asserted trial errors. Huff v. State, 2012 Ark. 388, 423 S.W.3d 608. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. We view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Id.
Mr. Hamilton’s convictions were for aggravated robbery and two counts of aggravated assault. Pursuant to Ark. Code Ann. § 5—12—103(a)(1) (Repl. 2013), a person commits aggravated robbery if he commits a robbery as defined in § 5-12-102 and the person is armed with a deadly weapon. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to employ physical force upon another person. Ark. Code Ann. § 5-12-102(a). Pursuant to Ark. Code Ann. § 5-13-204(a), a person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely (1) engages in conduct that creates a substantial danger of death or serious physical injury to another person, or |s(2) displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person.
In arguing that there was insufficient evidence to support 'his convictions, Mr. Hamilton asserts that' there was no eyewitness identification of him and that without his confession there was nothing to connect him with the bank robbery. However, in determining whether there is substantial evidence, we consider all the evidence whether it was admitted correctly or erroneously. Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772. Therefore, although Mr. Hamilton challenges the admissibility of his custodial statement in a separate point, wé consider that statement in deciding whether there was substantial evidence to support the convictions.
According to Mr. Hamilton’s detailed confession, he entered the bank armed with a handgun and demanded money from one of the tellers. The teller testified that he pointed the gun at her and that she gave him a bag of money. Although the teller could not identify the masked robber, Mr. Hamilton identified himself as the perpetrator in his statement to the police. We hold that this constituted substantial evidence to support the jury’s finding that, while armed with a deadly weapon, Mr. Hamilton committed a robbery, and thus that he committed aggravated robbery.
We further hold that there was substantial evidence to support appellant’s two aggravated-assault convictions. Mr. Hamilton contends that neither of the alleged victims were shot or injured, and that there was a failure of proof that he intended to inflict physical injury or death. However, it was not necessary for the State to prove that Mr. Hamilton intended to cause injury or death. Instead, the elements of aggravated robbery require proof 19of conduct or the display of a firearm that creates a substantial danger of death or serious physical injury to another person. We have held that pointing a loaded handgun at someone is enough to create a substantial danger of death or serious physical injury and to sustain a finding that a person committed aggravated assault. See E.N. v. State, 2013 Ark. App. 365, 2013 WL 2368805; Harris v. State, 72 Ark.App. 227, 35 S.W.3d 819 (2000). In this case, there was evidence that Mr. Hamilton pointed a gun at a customer inside the bank and fired a shot at close range before exiting the bank and firing a shot toward a second victim, with the shot ricocheting off a wall. This conduct created a substantial danger of death or serious physical injury to the victims and was sufficient to support the jury’s verdicts for both counts of aggravated assault.
We next turn to Mr. Hamilton’s argument that the trial court erred in denying his motion to suppress his custodial statement. Statements arising from custodial interrogation are presumed involuntary. Wells v. State, 2012 Ark. App. 596, 424 S.W.3d 378. The burden is thus on the State to prove that a defendant knowingly and intelligently waived his privilege against self-incrimination and his right to an attorney and that he voluntarily made the statement. Id. In. determining whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Friar v. State, 2016 Ark. 245, 2016 WL 3346565. In making this determination, we review the totality of the circumstances surrounding the waiver, including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated or prolonged nature of the questioning; the use of physical or mental punishment; and statements made by the Iminterrogating officers and the vulnerability of the defendant. Id. We defer to the trial court’s superior position to determine the issues of the credibility of witnesses who testify to the circumstances of a defendant’s custodial statement, and we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Wells, supra.
Mr.- Hamilton contends that his statement should have been suppressed because he was unable to understand the waiver of his constitutional rights and because the interview was conducted after he had requested a lawyer. Mr. Hamilton asserts that, at the time of the interview, he was under the influence of drugs and alcohol and had not slept in four days. Mr. Hamilton claims that he asked the sheriff to postpone the interview so that he could get some sleep, but that the sheriff talked him into giving a statement. Mr. Hamilton contends that, under such circumstances, his' custodial statement should have been suppressed.
When we examine the totality of the circumstances, we conclude that there is no basis to overturn the trial court’s decision. Mr. Hamilton, a high school graduate, voluntarily turned himself in to the police and agreed to give a statement. Prior to the interview, Mr. Hamilton signed a waiver-of-rights form and indicated both verbally and in writing that he understood his rights. Being a habitual offender well acquainted with the legal system, Mr. Hamilton acknowledged at the suppression hearing that through his involvement with law enforcement he had been read his Miranda rights numerous times and understood them. During the interview, which lasted less than an hour, Mr. Hamilton coherently described in detail his actions in committing the robbery. The interviewing officer testified that Mr. Hamilton appeared cognizant and aware.
_LyAlthough Mr. Hamilton testified that he had asked the sheriff for an attorney prior to the interview, the sheriff testified to the contrary. Mr. Hamilton also testified that he was under the influence of drugs and sleeplessness that day and asked to postpone the interview. However, it is undisputed that, during the interview itself, Mr. Hamilton never requested an attorney or asked to postpone the interview so he- could rest. Moreover, the trial court is not required to believe the testimony of any witness at a suppression hearing, especially that of the accused, because he is. the person most interested in the outcome of the proceedings. Leach v. State, 2012 Ark. 179, 402 S.W.3d 517. Considering all the relevant factors, we affirm the trial court’s ruling denying Mr. Hamilton’s motion to suppress.
Mr. Hamilton’s remaining argument is that the trial court erred in denying his request for a second mental evaluation. Dr. House performed a pretrial forensic examination and determined that Mr. Hamilton was competent to stand trial and had the capacity to understand the proceedings against him-and effectively assist his attorney in his defense. However, -Mr. Hamilton asserts that when the trial began ten months-later he stated that he wanted to die, swallowed some medication he had saved up, and somehow cut his wrists in the presence of the prospective jurors. During the trial Dr. Adebogun, who had previously treated .appellant for schizophrenia, testified that Mr. Hamilton was presently hearing, voices and was psychotic. Based on his volatile behavior and the opinion expressed by Dr. Adebogun, Mr. Hamilton argues that the trial court should have stopped the trial and ordered another mental-competency evaluation.
The Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial. Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). This principle is codified at Ark. Code Ann. § 5-2-302(a) (Repl. 2013), which provides that a person lacking the capacity to understand the proceedings against him or to assist effectively in his defense as a result of mental disease or defect shall not proceed to trial so long as the incapacity endures.
A criminal defendant, however, is presumed to be competent, and the burden of proving incompetence is on the accused. Newman v. State, 2014 Ark. 7, 2014 WL 197789. It is recognized that not every manifestation of mental illness demonstrates incompetence to stand trial. Id. Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial. Id.
The statutory procedures to be followed when a defendant raises the issue of mental disease or defect are found in Ark. Code Ann. § 5-2-305 (Supp. 2015). An evaluation performed under this section does not normally require a second opinion, and further evaluation is discretionary with the trial court. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). Stated simply, the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. Id.
Applying these principles, we hold that there was no abuse of discretion in the trial court’s denial of Mr. Hamilton’s request for a second mental evaluation. The trial court noted that in the first evaluation conducted by Dr. House at the state hospital Mr. Hamilton was found to be competent to stand trial, and Dr. House testified at trial that after talking with Mr. Hamilton that day his opinion had not changed. Although Dr. Adebogun noted that Mr. Hamilton was experiencing psychotic symptoms, he did not render any conclusion | ^with regard to Mr. Hamilton’s competency to stand trial. As noted by Dr. House in his testimony, Mr. Hamilton was understandably anxious and nervous because he was facing serious criminal charges. Mr. Hamilton’s anxiety manifested itself at trial when he exhibited volatile behavior and initially refused to be present for his defense. However, the testimony showed that while Mr; Hamilton was at the hospital after creating the disturbance in court, he was coherent and talking and was soon released without the need for significant treatment. On this record, we conclude that the trial court’s denial of a second mental evaluation was not error.
Affirmed.
Glover and Whiteaker, JJ., agree.
. Mr. 'Hamilton initially declined to be present for his trial, but he later appeared while the trial was in progress.
. These witnesses testified outside the hearing of the jury for the purpose of appellant's renewal of' his motion for a second mental evaluation. | [
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RHONDA K. WOOD, Associate Justice
hThis appeal involving an allegation of ineffective assistance of counsel returns to us after we remanded for more specific findings. In the first appeal,- Trozzie Turner, who was convicted of multiple drug offenses, argued that his defense counsel should have moved to dismiss the charges based on a speedy-trial violation. See Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. We affirmed on a separate allegation but remanded for “specific findings as to which periods of delay are excludable under our speedy trial rules.” Id. at 8-9, 486 S.W.3d at 763. Upon remand, the circuit court found that sufficient excludable time periods should be charged against Turner such that no speedy-trial violation occurred. Accordingly, the court ruled, defense counsel was not ineffective for failing to move to dismiss the charges on that ground. Turner now appeals this finding. We affirm.
We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the petitioner must first show that counsel’s performance was deficient. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id.. Second, the. deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Id. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
On remand, the circuit court held that the first prong of the Strickland test was not met and once again denied-relief. The court determined that counsel’s failure to raise a speedy-trial argument was not deficient because there was no speedy-trial violation. We do not reverse a denial of postconviction relief unless the circuit court’s findings are. clearly erroneous. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. “A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed,” State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542, 545 (2007).
. Arkansas Rules of Criminal Procedure 28.1 and 28.2(a) require the State to bring a defendant to trial within twelve months, excluding periods of delay specified in Ark. R. Crim. P. 28.3(c). Rule 28.3 provides a period of delay resulting from a continuance granted at the request of the defendant or. his counsel will be excluded in computing the time for trial. It further states that “[a]ll continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date ■ the | .¡continuance is granted until such subsequent date contained in the,order or docket entry granting the continuance,”
The record reflects that Turner was arrested on March 9, 2006, and his trial was held on October 8, 2008, or 944 days after his arrest, and 581 days in excess of one year. Thus, as we noted in the first appeal, “if trial counsel had moved for a dismissal, he would have made a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay.” Turner, 2016 Ark. 96, at 7, 486 S.W.3d at 762 (citing Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001)). Thus, whether counsel was ineffective for failing to raise the issue first depends on whether the State would have been able to prove that there were excluded periods sufficient to bring appellant’s trial within the one-year period, which in this case would be 581 days. Id.
Turner argues that three of the continuances granted by the trial court did not establish a basis for tolling speedy trial. Turner’s defense counsel, David Price, testified that he sought every continuance. Turner also acknowledges that delays resulting from continuances given at the request of defense counsel are excluded in calculating the time for a speedy trial. Rather, he argues that certain time periods following his request for a continuance are not excludable because neither the order nor the docket entry granting these continuances continued the case to a day certain.
| ¿The first contested order was entered on April 25, 2007; it stated that “[t]he period of time from May 10, 2007, until the date of defendant’s jury trial in this matter shall be an excludable period for the purposes of speedy trial.” The second order was dated August 22, 2007; it provided that “[f]or the purposes of speedy trial, the time from August 22, 2007, until the date that the new trial is set shall be excludable for speedy trial purposes.” The third order was dated November 13, 2007, and it likewise excluded the time period from that date “until the date that the new trial is set.”
Turner maintains that Rule 28.3 requires an order granting a continuance to include an actual date, rather than a to-be-determined trial date. We have not interpreted Rule 28.3 in this manner. Turner’s primary authority for this argument is Bradford v. State, 329 Ark. 620, 953 S.W.2d 549 (1997). In that case, we reversed and dismissed a defendant’s conviction because his right to speedy trial had been violated. The primary flaw there was poor record keeping by the circuit court. Many continuances were granted without attributing the delay to the defendant; indeed, in some instances the order granting the continuance was absent from the record. “[S]ince the record contains no copy of the order ... the contemporaneous record does not demonstrate that [the] delay ... was attributable to the appellant.” Id. at 624, 953 S.W.2d at 551.
No similar flaw exists here. Each order stated that the period following the continuance until the date a trial was set would be an excluded period under the Arkansas Rules of Criminal Procedure. It is also undisputed that each continuance was granted at Turner’s request. Contrary to Turner’s argument, the failure to continue the proceedings until a date certain does not result in automatic reversal. See Standridge v. State, 357 Ark. 105, 117, 161 S.W.3d 815, 821 (2004). “[Wjhen a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3.” Id. at 117, 161 S.W.3d at 821; Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002). The circuit court found that defense counsel was not deficient for failing to raise a speedy-trial argument when defense counsel requested all continuances “with consent of the defendant and those continuances with agreed excludable periods amounted to over 581 days.” We cannot find that the circuit court’s decision that defendant failed to meet the first prong of Strickland was clearly erroneous.
Affirmed.
. When this case started, the Rules provided that the speedy-trial clock began "from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody ... for the same offense ... then the time for trial shall commence running from the date of arrest.” Ark. R. Crim. P. 28.2(a) (2006). The parties stipulated that Turner was arrested on March 9, 2006, and it is undisputed that the speedy-trial period commenced on that date. | [
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PER CURIAM.
| Appellant, Brian K. Walker, by and through his attorney, James P. Clouette, has filed a motion for rule on clerk and a motion to be relieved as counsel. The State has not responded to either motion. Appellant was tried by a jury in Pulaski County Circuit Court, convicted of rape, and sentenced as a habitual offender to 480 months’ imprisonment. Mr. Clouette timely filed a notice of appeal on Appellant’s behalf. After the court reporter notified Mr. Clouette that she would not be able to complete the record by the due date, he timely filed a written motion to extend the time to file the record pursuant to Ark. R.App. P. Civ. 5 and Ark. R.App. P. Crim. 4. The circuit court granted the motion and entered an order extending the time to file the record on appeal until August 18, 2009. When Mr. Clouette tendered the record to the clerk of this court on August 7, 2009, the clerk refused to accept it because the motion and order granting the extension of time did not state that all parties consented to the extension, as required by Ark. R.App. P. Crim. 4(c)(1).
12Arkansas Rule of Appellate Procedure-Criminal 4 was amended and made effective October 1, 2008. See In re Rules of Supreme Court and Court of Appeals, Rule 1-3; Rules of Appellate Procedure-Criminal, Rule k; and Rules of Criminal Procedure, Rule 21.3, 374 Ark. App’x 566 (Sept. 18, 2008). As a result, Ark. R.App. P. Crim. 4, rather than Ark. R.App. P. Civ. 5, now provides the procedure to be followed in a criminal case when an extension of time is sought within which to file the record. An extension is permitted where the requirements of Rule 4 are met. Rule 4(c)(1) provides in pertinent part as follows:
If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (b) of this rule or by a prior extension order, may extend the time for filing the record. A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to include the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.
Rule 4(c)(1) provides that a copy of the motion shall be served on the prosecuting attorney. The record tendered to this court with the present motion reflects that a copy of the motion for extension was served on the prosecuting attorney. There is no response from the prosecuting attorney in the partial record. Again, we note that the State has not filed a response to the current motion for rule on clerk. Mr. Clouette asserts in the motion that both | ¡¡parties were notified and there was no objection to the extension. Under similar facts and circumstances, we have determined compliance with Rule 4(c). Reid v. State, 375 Ark. 68, 289 S.W.3d 54 (2008) (per curiam). Accordingly, we grant the motion for rule on clerk.
Mr. Clouette has also filed a motion to be relieved as counsel, stating therein only that the trial court has declared Appellant indigent. Arkansas Rule of Appellate Procedure-Criminal Rule 16 clearly states that there is no automatic right of withdrawal. Tice v. State, 365 Ark. 410, 230 S.W.3d 557 (2006) (per curiam). Mr. Clouette has not shown that his motion should be granted in the interest of justice or for other sufficient cause. His motion to be relieved as counsel is therefore denied.
The motion for rule on clerk is granted; the motion to be relieved as counsel is denied. | [
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RAYMOND R. ABRAMSON, Judge ■
11 This case is a companion to Hollis v. Fayetteville School District, 2016 Ark. App. 137, 2016 WL 825206 (Hollis III), also decided today. These two apipeals arise out of appellant Timothy Hollis’s Freedom of Information Act (the FOIA) requests made to appellee Fayetteville School District (collectively with its superintendent and individual board members, the district). In this case, the circuit court found that Hollis’s FOIA requests were not specific enough to allow the district to locate the requested records with reasonable effort. As a result of this finding, thé circuit court granted the district’s renewed motion for a protective order. This 12appeal challenges both rulings.' We hold that the circuit court lacked jurisdiction when it granted the motion for a protective order. Accordingly, we reverse and dismiss.
I. Background and Procedural History'
Hollis’s employment at Fayetteville High School was terminated by the board in February 2013. He sought judicial review of the termination pursuant to the Arkansas Teacher Fair Dismissal Act (TFDA). The termination was upheld by the circuit court, and we affirmed. Hollis v. Fayetteville Sch. Dist., 2015 Ark. App. 544, 473 S.W.3d 45 (Hollis I).
On August 22, 2014, after the circuit court had upheld his termination and the record had been filed with this court, Hollis propounded some seventeen FOIA requests to the district. At the time, Hollis was a candidate for a position on the school board. Specifically, the three requests at issue are as follows:
10.Copies of all emails and other communications between the attorneys for Fayetteville Public Schools and the financial office,' financial officers, treasurer or any similar department or employee during the previous one (1) year.
11. Copies of all emails and other communications between the human resources department for Fayetteville Public Schools and the financial office, financial officers, treasurer or any similar' department or employee during the previous one (1) year.
12. Copies of all emails and other communications between Vicki Thomas [the district’s former superintendent] and the financial office, financial officers, treasurer or any similar department or employee during the previous one (1) year.
On September 4, 2014, the district responded to some of the requests, but also noted it was renewing a request for a protective order with respect to requests numbers 10, 11, and 12 that it had filed in Judge Martin’s court. That same day, the district filed a renewed 13motion for a protective order under the same docket number as the termination case. The district argued that these specific requests were overbroad and unduly burdensome, particularly with respect to the request for all emails by or to “the financial office, financial officers, treasurer or any similar department or employee.” The district also argued that the request for all emails would require the production of hundreds of thousands of emails requiring individual review by'counsel to determiné if any such emails contained information that would constitute an unwarranted invasion of personal privacy under Ark. Code Ann. § 25-19-105(b)(12) (Repl. 2014), or contained protected educational records under federal law. The district further argued that request no. 10 also required the disclosure of information protected by attorney-client privilege.
