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Mr. Justice Fairchild
delivered the opinion of the Court.
Arledge sold to Rooks a piece of land, for which three notes were given. Two had been paid, and as the time of payment of the last note approached, Rooks called upon Arledge, expressed a wish to pay the note, and demanded his note and a deed for the land. Rooks calls the offer offmoney a tender, and Arledge denies that it was sufficient as atender, but this enquiry is immaterial, for Arledge refused to receive the money with the required condition of executing the deed, although he offered to give up Rooks his note, and receive the money.
The only question in the case, is, whose duty was it to prepare and tender the conveyance, which Arledge’s bond for title provided to be made upon payment of the price of the land. The English practice is, that the purchaser must, in, all .cases prepare the deed, though when the vendor proceeds in affir-mance of the contract, he must offer to execute a deed. 1 Sug. Vend., ch. 4, sec. 4, * 58, 64, 65. And this may be the rule in some of the States, as seems to have been held in Alabama in Wade vs. Killough, 5 Stew & Port. 461. But in many of the States, the contrary rule has been adopted. - Ghittyon Contracts 9, Am. Ed. 317, note 2 ; 1 Sudg.Vend. p. 308, 61 note (1); Buckmaster vs. Grundy, 1 Scam. 314; Perry vs. Rice, 10 Texas 373; Standefer vs. Davis, 13 S. & M. 52; Tenney vs. Ashley, 15 Pick. 552; Sweetzer vs. Hammell, 3 Serg. & Rawle 230; Fuller vs. Hubbard, 6 Cow. 17. This question was left open by this court in Smith vs. Henry, 2 Eng. 207.
Although, upon principle, we might prefer that the party, who moves to obtain the performance of the other party to a contract, should tender a conveyance, yet considering the simplicity of our. titles, we are willing to follow the general current of the American decisions. According to these authorities Arledge should have complied with Rooks’ demand in giving the deed as demanded.
Lot the decree be affirmed. | [
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Battle, J.
The trial court erred in instructing the jury. The instructions made the right of plaintiffs to recover to depend upon the delivery by them to the defendants of a bill of lading, when the non-delivery of a bill of lading was not pleaded as a defense. No such issue was joined. The undisputed evidence shows that a bill of lading was sent by mail to the defendants. But they say they never received it,.and that they did not inform plaintiffs that they had not received it and made no request for a duplicate. They received all the goods purchased, except a show case, and for that reason refused to pay for the goods. The instructions were, therefore, erroneous.
Reversed and remand for a new trial. | [
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McCulloch, J.
This is an action brought before a justice of the peace upon written contract to recover the price of a lot of merchandise (jewelry) alleged to have been sold by the plaintiff (appellant) to defendant, and shipped to him at his place of business in Marion County. Judgment was rendered in favor of the defendant before the justice of the peace, and also in the circuit court on appeal, and the plaintiff appealed to this court.
In the circuit court the cause was tried before the court, sitting as a jury. No declarations of law were made by the court, none were requested by the parties, and we have only before us the question of the legal sufficiency of the evidence to support the findings of the court and judgment.
The facts- are undisputed. ^Defendant was a merchant at Rush, Arkansas, his railroad shipping point at that time being Buffalo, Arkansas. Plaintiff’s place of business was at Cedar Rapids, Iowa, and the alleged sale was made by its traveling agent, who procured a written order from ' defendant for the goods. The order contained the following clause:
“This order is subject to approval at Cedar Rapids, Iowa, and can not be countermanded. Salesmen have no authority to make any agreement not written or printed hereon.”
The order was received by plaintiff and approved, and the goods shipped, but were never received by defendant, the shipment, though properly consigned, having been erroneously carried to another place.
The defendant testified that when he gave the written order to plaintiff’s traveling salesman a printed slip containing the following clause was pinned to the printed order blank as a part of the contract:
“Profits Guaranty.
“We guaranty that the gross profits to the purchaser from the sales of the jewelry purchased hereunder, and the jewelry hereafter purchased as hereinafter provided, will average thirty-three and one-third (33 1-3) per cent, upon the amount of the order, for the term of one year from the date of shipment; and if the gross profits do not average thirty-three and one-third per cent, for one year, as above, we will pay by draft, to the purchaser, an amount sufficient to make up the deficiency.”
He testified that the copy of the order left with him (defendant) had this slip pinned to it, and made the following further statement of the facts:
“I told him I would take the goods under the contract as changed, and we started to change and fill another contract and make it just like the one we had first made out; but before we got it done Jackson’s horses got restless, and he had to go to see about them, and I went with him to his buggy, and after he got his horses straightened out he said he was in a hurry to get to Yellville, and for me to sign the contract that he had, and he would make it just like the one that I" kept, when he got to Yellville; and I signed it with that understanding that he pin a slip on the top of the one that he took with him, and strike out the clause referring to the notes, just as the one I kept.”
It appears that the salesman failed to attach the slip to the contract sent to and accepted by the plaintiff. In other words, the defendant intended to give and did give an order to contain this clause, and the plaintiff received and accepted an order omitting the clause. Did the minds of the contracting parties meet upon the same form of contract? We think not. Plainly the defendant entered into one form of contract, and the plaintiff approved one of totally different effect. There was no contract, because the minds of the oarties never met upon the same terms.
Appellant contends that the court erred in admitting proof establishing the oral agreement concerning the added clause in the order blank. It is urged that the effect of this testimony was to vary or contradict the terms of the written contract. Not so. The purpose of the evidence was not to vary or contradict the terms of the contract, but to identify the particular contract which defendant in fact executed. The paper signed by the defendant did not in fact become his contract until the salesman attached the slip containing the clause as agreed upon between them, and it was competent for him to prove this by parol testimony. Graham v. Remmel, 76 Ark. 140; State v. Wallis, 57 Ark. 64; Burke v. Dulaney, 153 U. S. 228.
The defendant had in his possession at the time of the trial one writing purporting to represent the contract between the parties, and the plaintiff had another of different import, which it sued on as the contract between them. Their minds did not meet, and there was, therefore, no contract at all upon which defendant was liable. | [
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McCulloch, J.,
(after stating the facts.) Appellant asked the court to give the following instructions:
“1. The court instructs the jury that if you find from the evidence in this case that the notes from which the money was collected were made payable to J. W. Ferguson or order, and that the said J. W. Ferguson, for value, before they were due, transferred said-notes to Frazier, and that said notes were received from Frazier for collection by Ferguson, and delivered to defendant, and he collected same, and failed to remit said money, then your verdict must be for plaintiff, for the amount he has received for Frazier and has not remitted.”
But the court, over the objection of appellant, added to said instruction the following: “if the defendant knew Frazier was the owner of the notes, or was_ in possession of facts that would place a reasonable person on inquiry as to the ownership.”
Appellant also asked the court to give the following instruction, which the court, over his objection, modified by inserting the words in italics:
“3. The court instructs the jury that if you find from the evidence in this case that the notes were the property of the plaintiff, and the defendant collected the same agreeing to remit the amount so collected to plaintiff, and knowing the plaintiff to be the owner of the notes, then your verdict should be for the plaintiff the amount collected less the amount remitted, though you may further find that the said Ferguson is or is not indebted to the said Poindexter.”
The court refused to give the following instruction asked by appellant:
“4. The court instructs the jury that J. W. Ferguson is not a party to this suit; and if you find from the evidence in this case that these notes were taken in the name of J. W. Ferguson, and by Ferguson transferred to the plaintiff by writing his name on the back of said notes for value, and by Frazier were delivered to Ferguson, and by him delivered to defendant for collection for account of Frazier, and the defendant accepted said notes for collection for plaintiff and collected same, then your verdict should be for the plaintiff in the amount collected, less amount remitted, though you may further find that the witness Ferguson is or is not indebted to the defendant.”
The court erred in refusing the fourth instruction asked by appellant. That instruction contained a recital of facts which, if they were found to be true, were sufficient to put appellee upon notice that the notes belonged to appellant, and he could not under those circumstances claim a set-off against the money collected thereon. It was undisputed, under the testimony, that the notes belonged to appellant. If, therefore, they were taken in the name of Ferguson, but transferred to appellant by written indorsement, and appellee accepted them for collection for appellant, he was bound to take notice of the latter's ownership, and account for the money collected. He could not apply it on a debt due him by Ferguson. This instruction was not covered by the first instruction asked by appellant and modified by the court. The latter did not embrace the facts stated in the former that the assignment of the notes was in writing, so that appellee was bound to take notice of it, nor that he accepted the notes for collection for appellant.
It is undoubtedly the law that where an undisclosed principal sues on a contract made by his agent in his own name with some person who had no knowledge of an agency, but supposed that the agent dealt for himself, such suit-is subject to any defense or set-off acquired by the third party against the agent before he had notice of the principal’s rights. 2 Clark & Skyles on Agency, § 537; Tiffany on Agency, p. 311; George v. Clagett, 7 Term R. 359; Rabone v. Williams, Id. 360; Belfield v. National Supply Co., 189 Pa. 189; Sullivan v. Shailor, 70 Conn. 733; Buchanan v. Cleveland Linseed Oil Co., 91 Fed. 88.
And this rule applies not only to sale of goods, but as well to other contracts where the agent is authorized to collect money for his undisclosed principal. Tiffany on Agency, p. 311; Montague v. Forward, 2 Q. B. (1893), 351.
But if the party who dealt with the agent, acting in his own name, knew or had reason to believe that he was dealing with one who was an agent for some third person, he can not successfully plead such defense or set-off. He must, in order to be protected, be innocent of any knowledge or of facts and circumstances which would put a reasonably prudent person on inquiry that he was dealing with an agent. Where he knows that the party he is dealing with is an agent, although he does not know who the principal is, he is not protected. Quinn v. Sewell, 50 Ark. 380; Baxter v. Sherman, 73 Minn. 434; Semenza v. Brinsley, 114 E. C. L. 467; George v. Clagett, supra; Bliss v. Bliss, 7 Bosw. 344.
The third instruction asked by appellant should have been given, and the court erred in modifying it. If the defendant accepted the notes for collection under an agreement that he would pay the money when collected over to plaintiff, he had no right to apply it to his own debt, and to refuse to pay it to plaintiff, even though he had no information of Ferguson’s agency and believed that the notes belonged to Ferguson.
“The right of setoff, recoupment and counterclaim in actions at law between principal and agent is,” says Mr. Mechem, “governed ordinarily by the same rules that apply in other cases. This right, however, may be waived by contract, express or implied, and it can not be insisted upon where its enforcement would result in a violation of the agent’s duty to his principal. The receipt of money by an agent to be applied to a specific purpose imposes upon him the duty not to apply it to another and different purpose. Fie can not, therefore, apply it to his own use by using as a setoff against it a demand due him from his principal.” Mechem on Agency, § 535; 1 Clark & Skyles on Agency, § 427; Tagg v. Bowman, 108 Pa. St. 273.
The same rule would undoubtedly apply where suit is brought by an undisclosed principal; for, if the defendant could not have claimed the right of set-off against his own principal, he could not do so against the undisclosed principal of an agent with whom he dealt as principal.
There was abundant evidence to base the instruction upon as asked by appellant. Ferguson testified that when he sent the notes to Poindexter for collection he instructed him to remit the amount collected to Frazier, and he was corroborated by Frazier, who testified that Poindexter, when he made the remittance of $325, promised to send the balance in a short time. If the jury found these facts to be true, and that Ferguson did not recall that direction for the application of the funds, then the verdict should have been for the plaintiff.
The first instruction given at the request of appellee is objectionable because it imposed upon appellant the burden of showing that he had given notice to appellee of his rights, even though the jury found that there were circumstances sufficient to put him upon notice as to appellant’s ownership of or interest in the notes, but this objection should have been specifically pointed out. A general objection to the instruction as a whole was not sufficient.
For the errors indicated, the judgment is reversed, and cause remanded for a new trial. | [
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McCulloch, J.
This is a proceeding commenced in the county court of Poinsett County to establish a drainage district under the act of April 23, 1903 (Kirby’s Digest, § § 1414-1450), for the purpose of constructing a ditch or drain along a certain route through lands described into the St. Francis River.
The petition for the establishment of the district was signed by eight landowners whose lands were to be affected by the pro posed improvement, in accordance with the requirements of the statute, and was duly filed and presented to the county court, and the petitioners gave bond as provided by the statute.
The court made an order appointing viewers and a civil engineer to make examination and survey of the lands to -be affected, and caused notice to be published of the hearing of the report thereof. The report was made and approved, and the court made an order establishing the district, and directed the viewers and engineer to make a survey and plat of lands to be benefited by the proposed ditch, and an estimate of the cost of improvement and assessment on the lands. The report and assessments of the' viewers were filed, notice thereof to landowners was duly served and published, and upon hearing the said final report and assessments were approved and confirmed by the court. Appellant, Ritter, the owner of land affected by the improvement, appeared and filed his exceptions to the judgment of the court in establishing the district and in approving the assessments, and appealed to the circuit court, where the same judgment was rendered, and he appealed to this court.
He attacks the validity of the statute, and the proceedings pursuant thereto, upon the following grounds:
1. That the terms of the statute impose an improper and illegal burden upon the owner of “swamp and overflowed lands,” which were granted to the State of Arkansas by the United States, under the.act of Congress of September 28, 1850.
2. That the statute is unconstitutional and void because it does not limit the assessment upon the lands to the value of the benefits conferred by the improvement.
3. That the statute is void because the notice required thereby to landowners of the establishment of the district and assessment of lands is unreasonable and insufficient, so that the effect of the assessment is a taking of property “without due process of law.”
4. That the petition and-notice fail to sufficiently describe the proposed beginning and route of the ditch, so as to give the court jurisdiction and put the landowners upon notice of the proceedings.
5. That the report and schedules of the viewers wer.e insufficient because they failed to make any showing as to flood gates, waterways, farms or crossings, bridges and dimensions, or the number of feet in length of the proposed ditch through each tract of land.
6. That the necessity for the proposed improvement was not made to appear by sufficient proof in the proceedings.
Pie also attacks the assessment upon his own lands, on the ground that, according to the proof, as he alleges, they will not be benefited by the ditch, and that the viewers overestimated the value of the benefits to his lands.
The second, third and fourth grounds of attack are settled adversely to appellant’s contention in the case of Cribbs v. Benedict, 64 Ark. 555. Those questions were fully considered by the court, and discussed at length in the opinion in that case, and the reasons for upholding the statute need not be reiterated. Suffice it to say that we have no reason to doubt the correctness. of that decision and the principle announced in the opinion, and the same are again approved. That decision construed the act of 1891, which has been repealed and superseded by the later statute now in force. There is no material difference between the two statutes, so far as they affect the questions involved in this case. The language of the two statutes is slightly different with respect to the requirement of notice of the point of beginning of the proposed route of the ditch, but the difference is not sufficiently material to prevent the application to the present statute of the rule announced in Cribbs v. Benedict. The following authorities, not cited in the Cribbs case, are instructive on the question, and fully sustain the principles announced by this court. Stiewel v. Fencing District, 71 Ark. 17; Fallbrook Levee District v. Bradley, 164 U. S. 112; N. Y. & N. E. Railroad Co. v. Bristol, 151 U. S. 556; Pittsburg, etc., Ry Co. v. Machler, 158 Ind. 159.
Appellant’s sixth ground of objection to the proceeding, that it does not appear from the evidence that the improvement is necessary, or will result in benefit to the lands included in the district, is settled by the decision in Stiewel v. Fencing District, 71 Ark. 17. The findings and conclusions of the county court raise at least a prima facie presumption of benefit to the lands, and the finding of the trial court will not be set aside when there is evidence to support it, even though against the preponderance of the evidence. The report of the viewers is sufficient evidence to support the finding of the court as to probable benefits.
The contention of appellant set forth in his first ground of attack is untenable. The State’s title to the swamp and overflowed lands having passed to the present owners, it falls within the taxing power of the State, regardless of the origin of the title, and is subject to assessment for local improvement, the same as any other lands. No exemption is found in the donation act of Congress, and none can be supplied by the courts under the pretext that contractual rights, of the owner are impaired by an assessment thereof for local improvements.
The grounds of the fifth assignment are not well founded, and the validity of the proceedings establishing the district and making the assignment can not be avoided for that reason. Appellant does not complain at the failure of the viewers to specify the number of - floodgates, waterways, crossings, etc., so far as they might substantially affect any of the rights of the landowners, but sets forth this omission as ground for avoiding the whole proceedings. The omission can not be made to serve that purpose. If the attention of the court had been called to the omission as affecting substantial rights, doubtless the court would have referred the matter back to the viewers for estimates and report on that subject. The viewers reported in favor of a contract for construction of the improvement as a whole, without allotment to the several tracts, and the court, therefore, did not order an allotment. The statute leaves this in the discretion of the county court as -to whether or not it shall order an allotment when the viewers report in favor of a contract for construction as a whole.
This brings us to a consideration of appellant’s contention that his lands will receive no benefits from the proposed ditch, and that the viewers overestimated the resultant benefits to his land. The findings of the trial court upon these questions being supported by legally sufficient evidence, we are concluded by them.
Upon -the whole, we find no grounds upon which the judgment of the court establishing the drainage district and approving the assessment should be disturbed, and the same is in all things affirmed. | [
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Riddick, J.
This is an appeal from a judgment convicting the defendant, John Lewis, of the crime of perjury, and sentencing him to be imprisoned for one year. The grand jury were investigating the question as to whether intoxicating liquors were being sold or had been sold in a certain building in the town of Hope. To solve this question, they called the defendant before, them, and asked him whether he had attended or guarded the back door of the building, so as to afford ingress and egress through the back door to persons visiting the building, and also whether he had, since the 1st of January, 1905, conveyed beer or whisky into the building. He answered both of those questions in the negative, and was indicted for perjury in so doing. There was evidence on his trial for perjury that tended to show that these answers were false. There was also evidence to the contrary which tended to show that the witnesses for the State were mistaken in believing that defendant had guarded the door, but it was for the jury to determine which of these witnesses told the truth.
If the testimony of the witnesses for the State was true, the purpose of the defendant in guarding the door was to admit persons to the room who wished to get whisky, and to warn persons in charge of the intoxicating liquor of the approach of officers or other unfriendly visitors. But, even, if his occupation in guarding the door was lawful, the grand jury had the matter under investigation, and had the right to ask the question. Whether or not he was there guarding the door was a material question before them, and his false testimony in reference thereto was sufficient to base an indictment for perjury and conviction thereon.
On the whole cpse we are of the opinion the judgment should be affirmed. | [
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Battle, J.
This action was brought by Hall & Brown Woodworking Machine Company against the Louisiana & Northwest Railroad Company for the damages sustained by it on account of the loss of parts of machinery shipped in the year 1899 over the defendant’s railroad as the last of a line of three connecting carriers. It alleged in its complaint that the defendant undertook to ship certain machinery from McNeil, Arkansas, to State Line, a station on its road, in the State of Louisiana, but negligently failed to carry and safely deliver all of the same to the consignees, J. T. DeLoach & Bro., and lost certain parts thereof, to the damage of the plaintiff in the sum of $155.34. On the second day of September, 1902, in open court, the defendant filed its answer, and denied therein that the machinery was delivered to it, and that it undertook to carry and safely deliver the same to the consignee at its place of destination, and that by reason of its negligence any part thereof was lost. On the 2d day of September, 1903, the issues in the case came on to be tried before a jury. After the evidence was closed and the witnesses in the case were discharged, the defendant was allowed to amend its answer so as to allege that it was stipulated in the bill of lading given for the shipment of the machinery that “claims for damages must be reported by the consignee in writing to the delivery line within thirty-six hours after the consignee had been notified of the arrival of the freight at the place of delivery,” and that if spch notice was not given the defendant should not be liable, and to allege that such notice was not given. The plaintiff thereupon moved for a continuance in order to prepare to meet the new defense, and the court overruled the motion.
The court, over the objection of the plaintiff, instructed the jury, in part, at the request of the defendant, as follows:
“3. The court instructs the jury that if they find from the bill of lading introduced as evidence in this cause that it contains a stipulation that claims for damages must be reported by the consignee in writing to the delivery line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery, they will find for the defendant, the Louisiana & Northwest Railroad Company, unless they further find from the evidence that the said J. T. DeLoach & Bro. reported said damages in writing to the defendant within thirty-six hours, as therein stipulated, provided thirty-six hours was a reasonable time, as defined in another instruction given by the court.”
The jury returned a verdict in favor of the defendant, and the plaintiff appealed.
After the answer remained on file for one year without amendment the plaintiff had reason to believe no new or additional defense would be pleaded by the defendant. It was guilty of no negligence in failing to be ready to meet the new issue. It was not reasonable to presume that it would be prepared to do so, as it was not, especially after the discharge of the witnesses.. Whether it could have done so, it was not allowed the time or opportunity to make the necessary inquiries for information. It was. certainly just and right that it should have been allowed the privilege to do so. The court erred in denying it the privilege.
Beverse and remand for a new trial. | [
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Hill, C. J.
Judgment was rendered jointly against the Little Rock Traction & Electric Company and the Little Rock Railway & Electric Company. The same attorneys represented the two defendant corporations, and one of the attorneys applied to the clerk of this court for an appeal. He inadvertently signed the name of only one of the defendants, and wrote the prayer of the appeal as follows: “Comes the defendant, and prays an appeal from the judgment rendered herein.” The clerk discovered that there were two defendants, and called the attorney’s attention to it, and the attorney or the clerk then and in the presence of the other, added the letter “s” to the word defendant, making it read that the defendants pray an appeal. The singular number of the verb “comes” was not corrected, and the other defendant’s name was not signed. It was, howeve-r, treated by the clerk as a proper prayer for appeal by both parties, the attorney intended it as such, and the clerk issued summons; inserting both defendants as appellants, and service of summons was acknowledged.
Now, appellee desires to have the appeal as to the defendant not named in the prayer dismissed, and appellants desire to amend the record to make it expressly state that both defendants appealed. The object of the appeal was to lodge the case in this court, and to summon the prevailing party here as appellee. In this irregular way this object is fully attained; no one was misled; no mistake occurred, except an omission to sign name of both defendants, when both attorney and clerk understood the insertion of the defendants for defendant to be a prayer on behalf of both. To sustain the contention of appellee and dismiss the appeal would be putting form before substance, the letter before the spirit. The motion to dismiss the appeal is denied, and to amend the record is granted. | [
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Riddick, J.
The defendant, Jake'Weatherford, was indicted by the grand jury of Randolph County for murder in the second degree for killing Joseph Williams by striking him on the head with a bottle.
The evidence shows that on 6th of November, 1904, Weatherford and Williams and some other young men were playing cards in a thicket. They had whisky, which several of them drank. They wagered small sums of money on the game which they were playing,, and the result was that defendant lost what small amount of cash he had, which was less than a dollar. After this he started away. As he went away, he picked up a sack of crackers which belonged to Williams, and which he had placed on the ground near where the game was being played. Weatherford opened the sack of crackers, and began to eat some of them. In doing so he tore the sack and scattered some of the crackers on the ground. Williams then said to him: “If you want some of those crackers, eat them like a man, but do not waste them in that way.” Weatherford then threw the sack down.' There is a conflict in the evidence as to what happened afterwards.
The witnesses for the State say that Williams went to where the crackers were scattered on the ground, and began to pick them up, and that while- he was doing this Weatherford turned back and hit him on the head with a bottle he held in his hand. On the other hand, the witnesses for the defendant testified that Williams, when Weatherford threw the crackers down, went up to him and attempted to cut him with a knife, and that Weatherford then hit him with a bottle.
The effect of the blow was that Williams was knocked down and became unconscious not long afterwards. He was taken home. Doctors were sent for, who took out a piece of the skull, and found that there was a large amount of clotted blood next to the brain, and that the brain itself had been injured by the blow. 'Williams never regained consciousness, and died that night. The defendant was convicted of involuntary manslaughter, and sentenced to one year in the penitentiary.
These young men were hardly more than boys, the defendant being 21 and deceased 20 years of age. It is evident that the killing was not intentional, but the evidence fully supports the finding that it was not done in self-defense, and that the defendant is guilty of some degree of homicide. As the jury found him guilty of the lowest degree of homicide, the judgment must be affirmed, unless there was some prejudicial error in the proceedings at the trial.
The court instructed the jury fully as to the law of the case, and the only complaint made is that he told the jury that they had the right, in estimating the weight to be attached to the testimony of the defendant, to consider his interest in the trial and verdict. But this court has repeatedly held that it was not error for the trial judge to give such an instruction. Hamilton v. State, 62 Ark. 543; Jones v. State, 61 Ark. 102; Vaughan v. State, 58 Ark. 362.
It is also insisted that the court erred in refusing to grant* a continuance on motion of defendant on account of the absence of Lucian Pickett and Dr. P. McCabe. But the motion for continuance did not state where Lucian Pickett .could be found. It stated that subpoenas had been issued to three different counties in the State, Union, Howard and Randolph, and that the sheriff of each county made return that he was not to be found in his county. It not being shown that the attendance of the witness could be procured by a continuance, it was within the discretion of the presiding judge to overrule the motion for continuance on that ground.
As to the other witness, it was not shown that any effort had been made to secure his attendance. In fact, the affidavit states that defendant “had just been advised that'said witness will not be able to be present at this term of court on account of sickness, that as soon as he learned of this he had a subpoena issued for him.”
The defendant attempts to excuse his failure to use any effort to procure the attendance of the witness by saying that the witness had been put under recognizance by the justice of the peace to appear at court. But that was evidently for the appearance of the witness before the grand jury at the January term. There is no showing that the witness had ever been ordered to attend the circuit court as a witness for defendant. As defendant made no effort to secure the attendance of the witness until he learned that he was side and could not attend, it may have caused the court to suspect that this belated effort was not to get the witness but to get a continuance. The affidavit does not tell who advised the defendant that the witness could not attend, and is not supported by the affidavit of any one who knew that the witness was in fact sick. He was shown to be absent; but as he lived in another county, and had never been subpoenaed, that was to be expected. The court, we think, committed no error in overruling the motion.
Another ground of error set up in the motion for new trial is that the court erred in refusing to allow defendant to show what Dr. McCabe testified before the county judge in the hearing of an application for bail. But the only reference to this matter we find in the transcript is as follows, towit: “Counsel for defense asks to prove what McCabe said in regard to the operation, and was overruled by the court.” But what McCabe said would be hearsay, and the record does not show affirmatively that McCabe was beyond the jurisdiction of the court or unable to attend, or that any offer was made to show what he had previously testified as a witness.
On the whole case, we find no error, and the judgment must therefore be affirmed. | [
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McCulloch, J.
Appellants, in an action of replevin brought by J. A. Frizzell against John Luzader; before a justice of the peace of Clark County, to recover possession of a mule, executed a bond to the plaintiff in the following form (omitting the caption) :
“We undertake to pay to the plaintiff such sums, not exceeding $200, as may be adjudged to him in the action, or that the property attached, towit: one mule attached herein, shall be forthcoming and subject to the order of the court for the satisfaction of such judgment as may be rendered in the action, whichever shall be directed by the court.”
A trial of said case before another justice of the peace on change of venue resulted in a verdict for the plaintiff for the recovery of the mule sued for, or its value, fixed at $75, and cost of the action, and judgment was rendered accordingly against the defendant Luzader and appellants as sureties on said bond. Luzader delivered the mule to the plaintiff, and the justice of the peace issued execution upon the judgment for costs, which were taxed in the sum of $52.35.
Appellants thereupon presented to the circuit court their petition, setting forth the foregoing facts, for writ of certiorari to quash the judgment against them as sureties on said bond, which being refused they appealed to this court.
The basis of their contention is that the bond is not in form prescribed by the statute as a delivery bond in replevin, that it was enforcible only as a common-law obligation, and that a summary judgment thereon was not authorized. They assert also that all liability as a common-law obligation has been discharged by a return of the property as adjudged.
The statute provides that in replevin the officer holding the writ may return the property to the defendant upon his giving bond, with security, “to the effect that the defendant shall perform the judgment of the court in the action.” Kirby’s Digest, § 6863. The bond executed by appellants was not an obligation to “perform the judgment of the court in the action.” The undertaking was to “pay to the plaintiff such sums not exceeding $200 as may be adjudged to him in the action, or that the property attached * * * shall be forthcoming and subject to the order of the court' for satisfaction of such judgment as may be rendered in the action, whichever shall be directed by the court.” It is in the alternative, either to pay a sum of money not exceeding $200, or to return the property, as the court should direct, but not to do both. It can not be construed to be an undertaking to perform such judgment as the court was authorized to render in an action of replevin.
The statute regulating judgments in replevin is as follows:
“In all actions for the recovery of personal property where the defendant has given a delivery bond as now provided for by section 6863, the court or jury trying the case may not only render judgment against the defendant for the recovery of the property, or its value, together with all damages sustained by the detention thereof, but also, upon motion of the plaintiff, render judgment against the shinties upon his said delivery bond for the value of the property, and also damages as aforesaid, as the same may be found and determined by the court or jury trying said cause.” Kirby’s Digest, § 6870.
The bond not being in form prescribed by the statute, a summary judgment thereon was unauthorized. Lowenstein v. McCadden, 54 Ark. 13; Martin v. Tennison, 56 Ark. 291.
The judgment against appellants as sureties on the bond was void, and should be quashed on certiorari.
The judgment of the circuit court denying the writ is reversed for further proceeding in accordance with this opinion. | [
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Battle, J.
The plaintiff, W. R. Banks, alleged in his complaint that he was engaged in buying and selling real estate in the year 1901, and while so engaged the defendant, Minnie V. Underwood, employed him to sell certain lands which she represented to him as belonging to her, and agreed to pay him five per cent, commissions on the amount of the sale, if he sold; that he sold the lands for $1,500, and paid the defendant $50 of this sum, and that'she refused to comply with her.contract and convey the lands to the purchaser. He further alleged that she caused and induced him to employ certain attorneys to “investigate, correct and adjust the title to the lands,” and “to resist litigation then pending, and indirectly relating to the title to said property and affecting the same in the Lonoke Probate Court,” and for their services paid $50, and caused him to have made an abstract of title to the lands at an expense of $35. And he asked for judgment against the defendant for the sum of $210.
The defendant being a non-resident of this State, the plaintiff caused a warning order against her to be made and published, and sued out an order of attachment, and caused it to be levied on certain lands as the .property of the defendant.
The defendant answered, and admitted that she agreed to pay to the plaintiff five per cent, commissions on the price of land if he sold; denied representing to him that the lands belonged to her; admitted that she received the $50 from the plaintiff; denied authorizing plaintiff to employ attorneys or to pay for their services.
The parties waiving a jury, the issues were tried by the court. After hearing the evidence adduced by the parties, the court found that the defendant employed the plaintiff to sell the lands, and agreed to give him five per cent, commissions on the amount of the purchase price; that he sold the lands for $1,500, and that she is indebted to him therefor in the sum of $75; that $50 of the purchase money was paid to her; that an abstract of title to the lands was made, for which plaintiff paid $35; and that she is indebted to him in the sum of $75 on account of sale, in the sum of $50 on account of part of the purchase money paid, and in the sum of $35 for abstract; and rendered judgment against her in favor of the plaintiff for $171, and .sustained the attachment. Defendant appealed.
There is no evidence to show that appellee was authorized to procure an abstract of title to the lands, or that appellant agreed to pay for it. All that appellant promised to pay appellee for his services was five per cent, commissions on the amount of the sale. The court, therefore, erred in finding that appellant was indebted to appellee for the abstract. In othe-r respects the evidence sustains the findings of the court. The order of attachment being lawfully sued out, the appellant was liable for the cost of the attachment. The appellee was entitled to a judgment for $125 and six per cent, per -annum interest from day on which this action was commenced, and for costs.
The judgment of the circuit court is reversed, and the cause is remanded, with instructions to tíre court to enter, a judgment in accordance with this opinion. | [
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Josephine Linker Hart, Judge.
In this appeal, appellant J Judy Weatherly questions the division of both marital and nonmarital property and debts in a divorce decree. Specifically, she challenges the trial court’s award of a ring to appellee, the court’s offset of improvements to appellant’s nonmarital property against marital property, and the court’s refusal to divide her medical bills between the parties. We reverse and remand the court’s award of the ring and affirm in all other respects.
Appellant and appellee James Weatherly were married on October 24, 1998, and separated on October 27, 2001. Appellant filed for a divorce and sought a division of the personal property and debts accumulated during the marriage. In response, appellee admitted that there were personal property rights and debt obligations to be adjudicated. He also argued entitlement to a benefit based on the expenditure of marital funds that were spent on the residence appellant owned prior to the marriage.
At trial, appellant testified that, before the marriage, appellee purchased a wedding ring. She stated that she and appellee went to the jewélry store, and while she may have gone into the store with him, she waited outside while appellee discussed the purchase of the ring with the store owner. When appellee came out of the store, he placed the ring on her finger. She told him she could not accept it because she was not expecting it. He then said it was a friendship ring, though he later told other people that it was an engagement ring. She testified: “[W]ejoked about it, that if we got married that I could keep it.” Appellant testified that there was an oral agreement, made shortly after she was given the ring, that it would go to appellee’s daughter Jamie Blankenship upon appellant’s death but that she was never told that the ring was to be Jamie’s. She noted that the ring was sized for her hand and was too small for Jamie. She also asserted that she had not taken the ring off from the time he gave it to her except to add a ring guard. According to appellant, the parties never discussed what would happen with the ring if they divorced. Appellant admitted telling Jamie that she would devise the ring to her.
Appellant also testified that she made payments with marital funds on furniture purchased both before and after the marriage. She stated that the parties lived in her residence during the marriage, with mortgage payments being made from her separate account. She also stated that appellee was in the logging business and purchased a skidder during the marriage for $20,000, along with various tools and equipment valued at $800. She further asserted that, prior to the marriage, she purchased a lawn mower valued at $2,800 and a tiller valued at $670. Other lawn equipment was purchased during the marriage.
Appellant also said that appellee purchased with the proceeds from an accident settlement a 2000 Toyota truck costing approximately $30,000. She stated that in 1999 she paid off her truck with marital funds. She asserted that, during the marriage, they had separate checking accounts and savings accounts, as well as several joint accounts. She admitted that marital funds were used to make payments on an addition to her house. Appellant also stated that appellee owned real property prior to the marriage, that the property was continuously rented for $500 to $600 or $650 a month during the marriage, and that he put the rental income into either a joint account or his logging business account.
Appellant also testified that she had been hospitalized and had undergone surgeries during the marriage because of her “nerves.” She admitted that she had some “nerve” problems prior to the marriage. She stated that she owes one of the hospitals $11,000 and has over $22,000 in other medical bills.
Richard Masters, the owner of the jewelry store, testified that, after appellee saw the ring mounting in the store, appellee told him that each of his girls had a ring that belonged to his first wife and that he wanted to do something for Jamie. Masters stated that appellee paid a total of about $5,000. He stated that it was worth approximately $8,500 but that the retail price would be more than that. He also stated that appellee was alone when he purchased the ring. While Masters remembered measuring appellant’s finger, he did not know if she had the ring on in the store. Masters asked appellee if it was to be an engagement ring, and he stated that it was Jamie’s ring. Masters also testified that he made a wedding band for that ring.
Jamie Blankenship testified that appellant offered to devise the ring to her. She told appellant that she did not want to get into the middle of a dispute and that it was not her place to comment on the matter. Jamie also testified that she spoke about the ring with appellee and appellant after they married. They told her that the ring was to be hers. She also said that they did not say that she would get the ring after appellant’s death but only that it was hers and she was to get it.
While testifying about the parties’ property, appellee said that appellant wrote checks out of their joint account. He also confirmed appellant’s testimony about the skidder, but he added that he only has a one-half interest in it. He valued the skidder at $5,000, even though he paid $20,000 for it. Appellee testified that he wrecked the 2000 Toyota truck and that the parties paid for appellant’s vehicle during the marriage. The parties, he said, made improvements to appellant’s pre-marital residence, including installing water meters costing $975, pipe lines costing $2,000, a septic tank costing $1,000, and repairing two house trailers and a small office. Appellant also put an addition on her residence, but he did not help her with the cost of the addition. He also testified that a floor, a sink, and cabinets were placed in one of appellant’s house trailers for about $500, and “vinyl rugs” were placed in the house trailers at a cost of $1,000. He also admitted renting his property, making at least a $200 monthly profit. He offered no testimony concerning his intentions about the ring.
The trial court ruled that appellant had a life estate in the ring, which the court valued at $1,105.14, and ordered appellee to pay that amount to appellant. Appellant was ordered to return the ring to appellee. The trial court also ordered the furniture sold, with appellant to receive the first 26% of the proceeds as compensation for money she paid for the property prior to the marriage and the remaining 74% to be divided equally between the parties. The trial court found that appellee had spent $11,525 to improve appellant’s nonmarital real property. In exchange for that interest, appellee was allowed to keep his tools, a table saw, his choice of one sewing machine and one range, and the skidder, as well as his clothes, a television, and a hair dryer af appellee’s residence. Appellant was awarded the other sewing machine, a range, and lawn equipment. Appellee’s rental property was found to be his separate property and was awarded to him. The trial court stated that an unequal division of the marital property was being made in appellant’s favor. A decree memorializing these findings was entered on May 5, 2003. This appeal timely followed.
The supreme, court has recently discussed the standard of review for the division of property in a divorce case:
On appeal, chancery cases, such as divorces, are reviewed de novo. With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. In order to demonstrate that the chancellor’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony.
Gray v. Gray, 352 Ark. 443, 453-54, 101 S.W.3d 816, 821 (2003) (citation omitted).
Appellant first argues that the trial court erred in returning the ring to appellee. The trial court held that appellee made a gift of the ring to appellant. It is clear that appellee made some sort of gift to appellant and that appellee thereby divested himself of any interest in the ring. Therefore, we agree that the trial court erred in awarding the ring to appellee. We recognize that the interest that third parties may have in the ring remains unresolved. Given, however, that such parties have not been joined in the present case, the existence and extent of any such interests cannot be resolved in the present proceeding.
As her second point, appellant argues that the trial court erred in giving appellee credit against other marital property for money spent on her separate property. Citing Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993), she argues that, because the money he spent on her pre-marital house did not increase the value of house, the court erred in offsetting the amount of the improvements against other marital property. Box, however, actually supports the court’s decision.
The increase in value of property acquired prior to marriage is not marital property. Ark. Code Ann. § 9-12-315(b)(5) (Repl. 2002). The statute, however, further allows a trial court the flexibility to distribute both marital and nonmarital property in order to make an equitable division of marital property. Ark. Code Ann. § 9-12-315(a)(2); Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003); Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Here, the trial court found that the appellee was entitled to some benefit by reason of marital funds having been used to improve the appellant’s property. That benefit came when the trial judge awarded appellee almost all of the marital property after the furniture was sold. See Box, supra; Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983); Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986). Given the evidence presented at trial, we cannot say that he erred.
For her third point, appellant asserts that the trial court erred in not dividing the medical bills she incurred during the marriage. Appellant asserts that, to make an equal division of the assets, the liabilities must also be equally divided. In essence, she argues that, because marital property must be divided equally unless the court finds that such a division is inequitable, see Ark. Code Ann. § 9-12-315 (Repl. 2002), it also requires that the division of debts be treated the same way. This court, however, has held that the statute does not apply to the division of marital debts and that there is no presumption that an equal division of debts must occur. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003); Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001).
Appellant testified that she owed $11,000 to one hospital and over $22,000 in other, unspecified medical bills. But, she also testified that she had these same problems before the marriage, but neither her testimony nor any medical bills were introduced to indicate which bills were incurred after the parties married. It was appellant’s burden to produce sufficient evidence to enable the trial court to divide the medical bills, and she failed to meet that burden. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Thus, we cannot say that this finding is clearly erroneous. We affirm on this point.
Affirmed in part; reversed in part.
Pittman and Robbins, JJ., agree. | [
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Olly Neal, Judge.
In this appeal from the Washington County Circuit Court, appellant David McElyea challenges “whether the trial court erred in holding that the offense of robbery did not require a specific culpable mental state for the element of employing or threatening to employ physical force.” As we understand appellant’s argument, he submits a challenge to the sufficiency of the evidence convicting him. He also argues that the trial court abused its discretion in denying him the opportunity to make a proper argument to the jury, “thereby denying Appellant a fair trial and due process as guaranteed under the Constitution of the United States and the State of Arkansas.” Because there was no evidence in the record to support appellant’s arguments, we affirm.
Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Payne v. State, 86 Ark. App. 59, 159 S.W.3d 804 (2004); Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Saulsberry v. State, supra.
Derek Brown, a Wal-Mart loss-prevention associate, testified that, as he entered Wal-Mart and passed through sporting goods, he observed appellant. Brown stated that appellant selected a Pur water purifier, walked towards the back of the store, and dropped the water purifier on the floor. When appellant bent over to pick up the purifier, Brown saw “a bulge in the back of [appellant’s] jacket[.]” Brown followed appellant as he walked towards the front of the store. Appellant placed the water purifier into his shirt and proceeded to leave the store.
Brown confronted appellant on the sidewalk and identified himself as a Wal-Mart loss- prevention employee. Brown testified, “I showed him my badge, [and] I asked for our merchandise back.” Brown noted that appellant was “pretty nervous.” Brown stated that appellant took one purifier out, dropped it on the ground, and told Brown “that’s all I’ve got, leave me alone or give me a break or something to that effect.” Brown requested that appellant return to the store so that the necessary paperwork could be completed. Appellant attempted to abscond. Thereafter, Brown noted:
I then turned, grabbed him by the jacket[;] it happened pretty quick, I think his right arm came out of the jacket first and then he spun around to where he was facing me and his left arm came out, he dropped the other water purifier and a bottle of lotion. At that time I stumbled and almost fell, caught myself, ran into the parking lot. I pursued him far enough to get a tag number and a make of car and called that into the police immediately.
Brown testified that appellant struck him so hard across the nose that his eyes began to water. Brown acknowledged that he did not know when exactly appellant struck him because it happened so quickly. On cross-examination, Brown stated that he did not state in his report that he was struck, but that appellant struck him and that he told several members of management that he was struck. Brown testified that “I can’t say if it was intentional, only he can tell you that.” Brown further testified that he informed Officer Phillips that he had been hit during the struggle.
Officer Kevin Phillips testified that he responded to the call at Wal-Mart and that he spoke with Brown about the shoplifting incident. Phillips noted that Brown told him appellant struck him and Phillips observed that Brown’s eyes were watery and that Brown had a red mark across his nose.
At the conclusion of the State’s case-in-chief, appellant’s counsel moved for a directed verdict, arguing:
Your Honor, at this time the Defendant would move for a directed verdict on the grounds that the State has presented insufficient evidence to establish that there’s a robbery that’s been committed. I think that they have to prove both elements of the offense, one, that there was a theft and two, that there was the element of use of force with the intent to commit the theft or apprehension in getting away and I don’t think they’ve risen to the level of showing that there’s been sufficient physical force to meet that element and for those reasons I move for a directed verdict on those grounds.