Hollis responded to the renewed motion for a protective order, arguing that the FOIA requests at issue were not submitted until over four months after Judge Martin had upheld his termination and, therefore, were not a collateral matter over which the court retained jurisdiction. He further asserted that the FOIA did not provide exceptions for information protected by the attorney-client privilege or for requests that the governmental entity deemed “overbroad and unduly burdensome.” Hollis asked that the motion be denied.
On September 19, 2014, Hollis filed suit in Circuit Judge Cristi Beaumont’s court (the FOIA case) against the district to force compliance with his FOIA requests. Hollis asserted that the district’s earlier, original request for a protective order was denied by Judge Martin and because the district did not appeal that ruling, that order was now final. Hollis also requested a hearing.
|40n September 26, 2014, the district filed a motion to dismiss the FOIA complaint pursuant to Ark. R. Civ. P. 12(b)(8) on the basis that the precise issues were also pending in Judge Martin’s court. The district repeated its arguments made in requesting the protective order from Judge Martin. The district also argued that the documents subject to disclosure under the FOIA could still be exempt if protected by order or rule of court.
In his response to the motion to dismiss the FOIA case. Hollis argued that Judge Martin did not retain jurisdiction over the FOIA requests because the requests were not collateral to the matters relating to his dismissal. He also argued that the FOIA exemption for documents protected by order or rule of court does not prevent disclosure of those documents to a party to the suit, only to the public. He further asserted that the FOIA did not provide exceptions for information protected by the attorney-client privilege or for requests that the governmental entity deemed “overbroad and unduly burdensome.”
By letter dated December 1, 2014, Hollis’s attorney requested a hearing from Judge Beaumont within seven days as provided in ArkCode Ann. § 25-19-107.
On December 4, 2014, Judge Martin held a conference call and requested the parties to brief the issue of whether the district’s renewed request for a protective order was “collateral” to the issues in Hollis I such that the court could exercise jurisdiction. The parties filed their respective briefs on December 15, 2014. Judge Martin issued a letter opinion on December 18, 2014, finding that he had jurisdiction to rule on the district’s renewed motion.
| ¡Also on December 18, 2014, Judge Beaumont dismissed Hollis’s complaint because the issue of the release of the same information was pending in Judge Martin’s court prior to Hollis filing his complaint.
A hearing on the district’s renewed motion for a protective order was held before Judge Martin on January 28, 2015, and the court took the matter under advisement. The court issued its letter opinion on February 3, 2015. The court first rejected the district’s claim of exemption for information protected from disclosure by order or rule of court because there was no prior court order or rule entered by it. The court also rejected the claimed exemption for material covered by the attorney-client privilege, noting that our supreme court had ruled that neither attorney-client privilege nor attorney work product created exemptions to the FOIA. Judge Martin noted that, contrary to the district’s argu ment, there was no relevancy requirement in the FOIA. Although the court found that the district’s claim that Hollis’s requests were overbroad and unduly burdensome was not a proper response to Hollis, the court also found that the district’s request that Hollis narrow his requests was a proper response, under the FOIA. According to the circuit court, the issue then became whether Hollis’s requests were “sufficiently specific to enable the custodian to locate the records with reasonable effort.” The court found that these requests were not sufficiently specific to enable the custodian to locate the records with reasonable effort, as required by Ark.Code Ann. § 25-19-105 (a)(2)(C). Specifically, the court found that the “the financial office, financial officers, treasurer or any similar department or employee” language in the requests precluded them from being sufficiently specific. Because Hollis refused the district’s request to narrow the nonspecific FOIA requests, Judge Martin | (¡concluded that the district had properly responded to Hollis’s FOIA requests and that the renewed motion for protective order should be granted. This appeal followed.
II. Standard of Review
In a FOIA case, the standard of review is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Pulaski Cty. v. Ark Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). The issue of the applicability of the FOIA is a question of statutory interpretation, which we review de novo, because it is for this court to determine the meaning of a statute. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511.
III. Discussion
We start with a brief discussion of the FOIA. The FOIA provides, that an Arkansas citizen may make a request to the custodian of public records to “inspect, copy, or receive copies of public records.” Ark.Code Ann. § 25-19-105(a)(2)(A). For a record to be subject to the FOIA and. available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by the Act or other statutes. Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d 196. If the citizen’s request for the records is denied, he or she may bring suit in circuit court to challenge the denial. ArkCode Ann. § 25-19-107(a). Here, there is no dispute that the requested records are public records under the FOIA. Although the district argued that some of the récords were protécted from disclosure by attorney-client privilege or other exceptions, Judge Martin rejected those arguments, and the district did not cross-appeal.
bln the circuit court case that spawned both this appeal (Hollis II) and Hollis I, the district filed a renewed motion for protective order under the same case number, and before the same circuit judge (Judge Martin), while the Hollis I appeal was pending. In Hollis I, this court addressed whether the district violated the TFDA when it terminated Hollis’s teacher contract for insubordinate conduct. The motion that the district filed- while the appeal was pending in Hollis I was fueled-by Hollis’s letter requests for information under the FOIA, and it was based on Arkansas Rule of Civil Procedure 26(c).
The problem is that our supreme court has embraced the view that the Freedom of Information Act and the discovery rules under the Arkansas Rules of Civil Procedure operate independently. See Berry v. Saline Mem’l Hosp., 322 Ark. 182, 185, 907 S.W.2d 736, 738 (1995) (“The FOIA at times provides greater disclosure than do the discovery procedures afforded by the Arkansas Rules of Civil Procedure.”). The FOIA, in other words, when properly invoked, provides an avenue for obtaining information that is separate from the rules of civil procedure. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990) (protective order obtained under discovery rules does not prevent availability of information under the FOIA). The essential legal question presented in this appeal is whether the district commenced a FOIA action by filing a “renewed motion for protective order.” The answer is no for two reasons. First, the district is the custodian of the records sought. The district’s second attempt to obtain a protective order did not formally commence a FOIA case because, by statute, only an Arkansas citizen may request to inspect or copy public records or seek review of the denial of such a request. ArLCode Ann. §§ 25-19-105(a)(l)(A) & 25-19-107(a).
|RSecond, because Hollis I was on appeal to this court when the unauthorized FOIA Rule 26 motion was litigated, we hold that the circuit court lacked jurisdiction to enter the protective order. We therefore reverse and dismiss this appeal without deciding the merits of the circuit court’s decision. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007). The parties’. dispute over access to information under Arkansas’s Freedom of Information Act may, however, be fully litigated under the law before Judge Beaumont for the reasons stated in the companion appeal to this case. See Hollis III, supra.
Reversed and dismissed.
Harrison and Glover, JJ., agree.
. Circuit Judge Doug Martin presided over the termination case.- ■ | [
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PER CURIAM
[ ¶ On February 27, 2010, the Benton County Sheriffs Office received a call that a seventy-five-year-old woman had been sexually assaulted in her home. The victim identified Brian Jordan, a former neighbor who had recently begun visiting her, as her attacker. In 2011, Jordan was found guilty by a jury of raping the victim and was sentenced as a habitual offender to life imprisonment. We affirmed. Jordan v. State, 2012 Ark. 277, 412 S.W.3d 150.
Jordan subsequently filed in the trial court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011) in which he contended that he was denied effective assistance of counsel because his trial attorney did not introduce certain evidence at trial and raise arguments related to the evidence to support his defense that the victim had offered him money in exchange for sex. The trial court denied the relief sought under Rule 37.1. This court affirmed the order. Jordan v. State, 2013 Ark. 469, 2013 WL 6046053 (per curiam).
|2Now before us is Jordan’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
As grounds for the writ, Jordan asserts that the State violated his right to due process of law pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by concealing information from Isthe defense. A review of the Brady claim suggests that Jordan has misconstrued the nature of a Brady violation and the purpose of a coram-nobis proceeding.
A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To determine whether the proposed attack on the judgment is meritorious -so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence qf the probability of the truth of those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.
Jordan alleges that there was criminal wrongdoing in the form of witness tampering, witness intimidation, witness bribery, and false swearing committed by the two officers who investigated his case,- the prosecutor, a deputy prosecutor, and the rape victim. He bases his claims on letters that he had written to the prosecutor and the circuit judge in which he alleged the wrong doing and called for those persons to be criminally prosecuted. He further relies on information contained in pro se pleadings that he had filed in the trial court in which he pointed out inconsistencies in -testimony, questioned the reliability of the evidence adduced at trial, and argued that crimes had been committed in order to obtain his conviction.
|Jn addition to asserting that the persons committed crimes to obtain his conviction, Jordan has also appended to. his petition the affidavit of Cleo Horton, which states that Horton was-' coerced by investigators into changing his pretrial statement to be less favorable to Jordan and that these same investigators suppressed a letter Horton wrote in 2010, asking about promises . made by police of favorable treatment to Horton.
The request to reinvest jurisdiction in the trial court is denied. We first note that, in his Rule 37.1 proceeding, Jordan raised claims pertaining to the same allegedly false statements by investigators that were incorporated in a police report with regard to the interrogation of Cleo Horton; claims of police intimidation which allegedly coerced Horton into recanting his statement that the victim had offered him money in exchange for sex on several occasions; a letter allegedly written by Horton in September 2010 in which Horton confessed to being untruthful when he recanted his statement, along with the explanation that hé had lied to cover up his participation in robbing the victim on the same night that the rape occurred and because he was promised probation; grievances authored by Jordan, which complained that police had assaulted him in an attempt to force him to confess to committing the rape and to writing the Horton letter; and an email sent' by the victim that Jordan claimed evinced the family relationship between an investigator and the victim. As stated, the trial court found no merit to Jordan’s arguments, and we affirmed the trial court’s decision. Jordan makes many of the allegations in this coram-nobis petition that were addressed in the Rule 37.1 proceeding, but those assertions are now couched as Brady violations.
|fiThe documents submitted by Jordan in the Rule 37.1 proceeding included an “Affidavit of Probable Cause to Obtain an :Arrest Warrant” in which Investigator Kenneth Paul.of the Benton County Sheriffs-Office attested that, on February 27, 2010, the sheriffs office began an investigation into the rape of the victim that led to the arrest of Jordan. • Investigator Paul further attested that on May 28, 2010. Jordan, while an inmate in the Benton County jail, gave investigators the name of fellow inmate Cleo Horton as a witness to the victim’s offer of money in exchange for sex. During the interview. Horton told Investigator Paul that the victim had been known to offer money in exchange for sex. According to the affidavit. Investigator Paul continued the interview and then turned off the audio recording in preparation of taking Horton back to jail. After determining that Horton’s narrative was strikingly similar to Jordan’s statement. Investigator Paul told Horton that he would be charged if it was determined that he was being untruthful and that this was his opportunity to tell the truth. According to Investigator Paul, Horton then stated that he .had made up the story because Jordan told him that, if he could get Jordan out of jail, Jordan would post his bond. Horton stated that Jordan had told him that the victim had never offered sex to anyone, and he apologized for lying. According to the affidavit, Horton stated that Jordan had asked him to lie “to try to coyer, up what he did.” Jordan also included several incident reports prepared by the sheriffs office in the documents submitted in support of his Rule 37.1 petition and an amendment to the petition. One report referred to a September 2010 letter received by the prosecuting attorney’s office allegedly written by Horton. The letter stated that Horton had lied when he recanted his statement in the May interview in order to cover up his participation in the robbery of the |flvietim! and because he was promised probation by Investigator Paul. In the letter, Horton’s name was spelled .incorrectly. Investigators then interviewed Horton, who stated that he- did not write the letter. Jordan also included two affidavits, dated August 24 and 25, 2011, allegedly prepared by Horton. In one affidavit, the affiant stated that investigators coerced him into recanting his May statement that the victim had offered him money in exchange for sex. In a second affidavit, the affiant stated that investigators coerced him into denying that he wrote the September 2010 letter. Finally, the documents included an email sent by the victim, as well as grievances submitted by Jordan in which he stated that he had been attacked by a member of law enforcement while he was in jail.
It is clear from the allegations raised under Rule 37.1 that Jordan was well aware of the circumstances concerning Horton’s statement. He has not demonstrated that Horton’s pretrial statement was not available to the defense or that Horton could not have been examined by defense counsel at trial concerning the veracity of the statement and any other circumstances pertaining to his giving the statement. To the extent that Jordan intended his allegation to be that Horton recanted his statement, recanting a previous statement is not grounds for a writ of error coram nobis. See Thomas v. State, 367 Ark. 478, 482, 241 S.W.3d 247, 250 (2006) (per curiam).
With respect to the remaining assertions in the request to reinvest jurisdiction in the trial court, Jordan has not demonstrated that any material evidence was withheld by the State. Instead, he has mounted a thinly disguised attack on the sufficiency of the evidence to sustain the judgment of conviction based primarily on the contents of his own letters and pleadings filed in the trial court. The sufficiency of the evidence is not an issue cognizable in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313 (per curiam). Whether the evidence supports the judgment is a question to be addressed at trial, and coram nobis does not provide a second opportunity to challenge the evidence. See Bond v. State, 2015 Ark. 470, 477 S.W.3d 508 (per curiam).
Because Jordan has presented no facts sufficient to demonstrate that there was information not known at the time of trial, or which could not have been known at the time of trial, that was concealed by the State, he has failed to establish good cause for the writ. The application for coram-nobis relief must'make a full disclosure of the specific facts relied on inasmuch as statements that are not supported by facts are not sufficient to warrant granting the writ. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Jordan’s allegations do not establish that there was some material evidence withheld that would have prevented rendition of the judgment had it been known at the time of trial. See Isom, 2015 Ark. 225, 462 S.W.3d 662.
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KAREN R. BAKER, Associate Justice
| gAppellants Courtyard Gardens Health and Rehabilitation, LLC and others (collectively “Courtyard Gardens”) appeal from a Clark County Circuit Court order denying its motion to dismiss and compel arbitration of claims brought against it by appellee Malinda Arnold, as personal representative of the Estate of Jessie James Bullock, deceased, and as attorney-in-fact of Annie Bullock.
The complaint alleges that on approximately January 1, 2010, Jessie James Bullock was admitted to Courtyard Gardens, a nursing-home facility located in Arkadelphia, Arkansas. Mr. Bullock remained a resident of the facility until approximately April 10, 2012; he died on April 15, 2012. Mr. Bullock’s wife, Annie Bullock, was admitted to Courtyard Gardens on approximately May 6, 2009, and remained a resident of the facility until approximately December 7, .2012. On June 18, 2009, Linda Gulley, the Bullocks’ daughter, entered separate admission agreements and optional arbitration agreements on behalf of each parent. The arbitration agreement contained the following provision:
| sIt is understood and agreed by Facility and Resident that any and all claims, disputes, and controversies (hereafter collectively referred .to as a “claim” or collectively as “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, (“NAF”) which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
On July 25, 2013, Arnold filed a complaint against Courtyard Gardens in the Clark County Circuit Court. The complaint alleged negligence, medical malpractice, violations of the Long-Term Care Facility Residents’ Rights' Act, breach of the provider agreement, violations of the Deceptive Trade Practices Act, and negligence against appellant Angela Marlar, in her capacity as administrator of Courtyard Gardens. On August 27, 2013, Courtyard Gardens filed an answer to Arnold’s complaint and reserved the right to enforce any applicable arbitration agreement after conducting an initial investigation to determine whether a valid arbitration agreement exists.
On December 23, 2013, Courtyard Gardens' filed a motion to dismiss the'complaint and compel arbitration. Courtyard Gardens argued that the arbitration agreement was valid and encompassed all of the ■claims in Arnold's complaint. On January 9, 2014, Arnold filed her response to the motion to dismiss and motion to compel arbitration. In her response, Arnold argued that the arbitration agreement.was unenforceable based , on impossibility of performance and unconscionability. Specifically, Arnold argued that the arbitration agreement was impossible to perform because the agreement selected the National Arbitration Forum (“NAF”) to serve has arbitrator and the NAF is now unavailable because it had settled with |4the Minnesota Attorney General and agreed to no longer conduct any arbitration pursuant to pre-dispute consumer agreements. On July 16, 2014, Courtyard Gardens filed a supplement to its. motion to dismiss complaint and compel arbitration. Courtyard Gardens argued that the arbitration agreements only required arbitration in accordance with the NAF Code and did not select the NAF as the actual arbitrator. Further, Courtyard Gardens argued that the circuit court must compel arbitration based on the attached affidavit of Angela Marlar, who explained “Courtyard Gardens’ overriding intent in entering these arbitration agreements is simply to have any and all disputes with a resident resolved through arbitration rather than litigation, regardless of the logistics.” On July 25, 2014, Arnold filed her response to Courtyard Gardens’ supplement,. Arnold argued that Ms. Marlar’s affidavit violated the parol-evidence rule because it contradicted the terms of the arbitration agreement.
' On July 28, 2014, a hearing-was held, and the circuit court denied the motion to compel arbitration. On August’29, 2014, the circuit court memorialized its findings in a written order.. In denying Courtyard Gardens’ motion to dismiss and motion to compel arbitration, the circuit court found that the parties had entered into a valid arbitration agreement and found that the arbitration agreement was not unconscionable. As to Arnold’s defense of impossibility of performance, the circuit court found, as follows:
The Arbitration Agreement is impossible to perform because it incorporates the National Arbitration Forum (“NAF”) Code of Procedure. Rule 1 of the NAF Code of Procedure requires the NAF to serve as arbitrator of any disputes between the Plaintiff and Defendants. As such, the NAF Code of Procedure is an integral term of the Arbitration Agreement. Because the NAF is no longer in business and is unavailable to serve as arbitrator over this dispute, the Agreement is impossible to perform.
IfiOn September 26, 2014, Courtyard Gardens filed its notice of appeal.
On appeal, Courtyard Gardens argues that the circuit court erred in finding that the arbitration agreement was unenforceable, thereby denying Courtyard Gardens’ motion to compel arbitration. An, order denying a motion to compel arbitration is an immediately appealable order under Arkansas Rule of Appellate Procedure-Civil 2(a)(12) (2015). We review a circuit court’s order denying a motion to compel arbitration de novo on the record. Searcy Healthcare Ctr., LLC v. Murphy, 2013 Ark. 463, at 3, 2013 WL 6047164 (citing HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304).
. The parties agree that the Federal Arbitration Act (“FAA”) governs the arbitration agreement at issue. In Regional Care of Jacksonville, LLC v. Henry, we explained that Congress enacted the FAA, 9 U.S.C. §§ 1-16, to overcome judicial resistance to arbitration. 2014 Ark. 361, at 6, 444 S.W.3d 356, 360 (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)). Section 2 of the FAA provides as follows:
A written provision ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction,, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such, a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2. The Act, which rests on Congress’ authority under the Commerce Clause, supplies not, simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. Preston v. Ferrer, 552 U.S. 346, 349, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1, 16, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)). The primary purpose of the FAÁ, is to ensure that private agreements to arbitrate are enforced according to their terms. Volt Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). To this end, the Supreme Court recognizes that parties are generally free to structure their arbitration agreements as they see fit. Id. With the enactment of the FAA, Congress declared a -national policy favoring arbitration when the' parties contract for that mode of dispute resolution. Preston, 552 U.S. at 349, 128 S.Ct. 978 (citing Southland Corp. 465 U.S. at 16, 104 S.Ct. 852). In DIRECTV, Inc. v. Imburgia, — U.S.-, 136 S.Ct. 463, 468, 193 L.Ed.2d 365 (2015), the Court disapproved of the California Court of Appeal’s interpretation of an arbitration clause because it resulted in the failure to place'arbitration agreements “on equal footing with all other contracts.” Id. (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. at 443, 126 S.Ct. 1204). The DIRECTV, Inc. Court reasoned that the California court’s decision failed to give “due regard ... to the federal policy favoring arbitration.” Id. at 471 (citing Volt Info. Sci., Inc., 489 U.S. at 476, 109 S.Ct. 1248). Likewise, as a matter of public policy, arbitration is strongly favored in Arkansas. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). Arbitration is looked upon with approval as a less expensive and more expeditious means of settling litigation and relieving docket corigestion. Id. Any doubts and ambiguities of coverage will be resolved in favor of arbitration. Id. In light of the public policy favoring arbitration, such agreements will not be construed strictly but will be read to include subjects within the spirit of the parties’ agreement. Id:
17-93 Despite an arbitration provision being subject to the FAA, courts look to state contract, law to determine whether the parties’ agreement to' arbitrate is valid. GGNSC Holdings, LLC v. Chappel, 2014 Ark. 545, 453 S.W.3d 645. The same rules of construction and ^interpretation apply to arbitration clauses as apply .to agreements generally. Hart, 344 Ark. 656, 42 S.W.3d 552. The construction and legal effect of a. written, contract to arbitrate are to be determined by the court as a matter of law. Id. Accordingly, we will give effect to the parties’ intent as evidenced by the arbitration agreement itself. Id.
In HPD, LLC v. Tetra Techs., Inc., we explained:
In deciding whether to grant a motion to c.ompel arbitration, two threshold questions must be answered. First, is there a valid agreement to- arbitrate between the parties? Second, if such an agreement exists,. does the dispute fall within its scope? In answering these questions, doubts about arbitrability must be resolved in favor of arbitration. Further, the court (rather than the arbitrator) decides these questions of arbi-trability, unless the parties clearly and unmistakably delegate that issue to the arbitrator. Based on the principle that arbitration is a matter of contract, the question of “who has the primary power to decide arbitrability” turns upon what the parties agreed about that matter.
2012 Ark. 408, at 6, 424 S.W.3d 304, 308 (internal citations omitted). Here, the circuit court found that the “Arbitration Agreement is valid and encompasses the dispute at issue.” The record demonr strates that the circuit court’s ruling was correct.
I. Unavailability of the NAF
The crux of the disagreement here is the unavailability of the NAF. The parties agree that the NAF is- no longer conducting arbitrations of this type. In 2009, after the Attorney General of Minnesota filed an action alleging that the NAF had engaged in violations of consumer-protection laws, the NAF entered into a consent decree-barring it from handling consumer arbitrations. CompuCredit Corp. v. Greenwood, — U.S. —132 S.Ct. 665, 677 n. 2, 181 L.Ed.2d 586 (2012) (Ginsburg, J., dissenting) (citing Press Release by Lori Swanson, Att’y Gen. of Minn. (July 19, 2009)).
|sOn appeal, Courtyard Gardens asserts that the circuit court erred in finding that the arbitration agreement was unenforceable and denied its motion to compel arbitration. Specifically, Courtyard Gardens argues that the circuit court’s decision to deny its motion based on impossibility of performance should be reversed. In response, Arnold argues that because the NAF is unavailable to arbitrate the dispute, the arbitration agreement is unenforceable based on the defense of impossibility of the performance.
Turning to whether the circuit court erred in finding that Arnold satisfied her burden of proving the affirmative defense of impossibility of performance, we are mindful of the United States Supreme Court’s mandate that arbitration agreements be placed on “equal footing with all other contracts.” DIRECTV, Inc., 136 S.Ct. at 468. We are also mindful of our public policy in favor of arbitration. In HPD, LLC v. TETRA Techs., Inc., we explained that
[o]ur object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement. It is well settled that a contract should be construed so that all of its parts are in harmony, if that is possible. In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of the other even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled.
2012 Ark. 408, at 11, 424 S.W.3d at 310-11 (citations omitted). Here, the arbitration agreement provides in pertinent part,
It is understood and agreed by Facility and Resident that any and all claims, disputes, and controversies (hereafter collectively referred to as a “claim” or collectively as “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in |Baccordance with the National Arbitration Forum Code of Procedure, (“NAF”) which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This agreement shall be governed by and. interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and the remainder of the Agreement shall remain effective.
THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES, AND THÁT BY ENTERING INTO THIS ARBITRATION AGREEMENT, THE PARTIES ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AS WELL AS ANY APPEAL FROM A DECISION OR AWARD OF DAMAGES.
With regard to impossibility of performance, we have explained the standard to determine whether the defense of impossibility of performance is satisfied in Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979):
The burden of proving impossibility of performance, its nature and' extent and causative effect rests upon the party alleging it. He must show that he took virtually every action within his power to perform his duty under the contract. It must be shown that the thing to be done cannot be effected by any means. Resolution of the question requires an examination into the conduct of the party pleading the defense in order to determine the presence or absence of fault on his part in failing [to] perform.
Id. at 302-03, 584 S.W.2d at 33 (citations omitted). Further, we have drawn a “distinction between objective impossibility, which amounts to saying, ‘[t]he thing cannot be done,’ and subjective impossibility!,] T cannot do it.’ ” Christy v. Pilkinton, 224 Ark. 407, 407, 273 S.W.2d 533, 533 (1954) (quoting Restatement (First) of Contracts § 455 emt. a (1932)). Only cases involving objective impossibility of performance are excused. Id.
A review of Arkansas cases involving the defense of impossibility of performance demonstrates that the burden of proving impossibility ' is an exceedingly difficult standard to overcome. See Smith v. Decatur Sch. Dist., 2011 Ark. App. 126, 2011 WL 549057 (defense of impossibility of performance' was available where state or federal regulatory agency issued an order preventing performance of the contract and the contract could not be performed without violation of the governmental order); Holton v. Cook, 181 Ark. 806, 27 S.W.2d 1017 (1930) (incapacitation of ap-pellee’s daughter to pursue her studies rendered performance impossible and relieved appellee from liability for tuition anil board for the balance of the year); C.G. Davis & Co. v. Bishop, 139 Ark. 273, 213 S.W. 744 (1919) (defense of impossibility of performance applied and excused the seller’s liability in a contract for the sale of crops when weather conditions or matters outside the seller’s control prevented him from delivering the number of crops contemplated by the contract).
Arnold argues that because the arbitration agreement incorporates the NAF Code and because the NAF Code can only be administered by the NAF, the arbitration agreement effectively selects the NAF as arbitrator. Thus, because the NAF is unavailable to arbitrate the dispute, the agreement is impossible to perform. To support her position, Arnold cites to Rule 1(A) of the NAF Code of Procedure. Rule 1(A) states, “This Code shall be administered only by the' National Arbitration Forum or'by any entity or individual providing [ ¶ jadministrative services by agreement with the National Arbitration Forum.”
Pursuant to Frigillana, Arnold bears the burden of proving that the arbitration agreement is impossible to perform. Arnold has clearly failed to satisfy her burden of proving impossibility of performance. Stated differently, Arnold has failed to demonstrate that the agreement to arbitrate “cannot be effected by any means.” Rule 1(A) of the NAF Code of Procedure is- qualified by Rule 48(C), which states that “[i]n the event a court of competent jurisdiction shall find any portion of this Code or Fee Schedule to be in violation of the law or otherwise unenforceable, that portion shall not be effective and the remainder of the Code shall remain effective.” See Green v. U.S. Cash Advance Illinois, LLC, 724 F.3d 787, 789 (7th Cir. 2013). Thus, the NAF’s Code of Procedure remains available even when the NAF is not serving as the arbitrator. Further, Rule 48(D) of the .NAF Code provides, “[i]f Parties are denied the opportunity to arbitrate a dispute, controversy or Claim before the Forum, the Parties may seek legal and other remedies in accord with applicable law.” Arnold also cites to Rule 48(E), which states that “[i]n the event of a cancellation of this Code, any Party may seek legal and other remedies regarding any matter upon which an Award or Order has not been entered.” However, Arnold has failed to offer proof that the" NAF Code has been | ^cancelled. In reviewing the applicable law identified by the parties in their agreement, the agreement states that it “shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.” Section 5 of the FAA specifically contemplates the possibility that a designated arbitrator may be unavailable to arbitrate the dispute and requires the appointment of a substitute arbitrator when the NAF is unavailable:
If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be . provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the contro- . versy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act’under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.
9 U.S.C. § 5 (emphasis added). Thus, section 5 applies, and the circuit court “shall” appoint an arbitrator. Applying a de novo review to the circuit court’s findings, and after careful review • of the arbitration agreement, we hold that the arbitration agreement is not unenforceable based on the defense of impossibility of performance.
II. Integral-Term versus Ancillary-Logisticálr-Concem Test
Further, the integral-term versus ancillary-logistical-concern test employéd by the parties supports this court’s decision that Arnold has failed to satisfy her burden of proving the defense of impossibility of performance. As noted above, the FAA governs the arbitration agreement at issue. The majority of courts that have addressed whether a substitute arbitrator can be appointed pursuant to section 5 of the FAA have utilized the approach set out in Brown v. ITT Consumer Financial Corp., 211 F.3d 1217 (11th Cir.2000). In Brown, the court focused its inquiry on whether the reference to the arbitral forum named in the arbitration agreement was integral to the parties’ decision to arbitrate or merely a logistical ancillary concern. Mat 1222. Only if the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern will the failure of the chosen forum preclude arbitration. Id. “This question has vexed courts across the country and resulted in a substantial split of authority.” Meskill v. GGNSC Stillwater Greeley, LLC, 862 F.Supp.2d 966, 972 (D.Minn. 2012). In Brown, the court held that “there is no evidence that the choice of the NAF as the arbitration forum was an integral part of the agreement to arbitrate. Brown’s argument that the arbitra-^ tion agreement is void because the NAF was unavailable must fail.” 211 F.3d at 1222. See also Khan v. Dell, 669 F.3d 350 (3rd Cir. 2012) (designation of the NAF as arbitrator is not “integral” to arbitration agreements and § 5 may- be used to appoint a substitute arbitrator); Meskill, 862 F.Supp.2d 966 (holding that the unavailability of the NAF could be’ remedied by appointing a substitute arbitrator under the FAA, because the designation of the NAF was not integral to the agreement); but see, Miller v. GGNSC Atlanta, LLC, 323 Ga.App. 114, 746 S.E.2d 680 (2013) (the availability Of the NAF Code and, consequently, the availability of the NAF as’ an arbitral forum, are integral to the agreement); Carideo v. Dell, Inc., C06-1772JLR, 2009 WL 3485933 (W.D. Wash. Oct. 26, 2009) (the parties’ selection of the NAF as arbitrator is integral to the arbitration clause).
Here, for the reasons that follow, we hold that’the NAF term whs merely an ancillary | ^logistical concern and that sec-tiori 5 of the FAA applies and provides a procedure for the appointment of a Substitute arbitrator. First, the “binding arbitration” language, 'as bolded and capitalized in’the arbitration agreement does not mandate that claims be arbitrated with the NAF; rather it requires arbitration as the sole means of resolving the claims. The fact that the NAF term is absent from the bolded and capitalized language supports the determination that it‘was the parties’ intent to resolve their disputes ’through binding arbitration regardless of the availability of the NAF.
Second, the -mandatory language in the arbitration agreement, “shall,” applies to. arbitration, not the NAF or a particular arbitrator. The arbitration agreement states that the dispute “shall be resolved exclusively by binding arbitration, to, be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, (“NAF”) which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.” A review of the arbitration agreement demonstrates that the integral term of the arbitration agreement is “arbitration,” not the “NAF” • as an arbitrator. Meskill, 862 F.Supp.2d at 976 (citing Diversicare Leasing Corp. v. Nowlin, No. 11-CV-1037, 2011 WL 5827208, at *6 (W.D. Ark. Nov. 18, 2011)) (“lack of focus” on the NAF due to it being mentioned only once in three-page arbitration agreement “evidence[s] that the NAF was not a primary concern of the parties”). Thus, minimal reference to the NAF in this arbitration | ^agreement undermines Arnold’s argument that the. NAF term was integral to the parties’ agreement to arbitrate.
Third, as stated previously, the arbitration agreement, requires thq use of the NAF’s Code of Procedure, not .that the NAF itself is required to conduct the arbitration. In Green, in interpreting an arbitration agreement in favor of arbitration, the court explained, “[i]f [the agreement] were designed to require arbitration to be conducted by the [NAF] exclusively, the reference to its Code would be surplusage; the only reason to refer to the Code is to create the possibility of arbitration outside the [NAF]’s auspices, but using its rules of procedure.” 724 F.3d at 789. Here, the reference to the NAF Code of Procedure and the accompanying footnote are the only references to the NAF in this arbitration agreement. Robinson v. EOR-ARK, LLC, No. 1:14-CV-01051, 2015 WL 5684140, at *1 (W.D. Ark. Sept. 28, 2015) (in granting the motion to compel arbitration and interpreting identical language, the court noted that “the agreement’s only mention of the NAF is in reference to the NAF Code of Procedure incorporated into the agreement and reference in a footnote”). By “invoking only the Code and not the NAF itself, the agreement suggests that the parties anticipated an entity other than the NAF might conduct the arbitration.” Id. (citing Meskill, 862 F.Supp.2d at 973). Thus, reference to the NAF Code of Procedure, rather than the NAF itself, further supports the conclusion that the NAF term was a mere ancillary concern.
Fourth, the arbitration, agreement contains a severability clause, which further evidences the parties’ intent to arbitrate even if a portion of the arbitration agreement is | ^unenforceable. The severability clause states, “In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and. the remainder of the Agreement shall be effective.” In Nowlin, the court explained that the agreement contains a “severance provision that clearly allows for arbitration to go forward even where a portion of the agreement is held to be indefinite or invalid.” Id. at *6. The court, further found that “the severance provision indicates that the intention was not to make the [designated forum] integral, but rather to have a dispute resolution process through arbitration.” Id. (citing Jones v. GGNSC Pierre LLC, 684 F.Supp.2d 1161, 1167 (D.S.D.2010)). Further, in seeking to harmonize the severance- clause with the other clauses contained in the contract, as required by HPD, LLC, swpra, the severance clause operates to remove the unenforceable provision of the agreement. Here, the unenforceable language relates to the NAF as arbitrator. Once this unenforceable language is severed from the arbitration agreement, the parties must be compelled to resolve their dispute through arbitration.
As we held in HPD, LLC\ “our object is to ascertain the intention of thé parties ... from the entire context of the agreement.” 2012 Ark. 408, at 11, 424 S.W.3d at 310-11. Based on the intention of the parties as expressed in the arbitration agreement, and in order to give effect to the arbitration requirement, the sole purpose of the parties’ agreement, we hold that the NAF term is merely an ancillary logistical concern and is severable.- Therefore, in light of our public policy in favor of arbitration and the réquirement that doubts about 117arbitrability be resolved in favor of arbitration, we hold that the circuit court erred in denying Courtyard Gardens’ motion to compel arbitration based on impossibility of performance. We reverse and remand for the entry of an order compelling arbitration.
Reversed and remanded.
Danielson and Wynne, JJ., and Special Justice Ryan Allen dissent.
Wood, J., not participating.
. Senior Living Communities of Arkansas, LLC; Arkansas SNF Operations Acquisition, LLC; Arkadelphia Holdings, LLC; SLC Professionals, LLC; Arkansas Nursing Home Acquisition, LLC; Senior Vantage Point, LLC; 2701 Twin Rivers Drive, ÉLC; SLC Operations Master Tenant, LLC; SLC Professionals Holdings, LLC; Addit, LLC; CSCV Holdings, LLC; SLC Operations Holdings, LLC; EOR-ARK, LLC; SLC Operations, LLC; VAJ, LLC; Jerry V. Kemper; and Angela Marlar, in her capacity as administrator of Courtyard Gardens Health and Rehabilitation,
. On January 23, 2007, Jessie Bullock executed his power of attorney and designated his daughters, Malinda Arnold and Linda Gulley, to act independently or jointly as his attorney-in-fact and agent. On January 7, 2010, Annie Bullock executed her power of attorney and designated her daughters, Malinda Arnold and Linda Gulley, to act independently or jointly as her attorney-in-fact and agent. On August 22, 2012, the Clark County Circuit Court entered an order appointing Malinda Arnold personal representative of the Estate of Jessie Bullock.
. Arnold contends that because the NAF Code of Procedure is incorporated into the agreement, it adds 85 pages of additional terms to the arbitration agreement. However, we note that Arnold only introduced Rules 1, 2, and 48 of the NAF Code into the record. Arnold invites this court to look outside the record by stating that the NAF Code of Procedure is available at http://www.arb-forum.com. Matters outside, the record will, not be considered in making a ruling on appeal. See Estates of Seay v. Quinn, 352 Ark. 113, 98 S.W.3d 821 (2003).
. On appeal, Arnold challenges the circuit court’s ruling that the "Arbitration Agreement applies to Plaintiff's claims in her Complaint against Defendants, not just Plaintiff’s claims against Courtyard Gardens Health and Rehabilitation, LLC.” However, Arnold did not file a notice of cross-appeal. A notice of cross-appeal is necessary when an appellee seeks something more than it received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Further, on interlocutory appeal this court does not review rulings in favor of compelling arbitration. See Searcy Healthcare, LLC v. Murphy, 2013 Ark. 463, 2013 WL 6047164. Therefore, we decline to address Arnold’s argument on appeal. | [
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PHILLIP T. WHITEAKER, Judge
|,Appellant Jamaal Halcrombe pleaded guilty to two misdemeanors and was placed on probation for a period of one year and ordered to serve thirty days in the county jail. As a general rule, an appeal from a plea of guilty or nolo con-tendere is prohibited. Ark. R.App. P.— Crim. 1(a) (2015). There are some limited exceptions to this general rule. Unless Halcrombe meets one of the limited exceptions, his appeal must be dismissed. Because Halcrombe does not meet any of those exceptions, we dismiss the appeal.