The trial court denied the motion. Appellant renewed his motion at the close of the evidence, and the trial court denied his motion. Appellant was subsequently convicted and sentenced to eight years’ imprisonment in the Arkansas Department of Correction. This appeal followed.
Not at issue is the undisputed fact that appellant committed a theft while inside the Wal-Mart store. Nevertheless, Derek Brown testified that appellant struck him across the nose, an act that elevated appellant’s charge to a robbery. Under Arkansas Code Annotated section 5-12-102 (Repl. 1997), “a person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” “Physical force” means any bodily impact, restraint, or confinement or the threat thereof.” Ark. Code Ann. § 5-12-101 (Repl. 1997).
Appellant advances the following argument:
It is disputed . . . whether Appellant ever intended to use force against the store employfee] to further his escape. There is no evidence that Appellant ever threatened the store employee, and the only evidence of bodily contact was the testimony of the store employee of Wal-Mart who never mentioned being struck in any of his store reports and even upon reviewing the store surveillance video could not identify exactly when and with which hand he was struck across the nose. Further, he could not tell if his being struck was an intentional act by appellant.
Appellant’s argument is misplaced. For purposes of the robbery statute, it is immaterial whether appellant ever intended to use physical force against Brown to further his escape. We hold that the word “purpose” found within the robbery statute relates only to the acts of “committing a felony or misdemeanor theft or resisting apprehension” and does not, as appellant urges, provide that the employment of physical force or the threat thereof be purposeful.
For purposes of the statute, physical force means any bodily impact. See Ark. Code Ann. § 5-12-101 (Repl. 1997) (emphasis added). Here, the testimony from Brown is that appellant struck him in the nose. This testimony is corroborated by Officer Phillips’s testimony that Brown told him appellant struck him. It is further corroborated by Phillips’s testimony that Brown’s eyes were watery and that Brown had a red mark across his nose. It is well-established that we do not weigh evidence presented at trial or weigh the credibility of witnesses, as these are matters to be resolved by the finder of fact. Garner v. State, 82 Ark. App. 496, 122 S.W.3d 24 (2003). Furthermore, a criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Since intent cannot be proven by direct evidence, members of the jury are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003) (citing Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002)). Accordingly, we affirm on this point.
Appellant also appears to assert that the court abused its discretion by denying him the opportunity to make “proper” argument to the jury during closing. He asserts that the court concluded that no mens rea was necessary for the physical force employed in a robbery. As the State correctly asserts, this is an inaccurate categorization of the court’s ruling.
During closing arguments, defense counsel stated in part that “[t]his is a shoplifting case and that’s really all that it is. And it should be prosecuted as a shoplifting. What this isn’t is strong arm robbery. You know robbery, you’ve got to have the intent to be using physical force or — [.]” The State objected, stating, “Your Honor, that’s not the law.” The court sustained the objection. Defense counsel continued his closing argument, arguing:
To sustain this charge, the State must prove beyond a reasonable doubt that with the purpose of committing a theft or resisting apprehension immediately thereafter that David McElyea employed or threatened to immediately employ physical force upon another. He ran out of his coat. I don’t think it’s robbery. Physical force, any bodily impact, restraint],] or confinement. But remember what purpose is, its definition is provided also. A person acts with purpose with respect to his conduct when it is his conscious object to engage in that conduct. Derek Brown testified, he’s already told us nobody can be certain that he ever intended to get hit, this wasn’t his conscious object.
Again, the State objected and the trial court sustained the objection, stating, “Yes, I’m going to sustain the objection. I’ve ruled on this issue now for the third time and you know better than that.” The court informed the jury that it would take a recess.
During recess, the court explained its ruling to defense counsel by stating:
Now Mr. Stutte [defense counsel],. I’ll explain my ruling. There’s absolutely no evidence in the record that this, the factual dispute is this: Whether or not physical force had been used. You maintain that it wasn’t, the State maintains that it was. There’s absolutely no evidence in the record of any unintentional conduct by this Defendant. Therefore, you’re arguing facts that are outside the record and I’m not going to permit it. That’s my ruling. The instruction speaks for itself.
Defense counsel also requested permission “to argue the jury instruction and my interpretation of those jury instructions and that purpose as a mental state with regards to the second element of robbery is required.” The court informed defense counsel that “I understand your point, counsel. Again, my response to this argument, is to make that argument you’re arguing facts that are outside the record and I’m not going to permit you to do it. It’s just that simple. Now let’s proceed. Bring in the jury.”
Here, the court explained that it sustained the State’s objection because there was no evidence in the record to support the defense’s assertion that appellant did not intend his conduct. We do not take notice of gratuitous assertions based on matters not in the record. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). Nor are arguments proper which are outside the record or have no evidentiary support. Wilkens v. State, 261 Ark. 243, 547 S.W.2d 116 (1977). Because there was no evidence in the record to support defense counsel’s assertion that appellant did not intend to strike appellant in the nose and because determinations of fact are for the jury, we find no error and affirm.
Affirmed.
Pittman, J., agrees.
Baker, J., concurs.
We were unsuccessful in our attempt to certify this case to the supreme court. | [
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Wendell L. Griffen, Judge.
Paul Mashburn appeals from the trial court’s decision to revoke his probation for failure to register as a sex offender. Appellant contends that the trial court erred by interpreting Ark. Code Ann. §§ 12-12-904 (Repl. 2003) and 12-12-903 (Repl. 2003) as not allowing a thirty- day grace period for reporting a change of employment and by misinterpreting Ark. Code Ann. § 12-12-904(a)(2)(B) in light of the provisions of Ark. Code Ann. § 12-12-1303 (Repl. 2003). We affirm.
Appellant moved to Van Burén, Arkansas, after being convicted as a sex offender in Oklahoma. Appellant later pled guilty to failure to register as a sex offender on May 24, 2001, and was sentenced to six years’ imprisonment with four of the years suspended. After he was released from prison, appellant registered as a sex offender. At the time appellant registered with the Van Burén Police Department, he was residing at 15 Fayetteville Road, Apt. #1, and he worked at O.K. Foods.
On May 14, 2003, Steve Weaver, a detective with the Van Burén Police Department, noticed that a report had been filed against appellant. The person who filed the report listed her residence as the same residence given to the police department by appellant. Officer Weaver checked with the Sheriffs office and found out that the Sheriffs office served appellant an eviction notice on April 7, 2003. On May 14, 2003, Officer Weaver located appellant at a location near Interstate 40 and Highway 59 and arrested him for failure to register as a sex offender.
Officer Weaver also contacted O.K. Foods and learned that appellant’s last day in that employment was April 18, 2003. According to appellant, he was living in his car at the time he was arrested. At a revocation hearing, the trial court concluded that appellant violated Ark. Code Ann. § 12-12-904(a)(l) by failing to report a change in employment and by refusing to cooperate with the assessment process by intentionally failing to establish a residence in order to avoid the reporting requirements. The trial court revoked appellant’s probation, and sentenced him to thirty-six months in the Arkansas Department of Correction.
In a revocation hearing, the State has the burden of proving a violation of a condition of probation or the suspended sentence by a preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). On appeal, we will uphold the trial court’s findings unless they are clearly against the preponderance of the evidence. Id. We defer to the trial court’s superior position for questions of credibility and weight to be given to testimony. Id.
Arkansas Code Annotated section 12-12-909(b)(l) (Repl. 2003), clearly states that before a change of address within the state, a sex offender shall report the change of address to the center no later than ten days before the offender establishes residency or is temporarily domiciled at the new address. (Emphasis added.) The legislature defined a “change of address” in Ark. Code Ann. § 12-12-903(4) in the following way:
(4) “Change of address” or other words of similar import mean a change of residence or a change for more than- thirty (30) days of temporary domicile, change of location of employment, education or training, or any other change that alters where an offender regularly spends a substantial amount of time.
(Emphasis added.) Arkansas Code Annotated section 12-12-904(a)(l) says that a person who fails to report changes of employment or who refuses to cooperate with the assessment process will be guilty of a Class D felony. It is an affirmative defense to prosecution if the person provides the new address to the Arkansas Crime Information Center in writing no later than five business days after the offender establishes residency. Ark. Code Ann. § 12-12-904(a)(2)(A)(ii) (Repl. 2003).
Appellant does not dispute that he was unemployed from April 18, 2003, until he was arrested on May 14, 2003. However, appellant argues that he was allowed thirty days to report his change of employment under Ark. Code Ann. § 12-12-903(4). Appellant also cites Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002), and the thirty-day provision that applies to sex offenders moving to or returning to this state from another jurisdiction.
In Williams, the defendant had returned to Arkansas from Arizona, but failed to register in Arkansas. According to Ark. Code Ann. § 12-12-906(a)(2)(A), a sex offender returning to Arkansas from another jurisdiction has to register no later than thirty days after the offender establishes residency in a municipality or county of the state. Since the defendant in Williams was returning from Arizona he had thirty days to register. In the present case, appellant’s previous job was in Arkansas, so Ark. Code Ann. § 12-12-906(a)(2)(A) is not applicable.
Similarly, Ark. Code Ann. § 12-12-903(4) is only relevant to this case because it defines a change of address to include a change in the location of employment. The provision does not give a thirty day grace period for a sex offender to report a change in employment. The statute defines a change of residence to. include a change for more than thirty days of temporary domicile. The term “more than thirty (30) days” only modifies temporary domicile, and is not relevant to when a sexual offender is required to report a change in the location of employment.
Arkansas Code Annotated section 12-12-909(b)(l) is the controlling statute in this case, and it requires a sex offender to report a change in employment no later than ten days before the offender establishes new employment. According to Ark. Code Ann. § 12-12-904, it is an affirmative defense to prosecution if the delay in reporting the change is caused by an eviction, a natural disaster, or any other unforseen circumstance, and the person provides notice of the change within five business days after new employment is established. Appellant did not assert an affirmative defense for failure to register his change in employment. In addition, he did not prove his entitlement to an affirmative defense.
We examine acts in their entirety, and we reconcile provisions to make them consistent, harmonious, and sensible in order to give effect to every part of the statute. Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994). Arkansas Code Annotated section 12-12-909 requires sex offenders to report changes in employment ten days before they occur. Arkansas Code Annotated section 12-12-904 provides sex offenders with an affirmative defense if they notify authorities no later than five days after changing employment. Reading the two statutes together makes it clear that appellant should have notified authorities ten days prior to changing employment, absent an affirmative defense. The legislature requires sex offenders to report changes in employment, and the loss of employment constitutes a change. Accordingly, the trial court did not err in interpreting Ark. Code Ann. §§ 12-12-904 and 12-12-903 as not allowing a thirty-day grace period for reporting a change in employment.
Appellant’s second point is that the trial court erred in finding that he violated Ark. Code Ann. § 12-12-904(a)(2)(B) by refusing to cooperate with an assessment. We need not address appellant’s second point on appeal. In order to revoke appellant’s suspended sentence, the State only had to prove appellant violated one condition of the suspended sentence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). We hold that appellant violated a condition of his suspended sentence when he failed to report his change in employment.
Affirmed.
Gladwin and Bird, JJ., agree. | [
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Wendell L. Griffen, Judge.
William Stroud appeals from the trial court’s order finding that his consent to the adoption of his son was not necessary because Stroud exceeded the period of time allowed by law in which to either support or to have substantial contact with his child . Appellant alleges that the trial court erred in ruling that the requirements set forth in Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) were not applicable to this case because the effective date of the statute was after the date of the parties’ divorce decree. We hold that the statute was not effective on the date that appellant’s child support order was entered and the statute is not applicable to this case. Thus, we affirm.
Appellant was the natural father of the minor that is the subject of this dispute, B.S., born on January 22, 1998. At the time of the minor’s birth, appellant was married to the child’s natural mother Melissa Stroud. Melissa and appellant were divorced by a decree of the Saline County Chancery Court on May 3, 2001. Melissa was given custody of the child, and appellant was ordered to pay child support.
After the parties were divorced, appellant saw his child for the last time on either February 14 or February 15, 2001. According to Melissa Stroud, he never made any effort to see the child after that date. Appellee Delane Cagle, Melissa’s mother and the child’s maternal grandmother, filed a petition for adoption on May 14, 2002, because appellant’s biological son requires speech and occupational therapy and does not have, insurance coverage. Appellant was served with notice of the adoption papers on May 15, 2002. On June 28, 2002, appellant paid $4,000 in child support. This was the first time he paid any support for the child.
Onjuly 23, 2002, the trial court found as a matter oflaw that appellant’s consent to the adoption was unnecessary, and proceeded with the adoption hearing without his consent. Appellant appealed this order to the court of appeals, but we dismissed the appeal because the order from which appellant appealed was not final. The final order was filed on June 4, 2003. The final order of adoption awarded appellees legal custody and rights for all legal purposes to appellant’s biological son.
We review equity cases de novo on the record, but we do not reverse unless we determine that the trial court’s findings were clearly erroneous. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000). Findings of fact shall not be set aside unless clearly erroneous. Id. We defer to the trial court’s superior position to determine the credibility of the witnesses. Id. A trial court’s interpretation of a statute is reviewed de novo. It is for the appellate court to decide what a statute means. Nationsbank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). Where the language of the statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).
Appellant’s only point on appeal is that the trial court erred in ruling that the requirements set forth in Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) were not applicable to this case because the effective date of the statute occurred after the date of the parties’ divorce decree. Ark. Code Ann § 9-9-220(c) (Repl. 1999) provided that the relationship of parent and child may be terminated by court order for abandonment. Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) added the following language found in subsections (c)(1)(A)-(C):
(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the noncustodial parent.
(B) If the notification clause required by subdivision (c) (1) (A) is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.
(C)(1) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.
(2) Once the requirements under subdivision (c)(l)(C)(l) are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.
(3) The court may terminate parental rights of the noncustodial parent upon a showing that:
(I) child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1) (C)(1); and
(ii) It would be in the best interest of the child to terminate the parental relationship.
The trial court ruled that this statute did not apply to appellant’s case because of the date that the divorce decree was entered. More specifically, the child-support order was a part of the May 3, 2001 divorce decree. The statute did not take effect until after that date. Thus, the trial court reasoned that the statute did not apply. We agree with the trial court.
In order to determine whether the statute applies to this case, we must ascertain the date the statute went into effect. Ark. Code Ann. § 9-^-220(c)(l)(A)-(C) (Repl. 2002) was origi nally Act 1779 of 2001. Pursuant to Amendment 7 of the Arkansas Constitution, Acts of the General Assembly that do not contain an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370, 20 S.W.3d 370 (2000). Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) does not have an emergency clause or a specified effective date. Act 1770 was approved on April 18, 2001, so it became effective after August 13, 2001. This was subsequent to the filing of appellant’s divorce decree.
Appellant argues that the statute should govern because it was in effect at the time of the filing of the May 14, 2002 Petition for Adoption and the statute does not state whether it should be applied retroactively or prospectively. Absent notice in the child-support order, the statute provided that the noncustodial parent would have three months from the filing of the petition to pay a substantial amount of the past due child-support payments and to establish a relationship with the child. The date on which the child-support order was filed governs whether Ark. Code Ann. § 9-9-220 is applicable. In this case, the order for child support was included in the original divorce decree. Therefore, the date of the divorce decree governs.
The legislature intended for those non-custodial parents whose child support orders were entered after August 13, 2001, to be affected by Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002). Our law is clear that absent language in the legislative act to the contrary, statutes affecting substantive rights are to be given only prospective application. Dover v. Barton, 337 Ark. 186, 987 S.W.2d705 (1999). Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) was meant to apply prospectively from August 13, 2001, not retroactively to May 3, 2001, the date the divorce decree was entered.
The trial court’s ruling was not clearly erroneous. Ark. Code Ann. § 9-9-220(c)(l)(A)-(C) (Repl. 2002) was not applicable to appellant’s case. Thus, we affirm.
Affirmed.
Pittman, Neal, Baker and Roaf, JJ., agree.
Hart, J., dissents.
This is a subsequent appeal from Stroud v. Cagle, 2003 WL 1901124 (Ark. App. April 16, 2003) CA02-1215, which the court of appeals dismissed because the order from which the appeal was taken was not a final order. The final hearing was held on May 30, 2003. The final order was filed on June 4,2003. | [
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Sam Bird, Judge.
Donald Heape was tried before the bench in the Pulaski County Circuit Court on the charge of committing sexual indecency with a child. He was convicted and was sentenced to thirty-six months’ probation and a fine of $250. On appeal he challenges the sufficiency of the evidence. Under Arkansas Code Annotated section 5-l'4-110(a)(l) (Supp. 2001), a person who is eighteen years old or older commits the crime of sexual indecency with a child if “the person solicits another person who is less than fifteen years of age. . . to engage in sexual intercourse, deviate sexual activity, or sexual contact.” Appellant contends on appeal, as he did below in motions for a directed verdict, that statements he made to a fourteen-year-old girl did not constitute a solicitation. We disagree and therefore hold that the evidence was sufficient to uphold the conviction.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544, (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. The longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does so is a question for the fact finder. Id.
The events from which the charge arose occurred on September 3, 2002, when appellant was thirty years old. Rachel Willingham testified that on September 3 she went next door to babysit in the evening, as she usually did each week; Rachel was fourteen at the time. Rachel testified that her next-door neighbors were appellant Donald Heape, Mr. and Mrs. Heape, and their two grandchildren, boys around ages five and seven. (Mrs. Heape testified that Donald was her son.) Rachel stated that she arrived at the Heapes’ home, that Mr. and Mrs. Heape left, and that Donald came to the residence about forty-five minutes later. Rachel testified that Donald came up behind her while she was in the kitchen getting ice cream for the boys and said to her, “I’ll pay you five-hundred bucks if you’ll have sex with me.” Rachel further testified:
I kind of shook my head and pretty much just walked away. Right after that, he was on the porch. He told me to come out on the porch for a second and I did. He said, “You know I was just kidding.” When I said okay, he said, “But I’ll pay you a thousand to do it.” I again told him no and he said, “Oh, I’m just kidding. I’m just kidding.” I did not think he was kidding. I felt very uncomfortable.
This was near the end of the time when I was babysitting the kids. Donald told the kids that they-had a really good babysitter and to give me a kiss. They said they did not want to do that. Donald said,“Oh, it’s easy.Just do this,” and then he kissed me on more my neck [sic], and that was it.
Rachel testified that she walked home after Mr. and Mrs. Heape returned; that although Mrs. Heape came and asked her if Donald had hurt her or if anything had happened, she told Mrs. Heape that she was “just uncomfortable” and did not say what had happened; but that she eventually told her mother.
Rachel testified that when Donald said that he would give her $500 to have sex with her, she understood that to mean sexual intercourse; and that she took his request to be a serious one. She stated that she had never seen anyone intoxicated and did not know if he was intoxicated, but that he was drinking beer and was sitting in a corner drinking beer when Mr. and Mrs. Heape got home. On cross-examination she testified: “He did not say to me, ‘Will you have sex with me for $500?’ He said, ‘I would pay $500 to have sex with you.’ That was a fair statement.” She also stated that she did not think that she would be raped or that anything bad would happen, that Donald produced no money and took no overt action to have sex with her, and that she just wanted to get out of there.
Sherry Shaw, Rachel’s mother, testified that Mrs. Heape told her during initial arrangements about babysitting that Donald had a house key but that Mrs. Heape did not expect him to come in at any time, and that Mrs. Heape said that no males would be allowed in the house during babysitting. Ms. Shaw also testified that she talked to Rachel about “the birds and the bees” and had instructed her to inform an adult if inappropriate contact were to happen.
Ms. Shaw testified that Mrs. Heape telephoned her to say that there was something she should know about Rachel’s babysitting on September 3; that Mrs. Heape asked if Rachel had said anything, to which Ms. Shaw replied no; and that Mrs. Heape said that Donald had come home while Rachel was babysitting. Ms. Shaw testified that while driving home from a football game three days later, she asked Rachel if there was something she wanted to talk about. Ms. Shaw testified that she persisted when Rachel hesitated; that Rachel said something had happened; that they pulled to the side of the road; that Rachel said that it was hard to talk about; that her mother asked if someone had come in to the house while Rachel was babysitting; and that Rachel said yes and told her mother what had happened.
Mrs. Heape testified that when she and her husband returned from choir practice on September 3, her grandsons and Rachel were on the couch watching television, and Donald was talking on the telephone at the desk with his feet propped up, was drinking beer, and was extremely intoxicated. Mrs. Heape testified that Rachel and the kids said hi; that Rachel said yes when Mrs. Heape asked if everything was okay; that Mrs. Heape walked Rachel into the garage and asked if she was okay, and Rachel said she was; and that Rachel was very calm, was not crying, and just smiled. Mrs. Heape testified that she did not know then about an inappropriate comment.
Appellant contends that the evidence was insufficient to show that he made a solicitation or intended to do so. He notes that for several days Rachel did not tell anyone about his requests for sex although she testified that she thought he was not kidding. He points to Rachel’s testimony that he actually said “I would pay you to have sex with you” and not “Will you have sex with me for $500?”; that he took no overt actions to follow through; and that she did not think that he would rape her or that anything bad was going to happen. He notes testimony that Rachel had been instructed to tell an adult when something inappropriate happened but that she said nothing until her mother pressed her. He also notes testimony that although he was extremely intoxicated that night, Rachel seemed calm and told his mother that everything was okay.
Appellant cites W. LaFave, Substantive Criminal Law § 11.1(b) to suggest that false charges of solicitation may result from a misunderstanding as to what the defendant said. Appellant argues that a rhetorical question may appear to be a solicitation. He frames the issue before us as whether Rachel knew what was said. He contends that circumstantial evidence made it as likely that he made his statement in the subjunctive, i.e., “I would have sex with you for $500,” as that he asked Rachel to have sex with him for $500 or $1000. Noting the presumption that a person intends the natural and probable consequences of his acts, see Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002), he concedes that intent would be proven “if the State proved that what was said was actually a solicitation seriously proposing sex for hire from this fourteen year old girl.”
Appellant’s reliance upon subsection 11.1(b) is misplaced. The introductory paragraph to Section 11.1 of Wayne R. LaFave, Substantive Criminal Law (3d ed. 2004), entitled “Common Law and Statutes,” includes the following statement:
For the crime of solicitation to be completed, it is only necessary that the actor with intent that another person commit a crime, have enticed, advised, incited, ordered or otherwise encouraged that person to commit a crime. The crime solicited need not be committed.
Id. at 189 (footnotes omitted, emphasis added). Appellant was not charged under our criminal code with the offense of solicitation, and the abstract shows no argument at trial that the victim herself was encouraged to commit a crime. Appellant was charged with and convicted of sexual indecency with a child, which includes the element of soliciting a person less than fifteen years old to engage in sexual intercourse, deviate sexual activity, or sexual contact.
Both appellant and the State rely upon our recent case of Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003), an appeal from a conviction for solicitation to commit capital murder, where we wrote:
The crime of solicitation requires neither a direction to proceed nor the fulfillment of any condition. It is, in essence, asking a person to commit a crime. The gravamen of the offense is in the urging. Gardner v. State, 41 Md. App. at 200, 396 A.2d at 311.
Jimenez v. State, supra. Because the present appeal is from a conviction other than the crime of solicitation, we find Jiminez of limited guidance.
The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996). See also George v. State, 358 Ark. 269, _ S.W.3d _ (2004); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003) (citing with approval our decision in Gabrion v. State, 73 Ark. App. 170, 42 S.W.3d 572 (2001), where we stated that “lewd,” which is not defined in our criminal code, is a common word with an ordinary meaning).
Under Arkansas Code Annotated section 5-14-110(a)(l) (Supp. 2001), as noted previously in this opinion, a person commits sexual indecency with a child if the person solicits another person who is less than fifteen years of age. . . to engage in sexual intercourse, deviate sexual activity, or sexual contact. The definitions of the verb “solicit” in Webster’s Third New International Dictionary 2169 (1993) include the following:
3 : to make petition to : entreat, importune . . . ; esp : to approach with a request or plea (as in selling or begging). . .
4 : to move to action . . .
7 : to endeavor to obtain by asking or pleading : plead for ...; also to seek eagerly or actively
10 : to serve as a temptation . . . [,]
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Jimenez v. State, supra. Here, the evidence reviewed in such a light shows that appellant offered the fourteen-year-old victim money in exchange for sex. She understood that he meant sexual intercourse, and she took his request to be a serious one. The fact finder clearly could have found from appellant’s words and actions that, within the ordinary meaning of the word “solicit,” he solicited the child to engage in sexual intercourse, activity, or contact. Therefore, we hold that the evidence was sufficient to show that appellant, by offering the girl money in exchange for sex, solicited her to engage in sexual intercourse, deviate sexual activity, or sexual contact.
Appellant also directs us to the requirement of culpability. When a statute does not prescribe a culpable mental state, as is the case here, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly. Ark. Code Ann. § 5-2-203 (Supp. 2001). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1).
We find no merit in appellant’s argument that he was merely rhetorically questioning the fourteen-year-old girl about sex rather than soliciting her, and that he had no intent to make such a statement. There was testimony that he offered to pay money in exchange for sex, that he offered her more money after she refused him, and that he kissed her on the neck after encouraging the young boys in her charge to kiss her. This constituted substantial evidence from which the fact finder could have found that appellant intended his remarks to solicit sex with the girl. Therefore, we affirm appellant’s conviction for the crime of sexual indecency with a child.
Affirmed.
Crabtree, J., agrees.
Roaf, J., concurs.
Objections to making solicitation a crime or to extending it to such minor crimes as adultery are sometimes based upon the fear that false charges may readily be brought, either out of a misunderstanding as to what the defendant said or purposes of harassment. Wayne R. LaFave, Substantive Criminal Law § 11.1(b) “Policy Considerations,” at 193 (3d ed. 2004) (footnotes omitted). This risk is inherent in the punishment of almost all inchoate crimes, although it is perhaps somewhat greater as to the crime of solicitation in that the crime may be committed merely by speaking. Id.
Under Arkansas Code Annotated section 5-3-301(a) (Repl. 1997), a person solicits the commission of an offense if, with the purpose of promoting or facilitating the commission of a specific offense, he commands, urges, or requests another person to engage in specific conduct which would:
(1) Constitute that offense;
(2) Constitute an attempt to commit that offense;
(3) Cause the result specified by the definition of that offense; or
(4) Establish the other person’s complicity in the commission or attempted commission of that offense.
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Wendell L. Griffen, Judge.
Teresa Brooks appeals the trial court’s modification of her original decree of divorce and child custody and visitation agreement. Appellant argues that the circuit court erred in finding that a material change in circumstance occurred by virtue of the Fourth Judicial District’s adoption of a new “suggested visitation schedule.” As a result of the change, the court modified appellant’s visitation agreement. We hold that subsequent adoption by the court of a new visitation schedule was not a material change of circumstance to justify the modification of the divorce decree and child visitation agreement. Thus, we reverse and remand this case for further proceedings consistent with this decision.
Appellant and appellee Stephen Brooks were divorced in the Washington County Circuit Court on July 10, 1998. Appellant and appellee had three minor children, Jerrod, Lauren, and Jacob Brooks. Appellant was given full custody of Lauren and Jacob, and appellee was given full custody of Jerrod. The divorce decree included the following language concerning visitation:
Visitation shall be in accordance with this Court’s standard visitation order. Visitation dates are to be arranged in such a manner as to permit all of the children to be together with each of the parties during each visitation session.
The parties exercised visitation pursuant to the court’s standard visitation order for five years. While under the standard visitation schedule (“old schedule”), appellant and appellee did not have any problems. They were able to work around difficult situations, such as baseball practices, under the old schedule. From the first of March until July, appellant allowed appellee to have an additional hour and thirty minutes of visitation four days out of the week so that he could coach their son’s baseball team.
Under the old schedule, appellant also modified visitation to accommodate appellee for hunting and fishing reasons. In addition, she allowed him to spend additional time with their son Jacob. Appellant also allowed appellee to spend time with the children when she and her husband went out of town. Under the old -schedule, appellee did not exercise any of his visitation between August and October for the two years preceding the hearing because he was busy with his business.
In June 2002, the Fourth Judicial District, of which Washington County Circuit Court is a member, adopted a new suggested visitation schedule. On February 6, 2003, appellee filed a petition for modification in which he requested that his visitation order be modified so as to allow him visitation pursuant to the new suggested visitation schedule that was adopted in June 2002. According to appellee, no change of circumstances occurred over the six-month period before he filed for modification. Appellee opined that the change of circumstance was the fact that the court came up with a new visitation schedule. The new schedule would allow him to spend more time with his children, and he suggested that additional time with him would be in the children’s best interest.
Appellant opposed the new visitation schedule, but on May 23, 2003, the trial court granted appellee’s petition for modification, finding that the trial court’s adoption of a revised suggested visitation schedule constituted a material change in circumstances. The trial court found that the revised suggested visitation schedule was analogous to Administrative Order No. 10 concerning child support guidelines, in that the adoption of new guidelines constituted a material change in circumstances. This appeal resulted.
The standard of review in this case is de novo, but we will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1988). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Burnette v. Perkins & Assoc., 343 Ark. 237, 33 S.W.3d 145 (2000).
We use a rigid standard to determine whether a material change of circumstances exists to justify modification of a visitation order. Modification of visitation rights is not permitted unless there is a sufficient change in circumstances pertinent to visitation. Leonard v. Stidham, 59 Ark. App. 5, 952 S.W.2d 189 (1997). Disagreements between the parties concerning the extent of visitation authorized by an indefinite decree may be resolved by setting out definite visitation rights. Id.
This case does not involve an indefinite decree concerning the extent of visitation. The parties’ divorce decree explicitly states, that “[vjisitation shall be in accordance with this court’s standard visitation order. Visitation dates are to be arranged in such a manner as to permit all of the children to be together with each of the parties during each visitation session.” The court’s standard visitation order set out a detailed visitation schedule for the' non-custodial parent. The following is an example of the provisions under the old schedule:
1. Alternate weekends commencing at 6:00 p.m. Friday and continuing until 6 p.m. Sunday except that all special, holiday and summer visitation as hereinafter set forth shall take precedence. Alternate weekend visitation missed due to conflicts with special, holiday or summer visitation will not be made up.
2. Thanksgiving-Even numbered years, commencing at 6:00 p.m. Wednesday before Thanksgiving and continuing until 6:00 p.m. Sunday.
3. Christmas-Odd numbered years commencing at 6:00 p.m. on the day school dismisses for the Christmas break and continuing until 10:00 a.m. Christmas Day. In even numbered years, commencing at 10:00 a.m. Christmas Day and continuing until 6:00 p.m. the day before school starts.
Neither party testified that he or she did not understand the visitation schedule. To the contrary, there was testimony from appellee that visitation under the old visitation schedule was successful. The parents were working well together, and there were no complaints concerning visitation. Appellee filed for modification because he favored the new visitation schedule recently adopted by the Fourth Chancery Circuit Court and because the new schedule would allow him to spend more time with his children. According to appellee, there was no change in circumstance leading up to his modification motion, but the court’s adoption of a new visitation schedule constituted a material change.
The court held that the standard visitation order was replaced in July 2002 with a new “suggested visitation order,” and the change from the former “standard visitation order” to the current “suggested visitation schedule” constituted a major change in circumstances with respect to visitation in the instant case. At the hearing, the trial judge commented,
I consider this schedule just like Administrative Order No. 10 says, anytime the Child Support Charts are changed, that, in and ofitself, is a material change of circumstances. This schedule is a material change of circumstances in my opinion.
The trial judge was incorrect. There are intrinsic differences between the Fourth Judicial District’s adoption of a new visitation schedule and a change in child support guidelines. First of all, the supreme court adopted Administrative Order Number 10 because the child-support guidelines were subject to change at least every four years. In addition, the child support guidelines are applicable throughout Arkansas and provide consistency among the courts.
Decisions regarding changes in visitation should be based on what has changed in the lives and conduct of the parties and how such changes affect the best interest of the children involved. The change ordered in this case had nothing to do with the lives and conduct of the parties. Therefore, the court’s decision was clearly erroneous. We reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Hart and Roaf, JJ., agree. | [
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L. Griffen, Judge.
This is a medical malpractice action. Christina Harris appeals from the order of the Saline County Circuit Court granting summary judgment in favor of appellee, Dr. Kerry Ozment. Appellant argues that the trial court erred in finding that the action was barred by the applicable two-year statute of limitations set forth in Ark. Code Ann. § 16-114-203 (a) (Supp. 2001). We disagree and affirm the summary-judgment order.
In November of 1989, Rachel Harris, Christina Harris’s mother, elected to undergo Roux-Y gastric-bypass surgery for weight control; the procedure was performed by appellee. In March of 2000, Rachel Harris went to see Dr. Meenakshi Budhraja after she began to experience such physical symptoms as loss of weight, depression, hair loss, skin lesions, extreme fatigue, exhaustion, and kidney and liver dysfunctions. Harris alleged that Dr. Budhraja advised her that she was suffering from severe metabolic and mineral deficiencies stemming from her prior gastric bypass surgery and from the lack of postoperative care she received from appellee.
On February 21, 2002, Rachel Harris filed a complaint against appellee. While Harris did not allege that appellee was negligent in performing the gastric bypass surgery, she did contend (1) that he did not inform her about the postoperative impact or effects of the surgery; and (2) that he was negligent in his postoperative care of her by not placing her on any type of mineral supplements. However, in response to appellee’s request for admissions, Harris admitted that she had not seen appellee in over five years.
Appellee moved for summary judgment on the ground that the action was barred by the two-year statute of limitations set forth in Ark. Code Ann. § 16-114-203(a) (Supp. 2001). On October 3, 2002, the trial court ruled that the action was barred by the two-year statute of limitations, granted summary judgment in favor of appellee, and dismissed Rachel Harris’s complaint. Rachel Harris died while this case was pending, and Christina Harris, Rachel’s daughter, was substituted as party-plaintiff. It is from this order that appellant now appeals.
The law governing our review of a trial court’s grant of summary judgment is well established. Summary judgment should be granted only when it is clear that there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Baker v. Radiology Assoc., P.A., 72 Ark. App. 193, 35 S.W.3d 354 (2000). The burden of sustaining a motion for summary judgment is on the moving party. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). All proof submitted must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Luningham v. Arkansas Poultry Fed’n Ins. Trust, 53 Ark. App. 280, 922 S.W.2d 1 (1996).
Appellant argues that the trial court erred as a matter of law in granting summary judgment in favor of appellee and dismissing this action, contending that the statute of limitations set forth in Ark. Code Ann. § 16-114-203(a) (Supp. 2001) does not bar an action for medical negligence when the resulting damages occurred many years later.
To sustain an action against a medical-care provider for medical malpractice, a plaintiff must have suffered a medical injury. McQuay v. Guntharp, 336 Ark. 534, 986 S.W.2d 850 (1999). A medical injury is defined as any adverse consequence arising out of or sustained in the course of the professional services being rendered by a medical care provider whether resulting from negligence, error, or omission in the performance of such services, or from the rendition of such services without informed consent or otherwise arising out of or sustained in the course of such services. Ark. Code Ann. § 16-114-201(3) (1987). All actions for medical injury must be commenced within two years after the cause of action accrues. Ark. Code Ann. § 16-114-203(a) (Supp. 2001). The date of accrual of the cause of action shall be the date of the wrongful act complained of and no other time. Ark. Code Ann. § 16-114-203(b) (Supp. 2001).
In this case, the complaint alleged that appellee did not inform Rachel Harris about the postoperative impact or effects of the surgery, and that appellee was negligent in his postoperative care of Harris by not placing her on any type of mineral supplements. On appeal, appellant acknowledges that the statute of limitations in a medical malpractice case commences running from the date of the negligent act complained of. Appellant, however, asserts that Harris’s damages or injuries did not accrue until March of2000, and that this action could not have been commenced until there was an injury. Therefore, appellant contends that the two-year statute of limitations did not begin to run until March 2000, and that this action, filed in February 2002, was commenced within two years of the date of the onset of Harris’s damages or injuries.
Under appellant’s theory of applying the statute of limitations from the date of the injury, the statute of limitations would begin to run, not from the occurrence of the negligent act as provided under our current statute, but from the date that the injury, caused by the negligent act, develops or arises. Appellant contends that to hold otherwise would violate Article 2, Section 13, of the Arkansas Constitution requiring that a remedy be afforded in the law. Although appellant argues that this case raises an issue of first impression, this is not. It has long been the law in Arkansas that the statute of limitations begins to run from the date that the negligent act occurred. Green v. National Health Lab., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Baker v. Radiology Assocs., P.A., supra. Moreover, the supreme court in Chapman v. Alexander, supra, specifically declined to abandon this traditional rule for applying the statute of limitations for other rules, such as applying the statute of limitations from the date of injury.
Here, appellee’s alleged act of negligence, failing to inform Harris of the postoperative effects of the gastric bypass surgery, occurred in November 1989, when the surgery was performed. Therefore, under Ark. Code Ann. § 16-114-203(a) (Supp. 2001), appellant had until November 1991 in which to commence a medical malpractice action against appellee. See Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Consequently, the action filed by Harris in 2002 was outside of the statute-of-limitations period and was barred. Furthermore, since Harris had not seen appellee in over five years prior to filing the complaint, any action alleging that appellee was negligent in providing adequate postoperative care was also barred by the statute of limitations.
Accordingly, we hold that Rachel Harris’s complaint was not timely filed within the two-year statute of limitation under Ark. Code Ann. § 16-114-203(a) (Supp. 2001). As such, the trial court’s dismissal of appellant’s case by summary judgment was not erroneous and is affirmed.
Affirmed.
Gladwin and Bird, JJ., agree. | [
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Layton Roaf, Judge.
This appeal is from a summary judgment entered for appellee Progressive Classic Insurance Company in a lawsuit brought by its insured, appellant Dora Castaneda, for uninsured-motorist benefits. Progressive moved for summary judgment on the ground that the accident occurred while a named excluded driver was at the wheel of Castaneda’s car. On appeal from the summary judgment for Progressive, Castaneda argues (1) that the named-driver exclusion is ambiguous, (2) that she did not reject her own uninsured-motorist benefits for injuries suffered while riding as a passenger of an excluded driver, and (3) that it is against public policy to construe the named-driver exclusion as applying to this situation. We affirm the trial court’s decision.
On August 6, 2001, Castaneda was injured while riding as a passenger in an automobile covered by her policy; the driver of the automobile was Castaneda’s son, Aaron Castaneda. Their car was stopped at a traffic signal and was rear-ended by an uninsured negligent driver. Alleging that the accident was the result of an uninsured third party’s fault, Castaneda sued Progressive in circuit court for $25,000 in uninsured-motorist benefits. Progressive denied coverage on the ground that the vehicle was operated by Aaron, who was a named excluded driver under the policy. Castaneda amended her complaint to assert that the policy’s named-driver exclusion applied only if Aaron was at fault, which was not the case here, and that it would be against public policy to interpret the exclusionary clause in any other manner. Progressive then moved for summary judgment, relying on the express terms of the policy.
The insurance policy’s named-driver exclusion, which Castaneda signed, stated:
You have named the following persons as excluded drivers under this policy.
NAME OF EXCLUDED DRIVER DATE OF BIRTH
AARON CASTANEDA 01/13/86
No coverage is provided for any claim arising from an accident or loss that occurs while a covered vehicle or non-owned vehicle is operated by the excluded driver(s). THIS INCLUDES ANY CLAM FOR DAMAGES MADE AGAINST YOU, A RELATIVE, OR ANY OTHER PERSON OR ORGANIZATION THAT IS VICARIOUSLY LIABLE FOR AN ACCIDENT ARISING OUT OF THE OPERATION OF A COVERED VEHICLE OR NON-OWNED VEHICLE BY THE EXCLUDED DRIVER.
The policy’s general provisions also stated:
If you have asked us to exclude any person from coverage under this Policy, then we will not provide coverage for any claim arising from an accident or loss involving a covered vehicle or non-owned vehicle that occurs while it is being operated by the excluded person. THIS INCLUDES ANY CLAIM FOR DAMAGES MADE AGAINST YOU, A RELATIVE, OR ANY OTHER PERSON OR ORGANIZATION THAT ISVICARI-OUSLY LIABLE FOR AN ACCIDENT ARISING OUT OF THE OPERATION OF A COVERED VEHICLE OR NON-OWNED VEHICLE BY THE EXCLUDED DRIVER.
The uninsured-motorist bodily-injury coverage provision was set forth as follows:
Subject to the Limits of Liability, if you pay a premium, for Uninsured Motorist Bodily Injury Coverage, we will pay for damages, other than punitive or exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.
In response to the motion for summary judgment, Castaneda contended that the named-driver exclusion was ambiguous and that it and the uninsured-motorist provisions of the policy did not adequately reject the uninsured-motorist coverage to comply with Arkansas law.
At the hearing on the motion to dismiss, the judge made the following statement:
[T]he argument that the policy language becomes ambiguous because of the amplification [in the exclusion] ... I don’t find that that creates an ambiguity. I see it strictly as a warning, an attempt to warn them that they are losing all protection from suits by others arising out of the operation of this vehicle. I don’t buy a public policy issue here. I mean, in fact, everything here works against that. This lady excluded the driver. That reduced her premium. And then she, I will have to assume knowingly and intentionally, put this young man in the vehicle as the driver and let him operate the vehicle and an accident ensued. It doesn’t appear to be connected to fault or non-fault or fault on the other person, it just seems to be an exclusion which as I read it... I don’t see any ambiguity at all. “Any claim arising from an accident or loss that occurs while a covered vehicle or non-owned vehicle is operated by the excluded driver.” There’s no public policy argument here. A totally innocent person would not have coverage and a pedestrian, driver of another car. Why in the world should this lady have coverage when she is the one that paid the reduced premium and then willfully allowed a non-covered or an excluded driver to operate the vehicle? ...
I know exclusions are upheld unless ... they violate a clearly enunciated or well-founded public policy. I don’t find that here.The language of the contract is plain and unambiguous in my opinion, and so is Arkansas precedent on this issue, and so the motion for summary judgment will be granted.
Castaneda takes this appeal from the circuit court’s award of summary judgment to Progressive.
In reviewing summary-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Alberson v. Automobile Club Interins. Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Castaneda first contends that the named-driver exclusion is ambiguous because it did not expressly state that uninsured-motorist coverage was not available to a named insured for injuries sustained when the excluded driver was operating the vehicle. Therefore, Castaneda argues, summary judgment was inappropriate because the rules of construction, which favor insureds over insurance companies, come into play when a policy is ambiguous.
In reviewing an insurance policy, the appellate court submits to the principle that, when the terms of the policy are clear, the language in the policy controls. Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark. App. 166, 47 S.W.3d 909 (2001). The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Norris v. State Farm. Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction; if, however, the policy language is ambiguous, the policy will be construed liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous only if it is susceptible to more than one reasonable interpretation. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); State Farm Fire & Cas. Co. v. Midgett, 319 Ark. 435, 892 S.W.2d 469 (1995). Whether the language ofapolicyis ambiguous is a question of law to be resolved by the court. Norris v. State Farm Fire & Cas. Co., supra.