The first exception to the rule prohibiting appeals from a plea of guilty or nolo contendere is found in Arkansas Rule of Criminal Procedure 24.3(b) (2015). Rule 24.3(b) allows a defendant to enter a conditional guilty plea under certain specified circumstances. Here, Halcrombe did not enter a conditional plea under Rule 24.3(b). He was initially charged with possession of methamphetamine or cocaine with purpose to deliver, a Class C | ¿felony; possession of a controlled substance, a Class A misdemeanor; fleeing, a Class C misdemeanor; and drinking in public, a Class C misdemeanor. The State subsequently nolle prossed the felony-possession charge and the drinking-in-public charge. Afterward, Halcrombe entered a guilty plea to the two remaining misdemeanor counts without conditions under Rule 24.3(b). Consequently, this exception does not apply.
Our supreme court has recognized two other exceptions to Rule 1(a). An appeal may be taken after a guilty plea when the issue on appeal is one of eviden-tiary errors that arose after the plea but during the sentencing phase of the trial, regardless of whether a jury was impaneled or the trial judge sat as the trier of fact during that phase. Johnson v. State, 2010 Ark. 63, 2010 WL 1006439. Halcrom-be’s appeal clearly does not fall within this exception, as there is neither an allegation nor a record of any evidentiary error during sentencing.
An appeal may also be taken from the denial of a postjudgment motion to amend an incorrect or illegal sentence following a guilty plea. Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). Halcrombe’s appeal, however, does not fall within this exception. First, the sentence imposed was within the statutory range and thus not incorrect or illegal on its face. Second, it is questionable whether Halcrombe filed an appropriate post-judgment motion. After the misdemeanor judgment was entered, Halcrombe sent a pro se letter to the Faulkner County Clerk’s office, asking to appeal “and get back in court” and asserting that he thought that “30 days in jail satisfies any misdemeanor and I feel like 30 days plus probation is a little ^excessive.” Even if we were to consider this letter to the circuit clerk’s office to be a postjudgment motion, Halcrombe does not challenge the correctness or the legality of the sentence itself.
Rather, Halcrombe’s sole argument on appeal is that the sentence issued by the circuit court was “excessive and imposed as a result of passion and prejudice.” Hal-crombe apparently reaches this conclusion because the court initially attempted to impose a sentence of sixty months’ probation under a-mistaken belief that the felony charge was still pending. When Hal-crombe’s counsel reminded the court that the felony charge had been nolle prossed, however, the court accordingly sentenced Halcrombe to twelve months’ probation for the Class A misdemeanor and thirty days in the county jail for the Class C misdemeanor. Both of these sentences are within the applicable statutory range. Ark. Code Ann. § 5-4-401(b)(l) & (3) (Repl. 2013).
Halcrombe’s appeal does not fit within either exception pursuant to Rule .1(a). We must therefore dismiss the appeal. See McCarty v. State, 2014 Ark. App. 404, 2014 WL 2807583.
Appeal dismissed.
Kinard and Hixson, JJ., agree.
. At the time of his plea, Halcrombe acknowledged that the court could sentence him to up to one year in jail on the Class A misdemean- or and up to thirty days in jail on the Class C misdemeanor. | [
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Smith, J.
Appellee, Marie Henson, filed this suit to recover possession of a lot containing slightly less than an acre, which she described in her complaint as follows: “Part of the northwest fourth of the northeast fourth of section 26, township 19 north, range 7 east; more particularly described as lot á, of Lafflar’s survey to the city of Sector, Arkansas.” An answer was filed raising the issues herein discussed, and on motion of the defendant the cause was transferred to equity, where a decree was rendered in plaintiff’s favor, from which is this appeal.
By an unbroken chain of conveyances defendant, appellant here, deraigned title from the United States Government under identical descriptions in the numerous deeds in the chain of title, to a certain parcel of land, reading as follows: “A part of the west half of the northwest quarter (NW %) of the northeast quarter (NE 14) of section twenty-six (26), township nineteen (19) north, range seven (7) east, described as follows, to-wit: Commencing at the northwest corner of the northeast quarter (NE %) of said section twenty-six (26) running thence east 40 rods, thence south fifty-eight (58) rods, to the true place of beginning thence west 210 feet; thence north 210 feet, thence east 210 feet; thence south 210 feet to the place of beginning.”
It appears there had been a survey of an addition to the town of Rector, the plat of which described four certain lots as lots 1, 2, 3, and 4 of block 3 of Bolton’s Addition to the town of Rector, but that survey did not include the lot here in litigation. This lot last referred to, was assessed for taxation under the description, “Pt. northwest quarter, northeast quarter, section 26, township 19 north, range 7 east, 1 acre,” and forfeited to the state under that description for the nonpayment. of the 1930 taxes assessed against it.
On October 13, 1944, the State Land Commissioner for the recited consideration of $171.69 issued a redemption deed to Barbria Bracken, appellant here, which recited that, “This deed is issued in accordance with the description contained in the quitclaim deed from Minnesota Yates, an unmarried person, to Barbria Allen Bracken on November 14, 1939.” This deed employed the description appearing in all the deeds in the chain of title and recited that it covered “the taxes, penalty and costs due thereon and for which the same was sold, and expenses incurred by the state amounting to the sum of $14.13, and the taxes that would have accrued thereon subsequent to said sale (to the state) from the date of such sale to the present time, making in the aggregate the sum of $171.69 from which amount no dollars and no cents of such subsequent taxes is deducted, the same having been paid heretofore to the proper officials of said county. ...”
The lot here in question, was assessed under' the description of “Part of section.” Under many decisions of this court this was a void description, and no valid sale for taxes could ever be had under that description. Accordingly a survey was made by the county surveyor for the purpose of putting this and other property on the tax books under a valid description.
This survey referred to as the Lafflar survey was made under the authority of § 13695, Pope’s Digest, and a plat thereof was duly recorded with the explanatory field notes, as authorized and required by other sections of the statute.
The relevant portions of § 13695, Pope’s Digest, read as follows: “It shall be the duty of each assessor to make out, from such sources of information as shall be in his power, a correct and pertinent description of each tract or lot of real property in his county, so that the same can be identified and distinguished from any other tracts or parts of tracts, and he shall place a value on each subdivision of a block and the improvements thereon in cities and towns, or additions thereto, notwithstanding the fact that one individual owns the whole block. And when he shall deem it necessary to obtain an accurate description of any separate tract or lot in his county, he may require the owner or occupier thereof to furnish the same with any title papers he may have in his possession, and if such owner or occupier, upon demand made for the same, shall neglect or refuse to furnish a satisfactory description of such parcel of real property to such assessor, he may employ the county surveyor to make out a description of the boundaries and location thereof; and a statement of the quantity of land therein, and the expense of such survey shall be returned by such assessor to the clerk of the county court, who shall add the expense of such survey to the tax assessed upon such real property, and it shall be collected by the collector of the county with such tax, ...”
A tax sale based upon a description contained in the Lafflar Survey was upheld in the case of Holt v. Reagan, 201 Ark. 1101, 148 S. W. 2d 155, but it was not shown in that case that the description of the property sold for taxes was not properly identified and described by the survey.
The purpose of this statute is to furnish descriptions of lands and lots assessed for taxation so that they may be identified by reference to the plat of the survey which has become a public record. The survey is to be made of the lands and lots in place, and to that end the landowner may be required to exhibit his title papers so that an accurate map thereof may be made. The surveyor has no right or authority to ignore the existing boundary lines. On the contrary, it is his duty to make a survey conforming to the boundary lines and to make and have recorded a plat showing the survey thereof.
For some reason the surveyor ignored the existing boundary lines of appellant’s lot which had been described in numerous deeds' in her chain of title, all of which were of record. These conveyances described her lot as set out above. The survey should have conformed to this description, and the lot thus surveyed should have been given a number on the plat of the survey. Had that been done the lot thus numbered should have been placed on the tax books, and an assessment of the taxes thereon and a sale for the nonpayment of the taxes under that description would have been valid. Such was the holding in the case of Holt v. Reagan, supra.
The plat of the Lafflar Survey and the field notes accompanying it ignore the valid description of appellant’s lot. .A line projected south 58 rods from the northwest corner of the northeast quarter of section 26, would extend into what was surveyed as lot 4, but would not include it all or reach to its south boundary. Moreover, the survey of the west boundary of lot 4, as shown by the plat thereof, extends into and slices off 50 feet of lots 1, 2, 3, and 4 according to an outstanding survey.
When the Lafflar Survey was made, lot 4, according to that survey, was placed on the tax books, and was sold for the nonpayment of the taxes assessed against it for the year 1935. This forfeiture was certified to the state, and, on January 3, 1944,' the State Land Commissioner, for the consideration of $5.39, including "the cost of the deed, executed a deed to appellee, Mrs. Henson, for lot 4, which recited its forfeiture to the state for nonpayment of the 1935 taxes assessed against it. This suit is based on that deed.
This deed and the sale on which it was based are void as to the lot here in litigation for the reason that the survey was made in a manner not authorized by law. There is authority which we sustained in the case of Holt v. Reagan, supra, to make a survey of the lands and lots owned by each and every landowner in an area which cannot be properly assessed for want of a valid description, but there is no authority to change the description of a person’s land so that it cannot be identified by reference to his title papers.
We do not hold that an error in one respect would invalidate the survey of other lots properly surveyed, and which would not confuse or render uncertain the description of other lots; but a survey is invalid which ignores the boundaries as defined in the title papers of the property owners. In other words, the property must be surveyed as it exists and is found to be.
The decree will, therefore, be reversed, and the Commissioner’s deed to lot 4 will be canceled for the reason that it is based upon invalid survey, and the cause will be remanded with directions to enter a decree in accordance with this opinion. | [
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Ed. F. McFaddin, Justice.
This appeal comes from an nnsnccessful effort to annul a state deed of certain land in Prairie county.
The landowner, Union Planters National Bank & Trust Company, suffered the lands to be sold to the state for the taxes for the year of 1933. In 1938, the state’s title was confirmed under Act 119 of 1935; and in July, 1941, the appellee purchased the land from the state, and has paid all taxes subsequently due. In October, 1941, appellant received a quitclaim deed from Union Planters National Bank & Trust Company; and in February, 1946, filed this suit to have canceled the deed from the state to the appellee, which deed was based on the 1933 tax sale, and the 1938 confirmation decree. The complaint alleged a tender of all taxes.
The appellee defended the validity of the tax sale, and the confirmation and the state deed; and a trial in the chancery court resulted in a decree dismissing appellant’s complaint. This appeal challenges that decree.
In tlni court, appellant urges only one ground of attack on the validity of the tax sale for 1933 taxes, and that is the claim that the school tax had not been legally levied for the year of 1933, in that the record of the quorum court fails to show that the justices in the quorum court ever voted to levy a school tax in keeping with § 2526, Pope’s Digest. It is conceded that the quorum court duly and legally convened at the time and place fixed by law, and that a majority of the justices of the peace was present; but it is argued that the proceedings of the quorum court fail to show that the justices ever voted to levy a school tax. Here is what the quorum court record shows, as regards the levy of school tax:
( ( School Tax Levied
“Now on this day is takened up by the Court the matter of the levy of School Tax for the various school districts, motion was made by T. 0. Ballowe and seconded by S. S. Conder that the tax be levied on the school districts as certified to the clerk by the various school districts of the County as follows:
“School District
No. Mills
1 18
2 18
3 18”
(Then follows each of the remaining 54 school districts, with a millage figure opposite each such number.)
Appellant argues that the record, as above quoted, shows that a motion was duly made and seconded, but that the record does not show that the motion was ever put to a vote, or the names of those who voted for the motion. On this alleged absence of a showing of the putting of the question to a vote, and the names of those voting for or against the motion, the appellant bases his entire appeal in this case; and he cites such cases as Alexander v. Capps, 100 Ark. 488, 140 S. W. 722; Morris v. Levy Lumber Co., 103 Ark. 579, 148 S. W. 252; and Blakemore v. Brown, 142 Ark. 293, 219 S. W. 311. To these might well be added Porter v. Ivy, 130 Ark. 328, 197 S. W. 697.
If the appellant’s attack had been made prior to a confirmation proceeding, then there might be merit to his position, because § 2526, Pope’s Digest, (requiring the names of those members of the quorum court voting for and against the motion) does not appear to have been strictly followed. The words in the quorum court record, “school tax levied,” when read with the rest of the record, do show that the school tax was levied for each dis trict, even though the record does not show the names of the justices voting on the motion. The quorum court record, here, shows a “school tax levied on . . . motion . . . made by T. C. Ballowe and seconded by S. S. Conder ... on the school districts as certified to the clerk by the various school districts of the county as follows . . . ”
But in the case at bar there was a tax confirmation proceeding in 1938 (under Act 119 of 1935), and that confirmation proceeding cured the irregularity, informality or omission of the county clerk to literally obey and observe § 2526, Pope’s Digest. In Kansas City Life Insurance Company v. Moss, 196 Ark. 553, 118 S. W. 2d 873, there was presented the identical contention as is here made by the appellant, and Mr. Justice Baker, speaking for this court, said:
“The second contention made is that the county clerk did not keep a record of the voting of the members of the quorum court showing the affirmative and negative votes of those constituting that court upon the levying of taxes.
“There is no doubt about the soundness of this contention, if it were made otherwise than in the face of the "curative statute the effect of which has been heretofore declared in the cases cited, nor have we any controversy with the contention of learned counsel as to the benefits intended to be guaranteed by the statute under consideration.
“We are not unaware of the numerous decisions of this court in regard to the duties of the clerk in this respect, nor the declaration in the several decisions as to the wholesome purposes to be served in the matter of a record of the affirmative and negative votes of the members of the quorum court. However mandatory this language should appear, we think it should be remembered that these duties were required by statute only. Such statutes so enacted by the Legislature, it had ample, power to repeal. This particular statute did not go to the capacity or power of the court to levy the taxes, but relates solely to the evidence of the fact that a levy had been made and that evidence is lacking only in its proper certification. The objection cannot be made under the record relied upon in this case that the taxes were not in fact levied, but the objections must be urged, if at all, that there was an omission to certify properly the manner in which the tax was levied. It was mere omission of an officer to do a positive duty required by statute, but not so potent was that -defect or irregularity as to destroy the power to sell.”
It is true that in the above case the court cited Act 142 of 1935 as. curing the irregularity, and it is also true that Act 142 of 1935 was repealed by Act 264 of 1937; but, here, the 19.38 confirmation proceedings (under Act 119 of 1935) had the same effect in the case at bar as Act 1942 of 1935 had in Kansas City Life Ins. Co. v. Moss, supra, so the reasoning in that case is clearly applicable to the situation here — that is, the confirmation proceeding cured the omission in the minutes of the quorum court, since such omission did not go to the power to-sell.
The identical question here argued by appellant was decided in Plant v. Sanders, 209 Ark. 108, 189 S. W. 2d 720, wherein we said:
“Appellee on cross-appeal also contends 'that the sale of all the lands first above described is void because the levying court did not vote or levy a tax against said lands for the year 1930. We think the record of said court contradicts appellees in this contention. It recites the following: ‘On motion of C. E. Quick, seconded by A. F. Porter, a levy of five mills on the taxable property of Johnson County to defray the expenses of the general county expenses for the fiscal years 1930 and 1931 was made.’ It is argued that the motion of Quick was not submitted to a vote of the members, no vote taken, or the record does not show the motion was carried by a majority or unanimously. See § 2526, Pope’s Digest. The record affirmatively shows that the levying court met at the proper time and place with a majority of all the justices of the peace present, and it affirmatively recites that ‘on the motion of Quick a levy of 5 mills on all taxable property . . . was made.’ We think this recitation necessarily implies that a vote was taken with a majority or all of the justices voting for it. Certainly after confirmation of the sale to the state this question is foreclosed against appellees. The same thing is true with reference to the other levies made for bond, road, municipal and school tax.”
So, under the authority of the cases of Kansas City Life Ins. Co. v. Moss, supra, and Plant v. Sanders, supra, we affirm the decree of the chancery court "on the point argued by the appellant in this court. We deem it advisable also to state that the chancery court had other sufficient grounds for its decree, but we have not lengthened this opinion by detailing these other grounds, since the decision here rendered disposes of the sole contention urged by the appellant before this court.
Affirmed. | [
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Ed. F. McFaddin, Justice.
Separate informations were filed by the prosecuting attorney in the Polk Circuit Court charging each of the appellants with the crime of grand larceny. The information against Stroud read in part: “The said defendant N. B. Stroud, on the 6th day of August, A. D. 1946, in Polk County, Arkansas, did unlawfully, willfully and feloniously steal, take .and carry away a certain yearling calf, the property of Amond Hamby, . . . ”
The information against Forehand read in part: “The.said defendant Marvin Forehand, on the 6th day of August, A. D. 1946, in Polk County, Arkansas, did unlawfully, willfully and feloniously steal, take and carry away a certain yearling calf, the property of Amond Hamby, ...”
Over the objections and exceptions of the defendants, the trial court consolidated the two informations, and tried the defendants jointly. The objections and exceptions of each and both of the defendants were duly and seasonably made and preserved of record. The defendants were both convicted; and in the motion for new trial they assigned as error the action of the court in making the order of consolidation. The motion for new trial contained a total of 37 assignments; but we discuss only those assignments involving the order of consolidation.
The circuit court committed reversible error in consolidating the informations, and trying the defendants jointly. What we said in Morton and Ashcraft v. State, 207 Ark. 704, 182 S. W. 2d 675, is directly in point. There, separate informations were filed against Morton and Ashcraft, and the trial court consolidated the cases over the defendants’ objections and exceptions duly and seasonably made. We said: “We think it was error to have consolidated and tried these informations together, over the objections of appellants.” And, again, we said: “The electors did not, by Initiated Act No. 3, confer the discretion to order the consolidation for trial of indictments against defendants separately indicted.”
We reversed the judgments of conviction against Morton and Ashcraft because of the consolidation, and that holding is ruling in the case at bar; so, because of the consolidation, made over the seasonably offered and duly preserved objections and exceptions of the defendants, the judgments in this case are reversed, and the causes remanded.
(Acts 1937, p. 1384.) | [
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Robins, J.
Appellants as lessors and appellee as lessee executed a written lease, whereby appellants leased to appellee a certain tract in Jonesboro, Arkansas, used as a filling station.
Tbe provisions as to term and rental were as follows:
“Term: To bave and to bold for tbe term of five years, from and after tbe fourteenth day of June, Nine-, teen Hundred Forty-one to June 14, 1946.
“Bental: Lessee agrees to pay tbe following rent for tbe premises: $50 per month payable in advance for two years, then $60 per month for tbe additional three years, with option for renewal of five years, with the understanding that price of rental is fixed at tbe termination of rent contract as of June 14, 1946.”
Tbe lease also contained provisions for maintenance of the property by appellee, and for permitting lessors to bave certain parking space on tbe rented .tract.
This suit was instituted against appellee by appellants on July 3, 1946, to recover possession of the property, it being alleged that tbe appellee was bolding over, after termination of lease, without right, and that be bad breached tbe léase in several particulars.
Appellee answered with a general denial, and alleged that be bad exercised bis option under tbe lease to retain tbe property for five years beginning June 14, 1946.
On trial before a jury appellants offered to prove that when tbe lease was executed there was a discussion between tbe parties as to rental to be paid on tbe last five-year optional period, and that it was agreed, because of the uncertainty as to what property values might be at tbe end of tbe first five-year term, that tbe rent for tbe optional period would not be fixed in tbe lease, but would be left open for agreement, if tbe option were exercised, and they also offered to prove acts and statements of tbe appellee indicating that tbe interpretation put on tbe lease by tbe parties was that tbe amount of rental for tbe final five-year period was not fixed in tbe lease, but was to be agreed upon on tbe expiration of tbe first five years. The court refused to permit this testimony to he introduced, but did allow Dr. Stroud, husband of one of the appellants, to testify that appellee called him a short time before June 14, 1946, and said: “What about renewing my lease? What do you want to charge me for a renewal?”, and that appellee was by Dr. Stroud referred to Dr. Lutterloh, husband of the other appellant.
Also admitted was the testimony of Frank Macon, brother of appellee’s sub-lessee, who stated that he (the witness) was in charge of the property under appellee from August, 1941, to February, 1944, and from July, 1944, to June 9, 1946, and that witness asked appellee if he was going to renew the lease and appellee said “the thing was going to cost him more than it was worth and he wasn’t interested in it and he didn’t want it,” that appellee said that if he renewed the lease it would cost him more than it was worth.
. There was testimony by witnesses for appellants tending to show that appellee breached certain provisions of the lease and that appellants notified appellee that the term of the lease would not be extended for that reason.
At the conclusion of appellants ’ testimony the court, holding that the lease was unambiguous and that únder the terms thereof appellee was entitled to hold the premises for the additional five-year term at a rental of $60 per month, instructed the jury to return a verdict in favor of appellee. From judgment in accordance with the verdict this appeal is prosecuted.
The language of the provision in the lease for renewal for a term of five years is fairly susceptible of two interpretations.
As appellee points out, the recital “with the understanding that price of rental is fixed at the termination of rent contract as of June 14, 1946,” may well be construed as meaning that the rental for the additional five-year term “is fixed?’ or agreed upon as being $60 the same as the rental in force at the end of the first five-year period.
On the other hand, it may he said that the language in dispute meant only that the rental for the additional five years was to be “fixed,” or agreed upon, at the time of the termination of the first five-year period, and • that, if the parties had intended to “fix” the rental for the additional term at $60 they could and would have simply, and without circumlocution, provided in the lease that the rental for the optional period would be $60 per month. If this construction should be sustained it would result in the provision for the option being void for uncertainty. Beasley v. Boren, 210 Ark. 608, 197 S. W. 2d 287.
The fact that each of these two different interpretations may be urged with plausibility shows that this language is ambiguous.
Therefore the lower court should have admitted the testimony as to the circumstances surrounding the execution of the contract and as to the construction the parties themselves, by their words and actions, put upon it; and should have permitted the jury, upon a consideration of all the competent testimony, to say what was intended by this uncertain language. Wisconsin & Arkansas Lumber Company v. Fitzhugh, 151 Ark. 81, 235 S. W. 1001; Agey v. Pederson, 191 Ark. 497, 86 S. W. 2d 930; Walden v. Fallis, 171 Ark. 11, 283 S. W. 17, 45 A. L. R. 1396; Bailey v. Sutton, 208 Ark. 184, 185 S. W. 2d 276.
One rule to be observed in construing an ambiguous contract is that “in the interpretation of an agreement, the surrounding circumstances at the time it was made should be considered for the purpose of ascertaining its meaning, but not for the purpose of adding a new and distinct undertaking.” 12 Am. Jur. 784. Arlington Hotel Company v. Rector, 124 Ark. 90, 186 S. W. 622; Dewey Portland Cement Company v. Benton County Lumber Company, 187 Ark. 917, 63 S. W. 2d 649.
Equally well settled is the rule that, iu construing a contract the meaning of which is doubtful, the construction placed thereon by the parties to it, as reflected by their words and acts, must be given consideration. Kahn v. Metz, 88 Ark. 363, 114 S. W. 911; Edgar Lumber Co. v. Cornie Stave Co., 95 Ark. 449, 130 S. W. 452; Keopple v. National Wagonstock Company, 104 Ark. 466, 149 S. W. 75; Continental Insurance Company v. Harris, 190 Ark. 1110, 82 S. W. 2d 841.
“In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.” 12 Am. Jur. 787.
The issue raised' by the testimony introduced by appellants tending to show that appellee had failed to carry out certain undertakings on his part set forth in the lease, and that appellants had refused to consent to extension of the lease on this ground, as well as the others relied on by them, should also have been submitted to the jury. Even if appellee were otherwise entitled to the extension as claimed by him, still, if he had breached material covenants of the lease without waiver of such breach by appellants, this would authorize a denial of the additional term. Jones v. Epstein, 134 Ark. 505, 204 S. W. 217; Felder v. Hall Brothers Company, 151 Ark. 182, 235 S. W. 789.
The lower court erred in peremptorily instructing, the jury in favor of appellee, and for that error the judgment is reversed and the cause remanded with directions to grant appellants a new trial and for further proceedings not inconsistent with this opinion.
The Chief Justice and Mr. Justice McHaney regard as ineffective that part of the lease in which (there was attempt to extend an option to renew for five years. It failed because there was no agreement respecting the rental; nor was the language susceptible of the construction that $60 per month was intended. Effect- of this view would be a reversal, with, judgment here for appellants. They therefore dissent from the opinion of the majority. | [
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Holt, J.
Appellee, Carrie King, brought this action against appellant to recover damages in her own right, as widow of Harden A. King, deceased, and also as administratrix for the benefit of his estate, for alleged conscious pain and suffering of her intestate. She alleged that her husband’s death resulted from a rear-end collision of two trucks on paved highway 64, about iy2 miles east of Piney, Arkansas, caused by the negligence of the driver of appellant’s truck. A jury trial resulted in verdicts and judgments for appellee, in her own right for $20,000, and as administratrix in the amount of $7,000, or a total of $27,000.
This appeal followed.
For reversal, appellant says: “First. The court erred in refusing to direct a verdict at the conclusion of all of the testimony for appellant on the whole case, for the reason that the undisputed proof shows that the proximate cause of the injury was the failure of the driver of the pick-up to give the signal as required by law, and that the undisputed facts show no negligence on the part of appellant’s driver. Second. That the court should have instructed a verdict for appellant in the case of Carrie King, widow of Harden A. King, for the additional reason that Harden A. King died from lymphatic leukemia, a disease not traumatic in origin, and a disease from which he would have died had he never received the injury and that the injury was not the cause of his death. Third. That the allowance for conscious pain and suffering by the jury is excessive and the result of passion and prejudice.” It is also argued that the allowance of $20,000 to appellee in her own right was excessive.
(1)
Since appellant’s first and second contentions, in effect, challenge the sufficiency of the evidence, we consider them together.
Briefly stated, the evidence tends to establish the following facts: December 19, 1944, at about 2:30 p. m., appellee’s intestate, Harden A. King, was riding in a truck driven by H. R. Pierce, tbe owner. They were traveling west on concrete highway 64, approaching a gravel road, known as the Hickeytown road, that turned off to their right at a 45-degree angle. For approximately 500 feet before they reached this side road tbe highway is downgrade. As Pierce and King, driving at about 30 miles per hour, reached a .point approximately 100 feet from the side road, Pierce, the driver, reduced his speed to about 15 miles per hour and, at this rate of speed, began to turn off highway 64 onto the side road, and as his truck, with the exception of the rear wheels, left the concrete slab, appellant’s truck, going about 35 miles per hour, struck the rear of Pierce’s truck, turned it over twice, seriously injuring King.
The driver of appellant’s truck testified that the overall length of his truck and trailer was 34 feet, that the gross weight, including freight he carried, was about 11 tons. He further testified that for about 150 feet east on highway 64, just before the collision, he had followed Pierce’s truck at a distance of 50 feet to the rear and was within this distance when Pierce began to turn into the side road. Pierce admitted that he gave no signal to appellant’s driver of his, Pierce’s, intention to turn to the right on the side road.
Appellant’s driver further testified that two automobiles about 100 feet apart were approaching from the opposite direction and that for this, and the additional reason that there was a “blind hill” in front of him,' he could not go around the Pierce truck. There was, however, testimony on the part of appellee sharply denying that there were any cars coming from the opposite direction at the time as claimed by appellant.
We think it would serve no purpose to detail more of the evidence. It suffices to say that we have reviewed it all and after considering and weighing it in the light most favorable to appellee, as we must do under our long-established rule, we are unable to say that it is not substantial and insufficient to take the case to tbe jury.
Appellant earnestly argues that the proximate canse of the collision and injuries to appellee’s intestate was the failure of Pierce, the driver of the truck in which appellee’s intestate, King, was riding, to give any signal of his intention to turn off on the side road, as required ley 6725 and 6727 of Pope’s Digest, and this was negligence preventing recovery. We cannot agree for the reason that the evidence also shows that appellant’s driver was driving his heavily loaded truck at a speed of 35 miles per hour downgrade when it struck the rear end of Pierce’s truck, and, as indicated above, for 150 feet before the collision he had been following Pierce’s truck at a distance of only 50 feet. On this point, he testified: “Q. Traveling at 35 miles per hour, in what distance could you have stopped your truck? A. 35 miles, an hour —between fifty and seventy-five feet.” In these circumstances, the jury would have been warranted in finding, and evidently did find, that the proximate cause of the collision was the negligence of appellant’s driver, in following too close to Pierce’s truck and thereby was unable to stop or so manage his truck as to prevent the collision that followed.
This question of fact was submitted to the jury under instructions of which no complaint is made. The applicable rule of law is stated in the case of Acco Transportation Company v. Smith, 207 Ark. 70, 178 S. W. 2d 1011, where we said: “This case is more nearly like that of Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. 2d 729, where we held that ‘the law of the road is that the automobile in front has the superior right to the use of the highway for the purpose of leaving it on either side to enter intersecting roads, ’ and that a driver in the rear who fails to observe such rule is guilty of contributory negligence. While there is no question of turning off the highway into an intersecting road in the case at bar, we think the principle stated there applicable here with more force, since the truck was proceeding straight ahead on its own right side of the road, and the car in the rear must recognize the superior right of the truck to so proceed on its own way, and so manage his own car as to cause no injury under the penalty of being chargeable with negligence.”
In his second contention, supra, appellant argues that appellee’s intestate, King, died from what is known as lymphatic leukemia, a disease not traumatic in origin and from which he would have died had he never received the injuries alleged, and that such injuries were not the cause of his death. The evidence on this question was conflicting.
It appears that appellee’s intestate was employed by H. K. Pierce Lumber Company at the time of the injuries complained of here and was a robust, able-bodied man. He was 51 years of age, with a life expectancy of 20.20 years, was married and lived on a farm near Clarksville with his wife.
Immediately following the collision he was taken to the office of Dr. Earle H. Hunt in Clarksville, a practicing physician and surgeon of some 38 years experience and of unquestioned ability. After leaving the doctor’s office he went to his home and was confined to his bed for a period of about three weeks during which time he suffered intense pain in his neck and head which required frequent administration of sedatives. His neck became stiff and so remained until his death seven months and ten days later. His head was carried to the side and any effort to turn his head resulted in severe pain.
Dr. Hunt testified that he first examined appellee’s intestate December 19, 1944, and again in March following. “I made X-ray pictures in March and found that the deceased had what we 'call a broken neck, one of the cervical vertebra broken and crushed down. ... I advised deceased to go to a bone specialist, Dr. Joe Shuffield. In my judgment this injury to his neck was caused from a traumatic hurt such as having been in a ear wreck and would say that the cause of the leukemia and the man’s death was the car wreck.”
Dr. Hunt further testified that he operated on appellee ’s intestate in August, 1914, four months before the accident in December, for appendicitis, and that he was not suffering from leukemia at that time.
From the period from June 4,1945, to July 29,1945, the date of his death, he was in the hospital under the exclusive care and observation of Dr. Hunt, and quoting from appellant’s brief: “When he came back here to our hospital he came back to die and he did. He suffered with his neck continuously all of the time he was in the hospital, that is the only particular pain he suffered. The injury which he received in his neck is one that is calculated to have caused pain all of the time from the date of the injury until his death, that is my judgment. The pain would be constant and as it progressed it would get worse. During the last month of his life it took quite a bit of morphine to ease the man.” There was other corroborative evidence, and also that appellee’s intestate was suffering from leukemia at the time of his death.
In this connection, the court instructed the jury that although it might believe from the preponderance of the evidence that leukemia contributed to cause the death of deceased, King, yet if it further believed from the preponderance of the evidence “that deceased received an injury as alleged and that said injury was caused by the negligencé of defendant’s agent, servant, or employee as alleged, and that said injury, together with leukemia caused the death of deceased, and that but for said injury deceased would not have died, then your verdict should be for the plaintiff.”
The court further instructed the jury that if it found from a preponderance of the evidence “that the injuries alleged to have been received by deceased, did not contribute to or hasten his death, but that he died from natural cause, separate and apart from any personal injuries alleged by plaintiff to have been sustained by him, then as to any claim for damages sought to be recovered by his death your verdict should be for the defendant.”
We think these instructions correctly declared the law on the evidence presented on this phase of the case, and that the jury was warranted in finding, and evidently did find, that the injuries which appellee’s intestate received from the collision contributed to or hastened his death, and that the court did not err in refusing to instruct a verdict for appellant. See Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818.
(2)
We are unable to agree with appellant’s final contention that the total judgments in this case for $27,000, $20,000 for the widow in her own right and $7,000 for her as administratrix of her intestate’s estate, are excessive, as a matter of law.
Appellee’s intestate at the time of his injuries was a strong and able-bodied man, 51 years of age, with a life expectancy of 20.20 years. He was employed at a salary of $100 per month as a timber cruiser with the promise of his employer that his salary would be increased to $125 per month beginning with January 1, 1945. The increase was not given because of her intestate’s injuries and his inability to perform the work. He also earned approximately $50 per month in addition to his salary by dealing and trading in livestock, so that at his death he was earning approximately $1,800 a year, most of which his wife testified he contributed to her support. There is substantial evidence that he suffered much conscious pain from the date of his injuries until his death, his suffering noticeably increasing during the seven months and ten days that he lived following his injuries, making it necessary to administer sedatives at times, and especially morphine, during the latter weeks of his illness.
There is no certain yardstick to measure recoverable damages in a case of this nature. The amount allowed must depend upon the particular facts in each case. Here, we are confronted with a death case, resulting from injuries, and where the conscious pain and suffering for more than seven months following the injuries of appellee’s intestate were intense.
We are unable to say, therefore, after giving a reasonable estimate as to the probable earnings of appellee’s intestate had he lived, and his contribution to his widow’s support, reduced to present value, that the allowance of $20,000 to the widow was excessive, nor can we say that an allowance of $7,000 for conscious pain and suffering, in the circumstances, was excessive.
On the whole case, finding no error, the judgments are affirmed. | [
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Griffin Smith, Chief Justice.
The appeal is from a decree dismissing appellant’s complaint of September 24, 1946. The Chancellor found there was no merit in the contentions advanced — a conclusion with which we agree.
The marital history, and matters relating to continuing discord, interrupted now and then by periods of amity, are set out in this Court’s opinion of January 7, 1946. See Harris v. Harris, 209 Ark. 528, 191 S. W. 2d 465. In that case Mrs. Harris took the initiative and procured the decree we reversed.
All of the substantial grounds relied upon in the case now before us were urged in the appeal considered in the January 7th opinion. It was there said: “Any cause of action which might have existed when the suit was filed was condoned, and none has occurred since, although the right to divorce may be maturing on the ground of desertion”.
After Mrs. Harris’ first complaint was filed August 22, 1944, it was not the husband’s duty to urge his presence upon her when the circumstances were such that he knew of her desire for severance of the matrimonial bonds; but, if desertion had begun and the full period had not run when the complaint was filed, good faith on the part of the defendant required that he make known to the plaintiff a willingness to resume the relationship of husband and wife. The opinion of January 7th was to the effect that no valid reason was shown why the parties should not adjust their differences, which were referred to as petty.
February 5,1946 — slightly less than a month followr ing reversal, and eight days after this Court’s mandate was issued — Appellee wrote his wife the letter set out in the footnote, to which she .replied February 9th. Her letter is also copied. Answering the wife’s refusal of conciliation, Harris wrote her again on February 14th, urging that she return. He closed with the expression, “I hope you will use your mind and reconsider this matter for the sake of our boy. Our consideration of him should be paramount”.
We do not find anything to justify Mrs. Harris in thinking that her husband’s letter “carried insult in its very content”. It is true the'communication of February 5th suggested inferentially that Mrs. Harris was acting upon the advice of others instead of consulting her own desires; hut this could hardly be called insulting, even if untrue.
With no evidence' other than appellant’s hypersensitive conclusions that appellee was not acting in good faith, it cannot be said that the Chancellor’s action in dismissing the complaint was erroneous.
Affirmed.
“Rogers, Ark., Feby. 5, 1946. Dear Helen: The Supreme Court, analyzing our case, arrived at the opinion that we should continue our marital relations, and since they think so I know they must be one hundred percent right. I wrote you many times that as soon as the house was completed I would come there to get you. Now the house, while not completed, is, I am sure, more comfortable than the one you are now living in, and I don’t see why we can’t make a home out of that empty farm house in the true meaning of the word home. I had little trouble with you in the past that wasn’t caused by your drinking liquor, and I am glad to know that you have quit drinking. Write me when you are ready for me to come after you. If you agree with me, as a matter of good faith, write me so I can get things in order for your comfort. Knowing your state of mind in reference to public opinion, may I assure you your returning to live here shall cause you no humiliation, so don’t let false pride prevent your decision in my favor. As ever yours, Earl A. Harris.”