An insurer may contract with its insured upon whatever terms the parties may agree upon that are not contrary to statute or public policy Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001). Absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Id. The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk that is plainly excluded and for which it was not paid. Id.
Castaneda argues that the exclusion is rendered ambiguous by the sentence beginning “[t]his includes any claim for damages made against you....” The trial court found that this language was in the nature of a warning that liability protection could be lost. We agree that the sentence merely emphasizes the effect of the exclusion on the policyholder’s liability coverage and does not purport to limit its application in respect to other types of claims.
Castaneda also argues that, when considered in conjunction with the uninsured-motorist provision, the exclusion is ambiguous. We disagree. In our view, the only reasonable interpretation of the policy is that the named-driver exclusion, which applies to “any claims arising from an accident or loss that occurs while a covered vehicle ... is operated by the excluded driver,” prevents the recovery of uninsured-motorist benefits by Castaneda, even though she was a named insured. The exclusion is not qualified by the terms “except when the excluded driver is without fault” or “except when an insured is riding as a passenger”; it simply states that there is no coverage for “any claims” whenever an excluded driver is operating the vehicle. Castaneda has not raised the issue of whether the exclusion might be rendered ambiguous in any other manner or by the policy’s lack of a definition for the phrase “is operated by” or by any other conflicts between the language of the various policy provisions, and we therefore need not consider any other possible sources of ambiguity in this policy. Accordingly, we affirm the circuit court’s decision on this issue.
Castaneda argues that, in light of the ambiguity, she did not intentionally and knowingly reject uninsured-motorist coverage in writing as is required by Ark. Code Ann. § 23-89-403 (Supp. 2001). Arkansas Code Annotated section 23-89-403(a)(l) provides that all automobile liability insurance policies must provide “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” However, such coverage “shall not be applicable where any insured named in the policy has rejected the coverage in writing ....” Ark. Code Ann. § 23-89-403(a)(2) (Supp. 2001). Castaneda points out that the named-driver exclusion did not mention her uninsured-motorist coverage and asserts that she was not put on notice that, by signing the named-driver exclusion, she was rejecting such benefits when Aaron was driving the car.
Castaneda also argues that it is against the public policy of this state to construe this exclusion as barring her from recovering uninsured-motorist benefits and asserts that the purpose of excluding an inexperienced or poor driver does not apply when the excluded driver is not the cause of the collision. She points out that this exclusion would not have prevented her from recovering uninsured-motorist benefits if she had been injured while driving, riding as a passenger in a car, riding a bicycle, or walking as a pedestrian. She argues that she paid for uninsured-motorist coverage for herself without regard to whether an excluded driver was operating the vehicle and that to deny it in this instance violated the public policy of protecting those who pay for automobile insurance against the negligence of those who violate the law and do not pay for it. In response, Progressive asserts that Castaneda received the benefit of a significantly reduced premium because of the exclusion and that it cannot be the policy of this state to require the payment of benefits for which Castaneda did not pay a premium. Castaneda contended in oral argument that uninsured-motorist premiums are not reduced where there is an excluded driver, because they are predicated on negligence other than that of the driver of the insured vehicle.
Castaneda cites decisions from other states that have held that this type of named-driver exclusion was inadequate to reject uninsured-motorist coverage, such as Lowe v. State Farm Mut. Auto. Ins. Co., 633 F. Supp. 901 (S.D. Miss. 1986). We note, however, that other courts have held to the contrary. See McCullogh v. Standard Fire Ins. Co. of Ala., 404 So.2d 637 (Ala. 1981); Lopez v. Dairyland Ins. Co., 890 P.2d 192 (Colo. Ct. App. 1994); O’Brien v. Dorrough, 928 P.2d 322 (Okla. Ct. App. 1996). See also Principal Mut. Life Ins. Co. v. Progressive Mountain Ins. Co., 27 P.3d 343 (Colo. 2001). It is also clear that, in general, named-driver exclusions do not violate public policy in Arkansas. See Jordan v. Atlantic Cas. Ins. Co., supra; Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997); Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993).
Given the record presented, however, we cannot decide this issue because Castaneda has failed to satisfy her burden of bringing up a record demonstrating error on appeal. See Cassidy v. Arkansas Dep’t of Human Servs., 76 Ark. App. 190, 61 S.W.3d 880 (2001). Even though both parties base their arguments in part on the amounts and types of premiums that Progressive collected from Castaneda, no premium calculation or analysis has been provided for our consideration. Without this necessary calculation, we are left with the general principle that named-driver exclusions do not violate public policy in Arkansas and cannot reach the specific public-policy question based upon the assessment and collection of premiums. Therefore, we are left with no choice but to affirm the trial court’s decision.
Affirmed.
Stroud, C.J., and Neal, J., agree. | [
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ohn F. Stroud, Jr., Chief Judge.
This case involves the J public’s right of access to the following water-covered areas off the west bank of the Arkansas River in Desha and Lincoln Counties: 1) a narrow passage of water called the Echubby Chute, which may be entered from the Arkansas River; 2) a body of water located west of the Chute, called the Echubby Lake; 3) a ditch that connects the Chute and the lake; and 4) another small lake situated farther south in the Coal Pile area (collectively, “the Echubby areas”). Appellant, Arkansas River Rights Committee, a nonprofit group of hunters and fishermen, contends that, despite appellee’s record ownership of the Echubby areas, the public has a right to access them because they are navigable and because they have been used by the public for more than seven years, such that a prescriptive right of use has been acquired. The trial court entered summary judgment, quieting title and right of possession to the Echubby areas in appellee. Appellant appeals on the ground that fact questions remain to be decided. Appellee cross-appeals from the trial court’s enlargement of time for appellant to respond to the motion for summary judgment. We reverse and remand on direct appeal and affirm on cross-appeal.
Although the Echubby areas are now covered by water, that has not always been the case. In the 1960s, the Corps of Engineers constructed Lock and Dam No. 2 on the Arkansas River in southeast Arkansas as part of the McClellan-Kerr Navigation project. The project, using a system of locks and dams, rendered the Arkansas River navigable between Tulsa, Oklahoma, and the Mississippi River. Lock and Dam No. 2 was completed in 1968 ■ and, as a result, the river level rose in the area. This caused the Echubby Chute and the connecting ditch to become filled with water, thus making the Echubby areas accessible from the river where they had not been before.
Appellee purchased the Echubby areas from the Chicago Mill & Lumber Company on April 6, 2001, as part of a 2,400-acre land acquisition. Thereafter, appellee applied to the Corps of Engineers for permission to construct the crossings over the Echubby Chute. Appellant opposed the application, contending that the crossings would block public access to the Echubby areas. As the result of the crossing dispute and appellant’s insistence that the. public had a right to access the Echubby areas for fishing and hunting, appellee filed a complaint in Lincoln' County Circuit Court on June 17, 2002, seeking a declaration that it owned the Echubby areas free and clear of any right of access claimed by appellant. Appellant responded that the Echubby areas were navigable and that the public had exercised open and notorious use of the waters for a period greater than seven years, thereby creating a public prescriptive easement over the waters.
On August 8, 2002, appellee filed a motion for summary judgment, arguing that hunting and fishing rights cannot be acquired by prescription and .that appellant’s claim of navigability must fail because there was no evidence that the Echubby areas were navigable in their natural state, prior to the dam being completed in 1968. Attached to appellee’s motion were the affidavits of Gene Wesser, Robert Stephens, and Richard Metcalf. Wesser stated that he had been familiar with the areas since 1961 or 1962 and that the areas were above the ordinary high-water mark of the river prior to construction of the lock and dam. He further said that the property was dry ground and not accessible by boat until the lock and dam were built. Stephens said he had been familiar with the area since 1951 and that the areas in question were dry land prior to the construction of the lock and dam. He stated that, prior to that time, all of the property was above the ordinary high-water mark and was not navigable by boat.
Metcalf, one of the owners of the appellee hunting club, attached maps from 1950 and 1959 to his affidavit. The maps showed that, although the Echubby Lake and the lake in the Coal Pile area existed at that time, there was no evidence of a chute or ditch connecting these lakes to the Arkansas River. The same was shown by two aerial photographs from the early 1960s.
Appellant responded that fact questions remained to be decided, and it attached the affidavit of David Selvey to its response. Selvey stated that the Arkansas River Navigation System had been completed over thirty years previously and that the water level of the river covered the areas in question throughout the year. He also stated that he and others had boated into the Echubby Lake and the Coal Pile area over the past seven years without being required to get permission from anyone.
Following a hearing, the trial court granted appellee’s motion for summary judgment. Appellant argues that summary judgment was improper because fact questions remain as to the navigability of the Echubby areas and the public’s prescriptive use of them. We agree with appellant’s contention.
We have ceased referring to summary judgment as a “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we approve the granting of the motion only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is no genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. See Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summaiy judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.
Prescriptive Use
Although incursions on the land of another for the purpose of hunting and fishing do not signify an intention to appropriate lands for one’s own use, State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014 (1917), the State’s inundation of another’s lands may, in some circumstances, put the State in possession of those lands and thus allow access by the public. Id. Appellant relies on Thompson v. Parker to support its argument that a fact question remains as to whether the pubic acquired a prescriptive right to use the Echubby areas.
Thompson involved certain areas of Horseshoe Lake, a large body of water in Crittenden County. The lake, as its name suggests, is shaped like a horseshoe with a large peninsula of land in its center. A hunting club owned property on this peninsula. In 1905, the St. Francis Levee District built a levee across an outlet of the lake and, as a result, the lake’s waters rose and covered approximately 1,000 acres of the club’s land. The club contended that it still owned that water-covered land and tried to exclude the public’s access. The supreme court recognized that, although the newly-covered land was not part of the lake bed prior to the levee being built, when the levee was built and the land was inundated by water, a new situation was created:
When the waters of natural navigable lakes in this State are extended by artificial means so as to cause the land of riparian owners to be flooded, without their consent, and this condition is not merely temporary but is continued for a sufficient length of time for the standing waters to produce a distinctive new high-water mark for the waters of the lake bed, this gives the State, as the owner of such lake bed, the possession of the lands so covered by the high-water mark....The State has acquired title by prescription or limitation....The inundation of [the club’s] lands, under the circumstances, put the State in possession and as effectually foreclosed any private ownership and dominion in the [club]....
132 Ark. at 321-23, 200 S.W. at 1016 (emphasis added). The court held that, after the levee was constructed and water from a navigable body inundated the riparian owner’s land without the owners’s consent for a sufficient length of time, the public acquired the right to use the lands so covered.
The facts in Thompson bear a similarity to the facts in the case at bar. Here, after the lock and dam were constructed in 1968, water rose and covered previously dry land, creating a connection to and access from the Arkansas River. Under the holding in Thompson, if the encroachment of river water into the Echubby areas was for a sufficient length of time to produce a new high-water mark and was without the landowner’s consent, the public may have acquired a prescriptive right of usage of the areas.
Appellee argues that Thompson is inapplicable here because the landowners in the affected areas consented to the river’s inundation of their property. We do not agree that such consent was established as a matter of law. Appellee contends that evidence of consent was shown by the “numerous public meetings about the project all up and down the Arkansas River Basin” regarding construction of the lock and dam. However, there is no evidence of those meetings in the record or of what may have been agreed to or discussed at them. We do not consider matters outside the record to determine issues on appeal. See Boswell, Tucker, & Brewster v. Shirron, 324 Ark. 276, 921 S.W.2d 580 (1996). Appellee also points to the fact that, while the lock and dam was being constructed, the government obtained flowage easements from riparian owners along the river. Although some documents in the record show that Chicago Mill sold flowage easements to the federal government on various tracts of its property in the year 2000, the documents do not clearly establish that the easements correspond with the land that Chicago Mill sold to appellee. Further, the record does not show that Chicago Mill granted any flowage easements to the government prior to 2000, at which point the flowage had already been in existence for over thirty years. On this last point, appellee claims that the government obtained easements on this property in 1964.' However, once again, the record contains no evidence of this.
Appellee argues further that the holding in Thompson was diluted by the later case of Beck v. State, 179 Ark. 102, 14 S.W.2d 1101 (1929). Beck involved the same area of Horseshoe Lake as Thompson. Several years after the Thompson decision, Beck, who owned an 8,000-acre plantation on the peninsula, constructed a system to drain water from the surface of his land. However, due to timber cutting in the area, the flood level of the lake was so high that his system would not work; in fact, it backed up water onto his land. As a result, Beck dug a ditch about 1,800 feet up a bayou that drained off the lake in an attempt to create an outlet. He claimed that his intention was only to restore the flood level of the lake to its normal stage. The ditch had the effect of lowering the water level over some of the lands that Thompson had held were acquired prescriptively by the State. The State sued Beck, and the trial judge held, as per Thompson, that the State had acquired a prescriptive right to maintain the increased level of the lake. The supreme court reversed, and appellee in the case at bar claims that the reversal “discredited” the findings in Thompson. We disagree. The supreme court stated in Beck that “we do not impair the doctrine of’ Thompson, 179 Ark. at 108, 14 S.W.2d at 1104, and took pains to note that Beck’s ditch would not reduce the water level more than two or three feet. The court further emphasized that Beck was attempting to dispose of flood waters from his land and to clear obstructions from a stream, which he had a statutory right to do. The court also concluded that the water of the lake would still be higher than it would have been without the levee. We believe that Thompson remains valid and that, in light of its holding, a fact question remains as to whether the public has acquired a prescriptive right to use the Echubby areas.
Navigability
Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), cert. denied, 449 U.S. 843 (1980). If a body of water is navigable, it is considered to be held by the State in trust for the public. See Hayes v. State, 254 Ark. 680, 496 S.W.2d 372 (1973); 9 Powell on Real Property § 65.11[2][a] (2003). Navigability is a question of fact. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945).
Arkansas law has defined navigability as follows:
The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable....
McIlroy, 268 Ark. at 234-35, 595 S.W.2d at 663 (quoting Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W.2d 892 (1930)). In 1980, this definition was expanded by the supreme court to include consideration of the water’s recreational use as well as its commercial use in determining navigability. McUroy, supra. In McUroy, the court was asked to determine whether a stream that had considerable recreational value for boating and fishing was navigable, even though it lacked the commercial adaptability that was the hallmark of traditional navigability. The case involved the Mulberry River, described in the opinion as an intermediate stream at least 100 feet wide at some points, that for fifty to fifty-five miles of its length could be and often was floated by canoes or flat-bottomed boats. The Mulberry was designated by the state Department of Parks and Tourism as Arkansas’s finest whitewater float stream. In 1838, it was “meandered” by surveyors, which is prima facie evidence of navigability. Based on these facts, the supreme court held that “there is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable....” McIlroy, 268 Ark. at 237, 595 S.W.2d at 665.
Under McUroy, it is apparent that navigability may be established by recreational uséfulness as well as commercial usefulness. In the present case, the Selvey affidavit filed by appellant shows that the Echubby areas have at least some recreational usefulness. Selvey stated that, in the past seven years, he and other fishermen have boated over the entire surface of Pool 2, which includes the Echubby areas, and further that water covers the areas year round. Admittedly, there is nothing in the record at this point to show that the level of recreational use in the Echubby areas compares with the extensive use of the Mulberry River in McUroy, and obviously, the occasional foray by a fisherman into an area does not render it navigable; if that were so, every creek and pond in the state would be navigable. However, we believe that the Selvey affidavit is sufficient to create a fact question as to the Echubby areas’ navigability. Therefore, summary judgment was improper on this issue.
Appellee contends that the areas’ present-day navigability is not relevant; rather, navigability must solely be determined as of the date of Arkansas’s statehood because each state, upon entry into the union, took title to the navigable waters within its borders. See generally Utah v. United States, 403 U.S. 9 (1971); Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942). We disagree that the concept of navigability for the purpose of determining the public’s right to use water is that static. Although navigability to fix ownership of a river bed or riparian rights is determined as of the date of the state’s entry into the union, navigability for other purposes may arise later. See, e.g., United States v. Appalachian Power Co., 311 U.S. 377, 408 (1940); Hitchings v. Del Rio Woods Recreation & Park Dist., 55 Cal. App. 3d 560, 568, 127 Cal. Rptr. 830, 835 (1976) (“navigability for purposes of a public navigational easement need not be evaluated as of the date of statehood; it may later arise”); Bohn v. Albertson, 107 Cal. App. 2d 738, 743, 238 P.2d 128, 132 (1951) (“if the evidence showed the creation of a new channel of the river, the fact that there was no such channel [at statehood] would not prevent the assertion by proper public authority of the right to use that channel for navigation and fishing”); 65 C.J.S. Navigable Waters § 12 at 68 (2000). This point can-be illustrated by the fact that, in the following cases, the Arkansas Supreme Court did not address navigability for the purpose of public usage in terms of whether the water was navigable at the time of statehood but whether the water was currently navigable. See State v. McIlroy, supra; Hayes v. State, supra; Five Lakes Outing Club, Inc. v. Horseshoe Lake Protective Ass’n, 226 Ark. 136, 288 S.W.2d 942 (1956); McGahhey v. McCollum, 207 Ark. 180, 179 S.W.2d 661 (1944). One case phrased the question of navigability as “whether the lake is susceptible of public servitude as a means of transportation either now or within the foreseeable future....” Parker v. Moore, 222 Ark. 811, 814, 262 S.W.2d 891, 893 (1953). Thus, we do not believe that an area’s navigability, in the sense that the public may use it, is conclusively established by that area’s status in 1836.
Appellee also contends that navigability should be determined by the condition of the area in its natural state, without improvements. It bases its argument on the oft-repeated adage that a waterway is navigable “if, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose.” See Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 577, 26 S.W.2d 892, 893 (1930). Appellee claims that, because the level of the water in the Echubby areas was artificially raised by the lock and dam, the areas cannot be navigable. First of all, there were no improvements made to the Echubby areas themselves; the inundation of water occurred as the result of improvements on another waterway, the Arkansas River. Second, we have found no Arkansas case, and appellee has cited none, in which the courts have held that a body of water should be closed to the public simply because it was rendered navigable through improvements made to another body of water. We therefore decline to affirm the summary judgment on this basis.
To conclude on direct appeal, we hold that fact questions remain as to whether the Echubby areas are navigable and as to whether the public has acquired a prescriptive right to use them.
Cross-Appeal
We turn now to the cross-appeal. On Monday, September 9, 2002, thirty-two days after appellant was served with appellee’s motion for summary judgment, appellant asked the court for an extension of time to respond, stating that it needed “additional time to gather additional materials and exhibits in support of its response.” The court granted the extra time, and appellant filed a response to the summary judgment on September 11. As previously mentioned, just one affidavit was filed in support of the response.
Appellee objected below to the extension of time and argues on appeal that the trial court erred in allowing the late response. Appellee contends that, because appellant made its request outside the original twenty-one-day time period, it was bound to show mistake, inadvertence, surprise, excusable neglect, or other just cause, as mandated by Ark. R. Civ. P. 6(b), which governs enlargements of time. We disagree. Rule 56(c)(1) of the Arkansas Rules of Civil Procedure provides that the adverse party shall respond to a motion for summary judgment within twenty-one days after the motion is served. However, that same rule states that “[t]he court may by order enlarge the foregoing time periods.” Rule 56 places no particular restrictions on the trial court in permitting an extension of time, and because Rule 56 is specifically directed to summary-judgment responses, the more general Rule 6(b) must yield. See generally Benton v. Gunter, 342 Ark. 543, 29 S.W.3d 719 (2000) (holding that a general statute must yield when there is a specific statute involving the particular subject matter); Moon v. City, 344 Ark. 500, 42 S.W.3d 459 (2001) (holding that court rules are construed using the same means, including the same canons of construction, as are used to construe statutes). In light of the fact that appellant’s response was filed less than ten working days after it was due, that no previous extension had been granted, and that the response was filed almost sixty days before the hearing was held, we find no error in the court granting this enlargement of time.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Neal and Roaf, JJ., agree.
The high-water mark of a navigable stream is the line delimiting its bed from its banks and is to be found by ascertaining where the presence and action of the water are so usual and long-continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil. St. Louis Iron Mtn. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W 931 (1890).This term is relevant because, if water is navigable, members of the public have the right to use the water at any point below the high-water mark. See Hayes v. State, infra.
Appellee refers to a case, United States u 1068.51 Acres of Land, No. PB-64-C-2, in which the government allegedly obtained an easement over the subject property in a condemnation action. Appellee has not provided us with any pleadings or orders 6om that case, and we have not located it in any published form.Therefore, we decline to rely on it to support appellee’s argument.The record does contain a Certificate ofDisclaimer filed by the government in a 1968 federal court case, No. PB-67-C-44. That Certificate states that in 1967, the government “acquired a perpetual easement and right to occasionally inundate the land lying below 167 feet m.s.l., in connection with the operation and maintenance of Lock and Dam No. 2, Arkansas River Project, said land being designated as Tract No. 1305E....” There is no evidence that Tract 1305E corresponds to any land now owned by appellee.
Appellant also argues that it derived a right to use the Echubby areas by virtue of the federal government’s perpetual flowage easements in the area. These are the easements referred to earlier in which we stated that we could not discern whether they encompassed the areas owned by appellee. Appellant did not make this argument below as a ground for resisting summary judgment, so we will not address it for the first time on appeal. See Spears 339 Spears, 339 Ark. 162, 3 S.W.3d 691 (1999). | [
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McCulloch, J.
Honea & Son were insolvent, and, while in that condition, delivered their stock of goods to appellant, a brother-in-law of the senior member of the firm, pursuant to an alleged sale to him for cash. The inventory of the goods, taken at cost prices, amounted to something over $1,300, and $900 was 'the price alleged to have been paid therefor by appellant.
The creditors of Honea & Son attacked the alleged sale on the ground that it was fictitious and fraudulent.
Appellant and Honea testified that the sale was made in good faith, without any fraudulent intent, for a valuable and adequate consideration, and without notice or information on the part of appellant as to the insolvency of Honea & Son. Other witnesses corroborated them as to the fact that a sale was made and a part of the price paid. Appellee relied upon certain circumstances developed by the testimony, and contradictory statements of appellants concerning the sale, to show that the sale was fictitious, and made, if at all, for the purpose of cheating and hindering the creditors of Honea & Son, and that appellant knew of the insolvency of the firm, and knowingly participated in the fraud.
The evidence tending to show the relationship of the parties, the inadequacy of the price alleged to have been paid for the goods, the unsatisfactory explanation given by appellant of the source whence he procured the money with which he purchased the goods, and his reasons for making the purchase and the circumstances under which the alleged sale was negotiated and consummated, were sufficient to justify the jury in finding that the sale was not made in good faith, but was a fraudulent contrivance to defraud the creditors of Honea & Son. We can not say that there was not evidence of a substantial character in support of the verdict.
Nor do we find any error in the instructions of the court. The court modified several instructions asked by the inter-pleader, refused two, and gave several .of its own motion and on motion of appellee. Upon the whole, we are convinced that all the issues were fully and fairly submitted to the jury upon proper instructions. The refused instructions were fully covered by those given.
Appellant also complains at the ruling of the court in refusing to permit him to prove that Honea & Son had previously offered to sell their stock of goods to two other persons — one about two months and the other about six weeks before the alleged sale to appellant. We can not see that this was material to the issue, which was as to the bona údes of the sale to appellant. Honea & Son might properly have testified that, at or about the time of the alleged sale to appellant, they openly attempted to sell their stock of goods for the purpose of raising funds to pay creditors or for re-investment or some other legitimate purpose not in fraud of creditors, but proof of isolated efforts to sell the stock at a different time and under, perhaps, different circumstances was not material. They were too remote in point of time to be considered as a part of the res gestae. No prejudice resulted from exclusion of the testimony. .
Upon the whole case, we find no error, and the judgment is affirmed. | [
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Riddick, J.
This is an action by J. B. James against the St. Louis Southwestern Railway Company to recover damages on account of the failure of the company to repair a building used as a restaurant or railway eating-house, and which he had leased from the defendant, and also for failure to pay board for certain of its employees. The complaint thus embraced two separate causes of action based on separate contracts.
In the contract by which the company leased the building in question to James, it was agreed that the company should make all necessary repairs on such building. The company also agreed with him that it would pay all board orders given by its employees when, to quote the language of the contract, “it appears that deduction can be made out of the wages due them.” On the trial before the jury, the jury returned a verdict in favor of the plaintiff for $35 on-board orders, and $147 for other damages.
As to the $147 for damages for the failure of the company to repair building, we think the evidence is sufficient to support the verdict. Appellant contends that the court by its eighth instruction submitted to the jury the question as to whether defendant was liable to plaintiff for an item of $12 expended by him in screening the house, and that this amount was included in the sum found by the jury. This instruction is rather vague, and we are not certain that it was the intention of the court to submit this question to the jury, or that the jury included that item in the the amount found. The plaintiff contends that the court by that instruction intended to exclude the item referred to from the consideration of the jury. As defendant did not except to this instruction, or object to it in any way, we are of the opinion that its contention on this point should be overruled.
As to the orders given by employees of the company on it in payment for meals or board due by them to the plaintiff, the testimony shows that it was the custom of the company, when the company was' due the employees an amount equal to or greater than the orders, to charge the order to the employee, and account to the plaintiff for the amount of the order. If nothing was due the employee, the orders were returned to the plaintiff unless the employee was still in the service of the company, in which event the orders were sometimes retained with the view of collecting them from future wages of the employee. It does not appear that any objection to such retention of the orders was made by James; and, as it was done in his interest, he probably did not object to it. But in instructing the jury on this point the court told them that the company was liable for the amount of such orders if it kept them, “unaccounted for, an unreasonable length of time, without notifying the plaintiff of any reason why they could not be paid.” Now, counsel for plaintiff contends that these orders, being drawn for a specified sum, were bills of exchange within the meaning of our statute (Kirby’s Digest, § 507), and that a failure to return the same made the company liable under the following section, towit:
“Every person upon whom a bill of exchange is drawn, and to whom the same may be delivered for acceptance, who shall destroy such bill, or refuse within twenty-four hours after such delivery, or within such time as the holder may allow, to return the bill, accepted or non-accepted, to the holder, shall be deemed to have accepted the same.” Kirby’s Digest, § 500.
It will be noticed that, to make the company liable under this section, it must be shown that the orders were destroyed, or that there was a refusal to return the same. A mere neglect or failure to return does not constitute an acceptance under this statute. Statutes similar to this are found in many of the States, and it has been held by courts in several of those States that the refusal mentioned in the statute “refers to something of a tortious character, implying an unauthorized conversion of the bill by the drawee.” Matteson v. Moulton, 11 Hun (N. Y.), 268; Matteson v. Moulton, 79 N. Y. 627; Dickinson v. Marsh, 57 Mo. Appeals, 566.
As it is not shown that any demand for the return of these orders had ever been made on the company, or that it had ever refused to return the orders, we do not think this statute has any application in this case. Leaving out the statute, it can not be said that a failure to return the bill of exchange constitutes an acceptance in this State, for our statute expressly requires that an acceptance to bind the acceptor shall be in writing. Kirby’s Digest, § 495. In the absence of any demand or request for a return, it is clear that a mere failure to return does not in this State bind the drawee as acceptor. Overman v. Hoboken City Bank, 31 N. J. L. 564; Colorado National Bank v. Boettcher, 5 Col. 190, 46 Am. St. Rep. 142; Hall v. Flanders, 83 Me. 242, 21 Am. & Eng. Enc. Law, 220; Rousch v. Duff, 35 Mo. 312.
But there was nothing in the contract between the plaintiff and the defendant railway company that required the company to return the orders of its employees forwarded by the plaintiff to it when there was no money due from the company to the person by whom they were drawn. The evidence showed that it was the custom of the company to return the orders which it did not intend to pay, and the failure of the company to return an order was no doubt a circumstance tending more or less to show that the employee by whom it was drawn had money in the hands of the company with which to pay it, and that the company intended to pay it. But this was not conclusive, and the company had the right to show that the failure to return was due to other re'asons. The failure to return may have been due to oversight, and the plaintiff may have suffered no injury from such failure. We are therefore of the opinion that the court erred in instructing the jury, over the objection of defendant, that, as a matter of law, the company was liable if it kept the orders an unreasonable time without notifying plaintiff of its reasons for not paying them.
Counsel for appellants contends that if these orders drawn by the employees on the company in payment for board be considered as bills of exchange, then the circuit court had no jurisdiction, for the reason that neither of them is for an amount greater than one hundred dollars. But this is not an action on those orders. It is an action to recover for amount due for board of employees of the company under the contract of the company with plaintiff, and the orders are only evidence tending to establish the different items of the account. The whole account sued for being in excess of one hundred dollars, the circuit court had jurisdiction. Friend v. Smith Gin Co., 59 Ark. 86.
The result is that, in our opinion, the judgment should be affirmed as to the $147 allowed for repairs, but reversed as to $35 • allowed for board, and remanded for a new trial on that cause of action. It is so ordered. | [
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Battle, J.
The Memphis, Helena & Louisiana -Railway Company is a corporation organized under the laws of the State of Arkansas to construct a railroad from the city of Memphis, in the State of Tennessee, through the counties of Crittenden, St. Francis, Lee, Phillips, Desha and Chicot, in the State of Arkansas, and through the State of Louisiana to the City of New Orleans. C. J. Johnson was employed by this company to clear the right of way and to construct the road of the company from Marianna, Arkansas, to Memphis, Tennessee. G. W. Bogan was employed by Johnson to clear a portion of the right of way of the company by a contract in writing as follows:
“Pinckney, Ark., Aug. 22, 1903.
“Llave this day let to G. W. Bogan the clearing on the M., H. & L. Ry. from station 1320 to station 1640, at the price of ($40) forty dollars per acre, it being understood that said Bogan has all the timber he wants on the same, and that he has an option on further four miles, provided he can get a force on same, quick work to commence at once, and be prosecuted as fast as possible. Work to be done according to the plans and specifications of the railwa}'- engineers in charge.
[Signed] “C. J. Johnson."
Upon this contract Bogan brought this action against Johnson and said railway company, alleging in his complaint that he had cleared fifty-six acres of said right of way; that thereafter the clearing of the right of way was discontinued, and he was not permitted to complete the performance of his contract; that there was due him for this work the sum of $2,240; that he had been paid thereon the sum of $575, leaving a balance due him of $1,665, for which amount he asked judgment, and that the judgment be declared to be a lien upon the right of way, roadbed and the franchises of the railroad company.
The St. Louis, Iron Mountain & Southern Railway Company having purchased and become the owner of the franchises, right of way, roadbed and all other property owned by the Memphis, Helena and Louisiana Railway Company, was made a defendant in this action.
Johnson answered and admitted that he entered into the contract sued on, but denied that Bogan had cleared fifty-six acres of the right of way, and that he was indebted to him in any amount whatever. The other defendant answered, and denied that plaintiff had cleared any of the right of way as alleged.
The only question in the case is: How much of the work Bogan contracted to do was done'by him? According to his testimony in the case, he cleared fifty-six acres. C. J. Onion, a civil engineer and surveyor, and experienced in the construction of railroads, testified that 51.35 acres were cleared. According to the testimony in behalf of the defendants, 24.60 acres were cleared. The defendants offered and the court refused to permit them to introduce in evidence the plans and specifications in accordance with which the right of way of the railroad company was to be cleared. The jury found that plaintiff was entitled to $1,520, less $576 which the evidence showed had been paid to him, leaving $944 unpaid, and also found that there was $23 interest due on this balance. Judgment was rendered accordingly, and the defendants appealed.
Appellants contend that the plans and specifications should have been admitted as evidence and considered in estimating what proportion of the work Bogan undertook to perform had been done and the amount due therefor. But no copy of the plans and specifications were delivered to Bogan. The contract was made with Johnson, and not with the railroad companies. He instructed Bogan as to what he should do in performance of the contract, and Bogan complied with his directions. The engineers of the railroad companies, employed for the purpose, inspected his work from time to time and approved it. He was doubtless induced by the directions of Johnson and the approval of the engineers to perform his contract as he did, believing that he would be compensated therefor according to his contract. It is too late now to hold appellee responsible for the observance of plans and specifications after the right of way' had been abandoned and he had been released from his contract, and thereby deprive him of compensation for labor performed by him and approved by all parties concerned.
Judgment affirmed.
McCulloch, J., being disqualified, did not participate. | [
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Hill, C. J.
P. F. Shell owned the land in controversy, and was living near it with his wife and two children when he died. He intended to make it his homestead, and had a house in the course of construction and nearly completed when he sickened and died. He expected to have the house ready to move into it on Christmas day, 1880, but he took sick on December 13, and died on December, 17. Fifteen acres had been cleared and fenced, and he had planted turnips thereon; a stable and crib were finished, and Shell was hauling corn to the crib when he took sick. The house was finished after Shell’s death, and the family moved into it and occupied it for a time. Subsequently they removed to relatives in Tennessee, and Mrs. Shell married again. The land was sold under orders of the probate court, and purchased by Samuel Crockett, and Crockett sold to- appellee, Young. Crockett and Young have been continuously in possession since the purchase till' this suit, a period of 14 years. The suit is by the widow and heirs of Shell to recover the land, and they lost in the circuit court, and have appealed.
The first error allegéd is that the sale by probate court without assigning the widow’s dower was void for want of jurisdiction to order it. Such is not the law. The sale is simply inoperative, so far as the widow’s dower is concerned, as it is an interest in the land superior to the claims of creditors, and the purchaser simply took subject to the right of the widow’s dower, which may be set aside against the purchaser as well as the heirs and creditors. Livingston v. Cochran, 33 Ark. 306; Webb v. Smith, 40 Ark. 17.
The appellant claims that because the deed recites that the sale was “to pay the debts of said estate” the sale was for the purpose of paying the expenses of administration, and would be void under the decision of Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81. This recital does not prove any such proposition, and is a quite common expression, and means, of course, the debts of the intestate. The presumption is that the lands were sold to pay the debts of the intestate duly probated against the estate, and an unlawful’sale would not be presumed.
The next proposition is that the confirmation could not cure a void sale. As the court finds the sale is nót void, it is unnecessary to discuss this point.
The principal question in the case is whether the land was a homestead. If it was impressed with'the homestead character, then the probate court could not sell it for the debts of the decedent. It has been settled by a long line of decisions that actual occupancy of land as a home, not a mere intention to occupy it, is essential to the impressment of the homestead character. In consonance with the liberal construction of the homestead laws, which is the settled rule,-this court held that where the bona fide intention to occupy is manifested by some of the usual constituents and concomitants of occupancy, such as repairing and cleaning the house and moving in household goods and kitchen furniture, the actual personal presence of the members of the family were not necessary in order for the homestead character to attach. Gill v. Gill, 69 Ark. 596. This case in the chancery' court evoked a learned opinion from the chancellor, where many cases along the same line are reviewed and discussed. 1 Martin’s Ch. Dec. 40.
But this case fails to reach to this humane extension of the homestead character. There was no house ready for occupancy, and no place for the family to reside, and there never had been. The house was nearing completion, but the roof tree made it no more the homestead than the mudsill. The usual constituents of occupancy were absent, and necessarily absent until there was a house upon the land “occupied as a residence,” or ready to be “occupied as a residence,” in the language of the Constitution. Art. 9, § 4.
Chief Justice English said: “A homestead necessarily includes the idea of a house for a residence, or mansion house. The dwelling may be a splendid mansion, .a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it, and the land on which it is situated, can be claimed as a homestead.” Williams v. Dorris, 31 Ark. 466. This statement was quoted and affirmed in Tillar v. Bass, 57 Ark. 179, where the court said: “In short, there was no evidence to show that he actually and in good faith occupied his land as a residence before the levy of the execution. His intention to do as at a future time, and failure on account of his wife’s condition, did not endow it with the character of a homestead.” See also Gibbs v. Adams, 76 Ark. 575.
Under the settled law in this State, giving the most liberal construction to the homestead exemption in order to effectuate the design of the framers of the Constitution, the facts here fail to show an impressment of the homestead character upon the land.
Judgment is affirmed. | [
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McCulloch, J.,
(after stating the facts.) Learned counsel • for appellant ask for reversal mainly upon the ground that the evidence is insufficient to sustain the verdict. Their position, briefly stated, is that the appointment, in compliance with the statutes of the State, by a foreign corporation doing business in the State of an agent upon whom process may be served contemplates the performance of no service or labor except the purely formal one of receiving and forwarding copies of process delivered to the agent; and, as the statute fixes no fee of compensation therefor, none can be claimed.
This contention, however, ignores other facts alleged in the complaint as grounds for recovery. Appellee does not base his claim alone upon the performance of the perfunctory duties of agent of defendant for receipt of process. He alleged in his complaint, and introduced testimony tending to prove, that, at the time of his appointment as agent for that purpose, he was then local manager of defendant’s mill at Mena, that his duties were then enlarged so as to include the general management of all the defendant’s extensive business in adjoining counties, and that he then demanded, and the defendant agreed to pay him, an additional salary of $1,500 for the performance of such additional services. He testified that he performed the additional servcies in compliance with this new contract. It is true that these things were disputed by appellant. Its contention in the pleadings and before the jury was that appellee was already employed on a salary of $1,200 per annum as general manager; that the appointment as State agent to receive service of process involved no new duties of a substantial character, and that it made no agreement to pay him an additional salary. But the jury determined these disputed- questions of fact upon legally sufficient evidence against appellant, and, under the well-settled practice of this court, we are concluded by the findings of the jury.
The employment of appellee as agent to receive service of process, and with superadded duties as general manager of appellant’s business in the State, at a stated salary in addition to the amount he was already receiving, was a matter about which the parties undoubtedly could contract, and the validity and binding force of their contract in this respect must be recognized by the court. It is entirely erroneous to say,, as contended by learned counsel, that, because the statute requiring the appointment by a foreign corporation of an agent to receive services of process fixes no fee or compensation, the parties may not agree upon the payment of a certain compensation, and may not also agree upon the performance of other duties than that of receiving and forwarding copies of served process.
The evidence upon this, as well as all the issues in the case, was sufficient to sustain the findings of the jury, and the verdict will not be disturbed on that account.
Appellee testified that on November 10, 1902, he wrote a letter to appellant, the substance of which is set forth in the complaint, notifying appellant that he would demand a salary of $1,500 per annum for his services as State agent, and that he received a reply in due course of mail to the effect that Mr. Banks, the treasurer of the company, would visit Mena in a short time and take the matter up personally with appellee. He testified that a press copy of his said letter to appellant was kept, and the same was read in evidence over the objection of appellant. Error of the court in admitting the letter in evidence is assigned here on the ground that appellant should have first been notified to produce the original letter before a copy could be introduced in evidence but the objection below was placed on entirely different grounds. ¡
Appellee was clearly entitled to make proof of the letter as a preliminary step in the alleged negotiation for increase of his salary. Conceding that appellant was entitled to notice, so that the original could be produced, no prejudice resulted from the failure to give notice, as the officers of appellant company testified that no such letter was ever received, and that they had, made search for the same on the files in the office and could not find it. The notice could, therefore, have availed nothing if it had been given.
The contract is not, according to appellee’s contention, dependent upon this letter. Appellee testified that the agreement for increased sala^ was made with Mr. Banks, appellant’s treasurer, on the occasion of his visit to Mena in January, 1903. Banks denied having made the agreement, and denied his authority to make such an agreement with appellee. But there was evidence, sufficient to go to the jury, of his authority to make the contract, as well as the fact that he did make it.
In the trial below the only issues submitted to the jury were whether Banks entered into the alleged contract with appellee for enlargement of his duties and increase of his salary, and whether he had authority to make such a contract for appellant. Both sides accepted these as the only two issues in the case, and both asked instructions thereon which were given by the court. The instructions fairly submitted the issues to the jury, and a verdict was returned upon- conflicting and legally sufficient evidence.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) The undisputed evidence shows that Hargrove sold the logs in controversy to the Liebke Hardwood Lumber Company by written contract, and that it, on the 21st of May, 1900, assigned this contract for a valuable consideration to the appellee, who thus acquired title to the logs, and who was in possession thereof through his agents when the attachment was levied thereon. This the testimony of the witnesses for appellee establishes beyond question, and the testimony of appellant does not conflict with this. At the time the attachment was issued and levied upon the logs, Hargrove could not be found. He was out of the State. His testimony by deposition, which was before the court and jury, (but which does not appear in this record, having been lost since the trial), shows that, after leaving the State, he wrote to one R. B. Golder, who was the agent of appellee, directing him as such agent to take possession of the oak and ash logs in controversy for the appellee. The testimony of Golder shows that he took such possession, as does also the other witnesses’ for appellee, as we construe it. There-is some little conflict on minor points, but, after a careful consideration of it, we are of the opinion that such is its only legal effect. The appellant found one Willis and Bowles in possession of it when he went down to see about the timber before suing out the attachment. Bowles was the constable, or claimed to be, and the testimony of Willis showed that at that time he was the agent of appellee, so that appellant’s testimony in nowise conflicts with the testimony of the appellee as to who was in possession of the logs when they were attached.
The court was correct therefore in directing the verdict for appellee. One of the grounds of the motion for new trial was on account of newly discovered evidence. In support of this, the affidavit of Hargrove is attached. In this affidavit he admits writing the letter to Golder, but says that the letter directed him to take charge of the logs for him, Hargrove, and he denies that he ever wrote a letter turning the logs over to Golder as the agent of appellee.
In the bill of exceptions is a statement showing what the deposition of Hargrove was, and also showing that the affidavit of Hargrove, made after the trial, contradicts his deposition which was used on the trial in every material particular. There is nothing in this newly discovered evidence which appellant might not have elicited on the cross-examination of Hargrove when his deposition was taken. Moreover, the alleged newly discovered evidence, according to the statement in the bill .of exceptions, was mainly in contradiction of the testimony of Hargrove, given in his deposition. Under these circumstances we do not think the court abused, its discretion in refusing a new trial on the ground of newly discovered evidence.
It follows also from what we have already said that the court did not err in refusing appellant’s prayer for instructions.
Judgment affirmed.
Hire, C. J., not participating. | [
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McCulloch, J.,
(after stating the facts.) It is urged by counsel, apparently with much confidence, that the charge of the court was too general, and failed to direct the attention of the jury specifically to the issues involved. We do not agree with him; but, conceding the correctness of this contention, still appellant is in no position to complain unless proper instructions were asked of a more specific nature. McGee v. Smitherman, 69 Ark. 632; Fordyce v. Jackson, 56 Ark. 594. As will be hereafter seen, the instructions asked by appellant were not correct declarations of the law. In St. Louis & San Francisco R. Co. v. Crabtree, 69 Ark. 134, this court said that “each party has the right to have the jury instructed hpon the law of the case clearly and pointedly, so as to leave no ground for misapprehension or mistake;” but in that case a specific instruction was asked by the appellant, and this court held that it was error “for the trial judge to refuse to give a specific instruction correctly and clearly applying the law to the facts in the case, even though the law is in a general way covered by the charge given.”
Error of the court is assigned in giving the fifth instruction, and also in refusing to give the following instructions asked by appellant:
“ (1) If you find from the evidence in this case that the foreman of the ‘track gang,’ in which deceased was working, had instructed all his men to watch out for trains moving over the tracks on which they were working, to the end that such track hands might not be injured by such movement of trains, that deceased at the moment when he was struck and injured was not paying any attention to the movement of the train, which was in plain view and approaching on the track on which he was working, if you find it was in plain view and approaching, you will find for the defendant.
. “(2) If you find from the evidence that the deceased, by looking or listening for the approach of the train which struck and injured him, could have seen or heard such train and avoided being injured by it, you will find for the defendant.”
The third instruction asked by appellant was in general terms on the subject of contributory negligence, and was fully covered by the instructions given by the court on that subject.
The fifth instruction given by the court must be considered in connection with the fourth, which was also given, wherein the jury was told that “plaintiff’s intestate was required to use his own senses, and to take notice of those things which an ordinarily careful and prudent person situated as he was would have observed, by a proper use of his senses, in connection with his duties as an employee of defendant, pursuing his labor in defendant’s behalf.” Taking the two instructions together, the)'' told the jury, in effect, that deceased was bound to exercise ordinary care to discover the peril and avoid injury, and in doing so he must make such use of his senses as was reasonably consistent with the performance of, his duty to his employer. Is this a correct declaration of the law, or can it be said, as a matter of law, that deceased was guilty of contributory negligence because he failed to constantly look and listen for the approach of a train ?
Mr. Labatt, in summing up the effect of the decisions on the subject of the degree of care for his own safety due by a servant in performing the master’s work, says: “Where the servant failed to take such precautions as were appropriate for the purpose of protecting himself at the moment when the accident occurred, evidence that such failure was due to the fact that his attention was engrossed by his duties is always competent for. the purpose of rebutting the inference of contributory negligence which might otherwise be drawn from his conduct; and if such evidence is offered, a court is very seldom justified in declaring him to have been, as a matter of law, wanting in proper care. * * * Whenever the facts in evidence are such that the servant’s temporary forgetfulness of the conditions may possibly be an excuse for conduct which would otherwise be culpable, the jury should receive appropriate instructions upon the subject.” 1 Labatt on Master & Servant, § 350.
It is true the same author says that this doctrine applies only when “the circumstances were either such as to create a situation approaching to or constituting an emergency, or such as to exhibit the servant in the light of a person who was discharging a duty which demanded an unusual amount of attention,” and not “where he was merely discharging, under normal conditions, some ordinary function incident to his employment.” 1 Labatt, § 351. But in the last-noted statement the author refers to a class of cases where the servant, on account of forgetfulness or inadvertence, negligently places himself' in a position of danger, and not where, by reason of his absorption in his work, he becomes oblivious of a dangerous condition created by the negligent act of the master or his servants whose duty it is to give notice of danger.
Mr. Thoriipson, in his treatise on Negligence (vol. 2, § 1756) in discussing the duty of track repairers, track walkers and like employees of railroad companies, says: “As a general rule, it is not contributory negligence, as a matter of law, for a person so employed-not to be on a constant lookout for approaching trains. This must be 'Sb if we are to pay the slightest attention to the position of a man who is fastening a fish-plate, or who is oiling or repairing the wheel of a car in a passenger train which has stopped temporarily at a station for that purpose. Such a person can not keep his eyes on his work and at the same time keep them strained in both directions for approaching trains or for ocular signals. Such persons are, therefore, not blameworthy, as a matter of law, merely because they become so engrossed in their work as not to heed the approach of a train, or because they rely upon the reasonable expectation that the railway company will, through its trainriien, perform the duty of giving them the necessary and proper signals. But it does not follow from these considerations that contributory negligence will be wholly excused, even in persons so engaged.” This statement of the law is well supported by adjudged cases. Goodfellow v. Boston, etc., R. Co., 106 Mass. 461; Ferren v. Old Colony R. Co., 143 Mass. 197; Austin v. Fitchburg R. Co., 172 Mass. 484; Northern Pac. R. Co. v. Everett, 152 U. S. 107; Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439; Houston & T. C. R. Co. v. Smith (Tex.), 51 S. W. 506; Tobey v. Burlington, C. R. & N. R. Co., 94 Iowa, 256; Shoner v. Penn. Ry. Co., 130 Ind. 170.
The doctrine stated is recognized by this court, in a somewhat different application, in the case of St. Louis, I. M. & S. Ry. Co. v. Higgins, 53 Ark. 458, where the court said that, in determining whether an employee “has failed to exercise due cafe in exposing himself to danger, it is always necessary to take into consideration the exigencies and circumstances under which he acted. If the service which he undertook to perform was required by a repairer, and was such as to demand his exclusive attention, and that he should act with rapidity and promptness, it would be unreasonable to require of him that care, thought and scrutiny which might be exacted when there is time for observation and deliberation.”
While the application of the doctrine is different in that case, it serves to illustrate the true rule that where the servant is engaged in performing service for the master under circumstances which justify him in assuming that ordinary care will be observed to warn him of approaching danger, he is required to exercise only such care and vigilance in discovering peril and avoiding injury as is consistent with the performance of the-work in which he is engaged. Any other rule would place the servant while performing work for the master in the same category as a trespasser upon the premises of the master.
In Bauer v. St. Louis, I. M. & So. Ry. Co., 46 Ark. 388, where a car inspector was injured while crossing from one track to another (not being engaged at the moment in the performance of a duty requiring his attention) was run over and killed by a passing train, this court held that he was guilty of contributory negligence, and in the opinion the court quoted with approval the language of Judge Shiras in Holland v. C., M. & St. P. Ry. Co., 18 Fed. 243, that “the rule is still recognized by the courts that the employee is not relieved from exercising the care which he should exercise considering the work in which he is engaged.”
Now, in the case at bar there was affirmative evidence to the effect that the work of tamping gravel under the ties required some care and attention, and that plaintiff’s intestate was stooping over, engaged in this work with his back to the approaching train. It was also shown that it was customary for signals to be given by bell and whistle to laborers at work on the track, and to keep a flagman posted on the front end of moving trains. Under this state of the proof it was not proper for the court to instruct the jury that it was the duty of the servant to constantly look and listen for the approach of trains.
The two instructions given by the court properly, we think, submitted the question of due care of deceased. It was properly a question for the jury to say from all the circumstances whether or not deceased was guilty of contributory negligence. The court could not say as a matter of law that he was guilty of negligence because he failed to discover the approaching train in time to step off the track and avoid the injury.
The Supreme Court of Indiana, in Shoner v. Penn. Ry. Co., supra, the same being a suit for damages where a section hand was run over at a crossing, after speaking of the duty of the engineer to give signals of the approach of the train, said: “While this would not absolve him (the section hand who was injured) from the necessity of using reasonable care, proportioned to the dangers incident to his work and the place where he was working, ¡it is, of course, apparent that the rule applicable to the traveler on the highway approaching a railroad crossing can not be applied to him. His duty requires him to give attention to his work. Can the court say, as a matter of law, how often he should turn from his work to look for approaching trains? He looked when he commenced work, and saw the track was clear. He then worked five or six minutes without looking, and was hurt. Can the court say, under such circumstances, that the inference of contributory negligence is conclusive and sufficient to overthrow the general verdict? We think not.”
It is insisted that the cause should be reversed because of the refusal of the court to give the following instruction:
“4. If you find from the evidence in this case that at the time deceased was struck and injured the point on the tracks where he was injured was by the defendant thrown or created into a working district which was under the regulations of the yards of the defendant where trains are shifted and made up, that, under the regulations applicable to such yards, it is not necessary to have a man on the front car of a train backing by the engine shoving from the rear, then it was not necessary to have a man on the rear car of the train which struck and injured the deceased, and negligence can not be predicated upon the absence of such person from such position.”
This instruction was properly refused because it told the jury that, as a matter of law, the company- owed no duty to its emploj^ees at work on the track to keep a flagman posted on the end of moving trains to warn them of approaching danger. The train of cars which ran over deceased was being pushed onto the track by the engine in order to put them into position to be filled with dirt from the steam shovel, and, even if it can be said that the engine was then engaged in “shifting and making up trains in yards,” within the meaning of the exception to rule -number 102, still this does not operate as an exemption from all duty to post a flagman on the end of moving trains in order to warn laborers on the track, if ordinary care requires that to be done. No rule of the company was proved exempting it from such duty, and, under the well-established doctrine that the master must exercise ordinary care to furnish the servant a safe place in which to work and to protect him from danger, it was for the jury to say whether this duty was performed when a train of cars was pushed on to the track where laborers were at work, without having a flagman on the front end to keep a lookout and give signals of danger.
Counsel contends that there was no proof of conscious suffering on the part of the deceased, and that, under the rule announced in St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, that the burden is upon the plaintiff to show affirmatively that such suffering was endured, the case must be reversed. Without setting out the evidence bn this point, we deem it sufficient to say that we find ample proof of conscious suffering, and that the jury were justified in arriving at the conclusion recorded in their verdict.
We find no error, and the judgment is affirmed. | [
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Him,, C. J.
Dominic Raggio left his native village of Borzonasca, Italy, in 1851, and came to the United States. He served as a soldier in the civil war, and not a great while after the close of the war he settled in Dee County, Arkansas, where he resided until his death on the 8th of January, 1901, at the age of 78 years. He was of more than average intelligence, and through industry and frugality gathered an estate yielding an income of about $1,600 per annum, estimated to be worth from $12,000 to $15,000. His estate consisted of 371 acres of land, of which 160 or 170 were in cultivation, and upon it was situated the village of Raggio, the rents therefrom amounting to about $800 per annum; and he had a home nearby the village on the same tract. He had a friend in Memphis named Nick Malatesta, and he had a warm friendship for him and for his (Malatesta’s) family. A few years before his death a young Italian named Bruno represented himself as his nephew, and Raggio accepted him as such for a time, but later learned he was an imposter. Raggio at some time in his life had a wife and child, and they were buried in a Catholic cemetery in Memphis, but the exact location of their graves was unknown to him, and he had requested Miss Malatesta to see that he was buried in this country, as he wanted his body to lie near his loved ones. Eor the last five or six years of his life Raggio was grievously,afflicted with a cancer, which gradually extended its ravages from lip to eye, exposing the teeth and nearly destroying the vision. Death came, however, not from this encroaching disease, but from pneumonia, and he was confined to his bed only a few days, in his last sickness. Up to this sickness he was more or less active and healthy, according to varying views; remarkably so, considering his age and affliction. Over five years before his death, the appellee, Mrs. Anderson, was employed as housekeeper, cook and nurse for Mr. Raggio. She did all the cooking and household work, bathed and dressed his sores, and attended to his business affairs in a limited way under his directions. He never learned to speak English fluently, and it was always difficult to understand his broken speech, and this difficulty greatly increased as the disease destroyed lip and nostrils. Mrs. Anderson was constantly called upon to interpret his conversations. Mrs. Anderson’s moral character, before going to Raggio’s, was a subject of neighborhood gossip. She was once divorced and thrice married. But her character, be it good or bad, is not an issue in this case. There is not even an insinuation that her relations with Raggio were meretricious. The evidence from all sides establishes without doubt that she faithfully ministered unto the manifold necessities and afflictions of this .aged man. That he became attached to her and dependent upon her services is natural and evident, for she was the only person who stayed with .him and cared for him when he became an object of horror and repulsion. His condition was hardly less pitiable than the lepers of Judea, driven without the gates' of the cities and compelled to cry out “Unclean! Unclean!” whenever a fellow being approached.
In 1890 Raggio made a will, in which he appointed his friend, Nick Malatesta, executor and trustee, and gave him 25 per cent, of his estate for his compensation as such executor and trustee. The estate was to be sold by the executor, and the residue “distributed among my nephews and nieces in the Kingdom of Italy that may be living at my death, per capita.” In 1893 he added a codicil, providing that, in case his nephews and nieces did not claim their respective shares within’ two years from his death, all of the estate should go to Nick Malatesta. In 1895 Nick Malatesta died, and in 1897 Raggio added another codicil to the will, reciting his friend’s death and substituting his eldest daughter, Miss Rosa Malatesta, °to the office and compensation of her father; and providing, in case the nieces and nephews failed to appear in two years, that the heirs at law of Nick Malatesta (naming them) should succeed to the estate. Nearly a year after this he executed a power of attorney to Miss Malatesta, authorizing her to manage and control all of his property for him. She attended to various matters for him, but does not appear to have acted under this sweeping power given her. He made a later will, and Miss Malatesta destroyed it as she did not regard him as mentally capable. There is some confusion as to its contents, but it was principally in favor of Miss Malatesta, and provision was also made for Mrs. Anderson.
When the pfeuedo nephew imposed upon him, he made a will in his favor, and provided for Mrs. Anderson having the home place and $15 per month for life, and more in case of disability. After the discovery of Bruno’s imposture, Raggio destroyed this will; and about five months before his death made a deed, conveying all the property to Mrs. Anderson. The deed was delivered and recorded. Raggio stipulated that she was not to act under it until his death. This suit is by his heirs at law to set aside this deed on the grounds of undue influence and mental incapacity. The chancellor decided against them, and they have appealed.
Much testimony was introduced by each side to sustain their respective contentions.
That Mrs. Anderson was in a position to influence Raggio is apparent, and her conduct should be subjected to the closest and most jealous scrutiny. It is not sufficient that the grantor or testator was influenced by the beneficiary in the ordinary affairs of life, or that he was in close touch and upon confidential terms with him; but there must be a malign influence resulting from fear, coercion, or any other cause which deprives the grantor or testator-of his free agency in disposing of his property. McCulloch v. Campbell, 49 Ark. 367.
The application of the law announced in the foregoing case to the facts at bar eliminates the question of undue influence. The most serious question is the one of mental capacity, and witnesses of the highest character are in hopeless conflict in their opinions on this question. A distinguished lawyer of Memphis declined to write his will six months before Raggio’s death, and one month later a prominent lawyer of Eastern Arkansas wrote the deed in question. Each interviewed and studied the man; one was convinced of his capacity, the other of his incapacity, and this illustrates the conflict in the testimony. Near the same time, a Catholic priest, noted for learning and intelligence, spent a day and night with him; the object of the visit was to present him the rites of his church if he was able to receive them. The rules of the church required the communicant to have an appreciation and understanding of the sacrament before receiving it. The priest, after deliberation, decided that Raggio was capable, and administered the sacrament to him. That his mentality was weakened by age, disease and excessive drink is unquestionably true; but whether his mind was so weakened that lie did not understand and appreciate the force and effect of his deed is the question. It seems to the court that the weight of the evidence sustains his capacity to execute this instrument, and that he did it freely and understandingly. Certainly, it can not be said that the weight of the evidence is against the chancellor’s finding; and this kind of conflict is one where the chancellor’s finding has persuasive authority, and is entitled to weight and consideration. Raggio’s broken speech, increased by his affliction, would render difficult the determination of his mental status, and hence this conflict of opinions can be explained more readily than some other conflicts in evidence.
This disposition of his property-was the natural one for him to make. In his prior dispositions of his property Mrs. Anderson received liberal consideration, which clearly showed his intention to" provide for her was a fixed determination of long standing. In fact, Miss Malatesta once wrote him, advising him to leave his property to her, rather than to a stranger, evidently referring to Bruno. Miss Malatesta says that he always expressed himself as wanting to leave his property to his relatives, yet the. various dispositions he made showed a tendency to favor his friends, the Malatestas and later Mrs. Anderson, rather than his relatives; as each disposition gave less to them and more to his friends. A half century had. elapsed since he had seen his kindred, and evidently he knew little of them, and they of him. The depositions of several of 'his early friends were taken to prove the relationship, and none of these intimate friends of his family knew he had ever been married; and he makes provision in his will and codicils for his nephews and nieces, and yet this suit discloses that he had a sister living, ■ and he evidently did not know it. The kindness of his attendant was ever present to him, and the ties of blood, weakened by fifty years’ absence, were easily loosened, and naturally the change came, and in this change the court fails to find any malign and sinister influence producing it, and finds Raggio had sufficient intellect to make the deed, and made it understandingly, and accordingly the decree is affirmed.
Wood, J., dissents.
McCulloch, J., disqualified and nonparticipating. | [
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Battle, J.
On the 15th day of October, 1900, Oscar Smith was seriously injured while in the service of the Arkadelphia Lumber Company. He brought this action against the lumber company to recover damages sustained by reason of the injuries.
The lumber company is a corporation, and owned and operated a saw and planing mill at Daleville, in Clark County, in this State, on or near the railroad of the Ultima Thule, Arkadelphia & Mississippi Railway Company, and was engaged in the manufacture of lumber. A lateral railroad was constructed from the main line of the railway company to and into the timber lands of the lumber company, and was used in transporting logs from the lands of the lumber company to its mill to be manufactured into lumber. Its track was temporarily laid, and in such manner as to be removed to the timber of the lumber company on different tracts of land with the least expense. Plaintiff and many others were employed by the defendant, and were engaged in hauling logs to various places on the lateral railroad by means of teams and wagons.
The evidence in this case tended to prove that the defendant owned and furnished railroad handcars to its teamsters at the close of the day to convey them from their work to their respective homes over the railroad, and that it was understood when a teamster was employed that he would be furnished with a handcar for such a purpose, and it was so understood when plaintiff was employed; and that when the lateral road was constructed it furnished such cars to its teamsters for transportation over it to their homes after each day’s work was done.
On the 15th day of October, 1900, the defendant furnished plaintiff and four other teamsters with a handcar to carry them to their homes over the lateral road. They boarded the same, and were propelling it over the lateral road at the rate of six or eight miles an hour, when it ran off the track, and violently threw the plaintiff to the ground, and seriously injured him. There was evidence tending to prove that at the place where the accident occurred the track of the lateral road had been recently laid, and an old rail, worse than the other rails on the track, with the ball or T thereof broken off for eight or ten inches, formed a part of the track at the time it was laid, and that there was a low joint in this part of the track; all of which was a defect in the construction of the track. There was also evidence tending to prove that this defect was unknown to the plaintiff at the time of the accident, and that he was making his third trip over the same when he was injured.
D. B. Hart testified that he was a tracklayer on the lateral road at the time plaintiff was injured, and as such was in the employment of the defendant.
W. E. Hubbard testified that he was an engineer operating an engine on the lateral road, and was in the employment of the defendant and of the Ultima Thule, Arkadelphia & Mississippi Railway Company.
The court instructed the jury at the request of plaintiff, over the objections of the defendant, in part, as follows:
“1. If you find from the testimony that the handcar and roadbed were furnished plaintiff by defendant or by the defendant’s foreman, Will Richardson, then the source of its title to said roadbed, whether owned by the defendant,' leased, borrowed or otherwise placed in his possession for use, is wholly immaterial. As between plaintiff and defendant, the roadbed is the property of the defendant.
“2. It was the duty of the defendant to exercise ordinary care and diligence to provide a reasonably safe track at this place for the use of the plaintiff; and if it failed to perform that duty, and plaintiff was injured by reason of such failure, then the plaintiff may recover, unless he was guilty of negligence which contributed to his injury, or knew or ought to have known of the defects of the track before attempting to use it.
“3. If, under all the circumstances which surrounded the plaintiff at the time of the accident, he ought to have observed and comprehended the danger of a defective rail and joint, if the same were defective, before using it [them], then he assumed the risk in that condition, and can not recover. The fact that he might know of the defects, or that he had means of knowing them, will not preclude him from recovery, unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them.”
And refused to instruct the jury, at the request of the defendant, as follows:
“i. It is admitted in this case that the Ultima Thule, Arkadelphia & Mississippi Railway Company and the Arkadelphia Lumber Company are separate and distinct corporations, -incorporated by and under the laws of this State, and the plaintiff must be held to a knowledge of the fact that the railway company, and not the lumber company, was operating the railroad, and in going upon said road in a handcar he assumed all the risk arising therefrom.”
The jury returned a verdict in favor of the plaintiff for $3,000, and the defendant appealed.
While appellee was going home after his day’s labor was done, he was still in the service of the appellant. He was traveling in a handcar furnished by appellant according to their implied contract; and the duties of the one to the other for the day, as master and servant, were not fully discharged. Gilman v. Eastern R. Corp., 87 Am. Dec. 635; Gillshannon v. Stony Brook R. Corp., 10 Cush. 228; Seaver v. B. & M. Rd., 14 Gray, 466; Ryan v. Cumberland, etc., R. Co., 23 Pa. St. 384; Ewald v. Chicago & N. W. R. Co., 5 Am. St. Rep. 178; Packet Co. v. McCue, 17 Wall. 508.
Appellant furnished to appellee the handcar and the portion of the lateral railroad used by him at the time he was injured. D. B. Plart was its tracklayer, and as such it was his duty to “keep up” the lateral road at the time appellee was injured. D. E. Hubbard, the engineer who hauled logs over the same, was jointly employed by it and the railroad company. Appellant owned and kept handcars to be used on the lateral road by its teamsters, and it was understood by it and them that it would furnish them with a handcar to convey them over the same from their work to their homes. This was one of the inducements to them to engage in its service. Under these circumstances, when it furnished them with a handcar to be used on the lateral road, it became bound and liable to them in the same manner and to the same extent it would had the road belonged to and been controlled by it. It assumed the same duties and liabilities. L. R. & Ft. Smith Ry. Co. v. Cagle, 53 Ark. 347; Arkansas Central Railroad Company v. Jackson, 70 Ark. 295; Stetler v. Chicago & Northwestern Railway Co., 49 Wis. 609.
“Although a logging road,” it is said, “is not expected or required to he laid with the same care and security, or to be as solid and complete, as is demanded in the construction of railway tracks in use by common carriers, nevertheless it should be so constructed and operated as to render it secure to' those whose employment necessitates their going upon such road and perform ing services in connection with the same.” Lynn v. Lumber Co., 105 La. 455; 6 Thompson, Negligence, § § 4254, 4275, 4276.
In this case the evidence tended to prove that the portion of the track where the accident occurred was laid a short time before the injury; that an old rail with six or eight inches of the ball broken off was used 'in its construction, and that this rail was “worse than the other rails on the track — crumbled, caused a low joint.” The jury might reasonably have inferred from the evidence that the defect in the track was made by the construction of it, and not by usage, and that it was the proximate cause of the accident and injury. In that event the appellant was chargeable with notice of the defect, and liable to its employees injured on account thereof, without any previous notice or knowledge of the same. '
We find no reversible error in the giving or refusing instructions.
The evidence is sufficient to sustain the verdict.
Judgment affirmed. | [
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Battle, J.
This action is for damages alleged to have been caused by delay in the delivery of the following telegram:
“Little Rock, Ark. Oct. 19, 1903.
“Dr. March,
“Fordyce, Ark.
“Operate tomorrow. Tell Scott not home until Thursday.
[Signed] “J. M. Raines."
Plaintiff, J. M. Raines, alleged that this telegram was delivered to the defendant, Western Union Telegraph Company, at its office in Little Rock, Ark., at 6 p. m. on the day of its date, and that, in consideration of fifty cents paid, it undertook to send the telegram promptly; that his wife had been brought to Little Rock for an operation, and that the presence of Dr. March, who was the family physician, was desired, and plaintiff had arranged with the doctor to come upon receipt of a telegram; that the message was received in Fordyce at 7:15 p. m., but was not delivered until ten o’clock the following day, though Dr. March was in town, a few blocks away, expecting the telegram; thajtv the doctor did not receive it in time to get to Little Rock for the operation that day, and it had to be postponed until the next day; that the operation was a delicate one, and Mrs. Raines was subjected to a nervous strain, which rendered her less able to survive it, and the delay caused plaintiff great mental anguish.
The defendant denied that the message was delivered at six o’.clock, but says it was received at Fordyce at 7:15, and denies the charges of negligence.
There was a jury trial, and a verdict in favor of the plaintiff for $500 for injuries to feelings, and $8 for time and expenses.
The facts shown by the evidence adduced at the trial are substantially as follows:
In October, 1903, plaintiff was residing in Fordyce, Ark. His wife had been in bad health for more than a year, suffering with pains in her right side. Dr. March, his family physician, advised him to take her to Dr. Runyan at Little Rock, which he did, leaving Fordyce at noon on the 18th of October, 1903, and reaching Little Rock at about 7 p. m. Dr. Runyan examined her on the next day, and decided that an operation was necessary, and set the 20th of October, 1903, for it to be performed. Plaintiff promised Dr. March that if there was an operation to be performed he would telegraph him, and the doctor agreed, in that event, he would “come up.” On the 19th of October, 1903, when the sun set, as shown by the almanac at 5 :2y p. m., after sunset, when it was still light enough to see outdoors, but the lights were lit inside, he delivered the telegram sued on to one of defendant’s employees, paid for it, and told him it was important, and should be sent promptly. The telegram was received at Fordyce after office hours, and was delivered to Dr. March on the 20th of October, 1903, too late for him to be present at the time the operation was to be performed, and he did not reach Little Rock until the 21st. The operation was postponed on account of the absence of the doctor until that day, when it was performed, and Dr. March was present. Mrs. Raines died the next day. The result of the operation would not have been different, had it been performed twenty-four hours earlier.' Plaintiff testified that “the delay in Dr. March’s coming and the consequent postponement" of the operation and his wife’s changed condition caused him the greatest mental suffering.”
The defendant asked and the court refused, the following instruction to the jury:
“6. A party to a contract is only liable in case of a breach for such damages as he can see or is advised are likely to flow from the breach. In this case there is nothing in the message to indicate that Dr. March was expected to come to Little Rock to attend the operation, or that the operation would be postponed if he failed to come; and it is not shown that the plaintiff communicated either of those facts to the defendant at the time of the delivering of the message for transmission. There can, therefore, be no recovery in this case for more than the price of the telegram.”
But the court modified and gave it as follows:
“6. A party to a contract is only liable in case of a breach for such damages as he can see or is advised are likely to flow from the breach; and if you' believe from the evidence that there was nothing in the message, nor in the statements and conduct of the plaintiff, to notify the defendant or its operators of the importance of an immediate delivery, and the defendant delivered the' same within a reasonable time, then your verdict should be for the defendant.” *
Should the instruction as asked have been given?"
Section 7947 of Kirby’s Digest of the statutes of this State provides: “All telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all actions under this section the jury may award such damages as they conclude resulted from the negligence of the said .telegraph company.” Before the enactment of this statute this court held “that for mental pain and anguish alone, unaccompanied by physical injury, damages are not recoverable at law.” Peay v. Western Union Telegraph Company, 64 Ark. 538. The statute is an amendment of the law of this State as declared by this court, and makes damages for mental suffering recoverable in the same manndr and on the same conditions as other special damages.
The damages recoverable under the statute are such as the jury may conclude resulted from the negligence of the telegraph company. Such damages are allowed as a compensation for the mental anguish or suffering; and the liability of the company for the same depends upon its having had notice, before or at the time of receiving the telegram, of the special circumstances on account of which mental suffering was caused by negligence in transmitting or delivering the message. This notice may be given by or through the telegram itself or otherwise.
Thompson on the Law of Electricity sa)^s: “There can be no recovery for a loss arising from special circumstances not communicated to the company at the time when the dispatch is delivered to it for transmission, or before it has assumed the undertaking, or before the time has elapsed within which it has become impossible for it to perform it so as to avoid loss. Unless, therefore, the language of the dispatch, as delivered to the agent of the company, shows its importance or urgency, this must be specially communicated; otherwise no more than the cost of sending the message which the sender has paid to the company can be recovered.” Section 313.
Again he says: “As damages for mental suffering, injury to family affection and the like are given on the footing of compensation, the rule of Hadley v. Baxendale applies in such a sense that the company, iii order to be held liable for such damages, must have had notice, either through the wording of the dispatch or otherwise, of the special circumstances in consequence of which a failure to transmit it seasonably and correctly will entail mental suffering; and such we find to be the law, as, recognized in several decisions.” Section 386.
Crosswell on the Law Relating to Electricity sai^s: “The courts which hold that damages for mental suffering may be recovered in these cases base the recovery, as was stated in a previous section, upon the fact that the language of the message gives direct notice to the telegraph company that the message concerns important social events, and that 'negligence on its part is likely to be followed by mental suffering and distress to the parties, and that the subject-matter of the contract for transmitting the telegram is a matter of feeling only, and that as damages are allowed for pecuniary loss when the subject-matter of the telegram is a pecuniary transaction, so damages should be allowed for injury to the feelings when the subject-matter of the telegram is a transaction involving feelings.” Section 649.
In Kennon v. W. U. Telegraph Co., 126 N. C. 235, the court said: “In all the cases in this court (and in all others so far as our researches go) in which a verdict for damages for mental anguish have been sustained, the telegraph company had notice that a failure to deliver might reasonably cause mental anguish to the sender or sendee, or to some one for whom the sender or sendee was acting as agent. In such case the damages for mental anguish are really actual damages in reasonable contemplation of both parties, if the message should not be delivered.”
Again it says: “The messages in regard to which damages on account of mental anguish have been allowed in North Carolina are:
“Young v. Telegraph-Co., 107 N. C. 370 — -‘Come in haste, your wife is at point of death.’
“Thompson v. Telegraph Co., 107 N. C. 449 — -‘Father, come at once, mother is sick.’
“Havener’s case, 117 N. C. 540 — ‘‘Your mother is not expected to live; come at once.’
“Sherrill’s case, 109 N. C. 527 — -‘Tell Henry to come home. Lon is bad sick.’
“Lyne’s case, 123 N. C. 129 — ‘Gregory met accident; not live more than twenty-four, twenty-six hours.’
“Cashion’s case, 124 N. C. 459 — ‘Come at once, Mr. Cashion is dead. Killed while at work.’
“Landie’s case, 124 N. C. 528 — ‘Frank dead. Meet depot, at Wadesboro. Bury him in Chesterfield. Grave three feet.’
“Dowdy’s case, 124 N. C. 522 — ‘Come home at once; baby is very sick.’ ”
The rule as to telegrams relating to sickness and death, and followed in the North Carolina cases, is stated in Western Union Telegraph Company v. Kirkpatrick, 76 Texas, 217; 18 Am. St. Rep. 37, is stated as follows: “-In telegraph messages conveying information of sickness and death, if the language was sufficient to suggest that a near relationship existed between the person mentioned in the message and the person addressed, and that the object of the communication was to afford the latter the opportunity of going to his relative, it would be sufficient, without further notice, to render the company liable for damages for any mental suffering that should result to him from his being deprived of the consolation which his visit would have afforded, provided the negligence of the company in failing to make a prompt delivery was the cause of the injury.”
In the case at bar the plaintiff can not recover damages on account of the mental sufferings of Dr. March. Was there anything in the telegram to suggest to the defendant that plaintiff would suffer mentally by reason of delay in its transmission or delivery? It (telegram) does not indicate upon whom'the operation was to be performed, or that it was to be an important or serious operation, but the contrary. On Monday, the 19th of October, 1903, he telegraphed to Dr. March, .“Operate tomorrow. Tell Scott not home until Thursday.” The operation was to be on Tuesday, and on Thursday he would be at home, which indicates it was not serious or important, so far as he was concerned, as he did not intend or expect to remain in Little Rock longer than one day after it was performed. There was nothing in it to indicate that Dr. March was expected to be present at the operation, or that it would be postponed if the doctor was not present at the appointed time. It indicated that there was only one thing that Doctor March was required, requested or expected to do, and that was to- tell Scott that he would not be at home until Thursday, “and the reference to the operation is apparently a mere explanation of why he could not return till Thursday.” The fact that he told the operator that the telegram was important did not indicate that the operation was serious, and that Dr. March was to be present, or suggest that,.if he was not, plaintiff would undergo mental sufSering. It could have as reasonably been construed that the message sent to Scott was important.
This action was brought to recover damages for mental suffering of plaintiff. The special circumstances in consequence of which the failure to transmit and deliver the telegram without delay entailed the mental suffering upon plaintiff were as follows : Dr. March was expected to come to Little Rock to attend the operation, or it would be postponed if he failed to do so. These special circumstances, or either of them, were not communicated by the telegram or otherwise to the defendant; and plaintiff was not entitled to recover damages. The defendant asked the court to instruct the jury to that effect, but the court refused to do so, and gave one in lieu thereof which did not inform the jury that plaintiff was not entitled to recover, if the defendant had no notice of such special circumstances at the time of the delivery of the telegram. The court erred in refusing to give the instruction asked by the defendant.
Reversed and remanded for a new trial. | [
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McCulloch, J.
This is an action of ejectment which involves the construction of the following deed (omitting caption):
“That the said Eliza Whetstone and her husband, Evans L. Whetstone, for and in consideration of the sum of $500, lawful money of the United States, in hand, the receipt of which is hereby acknowledged, have granted, bargained and sold,_ and by these presents do grant, bargain and sell and convey, unto Samuel W. Mays, party of the second part, his heirs and assigns, the entire interest of the said Eliza Whetstone and her husband, Evans U. Whetstone, in and to the property belonging to the estate of John C. Blanton, deceased, late of the county and State aforesaid, and consisting of a one-third interest of the following described property belonging to the estate of the said John C. Blanton, deceased, towit: (Here follows the description). To have and to hold the above bargained and granted land for life, together with all the interest that the said party of the first part has or may have in or to any and all property, real or personal, belonging to the estate of the said John C. Blanton, deceased. And, for and in consideration of the foregoing payment of five hundred dollars by the party of the second part to the party of the first part, the party of the first part hereby sells, bargains and conveys, gives, grants and releases all their claim, interest or demands as heirs of Richard Blanton, deceased, in and to any or all property, real or personal, belonging to said estate of the said Richard Blanton, deceased, unto the party of the second part, his heirs and assigns forever, and the party of the first part do further agree with the party of the second part that they are the lawful heirs of the said John C. Blanton, deceased, and Richard Blanton, deceased, and that they have a good and lawful right to sell their interests in the aforesaid lands and their whole interest in all property belonging to said estate, that their interest is free from all incumbrances suffered or made through them, and that they will, and that their estate, covenant and defend the said party of the second part, his heirs and assigns, [against] the lawful claims and demands of all persons whatsoever.”
The„ interest claimed is that inherited from John C. Blanton, it being conceded that appellant’s interest in the Richard Blanton lands was conveyed in fee simple by the deed.
It is contended by appellant that an estate for and during the life of the grantee was conveyed, by the deed, whilst appellees contend that an estate in fee simple was conveyed. The circuit court held that an estate for and during the life of the grantor was conveyed. Both parties have appealed to this court.
“If,” says Mr. Washburn, “there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but if they can be construed so as to stand together by limiting the estate without contradicting the grant, the court always gives that construction, in order to give effect to both. If, therefore, a grant be to A. and his heirs, habendum to him for years or for life, the restrictive clause is void, because it contradicts and defeats the grant.” 3 Wash. Real Prop. (6 Ed.), § 2360; Elphinstone’s Interp. Deeds, 219; 1 Cooley’s Blackstone, book 2, p. 297; Tyler v. Moore, 42 Pa. St. 376; Hunter v. Patterson, 142 Mo. 310; Lamb v. Medsker, 74 N. E. (Ind.) 1012; Ratliffe v. Marrs, 87 Ky. 26; Smith v. Smith, 71 Mich. 633. “As to the habendum, it is a rule of law that every part of the deed should be examined and construed as a whole. But if the habendum be found to be in conflict with the granting clause, the habendum must give way, upon the theory that the deed shall be construed most strongly against the grantor, in order to prevent a contradiction or retraction by a subsequent part of the deed, or a limitation being placed upon a right which had been granted and given in the premises.” Lamb v. Medsker, supra.
It will be observed that the habendum clause in this deed does not specify the party to whose life the grant is limited, whether to the life of the grantor or of the grantee. It reads merely, “to have and to hold the above-bargained and granted land for life, together with,” etc. This language would ordinarily mean for the life of the grantee, but it is ambiguous, and to give it that construction would be to bring it in direct conflict with the granting clause of the deed, for if the word “heirs” of the grantee is to be given any effect whatever, there must be some estate left after his death for his heirs to take. On the other hand, if we construe the words of limitation to be for the life of the grantor, they are not necessarily in conflict with the granting clause, for under that construction there might be an estate for the heirs of the grantee to take after his death. Giving it that construction, the two clauses of the deed are consistent and not conflicting, and, according to the authorities just quoted, it is our duty to give all parts of the deed such construction, if possible, as that they will stand together. See also Carson v. McCaslin, 60 Ind. 334; Caldwell v. Hammons, 40 Ga. 342; Coleman v. Beach, 97 N. Y. 545; Henderson v. Mack, 82 Ky. 379; Bodine v. Arthur, 91 Ky. 53; 2 Tiff. Real Prop. § 382.
“In the case of repugnant dispositions of property contained in the same instrument, the courts are from necessity compelled to choose between them; but it is only when they are irreconcilably repugnant that such a disposition of the question is required to be made.” Coleman v. Beach, supra.
The judgement of the circuit court is therefore correct, and must be affirmed. It is so ordered. | [
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McCulloch, J.,
(after stating the facts.) It is earnestly insisted by learned counsel for appellant that the court should have taken the case from the jury by a peremptory instruction to return a verdict in favor of the defendant, on the ground that the plaintiff was guilty of contributory negligence. We do not, however, think that, under the evidence presented, it was a case for the court to say as a matter of law that the plaintiff was guilty of negligence. If it be conceded that it was negligent for plaintiff to alight from the moving car under the circumstances shown, that was not the proximate cause of the injury. He was not injured in alighting from the car or by reason of having done so in the manner shown. If he was guilty of negligence at all which contributed to” the injury, it was by going upon the railway track without observing the proper precautions of looking and listening for the approach of cars. This question was fully submitted to the jury on instructions asked by both parties, and there was evidence to justify the verdict of the jury. The plaintiff testified that when he was about to alight he got on the steps of the car and stood facing the direction the.car was moving, and that he looked and listened for an approaching car on the other track, and that after he alighted and before attempting to cross the track he faced the only direction from which a car might be expected and looked and listened, and that, neither seeing nor hearing the approach of a car, he attempted to cross. The evidence did not present a case of a man emerging from behind a moving car or other obstruction on to a railway track without awaiting an opportunity to look or listen for the approach of a car.
The court also properly instructed the jury upon all the other questions of contributory negligence. Taking the instructions as a whole, they were fair to the defendant, and put the case to the jury in as favorable an aspect as the law of the case warranted.
It is urged-that the court erred in submitting to the jury as an element of damage the “pecuniary loss” sustained by plaintiff, when the evidence established no injury of that character. The instruction given at plaintiff’s request on the -measure of damages concluded with the words “and the pecuniary loss-, if any is shown by the testimony, sustained by reason of inability to attend to his business or profession.” There was no evidence of any such damage, but this part of the instruction should have been specifically objected to. A general objection to the instruction as a whole was not sufficient. '
Counsel for appellant also contend that the court erred in submitting to the jury instructions upon all the charges of negligence in the complaint. They argue that the instructions were abstract, as there was no evidence upon which they could be based. We find that there was evidence sufficient to base instructions upon each of the charges of negligence except the first involving the question whether the motorman who operated the car which struck plaintiff was incompetent and known to be such by the defendant. There was no evidence of that fact, and the court should not have submitted that question to the jury. But the’error was not prejudicial, for the reason that the jury, by the verdict returned, necessarily convicted the motorman of negligence. A finding of incompetency of the motorman could not have resulted in a verdict for the plaintiff, if the jury obeyed the instructions of the court, unless they found that it contributed to plaintiff’s injury, and it could not have so contributed unless the motorman was guilty of negligence in one of the particulars charged. The error was therefore harmless.
Finding no prejudicial error in the record, the judgment must be affirmed. It is so ordered. | [
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John F. Stroud, Chief Judge.
This is an ESD case. The claimant, appellee Darrel Cason, was discharged from his employment with appellant, Arkansas Midland Railroad, because of a random drug test that showed that his urine sample had been adulterated with chromium. Under appellant’s employment policies, an employee who tampered with a urine sample was considered to have refused to take the drug test, and any employee who refused to take a drug test was to be notified of his termination. When appellee Cason applied for unemployment benefits after his discharge, he was denied based upon a finding that he had been discharged for misconduct. Cason appealed that denial, and the Appeal Tribunal reversed, concluding that there was not sufficient evidence to prove that Cason had adulterated the urine sample. Appellant appealed that decision, contending that the Arkansas ESD lacked jurisdiction over the case and that sufficient evidence had been presented to prove that Cason had engaged in misconduct. The Board of Review determined that jurisdiction was proper and adopted the Appeal Tribunal’s decision. We affirm.
The facts of this case are essentially undisputed. Appellee Cason was employed as a train engineer for appellant. On December 5, 2001, he was tested for drugs after he “drove his engine through a switch that was against him.” He did not test positive for drugs at that time. On December 11, 2001, he was selected to be tested as part of his employer’s random drug-testing policy. Cason was not able to produce his urine sample immediately, so he gave his cup to the test administrator. The cup was then placed on a shelf in the restroom and appellant left that area. Several other employees entered and left the restroom. Appellant returned in forty-five minutes. He was given his original sample cup, and he testified that he thought that he was observed as he produced his sample. He was not asked to empty his pockets or to wash his hands before producing the sample, two steps required by the drug-testing policy, presumably to ensure an unpolluted sample.
On December 18, Cason was contacted by the medical-review officer. He was told that the test showed that his urine sample had been adulterated with chromium. He was also informed that the adulterated sample could have been caused by several things: 1) that he added something to the sample that adulterated it; 2) that the sample was adulterated by the environment, which included various cleaning chemicals on the shelf where the cup remained for forty-five minutes; 3) that the cup itself might have been contaminated; or 4) that there could have been a contaminant on his unwashed hands.
Cason informed his supervisor that there was a problem with the sample and that he needed to have the second, “split,” sample tested. He was told that an adulterated test was the equivalent of a refusal to take the test, and that he was accordingly discharged in compliance with company policy. He was told that he could appeal the decision and pay the $200 cost of testing the second sample. Cason chose not to pay the fee for a second test'.
For its first point of appeal, appellant challenges the employment security department’s “jurisdiction to award railroad unemployment benefits” to appellee Cason. We find no error in the Board’s conclusion that its jurisdiction was proper. Moreover, we specifically note appellee ESD’s acknowledgment in its brief that it has awarded Cason only Arkansas unemployment benefits and that it has no jurisdiction to award benefits based on railroad wages.
In refuting appellant’s claim that Arkansas lacks jurisdiction in this case, the Board recognized that 45 U.S.C. § 363 (2000) provides that a claimant may not file a claim for unemployment benefits under the laws of the individual states if the claimant’s claim for benefits is “based upon” employment with a railroad. The Board then explained that, as it related to unemploymeht, the term “based upon” meant the basis upon which the claimant was able to establish a claim for benefits. It further explained that the issue then became “whether [Cason’s] ability to establish a valid claim for benefits stems from his employment with the last employer, which was a railroad, or instead rests on his employment with those employers contained within his base period, which are not railroads.” (Emphasis added.) The Board concluded that Cason’s claim for benefits was based upon the employment contained within his base period (non-railroad employment), and not from his last work (railroad employment). The Board acknowledged that a claimant’s separation from his last work determined his/her eligibility to receive benefits, but explained that eligibility for benefits and the ability to file a claim for benefits were two distinctly different things and that it was the employment within the base period that governed the claimant’s ability to file a claim, not the nature of his last work.