The reply. “Searcy, Ark., Feby. 9, 1946. Dear Mr. Harris: Your letter of the fifth reached me Thursday. It is true the court some weeks ago expressed the hope that we might be able to adjust our differences, and for a month I have waited some indication on your part that its suggestion had come to your notice. Before receiving your note I had instructed my counsel to proceed, and I suspect their presence and conference at Rogers on the 4th is the explanation of your leisured message of the 5th. Be that as it may, your apparent reluctance, and warning that the home is still incompleted, only cautions me that this over-two-year-old and oft repeated excuse is still to perform service; when, as you know, many, many months ago I begged you to let us come home and assured you that I could and would make out with it without complaint. Your contemptuous treatment of me and of your baby, and particularly the baby ever since its birth, convinces me that any experiment with you would at best be unsuccessful; could result again in my being encouraged into faults to be regretted, and only create additional problems more important than ourselves. To meet such conditions one must have more than a will to experiment; your past attitude and this present approach, carrying insult in its very content, despite its carefully worded and legalistic form, make it impossible for me ever again to regard you as a wife should regard a husband. The kind hope of the court cannot be realized, however well-intentioned and high-minded its inspiration. Yours truly, Helen.” | [
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McIIaney, Justice.
The appeal on behalf of Bowie has been abandoned, and only that of Brockinton is here considered.
Bowie operated a cotton gin at or near Holland in Faulkner county in 1941 and 1942 and was financed for the purpose of buying- cotton and seed by appellee. At the close of the 1941 season Bowie was in debt to it in the ■ sum of $2,800. This account was closed with a promissory note dated May 27, 1942, due on or before October 15, 1942, with 6 per cent, interest from January 1, 1942, and signed by Bowie and Brockinton. At the time of signing said note by Brockinton, appellee gave him the following receipt: “Beceived of L. S. Brockinton one note for $2,800 in form Temple Cotton Oil Company signed by N. E. Bowie and co-signed by L. S. Brockinton. It is agreed and understood that the said note is to be paid by M. E. Bowie out of his first cotton seed the fall of 1942, and if not paid by M. E. Bowie will be agreeable for to pay in cash.”
This note not having been paid, appellee brought this action in the circuit court on January 1,1945, against the makers to recover judgment against them on the note and against Bowie for an additional sum on open account accruing in 1942 and 1943, subsequent to the date of said note. The account was composed of hundreds of items, and the court, on its own motion and without objection, transferred the action to chancery. Brockinton’s defense to the action on the note was that Bowie had delivered to appellee cotton seed in the fall of 1942, in accordance ivith the receipt above quoted, of a,, value in excess of the principal of and interest on said note, and that, instead of giving credit on said note, as agreed, it credited Bowie’s subsequent open account with the proceeds, thereby discharging him from liability. He also defended on the ground that he Avas a surety on said iiote without consideration.
Trial resulted in a decree against Bowie and Brockinton on account of said note for $3,542 with, interest from May 31,1946, at 6 per cent, and costs. This appeal followed.
Appellant’s first and chief contention for reversal is that he was not a surety for hire, but was an accommodation surety only, and that under the agreement or receipt above quoted to the effect that the note was to be paid by Bowie out of the cotton seed delivered by Bowie to appellee in the fall of 1942, it was appellee’s duty to apply the proceeds of the seed to the extinguishment of said note, and not to Bowie’s open account. It is argued that Bowie delivered to appellee more than 304 tons of cotton seed in the fall of 1942, and at the prevailing price the value of the seed was more than three times the amount of the note.
Assuming without deciding that Brockinton was a surety only, the result claimed does not follow. The receipt implies that Bowie would deliver his own seed in order to extinguish the note, but the record fails to show that Bowie did actually deliver any cotton seed of his own to appellee in the fall of 1942. On the contrary, the evidence shows that Bowie did not own any cotton seed that fall, but that he purchased both cotton and seed as agent for appellee with appellee’s money. Bowie’s evidence was to the effect that he bought for appellee and that the latter was due him a commission and drayage fee for buying and hauling. It is undisputed that appellee furnished all the money to buy cotton and seed. Since Bowie delivered no seed of his own to appellee in the fall of 1942, but only such seed as belonged to appellee, it follows that no credits accrued that should have been applied on said note.
Another argument made is that appellant’s signature on said note was procured by fraud, but we fail to find any evidence to support the contention.
The decree is accordingly affirmed.
Robins, J., not participating. | [
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Holt, J.
March 20, 1947, appellant was tried in the municipal court of the city of Helena, Arkansas, on a charge of selling whiskey on Sunday. He was found guilty and a fine of $100 assessed. An appeal was prayed and granted to the circuit court.
April 29, 1947, transcript of the record was filed in the office of the circuit clerk. During the May term of the circuit court following, on May 7th, on motion of the prosecuting attorney, the court dismissed the appeal on the ground that the transcript was not filed within the thirty day period as provided in Act 323 of the Acts of Arkansas for 1939, and remanded the cause to the municipal court for further proceedings. This appeal followed.
The question presented is one of law. Did Act 323, supra, apply? Appellant argues that it did not. It is our view that the Act applied and that the judgment of the court below was correct.
The Act in question provides: “Section 1. A party who appeals from a justice of the peace judgment.or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond. Section 2 All laws and parts of laws in conflict herewith are hereby repealed, etc. ’ ’
The Act applies both to misdemeanor and civil cases.
In the very recent case of Everett et al. v. Coleman, ante, p. 515, 201 S. W. 2d 30, we said: “In the recent case of French et al. v. Oliver, Mayor, ante, p. 484, 200 S. W. 778, Act 323, supra (meaning Act 323 of 1939), was held applicable in an appeal from a criminal conviction in a mayor’s court, and we there said: £ The law plainly imposed on appellants the duty of filing the appeals within thirty days after their conviction; and, if they were unable to obtain the transcript from the mayor within that time, they should have, before the lapse of the thirty-day period, applied to tlie circuit court for a rule ou the mayor to require him to deliver the transcript to appellants for filing.’ ”
“This Act (323 of 1939) is not only mandatory, but is jurisdictional. ’ ’ Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684.
The duty of filing the transcript in the office of the circuit clerk within thirty days after the rendition of the judgment in the municipal court, from which the appeal was taken, was imposed upon the party appealing from the judgment. (French v. Oliver, supra.)
Since the transcript of the record in the municipal court was not filed with the clerk of the circuit court until more than thirty days after the date of the judgment in the municipal court, the judgment must he, and is, affirmed. | [
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Ed F. McFaddin, Justice.
Appellee, Kenneth Yandergriff, brought suit against the appellant, Grace Iva Yandergriff (his stepmother) to obtain judgment on a note, and to foreclose a mortgage. The chancery court rendered a judgment and decree of foreclosure, as prayed in the complaint; and this appeal ensued. In the briefs many interesting questions are presented; but we find it unnecessary to discuss or decide them; because we reverse the decree of the chancery court, and remand the cause, with directions to dismiss the suit without prejudice to any claims of any and all parties. We reach this conclusion (1) because of the failure to introduce the original note, or to account for its absence; and (2) because the proof does not show that, at the time of the filing of the suit, there had been any breach of any condition in the mortgage.
FACTS
On November 10, 1945, Kenneth Vandergriff filed complaint against his father, G. W. Yandergriff, and the appellant, Grace Iva Yandergriff. The complaint alleged that, on January 30, 1942, the defendants, for value received, executed their promissory note to Edgar Covey for $3,000 with interest at 8% from date until paid; and, to secure the note, the defendants on the same day executed, acknowledged, and delivered to Edgar Covey a mortgage on certain real estate here involved, which mortgage was duly recorded. The complaint also alleged that on November 30, Í942, the said Edgar Covey, for value received, assigned the said note and mortgage to the plaintiff, Kenneth Yandergriff; and that the indebtedness secured by the mortgage was past due and unpaid; and that the plaintiff was entitled to judgment on the note, and foreclosure of the mortgage. The com plaint also alleged that copies of the note and mortgage were attached to the complaint; hut no such copies are in the transcript in this court.
The defendant,- G. W. Vandergriff, defaulted, and testified on behalf of Kenneth Vandergriff. The defendant, Grace Iva Vandergriff, filed a general denial, and also, inter ¡alia, claimed that the indebtedness recited in the mortgage had been fully paid, and that the assignment from Edgar Covey to Kenneth Vandergriff was a part of a fraudulent scheme planned and executed by G. W. Vandergriff and Kenneth Vandergriff for the purpose of defeating Grace Iva Vandergriff of her entirety estate and homestead rights in the mortgaged property.
At the trial Kenneth-Vandergriff attempted to introduce a. copy of the note sued on, but Grace Iva Vandergriff objected. The following occurred:
“By Mr. McCormick: Q. Is that the original mortgage you bought from Covey? A. Yes, sir. Q. Was there a note attached, and did he deliver you a note with that mortgage? A. Well, yes, sir. There was a note attached to it. Q. There was, when you bought it? The Court: Listen! He hasn’t really said so yet; have you? A. Well, I remember there was a note, but it is not attached to this. I kept all my papers over at the Jefferies Amusement Company- — in a safe over there. The Court: Q. Where is that note? A. T don’t know. It must have been lost.”
“By Mr. McCormick: Q. Is that a copy of the note you received from Covey? A. Yes, sir. Q. And that note accompanied the mortgage at the time you bought it from Covey? A. Yes, sir. Q. How much did you give Mr. Covey for that note and mortgage? A. If I remember right, three thousand and something. $.3,215, I believe. Mr. McCormick: You have looked at this, and it is already introduced in testimony.' Mr. Ragon: Of course, we objected to the introduction of the copy of the note originally, and we do so now. The Court: The objection should be sustained, unless there is proof of the existence of the original note, and proof that it has been lost.”
The original note was never introduced, nor was there any further attempt made to account for the loss of the original note. No copy appears in the record. On the witness stand, Grace Iva Vandergriff denied that she had ever signed any such note.
The original mortgage was introduced in evidence. It was dated January 30, 1942, and recited the following as to indebtedness and maturity:
“The foregoing conveyance is on condition: That, whereas, the said mortgagors are justly indebted to the said mortgagee in the sum of three thousand dollars ($3,000), for borrowed money, evidenced by 1 promissory note of even date herewith with interest thereon at the rate of 8% per annum, and due 5 years from the date hereof.”
There were other provisions in the mortgage concerning payment of taxes and insurance premiums, and allowing an acceleration of maturity on default of the performance of these provisions; but no such default was alleged or proved as to taxes and insurance. The entire basis of the foreclosure was the maturity of the mortgaged indebtedness. We point out that, by the terms of the mortgage, there was no acceleration clause for failure to pay interest, on annual dates; and that the indebtedness was not due until five years from January 30, 1942; and that this suit was filed on November 10, 1945; and the decree was rendered by the chancery court on November 20, 1946.
OPINION
In view of the facts recited, we hold:
I. There could be no judgment on the alleged note, because it was not introduced in evidence, nor was its absence explained as a foundation for proof of its contents. What we said on this point in Clark v. Shockley, 205 Ark. 507, 169 S. W. 2d 635, applies here:
“It is a fundamental principle that, in order to sustain a judgment, the note sued on must be introduced in evidence or its absence explained.
“In 8 C. J. 1058, the rule is stated as follows: ‘The bill or note sued on must in general he produced at the trial before a verdict and judgment can he rendered thereon, or an axcuse shown for its nonproduction. . . .” Cases from many jurisdictions are cited to sustain the text, and the rule is given in the same language in 11 ,C. J. S. 199.
“In 8 Am. Juris., 1121, the rule is in the following language: ‘Where a note sued on is in the possession of the plaintiff, he must produce it, as it is the best evidence. Nonproduction, however, is excused, and secondary evidence of the execution and contents of the instrument is admissible, where by reason of the facts and circumstances of the particular case its production by the plaintiff is prevented, . . .’
“In the case of Sebree v. Dorr, 9 Wheaton 558, 6 L. Ed. 160, the 'Supreme Court of the United States, speaking by Mr. Justice Story, in 1824, said: ‘ There is another objection, which is equally decisive of the case. It is, that there was no production of the original notes, nor any excuse offered to account for the nonproduction of them at the trial. It is a general rkle of the law of evidence, that secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party. Here no proof was offered to show that the original notes were impounded, or that they were not within the possession of the party, or within the reach of the process of the court.’ ”
II. There could he no foreclosure of the mortgage until there had been a breach of the condition of the mortgage, and no breach was shown. The plaintiff failed to show either (1) that the indebtedness was past due; or (2) that the mortgage allowed foreclosure for default in any annual interest payment; or (3) that the defendant had failed to pay taxes or insurance premiums. In short, no breach of any condition of the mortgage was shown. On the contrary, it was affirmatively shown that the indebtedness would not have been due until January 30, 1947, which was more than a year subsequent to the filing of the suit: so, this present suit was filed prematurely. In Winn v. Collins, 207 Ark. 946, 183 S. W. 2d 593 we said:
“In 1 Am. Juris. 451 the rule is stated: ‘A cause of action must exist and be complete before an action can be commenced; the subsequent occurrence of a material fact will not avail in maintaining it. The rights and liabilities of the parties — that is, their rights to an action or to judgment or relief — depend upon the facts as they existed at the time of the commencement of the action, and not at the time of the trial.’
“And in 1 C. J. S., § 125, p. 1391, the general rule is stated: ‘In equity, if there is no cause for equitable relief at the time the bill is filed, it cannot be maintained upon a cause accruing thereafter, . . .’
“Our own cases are in accord with this general rule. In Hornor v. Hanks, 22 Ark. 572, this court said in an equity case: ‘The law is expressly written, that the right of a plaintiff must be adjudicated upon as it existed at the time of the filing of his bill. Adams Eq. 413; Bar-field v. Kelly, 4 Russ. 359. And this court has decided that where a bill disclosed a good cause of action, but which had not accrued when the bill was filed, the bill could not be maintained. Phebe v. Quillin, 21 Ark. 490.’ To the same effect, see Shreve Chair Company v. Manufacturers’ Furniture Company, 168 Ark. 756, 271 S. W. 954. See Annotation in 125 A. L. R. 612.”
CONCLUSION
It therefore follows that the decree of the chancery court is reversed, and the cause is remanded with directions to enter an order dismissing the present suit, but without prejudice to the rights and claims of any and all parties touching any of the matters involved in this suit. Costs of all courts in the present suit are adjudged against appellee. | [
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Robins, J.
Appellant leased a small tract on U. S. Highway 65, on the south side of Buffalo River, to appellees for a term of five years. The lease provided that “all improvements on the buildings, or lands” made by lessees “shall become a part of the realty and remain on the lands.” Situated on the leased tract were three cabins and a large building used for a store and for preparing and serving food. On taking possession appellees rebuilt the kitchen and did considerable repair work on the buildings. They bought and installed a butane gas system which consisted of a tank buried five feet deep in the ground and metal pipes laid 18 inches underground leading therefrom. These pipes enter the buildings through holes bored in the walls. The water system installed by appellees consisted of a jet pump, operated by electric motor, with pressure tank, all set on a concrete slab and held by bolts imbedded in the slab. From the pressure tank water is conducted into the different buildings through pipes which are laid from 8 to 12 inches deep.
This suit was brought by appellant, lessor, about ten months after the lease was executed, to cancel the lease on the ground that its provisions had been breached by appellees in several particulars. After the filing of her complaint, appellant asked for and obtained a temporary restraining order to prevent appellees from removing the heating plant and the waterworks system. Appellees, though denying any breach of the lease, averred that they were willing for same to be canceled, but they joined issue on the question of their right to remove the gas and water systems. On trial the lower court canceled the lease, but decreed that appellees might remove the water and gas systems which it held were trade fixtures. This appeal followed.
Appellees testified that it was necessary, in' order to operate the tourist camp, to install water and gas systems, and that they did not intend for same to become part of the realty.
These parties reduced their agreement to writing, and, if the terms of the written contract cover the matter in dispute, same must control the controversy. Bache, Receiver, v. Central Coal & Coke Company, 127 Ark. 397, 192 S. W. 225, Ann. Cas. 1918E, 198.
Here, appellant and appellees agreed in the lease that all “improvements” on buildings or land, made by appellees, should “become a part of the realty and remain on the lands at the end of the lease. ’ ’
The exact question posed by this appeal — -whether property of the kind in dispute here may be classified as improvement to land or buildings — has not been heretofore decided by this court, though somewhat similar questions have frequently been before us. -Some of these eases are cited below.
In Greenwood v. Maddox, 27 Ark. 648, a portable engine placed on land for motive power for a gin was held not to be an “improvement” within the meaning of a constitutional provision for homestead exemptions.
We held in O’Neill v. Lyric Amusement Company, 119 Ark. 454, 178 S. W. 406, that electric lighting wires and fixtures in a theater constituted an “improvement” within the meaning of the mechanic’s lien law.
In the case of Waldo Fertilizer Works v. Dickens, 206 Ark. 747, 177 S. W. 2d 398, we were asked to decide whether a wagon scales apparatus, consisting of a platform mounted over 'a concrete lined pit, with a rod running into a house through a small hole in the floor, became a part of the realty so as to pass to the purchaser of the realty as against one who held an unrecorded agreement from the owner authorizing; removal of the scales. We lield in that case that the purchaser of the realty took title also to the scales apparatus; and we called attention to the fact that removal of the scales would leave an unsightly and potentially dangerous hole on the premises, and that removal of the rod would leave a hole in the floor of the house. In that case we cited our decision in Dent v. Bowers, 166 Ark. 418, 265 S. W. 636, where we held that the purchaser of a “filling station” took title to the underground gasoline tank and pump, as against one who had previously obtained from the owner a bill of sale for these articles.