The Board compared Cason’s situation to the jurisdictional question that arises when a claimant has had employment within two or more states:
A similar jurisdictional question arises when a claimant has had employment within two or more states. When a claimant files a claim for benefits, before any consideration is given to the claimant’s separation from last work, the Department must determine if the claimant can even establish a monetary claim for benefits, and if so, which state shall have jurisdiction over the claim. This is done by examining the employment and wages contained within the claimant’s base period, regardless of the nature or location of his last work. ... It is this base period, and not the location of the last work, which determines which state shall have jurisdiction. For example, if all of the claimant’s wages within his base period are from employment within the State of Arkansas, then Arkansas has both jurisdiction and liability over the claimant’s claim for benefits, regardless of whether or not the claimant’s last work was located within another state. Similarly, in the current case, all of the claimant’s wages within his base period are from employment with non-railroad employers. Thus, the fact that the last employer was a railroad does not alter the fact that the claimant’s ability to establish a claim, as distinguished from his eligibility to receive benefits, is based upon his employment with the non-railroad employers, and not upon the nature of his last work.
We find that this analogy is sound, and because it is undisputed that only non-railroad wages from Cason’s base period were used to determine the basis for his claim, we agree with the Board that jurisdiction was properly exercised in this case.
For its remaining point of appeal, appellant contends that the Appeal Tribunal and Board of Review erred in finding that appellant had failed to present sufficient evidence to establish that Cason was fired for reasons amounting to misconduct. We disagree.
Arkansas Code Annotated section 11-10-514 (Repl. 2002) provides in pertinent part:
(a) (1) If so found by the Director of the Arkansas Employment Security Department, an individual shall he disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work.
(b) If he or she is discharged from his or her last work for misconduct in connection with the work on account of dishonesty, drinking on the job, reporting for work while under the influence of intoxicants, including a controlled substance, testing positive for illegal drugs pursuant to a United States Department of Transportation-qualfied drug screen conducted in accordance with the employer’s bona fide written drug policy, or willful violation of bona fide rules or customs of the employer pertaining to the safety of fellow employees, persons, or company property, he or she shall be disqualified from the date of filing the claim until he or she shall have ten (10) weeks of employment in each of which he or she shall have earned wages equal to at least his or her weekly benefit amount.
(Emphasis added.)
In Maxfield v. Director, AESD, 84 Ark. App. 48, 54, 129 S.W.3d 298, 302 (2003), we explained:
Arkansas Code Annotated section ll-10~514(a)(l) (Repl. 2002) provides that an individual “shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.” The employer has the burden of proving misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).
The findings of the Board of Review are conclusive if they are supported by substantial evidence. Billings v. Director, ESD, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Here, the Board found in pertinent part:
[T]he Board notes that the employer has the burden of proving misconduct by a preponderance of the evidence. The evidence in the current case does not meet this burden. The evidence indicates that although it is possible that the claimant’s actions caused the urine sample to be altered, it is just as possible that the alteration was caused by something apart from the claimant. There is simply insufficient evidence to show that the claimant’s actions either caused, or were the most likely cause of, the alteration of the urine sample. Therefore, the decision of'the Appeal Tribunal, which reversed the Department determination, is affirmed on the finding that the claimant was discharged from last work for reasons which do not constitute misconduct in connection with the work.
(Citation omitted.) We conclude that the Board could reasonably reach this opinion based upon the evidence that was before it.
Affirmed.
Hart and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Linda Camarillo-Cox appeals the termination of her parental rights to four children, A.S. (male born 1/17/94), S.S. (female born 11/13/95), J.N. (male born 12/9/99), and M.N. (male born 3/3/01), as entered by the Benton County Circuit Court. The Department of Human Services (DHS) sought termination on the basis that the children had been out of the home for more than twelve months, and despite meaningful effort by DHS to help remedy the conditions that caused removal, those conditions were not remedied by appellant. DHS also argued that the children had been subjected to aggravated conditions in that appellant manifested indifference or incapacity to correct those conditions, and that she had not provided meaningful support or contact during the pendency of the case. The trial judge found that DHS had proved its contentions by clear and convincing evidence. On appeal, appellant argues that the trial judge clearly erred by finding that DHS proved grounds to terminate parental rights by clear and convincing evidence. We reverse and remand.
Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wright v. Arkansas Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Arkansas Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. 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. Brewer v. Arkansas Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001).
The legislative intent, found in Ark. Code Ann. § 9-27-341 (a)(3) (Supp. 2003), states that the intent is to provide permanency in a juvenile’s life in all instances where 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.
With these parameters of appellate review, we examine the evidence. Appellant first made contact with DHS when a protective-services case was opened on May 29, 2001, after A.S. was found a mile away from home by a police officer. DHS offered parenting classes and child care to appellant, which were refused. DHS provided the family with food stamps, and the children were on Medicaid. S.S. had severely crossed eyes, because of which she needed to wear corrective eyeglasses. During visits, DHS personnel rarely observed S.S. wearing them. Appellant was known to be depressed and on medication; however, appellant took the medicine sporadically at best.
Appellant’s children came into protective custody on August 22, 2001, when the children were in their maternal grandparents’ care at their Siloam Springs, Arkansas, trailer. The grandmother, a disabled woman, informed a DHS caseworker that she was unable physically or financially to continue to care for the children for her daughter in their two-bedroom trailer. As the caseworker interviewed the children, appellant arrived and accused her mother of lying. Then, appellant gathered the children’s social security cards and birth certificates, handed the documents over to the caseworker, said she was giving up, and told the caseworker to put the children in foster care. Appellant announced that she was leaving on a bus for Texas, said she was going to kill herself, entered her car, and drove away. Emergency custody took place that day.
On September 5, 2001, the trial court placed the children all together with their maternal aunt and uncle. Also in September, an adjudication hearing was conducted wherein the children were determined to be dependent-neglected. Appellant appeared at that hearing, stipulating to probable cause. Appellant’s counsel stated that appellant was having problems with her medications and did not have a home of her own at the time. The trial judge ordered appellant to complete the following tasks in order to have the children return: (1) attend individual counseling; (2) obtain and maintain stable and appropriate housing; (3) obtain stable employment; (4) keep DHS notified of her address and employment status; and (5) cooperate with DHS in achieving the case plan goals.
On November 20, 2001, a review hearing was conducted in which it was learned that appellant married Abie Cox, a man convicted of a sex-related offense. Appellant contended that it was not as bad as portrayed, because when Abie was seventeen he had consensual sex with a fourteen-year-old girl, whose father was mad at him. Appellant testified that she was still living with her parents in Siloam Springs, but that she had been approved for government housing and was on a waiting list for an apartment. Appellant said that there were five people living in her parents’ trailer. Appellant said she was trying to get caught up on her debts. Appellant explained that she had been working for a month and a half, that her weekly income of $173 exceeded her expenditures, but that she could not make her payments because she owed late fees on top of the bills. Appellant stated that she visited her children at her aunt and uncle’s house about once a week and gave them about $20 per week for the children. Appellant was not attending counseling, but appellant said she would attend counseling only in Siloam Springs, to which she preferred to drive herself if she had the gasoline. Appellant said she could not be counseled at Ozark Guidance Center because she owed money there from earlier sessions, though she preferred to have counseling with her regular counselor, Megan, who worked for Ozark Guidance Center.
A DHS family service worker, Stormy Randolph, confirmed that the maternal aunt and uncle said appellant visited about once a week, and she stated that DHS was providing appellant with parenting classes. However, Ms. Randolph was concerned that reunification might not occur in the near future because appellant was not attending counseling for her depression, she was not earning enough to support herself, much less four children, given her limited hours of work, she had not obtained housing on her own, and she had married Mr. Cox, who was a sex offender. Ms. Randolph said that DHS could provide the counseling and the transportation to Rogers where those services were available, but appellant did not want to because her physician was in Siloam Springs.
The trial judge concluded that DHS had made reasonable efforts, but that DHS should assist more in the acquisition of housing. He commented that appellant was argumentative and said that she could take care of things on her own, but that her performance had indicated otherwise. The judge was unwilling to find that appellant’s husband was a danger to the children without more proof. The judge directed appellant to visit her children, to continue to look for appropriate housing, to regularly attend counseling, and that if she were making support payments, to have proof of it.
On January 15, 2002, an emergency hearing was conducted because the children’s aunt and uncle decided that they no longer wished to have the children. They did not understand that custody would last as long as it had. The children returned to the custody of DHS, and the children were sent to foster homes.
On February 19, 2002, a review hearing took place. It was learned that the children had been referred to counseling since being taken back into DHS’s custody, that appellant’s husband had been incarcerated for a parole violation, and that appellant had not yet attained her own housing or an adequate income to care for four children. The judge noted that the children had been out of the home for about six months, and further, “I’m afraid that all too often, young parents believe that if they just come and tell me that they’ve attempted to do things, that that will be good enough.” The judge reiterated that the law requires that “they actually accomplish things, so that their children’s interests are first.” The judge told appellant that he would rather she be scared to lose her children and work extraordinarily hard than to have to terminate her rights. The judge ordered the children to remain in foster care, that the two older children receive counseling, and that efforts be made to ensure that S.S. wore her glasses. The judge reaffirmed the case-plan requirements on appellant, adding that she must take her medication.
At a review hearing on May 7, 2002, evaluations indicated that appellant suffers from major depression and exhibited some behavioral problems. Appellant’s counselor, Megan, was losing hope that appellant could be a fit parent. The judge cautioned appellant’s counsel to understand that DHS was moving toward a permanency planning hearing, that the children had been out of the home for nearly a year, and that if she did not make major progress she could expect to lose her parental rights. The judge outlined the requirements on appellant: stable employment; stable housing; attend counseling; take medication; complete parenting classes; maintain contact with DHS; attend visits or notify for cancellation or rescheduling; and cooperate with DHS to reach goals.
A permanency planning hearing was conducted on August 13, 2002, and Miguel Nava came forward for the first time claiming to be the father of J.N. and M.N. Mr. Nava was appointed counsel. The maternal grandparents sought to intervene, which was granted. At the conclusion, the trial judge set the case for a termination hearing in November 2002. The order filed of record from the permanency planning hearing ordered that appellant comply with the following terms and conditions: maintain stable employment; obtain stable and appropriate housing; inform DHS of her address and phone number; attend counseling; take her medication; attend regularly scheduled visits with the children and notify DHS of any changes or cancellations; and cooperate with DHS on the case plan goals.
At appellant’s request, a continuance was granted, so the termination hearing did not occur until December 30, 2002. Appellant appeared and testified that she had her own three-bedroom apartment in Siloam Springs that she had lived in for about five or six months. She had been married for about a year, but her husband had not lived with her except for the last two months due to his incarceration. She said that before that, “I lived here and there, with my parents, and with friends.” Appellant said she worked for a company that produced Hallmark cards making $7.50 an hour, but that she and her husband were currently laid off. They expected to be recalled to work the first week in January. Though she did not have a sitter ready, she said her mother couid help watch the children while she and her husband worked. Although she had missed some visits due to illness or work, she said she visited her children every Friday. Appellant said she was regularly taking a prescription medication called Celexa for her depression and had done so for about four months. She acknowledged that she had this prescription starting in the spring of 2001 but that she did not take it as prescribed and even stopped taking it for a while. Appellant said that she had her own counselor, Megan Lescher at Ozark Guidance, who she saw usually twice per week in the spring of 2001, but she stopped seeing her and only scheduled another appointment the Friday before the termination hearing.
Appellant believed that though she could not handle the pressure in the beginning, she had become very able to do so as long as she took her medicine. She felt more able because her bills were paid current, her father had bought her a car, she could sell things she did not need to pay bills, she had family to help her, and she was ready to meet her children’s needs. She explained their needs as love, food, air, shelter, and discipline. Appellant testified that she was sure she could work something out for childcare during work hours, and the older two would attend school.
Appellant acknowledged that Miguel Nava was the father of her two youngest children. She testified that they formerly lived together, he worked, and she stayed home, but in approximately April 2001, they separated because he stabbed her in the presence of the children. Appellant said that Miguel did not have much involvement in the children’s lives after that, except that he did pay some support. Appellant acknowledged that two other men were the natural fathers of A.S. and S.S. She believed that A.S.’s father was deported to Mexico and that S.S.’s father was deceased.
Appellant complained that DHS did not help her find housing, pay rent or bills, offer to provide transportation, or provide counseling. Appellant said she had completed parenting classes. However, appellant agreed that she had told DHS that for the most part she wanted to do it on her own. Appellant testified that although she knew about her husband’s parole conditions, she would be around to supervise her children and that they would not be alone with him. Further, she offered to remove her husband from the household to avoid termination of her rights.
Her husband’s parole officer, Jeff Bland, testified that Mr. Cox had been on parole since October 2002 and would be until 2006. Bland related that his parole had the usual conditions, plus he was (1) not to have unsupervised contact with minors, (2) to avoid high-risk situations, (3) to undergo periodic drug testing, and (4) to abstain from alcohol consumption. Bland said that he explained to appellant that she needed to think about taking him into her house given that she was trying to get her children back; she still wanted to take him. Bland said that Mr. Cox had been generally compliant with his parole conditions since October and had not tested positive for drugs.
Appellant’s counselor, Megan Lescher, testified that she held a master’s degree in counseling and provided counseling for a wide range of problems. She said she often referred patients to a psychiatrist with the idea that medication would help, and that 95% of the time, the psychiatrist agreed with her assessment. Lescher said that she first encountered appellant in January 2001 when appellant came in concerned about her son A.S. Lescher recognized that appellant had a flat affect, she cried and was despondent, she had nightmares, and she felt detached. Lescher eventually assessed appellant as having major depression, borderline personality traits, and post-traumatic stress disorder based upon a history of physical and sexual abuse. Lescher said that appellant was sporadic in coming to see her for counseling early on, making it to two or three sessions, and then just failing to make appointments for a while. Other than the Friday prior to this hearing, Lescher had not seen appellant since February 2002. Lescher said that appellant told her that she had six months of employment and was taking her medication. With that history, Lescher deemed her prognosis much better than in the beginning when she was consistently unreliable and unstable. However, Lescher admitted that she had not personally seen this new-found progress because she had only seen her in one recent one-hour session. Lescher said that the most important factor in appellant’s stability was to stay on her medication.
Another counselor at Ozark Guidance, Don Beckman, testified that he held a master’s degree and had been in the profession for about twenty-five years. Around February 2002, Beckman began work with A.S. and S.S., who were about eight and seven years old at that time. Beckman was assigned to them because they were having difficulty being separated from their mother and being in foster care. A.S. expressed anger and aggression, and Beckman did not see much improvement in the four months he saw A.S. However, in those same four months, S.S. made great strides, which Beckman believed was in some part due to improvement with her vision.
A family therapist from Little Rock, Tina Rushing, testified that she had worked with A.S. since July 2002, and that he exhibited depression, withdrawal, anxiety, and emotional sensitivity. She expected to see explosive aggression, but that did not happen. They worked on A.S. verbalizing his feelings instead of withdrawing. A.S. was receiving supportive services for learning disabilities in reading and spelling, and he was making progress. He expressed hope that he could return to his family, but he was angry and hurt that it was necessary to be removed. A.S. was also confused and hurt that his mother left him with his grandparents off and on since he was a toddler. Given that he was close to his siblings, he worried about termination and how it would affect his sister and brothers. Rushing expressed that A.S. needed permanency and that his life in “limbo” needed to end.
Lee Wade, three-year-old J.N.’s counselor, testified that J.N. initially expressed rigid, cautious, and guarded play that was not developmentally appropriate. J.N. had a high startle response, and he was overly aggressive for his age. Over the course of about eight months of treatment, Wade saw major improvement: more displays of exploration and confidence, and decreases in aggression. Wade did not believe that termination of parental rights would cause significant trauma for him.
Next came the testimony of Jennifer Graham, the DHS family services worker. Graham said that the children were presently eight (A.S.), seven (S.S.), three (J.N.), and one and a half (M.N.). Graham recalled that there was a protective services case opened on the family on May 29, 2001. Services were offered right away, but the children came into protective custody in August 2001 due to abandonment. Graham agreed that the children had been in several residential placements during the pendency of this case. A.S. had been in seven different placements, and S.S., J.N., and M.N. had been in four different placements. Currently the three youngest children were together in northwest Arkansas; the oldest was in Little Rock. Graham recounted the services provided including counseling, transportation, visits with family, medical/dental/vision treatment, and educational services.
Graham said that appellant had lived in her current apartment since August 5, 2002, but she understood that this was temporary housing. When Graham visited early on, there were two men living there with appellant, later joined by appellant’s husband. Graham agreed that appellant had acquired appropriate furnishings in the months that followed. Graham testified that appellant missed some visits, but she usually appeared, sometimes late. Graham acknowledged that most of the missed visits were attributed to appellant’s work schedule and some were due to DHS’s need to cancel. Appellant never asked for transportation assistance with the exception of visits to the oldest child in Little Rock. Graham agreed that appellant brought little gifts, clothing, and sometimes money to the children during visits, but she said appellant did not pay child support to DHS. Graham listed the services provided to appellant as including counseling referrals, transportation, housing referrals, visitation, and parenting classes. Graham agreed that appellant had completed parenting classes.
Though appellant had attained an apartment with appropriate furnishings and some employment history, and Graham acknowledged that appellant had basically completed her case plan, she did not deem these recent efforts to show stability. Graham testified that these positive changes occurred at or around the time that the termination hearing was set at the August 2002 permanency planning hearing. Graham recalled that there were referrals for counseling in August 2002, but there was no counselor assigned to her and no appointment made; appellant was on the waiting list. She stated that there was nothing else DHS could offer that would ensure reunification in a short period of time. Graham pointed out that the children had been out of the home for sixteen months, that there were prospects for all of them to be adopted and even one that might take all four children together, and that the children’s best interest was served by termination of parental rights.
In argument of counsel, it became clear that Mr. Nava’s rights were not going to be terminated at this point. However, because the two older children’s fathers were either deceased or did not appear, there was concern that the children as a sibling group would be split up. Counsel for DHS suggested that it was possible for A.S. and S.S. to be adopted together. The attorney ad litem, given this quandary, continued to support the position that appellant’s parental rights to all four children should be terminated.
The judge rendered his findings from the bench, finding that it was his sad duty to terminate appellant’s parental rights to all of the children, acknowledging that appellant loved them. The judge commented that appellant had been in and out of the children’s lives, that the pattern had not substantially changed in the time while the children were out of her custody, and that it was in the children’s best interest to give them an opportunity for stability and permanence in their lives. A.S. and S.S. were free to be adopted, while J.N. and M.N. had a pending case with their legal father. An order was filed on February 7, 2003, commemorating these findings. The order stated that DHS had proved that (1) the children had been out of the home for at least twelve months and that despite meaningful effort by DHS to rehabilitate the home and correct the conditions that caused removal, those conditions had not been remedied by the parent; (2) appellant had failed to provide meaningful contact or support while the children were out of her custody; and (3) appellant manifested an indifference or incapacity to correct the conditions leading to removal of the children. See Ark. Code Ann. § 9-27-341. This appeal resulted.
If any one of the bases for termination are supported by clear and convincing evidence, then we must affirm. We deem none of the alleged bases to be so supported, and we hold that they are clearly erroneous findings.
During the first twelve months that the children were out of the home, appellant undoubtedly manifested that she could not or would not do what was necessary to accomplish the return of her children. However, for the five months between the permanency planning hearing on August 13, 2002 and the termination hearing on December 30, 2002, appellant showed significant improvement and met nearly all of the case plan requirements. She attained employment, albeit at a temporary service, she acquired an apartment that was suitably furnished and clean, she was consistently taking her medicine, she completed more parenting classes than were required, she visited and gave small token gifts to her children, she maintained contact with DHS, and she reinstated counseling. Of the case plan goals set out for her to accomplish in order to gain the return of her children, she accomplished all except a steady course of counseling. Appellant indeed attended counseling very little and very late. However, appellant had a history and rapport with her counselor, and her counselor was encouraged at her progress that she said she maintained for several months. Importantly, her counselor testified that, the most important factor in her stability was taking her medication, which she was doing. Moreover, DHS acknowledged difficulty in making counseling available to appellant. In short, the unrebutted proof demonstrated that appellant made significant and sustained progress in the five months prior to termination of her parental rights. To find otherwise was clearly erroneous.
There were two alternative bases for termination that the trial judge found to be proved by clear and convincing evidence: (1) lack of meaningful contact or support; and (2) manifest unwillingness or incapacity to correct the conditions. These are likewise clearly erroneous findings. Any party seeking to terminate the parental relationship bears the heavy burden to prove by clear and convincing evidence that the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile. See Minton v. Arkansas Dep’t of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000). Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile’s custodian or ordered by a court of competent jurisdiction. Id. Appellant was not under any order to pay support, but in any event, it was uncontested that she sent money or gifts within her ability in her dire financial situation. Indeed, according to. DHS, one of the reasons that it opposed returning the children was that it concluded she was not earning enough money. As concerns “meaningful contact,” DHS conceded that she visited the children fairly regularly when she was not working. Because we have found error in the conclusion that appellant failed to remedy the conditions causing removal of her children, we consequently find reversible error in the finding that appellant manifested unwillingness or incapacity to remedy the conditions causing removal.
Reversed and remanded for proceedings consistent with this opinion.
Stroud, C.J, and Gladwin, J., agree.
The legal father of J.N. and M.N. participated in the permanency planning hearing, entering his objection to proceed because he was not properly notified ofDHS's intervention and actions. The trial court resolved that issue by ordering that the goal with regard to him be continued efforts at reunification. He is not appealing.
Any and all putative fathers of A.S. and S.S. were deemed to have their parental rights terminated by the order on appeal. No putative father of A.S. or S.S. appeals.
In the latter portion of their foster-care time, A.S. had been moved to the Litde Rock area. | [
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Sam Bird, Judge.
Hargis Transport Company appeals a decision of the Workers’ Compensation Commission that awarded benefits to James Chesser, a former truck driver for the company, for an injury to his right arm. The administrative law judge found the injury not to be compensable at an initial hearing, but a second hearing was granted for the purpose of taking additional evidence. The lawjudge found from the new evidence that the injury was compensable; the Commission affirmed and adopted the decision of the lawjudge.
Hargis raises three points on appeal, first contending that the Commission’s decision that Chesser satisfied his burden of proof in regard to new evidence was an abuse of discretion, and was contrary to the facts and law. Second, Hargis contends that substantial evidence does not support the Commission’s finding that Chesser acted diligently in obtaining the additional medical evidence. The third point raised is that substantial evidence does not support the Commission’s finding that Chesser sustained a compensable injury to his right arm. We disagree with all of these contentions; therefore, the decision is affirmed.
It is not controverted that Chesser reported to Hargis that he injured his right elbow and arm while unloading a truck in North Carolina on October 24, 2000. Hargis sent him for medical care to a general practitioner in Van Burén, Arkansas, and eventually to Drs. James Cheyne and Nils K. Axelson at River Valley Ortho-paedic Center in Fort Smith. Hargis later controverted the claim, and Chesser attempted to prove compensability by submitting records of his treating physicians at the initial hearing before the lawjudge on May 15, 2001. In a decision ofjuly 25, 2001, the law judge ruled that Chesser had failed to prove a compensable injury, specifically, by failing to meet the requirement of our workers’ compensation statutes that the injury be established by medical evidence supported by objective findings. Chesser timely appealed the decision to the Workers’ Compensation Commission.
On January 15, 2002, before his appeal was decided by the Commission, Chesser filed a motion for remand to the lawjudge for consideration of new evidence under the authority of Ark. Code Ann. § 11 — 9—704(b)(7). The motion recapped Chesser’s testimony at the initial hearing that he moved from Arkansas to Bacliff, Texas; and that on his last visit preceding the hearing, Dr. Cheyne recommended that Chesser obtain treatment closer to his residence for more aggressive, regular physical therapy than he was getting in periodic visits to Ft. Smith. The motion further stated that on December 17, 2001, Chesser saw medical personnel [in Texas] who recommended an MRI of his right arm; and that the MRI, performed on December 31, 2001, was clearly objective and warranted consideration. In a March 7, 2002, supplemental mo tion for remand, Chesser also requested consideration of a faxed copy of medical records, which he stated he had received on Friday afternoon, March 1, 2002, pertaining to a surgical procedure performed on his right arm on February 12, 2002.
On March 27, 2002, the Commission entered an order of remand to the law judge. At the resultant hearing, both parties were afforded the opportunity to present evidence on the issues of whether Chesser’s subsequently proffered evidence would change the result reached in the opinion of July 25, 2001, and whether Chesser had exercised proper diligence in obtaining and seeking to introduce the proffered additional evidence.
The law judge noted that the previous denial of the claim was based upon Chesser’s failure to meet the requirement of Ark. Code Ann. § 11-9-102(4)(D) that a compensable injury must be established by medical evidence supported by objective findings, and he noted that prior medical records had not established that expert medical opinion was based upon objective physical findings. In an opinion of September 20, 2002, the law judge found that the proffered additional medical evidence showed physical injuries or conditions based upon or supported by purely objective physical findings, and he found that Chesser had acted in a diligent manner in obtaining and seeking to introduce this additional evidence. Admitting the new evidence into the record, the law judge concluded that Chesser had sustained a compensable injury and was entitled to medical and temporary total disability benefits. In a decision of July 29, 2003, the Commission affirmed the decision of the law judge and adopted his findings of fact. The appeal before us arises from the Commission’s decision.
1. Whether the Commission’s decision that Chesser satisfied his burden of proof in regard to new evidence was an abuse of discretion, and was contrary to the facts and the law
2. Whether substantial evidence supports the Commission’s finding that Chesser acted in a diligent manner in obtaining the additional medical evidence
These points are interrelated, and we will address them as one. Arkansas Code Annotated sections 11-9-704 and 11-9-705 (Repl. 2002) govern the introduction of evidence for controverted workers’ compensation claims. Under subsection 11-9-704(b)(7), the Commission may remand any case to the administrative law judge for the purpose of taking additional evidence. Section 11-9-705 reads in pertinent part:
(c) Introduction of Evidence ....
(B) Each party shall present all evidence at the initial hearing.
(C)(i) Further hearing for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or commission.
The Commission’s discretion should be exercised and the motion to present new evidence should be granted where the movant was diligent and where the new evidence is relevant, is not cumulative, and would change the result. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960). The Commission’s exercise of discretion in determining whether to remand for the taking of additional evidence will not be lightly disturbed on appeal. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
Hargis cites its own prerogative to controvert a claim, and it complains that for five months it “labored” under the impression that it had prevailed at the hearing and was not obligated to provide care. It complains that Chesser did not seek care until he was in the emergency room some eight months after Dr. Cheyne instructed him to transfer his care to a physician closer to his residence, that Chesser did not actively seek treatment for his arm, and that he could not produce documentation or recall the name of any physician regarding refusal of treatment. Hargis observes that Chesser was able to travel from Texas to Arkansas for doctors’ visits and states that there was no “particular” evidence that Dr. Cheyne’s care was gratuitous. Hargis complains that Chesser “managed to obtain additional medical care for his elbow problem that included an MR.I” seven months after the first hearing and five months after his claim was denied. Hargis faults Chesser for lacking such evidence as an MR.I during the original proceedings, and for “waiting” approximately one month after treatments to file his two motions for remand. Hargis states that fair-minded people could not conclude that Chesser acted with diligence in submitting new evidence.
Chesser testified at the hearing of June 25, 2002, regarding medical care he received after moving from Arkansas. He stated that he had moved from San Leon to Concan, Texas, after the date of the last hearing and had not worked then. He testified that between May and November 2001, he had no financial ability to secure medical services but had attempted to see doctors in the Galveston and Texas City areas; that he had been unsuccessful in getting treatment at a reduced charge; and that he had been turned away in a waiting room that required him to produce cash before treatment. He agreed that Dr. Cheyne had encouraged him to transfer his case to Texas, but he testified that he was under the impression that he was at a dead end.
Chesser testified that he heard about a program for indigent care only when he went to a Texas emergency room in severe respiratory distress due to an allergic reaction. He testified that someone there noticed that he was favoring his arm; he was treated for the arm problem and was referred to Dr. Gloria Box, an orthopedic surgeon; that he saw Dr. Box and her physician’s assistant, Marc Deschaine; that Dr. Box referred him to physical therapy and to Dr. Karen Johnston-Jones, an orthopedic surgical specialist in San Antonio; and that Dr. Johnston-Jones ultimately performed surgery. Chesser described his right arm following surgery as “excellent” and “so much better than it was it’s just incredible.”
Chesser said that none of the receptionists at the doctors’ offices that he attempted to get into ever told him about the indigent-care program, and that had it not been for his hospital stay, he would not have known about the financial assistance that allowed him to see Dr. Box. Chesser stated that he had last seen Dr. Cheyne, his Ft. Smith doctor, in April of 2001; that he had not paid Dr. Cheyne or Dr. Axelson; and that he had no idea who paid them. He testified that he attempted to see a doctor in his area after Dr. Cheyne recommended that he do so, but that “they” would not treat him because it was a workers’ compensation injury under litigation in another state.
Medical records generated after the initial hearing were introduced at the hearing upon remand. A clinical note by De-schaine on December 17, 2001, states that “given the mechanism of injury and the associated pop, there could be ligamentous injury about the elbow,” and that “an MRI would certainly be valuable as a diagnostic tool.” A December 31, 2001, report of the MRI that was performed upon this recommendation reads in part:
History: Right elbow angular ligament tear.
MRI of the Right Elbow: ....
There is a small to moderate joint effusion. There is a nondisplaced vertical, oblique, olecranon process fracture which appears to be recent. . . .
Impression:
1. Small to moderate elbow joint effusion.
2. There is a nondisplaced, vertical, oblique, olecranon process fracture of uncertain age, however it appears to be subacute.
The operative report of Dr. Johnston-Jones, dated February 12, 2002, makes a postoperative diagnosis of right lateral epicondylitis, right radial tunnel syndrome, and partial tear lateral collateral ligament. The report states in part:
The patient is a 55 year old right handed unemployed previous truck driver who had an on the job injury greater than a year ago. He was using his arm to unload and felt the pop and significant discomfort in his elbow and has had severe pain ever since. He has failed conservative treatment.... He has evidence of a significant undersurface tear of the chondral origin by MRI and clinically has not only significant pain but weakness with grip and with elbow extended and also has a lot of guarding with the lateral collateral.
The operative report notes that several steroid deposits of the lateral collateral ligaments required debridement on the undersurface of the ligament, that areas of degeneration of the capsule and common extensor were exposed and the most hemorrhagic areas of the capsule were incised and excised, that the partial tear in the lateral collateral ligament had to be excised, and that degenerative tissue from the undersurface of the common extensor origin was incised and excised.
Finding that Chesser was diligent in seeking to introduce the additional evidence, the Commission acknowledged that he did not consult with Deschaine in Texas until some eight months after Dr. Cheyne advised him to see an orthopedist in the Houston area and have regular physical therapy. The Commission found no merit in Hargis’s criticism of Chesser and his attorney for obtaining the additional medical treatment in Texas nor for their timing in presenting reports of this treatment to the Commission. The Commission’s opinion included the following assessments:
First, to the extent that the respondents and the dissent seem to suggest that the claimant should have presented MRI and surgery results at the first hearing, the record establishes that none of the claimant’s authorized treating physicians in the Fort Smith area had provided or recommended an MRI, much less accurately diagnosed the actual nature of the elbow injury and performed surgery. Therefore, the MRI and surgery records could not have been presented into evidence at the time of the first hearing.
To the extent that the dissent suggests the claimant was dilatory in seeking testing and surgery in Texas, the Administrative Law Judge, who heard the live testimony and observed the claimant’s demeanor, found credible the claimant’s testimony that he was unable to obtain medical services in Texas earlier because of his own lack of finances and because the respondents refused to accept their liability for the services sought.
To the extent that the dissent suggests that the claimant was dilatory in presenting the additional evidence to this Commission after undergoing the MRI and later the surgery, we note, as did the Administrative Law Judge, that the claimant had obtained and presented to the Commission a report on the MRI study only 25 days after the study was performed, and the claimant obtained and presented to the Commission a surgery report only 21 days after the surgery was performed. We point out that during these approximately three week periods, the reports had to be dictated and made available to the claimant and his attorney, the reports from Texas had to be sent to the claimant’s Arkansas attorney, his Arkansas attorney had to prepare an accompanying motion to submit additional evidence, and the Arkansas attorney had to file that motion and the Texas medical reports with the Arkansas Workers’ Compensation Commission. Clearly, the claimant’s attorney should be complimented, not criticized, for the relatively short order in which he and his client brought the additional medical reports at issue to the attention of this Commission.
We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the decision is supported by substantial evidence. Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are within the exclusive province of the Commission. Ellison v. Therma-Tru, 71 Ark. App. 410, 30 S.W.2d 769 (2000). We defer to the Commission’s findings on what testimony it deems to be credible, and it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id.
The decision of the Commission, affirming and adopting the opinion of the administrative law judge, explained its finding that Chesser exercised due diligence as follows:
The claimant’s failure to obtain and submit this evidence at an earlier date was not due to any lack of effort on his part. Rather, the delay in obtaining and submitting this [is] due to matters beyond the claimant’s control, including the respondents’ failure or refusal to provide appropriate medical services for the claimant’s compensable injury, as required by the Act.
(Emphasis ours.)
We find no abuse by the Commission in ordering the taking of additional evidence. We furthermore hold that the Commission’s summary of evidence, as reproduced earlier in this opinion, constitutes substantial evidence to sustain its finding that Chesser acted with diligence in obtaining and presenting additional evidence to the Commission.
3. Whether substantial evidence supports the Commission’s finding that Chesser sustained a compensable injury to his right arm
Hargis first argues under this point of appeal that the medical records of the initial hearing, without the new evidence introduced at the second hearing, showed only subjective complaints of pain. We need not address this argument because we have held that the Commission did not abuse its discretion in allowing the additional evidence into the record after the date of the initial hearing.
Hargis further argues that even with the additional evidence, Chesser did not satisfy his burden of proof. It complains that a physical exam by Deschaine on December 17, 2001, was essentially normal in all respects; that the MRI of December 20, 2001, was procured fourteen months after the date of injury, with findings of “uncertain age” and appearing “to be recent”; that Chesser did not describe a “pop” in his elbow until visiting Deschaine in December 2001; and that Chesser gave different versions of the occurrence of his injury.
Chesser responds that the additional records show the actual existence of medically established physical injury. He points out that the Commission found his testimony to be credible and that the onset of symptoms he suffered coincided with the histories provided to various physicians.
Arkansas Code Annotated section ll-9-102(4)(D) (Repl. 2002) requires that a compensable injury be established by objective findings. As the Commission noted, in order to prove a compensable injury, Chesser was required not only to prove the requirement of Ark. Code Ann. § ll-9-102(4)(D), but also to meet the requirements of section 11-9-102(4)(A)(a):
(1) That the injury arose out of and occurred in the course of the employment;
(2) That the injury was caused by a specific incident;
(3) That the injury is identifiable by time and place of occurrence;
(4) That the injury caused internal or external physical harm to the claimant’s body;
(5) That the injury required medical services or resulted in disability.
Adopting the decision of the law judge, the Commission concluded that Chesser had met all statutory requirements regarding compens-ability:
The claimant has established by medical evidence, supported by objective findings, that actual existence of a physical injury to his right elbow/arm. He has further proven by the greater weight of the credible evidence that this physical injury arose out of and occurred in the course of his employment with this respondent, was caused by a specific incident, is identifiable by time of place and occurrence [sic], caused internal physical harm to his body, and required medical services and resulted in disability.
The determination of whether there is a causal connection between an injury and a disability is a question of fact for the Commission to determine. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). The Commission has the duty of weighing medical evidence, and the resolution of conflict ing evidence is a question of fact for the Commission. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). We defer to the Commission’s findings on what testimony it deems to be credible, and it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Ellison v. Therma-Tru, supra.
We hold that the MRI report of December 2001 and the February 2002 operative report of Dr. Johnston-Jones, both introduced at the second hearing, constitute sufficient evidence to uphold this finding. In affirming this remaining point on appeal, we note that the interpretation of the medical evidence and the assessment of testimony is in the realm of the Commission. Therefore, we conclude that substantial evidence supports the Commission’s decision that Chesser suffered a compensable workers’ compensation injury.
Affirmed:
Gladwin and Griffen, JJ., agree.
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Bird, Judge.
In this probate case, Sarah Kimbrough appeals the appointment of Warren Carter Kimbrough (Carter) as guardian of the person of Rebecca Kimbrough, an incapacitated person. Sarah and Carter, sister and brother, are two of Rebecca’s six children. The proceedings in this case began when Carter and two other siblings filed with the trial court a petition asking that he be appointed the guardian of the person of Rebecca Kim-brough, and that Regions Bank be appointed the guardian of her estate. Sarah filed an objection and counterpetition asking that she be appointed guardian or, alternatively, co-guardian of Rebecca’s person. After conducting a hearing on November 15, 2002, the court ruled from the bench that the bank would be guardian of the estate and that Carter would be the guardian of the person. A written order entered on November 26, 2002, reflected these rulings and denied Sarah’s objection and counterpetition.
On November 27, 2002, Sarah filed a motion for reconsideration and a new trial. Alternatively, she asked that the court make findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52. She also asked that the court vacate its order appointing Carter as guardian and that the judge recuse himself from further proceedings under Ark. Code of Judicial Conduct Canon 3. The trial court took no action on these motions within thirty days; thus, they were deemed denied under Ark. R. Civ. P. 59(b) and Ark. R. App. 4(b)(1). Sarah now appeals the denial of the motion, contending (1) that the trial court’s refusal to make findings under Rule 52 mandates a remand of this case, and (2) that the trial judge should have recused himself because he had extrajudicial knowledge of disputed facts. We affirm on both points.
Motion to make findings under Ark. R. Civ. P. 52
Arkansas Rule of Civil Procedure 52 provides in pertinent part:
(a) Effect. If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . .
(b) Amendment. (1) Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.
Here, the trial court informed the parties of its findings and conclusions of law both orally and by written order. At the conclusion of the hearing, the court ruled from the bench as follows:
But the bottom line is we need some — we need someone taking care of her, and we need someone making decisions, and they don’t have to necessarily be the same person. In fact, probably better if they’re not, and so I am going to appoint Carter. But I am going to commend Sarah for what she is doing. I want you to continue to do that.
And I have no doubt that whatever decision is made as the time goes along that it’s going to be in her best interest. I have no doubt that Carter and Sarah primarily, I think, are going to be dealing with this situation to make the right decision. I think their hearts are in the right place, both of you. As far as James and Beverly I’ve never met those people so I don’t know them. I know all of you.
But that is the Court’s decision. The bank will be the guardian of the estate. Carter will be the guardian of the person, and Sarah will be on the front lines. And I think that with that combination, we can’t go wrong so good luck to all of you.
In addition to pronouncing these oral findings of fact and conclusions of law, the trial court set forth findings and conclusions in its written judgment. The written findings included the following:
3. Based on the testimony of Rebecca C. Kimbrough’s primary care physician, Bart Sills, M.D., who has evaluated Rebecca C. Kimbrough, the Court makes the following findings which were supported by clear and convincing evidence: (A) Rebecca C. Kimbrough is an incapacitated person who is impaired by reason of a physical and mental disability to the extent she lacks sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for her health or safety or to manage her estate; (B) Rebecca C. Kimbrough is a person who needs assistance in meeting the essential requirements for her health and safety and for financial and business transactions and to preserve the assets of her estate; (C) Rebecca C. Kimbrough is substantially without capacity to care for herself and her estate; (D) Rebecca C. Kimbrough is in need of a general guardian of her estate and a general guardian of her person.
6. Warren Carter Kimbrough is the natural child of Rebecca C. Kimbrough and is a legally qualified and suitable person to serve as general guardian of the person of Rebecca C. Kimbrough. Warren Carter Kimbrough is not presently serving as guardian of the person or estate of any incapacitated person. It is in the best interests of Rebecca C. Kimbrough that Warren Carter Kimbrough be appointed general guardian of the person of Rebecca C. Kimbrough.
The written judgment also ordered the appointment of Carter as general guardian of the person of Rebecca, and it denied Sarah’s objection and counterpetition to be appointed guardian or co-guardian of the person.
Sarah characterizes the trial court’s written findings as con-clusory statements that failed to explain why she was not chosen as guardian. Sarah argues that the majority of the facts listed by the trial court were not in dispute, and that none give reasons as to why she was not chosen as guardian. She characterizes the court’s comments as cryptic, and she complains that the lack of explanation for her loss is terse and legalistic. She contends that the court was required to make further findings under her Rule 52 motion. We do not agree.
The trial court specifically found that it was in the best interests of Rebecca Kimbrough that Warren Carter Kimbrough, a legally qualified and suitable person, be appointed the guardian of her person: Nothing in Rule 52 requires the trial court to explain why it found the facts the way it did. Sarah presents no rule or authority requiring the court to explain why she was not appointed guardian. Where no citation to authority or convincing argument is offered, we decline to address the issue on appeal. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002). We hold that the trial court’s oral and written pronouncements set forth sufficient findings on which to base the appointment of Carter as guardian of Rebecca.
The parties in this appeal debate the merits of our recent decision in Apollo Coating Inc. v. Brookridge Funding Corp., 81 Ark. App. 396, 103 S.W.3d 682 (2003), which included the following discussion of Rule 52:
Under this rule, there is a clear distinction between motions or requests made pursuant to Rule 52(a) and Rule 52(b)(1). As appellant correctly notes, under Rule 52(a), a trial court is required to make specific findings of fact and state separately its conclusions of law if a timely request is made. McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). In comparison, Rule 52(b) is reserved for motions or requests that ask the trial court to amend previously made findings of fact or to make additional findings. Rule 52(b) does not mandate that the trial court take action even when a timely motion or request is made. McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (1980).
In the instant case, the trial court did not set forth its findings of fact and conclusions oflaw in its order.Appellant, therefore, filed a motion requesting that the trial court make specific findings of fact and conclusions oflaw.As appellant’s motion was for the trial court to make findings and conclusions, not to amend them, it was governed by Rule 52(a).The motion was timely made, filed only three days after the judgment was entered.Thus, the trial court was required to provide written findings and conclusions as appellant had requested. Accordingly, we must reverse and remand for compliance with the provisions of Rule 52(a).
81 Ark. App. at 398, 103 S.W.3d at 684.
The Apollo decision specifically stated that the trial court’s judgment did not set forth findings of fact and conclusions, nor was there any reference to oral findings. Here, in contrast, in both its oral statements from the bench and written judgment, the trial court set forth its findings of fact and conclusions oflaw on the disputed matter of the appointment of Warren Carter Kimbrough as guardian of the person of Rebecca C. Kimbrough. Under our decision in Apollo, the appellant’s Rule 52 motion was determined to have been timely filed because the court had made no findings of fact or conclusions oflaw before its judgment was entered. On the other hand, in the case at bar the court had already made sufficient findings of fact and conclusions oflaw, both orally at the hearing and in its written judgment. Therefore, unlike Apollo, it was in the trial court’s discretion under Rule 52(b) whether to amend its findings or judgment. Rule 52(a) and the analysis in Apollo are not pertinent here.
Recusal
Arkansas Code of Judicial Conduct Canon 3 forbids a judge to adjudicate a proceeding “in which his impartiality might reasonably be questioned, including . . . instances where the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding.” Sarah’s motion for recusal cited Canon 3 and made the following allegations:
[T]his Court mentioned the fact that it personally knew Rebecca Kimbrough, knew her deceased husband, Warren, and knew several of the children. Indeed, the Court singled out the children it did not know, Beverly and James, who were not present and did not appear. Because the Court relied on personal knowledge (i.e., facts outside of the pleadings and not offered into evidence). . . .
On appeal, Sarah again complains about comments by the trial judge that revealed his knowledge of Judge Kimbrough, the deceased husband of Rebecca Kimbrough and the father of the six children, and about the trial judge’s knowing four of the couple’s six children but never having met the other two. Sarah also points to the trial judge’s comment that the parties’ disagreement as to the appropriateness of nursing home care for their mother was “no surprise,” and his observation that “[w]e were afraid she wasn’t going to make it” when Rebecca had been in a nursing home the previous year. Sarah argues that her recusal motion was timely, and that the trial court was obligated to hold a hearing or to make a statement on the record regarding her motion.
Again, Sarah has presented no convincing argument or authority that the trial judge was required to act further upon her request. Furthermore, the rule is long established that there is a presumption of impartiality on the part of judges. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). A judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Id. The party seeking recusal must demonstrate bias. Id. Further, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Id.
Here, Sarah offers no facts to show bias. The mere facts that the judge knew the family and had previously been concerned about Rebecca during her stay in intensive care are not sufficient to demonstrate bias. Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Id. We find no abuse of discretion in the trial judge’s denial of the motion to recuse.
Affirmed.
Stroud, C.J., and Vaught, J., agree. | [
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Battle, J.
J. J. Hudgins brought a suit against the heirs of W. G. Scoggin, deceased, to subject certain lands descended to them to the satisfaction of his certain claim against the deceased.
Sometime in the year 1892, W. G. Scoggin, in consideration of the sum of $75 paid to him by J. J. Hudgins, conveyed a certain tract of land to Hudgins, and covenanted with him that he would forever warrant and defend the title to the land against all lawful claims. At the time of the execution of the deed there was a valid mortgage on the land in favor of the Southern Building & Loan Association to secure an indebtedness of $350. Thereafter Scoggin died intestate, leaving the defendants,- his heirs, surviving him; and on the 19th day of April, 1893, letters of administration were granted and issued to his widow, M. L. Scoggin. Sometime in the year 1900 J. A. Bowman, as receiver of the Southern Building'& Loan Association, instituted a suit in the circuit court of the United States for the Texarkana Division of the Western District of Arkansas to foreclose the mortgage on the land in favor of the building and loan association, making Hudgins and others defendants. When that suit was instituted, Hudgins notified and requested the administratrix of Scoggin’s estate to defend against it, which she failed to do. On the 24th day of May, 1900, Bowman, as receiver in the suit instituted by him, recovered a decree foreclosing the mortgage and for $186.62; and on the 10th day of December, 1900, for the purpose of protecting and saving his lands from sale, Hudgins paid the amount recovered by the decree.
Scoggin died, seized and possessed of certain lands described, in the complaint. Forty-four acres of this land constituted his homestead, and after his death was occupied as a homestead by his widow and minor heirs. The remainder contained thirty-eight acres. • Before the institution of this suit W. M. Greene acquired the interest and share of one of the heirs, Jane Scoggin, in these lands, without any actual or personal knowledge on his part of any claim of Hudgins, vested or expected.
The court found that the administratrix was not a proper party to this action, and that W. M. Greene had acquired and was entitled to hold the interest of James Scoggin in the lands, and as to them, adminstratrix and Greene, dismissed the suit; and decreed that Hudgins was entitled to recover $75 and six per cent, per annum interest thereon from the 10th day of December, 1900, and that the same is a lien on the lands owned by Scoggin in his lifetime, and upon the land occupied by the widow and minors, subject to their rights of homestead; and that, if the $75, interest and costs are not paid on or before January 1, 1904, Hudgins have a special execution against the lands to satisfy his judgment and costs. The defendants appealed.
The administration of Scoggin’s estate closed before the accrual of appellee’s cause of action, the two years for the probate of claims having expired on the 19th of April, 1895. It is settled by decisions of this court that the lands of the deceased, while they are held by the heirs, may in equity be subjected to sale for the payment of such claims. Williams v. Ewing, 31 Ark. 234; Hecht v. Skaggs, 53 Ark. 291; Berton v. Anderson, 56 Ark. 470, 474. But interests or estates in lands acquired by innocent purchasers for value before the commencement of a suit to charge them with the payment of such claims can not be lawfully or equitably subjected -to such charges. Berton v. Anderson, supra.
Hudgins’s cause of action accrued on the tenth day of December, 1900, when he paid the judgment recovered by Bowman, as receiver. He was not bound to wait until he was actually disseized. If he had done so, his right of redemption would have expired, and he would have lost the land, with the right to recover on the covenant of his grantor only a small part of its value. Why submit to such loss ? Why wait for the inevitable ? Equity does not require such sacrifice. Collier v. Cowger, 52 Ark. 322; Dillahunty v. Railway Co., 59 Ark. 629, 634; 8 Am. & Eng. Enc. Law (2 Ed.), p. 203, and cases cited.
The chancery court virtually declared a lien on the land occupied by the widow and minors as a homestead, and ordered that it be sold subject to such homestead. The Constitution of this State declares that “the homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment or decree of any court, or to sale under execution, or other process thereon, except,” etc. Const. 1874, art. 9, § 3- But it does not prevent the courts from protecting creditors in their rights in such cases as this.. The heirs may sell the lands descended to them to innocent parties for value before the commencement of suits in equity by creditors to subject them to the payment of their claims. Unless the lands constituting the homestead can be held in some way, creditors of a deceased person, holding claims accruing after the close of the administration of his estate, will be left to the mercy of heirs. A declaration that the claim of the creditors is a lien on the land, but it shall not be sold until the homestead expires, would be nothing more than a declaration of the equitable rights of the creditor, and would not interfere, directly or remotely, with the homestead rights, and would be stripped of the evil effects of the liens prohibited by the Constitution, and would not belong to that class of liens.
The cause is remanded with instructions to the court to modify its decree in accordance with this opinion. | [
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Battle, J.
James McQueeney, in his lifetime, brought this action against the Little Rock & Hot Springs Western Railroad Company, to recover damages suffered from personal injuries occasioned by the negligence of the defendant, alleging in his complaint that on the 3d day of September, 1902, at Hot Springs in this State, while the plaintiff was engaged in unloading a freight car on defendant’s railroad, the servants, agents and employees of the defendant wrongfully, negligently, maliciously and willfully ran a freight car against the wagon upon which he was standing with such force as to throw him to the ground and inflict upon him great personal injuries.
Defendant answered, denying the material allegations in the complaint, and alleging that any injuries received by the plaintiff were due to his own contributory negligence.
The plaintiff recovered a verdict and judgment against the defendant for $4,000; and it appealed.
The evidence in this case tended to prove the following facts:
The Waters-Pierce Oil Company owned a carload of freight which appellant placed on its team or wagon track to be unloaded. On the 3d day of September, 1902, in the forenoon, the agent of the oil company obtained the bill of lading for the goods in the car, and, in company with McQueeney, the teamster for said company, went to the car and opened it, and McQueeney commenced unloading by taking the freight therefrom and hauling it to the warehouse of the oil company. Pie continued the unloading and, at sometime between four and five o’clock in the afternoon, had hauled about nine or ten loads, and there were yet in the car not quite two loads. Upon returning to the car between the hours named for another load, he found the car closed. Wright, alias Rice, an emplee of appellant, had just closed it, and was still in the yard. McQueeney informed him that he had not unloaded the car, and that he had made a mistake in closing it. Mc-Queeney then, between four and five o’clock in the afternoon, with the assistance of A. J. Austin, the night watchman for appellant, in the presence of Earl Sanders, the agent of appellant in charge that day, and of Wright, opened the car, and proceeded to unload it. Upon leaving the car with another load, he spoke to Austin, and told him there was still a part of a load in the car, and that he would return for it, and requested him not to close the car, which he agreed to. McQueeney carried the load he then had on his wagon to the warehouse of the oil company, and at five minutes before six o’clock started back to the car for the remaining goods. He had a good team, and made a quick trip, and returned to the car about six o’clock, and, after putting his wagon in position, began to unload. Pie made nine trips back and forth between his wagon' and the car, and was standing on the back end of his wagon in the act of rolling a barrel of oil from the door of the car to his wagon, on his tenth trip, when a car upon the same track was moved up by employees of appellant without, according to the testimony of one witness, ringing the bell of the engine or giving any other warning. The moving of the car caused another car to strike McQueeney’s wagon, turn it over, and throw him violently to the ground. He was sixty years old at the time of this accident, but was a strong, healthy man, and had for the fourteen years previous to that time “been in the continuous employment of the Waters-Pierce Oil Company in hauling freight from the railroad and to customers. His work required of him heavy lifting, which he had done without difficulty.” His injuries received from the fall were serious. “Pie was unable to work, being paralyzed in one leg and injured in his back and one arm and on one side of his head. For a time his paralysis affected his speech. He suffered great pain from the time of the accident up to the time of the trial, which was over a year, and was still suffering at the time of the trial. For a considerable time his suffering was severe. He was still partially paralyzed at the time of the trial, and was then so helpless that he could not dress himself without assistance. Pie had not been able to work from the time of the accident up to the trial, and was still not able to do work. * * * • At the time of the accident he had steady employment at the salary of $50 per month and perquisites in the way of oil and fuel furnished him by the Waters-Pierce Oil Company, worth $10 per month, making his earnings equal to $60 per month. His expectancy of life was 14.09 years.”
When McQueeney returned to the car that he had been unloading the last time before the accident, it was open and in the same position and condition it was in when he left it at the time he told Austin he would return for the remnant of the freight. Austin had complied with his promise. This was in the apparent scope of his authority, which was to close and seal cars .when he found them open, and to go through the yards and see that no one was molesting them, to guard them and see that they were not broken into. It was .a rule of the defendant that no freight should be delivered or cars unloaded after six o’clock in the afternoon, but there is no evidence that McQueeney had notice of this rule. The team track on which the car unloaded by McQueeney stood was straight, and the fireman on the engine which caused the accident could easily have seen McQueeney’s wagon if he had looked in that direction, the direction in which the engine moved.
The court gave the following instructions to the jury, at the instance of plaintiff, over the objections of the defendant:
“No. 1. It is the. duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads; and if any persons or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the persons injured for all damages resulting from neglect to keep such lookout) and the burden shall devolve upon such railroad to establish the fact that his duty has been performed. But you are further instructed that the failure to keep a constant -lookout would not render the railroad liable if the plaintiff himself was a trespasser in going upon said track, or was guilty of any act of negligence contributing to the injury of which he complains.
“No. 4. If you find that the employees of defendant who had charge of looking after the unloading of cars on its tracks knew that plaintiff was engaged in unloading a car, and that he was upon defendant’s yards for that purpose after business hours, and you further believe from the evidence that the plaintiff did not know that he was violating any rule or custom of the company, then you will find that defendant owed him the duty not to injure him by any negligent act of its employees in moving cars on said yard.
“No. 6. You are instructed that if you find from the evidence that the plaintiff had spoken to the watchman of the defendant that he was going to return for the last of his freight in a car, and that said watchman knew that plaintiff was hauling freight from said car, and that said watchman had the right and it was his duty to -close said car, and that plaintiff did return and found said car at the same place and in the same condition as when he left the same, and you further find that the plaintiff believed, as an ordinary prudent man, that he had a right to unload his freight at the time, then he would not be a trespasser; and if he was injured by negligence of any employee in charge of said train, you will find for the plaintiff.
“No. 9. The burden is on the plaintiff to show; by a preponderance of the evidence, that the defendant was guilty of negligence, and that he was injured by such negligence, to entitle him to recover in this action; and if you find from the evidence that the defendant was negligent, and that the plaintiff was injured thereby, then, in order to defeat his recovery on the ground that h.e was guilty of contributory negligence, the burden is on the defendant to show such contributory negligence by a preponderance of the evidence.”
And the court modified the second and third instructions asked by the defendant, so as to read as follows:
“No. 2. If you believe from the evidence that the plaintiff went late in the evening, after business hours, to the yards of the defendant, and after he had been told by the person whose duty it was to seal or open the cars that he could not get into the car that day, then he would be a trespasser, and the railroad company-owed him no duty until his presence there was discovered by the persons in charge of the train; and if you believe from the evidence that they had not seen him, and did not know of his presence near the car until after the injury, your verdict must be for the defendant.
“No. 3. One who voluntarily goes into the yards of a railroad company after it is getting dark, crossing one or two tracks to get there, and after he knows the car has been sealed up to prevent any more unloading that day, is a trespasser, and would be guilty of contributory negligence, and can not recover for injuries received while there.”
And gave the following at the instance of the defendant:
“No. 5. One who is injured by the mere negligence of another can not recover, either at law or in equity, any compensation for the injury if he, by his own ordinary negligence, contributed to produce the injury of which he complains, so that but for his concurring and co-operating fault the injury would not have happened to him; therefore, if .you find from the evidence in this case that the plaintiff’s own negligence or fault either caused or contributed to the injury, he can not recover.
“No. 7. If you believe from the evidence that the servants in charge of the train which caused the injury did what men of ordinary prudence and caution would have done under the circumstances, then defendant was not guilty of negligence, and is not liable; but, even if you should believe that defendant is guilty of negligence, still, if plaintiff by his own negligence or fault contributed to the injury, or if his negligence or fault co-operated with the acts of the defendant and caused the injury, your verdict must be for the defendant.”
The jury returned a verdict in favor of the plaintiff against the defendant for $4,000, and the court rendered judgment accordingly.
The defendant objected to the instruction numbered one, given at the request of the plaintiff, because it makes applicable to this case the act of the General Assembly, entitled “An act to better protect • persons and property upon railroads in this State,” approved April 8, 1891. Kirby’s Digest, § 6607. It argues that this act does not require a lookout to be kept by, persons running cars and engines in a railroad yard. To sustain this contention, it will be necessary to hold that the tracks in the yards do not constitute a part of the railroad. But this is not true. Every track necessary to its operation is a part of the railroad. The act was obviously intended for the protection of persons and property upon railroad tracks, and all tracks and cars moved thereon come within its provisions. Persons and property upon any railroad track need and are entitled to its protection. The act makes no exceptions, and applies to all cases which come within the mischief intended to be remedied and within its object.
• ' The act was applicable to the case before us. In the yard in which fhe accident complained of happened were team or wagon tracks upon which freight cars were placed to be unloaded. The car which the plaintiff was unloading at the time he was hurt was upon one of these tracks. He was unquestionably in need of protection, and was entitled to compensation for the injury he received, unless he contributed to it by his own negligence.
The objection urged by the defendant against the instruction numbered four, given at the request of plaintiff, is that there was no evidence to show “that any of defendant’s employees who had charge of looking after the unloading of cars on its tracks knew that plaintiff was engaged in unloading a car, and that he was in defendant’s yards for that purpose after business hours.” Were there such employees who had such knowledge? Between four and five o’clock in the afternoon of the day on which the accident occurred, plaintiff, in the presence of Sanders, who was then and there in charge, and Wright, who had closed the car, with the assistance of Austin, the night watchman, opened the car and proceeded to unload 'it. He continued to unload until, according to some of the evidence, about twenty-five minutes after six o’clock in the afternoon, and this was at sunset. No employee could reasonably suppose that he would quit unloading when he hauled away the last load when so little was left in the car at that time to be taken away. Austin, the night watchman, knew he was unloading at the time he was injured, and permitted him to do so. But it is said that he had no authority to look after the unloading of cars. The evidence showed that it was a part of his duty to close and seal cars when he found them open at a time when they should be closed, and at such times to'go through the yards and see that no one was molesting them, to guard them and see that they were not broken into. This clearly implied the authority to look after the unloading of cars when he was on duty. He knew that the plaintiff was unloading the car, and through him the defendant had notice, and it was his duty to the plaintiff and defendant to warn him of his danger or give notice of his presence upon the track to those in charge of the train in the yard, and to give the notice in time to avoid injury. There was no evidence that plaintiff knew or ought to have known of any rule of the defendant prohibiting him from unloading the car after six o’clock p. m.
What we have said in reference to instruction numbered four applies to instruction numbered six.
Defendant objects to the instruction numbered nine, because it withdraws from the consideration of the jury the evidence of contributory negligence adduced by the plaintiff. But this defect was covered by other instructions. This instruction does not tell the jury what they should do in the event they found from the evidence adduced by the plaintiff that he was guilty of contributory negligence, but the court in other instructions told them that if they found from the evidence that the plaintiff’s own negligence or fault either “caused or contributed to the injury, he could not recover.” “From the evidence” necessarily means all the evidence in the case, which includes the evidence adduced by the plaintiff.
We think that the evidence is sufficient to sustain the verdict in this court.
Judgment affirmed. | [
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McCulloch, J.
This is an action of replevin for two bales of cotton, the plaintiffs claiming title to the property under a crop mortgage executed by Bob Foster, one of the defendants, and defendant, Thomas, claiming a lien on the cotton as landlord of Foster. Thomas owned the land, and placed Foster in possession under a written contract. Foster mortgaged the crop on the,land to plaintiffs. The contract is as follows:
“Articles of rent contract made and entered into by and between J. A. Thomas, party of the first part, and Bob Foster, party of the second part.
“I, J. A. Thomas, party of the first part, do agree for my part to rent the second party, Bob Foster, the following-described land, towit:
“The west half of northeast % and (10) ten acres in the S. E. corner of the southeast J4 of northwest J4, all of sec. (26) twenty-six, township (17) seventeen, range (21) twenty-one, ninety acres more or less, for his three notes as follows: One note for $150 due October the 1st, 1901, rent for the place described above for the j^ear 1901; one note for $150, due October the xst, 1902, rent for the place for the year 1902; one note for $150, due October the 1st, 1903, rent for the place for the year 1903. These three notes draw interest from December 20, 1900, at ten per cent, until paid. Now, I further agree, in addition hereto, that if the second party, Bob Foster, promptly pays these notes with all interest as they become due, and any other amount due me by note or account that we may make by our own wish or will, when this amount or amounts are fully paid as they become due, then and for these amounts I bind myself and heirs to make the second party a deed to the land described; but if a failure upon the part of the second party to make any one of these payments at maturity, time being the essence of this contract, if a failure is made, the first party shall have the right to declare this contract null and void, after notifying the second part}'- that the amount due is unpaid; and if the second party fails to make satisfactory arrangements at once, then the first party can null and void this entire contract, or by written instrument carry any amount agreed upon, and it stated in the writing drawn up. Should failure upon the second party be made, no remuneration or pay for any kind of work or labor done during this term of contract and so clearly agreed. The second party takes the place as it stands, and does such improvements as he may choose at his own expense and cost. The second party will counsel and be-principally governed by my directions in the cultivation of the crop. I am acknowledged to be the true landlord in all these transactions under any and all circumstances, if necessary to take any steps in carrying out justice as a landlord. The second party is now on said place, and if he remains on said place, and works said land continuously, all will be favorable; but if at any time the second party vacates or fails to work said land in a good farm-like manner, should he do either of the above, just so soon as this is done, this contract is null and void. A failure upon the part of the party of the second part is then made and so agreed; but if the second party, Bob Foster, manages his business successfully, and pays these amounts as they become due, which I think he can and will do, and when they are paid', I will promptly make this deed as set forth in the above.
“I, Bob Foster, party of the second part, do, after helping to bring about this contract and fully understanding every proposition or stipulation in the above, this day execute my three notes for the amount named above, and in doing this I do so in good faith, feeling determined to pay this-amount of rent yearly and secure me a home, and I shall do every thing in my power to pay each note or any other amount when due, and, if I fail, I will do all I can to give, satisfaction, and, should I fail, I cheerfully accept the purport of the contract without any opposition or redress, and when I pay this amount to the first party, which I expect to do, I shall demand a deed.
“In earnest undertaking, we sign this to carry out this contract. If any timber can be sold of any kind and in any way, the money or proceeds must go to the credit of these notes, so agreed and clearly understood.”
Notes were executed pursuant to the terms of the contract, which recited that they were given for rent of the land described.
The defendant asked the court to construe the contract to be a lease, and not a sale, and to so instruct the jury, which the court refused to do. The court also permitted the plaintiffs to introduce oral testimony tending to show that the parties intended the contract to be a sale of the land.
The court should have construed the contract and instructed the jury as to its meaning. It was error to admit oral evidence .as to the. intention of the parties. Smith v. Caldwell, ante, p. 333; Carpenter v. Thornburn, 76 Ark. 578; Colonial & U. S. Mortg. Co. v.. Jeter, 71 Ark. 185.
It is contendéd that an inspection of the whole contract reveals the fact that the real intention of the parties was to make a sale of tHe land, though that intention was disguised in the garb of a rent contract. In other words, that the parties really intended a sale, and that the court should construe it as a contract for sale, and not for lease. The intention of the parties must, however, be gathered from the language of the contract, and it is manifest’that, while they intended that the contract should eventually result in a sale of the premises, yet they elected to make it a contract for lease, and to create the relation of landlord and tenant, and to stipulate that that relation should continue to subsist between the parties until it should be changed 'into the relation of vendor and vendee by payment in full of the amounts named. They had a right to make such a contract. There is nothing unlawful about it. In Quertermous v. Hatfield, 54 Ark. 16, Chief Justice Cockrill, speaking for the court, said: “If the parol agreement between the appellant, who was the plaintiff below, and the appellee’s intestate was for the sale and purchase of the land, upon the condition that, on default in payment of the first installment of purchase money, the contract of purchase Should end ipso facto, and the relation of landlord and tenant should subsist as though no sale had been contemplated, then plaintiff was entitled to judgment for the rent agreed upon and to the enforcement of his landlord’s lien upon the crop. Ish v. Morgan, 48 Ark. 213; Watson v. Pugh, 51 Ark. 218; Cheney v. Libbey, 134 U. S. 68. Or, if the agreement was in effect a lease of the land with an option to the lessee to purchase and treat the rent money as the first installment of the purchase price, dependent upon the prompt payment of the. amount when due, the failure to pay at the time fixed by the parties terminated the right to purchase, the relation of landlord and tenant remained, and the plaintiff was entitled to his recovery. But if the agreement contemplated an absolute sale, the fact that the first installment of purchase money was called rent by the parties would not import into the contract a condition such as that first mentioned above, and thereby change the relation of vendor and vendee into that of landlord and tenant. Calling the purchase money rent would not make it such, nor create a lien on the crops- for its payment.”
The rule is, we think, correctly stated in 18 Am. & Eng. Enc. Law, pp. 168, 169, and the same is abundantly sustained by the numerous authorities there cited. It is stated thus: “The parties to an agreement for the sale of land may also contract with the right, at the election of either party in the future, upon the performance or nonperformance of certain conditions, to treat the transaction either as a purchase-and-sale contract, or a lease; and if the election is made to treat it as 'a tenancy, it relates to the time of making the contract, and the relation of landlord and tenant, with all the incidents and liabilities, will be regarded as having begun at that time. So, also, a lease may give to the lessee an option to become a purchaser without preventing the creation of the relation of landlord and tenant prior to the proper exercise of such option,' though the payments made as rent are to be credited upon the purchase price in case of the exercise of such option. Where it is stipulated in the contract of sale that the tenant shall pay rent during his occupation, and until the conveyance is made, the relation of landlord and tenant is created.”
Now, it is plain that -the parties to this contract intended to create the relation of landlord and tenant, and to continue that relation until both of the stipulated payments should be made, and time was declared to be of the essence of the contract. They executed a rent contract with an option to purchase, the relation of vendor and vendee to arise when the last payment should be made.
The case of Carpenter v. Thornburn, supra, is similar to this, except that the contract in that case provided for further payments after the exercise of the option to purchase. There is, however, no difference in principle between a contract with an option to purchase after certain number of rent payments have been made, and one with an option to become a purchaser after rent in sufficient amount has been paid to make up the agreed purchase price. In either event it falls within the power of the parties to contract, and there is nothing in the law to prevent them from making such a contract. There is nothing to prevent them from stipulating when the relation of landlord and tenant shall end and the relation of vendor and vendee shall arise.
The facts in Blanchard v. Raines, 20 Fla. 467, were almost identical with the facts of the case at bar. There two rent notes had been executed for successive years, containing a stipulation that if both notes should be paid promptly the landlords should convey the land to the tenant. The court said: “It does not change the character of the agreement to pay rent that the tenant may at the end of the time claim a conveyance of the land, having made prompt payment of the notes as per contract.”
■The case of Houston v. Smythe, 66 Miss. 118, is also very similar, there being a lease for two years with a stipulation that a conveyance should be made to the tenant upon payment of the last sum being made. The court, by Judge Campbell, said: “It was admissible for the parties to create the relation of landlord and tenant as they did. The purpose of -it is obvious, and, after expressly creating this relation for purposes of their own, it is not allowable afterwards to recede from it or complain of its legal consequences.”
The court erred in refusing to declare the contract to be a lease and to instruct the jury as asked by defendants.
Reversed and remanded for a new trial.
Battue, J., dissents. | [
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Hill, C. J.
This appeal questions the validity of Amendment No. 5 to the Constitution, commonly called the “Road Tax Amendment,” which was declared adopted by the Speaker of the House of Representatives on the 13th day of January, 1899, and duly certified and proclaimed as part of the organic law. The Constitution, art. 6, sec. 3, requires the returns for the election for Governor, Secretary of State, Auditor, Treasurer and Attorney General to be sealed up separately and transmitted to the Speaker of the House of Representatives, who, during the first week of the session, shall open and publish the vote cast for each of the candidates for said offices in the presence of both houses of the General Assembly.
The act of March 1, 1883 (p. 70), as modified by the general election law of 1891 (now sections 716-718, Kirby’s Digest) requires the vote on amendments to be separately sealed and delivered to the Speaker and opened, and the result as it appears from the returns then before him ascertained and declared at the same time the vote on said offices is opened and published. When this was done in regard to the amendment in question, it was found that there were 27,209 votes for the amendment and 24,071 votes against it, and the highest vote cast for the candidates for any of the five offices then before the Speaker was for the office of Governor; the total vote cast for the four candidates for that office being 111,897. A simple calculation demonstrated that the amendment received a large majority voting on that question, and received 1260 more votes than a majority of electors voting for any of the said State offices, and the Speaker, on these returns, declared the amendment to have been adopted.
To overcome this result, the appellant shows from the returns on file with the Secretary of State that if the highest vote cast in each county for any office voted for is taken as a basis, and these highest votes aggregated, 116,378 electors voted for some officer at said election, and that therefore the amendment lacked 970 votes of receiving “a majority of the electors voting at such election.” The Speaker had none of these county returns before him, showing that there were more votes cast than appeared from the returns before him on the said State officers.
This court recently said, in regard to the Speaker’s duty in this matter: “The votes on the principal State officers were then before him, and from them he could reach, at least approximately, the votes in the election, and the votes on the amendment would give the other necessary data to a prima facie decision from the face of the returns, and, in the language of Judge Cooley, ‘the final decisions must rest with the courts.’ ” Rice v. Palmer, ante, p. 432.
In the Rice-Palmer case the Speaker had declared Amendment No. 3 adopted,, although the votes before him showed that it did not receive a majority of the electors voting for any of said State officers. The Speaker was acting upon the erroneous theory that the vote upon the question of the amendment alone controlled. The court held that the decision of the Speaker was not a finality; and where it was shown to be wrong, as in that case, the courts must declare the true result. Now, this is a "case where the Speaker acted correctly on the returns before him; and, as the integrity of the returns were not and are not questioned, the only point for decision is whether the Speaker, and the courts, will be bound to confine the evidence of the “majority of the electors voting at such election” to the votes cast fdr said five officers, or shall the courts receive evidence that more electors voted in the said election -on other offices or questions than upon the offices whose votes were before the Speaker?
It was the evident purpose of the act of 1883 to confine the evidence to the votes sent to the Speaker. The act does not in terms so declare; but, when read in the light of the history of legislation on this subject, all doubt as to this fact is removed. The clause of the Constitution providing for the submission of constitutional amendments (art 19, § 22) was not self-executing, and required legislation to effectuate its purpose. The General Assembly of 1879 provided the machinery for amending the Constitution, and the same assembly submitted to the electors Amendment No. 1, commonly called the “Fishback Amendment.” This act required the election judges to count the votes for the amendment separately from the offices, but to return the same with the other returns to the county clerk, and the clerk was required to separately abstract the vote, but to make the return of it to the Secretary of State in like-manner as the returns on the candidates voted for. It was then provided that when all the returns were in the office of the Secretary, the Governor, Secretary of' State and Attorney General should canvass the vote; “and if it be found that a majority of the votes (voters) of the State voting at such election have voted for any such amendment, the officers herein directed to canvass the same shall certify the facts,” etc.
In the general election of 1880 the Fishback amendment received a large majority of the votes cast on the subject, and a clear majority of the votes cast on the State office receiving the highest vote. But thé count was not based on any of these votes. It was thus explained by the Secretary of State: “As no provision was made by law for ascertaining the actual number of votes cast at the election of September 6, as contemplated by the Constitution, in order to ascertain the same, I addressed a circular letter to all the county clerks in the State, in which they were required to certify to this office the actual number of votes cast at each and all the precincts in the several counties, as shown by the poll books of each and every precinct in each county.” See Public Documents of Arkansas, 1880-1881, pages 17 and 18. The aggregate vote made up in this way demonstrated that the amendment had not received “a majority of all the electors voting at such election,” and it was declared “defeated.” See Id. pages 34-38. Hempstead’s History of Arkansas, pages 281, 283.
This result was very unsatisfactory to the supporters of the Fishbaclc amendment, and its adoption and a different method of ascertaining the vote upon amendments became public questions of moment. The General Assembly of 1883 resubmitted the amendment to the electors, and the same assembly repealed this act of 1879, and substituted the present system therefor, which, briefly stated, segregates the vote on the amendments from all the other returns except said five offices which are the only returns going before the General Assembly, and required the Speaker from the votes then before him to declare the result of the election on the amendment. This bit of history explains this legislation, and points its evident purpose.
While the Speaker’s duty is perfunctory, and confined to narrow lines, yet it is contemplated that he shall have the true basis to ascertain the result, which he must declare, and this basis must be accepted by the courts, as well as the Speaker, if it was competent for the Legislature to create this basis as the only evidence of the number of electors voting in the election for the purpose of deciding whether or not an amendment has been adopted.
The court has held that it was a judicial, as contra-distinguished from political, question whether the Constitution has' been.amended in the manner prescribed by the Constitution itself. In other v'ords, that it is the paramount duty of the court to see that the constitutional requirements have been fulfilled. But this holding is far from deciding that the Legislature can not prescribe the rules of evidence for reaching the question at issue. The case then resolves itself into an inquiry whether the rule of evidence furnished is a reasonable compliance with the Constitution, or whether it is an evasion of it.
Appellant’s counsel frankly meet the issue, and the force of their argument in brief and at bar is in the contention that the act of 1883 is unconstitutional. They contend that holding the question to be a judicial one lets in any competent evidence to establish the fact that more electors voted in the general election than appeared from the votes given on the amendment and on the five offices whose vote goes to the General Assembly. The evidence they offer is practically of the same kind which the canvassing board received when it declared the Fishback amendment defeated in 1880, and to avoid which the act of 1883 was passed. Recognizing this act as an obstacle in the way of their position, they say it must be stricken down as unconstitutional. If, in truth, it is unconstitutional, the court must so declare, and then any competent evidence to prove the fact in issue would be admissible. Passing then to the clause of the Constitution invoked, it is found that it can not be literally construed. It describes the election as the “general election for senators and representatives.” The vote on senators and representatives can not be taken because only one-half of the State votes on senators in each biennial election, and many counties, like Pulaski and Sebastian, have more than one representative, and it is practically impossible to tell the number of voters participating in such contest. But the Constitution did not mean to be taken literally. The term was intended to be descriptive, not definitive, of the election, and meant.the general election at which senators and representatives were elected. It is a matter of great difficulty to obtain the evidence of the number of electors voting in a general election.
No basis can be obtained which will yield the exact truth in such a matter. The appellant says that if the Legislature required the election judges of each precinct to return to the county commissioners the total number of votes cast as shown by the poll books, and the county commissioners were then required to return the total number of votes in each county to the Secretary of State or the Speaker, together with the vote on amendment, this would give the total number of electors voting in the State, and with such returns it could be easily and accurately determined whether or not the amendment received the required majority.
This method could have been adopted by the Legislature, and it looks like the natural method to adopt to comply literally with the Constitution; but even this method is only an approximation. It is common knowledge that many electors vote a blank ticket, and others vote defective tickets, and they are not counted as voting in the election, but would be counted as voting on the amendment under this plan, as this number would increase the majority required to be reached to adopt the amendment.
An examination of the returns of any general election discloses this fact also: Many electors vote-on, the subject of license who do not vote for any office; they are only interested in the sale or prohibition of the sale of whisky. This is not voting in the “general election,” within the meaning of this clause, and yet, if the method proposed was adopted, their votes would swell the total number of electors voting and’ increase the majority required to be reached to adopt an amendment. The same may be true when one or more amendments are submitted. An elector may vote for or against one or more, and not vote otherwise in the election. Sometimes a hot contest for justice of the peace or constable will cause the electors to vote on those offices, and not touch the State or county ticket, and then electors frequently go to the polls to vote for a single individual. In a sense in all of these instances the electors participated in the election; but in a broader sense they were no more participants in the general election for State and county officers than the electors who passed by the polls without stopping to cast their ballots. In its final analysis no basis is exactly accurate in these matters.
The Constitution of Kansas contained this clause: “No county seat shall be changed without the consent of a majority of the electors of the county.” The Legislature enacted a statute making the number of votes cast the evidence of the number of electors in the county. Manifestly, this was no nearer the true yard stick than the one furnished in the case at bar. The Supreme Court of Kansas, speaking through that eminent jurist, Mr. Justice Brewer, then associate justice of that court, said: “Doubtless, the Legislature might make other things evidence of this fact. It might require, as preliminary to every election, a registration, and make that registration the evidence. We do not mean that it may, by the mere machinery of the rules of evidence, override or set at naught the restrictions of the Constitution, or that it could arbitrarily make conclusive evidence of the number of voters any list, or roll, which in the nature of things has no connection with that fact, and does not reasonably terid to prqye it. But when it adopts as conclusive evidence of the fact anything which, according to the rules of human experience, reasonably tends to prove the fact, the courts are not at liberty to ignore-or go behind such evidence.” County Seat of Linn County, 15 Kan. 500.
The Constitution of 1874 provides: “For every two hundred electors there shall be elected one justice of the peace, but every township, however small, shall have two justices of the peace.” The General Assembly in 1893 passed a statute declaring that, in ascertaining the number of justices of the peace to be voted for and commissioned, the number of votes cast in the preceding general election should be taken as conclusive evidence of the number of electors in the township. It was found that, according to the vote at the election in question, there were 1800 electors, but at the preceding election only 1346, and it was contended that the Legislature could not make the number of votes at a preceding election control when the last vote furnished evidence that the township was entitled to two more justices. This court, speaking through Chief Justice Bunn, said: “It was the duty and within the province of the Legislature to adopt some method of determining the number of electors in a township, in order to determine therefrom the number of justices of the peace to which it is entitled; for, without the establishment of such a method, there could be no election of certain validity. The plán adopted by the act of 1893 is certainly not accurate, for changes in the number of electors are at least liable to take place within two years; but the question really addressed to the Legislature was, not to adopt a perfect method, but the most perfect available under the circumstances. In its final conclusion -on the subject, it doubtless reasoned that the harm that might be done by the adoption of the best available, but inaccurate, method would be by no means equal and commensurate with the evil arising from the absence of all method, or from the expense and inconvenience of endeavoring to make everything subservient to mere accuracy. * * * In other words, the act in question was doubtless the embodiment of the very best methods the Legislature could conceive under the circumstances. This being the case, we do not feel at liberty to declare the enactment unconstitutional.” Alford v. State, 69 Ark. 436.
Applying these principles to the act under review, it seemed to the Legislature that this was the best available method, even if inaccurate, because the other method had been tri.ed and found unsatisfactory and uncertain in these particulars:
1. It left the evidence of adoption to depend upon the vote for so many offices, largely local, that it was difficult of ascertainment;, and, when ascertained, liable to be unsettled by a local contest or a series of local contests. It was certainly an unstable, basis for a part of the organic law to rest upon.
2. While the Constitution requires the affirmative vote of a majority of the electors voting in the general election to adopt an amendment, yet it contemplated a majority of those really participating in the “general election for senators and representatives ;” but the method pursued enabled those who voted merely on license or the amendment, or some one county or township candidate, to so swell the total vote that an amendment supported by a good majority of electors voting for State officers was defeated.
The system having worked unsatisfactorily, the General Assembly of 1883 sought to remedy what it conceived to be a mischief in the act of 1879, and presented this rule of evidence to govern the ascertainment of the number of electors voting in the election. Can this be said to be “mere machinery of rules of evidence” to “override or set 'at naught the restrictions of the Constitution?” If it is, the court must annul it; but if it “has a connection with the fact, and does reasonably tend to prove it,” it must be sustained. Instead of taking one vote on one office, as is done in some States, this act takes the vote on the five principal executive offices as the test. This guards against unpopular candidates for any one office reducing the vote below a fair average. The vote on these offices would naturally excite the greatest interest, and therefore call for the largest vote. The evident purpose is not to evade the highest vote, but to secure the highest vote by taking the offices where such vote is to be expected.
The various county returns could be used, but would not their uncertainty in involving so many more factors, and their liability to be upset in contests over which the Legislature had no jurisdiction or cognizance or information, render this unwise? Would not the reasoning in Alford v. State, supra, apply to this? “In its (the Legislature’s) final conclusion on the subject, it doubtless reasoned that the harm that might be done by the adoption of the best available, but inaccurate, method would be by no means equal and commensurate with the evil arising from the absence of all methods, or from the expense or inconvenience of endeavoring to make everything subservient to mere accuracy?” The inaccuracy may or may not be great under the act of 1883. If there is a large number of voters on single candidates on the township or county ticket or the questions on the ballot who do not vote the State ticket, it may be large; on the other hand, it is susceptible of being absolutely accurate; and, as the inaccuracy can only be made great by those who do not fully participate in the general election, their exclusion from the count can not offend the spirit of the Constitution. In the election at bar the inaccuracy was not great, and there is no special circumstance to mark this election as one out of the ordinary. The certificate in the transcript shows that in one-third of the State the greatest vote was cast for one or another of those five offices; and an examination of the full returns shows no great differences between the office receiving the highest vote and some one of those State offices. In some instances the difference is less than a half dozen.
Taking it “by large and by small,” there is no reason why the vote on these offices should not be a fairly accurate method of reaching the number of electors voting in the general election. Certainly, its inaccuracy is not so great that it shows a purpose of defeating, instead of effectuating, the object of the Constitution: The language of Mr. Justice BrSwer is applicable: “When it (the Legislature) adopts as conclusive evidence of the fact anything which, according to the rules of human experience, reasonably tends to prove the fact, the courts are not at liberty to ignore or go behind such evidence.”
It also has merits which would justify the Legislature in sacrificing a small degree of accuracy to safeguard this gravely important matter. This method offers a certain and fixed standard; the evidence is in highest form and submitted and inspected in the forum of the people — a joint session of the General Assembly.
On the whole, this act is considered a fair and substantial fulfillment of the Constitution, and seems to make the constitutional requirement as to the number of electors voting, in the election more stable; and thereby the will of the framers of the Constitution is.the better effectuated.
The judgment is affirmed.
Mr. Justice Riddick concurs in the judgment. | [
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Wood, J.
The bill of exceptions shows that the court of its own motion gave the following instructions and declarations of law, towit:
“ T. The words of description of the property sold in the contract included the mill shed.
“ ‘2. If the shed was a fixture real when built, it has by agreement of the parties ceased to be such.
“ ‘3. The form of the writing is sufficient.
“ ‘4. The plaintiff was the owner of the shed when it was torn down.’
“To which instructions and declarations of law the defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.”
The exception to the instructions was in gross. Atkins v. Swoope, 38 Ark. 528.
But, inasmuch as the contract itself was the basis of the complaint, and as the question of law in the case depends upon the sufficiency of the complaint, we are of the opinion that if there was any error in the construction of the contract, such error appears upon the face of the record.
So the only question here is, do Alexander, Amberg & Company (represented here by appellant) own the sawmill shed involved in this litigation?
Reverting to the contract, its language is: “The party of the first part hereby sells to the party of the second part their sawmill and ail the machinery connected therewith located on said land near St. Francis River and the Paragould & Southwestern Railroad. * * * Nothing is sold to the party of the second part but tiriiber, sawmill and machinery mentioned herein, and the party of the first part retains the ownership of the land and all other property thereon. It is expressly agreed and understood that if the party of the second part does, not pay the notes given for said sawmill and timber promptly when they fall due, then all of said notes are to become due and payable at once, and the said sawmill and timber may be sold to pay whatever may be unpaid of the purchase price by the party of the first part. In testimony whereof we have signed our names hereto this the 13th day of July, 1895. It is further agreed by the party of the first part to give the party of the second part the use of all the houses on said property, except one occupied by S. Virgilio.”
We do not agree with the learned trial court that the word “sawmill,-” as used in the contract, includes the mill shed that covers the sawmill. A mill is not a shed, and a shed is not a mill. They are not synonymous nor convertible terms, nor does one include the other. A sawmill is a sawmill, whether it has a shed over it or not. In, the factory where it is made or the store where it is sold, it is still a sawmill, and the sheds covering the sawmill in such cases are not parts of the sawmill, but parts of the real estate to which they are attached.
AVhat is a sawmill? A “saw” is “a tool for cutting,” and a “mill” is “a machine for grinding.” March’s Dictionary.