Questions similar to those involved here were considered by us in the case of Evans v. Argenta Building & Loan Association, 180 Ark. 654, 22 S. W. 2d 377. In that case, a plumbing company sought to remove water fixtures placed by.it in a mortgaged building under a contract, with one in possession of the property under contract to purchase, by which it was agreed that these fixtures until they were paid for should remain the property of the plumbing company. The purchase money of these fixtures not having been paid and suit having been brought by the loan company to foreclose a mortgage on the building, the plumbing company intervened and asked leave to remove the fixtures. Dealing with this phase of the matter, we said: “Here the testimony shows that, under the conditional sale whereby the title was reserved, the company installed certain lines of pipe by which pure water might be furnished and sewerage connections afforded, and there was also put in place in the bathroom a ‘closet combination, consisting of bowl, tank and seat.’ The testimony is to the effect that these articles were attached to the floor and walls with screws, and might be removed without material damage to the building or the premises; but the testimony also shows that to remove the pipe would leave holes in the floor and walls of the building, and would require the excavation of the premises adjacent to the house, as the pipe had been placed in the ground. This latter work would disfigure the building and damage it, as well as the ground adjacent to it, and the right to remove the pipe does not exist. We perceive no reason, however, why the closet combination, consisting of the bowl, tank and seat, may not be removed, as their removal will cause no material damage to the property. ’ ’
In the case at bar the water pipes and gas pipes, as well as the gas tank, have been laid underground, and the pipes have been conducted into the buildings through small holes. To take up the' pipes and gas tank would necessitate digging up of soil covering them. The removal of the pipes from the buildings would inevitably inflict some damage on these structures.
We conclude that, as to the water and gas distribution lines and the gas tank, these articles were so affixed to the real estate as to become “improvements” within the meaning of this word as used in the lease; and that appellees therefore do not have the right to remove same.
A different situation as to the water pump, motor and water tank is shown. This machinery is fastened by bolts to a concrete foundation and may be removed readily and without any damage to the realty. It did not under the circumstances shown become an improvement to a building or to the land as the terms were used in the contract.
It follows that the decree of the lower court is reversed and the cause remanded with directions to enjoin appellees from removing any water and gas pipes and also the gas tank, but appellees to be given permission, within a reasonable time, to remove the water pump, motor and water tank; and each side to pay one-half of the costs of both courts.
Millweb, J., not participating. | [
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Holt, J.
July 31,1946, appellant, A. Karcher Candy Company, filed complaint in the Municipal Court of the City of Little Rock, in which it alleged: “That plaintiff (appellant) on the 14th day of April, 1941, obtained judgment in the Municipal Court of the City of Little Rock, Pulaski County, Arkansas, against the said defendant (appellee) in the amount of $42.47, plus court costs expended; that said judgment is now of record in the Municipal Clerk’s Record Book, page No. 46975; that there is now due on said judgment the sum of $42.47, plus six per cent interest amounting to $13.33, plus court costs in the amount of $4.40, aggregating a total of $60.20. Plaintiff further states that said judgment has not been reversed, set aside, and that it is not paid; plaintiff further states that he has no adequate remedy at law except this action and that he is entitled to judgment against the defendant, Ewell Hopkins, in the amount of Sixty and 20/100 Dollars ($60.20),” and prayed for judgment in this amount.
Appellee, Ewell Hopkins, filed demurrer in which he alleged: “That the complaint of the plaintiff (appellant) does not state sufficient facts to constitute a cause of action against the defendant, Ewell Hopkins, for the reason that it shows upon its face that the plaintiff’s cause of action is barred by the Statute of Limitations.”
The Municipal Court overruled the demurrer and entered judgment for appellant as prayed.
On appeal by appellee to the Circuit Court, appellee’s demurrer was sustained, whereupon, appellant declined to plead further and its complaint was dismissed.
This appeal followed.
We think the trial court erred in sustaining the demurrer.
The present suit was on a judgment which appellant had obtained against appellee in the Little Rock Municipal Court April 14, 1941. Under the plain terms of § 8937, Pope’s Digest, appellant had 10’ years within which to maintain this action after the cause of action accrued. The cause of action accrued on the date the judgment was rendered. Koontz v. LaDow, 133 Ark. 523, 202 S. W. 686.
Section 8937 provides: “ On Judgments. Actions on all judgments and decrees shall be commenced within ten years after cause of action shall accrue and not afterward.”
The early case of Hicks v. Brown, 38 Ark. 469, is controlling here. In that case the facts were that on the 23rd day of August, 1880, Hicks sued Brown in the Circuit Court in Greenwood, Sebastian County, upon a judgment which had been recovered against Brown before a justice of the peace in that county on August 24, 1870, for $200. The defense was that the cause of action sued upon had not accrued within five years next before the institution of the suit, and was therefore barred under § 3791, Gantt’s Digest — now § 8443, Pope’s Digest, which provides: “When issued. Executions for the enforcement of judgments in a justice’s court, except when filed in the clerk’s office of the circuit court of the county in which the judgment was rendered may be issued by* the justice before whom judgment was rendered, on the application of the party entitled thereto, at any time within five years from the entry of the judgment, but not afterward.”
There, this court said: “The statute makes no distinction as to the limitation of actions between judgments of the circuit courts and justices of the peace. Its language is: ‘Action on all judgments and decrees shall be commenced within ten years after the cause of action shall accrue, and not afterwards,’ § 4128, Gantt’s Digest, (now § 8937, Pope’s Digest). There is no necessary relation between this section and § 3791, limiting the time in which executions may be issued on judgments of justices of the peace, and it is not required to be construed in pari materia with it.' . . . The plea of the Statute of Limitations of five years was, therefore, no bar or defense to the action.”
But, says appellee: “Now it is upon this section 8443, Pope’s Digest, that we contend that limitation on the life of such justice of the peace judgment is five years only, when not filed in a circuit court.”
We think this contention untenable.
The fact that the present suit was brought in a municipal court, and not in a circuit court, on a judgment that had been previously obtained in the municipal court does not affect its validity for the reason that since the amount involved did not exceed $100, the exclusive jurisdiction of the action was limited to the municipal court. Section 9905, Pope’s Digest, on jurisdiction of municipal court, provides: “Concurrent with Justices of the Peace and exclusive of the Circuit Court in all matters of contract where the amount in controversy does not exceed the sum of One Hundred Dollars ($100.00) excluding interest. ’ ’
The judgment here is in effect a contract within the meaning of § 9905, supra, and must be so treated.
The Supreme Court of California in the case of Stuart v. Lander, 16 Cal. 372, 76 American Decisions 538, had this same question before it in circumstances similar, in effect, as here. _ There, an action had been brought in a justice’s court on a judgment that had been obtained in a court of a justice of the peace and the jurisdiction of the justice’s court in an action on the prior judgment was questioned. The California court there held: (Headnote 2). “Action will lie on judgment obtained in justice’s court in California, even when the time within which an execution could be issued on such judgment has expired, judgments being contracts within the meaning of the act conferring on justices’ courts jurisdiction over actions on contracts, where the amount in dispute does not exceed the constitutional limits.”
For the error indicated, the judgment is reversed and the cause remanded with directions to overrule the demurrer. | [
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McIíaney, Justice.
Appellant, B. L. Smith, was the husband of Sarah Gr. Smith, and the other appellants are her children and heirs at law, she having died intestate on October 4, 1945, and being the record owner of the 220-acre tract of land here involved.
Said tract was returned delinquent and sold to the State for the non-payment of the taxes thereon in 1933 for the 1932 taxes. After the expiration of the two-year period of redemption, said lands were certified to the State. On July 21,1946, the Commissioner of State Lands sold and conveyed same to C. D. Vandergrift who thereafter paid the taxes for 1936 to 1941, inclusive, and then sold and conveyed same to Oliver Anthony who later sold and conveyed the same tract to J. D. Treadwell, who has paid the taxes thereon ftfr 1942 to 1945, inclusive, claiming to be the owner.
On May 22, 1936, the State sought to confirm its title to these and other lands under the provisions of Act 119 of 1935. On November 2, 1936, appellants filed an answer and intervention in the State’s confirmation suit, alleging a right to redeem. About eight years later, an amendment to the intervention was filed by appellants, which reasserted the right to redeem by reason of their minority, a claim which was not relied on and not now asserted. It also asserted the invalidity of the tax sale held by the Collector on June 17, 1933, on a number of grounds, two of them being that the delinquent list was not filed and notice given by the Collector within the time and in the manner prescribed by law; and because said delinquent list was never recorded by the' Clerk as required by law. Appellees were made parties to the intervention. Vandergrift and Anthony appeared and disclaimed any interest in said lands, except certain tax payments made by them. Treadwell moved to dismiss the intervention because appellants made no deposit to cover taxes, penalty and costs, as provided by Act 119 of 1935. In response to this motion the Court made an order requiring appellants to make such deposit which they did in the sum of $312.48.
Treadwell answered the intervention, claiming to be the owner of said lands, and that the tax sale was made in substantial compliance with the statute, and plead the curative provisions of Act No. 142 of 1935 in bar of the action.
Trial resulted in a decree dismissing the intervention for want of equity, the Court finding and holding that Act No. 142 of 1935 cured the defects in the sale. This appeal followed.
The sale of the land here involved in 1933'for the 1932 taxes was held under the provisions of Act 250 of 1933, approved March 20, 1933. The sale was begun on June 12 and ended on June 17, 1933, 'the land here involved being sold on the latter date. Act 250 was amended by Act 16 of the extraordinary session of 1933, approved August 25, 1933, but the sale here involved occurred prior to the passage of Act 16. A portion of said Act 250 was held unconstitutional in Smith v. Cole and Brown v. Pennix, 187 Ark. 471, 61 S. W. 2d 55. Sections 5 and 6 of said Act 250’, which were amendatory of §§ 10084 and 10085 of Crawford & Moses’ Digest, were sustained in Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909. Section 5 of Act 250 of 1933, now § 13846 of Pope’s Digest, provides: “The clerks of the several counties of this State shall cause the list of delinquent lands in their respective counties, as corrected by them, to be entered in a well-bound book, appropriately labeled, which book shall be a permanent public record, and open to the inspection of the public at all times.”
Section 6, of said Act 250 amended § 10085 of. Crawford & Moses’ Digest so as to eliminate the necessity of publishing the delinquent list in full as described on the tax books, and provided a short form of notice to be published by the Clerk, all of which is set out in Matthews v. Byrd, supra.
It is undisputed in this record that there was a total failure of the Clerk to comply with § 5 of said Act 250: The list as filed by the Collector was not signed or certified by him, nor attested by a Notary or other officer. The delinquent list as filed was not corrected by the Clerk and was not “entered in a well-bound book, appropriately labeled, which book shall be a public record, and open to inspection of the public at all times. ’ ’ The only semblance of compliance with this § 5 was that the' Collector filed a list of delinquent lands with the Clerk, consisting of several large sheets, pinned or fastened together at one corner. The list was never corrected nor was it recorded in a book as expressly required. We think these requirements must have been substantially complied with in order to constitute notice to property owners.
In Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116, we said: “If this delinquent list had not been entered upon a permanent record, usually referred to as the record of lands returned delinquent, the sale was void for that reason.” This case involved a sale to the State in 1934 for the taxes of 1933. The curative provisions of Act 142 of 1935 do not appear to have been pleaded or relied upon, and the decision was based on §§ 5 and 6 of said Act 250 as amended by Act 16 of the extra session of 1933, held in August of that year. As above stated these amendatory provisions of said Act 16 do not apply to the sale here involved, but § 5 of Act 250, which required the delinquent list to be corrected and recorded by the Clerk, was not changed, except in the last paragraph of § 5 of Act 16 it is provided: “The list of delinquent lands recorded as provided in § 5 hereof shall be attached thereto, by the County Clerk, a certificate at the foot of said record, stating in what newspaper said notice of delinquent land sale was published and the dates of publication, and such record, so certified, shall be evidence of the facts in said list and certificate. ” As to this amendatory legislation we said, in the Hirsch and Schuman case, supra: “We perceive, in this amendatory legislation, no intention to dispense with the requirement that a permanent record be made and kept of lands returned delinquent, nor as to the time of making such record, that is, prior to the sale.
“The effect of this amendatory § 6 is to make such a record more important than ever; indeed, under the amendatory section, siich a record becomes indispensable. This amendatory section dispenses with the necessity of publishing, the list and description of the delinquent lands. A six-inch, double column notice advises that delinquent lands will be sold, but does not describe the land to be sold. That information cannot be obtained from the published notice, but can only be had by examining the permanent record in which the delinquent list of lands has been copied. If the continued keeping of that record is not required, then there was no permanent record where anyone might look to ascertain what lands were returned delinquent. The notice for which the act provides refers to the record where the delinquent lands are described, and the last paragraph of this § 6 requires that a certificate be made at the foot of that record stating in what newspaper the notice was published. ’ ’
So, without at least a substantial compliance with said Act 250, in this respect the sale is void, unless cured by Act 142 of 1935, as the learned trial court held/ The applicability of this Act'is premised on two conditions: (1) “Whenever the State and County taxes have not been paid upon any real or personal property,” and (2) “Publication of the notice of the sale has been given under a valid and proper description, as provided by law.” The first condition is conceded — the property was delinquent — but the second condition is strenuously denied. The notice of the sale was the short form provided by Act 250 and did not describe any property. It referred to a “list or record on file in the office of the Clerk of the County Court.” Assuming without deciding that a corrected list, properly recorded by the Clerk in a well-bound book, as required by the Act, would be sufficient to constitute notice to the taxpayers, we are of the opinion that what happened here, as set out above, was not sufficient and that Act 142 of 1935 has no application to this sale.
We do not overlook our case of Sanderson v. Walls, 200 Ark. 534, 140 S. W. 2d 117, where an invalid tax sale for the same years, as here involved, was held to be cured by said Act 142, but the question there involved was the time of publication of the notice of sale, and it was held, “the fact being that the notice of sale was published in a local paper in its issues of May 24th and May 31st, 1933, and the sale occurred on June 12th. The notice was, therefore, published for .the time and in the manner required by law.” The question here involved was not there raised or decided. Here there was no record made of the delinquent list and there was, therefore, no legal method whereby any person could determine whether his property was delinquent. The delinquent list was not published because of Act 250, and it was not recorded as definitely required by the same Act. Therefore, there was no notice as required by law, and Act 142 of 1935 has no application according to express condition No. 2, set out above.
The decree is, accordingly, reversed and the cause remanded with directions to enter a decree in accordance Avith this opinion, but requiring appellants to refund to appellees all taxes paid by them together Avith interest at 6 per cent from the times of payment to the date of tender made by them. Each party will pay his own costs of this appeal.
Griffin Smith, C. J., Smith and MoFaddin, JJ., dissent. | [
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Robins, J.
This appeal presents a controversy as' to the ownership of 36 feet off of the north end of the west half of lot No. 3, block 25, of Tannekill and Owen’s Addition to the City of Pine Bluff, Arkansas. Appellant, a minor, through her next friend, instituted suit in the lower court alleging that she was the owner of this property by virtue of a warranty deed from E. N. Crawford and by virtue of having redeemed same from the State of Arkansas for the taxes of 1930 and also for taxes for the year 1938. She also alleged that she and her predecessors in title had been in the actual possession of said property from 1937 to 1944. Appellee was made party defendant and the prayer of appellant’s complaint was that she be permitted to redeem said property from certain foreclosure sales through which appellee claimed title and that her title to the property be quieted and confirmed.
Appellee denied appellant’s claim of ownership and possession, and alleged title in itself by virtue of a sale of the property to Paving District No. 35, in foreclosure proceedings to collect delinquent taxes of said district, and a subsequent conveyance from the district to appellee.
By the decree of the lower court appellant’s complaint was dismissed for want of equity, and title to said property was quieted in appellee. To reverse that decree this appeal is prosecuted.
It was stipulated, in the trial below that in 1926 E. N. Crawford and wife conveyed the tract involved herein to W. A. Kientz by deed which had been duly recorded; that the property was forfeited and sold to the State of Arkansas for taxes of 1930; that in 1936 E. N. Crawford executed a deed conveying this tract to A. D. Chavis, who, in 1939, conveyed it to A. D. Chavis, Jr., and in 19401 A. D. Chavis, Jr., conveyed it to appellant; that on January 25, 1937, A. D. Chavis obtained a redemption deed from the State Land Commissioner and that he obtained another redemption deed from the state in 1944 covering the sale to the state for delinquent taxes due for the year 1938; that the property having been sold to Paving District No. 35, through' foreclosure proceedings in chancery court for delinquent assessments, Paving District No. 35, on October 13, 1944, sold and conveyed the property by deed duly recorded to appellee.
The tract in question is a vacant lot originally enclosed with a picket fence, but this fence long ago rotted down and parts thereof were removed by different people. There was no proof that appellant or any one through whom she claimed title had ever been in actual possession of the land. At one time a small'portion of the lot was cultivated in a garden by a woman who lived near the tract in controversy, but it was not shown that she rented the property from or attorned to appellant or any of her predecessors in title.
For reversal it is argued that A. D. Chavis became the owner of this property because “he bought same from the State of Arkansas.” But this contention is not borne out by the record. Mr. Chavis did not buy this land from the State of Arkansas and he did not acquire any title from the State of Arkansas by virtue of the two redemption deeds which be obtained. The effect of a redemption from the state of land forfeited for delinquent taxes is not to vest in the person making redemption the title which the state obtained by virtue of the delinquent tax sale, but merely to extinguish any right or lien of the state growing out of the said de linquent tax sale proceedings. Nor does the fact that the Commissioner of State Lands permits a redemption of lands sold to the state for non-payment of taxes establish that the person redeeming the land is the owner thereof. In the case of Meyer v. Snell, 89 Ark. 298, 116 S. W. 208, this court said: “Nor can we sustain appellee’s contention that the State’s redemption deed to him established the fact that he was the true owner of the land. The most that can he said of this is that the action of the Commissioner of State Lands in allowing him to redeem and executing a deed to him establishes merely his right to redeem from the tax sale; hut it cannot he held to he an adjudication of his ownership of the land in litigation with another person.”
Appellant obtained no title to the land by reason of the conveyance from E. N. Crawford to A. D. Chavis, hecaitse E. N. Crawford had previously conveyed the land to Kientz. Appellant fails to show any such adverse possession of 'the land by her or her predecessors in title as would vest title in her by limitation. Since the redemption deeds from the state conferred no ownership of the property, it is apparent that she had no title whatever.
“In an action to quiet title the plaintiff must rely upon the strength of his own title and not upon the weakness of his adversary’s.” Gibbs v. Pace (headnote 1), 207 Ark. 199, 179 S. W. 2d 690. See, also, Greer v. Vaughan, 128 Ark. 331, 194 S. W. 232. Since appellant shows no title whatever in herself, the lower court properly denied her relief; and it is unnecessary for us to consider any of the contentions as to invalidity of appellee’s title that are urged by appellant.
The decree of the lower court is affirmed. | [
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Minor W. Mili,wee, Justice.
The Grand Jury of Pike county indicted appellant, Bones Richardson, for selling intoxicating liquor on Sunday in violation of § 2 of Act 257 of 1943. He was found guilty by a petit jury and his punishment fixed at the minimum fine of $100 prescribed by the Act.