The standard lexicographers all give the first meaning of mill as a machine or device for grinding, cutting, etc. The mill is the machine constructed for various purposes of grinding, cutting, etc. The particular purpose for which it is designed is usually designated by a prefix indicating the purpose, as “sawmill,” “gristmill,” etc. The term “mill” necessarily carries with it the idea of a machine, device, tool, but it does not necessarily carry with it the idea of a shed or house. True, the term “mill” is frequently used to designate, not only the machine used for grinding, cutting, etc., but also, in a general and comprehensive sense, the house or shed where such machinery may be in operation, if there be a house or shed where the mill is located. Many lexicographers give- this as the second meaning of the word. See Worcester, Century and Webster’s Dictiona ries. So not much aid can be derived from the definition of the word by the lexicographers, except when it is used in its strictly technical sense.
If the makers of the contract had used the word in the broad sense of designating the plant as a whole, including house, machinery and all appointments in connection with such manufacturing establishment, they would hardly have added the words, “and machinery,” “and machinery .thereto attached,” after the word “sawmill,” for it would have been unnecessary. The word “mill” would have been sufficient.
Now, the parties to the contract were by their contract converting fixtures into personalty, if the contention of appellee be correct. They were changing the legal and natural status of the property, and the intention to do this should be made most manifest before the instrument could be construed to have such effect. We think it clear from the words used, and from the other reservations made by the owners of the real estate, that they did not intend to sell the mill shed with the sawmill and machinery, This shed would have to be torn down and detached from the soil in order to be removed, and it is not probable, we think, that the parties had this in contemplation. Only the “sawmill and machinery” were sold. “The land and all other property thereon” were reserved. It follows that the mill shed or house was not sold, and the court erred in rendering judgment in favor of appellee.
The judgment is reversed, and the cause is remanded for new trial. | [
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McCulloch, J.,
(after stating the facts.) All the owners of the land against whom a decree for specific performance of the contract of sale was sought were necessary parties to the suit. The relief could not be granted against one of the owners only, though he was agent and attorney in fact for the others. Such a decree has no binding force against the other owners. An agent, though properly authorized by his principals to execute a deed of conveyance, can not be compelled by a court of equity to execute a conveyance in specific performance of a contract to convey. The legal title being in the principals, the decree of the court must be directed against them, and they must, of course, be parties to the suit before they can be affected by the decree. Aiken v. Gill, 23 Ark. 477; Kiernan v. Blackwell, 27 Ark. 235.
Appellee might have defended the replevin suit by showing that he was the equitable owner of the land, and in possession with the right to cut timber. He did not content himself with this, but asked affirmative relief in the specific performance of the contract to convey, and also in adjusting the payments made by the lumber company for timber.’ It was therefore ’ incumbent upon him to bring in the necesáary parties affected by that relief. The court was absolutely powerless to grant that relief without the presence of all the owners of the land who, through their agent, had contracted to convey it.
It is true that no objection was made, by demurrer or otherwise, to the nonjoinder of parties, and, ordinarily, the defect of parties would thereby be waived; but not so in a case like this where the court is without power to grant the relief except as against persons who are not parties to the record. Without their presence as parties to the suit, no cause of action is stated. Under such circumstances the court must deny the relief, or cause the necessary parties to be brought in.
Kirby’s Digest, § 6011, is as follows: “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. But where a determination of the controversy between the parties before the court can not be made without the presence of other parties, the court must order them to be brought in.”
We deem it unnecessary to determine whether or not the testimony would justify the decree for specific performance, inasmuch as the other parties, when brought in, may adduce other proof, or may tender other defenses to the cross-complaint.
The decree is therefore reversed, and the cause remanded for further proceedings in accordance with this opinion. | [
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Hill, C. J.
This is a contest over the office of circuit clerk of Lincoln County, and calls for a decision as to whether Amendment No. 3, authorizing the Governor to fill vacancies by appointment, was legally adopted as part of the Constitution. Rice holds under an appointment made by the Governor; and against his claim to the office thereunder Palmer asserts, first, that Amendment No. 3 was not legally adopted, and, second, that there was no vacancy in the office, within the meaning of the law. The view the court takes of the first question renders unnecessary a decision of the second.
The clause of the Constitution under question is section 22, art. 19, as follows:
“Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for senators and representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”
The county election commissioners are required to certify the vote on the amendment to the Secretary of State, and the Secretary of State is required to transmit these sealed returns to the Speaker of the House of Representatives at the time and in the same manner that the returns for Governor and other executive officers are required to be transmitted to the Speaker. Kirby’s Digest, § 716. The Speaker is required, during the first week of the session, in the presence of both Plouses of the Gen eral Assembly, to open and publish the votes cast for Governor, Secretary of State, Treasurer, Auditor and Attorney General, and the person having the highest number of votes for each respective office shall be declared duly elected thereto, and the President of the Senate and Speaker of the House shall file a certificate with the Secretary of State, declaring what persons have been elected to the offices named. Kirby’s Digest, § 2852.
On the occasion of the ascertainment and declaration of the vote for Governor and said other executive officers, the returns on the amendment “shall be opened and counted in the presence of the General Assembly in joint convention assembled.” Kirby’s Digest, § 717.
Then follows this provision: “If it shall appear that a majority of the electors voting at such election adopt such amendment, then the Speaker shall declare such proposed amendment duly adopted by the people of Arkansas.” Then follow provisions for certificate to be filed with the Secretary of State, and for the Governor to make proclamation of the adoption of this amendment. Kirby’s Digest, § 718.
The declaration of the Speaker as to the result of the vote for Governor, Secretary of State, Treasurer, Auditor and Attorney General is not necessarily the final conclusion, for a contest may be had thereafter, and it shall be settled by the joint vote of both Houses, in which joint meeting the President of the Senate shall preside. Kirby’s Digest, § 2877.
There is no statutory provision for any tribunal to determine a contest over the result of the election on an amendment, and the section above quoted, requiring the Speaker to declare the result from the votes then before him, is the only method of ascertainment of the result prescribed by statute.
In the general election of 1899 Amendment No. 3 received 43,446 votes, and there were 40,207 votes against it, and there were 126,986 votes cast for governor.
The Speaker in joint session of the General Assembly of 1895, upon the votes aforesaid then before him, declared the amendment adopted; it was duly certified by the President of the Senate and Speaker, and proclamation made by the Governor. Two questions are involved: First, is the action of the Speaker, followed by the executive proclamation, the ultimate decision of this question which the courts can not review because committed to the other departments of State to determine, or is it a judicial question not to be settled until settled rightly in a judicial court? Second. Does an amendment require a majority of all the votes cast in the election or a majority voting on the question ?
First. It is strongly pressed upon the court that the General Assembly has delegated to the Speaker, as the servant and the mouthpiece of the joint session, the power to determine as to whether a constitutional amendment has been adopted; and that question is a political one, determined by a co-ordinate department of government, and the judiciary is precluded from entertaining it. This argument has often been made in similar cases to the courts, and it is found in many dissenting opinions, but, with possibly a few exceptions, it it not found in the prevailing opinion of any court of last resort. The authorities are practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of the existing constitution is a judicial question, and it is a paramount duty, of the courts to pass upon it. An examination of some of the leading cases may be both interesting and profitable. This exact question came before the New Jersey Court of Errors and Appeals on writ of error from the Supreme Court. The law of New Jersey provided that the Governor should summon four or more members of the Senate to sit with him, and they should constitute a board of canvassers to canvass and estimate the vote given for and against a constitutional amendment which had been voted on, and the board was empowered to “determine and declare” which amendments were adopted, and to certify the same, and its certificate would make the amendment part of the organic law. After the board had decided that an amendment relating to lotteries and one relating to appointments to office were adopted, and one on woman’s suffrage was rejected, citizens and taxpayers caused the question to get into the courts, and the final court said:
“The question naturally arising first in this case concerns the legitimate scope of our inquiry: Have we authority to consider and decide whether the determination of the board of State canvassers that the proposed amendment had been adopted was lawful, or did that determination, followed by the proclamation of the Governor, preclude judicial cognizance of the subject?” After stating the exact questions involved in regard to the amendments and how the case arose in the Supreme Court (there a court of general and original jurisdiction), the court continues: “It thus -becomes manifest that there was present in the Supreme Court, and is now present in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the Government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.” The court then goes into an interesting review of the authorities, and then says: “The examination made supports the assertion of Chief Justice Day (of Iowa) that the decisions, so far as they deal with the existence of the principle, are not in conflict. The only case found in which, the jurisdiction of the court was denied is Worman v. Hagan, 78 Md. 152.” (The court then discusses this case, which will be referred to later.) State v. Bott, 45 L. R. A. 251, 43 Atlantic Rep. 744.
In Mississippi a case arose as to the adoption of a constitutional amendment, and the first question which arrested the attention of the court was whether it was a judicial or a political question. Chief Justice Whitfield, in a clear and positive decision, puts at rest any doubts on the question. He' reviews the decided cases on the subject, and says it is settled by an overwhelming weight of authority that this is a judicial question; and then he continues:
“The true view is that the Constitution, the organic law of the land, is paramount and supreme over Governor, Legislature and courts. When it prescribes the exact method in which an amendment should be submitted, and prescribes positively the majority necessary to its adoption, these are constitutional directions mandatory on all the departments of government, and without strict compliance with which no amendment can be validly adopted. Whether an amendment has been validly submitted or validly adopted depends upon the fact of compliance or non-compliance with the constitutional directions as to how such amendment shall be submitted and adopted, and whether such compliance has in fact been had, must, in the nature of the case, be a judicial question.” State v. Powell, 77 Miss. 545, 48 L. R. A. 652.
In the case of Koehler v. Hill, 60 Ia. 545, a very exhaustive examination of this question was had. There was a majority and minority opinion, and then on motion for rehearing this question was threshed over. Chief Justice Day delivered a vigorous opinion, overruling the motion for rehearing. He reviewed the adjudged cases fully, and concluded his opinion on this branch of the case as follows:
“We have then seven States, Alabama, Missouri, Kansas, Michigan, North Carolina, Wisconsin and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either State or Federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. ITe would be a bold jurist, indeed, who would ride roughshod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so necessary to the peaceful administration of the government.”
The Alabama court said:
“The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required or the requisitions enjoined, if the Degislature or any other department of the government can dispense with them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.” Collier v. Frierson, 24 Ala. 108.
The following States in the following cases have entertained jurisdiction of suits to determine the validity of the adoption of constitutional amendments, and treated such questions as judicial questions: Missouri, State v. McBride, 4 Mo. 303; North Carolina, University of N. C. v. McIver, 72 N. C. 76; Michigan, Westinghausen v. People, 44 Mich. 265; Indiana, State v. Swift, 69 Ind. 505; Wisconsin, State v. Timme, 54 Wis. 318; California, Oakland Paving Co. v. Hilton, 69 Cal. 479; Kansas, Prohibitory Amendment Cases, 24 Kan. 700; Minnesota, Secombe v. Kittelson, 29 Minn. 555; New Jersey, State v. Wurts, 45 L. R. A. 251, s. c. 43 Atl. Rep. 244; Alabama, Collier v. Frierson, 24 Ala. 108; Iowa, Koehler v. 60 Ia. 543; Mississippi, State v. Powell, 77 Miss. 545. And against this array of authorities is only the Maryland court in Worman v. Hagan, 78 Md. 152.
The strength of appellant’s contention is in the argument that the General Assembly delegated to the Speaker, as the presiding officer of the joint session, the determination of this question. Chief Justice Whitfield said in State v. Powell, supra, “It may be that where the Constitution creates a special tribunal, and confides to that tribunal the exclusive power to canvass votes and declare the result, and make the amendment part of the Constitution, as a result of such declaration, by proclamation, or otherwise prescribed method fixed for such tribunal by the Constitution, then the action of the special tribunal would be final and conclusive, whether its action be judicial or not. This is so because it was competent for the sovereign people, speaking through their Constitution, so to provide.”
v It will be noted that Chief Justice WhiteiErd limits the exception to constitutionally created tribunals, but other courts recognize statutory tribunals as possessing the same power of ultimate conclusion where the Legislature exoressly provided. Judge Cooley thus expressed it in an analogous proposition:
“As the election officers perform for the most part ministerial functions only, their returns, and certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. This is the general rule, and the exceptions are those cases where the law under which the canvass is made declares' the decision conclusive, or where a special statutory board is established with power of final decision.” Cooley, Const. Lim. p. 937..
In view of this exception to the rule of judicial review, which has in a few instances been applied to adoption of constitutional amendments, it is important to consider whether sec tion 718, Kirby’s Digest, can be construed as creating the Speaker, either individually or as the representative of the joint session, a tribunal to determine the result of the election on amendments.
It is true that he must make declaration of the apparent result from the votes before him, just as he makes declaration of the election of governor and other officers from the votes before him. In the event of contest over one of the executive offices it is expressly provided that the joint session at a meeting presided over by the President of the Senate shall determine it, thereby showing clearly that there is no finality to this declaration from the face of the returns. Must it be taken, because there is no express provision for the joint session or other tribunal to determine a contest over an election on the amendment, that the only determination of it shall be the prima facie one from the face of the returns before the Speaker?
Suppose a few votes determine the fate of an amendment, and the returns from one county are known to be indubitably stained with fraud, and the proof is at hand. The Speaker is powerless to do more than declare the result as it appears from these returns sent him by the Secretary of State, who hands them to him as received from the county boards. Is it to be thought for a moment that it was ever intended that this, perfunctory duty of the Speaker, limited to the face of the returns, should preclude inquiry and permit the organic law to be changed contrary to the expressed wishes of a majority of the people? Can it be possible that the lawmakers intended the organic law to be changed on the face of the returns, and yet no officer, from Governor to constable, is necessarily concluded by the face of the returns? The statement of the position carries its own refutation. Certainly no such intention can be imported into the legislation which imposed this formal duty on the Speaker, as the words of the act negative the thought of a final decision of the question by the Speaker. “If it shall appear that a majority,” etc., is the language employed.
The Century Dictionary gives six definitions of the word “appear,” comprehending all shades of meaning attached to it, and none of them convey the idea of judicial or final determination or decision, but all convey the thought of the surface, the apparent, the obvious, that which is to be seen at first sight. The use of this word in defining the duties of the Speaker in this regard was quite apt, and properly imposed the formal and ministerial functions of casting up and declaring in open session what would appear to be the result. The votes on the principal State offices were then before him, and from these he could reach, at least approximately, the votes in the election, and the votes on the amendment would give the other necessary data to a prima facie decision from the face of the returns, and, in the language of Judge Cooley, “the final decision must rest with the courts.”
The strongest qase cited by appellant is State V. Wurts, 40 Atl. Rep. 740, but this was not the final decision of that case, and while the judgment was affirmed the ultimate conclusion' on this question was different in the court of last resort, the gist of which has been given. Worman v. Hagan, 78 Md. 152, s. c. 21 L. R. A. 716, seems to support the appellant, although Chief Justice Whitfield in State v. Powell, supra, treats this case as one where a constitutionally created special tribunal took it out.of the general rule, and does not regard it as antagonistic in principle with the other cases. While it is possible for that distinction to be made and save it from being an exception, yet the Maryland court itself did not make that distinction, and this appears to be merely a case out of plumb.
Luther v. Borden, 7 How. 1, is relied upon by counsel here, as it has been by counsel on the losing side in most of the other cases. There is a statement in the body of the opinion to this effect: that in forming the Constitution of the various States, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people, and the judical power has followed the decision. This was not a point decided in the case, and the statement was made merely in the course of the argument leading to the points decided. The case grew out of “Dorr’s Rebellion” in Rhode Island. The question was not as to an amendment of the Constitution, nor as to the adoption of the “Dorr Constitution,” but was that where there were two opposing governments in a State, the determination of which was the legitimate government was a political, and not a judicial, question, and where the courts of the State decide which was the proper government under its own laws, the Federal courts must follow the State decision. That this case, notwithstanding some general language, is not an authority for appellant is obvious; but if any doubt remains on the subject, the analysis-of the case by Chief Justice Day in Koehler v. Hill, supra, will remove it. There can be little doubt that the consensus of judicial opinion is that it is the absolute duty of the judiciary to determine whether the Constitution has-been amended in the exact and precise manner required by the Constitution, unless perchance a special tribunal has been erected to determine this question; and even then many of the authorities hold that this tribunal can not be permitted to illegally amend the organic law. Therefore it is the duty of the court to decide the question on its merits.
Second. This brings a consideration of the question whether in fact the amendment was adopted as required by the Constitution. The Constitution provides how an amendment shall be passed through the General Assembly for submission to the people and for publication for at least six months “immediately preceding the next general election for senators and representatives, at which time the.same shall be submitted to the electors of ‘the State for approval or rejection; and if a majority of the electors voting in such election adopt such amendments, the same shall become a part of the Constitution.” Art. 19, § 22.
“Such elections” evidently refers to the general election for senators and representatives. Any other construction would be straining the natural meaning of clear and proper English. The majority necessary to adopt it must be the majority of electors voting at the general election for senators and representatives, and not a mere majority voting on the subject of the amendment. The framers of the Constitution of 1874 used plain and simple English. 'They knew what they wanted, and what they did not want, and this, more than any other Constitution of the State, is full of details and explicit limitations. The time in which it was framed begot positiveness and strong convictions. This method of amending the Constitution by direct vote of the people is an adaptation to the American constitutional system of the initiative and referendum of the Swiss Republic. For a change there to be made in the organic law, it must secure a majority, not only of all the citizens of the Republic, but of all the Cantons of the Republic. This system is common to many States, and the prevailing rule is to require a majority of all the voters in the election, and not a mere majority of those voting on the question. Of course, the framers of the Constitution could have provided for either method; there were precedents for either of them when that clause was written, but, having deliberately and clearly adopted the rule that it must be a majority of the electors voting in the election, instead of a majority voting on this question, it is only for the court to bow to the express terms of the Constitution. This language needs no extrinsic aids to discover its meaning, but the court is not without authority for this construction. Similar or almost similar language has been before the courts many times, and while there is some conflict in the decisions, still the conflict is more apparent than real, and arises more from difference in language employed than in principles of construction. The authorities on. this subject are reviewed at length by Judge Trieber in Knight v. Shledon, 134 Fed. 423, and by Chief Justice Whitfield in State v. Powell, 77 Miss. 545. The case law is carefully gone over in these opinions, and it would be an idle task to repeat what has been so well done. These two decisions demonstrate that the great weight of áuthority sustains the construction reached by the court as above stated.
In view of the foregoing opinion, it necessarily follows that the conclusion,,.is that Amendment No. 3 was not adopted, and therefore the Governor did not have authority to appoint Rice circuit clerk. This was the judgment of the circuit court, and it is affirmed.
Justices Battre and Wood concur.
Mr. Justice Riddick concurs in the judgment; his reasons will be stated in an individual opinion.
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Wood, J.
(after stating the facts.) Appellant, with commendable compactness, has comprehended what it desires to say upon the twenty-three assignments of error in its motion for new trial in three propositions, viz. :•
1. The verdict was excessive, exemplary damages being erroneously allowed. 2. Improper admission of evidence of false arrest and imprisonment. 3. Error in modifying the 10th prayer of appellant for instruction.
The court gave at the instance of appellee the following instruction:
“6. The court instructs the jury that if you find for the plaintiff on the first or second paragraph of his complaint, or on both, you should assess his damages at such sum as yoü believe from the evidence would be a fair pecuniary compensation' to him for the inconvenience, injured feelings, indignity and humiliation suffered by him, if any, by reason of his being expelled, under the circumstances he was, from defendant’s car; and, in addition to that, if you believe from the evidence that the act of defendant’s conductor in expelling or causing plaintiff to be expelled from said car was malicious and oppressive, then you may add such sum as you may think proper, under the circumstances, by way of punitive or exemplary damages as a punishment for the wrongful conduct of defendant’s conductor.”
The court refused to give instructions 14 and 15, asked by defendant. They are as follows:
“14. - You are instructed that the plaintiff is not entitled to recover exemplary damages in this case.
“15. A street railway company is not liable in exemplary damages for the wrongful act of its employees in ejécting a passenger from its car, in the absence of proof of want of care in the selection .of such employees and of authority given it for' the commission of the act, or ratification thereof after its commission.”
In Foster v. Pitts, 63 Ark. 387, this court had under consideration the question of whether or not an individual was liable in punitive damages for the malicious acts of his agent in the scope of the agent’s authority, and the court said: “When an agent of an individual acts maliciously, he is presumed to act without authority; and while the agent is liable, the principal is not, for punitive damages, unless it appear that he aided, adopted or ratified the malicious act of the agent with a full knowledge of the facts.” We cited, to support that doctrine, the case of Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. 107, where it is said: “Exemplary or punitive damages, being awarded not by way of compensation to the sufferer but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, can not be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent. * * * The rule has the same application to corporations as to individuals. This court has often, in cases of this class, as well as in other cases, affirmed the doctrine that for acts done by the agents of corporations, in the course of its business, and of their employment, the corporation is responsible, in the same manner and to the same extent, as an individual is responsible under similar circumstances.”
Counsel for appellant rely upon these cases to support their contention that exemplary damages could not be awarded in this case, and that the court erred in giving the instruction for appellee and in refusing the prayers of appellant, supra. But the above cases are not applicable here. The Supreme Court of the United States makes no distinction between individuals and public carriers of passengers, in holding that such corporations, like an individual, can not be held liable in exemplary damages for the malicious acts of its agents which it had not authorized or ratified. Lake Shore, etc., Ry. Co. v. Prentice, supra. This court, while enforcing the above rule as to individuals (Foster v. Pitts, supra), has applied a different rule in the case of railroad 'corporations. Such corporations are liable in punitive damages for the wilful, wanton, and malicious conduct of their agents and servants in the line of their duties. Citizens’ Street Ry. v. Steen, 42 Ark. 321; Railway v. Hall, 53 Ark. 10; Railway Company v. Davis, 56 Ark. 51; Fordyce v. Nix, 58 Ark. 136; St. Louis, I. M. & S. Ry. Co. v. Power, 67 Ark. 142; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136-144.
This rule as to carriers of passengers is grounded on public .policy. Chief Justice Wood in the case of Pullman Palace Car Co. v. Lawrence, 74 Miss. 803, declares the rule and the reason therefor as follows: “It is argued that vindictive damages are in their nature penal, and that no one should be liable to punishment unless the act complained of is his own act, made so by his authorization or ratification of it when committed by the servant, and that it is illogical for the courts to do anything punitive in character unless the master is directly and personally responsible for the very act complained of. The sufficient answer to this contention is that the judge-made law of punitive damages is not the result of logic, but of public necessity, as text writers and courts have repeatedly shown. If corporations' — artificial beings who can act only through agents and servants in their varied and multitudinous and constantly recurring business dealings with the public — can never be held liable in punitive damages for the acts of their servants unless expressly ratified by them, no matter how j gross and outrageous the wrongful act of the servant, we feel perfectly safe in declaring that no recovery for more than mere compensatory damages will ever again be awarded against corporations. Corporations never expressly authorize their servants to beat or insult or outrage those having business relations with them, and they rarely ratify such conduct. Having by the constitution of their being to act solely by agents or servants, they must, as matter of sound public policy, be held liable for all the acts of their agents and servants who commit wrongs while performing the master’s business and fin the scope of their employment, and this to the extent of liability for punitive damages in proper cases.”
This doctrine, although apparently in conflict with the decision of the Supreme Court of the United States, is supported by the majority of the States that have announced a rule upon the subject, and is in accord with our own views, as announced in several cases, supra. In addition to these cases and the authorities cited in them, see 1 Joyce on Dam. § 139 et seq; Watson on Dam. and Personal Inj. § 730, and numerous authorities cited in notes. See also 2 Redf. Rys. § 203, note 1; Hutch. on Car. § 815; 2 Wood, Railroads (Minor’s Ed.), pp. 1416-17.
Accepting appellee’s version of the manner of his expulsion from the car by appellant’s conductor, which the jury has done, the evidence was sufficient to warrant a verdict for punitive damages. Nor can we say that the amount was excessive.
While the verdict of the jury eliminated the charge made in the first count, still we are of the opinion that what took placd at the depot between appellant’s servants and appellee was admissible. What appellant’s conductor said and did there tended to show' the animus of his conduct at Main and Markham, where the last expulsion took place. The motive of the conductor when he ordered the arrest of appellee at Main and Markham was of vital inquiry on the question of punitive damages, and the “frame of mind” he was in just the few minutes before at the depot, as evidenced by what he did and said there and then, tended to show the intent which' characterized his act at Main and Markham. Accepting the statement of appellee as true, the conductor was angry at the' depot when he found that appellee had moved his car, so much so that he was unnecessarily rude and insulting, and not disposed to receive explanations and amends, however reasonable and sincere. When appellee re-entered the car at Main and Markham, and asked appellant’s conductor for a transfer, his uncivil reply and the peremptory manner in which he demanded that appellee be taken from the car showed that his anger, previously aroused, had not yet abated.
Rooking at the testimony from the viewpoint most favorable to appellee, there was evidence to warrant the conclusion that appellant’s conductor subjected appellee, one of its passengers, to humiliating insults and indignities in the presence of. his family and friends. These were begun at the depot soon after appellee entered the car, and were repeated a short while after at Main and Markham. The jury might have found from the testimony that appellee was sober and well behaved throughout, that the movement of the car caused by the appellee was unintentional, and furnished no provocation whatever for the rough treatment he received at the hands of appellant’s conductor.
The court properly instructed the jury upon the subjects of compensatory and punitive damages, and the jury were warranted in finding that the conduct of appellant’s conductor in the line of his duty was wilful, wanton and malicious. Therefore we will not disturb the verdict. Nor can we say, in view of the duty of street car companies to protect its passengers from insult and injury, especially at the hands of its employees, that the verdict was excessive.
Appellant complains because the court permitted evidence showing that appellee was arrested at the instance of appel-' lant’s conductor and taken before the police court to be prosecuted for breach of the peace. The court properly sustained the demurrer to the third and fourth paragraphs of the complaint, which sought to hold appellant liable for the prosecution insti gated by its conductor against appellee for breach of the peace. Little Rock Traction & Electric Co. v. Walker, 65 Ark. 149. And the court erred in not sustaining the demurrer to the third paragraph before the evidence of such prosecution was admitted, and should not have permitted such evidence to go before the jury. The court, however, corrected the error, at first committed, before the cause was argued and submitted to the jury by this instruction, viz.:
“You are instructed that the plaintiff is not entitled to recover damages of the defendant company for his arrest and subsequent prosecution by the conductor, as charged in the third and fourth counts of his complaint, and you will therefore find in favor of the defendant on both of said counts.”
Counsel urge that, in addition to this instruction, the court should have at least warned the jury not to consider such evidence in determining the questions submitted on the other paragraphs. If the counsel had so requested of the court, doubtless their request would have been granted- If they had made such specific request, and the court had refused to grant it, they would have more reason to complain here. True, they objected to the testimony at the time it was offered, and the court did not then discover the error of its admission. Afterwards, when the court sustained the demurrer to the third paragraph of the complaint, counsel did not then ask of the court to exclude the evidence here complained of; and when counsel in the instruction above called attention of the court to the error of permitting a recovery for the prosecution before the police court, the circuit court promptly granted the request. It appears to us that this instruction was intended by counsel and by the trial court to remove entirely from the consideration of the jury the evidence of the proceedings before the police court for any purpose whatever in the questions the jury were to determine. The evidence of this prosecution could only have been introduced as responsive to the third paragraph of the complaint; and when it was taken from the jury, as it was, by this instruction, everything connected with it and based on it went out with it.
The evidence, so far as it related to the arrest of the appellee on the car by the policeman at the request and direction of the conductor, was proper, for this was the method adopted by the conductor for the ejection of appellee from the car, and was therefore an act in the scope of the conductor’s employment.
3. Instruction number ten as asked by appellant was obnoxious, in form, to the suggestions of this court in Pacific Mutual Life Ins. Co. v. Walker, 67 Ark. 147, and St. Louis, I. M. & So. Ry. Co. v. Tomlinson, 69 Ark. 489-97, inasmuch as most of the first part of the instruction submitted to the jury propositions as hypotheses that were not in dispute, or that did not and could not affect the question of appellant’s liability or nonliability, and, as was said in Ins. Co. v. Walker, supra, “the incorporation of all of them in a single instruction tended to* make it of unusual length and more or less confusing to the jury.” But the fatal objection to the instruction is that it is based upon the theory that appellee never became a bona fide passenger, and was therefore not entitled to recover. We find no warrant in the pleadings or proof for the submission of such issue to the jury. Appellee in the first and second paragraphs of his complaint, upon which, and, the answer thereto, the issue was made and the cause finally submitted, alleged that he “entered one of defendant’s cars for the purpose of becoming a passenger thereon,” and-“that defendant undertook, and it became and was its obligation and duty, to safely transport and carry said plaintiff,” etc. In the second paragraph of the complaint, upon which the jury based its verdict, it is alleged that appellee, “upon request of said conductor, duly paid his fare, and became a passenger thereon.” There was no denial of these allegations in the answer. The question therefore of whether or not appellee became a passenger was not in issue, and appellant had no right to an instruction submitting that question to the jury. Rust Land & Lumber Co. v. Isom, 70 Ark. 99-103. But there was no evidence to support the theory that appellee was not a passenger.
The jury eliminated the first paragraph of the .complaint, doubtless upon the*idea that the appellee did not become a passenger until just before the car from which he was ejected had reached Main and Markham.’ Whether right or wrong in this, it is certain beyond controversy that appellee had become a passenger before he was ejected from 'appellant’s car at Main and Markham. The testimony of appellant’s conductor, after reciting what took place at the depot, is as follows: “He” (appellee) “got on another car, and when we arrived at about Scott street, my car stopped, and somebody got on. I was in the rear of the car, issuing transfers, and didn’t know who it was. A paper boy came to me, and said a man in front wanted to see me. I went to the front, and met Dobbins. He turned his back as I came up, and I put my hand on his shoulder, and said ‘Fare, please.’ He replied that he had paid his fare on the other car, and I told him that he ought to have stayed on that car, and if he rode on my car he would have to pay again. Fie said ‘All right,’ and gave me his fare. I went back to issuing transfers, and he kept hallooing to me, ‘Transfer; transfer!’ I told him I would give him a transfer in a minute, and just to keep quiet. There were lots of people there, and he had plenty of time. He repeated his demand, and I said, ‘There is a seat! For goodness’ sake, sit down and keep quiet. And if you don’t, I am going to have you taken off the car.’ ” This is all the evidence upon the subject. There is no room to contend, in the face of this evidence, that appellee did not become a passenger.
There is nothing in this evidence that justifies the conclusion that appellee boarded appellant’s car at Main and Markham solely for the purpose of continuing his controversy, with the conductor, and with no intention of becoming a passenger. If appellee entered the car there with the intention of riding as a passenger, and paid his fare, which appellant accepted, he would be a passenger, even though he intended also to continue a controversy with the conductor. So the instruction was abstract and misleading, either with or without modification. But if it' were correct, the modification only tended to make clearer the idea intended to be conveyed by it, namely, that if appellee entered the car for some other purpose than the bona fide purpose of becoming a passenger, and with the expectation of being put off, so that he might sue appellant for unlawful ejection, then appellant would not be liable.
The testimony for appellant shows the conduct of its conductor in quite a different light from the testimony of appellee. If the testimony of appellant is true, it exonerated the conductor, and should save appellant from liability. The jury, however, settled these disputed questions of fact; and as there were no prejudicial errors in the ruling of the trial court, its judgment must be affirmed. So ordered.
Hire, C. J., not participating.
Instruction number 10 asked by appellant was modified by the court by the addition of the words which appear in italics, viz.: “10. If you find from the evidence that when plaintiff left Choctaw Station and took passage^ for his home on another car than that which was under the control of Barger, and that in order to continue his journey to his home it became necessary for him to change cars at Main and Markham streets, and to obtain a transfer ticket to another car for that purpose, then he should have applied to the conductor of the car on which he was a passenger for such transfer. And if you further find from the evidence that plaintiff left the car on which he was a passenger at or near the transfer point and re-entered the car of which Barger was the conductor, not for the purpose of continuing his journey on Barger’s car, but with the intention of continuing his controversy with Barger with the expectation of being put off, then he did not become a bona fide passenger on Barger’s car even though he paid his fare to Barger, and the relation of carrier and passenger did not exist between him and the defendant company, and he can not recover damages for wounded feelings and pain of mind for being ejected by Barger at Main and Markham streets.” (Reporter.) | [
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Wendell L. Griffen, Judge.
Appellant appeals from an order granting appellee's motion for summary judgment. Because the order did not dispose of all of the claims pled in the lawsuit, it is not a final, appealable order, and we therefore dismiss the appeal.
Appellant is the former owner of a five-percent interest in appellee Capital Services Group (CSG). Following his ouster from the company in November 2001, appellant received the first of several quarterly distribution checks, as provided by the company’s Members Agreement. Appellant disputed the amount of the check and raised other questions concerning CSG’s calculation of its distributable income, but he ultimately offered to settle the total amount he would be owed on quarterly distributions for $40,000, less amounts already received. CSG accepted the settlement, and appellant deposited the settlement check.
Thereafter, appellant informed CSG that he would continue to assert claims against it, prompting CSG to seek a declaratory judgment that it had no further liability to appellant. Appellant answered and counterclaimed that the settlement was tainted by fraud and was not an effective release of his claims. He also sought monetary damages for: 1) insurance fraud, based on an allegation that CSG was participating in an illegal commission-sharing scheme; 2) securities fraud, based on an allegation that, in repurchasing his interest after the ouster, CSG failed to disclose material information; 3) civil conspiracy in connection with the alleged insurance scheme.
CSG filed a motion for summary judgment, arguing that appellant’s claims were barred by the settlement. A hearing was held, during which appellant’s causes of action for insurance fraud, securities fraud, and civil conspiracy were not discussed. Following the hearing, the trial judge issued a letter ruling, stating that he did not find “any evidence that [CSG] breached any duty to [appellant] or misrepresented any fact to induce [appellant] to enter into the settlement agreement.” The judge further stated that “since there is insufficient evidence to support a claim for fraud or breach of fiduciary duty the settlement agreement is valid and enforceable.” The letter ruling did not mention the insurance fraud, securities fraud, or conspiracy counts. In the summary-judgment order entered April 23, 2003, the judge incorporated the letter ruling and found that CSG had “no further liability or obligation to [appellant] and that [appellant] holds no further valid claims against [CSG].” Appellant appeals from that order.
The question of whether an order is final and subject to appeal is a jurisdictional question, which we will raise on our own even if the parties do not. Epting v. Precision Paint & Glass Co., 353 Ark. 84, 110 S.W.3d 747 (2003). When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the trial court may direct entry of a final judgment as to one or more but fewer than all of the claims only upon an express determination, supported by specific factual findings, that there is no just reason for delay, and upon an express direction for the entry of judgment. Ark. R. Civ. P. 54(b)(1) (2004). In the event the court so finds, it shall execute a Rule 54(b) certificate and set forth the factual findings upon which the determination to enter judgment as final is based. See id.
In the case at bar, the court’s order disposed of appellant’s claim that the settlement should be set aside for fraud, but it did not dispose of or otherwise resolve appellant’s claims for insurance fraud, securities fraud, and civil conspiracy. Further, the order did not contain a Rule 54(b) certificate designating it as a final order. Therefore, the order is not an appealable order. See, e.g., Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); Capital Life & Accident Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001). Although the order contains broad language that CSG has no further liability to appellant and that appellant has no further claims against CSG, when that language is read in the context of the court’s letter ruling, which we may consider along with the language of the order, see Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000), it is clear that the trial court’s ruling was limited to the question of whether the settlement was valid and did not address appellant’s damage claims for insurance fraud, securities fraud, and civil conspiracy. We therefore dismiss the appeal without prejudice.
■Dismissed.
Pittman, Neal, and Baker, JJ., agree.
Hart and Roaf, JJ., dissent. | [
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John F. Stroud, Chiefjudge.
This appeal raises questions concerning the effect that a sale of real property under escrow contracts would have on a subsequent mortgage covering the same land. The trial court quieted title in the purchasers under the escrow contracts, which were also contracts of sale, and the mortgage holder appeals. We find no error and affirm.
In 1982, appellant Dorothy Dixon Hatchett conveyed some 204 acres located in Van Burén County to Earl Collister and Mary Collister. She took a mortgage on the property. The Collisters planned to resell the property by escrow contracts. In 1987, the original mortgage was released and another mortgage was executed to appellant. The 1987 mortgage did not declare that it was either an extension of, or a replacement for, the 1982 mortgage. In 1990, the Collisters executed still another mortgage to appellant. By 1994, the notes purportedly secured by the 1987 and 1990 mortgages were in default and appellant instituted foreclosure proceedings against the Collisters. Appellant obtained a foreclosure decree in February 1995. The decree provided that no determination about a sale would be made for thirty days to allow time for Mary Collister to account for the sales contracts that were then outstanding. Collister then filed for bankruptcy protection without providing the accounting. Ultimately, Collister received a personal discharge, and appellant was allowed to pursue her claims in rem against the property. None of the appellees were made a party to the foreclosure suit despite their escrow contracts being of record at the time the 1987 and 1990 mortgages were recorded.
Appellees Clifford and Bonnie Terry, Billie and Barbara Stroud, John Napier, Randy and Jill Terrell, Roland and Betty Baugh, and Ailene Hagee purchased land from the Collisters under escrow contracts between 1982 and 1986. They received their deeds a few years later. Appellees Clifford and Bonnie Terry filed the present action seeking to quiet title under their warranty deed and escrow contract because they paid off their contract and obtained a deed prior to the release of the 1982 mortgage and thereby became exempt from any sale under the foreclosure decree in appellant’s suit against Collister. An amendment to the complaint added the other appellees. Appellant answered, denying the allegations of the complaint and denying the existence of the escrow agreements between Collister and appellees. Appellant also filed a motion to dismiss, alleging that appellees failed to join Collister as a necessary party and suggesting that appellees intervene in the pending foreclosure suit. The trial court denied appellant’s motion to dismiss, finding that Collister was not a necessary party. Appellant filed a counterclaim seeking to have title to the property quieted in her, alleging that appellees knew of the mortgage to appellant at the time they purchased their properties.
Mary Collister testified that she and her late husband Earl were in the business of selling property when they purchased 204 acres from appellant in 1982 and gave her a mortgage as part of the transaction. She testified that she and her husband sold property on escrow contracts. She testified that it was her understanding that, when the land under the escrow contracts was paid for, the purchasers would receive a release from appellant. Collister admitted that there were second and third mortgages to appellant but did not know how many contracts had been entered into at that time or whether her purchasers knew of the mortgages to appellant. She admitted that the mortgages were not paid and that appellant had filed a foreclosure action against her. She stated that she filed for bankruptcy and received a personal discharge. Collister also stated that, at the time of the foreclosure action in 1994, twenty-eight acres had been released but only $11,000 had been paid on the note to appellant. She stated that her bankruptcy listed any potential claims against her but was uncertain whether this included possible claims by appellees. She also admitted that the accounting provided for in the foreclosure decree was never given.
She stated that the escrow sales were handled by Clinton Real Estate and its agents Les Frith, Jerel Brown, and David Tomlinson, and that she did not know how much money she received for the escrow sales to appellees. She also stated that each escrow agreement reflected an outstanding lien on the property and that the purchasers knew that there was a lien on the property. Collister stated that she did not know whether appellees had received deeds to the properties. She admitted that she had no documentation stating that appellant would release the property. Collister also admitted that she had never told appellant about the escrow contracts or the specific properties that had been sold. She also stated that her husband was the active party in the escrow transactions.
Jerel Brown testified that he purchased Clinton Real Estate in 1984 and was aware of the transaction between appellant and Mary Collister whereby appellant sold the property to the Collis-ters and the Collisters then marketed smaller parcels of the property. Brown testified that there was an outstanding mortgage to appellant and that it stated in the note that there would be releases if parcels needed to be released. He testified that the note also provided that appellant would honor third-party contracts. Brown stated that he sold the property to the Terrys, the Strouds, and to John Napier. He was also aware of the transaction with Ailene Hagee. He also stated that, when he purchased the business in 1984, he did not want to be the escrow agent and that David Tomlinson became the escrow agent. Brown stated that he told the appellees that, when they paid off their property, the lien to appellant would be released. He testified that appellant requested that the escrow agreements be recorded. He stated that appellees knew that there was an outstanding mortgage when they purchased the property. He testified that the 1982 mortgage was released and that another mortgage was given by the Collisters but that he was unaware of the details of that transaction. He also stated that he did not make any sales after 1987. Brown testified that he relied on a provision in the note from the Collisters to appellant providing that appellant would release property upon being paid $500 per acre. He testified that appellant told him that she realized she would have to honor some third-party contracts as provided by the 1982 note. He also stated that appellant prepared her own releases.
Several of the appellees testified about entering into the escrow contracts and receiving their deeds. They testified that the mortgage was indicated as a lien on the land but that it was to be paid off and released when they paid off their escrow contracts. They also indicated that they were not notified of either Collister’s bankruptcy or the foreclosure sale. All testified that they paid off their escrow contracts and received deeds to their properties, which were properly recorded. They also all indicated that no one told them who would be responsible for obtaining the releases from appellant.
David Tomlinson, a former owner of Clinton Title Company, testified that he administered some of appellees’ escrow contracts. He testified that, when the contracts were paid off, he delivered the deeds to appellees that had been held in escrow. He admitted that, when the deeds were recorded, he did not check to see if the liens had been paid off. He also described the 1982 mortgage as being released prior to the 1987 mortgage being recorded. He also testified that, at the time the 1982 mortgage was released, appellees’ escrow contracts were on record but that the 1987 and 1990 mortgages covered the same tracts and created a cloud on the title. Tomlinson opined that appellees had an equitable interest in the property by virtue of the escrow contracts. He stated that he received funds from appellees under the escrow contracts and remitted those funds to Mrs. Collister’s account. He was aware of the outstanding mortgage and that the proceeds were supposed to pay that mortgage. He also stated that it was Mrs. Collister’s responsibility to pay that obligation. He testified that appellant was aware of these escrow contracts and that, if she was not receiving payment, she would have discussed the matter with him. Tomlinson admitted that appellant, as a lienholder, never instructed him to do anything and never told him that she was not receiving her payments. He also admitted that appellant was not a party to the escrow agreements.
Linda Bly, appellant’s niece and the trustee of the Dorothy Dixon Hatchett Revocable Trust, testified that the trust is the owner of the 204-acre tract. She also stated that appellant was an attorney, a realtor, and an abstractor but that she never actively practiced law. She stated that appellant closed her business in approximately 1987 because of failing health and that there had been a steady decline in her health since 1990. She also stated that appellant’s memory was unreliable. She stated further that she discussed the case with appellant and that appellant told her that she never intended to give anyone anything without being paid for it. She stated that appellant said that there was no intention to release the lien without being paid.