Harvey Lancaster testified on behalf of the _ State that on Friday, preceding Sunday, March 16, 1946, he gave Homer Thomas $8 with which to procure whiskey. Thomas lives across the road from his uncle, the appellant, near the town of Antoine. On the Sunday in question Lancaster and a companion drove to the home of Thomas for the whiskey. Thomas told Lancaster he did not have the whiskey, but could get it within a short time, if they would drive down the road a short distance. As they drove away, Thomas went toward the home of appellant. Upon their return, Thomas delivered to Lancaster a pint of whiskey and the balance of the $8 previously advanced, after deducting the purchase price of $5.
Homer Thomas testified to the same facts as Lancaster. He also testified that, as Lancaster and his companion drove down the road, he went to appellant’s place where he obtained the pint of whiskey from appellant for which he paid $5. Over appellant’s objection, several witnesses testified that his reputation for engaging in the illegal sale of liquor was bad.
For reversal of the judgment it is first insisted that the testimony of the witness, Homer Thomas, is uncorroborated and, therefore, insufficient to sustain a conviction under § 4017 of Pope’s Digest. This statute provides that a conviction cannot be had in felony cases upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense. By the terms of the statute, the requirement of corroboration is not only confined to felony cases, but it is further provided that a conviction may be had upon the testimony of an accomplice, alone, in misdemeanor cases. Appellant was convicted of a misdemeanor and the uncorroborated testimony of Homer Thomas, if believed by the jury, was sufficient to sustain a conviction.
The second contention of appellant is that ,the trial court erred in the admission of evidence of appellant’s reputation for illegally selling intoxicating liquor. Article VI, § 7, Act 108 of 1935 (Pope’s Digest, § 14140), provides : “In any prosecution or proceeding for any violation of this Act, the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall be admissible in evidence against said defendant or defendants.”
It is argued that Act 257 of 1943, under which appellant was convicted, is an original act against Sunday sales of liquor; that the instant prosecution is not for a violation of Act 108 of 1935; and that the statute making-evidence of reputation admissible is, therefore, inapplicable. We cannot agree with this contention. By Art. VI, § 1(b), Act 108 of 1935, the sale of intoxicating- liquor on Sunday was made a misdemeanor and punishment for the initial violation is the same as that imposed by the act ¡under which appellant was convicted. This subsection of the 1935 act was amended by § 1(b) of Act 356 of 1941 to make the offense of selling liquor on Sunday a felony. The 1941 act was repealed by Act 257 of 1943, which is virtually a reenactment of Art. VI, § 1(b), Act 108 of 1935, in so far as the sale of intoxicating liquor on Sunday is concerned. Thus, the effect of Act 257 of 1943 was to reinstate the provisions of Act 108 of 1935 relating to Sunday sales of intoxicating liquor, and the instant proceeding should be construed as one for a violation of Act 108 of 1935, as amended by subsequent legislation on the subject.
Evidence of defendant’s reputation for engaging in the illegal liquor traffic was held admissible, under the statute, where the charge was possessing liquor for sale, in the recent cases of Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713, and Harris v. City of Harrison, ante, p. 889, 204 S. W. 2d 167. Appellant recognizes the force of these cases, but insists that the statute should be restricted in its application to cases involving possession only, and that it does not apply where the charge is selling liquor on Sunday. The statute, however, applies in any prosecution for any violation of Act 108 of 1935, and is applicable here.
We agree that § 14140, Pope’s Digest, supra, should be restricted in its application. It will be noted that the statute does not’ attempt to make proof of reputation for engaging in the illegal liquor trade sufficient, in itself, to sustain a conviction, nor does it make it even prima facie evidence of guilt. To predicate criminality upon the proof of reputation alone would be violative of valuable rights secured by the due process clauses of both the state and federal constitutions. Amendment XIV, § 1, U. S. ’Constitution; Art. II, § 8, Ark. Constitution. The effect of such a statute would be the establishment of guilt solely by extrajudicial utterances of third parties, and a defendant would be. thereby deprived of the protection of one of the strongest presumptions known to the criminal law, namely, that of innocence until guilt, is established by competent evidence beyond a reasonable doubt. See Annotation, 92 A. L. R. 1228-1236.
We, therefore, construe the statute to mean that proof of recent reputation for engaging in the illegal sale of intoxicating liquors is competent proof thereof, but insufficient to sustain a conviction, unless corroborated by other substantial evidence which tends to establish the guilt of the accused. When thus restricted in its application, we think the statute comes within the constitutional powers of the Legislature.
Finding no error, the judgment is affirmed. | [
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Smith, J.
Appellees, Mrs. Rightor and Mrs. Thompson, own a plantation 12 miles south of the City of Helena, and appellee Conners was employed by them to operate a truck and trailer used for general plantation purposes. On the morning of February 23,1945, Conners was returning in the truck from Helena with a load of cinders for use on the plantation, when he overtook three boys who were going to the home of one of them. Louis Tilghman, Jr., the youngest of the boys, was seven years old, and his brother, Donald, was nine, and the other boy, Lloyd Franklin, to whose home they were going,' was about 14 years old. ,
The boys were walking south on Highway 20, when the truck overtook them just south of the city limits. On a signal from the oldest boy the truck stopped, and the boys got on the trailer, the youngest being assisted by the others in doing so. They took a position on the front end of the trailer bed, sitting on the cinders, with their feet hanging down between the front edge of the trailer bed and the cab of the truck. There is some conflict in the testimony as to the speed at which the truck proceeded down the highway, but this is unimportant, as the speed was not the proximate cause of the incident which occurred, resulting in the death of the youngest boy and which occasioned this law suit.
Conners’ son, a young boy, was on the driver’s seat, seated between his father and á colored man, so that there was no room for any of the boys to ride on the driver’s seat, and for that reason the three boys who were picked up rode on the trailer loaded with cinders.
Conners knew one of these boys, and knew where they would leave the trailer, and as he approached that point, the speed of the truck was reduced until it had all but stopped, and the truck was driven off the road so that only the left wheels of the truck and trailer remained on the road. Without waiting for the truck to come to a full stop, the boys began climbing down from the truck. The youngest boy moved over to the edge of the trailer bed, just behind the cab and fell, or was thrown from the trailer. His jacket caught in the lugs of the wheel, and he was thrown to the pavement, and the front wheels of the trailer passed over his body, inflicting injuries from which he died in about 30 minutes. The boy’s father brought this suit against the owners of the truck, and the driver, to recover damages, and at the trial before a jury, there was a verdict in favor of the defendants, and from the judgment rendered thereon is this appeal.
An answer was filed denying negligence on the part of the driver and denying liability also under the provisions of § 1304 of Pope’s Digest commonly referred to as the guest statute, and we think the -verdict of the jury is fully supported on either theory.
According to the undisputed testimony the truck did not travel more than two feet after the boy had been run over, and some of the witnesses placed the distance even less. It therefore conclusively appears that the truck was not moving rapidly and the prior speed is therefore unimportant, and the jury might well have found that the truck driver was guilty of no negligence.
The court gave all the instructions requested by appellant except one, which, if given, would have told the jury that appellees “would be liable provided it was found from a preponderance of the evidence that the driver of the defendants’ vehicle was guilty of ordinary negligence, provided it was found that such negligence was the proximate cause of the death of the plaintiff’s intestate.” On the contrary, after refusing this instruction, the jury was instructed that mere negligence, however gross, would not authorize a recovery, unless it was such negligence as to show a willful and wanton disregard of the consequences. Our construction of § 1302, Pope’s Digest, another guest statute in the case of Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472, and other cases there cited, fully warranted that instruction.
In this connection the court read § 1304, Pope’s Digest, which reads as follows: “NO CAUSE OE ACTION BY PERSON' RIDING IN MOTOR VEHICLE AS A GUEST. No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, nor the husband, widow, executors, administrators or next of kin of such person, shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator. And in no event shall any person related by blood or marriage within the third degree of consanquinity or affinity to such owner or operator, or the husband, widow, legal representative, or heirs of such person, have a cause of action for personal injury, including death resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this Act shall not apply to public carriers.”
The preceding § 1303 provides that, “The term guest as used in this Act shall mean self-invited guest or guest at suffranee.” Unquestionably the boys were guests within the meaning of this statute. The oldest of them “flagged” the truck, thereby soliciting a ride, and there is no contention that any charge was made or expected. The truck was a motor vehicle within the meaning of § 1304, Pope’s Digest, as defined in § 66.56, Pope’s Digest.
An exception was saved to the action of the court in reading § 1304, Pope’s Digest, but there was no error in doing so. It is the law and is unambiguous, and it was the duty of the court to declare the law, and reading the statute was the method employed in doing so. L. & A. Ry. Co. v. Woodson, 127 Ark. 323, 192 S. W. 174; Kansas City So. Ry. Co. v. Whitley, 139 Ark. 255, 213 S. W. 369; Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. 2d 972; St. L. S. F. Rd. Co. v. Ransom, 182 Ark. 701, 32 S. W. 2d 436.
It will be observed that in defining a guest the statute makes no exception in favor of minors and we have no authority to write that exception into the statute. Sims v. Cumby, 53 Ark. 418, 14 S. W. 623.
In the case of Shiels v. Audette, 119 Conn, 75, 174 Atl. 323, 94 A. L. R. 1206, the Supreme Court of Errors of Connecticut construed a guest statute somewhat similar to our own, which exempted the driver of a motor vehicle from liability for the injury of a guest except in cases of heedless or reckless negligence, while our statute exempts from liability except for an injury caused by willful or wanton misconduct. In that case, as in this, a father sued for injury to an infant son, but it was held that the statute applied to an infant and many eases were cited to support the statement that “If the injury occurs under such circumstances as do not give the child the right of action for the personal injury, ,the father cannot recover.” In that case the court said: “There was evidence to the effect that the truck was being operated at an average speed of fifteen to twenty miles an hour over a fairly smooth road' on a clear day. There was no evidence that the speed was excessive or that the truck was being operated in a dangerous manner. The only possible claim of fault was that the defendant ought to have been aware of the presence of the boys upon the running board and to have compelled them to either get off or to get on top of the load. This is at most but a claim of negligence.” So here. However, in the instant case the boys were seated on the load and the child was not injured until he attempted to get off the truck before it had come to a full stop.
The testimony warranted the jury in finding that there was no evidence of willful or wanton negligence, and the judgment must be affirmed and it is so ordered. | [
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Minor W. Millwee, Justice.
On September 30,1946, .appellee, Glenn Harkey, and 716 other persons, claiming to be more than 15 per cent, of the qualified electors of Lincoln county as shown on the county poll tax records, filed a petition in county court praying that a countywide election be called under Initiated Act No. 1 of 1942 (Acts 1943, p. 998) to determine whether license should be granted for the manufacture, sale, bartering, loaning, or giving away of intoxicating liquors in the county. Pursuant to an order of the County Court, a public hearing was held on October 7, 1946, to determine the sufficiency of the petition.
The County Court found that the petition contained 717 signers, which number constituted more than 15 per cent, of the 2,638 qualified electors as shown by the poll tax records of the county, and ordered a special election to-be held on October 29, 1946, in accordance with the prayer of the petition. The record reflects that appellants, Joseph Gocio and J. E. Prewitt, appeared as protestants at the hearing in County Court, but filed no written pleadings or exceptions to the order made.
On October 14,-1946, appellants filed an affidavit and prayer for appeal to the circuit court which was granted. Prior to the trial in circuit court each side, with the court’s permission, named a checker and these checkers were appointed by the court to canvass the petition of appellees and examine all available records bearing on the qualifications of the persons signing the petition. After a thorough investigation, the two checkers filed their report which was by stipulation made an exhibit in the hearing in circuit court, with the understanding that either- side might challenge any part thereof. The qualifications of 283- of the 717 signers of the petition were found questionable in this report, but one of the checkers refused to agree to paragraphs 5 and 8 of the report which involved the validity of 42 of the signatures considered questionable by the other checker.
It was also stipulated at the trial in circuit court that there were 2,638 names on the official poll tax list filed by the collector in the county clerk’s office for the year 1944. Under the proof offered by appellants-, 57 names were stricken from the petition for various reasons and the court refused to strike 116 other names challenged by appellants in pursuance of the investigation and report of the checkers.. The court found that the petition contained 660 valid signatures, which number was in excess of 396 required by law. The appeal of the protestants (appellants) was dismissed and the County Court was directed to proceed with the election in accordance with the provisions of the Initiated Act.
Appellants have waived all but two of the 17 assignments of error set out in their motion for new trial. The first assignment now relied upon for reversal is that' the trial court erred in placing the burden of proof on appellants. Section 2918 of Pope’s Digest provides that the circuit court shall try all appeals from the county-court de novo as other cases at law. In construing this statute this court has held that the circuit court on appeal must try the cause as if it had been originally brought in that court in the first instance. Batesville v. Ball, 100 Ark. 496, 140 S. W. 712, Ann. Cas. 1913C, 1317; Carpenter v. Leatherman, 117 Ark 531, 176 S. W. 113. Appellants rely on this statute and both parties rely on § 5122, Pope’s Digest, which provides: “The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side. ’ ’
After the appeal was lodged in circuit court, appellants filed a motion alleging generally that the petition did not meet the requirements of the Initiated Act; that numerous signatures were not genuine; and that 15 percent. of the qualified electors of the county did not sign the petition. This motion'did not suggest any particular requirement of the Initiated Act which the petitioners had not complied with, nor did it challenge any particular signature as being invalid for any reason. Under this state of the record, it is insisted by appellants that it was incumbent on appellees to identify the 35 sections of the petition by the testimony of the respective canvassers and to show by them that all the signatures were genuine and executed in their presence. We do not agree with appellants in this contention.
It may first be pointed out that a proceeding under Initiated Act No. 1 of 1942 for calling a local option election does not necessarily partake of the nature of an adversary proceeding such as is involved in an ordinary lawsuit. In enacting this law the people merely provided a method whereby a certain percentage of the qualified electors as shown on the poll tax records of a county might call an election to determine the sentiment of the voters on the liquor question. The election machinery is set in motion by an ex parte petition of electors and the proceeding may, or may not, become an adversary one.
We agree that the burden of proof is on petitioners in both the county court and the circuit court, on appeal, but this burden is discharged and a prima facie case made when a petition has been circulated, signed and filed in the form and manner shown in the instant case. There is attached to each section of the petition filed in the case at bar an affidavit of the circulator, or canvasser, in the following form:
‘ ‘ State of Arkansas
County of Lincoln
“I, II. G. Gassoway of Gould, Ark., being first duly sworn, state that Glen Harkey, (and 291 other persons) signed the foregoing petition, and each of them signed his or her name thereto in my presence. I believe that each one has stated his or her name, residence, postoffice address and voting precinct correctly, and that each of them is a legal voter of-Lincoln County, Arkansas.
“Subscribed and sworn to before me this 11th day of March, 1946.
“H. G-. Gassoway,
Canvasser.
“John G. Fish
N. P. . Clerk Judge J.P.
“ (Notarial Seal) ”
We have held that Initiated Act No. 1 of 1942 is complete in itself and that it is not necessary that a petition thereunder comply with the I. & E. Amendment to the Constitution and the enabling acts carrying it into effect. Johnston v. Bramlett, 193 Ark. 71, 97 S. W. 2d 631; Mondier v. Medlock, 207 Ark. 790, 182 S. W. 2d 869. In Winfrey v. Smith, 209 Ark. 63, 189 S. W. 2d 615, the petition was not verified to comply with the provisions of § 13285, et seq., Pope’s Digest, which are parts of the enabling act to the first I. & R. Amendment. We there held that it was unnecessary to verify the petition where the canvasser came into open court and testified to the genuineness of the signatures.
However, in those cases where the petition is verified by the circulator, as in the case at bar, we think the situation is analogous to that presented in the case of an initiative petition filed under the I. & R. Amendment and the enabling acts thereto. In discussing the effect to be given the affidavit of the circulator of an initiative petition in such eases in Sturdy v. Hall, Secretary of State, 201 Ark. 38, 143 S. W. 2d 547, this court said: “The circulator of a petition is of the nature of an election official. The elector directs, by signing the petition, that the proposed Act shall be submitted to the people, and he must sign his own name, as held in Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335, and he must do so in the presence of the circulator of the petition, in order that the circulator may truthfully make the affidavit required by both the Constitution and the statute. In many instances no one is present except the circulator of the petition and the
signer, and when the circulator makes the required affidavit, the prima facie showing has been made that the elector signed the petition.”
' It is true that the presumption of verity that attaches upon the making of the affidavit by the circulator of a petition is not a conclusive one, but it is sufficient to make a prima facie case in favor of the petitioners and places the burden of showing invalidity upon those who challenge the petition. The 35 sections of the petition of appellees show on their face to have been duly circulated, signed and verified. Appellants have not attacked the verity of the affidavits attached to the petition. There was no showing of fraudulent conduct on the part of the circulators of the petition. We hold that the verification of the petition by the canvassers was sufficient to make a prima facie case and,, shift to appellants the burden of going forward with the evidence. The trial court correctly so held.
Appellants’ second contention for reversal is: “Because the court erred in holding that the sole question for determination ... is whether or not the petitions filed in this proceeding do or do not contain fifteen per cent, of those persons whose names appear upon the certified poll list filed by the Collector in the Clerk’s office, and it is not proper ... to inquire into the qualifications of any of those persons to determine whether or not they are, or are not qualified electors.....” We find it unnecessary to determine whether the circuit judge misconstrued the effect of the decision in Samuels, et al., v. Robins, et al., 209 Ark. 614, 192 S. W. 2d 109, in making the above ruling for the reason that, if this contention of appellants were upheld, the petition filed in the instant case would, nevertheless, be sufficient. This is true because appellants simply have not challenged sufficient names to destroy the sufficiency of the petition even if all their challenges were sustained. Tollett v. Knod, 210 Ark. 781, 197 S. W. 2d 744.
The parties stipulated that 2,638 names appeared on the certified poll tax list of Lincoln county for 1944. At appellants’ request the trial court ruled that this list represented the criterion for determining whether 15 per cent, of the qualified electors signed the petition. Fifteen per cent, of 2,638 would be 396 names, the number required to call an election. The report of the checkers listed as questionable 283 names and appellants challenged 273 of this number. The petition contained 717 signatures. If all the names challenged by appellants had been stricken there would still remain 444 names which is more than the 396 required. Appellants made no showing, or offer to show, that names other than the 273 challenged by them were ineligible. It was certainly incumbent on them to, at least, offer to show the invalidity of a sufficient number of signatures to destroy the sufficiency of the petition, before they can claim to have been prejudiced by the court’s ruling.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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