The trial court issued a letter opinion in which it noted that appellees’ interests in their properties were filed of record before the foreclosure and thereby protected by Ark. Code Ann. § 14-15-404 (Repl. 1998). The court also noted that, when the 1982 mortgage was released, the lands owned by appellees had already been conveyed to them and the Collisters could only mortgage that property in which they had an interest. The court ruled that the foreclosure sale should go forward, except with respect to the lands conveyed to appellees, and that titles to those lands were quieted in the respective appellees. A decree was entered in accordance with the letter opinion on April 8, 2003. The decree consolidated appellant’s foreclosure suit with appellees’ quiet-title action. An amended decree was entered on April 22, 2003, correcting some of the property descriptions. Notice of appeal was timely filed on April 29, 2003.
Appellant raises four points for reversal: that the trial court erred in finding that the escrow contracts between Collister and appellees took precedence over appellant’s mortgage, which had been foreclosed upon, without finding that appellant had committed fraud in obtaining the foreclosure decree; that the trial court erred in finding that appellant had a responsibility to make appel-lees parties to the original foreclosure action because appellant was seeking a foreclosure in the present action; that the trial court erred in finding that Collister was not a necessary party to the present action and that appellees had a right to elect their remedy against appellant; and that the trial court erred in finding that appellees’ escrow agreements to purchase property took precedence over an existing mortgage from Collister to appellant.
In reviewing a circuit court’s exercise of its equity jurisdiction, we consider the evidence de novo, but we will not reverse a trial judge’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 4 (1989). We give due deference to the superior position of the trial judge to view and judge the credibility of the witnesses. Arkansas Presbytery v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999).
Appellant first argues that the trial court erred in finding that the escrow contracts between Collister and appellees took precedence over appellant’s mortgage, which had been foreclosed upon, without finding that appellant had committed fraud in obtaining the foreclosure decree. In other words, appellant is arguing that appellees must show fraud in order to set aside the foreclosure decree. We do not believe that rule has any application in the present case because appellees are not attempting to set aside the foreclosure decree. The 1995 foreclosure decree was not a final decree because it did not order a sale of the property. Rather, Collister was allowed time to account for any outstanding escrow contracts. See Scherz v. Mundaca Inv. Corp., 318 Ark. 595, 886 S.W.2d 631 (1994) (holding that a foreclosure order that orders a sale of the property and places that order into execution without further judicial action is a final order). Appellees did not allege that appellant committed any fraud; rather, appellees allege that their escrow contracts had intervened between the time of the release of the 1982 mortgage and the recording of the 1987 and 1990 mortgages. The supreme court has specifically held that the purchaser of land subject to a mortgage is a necessary party to a suit seeking foreclosure of that mortgage. First State Bank v. Cook, 192 Ark. 213, 90 S.W.2d 510 (1936); Clark v. Lesser, 106 Ark. 207, 153 S.W. 112 (1913). Here, appellees purchased their lands subject to the 1982 mortgage. Their interests were of record at the time of the 1994 foreclosure action. Because they were not named parties, appellees’ interests in their lands were unaffected by the foreclosure decree. Cook, supra; see also Maloy v. Stuttgart Mem’l Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994) (holding that the general rule is that a non-party is not bound by a judgment). We affirm on this point.
In her second point, appellant argues that the trial court erred in finding that appellant had a responsibility to make appellees parties to the original foreclosure action because appellant was seeking a foreclosure in the present action. Without question, appellees claim an interest in the 204 acres covered by appellant’s mortgage and complete relief for appellant regarding the mortgaged property cannot be accomplished without their joinder. As noted above, a purchaser of land subject to a mortgage is a necessary party to a suit seeking foreclosure of that mortgage. First State Bank v. Cook, supra; Clark v. Lesser, supra. Further, as noted in the fourth point, when Collister executed the escrow agreements and deeds, she lost the ability to grant a valid mortgage on the same property covered by the escrow agreements. The fact that appellant sought foreclosure in the present action is irrelevant because there was no mortgage covering appellees’ lands for appellant to foreclose. We also do not see the prejudice to appellant from this ruling because the trial court consolidated the foreclosure case with the present case and provided that the foreclosure sale could proceed with respect to the remaining land covered by the 1987 and 1990 mortgages. We affirm on this point.
Appellant next argues that the trial court erred in finding that Collister was not a necessary party to the present action and that appellees had a right to elect their remedy against appellant. Both sides suggest that the other should have made Collister a party, but neither side wanted to take responsibility for bringing Collister into this action because of Collister’s having filed for bankruptcy relief and obtaining a discharge. Appellant argues that her rights against Collister were decided in the bankruptcy. This same argument also answers appellant’s argument because any breach of warranty on Collister’s part occurred when Collister attempted to grant the second and third mortgages, which occurred prior to her filing bankruptcy. Collister testified that her bankruptcy petition listed potential claims against her but was uncertain if appellees’ claims were included. Under the bankruptcy code, 11 U.S.C. §§ 524, IT! (2000), any potential cause of action for breach of warranty against Collister for conduct occurring prior to the filing of the bankruptcy petition and listed in that petition was extinguished upon her discharge. See Johnson v. Home State Bank, 501 U.S. 78 (1991). Thus, making Collister a party to this action would not accomplish anything because her personal liability had been discharged in bankruptcy. We affirm on this point.
For her fourth point, appellant argues that the trial court erred in finding that appellees’ escrow agreements to purchase property took precedence over an existing mortgage from Collister to appellant. The real issue is the effect of appellees’ escrow contracts when the 1982 mortgage was released and the 1987 and 1990 mortgages were recorded. Placing a deed in escrow that is accompanied by a contract of sale, both of which are recorded, withdraws the land from the market' and renders the grantor powerless to encumber the land so far as the vendee is concerned. Scott v. Stone, 72 Kan. 545, 84 P. 117 (1906) ; 28 Am. Jur. 2d Escrow § 43 (2000). See also Roach v. A.D. Malone Mercantile Co., 135 Ark. 69, 204 S.W. 971 (1918); Fine v. Lasater, 110 Ark. 425, 161 S.W. 1147 (1913). That is the situation here. Collister had no power to mortgage the lands to appellant that had been conveyed to the appellees. See Fine, supra; Potlatch Corp. v. Triplett, 70 Ark. App. 205, 16 S.W.3d 279 (2000). This is true even though no title passes until the condition — the payment for the land — has been performed, and not the date the escrow agreement was signed. Arkansas Supply, Inc. v. Young, 265 Ark. 281, 580 S.W.2d 174 (1979); Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W.2d 726 (1928); White v. Cordes, 14 Ark. App. 104, 685 S.W.2d 524 (1985). Appellees had all recorded their deeds prior to the 1994 foreclosure case, and none of the appellees were made parties to the foreclosure suit. This is also true due to the gap between the release of the 1982 mortgage and the execution of the 1987 mortgage. Because they were not named parties, appellees’ inter ests in their lands were unaffected by the foreclosure decree. First State Bank v. Cook, supra. We affirm on this point.
Affirmed.
Neal and Crabtree, JJ., agree.
Dorothy Hatchett later conveyed her interest in the property to the Dorothy Dixon Hatchett Revocable Trust. We refer to appellant as including both Dorothy Hatchett and Linda Bly as trustee of the Dorothy Dixon Hatchett Revocable Trust.
Earl Collister died prior to the entry of the foreclosure decree.
TheTerrys recorded their deed on May 30,1990. The Strouds recorded a deed to one tract on August 3, 1992, and a deed to a second tract on June 6, 1988. John Napier recorded his deed on August 2,1993. TheTerrells recorded their deed on May 14,1985. The Baughs recorded their deed on February 27, 1992. Ailene Hagee recorded her deed on April 2,1993.
This case is styled Scott v. Sloan in the Pacific Reporter.
The 1982 mortgage was released on February 15,1987, and the 1987 mortgage was executed on November 15,1987.The release was recorded on November 23,1987, at 11:30 a.m., and the 1987 mortgage was recorded on November 23,1987, at 11:40 a.m. | [
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Linker Hart, Judge.
At a bench trial, appellant, Warren Bowman, was convicted of felony indecent exposure and sentenced to 120 days’ imprisonment in the Pulaski County jail, six years’ probation, a fine of $500, and 100 hours of community service. On appeal, he argues that the circuit court erred in denying his motion for dismissal because the victim’s in-court identification of him as the perpetrator was so tainted by pretrial occurrences that it was unreliable. We affirm.
The State’s evidence established that on July 23, 2001, the eleven-year-old victim, Latasha Williams, was riding a bicycle at her apartment complex when appellant, whom she identified in court without objection, stopped his vehicle and told her not to put her foot on the ground while riding her bicycle because she would burn a hole in the bottom of her shoe. He drove off, and later, as Williams was putting her bicycle away, appellant pulled up beside her and told her to come over to him because he had something to ask her. According to Williams, appellant exposed his penis when she approached him. He then quickly drove away in his truck.
After reporting appellant’s conduct to her mother, Debra Whittecar, Williams and Whittecar searched for appellant. They went to the apartment manager, Brenda Winemiller, and described the person who had exposed himself. Winemiller stated that the description fit appellant, who previously had worked for her and had visited with her earlier that day. Whittecar called the police, who took their report and left. Whittecar later drove with Williams over to an apartment complex where Winemiller said appellant lived. After Williams identified a truck as the one appellant had been driving, Whittecar again called the police. Observing the police confront appellant, Williams told her mother that appellant was the perpetrator. The police asked Williams if this was the person who exposed himself, and after telling the police that it was, appellant was arrested.
Acknowledging that a motion to dismiss is a challenge to the sufficiency of the evidence, appellant argues on appeal that his conviction should be dismissed because Williams’s in-court identification was unreliable. He asserts that the identification was unreliable because Williams’s encounter with the perpetrator was brief. Appellant also notes that Williams recognized him and the truck only after she and her mother conducted a search at an apartment complex to which she was directed by Winemiller. Further, he states that Williams’s identification of him occurred after her mother located appellant’s truck and called the police, and Williams saw, from a distance, appellant undergoing questioning by a police officer.
Appellant does not make a claim of constitutional infirmity in the eyewitness identification procedures; instead, appellant only challenges the reliability of Williams’s identification. Absent an allegation of constitutional infirmity in the eyewitness identification procedures, the reliability of Williams’s identification of appellant was a question for the factfinder. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).
For instance, in Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994), Stipes questioned the reliability of the victim’s identification of him as the perpetrator. In considering his argument, the court stated that “when a witness makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the factfinder to determine,” and “[t]he factfinder’s decision will not be disturbed on appeal when there is substantial evidence to support it.” Stipes, 315 Ark. at 721, 870 S.W.2d at 389. Further, the court stated that “unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction.” Id. The court affirmed Stipes’s convictions, concluding that the victim’s unequivocal pretrial and in-court identifications of Stipes as the perpetrator constituted sufficient evidence.
Here, Williams unequivocally identified appellant as the perpetrator. Applying the Stipes analysis, we conclude that Williams’s unequivocal testimony was sufficient evidence to sustain appellant’s conviction.
Affirmed.
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F. Stroud, Jr., Chiefjudge.
Appellant, Willie Nichols, sought coverage under his wife’s, Mary Ross’s, automobile insurance policy concerning a collision between the 1988 Chevrolet Celebrity driven by appellant and an uninsured vehicle owned by the Black & White Cab Company. At the time of the collision, appellant and Mary Ross were separated and living in different households. Appellee, Farmers Insurance Company, filed a motion for summary judgment, which was granted by the trial court. Appellant contends that the trial court erred in doing so. We agree, and therefore we reverse and remand for trial.
In reviewing summary r-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based upon whether the evidence presented by the moving party left a material question of fact unanswered. Beaver v. John Q. Hammons Hotels, Inc., 81 Ark. App. 413, 102 S.W.3d 903 (2003). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment is not proper where, although the actual facts are not in dispute, they may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). Moreover, where the meaning of a contract does not depend on disputed extrinsic evidence, the construction and legal effect of the policy are questions of law. Tunnel v. Progressive Northern Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003). Here, the primary issue does not involve a question of fact, but rather the construction and legal effect of the terms of the insurance policy, i.e., whether appellee was entitled to judgment as a matter oflaiv. We conclude that it was not.
The pertinent portions of the insurance policy provide:
AGREEMENT
We agree with you, in return for your premium payment, to insure you subject to all the terms of this policy. We will insure you for the coverages and the limits of liability shown in the Declarations of this policy.
DEFINITIONS
Throughout this policy, “you” and “your” means the “named insured” shown in the Declarations and spouse if a resident of the same household. “We,” “us” and “our” mean the Company named in the Declarations which provides this insurance. In addition, certain words appear in bold type. They are defined as follows:
Family member means a person related to you by blood, marriage or adoption who is a resident of your household.
PART II B UNINSURED MOTORISTS
Coverage C B Uninsured Motorist Coverage
(Including Underinsured Motorist Coverage)
We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Determination as to whether an insured person is legally entitled to recover damages or the amount of damages shall be made by agreement between the insured person and us. If no agreement is reached, the decision will be made by arbitration.
Additional Definitions Used In This Part Only
As used in this part:
1. Insured person means:
a. You or a family member.
b. Any other person while occupying your insured car.
c. Any person for damages that person is entitled to recover because of bodily injury to you, a family member or another occupant of your insured car.
But, no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission of the owner.
It is undisputed that Mary Ross is the named insured on the policy, that she and appellant were married at the time of the collision, and that they were not living together. In her deposition, Ms. Ross also testified that the Celebrity, which was the car driven by appellant at the time of the collision, was a vehicle that she kept available for her daughter and for appellant. She stated that appellant took the 1988 Celebrity for his personal use when they separated.
Appellant’s contention on appeal that the trial court erred in granting summary judgment is divided into two subparts: (1) that the trial court erred in holding that he was not covered under the policy because if he did not meet the policy’s definition of “family member,” due to the fact that he was not residing with his spouse, then he assumed the status of an “other person” occupying the vehicle with permission; (2) alternatively, that the trial court erred in holding that the terms of the policy were not ambiguous as a matter of law. We will address the two subparts together.
Our supreme court explained in Smith v. Southern Farm Bureau Casualty Insurance Co., 353 Ark. 188, 114 S.W.3d 205 (2003), that ambiguous terms within an insurance policy should be construed against the insurer, but that the terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk that is plainly excluded and for which it has not been paid. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). Where, however, parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. Id.
Our case law demonstrates that where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. Id. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Id. Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a matter of law. Id. On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. Id.
Insurance contracts are to be construed strictly against the insurer, but where language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy. Smith, supra. The language of an insurance policy is to be construed in its plain, ordinary, and popular sense. Id. The fact that a term is not defined in a policy does not automatically render it ambiguous. See id. As a guideline of contract interpretation, the different clauses of a contract must be read together and the contract should be construed so that all parts harmonize. Id. Construction that neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Id.
Appellant submits that the question of a non-resident family member’s status as “any other person” under this type of policy language has not been litigated in Arkansas. We agree. Moreover, neither party has provided us with citation or authority from other jurisdictions concerning how similar policy language has been construed in similar situations.
Here, we have set out the pertinent policy language in its entirety. However, the heart of this case involves appellant’s claim based upon the following specific policy language:
1. Insured person means:
a. You or a family member.
b. Any other person while occupying your insured car.
c. Any person for damages that person is entitled to recover because of bodily injury to you, a family member or another occupant of your insured car.
(Italics added.) Appellant concedes that he does not satisfy the policy definition of family member due to the fact that he was no longer a resident of Ms. Ross’s household at the time of the collision. However, he argues that the policy does not specifically address the status of family members who do not reside in the household, and that if appellee intended to entirely exclude nonresident family members from coverage, it should have said so. He maintains that a reasonable interpretation of the policy in light of his status as a nonresident family member is that he is covered as “any other person.”
Appellee counters by arguing that finding coverage for appellant under the “any other person” language would neutralize the “family member” coverage because appellant’s interpretation of “any other person” would thereby define an insured as any person occupying an insured person’s car with the insured’s permission. Appellee further argues that the “any other person” coverage is intended to provide temporary insurance to individuals such as a neighbor, i.e., that “[i]t is to provide coverage in those infrequent circumstances when an insured vehicle is temporarily borrowed for short and intermittent periods of time. It is not for family members, such as Mr. Nichols, who live in a separate residence . . . for a period of at least one year that routinely use the insured vehicle.”
The problem with appellee’s argument is that the policy could have spelled that out, but it did not. Appellee’s position is based upon the policy that it wishes it had written, not the one that it did write. The policy does not define “any other person,” much less define it to encompass only temporary, infrequent users. We find that the policy language is ambiguous because it is fairly susceptible to more than one reasonable interpretation. That is, we find both parties’ interpretations reasonable under the policy language. Moreover, adopting either interpretation will neutralize some portion of the policy. That is, appellant’s interpretation tends to neutralize “family member” coverage; however, appellee’s interpretation also tends to neutralize the “any other person” language. We conclude, therefore, that the policy language is ambiguous, that it must be construed against its drafter, appellee, that its meaning does not depend upon disputed extrinsic evidence, and that as a matter of law the language developed by the appellee provides coverage for appellant under the circumstances presented by this case.
Reversed and remanded.
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osephine Linker Hart, Judge.
Appellant, Curtis Burris, J appeals from a decision of the Workers’ Compensation Commission denying his claim for permanent and total disability benefits and limiting the decrease in his wage-earning ability equal to a 20% permanent partial disability. Appellee, L & B Moving Storage, contends on cross-appeal that the Commission erred in awarding any wage-loss benefits, and further, that the Commission improperly disregarded a stipulation of facts agreed upon between the parties and consequendy erred in awarding any benefits for a decrease in appellant’s wage-earning ability over and above his 5% anatomical impairment rating. We affirm on direct appeal and on cross-appeal.
The parties stipulated, among other things, that appellee had accepted the claim as compensable and had paid to appellant a 5% permanent physical impairment rating in addition to an offer of vocational rehabilitation. Although the administrative law judge acknowledged that the parties had stipulated that appellee had offered vocational rehabilitation to appellant, he noted that the record was silent with regard to appellant’s response to any offer of rehabilitation. Thus, the ALJ opined that “while it cannot be found that the claimant refused vocational rehabilitation, neither can it be found that the claimant participated with any such effort.” The ALJ determined that appellant had sustained a decrease in his wage-earning ability equal to a 10% permanent partial disability in addition to a 5% physical impairment rating. The Commission, after conducting a de novo review of the entire record, found that appellant sustained a decrease in his wage- earning ability equal to a 20% permanent partial disability, then affirmed and accepted the opinion of the ALJ as modified. From that decision comes this appeal.
In reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). These findings will be affirmed if supported by substantial evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). On review of workers’ compensation cases, the question is not whether the evidence would have supported findings contrary to the ones made by the Commission; rather, it is •whether there is substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact. See Privett v. Excel Specialty Prods., 76 Ark. App 527, 69 S.W.3d 445 (2002). The decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). The Commission may accept only those portions of testimony that it determines are worthy of belief. Tucker v. Roberts-McNutt, 342 Ark. 511, 29 S.W.3d 706 (2000).
At the time of the hearing, appellant was a fifty-four-year-old laborer who had worked primarily as a furniture hauler. Appellant testified that he had completed the eighth grade but had no further education or training. He noted that although he could write his name, he was unable to read or write very well. Appellant described his employment history as having worked for thirty-one years as a furniture packer and mover. He stated that he had maintained employment from the time he was nine years old until he was injured on November 14, 2000. Appellant testified that after the injury, his back hurt all of the time and that he was unable to lift anything.
Dr. Greg Smart saw appellant on several occasions beginning November 29, 2000, and reported that appellant suffered left-leg pain radiating from the left buttock down the back of the leg. After reviewing the result of an MRI, Dr. Smart recommended a bone scan. In his report from January 10, 2001, he noted that appellant experienced “disc herniation to the left,” which could possibly account for some of appellant’s symptoms. He also noted that appellant had reported pain in his back as well as pain and numbness in his left leg. Dr. Smart’s notes from May 11, 2001, state that “[l]ong-term, Mr. Burris will not be able to return to his prior regular duties and he will have long-term restrictions whether he has surgery or whether he does not have surgery.”
Dr. Robert E. Germann’s reports from January 16, 2001, and February 6, 2001, note that the MRI of appellant’s back “revealed a herniated disk at [the] left L4-5 and small left herniated disk at [the] L5-S1 on the foramen” and that appellant failed on conservative treatment.
Dr. James R. Adametz reported on March 2, 2001, that appellant suffered a small disk abnormality and that it would be in appellant’s best interest for him to obtain a light-duty job by trying vocational rehabilitation. On June 5, 2001, Dr. Adametz assigned appellant a permanent partial impairment rating of 5% to the body as a whole and recommended that he not lift anything over thirty pounds. Merlinda B. Reyes, P.T., opined on April 2, 2001, in a functional-capacity evaluation summary report that appellant could potentially be a “difficult rehabilitation candidate due to his lack of full physical effort and some degree of symptom magnification.”
For reversal, appellant argues that substantial evidence does not support the Commission’s denial of his claim for permanent and total disability. Instead, appellant asserts that he is totally and permanently disabled based on the medical testimony of his extensive injuries and his own testimony regarding his lack of employable skills and abilities. In support of this contention, appellant cites Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998), for the proposition that the wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood, and that the Commission is charged with the duty of determining disability based upon a consideration of medical evidence, age, education, and work experience. As its point on cross-appeal, appellee also cites as error the Commission’s award of a 20% wage-loss disability rating. Appellee argues that appellant is not entitled to any additional benefits because the evidence established appellant as merely a benefit-seeker who not only exaggerated his physical symptoms but also failed to put forth his best efforts in a functional capacity evaluation.
The Commission, in its opinion, relied on the reports from Dr. Adametz in which he stated that appellant could perform light-duty work. Further, the Commission noted that the record indicated that appellant was “not motivated to resume employment [and] such a lack of motivation impedes our assessment of the claimant’s loss of earning capacity.” Despite these observations, the Commission, noting appellant’s age, lack of education, work history, and no prior back injuries as well as his credible testimony that he wass not able to sit, stand, or bend without difficulty, found that appellant had sustained a decrease in his wage-earning ability equal to 20% in addition to his 5% anatomical impairment.
Viewing the evidence in the light most favorable to the Commission’s decision, we hold that its decision displays a substantial basis to award appellant a decrease in his wage-earning ability equal to 20%. Appellant testified that he was fifty-four years of age at the time of the hearing, had completed an eighth grade education, and had worked since the age of nine years old. The medical testimony demonstrated that appellant injured his back and would not be able to return to his prior work duties as a result of the injury. However,, appellant sustained only a 5% permanent partial impairment rating, and the medical evidence did not preclude appellant from engaging in light-duty work. Even though appellant has only completed the eighth grade, and his testimony demonstrates his lack of written communication.skills, his proof falls far short of establishing, as a matter of law,that he suffers a total incapacity to earn wages.
On cross-appeal, appellee asserts two points. First, appellee argues that the Commission improperly disregarded a stipulation of facts agreed upon by the parties that appellee had offered vocational rehabilitation to appellant. Second, appellee argues that the Commission erred in awarding benefits over and above the percentage of physical impairment issued by appellant’s treating physician. Our prior discussion in which we held there was substantial evidence to support the Commission’s award of a decrease in wage-earning ability of 20% obviates the need for discussion of this second point.
While the Commission recognized the parties’ stipulations, it noted in its opinion:
Despite counsel’s stipulation that the respondents had “offered vocational rehabilitation,” there was no testimony indicating what sort of rehabilitation was offered the claimant. Nor was there any record of consultation with a vocational counselor or any other offer of vocational rehabilitation. In order to rely upon Ark. Code Ann. § 11-9-505(b)(3) in foreclosing the claimant’s entitlement to permanent partial disability, the respondents must show that the claimant refused to participate in a program of vocational rehabilitation or job placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors. Knight v. Andrews Transport, Worker’s Compensation Commission E408356 (April 17,1998), citing Newman v. Crestpark Retirement Inn, Workers’ Compensation Commission E418166 (Sept. 14, 1998). In the present matter, the respondents offered no evidence to show that the claimant refused to participate or was unwilling to cooperate in vocational rehabilitation. Therefore, the Pull Commission affirms the Administrative Law Judge’s finding that the claimant is not barred by Ark. Code Ann. § 505(b)(3) from pursuing wage-loss disability.
Appellee asserts that Ark. Code Ann. § ll-9-505(b)(3) (Repl. 2002) does not require that a specific program be offered to the one claiming benefits. Further, appellee argues that once the employer offers a claimant rehabilitation, the burden ofproof shifts to the claimant to show cooperation or a reasonable basis for nonparticipation. In support of this argument, appellee claims that before any individualized program of rehabilitation can be developed “it is necessary for claimant to participate in an assessments and information gathering.” Appellee argues that the evidence is clear that appellant neither participated in nor cooperated with a program nor did he present a reasonable cause why he could not participate in a program.
Appellant, on the other hand, contends that appellee presented no evidence concerning the type of employment which he might be able to perform in light of his limited physical abilities and no evidence of the availability of employment for someone with limited skills such as appellant. Appellant notes that the record is void of any evidence that appellee presented a specific program for rehabilitation or any evidence that appellant refused that program. Appellant asserts that the Commission was correct in requiring the appellee to prove that claimant refused to participate in a vocational rehabilitation program or job placement assistance or that appellant indicated that he was unwilling to cooperate in those endeavors.
Citing Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998), appellee argues that the stipulation of the parties is binding on the Commission. Bishop stands for the proposition that when a stipulation dictated in open court covers all rights and liabilities of parties in total and complete agreement, it will have the full force and effect of a binding agreement, and it will not be modifiable. The case at bar differs from Bishop in that the stipulation does not establish all the rights and liabilities of the parties involved and thus does not, standing alone, fulfill the requirements set forth in Ark. Code Ann. § 11-9-505(b)(3). However, we do agree with the Commission that while the parties stipulated that an offer for vocational rehabilitation was made by appellee, there was no evidence that appellant refused vocational rehabilitation, refused to participate in any offered program, or waived participation in an offered program.
On appellate review, an administrative agency’s interpretation of a statute and its own rules will not be overturned unless it is clearly wrong. Byars Const. Co. v. Byars, 72 Ark. App. 158, 165, 34 S.W.3d 797, 802 (2000). Arkansas Code Annotated section 11-9-505(b)(3) (Repl. 2002) states:
The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
Therefore, we hold that there is substantial evidence to support the Commission’s findings that appellee cannot rely on Ark. Code Ann. § ll-9-505(b)(3) and deprive appellant from receiving wage-loss benefits, because appellee did not show a refusal by appellant to participate in a program of vocational rehabilitation or job assistance or an indication of an unwillingness to cooperate with an offered program. Thus, we also affirm on cross-appeal.Affirmed on direct-appeal and on cross-appeal.
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Linker Hart, Judge.
Appellant, James J. Kelly, appeals only from an order that amended an original order granting the motion of appellee, June Morrison, as Special Adminis- tratrix for the Estate of Mildred Bostic, to set aside a deed conveying property from Mildred Bostic to appellant. Appellant argues that the circuit court erred in its evaluation of both Bostic’s mental capacity and the nature of the relationship between appellant and Bostic. Appellant, however, failed to appeal from the original order, which he must do to raise this issue. Therefore, we dismiss the appeal.
The relevant facts surrounding our decision to dismiss the appeal are as follows: On June 4, 2002, the circuit court held a hearing on appellee’s complaint to set aside a deed conveying Bostic’s residence to appellant. On August 21, 2002, the court entered an order concluding that “the Deed executed by Mildred Bostic, dated April 7, 1997[,] purporting to convey the property owned by Ms. Bostic to Mr. Kelly, is hereby canceled and set aside.”
On October 25, 2002, appellee filed a motion to amend the August order, asking that the order accurately describe the deed that was set aside by the order. On November 20, 2002, the court entered an amended order dated the previous day that, other than the date provided in the order, replicated the August order, except that its concluding paragraph provided that “the Deed executed by Mildred Bostic, dated April 7, 1997[,] recorded in the Pulaski County Circuit Court Records as document #97-021357 and as document #2000-063254 purporting to convey the property owned by Ms. Bostic to Mr. Kelly, is hereby canceled and set aside.” (Emphasis added.) Thus, the only difference between the two orders was the above-italicized language, which described where the deed was recorded, that is, on specific pages in the deed records of Pulaski County. On December 9, 2002, appellant filed a pro se notice of appeal from the “November 19, 2002[,] decision.”
We observe that the December notice of appeal referred only to the November order, and the notice of appeal was timely filed within thirty days of the November order. See Ark. R. App. P. — Civ. 4(a) (2003). Appellant, however, did not file a notice of appeal, timeíy or otherwise, from the August order. On appeal, appellant does not raise an issue challenging the propriety of the changes made by the November order. Rather, appellant argues the merits of the court’s decision to set aside the deed, an issue that arose from the August order. The question then is whether, by filing the December notice of appeal from the November order, appellant may challenge the August order. We conclude he cannot.
We are guided by the Arkansas Supreme Court’s decision in Holt Bonding Co., Inc. v. State, 353 Ark. 136, 114 S.W.3d 179 (2003). In that case, the circuit court entered on July 30, 2001, a judgment granting a bond forfeiture. The judgment, however, erroneously stated in its last paragraph that the State was given judgment against “Exit Bail Bond Company” rather than Holt Bonding. On November 2, 2001, the circuit court entered a second judgment stating in the last paragraph that the State was given judgment against Holt Bonding. Holt Bonding filed a timely notice of appeal from the November judgment. On appeal to this court, we certified the case to the Arkansas Supreme Court as an issue of first impression.
The court determined that the threshold issue was whether the November judgment was a nunc pro tunc judgment correcting clerical errors in the July judgment. Quoting from Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999), the court observed that a nunc pro tunc order may be entered “to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” The court concluded that the November judgment was a correction of a clerical error in the July judgment, and therefore, it was a nunc pro tunc order under Rule 60(b) of the Arkansas Rules of Civil Procedure. Further, quoting from Kindiger v. Huffman, 307 Ark. 465, 821 S.W.2d 33 (1991), the court stated that “[a]n appeal from a nunc pro tunc order ‘is not from the original order, but from the order purporting to correct it.’ ” The court concluded that “an appeal from a nunc pro tunc order contests the propriety of the corrections made and may not be used to challenge issues that should have been appealed from the original order but were not.”
The court observed that Holt Bonding appealed in part from issues that were not properly before the court because the issues arose from the July judgment, and not from the November nuncpro tunc order. It noted that the issues could have been raised in a timely appeal from the July judgment, but that no notice of appeal was timely filed after entry of that judgment. The court decided that because the issues raised did not relate to the correction made in the nunc pro tunc order, they were not properly before the court on appeal, and the court refused to address them.
We reach a similar conclusion here. The November order was nearly identical to the August order, providing only the location of the recordation of the deed set aside in the August order. Thus, the November order was nunc pro tunc, correcting a clerical mistake that, as contemplated by Rule 60(b) of the Arkansas Rules of Civil Procedure, arose from an oversight or omission in the August order, and the November order was entered to make the record speak the truth, but not to make it speak what it did not speak but should have spoken.
In accordance with Holt Bonding, to raise an issue that arose from the August order, appellant should have appealed from the August order. Instead, appellant only appealed from the nunc pro tunc November order correcting the August order, and consequently, appellant could challenge on appeal only the propriety of the corrections made. Because appellant raises on appeal an issue that arose from the August order and not from the November nunc pro tunc order, the issue is not properly before this court. Consequently, we dismiss this appeal. See Kindiger, supra (dismissing appeal where appellant raised issues involving the original order but filed a notice of appeal only from the correcting order).
Appeal dismissed.
Crabtree and Roaf, JJ., agree.
That rule provides in part that “the court may at any tune ... correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission.”
We note that in Holt Bonding, rather than dismissing the appeal, the Arkansas Supreme Court affirmed the decision. In that case, however, appellant raised a cognizable issue questioning the propriety of the corrections made in the nunc pro tunc order. Because appellant in this case did not raise any cognizable issues, we, as the Arkansas Supreme Court did in Kindiger, dismiss the appeal. | [
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F. Stroud, Jr., Chief Judge.
Appellant, Christopher Haynes, entered guilty pleas to three drug-related charges in the Ashley County Circuit Court. In one of those cases, Haynes was charged with possession of cocaine with intent to deliver, and he entered a conditional plea of guilty pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. On appeal, he contends that the trial court erred in denying his motion to suppress evidence seized pursuant to a “knock-and-announce” execution of a search warrant. We affirm the trial court.
The evidence in this case was obtained when officers executed a search warrant at appellant’s residence and premises on May 17, 2002, at approximately 5:58 p.m. The search warrant authorized the property to be seized as “controlled substances, such as but not limited to, cocaine, marijuana, crack cocaine . . . Any proceeds from the sale of illegal narcotics, drug paraphernalia . . . records, ledgers, . . . associated with the sale of illegal narcotics . . . stolen property used to trade for illegal narcotics, and weapons.” Upon execution of the search warrant, over $22,000 in cash was found in appellant’s house, along with two bags of crack cocaine, two sets of scales, ziplock bags, a razor blade, and a syringe, among other things.
Appellant moved to suppress the evidence found upon the execution of the search warrant; after a hearing on the motion, it was denied. On appeal, appellant makes four arguments with regard to the search warrant and its execution. Specifically, he argues that the officers failed to adhere to the “knock-and-announce” requirement prior to executing the search warrant, and he argues that the affidavit for the search warrant was fatally defective because it did not contain facts that demonstrated reasonable cause to believe that controlled substances would be found on appellant’s premises at the time the search warrant was issued; it did not set forth facts bearing on the informants’ reliability or disclosing the means by which hearsay information was obtained; and it did not establish with certainty the time prior to the search during which the alleged contraband was on the premises to be searched.
When reviewing a trial court’s denial of a motion to suppress, the appellate court conducts “a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.” Saulsberry v. State, 81 Ark. App. 419, 423, 102 S.W.3d 907, 910 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)).
Appellant first argues that the officers failed to comply with the Fourth Amendment’s “knock-and-announce” requirement when they executed the search warrant. In Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999), our supreme court stated:
The Fourth Amendment not only requires officers to go through the motions of knocking and announcing, it also requires them to wait a reasonable period of time before forcing entry into the premises. A refusal to reply to the officers’ order to open the door may be inferred from silence. Correspondingly, if the occupants do not admit the officers within a reasonable period of time, the officers may be deemed to be constructively refused admittance and may then enter by force. Thus, before officers may force entry into the premises, they must wait long enough to have been constructively refused entry by the occupants. There is no exact measurement of time required before the officers are said to have been constructively refused entry; rather, the reasonableness of the time interval has been determined on a case-by-case basis.
336 Ark. at 182-83, 987 S.W.2d at 653 (citations omitted).
In the present case, the residence to be searched was described in the affidavit for search warrant as a wood-framed single-family dwelling. At the suppression hearing, there was conflicting evidence presented with regard to whether the officers knocked and announced their presence prior to entering the residence. Officer Chuck Moore of the Ashley County Sheriffs Department testified on direct examination that he participated in the execution of the search warrant at appellant’s residence. He said that he and Officer Linder went to the front door, and Officer Martin and a “couple of other guys” went to the side door. He said that he went to the front porch and knocked on the door, and he could hear people moving around. He then said that after about fifteen or twenty seconds, he knocked and announced, “Police, search warrant,” and.then kicked the door open. Moore then stated that he knocked right after he got to the door and was yelling, “Police, search warrant, sheriffs office”; that he could hear people moving around inside the house; that he waited about fifteen or twenty seconds; and that they then entered the house. On cross-examination, Moore explained that it took fifteen or twenty seconds for the officers to come together in a group. He again reiterated that he went to the door, knocked on the door hard, and identified himself as an officer with a search warrant. He denied that he was kicking on the door at that time. He also denied previously telling defense counsel that all he had said was “this is the sheriffs department” and started kicking the door after two or three seconds. He again stated that he had waited for approximately fifteen or twenty seconds before he entered appellant’s house.
Officer James Martin of the Ashley County Sheriff s Department testified that he also participated in the execution of the search warrant on appellant’s house. He said that he was assigned to the side door of the house, and that on his way to the side door, he encountered a woman in the yard who asked what was going on, and he stopped and advised her that a search was being conducted. When he arrived at the side door, he heard other officers yelling and identifying themselves from a different door. Martin testified that he knocked, yelled, and waited, and then he heard a crash that he believed to be the front door being broken down. At that time, Martin kicked the side door down and entered the house. Martin stated that about ten to fifteen seconds elapsed between knocking on the door and forcing the door open; however, he said that he believed that the front door had already been breached by that time.
Joyce Burns, appellant’s mother, testified that two men pulled into appellant’s yard, went up to the door, jerked the screen door open, and the white man started kicking the door open. She said that they did not knock, and she did not hear them announce themselves. She said that she did not talk to either of the men when they first arrived, and she did not see anyone go to the side door. Barbara Perez, appellant’s neighbor and his mother’s friend, testified that two men, one black and one white, pulled up, jumped out, and ran toward the house to the front door. She said that the men ran up on the porch, opened the screen door, and the black man started kicking the door in. She said that she did not see either of the men knock on the door.
On appeal, appellant argues that Officer Moore’s testimony at the suppression hearing was inconsistent, and that the testimony of his mother and his neighbor was clear and to the point. However, credibility determinations and conflicts in testimony are for the trial court to resolve. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). In this case, the trial court clearly believed Officer Moore’s version of the events over that of appellant’s mother and neighbor.
In United States v. Jones, 133 F.3d 358 (5th Cir. 1998), the Fifth Circuit Court of Appeals, while declining to formulate a “bright-line” rule, held that under the facts of that case, fifteen to twenty seconds was a long enough period of time for officers to wait between knocking and announcing their presence and entering the residence to be searched. “In drug cases, where drug traffickers may so easily and quickly destroy the evidence of their illegal enterprise by simply flushing it down the drain, 15 to 20 seconds is certainly long enough for officers to wait before assuming the worst and making a forced entry.” 133 F.3d at 362. Although in Jones it was undisputed that the officers knocked on the door, announced that they were police officers, and waited for fifteen to twenty seconds prior to entering the residence, we still find this case instructive in the case at bar in light of the trial court’s resolution of the conflicting testimony in favor of the officers’ testimony at the suppression hearing that they waited for fifteen to twenty seconds after knocking and announcing before they entered appellant’s house. Under the facts of this case, we find no error on this point.
Appellant’s remaining three points concern the affidavit by Officer James Martin in support of the application for a search warrant. Appellant contends that the affidavit for the search warrant was fatally defective because (1) it did not contain facts to establish reasonable cause to believe that controlled substances would be found at his residence at the time the search warrant was issued, (2) it did not set forth facts bearing on the informants’ reliability and did not disclose the means by which the hearsay information was obtained, and (3) it did not establish with certainty the time during which the alleged contraband existed on the premises to be searched. Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides:
(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
The affidavit for search warrant, prepared by Officer James Martin, stated:
Chris Haynes has been under investigation for several weeks for the illegal sale of narcotics. I have had confidential informants and undercover officers gathering information on Haynes. On three occasions cocaine was purchased. The first buy was made by a confidential informant out of the residence for 2 ounce of crack cocaine. The second buy was made by a professional informant that has been working as an informant for several years and has testified in many cases for agencies and is reliable. The informant made contact with Haynes and talked to him about the purchase of cocaine and Haynes told the informant to come back the next day. The next day the informant went back to the residence of Haynes at 303 North Arkansas and made contact with Haynes. Haynes told the informant to make a block and come back. The informant left and drove around the block and came back. Dejuan Simpson was sitting on the front porch and when the informant pulled up Dejuan went to the car and asked to see the money and the informant gave Simpson the money and Simpson gave the informant 2 ounce crack cocaine. Both controlled buys were made within the last month. Also Mr. Haynes made the statement that he had plenty of dope to an undercover officer on 5-13-02 on the phone. Also 5-11-02 C.I.S.O. 004 was at Mr. Haynes’ home at 303 Arkansas Street and saw drugs being sold from the house. C.I. 004 has been proven rehable in the past.
First, appellant argues that the affidavit for the search warrant was defective because it failed to provide a nexus between the illegal activity and the place to be searched. He contends that the affidavit fails to allege any facts to show that contraband existed at his residence at the time the warrant was being issued or that established reasonable cause to believe that contraband would be found on the premises.
In support of this contention, appellant cites Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). In Yancey, the supreme court held that the affidavit did not establish reasonable cause for a search warrant to be issued to search appellants’ homes after they were seen watering marijuana plants in the woods several miles away from their homes and those plants were later removed by the police. In that case, there were no facts presented in the affidavit for the search warrant to infer that either of appellants’ homes were involved in criminal activity. The supreme court held, “At best, the circumstantial evidence here infers that appellants are drug dealers. To then allow an inference that they likely have contraband or evidence of a crime in their homes is to base an inference upon an inference, which is also known as mere suspicion or speculation.” Yancey, 345 Ark. at 115, 44 S.W.3d at 322.
Appellant’s case is factually distinguishable from the facts in Yancey. In the case at bar, the information contained in the affidavit concerned illegal drug activity that allegedly occurred at appellant’s residence; therefore, there is no speculation as to whether appellant’s house was a place where criminal activity occurred, unlike the facts of Yancey. We hold that the affidavit contained a sufficient nexus between appellant’s illegal activity and his residence.
Appellant next argues that the affidavit for the search warrant was fatally defective because it failed to establish the reliability of its informants. We cannot agree. The affidavit referred to three different confidential informants and an undercover officer, who was identified at the suppression hearing as Officer Moore. An affidavit does not have to contain facts establishing the veracity and reliability of nonconfidential informants such as police officers. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). See also Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Therefore, the State was not required to establish the veracity and reliability of the undercover officer to whom appellant made the comment during their phone conversation on May 13, 2002, that he had plenty of dope.
With regard to the other informants referred to in the affidavit, it is true that a conclusory statement that an informant is reliable is not sufficient to satisfy the requirement of indicia of reliability. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). However, failure to establish the bases of knowledge of confidential informants is not fatal “if the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in particular places.” Langford v. State, 332 Ark. 54, 61, 962 S.W.2d 358, 362 (1998) (quoting Heard v. State, 316 Ark. 731, 736-37, 876 S.W.2d 231, 234 (1994)); see also Ark. R. Crim. P. 13.1 (2003).
In the present case, Officer Martin stated in his affidavit that one of the informants was a professional informant who “has testified in many cases for agencies and is reliable.” Furthermore, both of the purchases by confidential informants were controlled buys. We conclude that the affidavit as a whole provides a substantial basis for a finding of reasonable cause to believe that drugs would be found at appellant’s residence.
Appellant’s last point of appeal, that the affidavit was fatally defective because it did not establish the time during which the contraband existed at his residence, is also without merit. By appellant’s own admission, the affidavit contains three references to time — Officer Martin stated that both of the controlled buys discussed in the affidavit were made within the last month; the telephone conversation between appellant and the undercover officer, later revealed to be Officer Moore, in which appellant stated that he had “plenty of dope” occurred on May 13, 2002; and on May 11, 2002, a confidential informant was at appellant’s residence and witnessed drugs being sold from the house. Nevertheless, appellant argues that the affidavit was defective because it failed to establish with certainty that contraband existed at his residence at the time of the request for the warrant. The time of the alleged criminal activity is critical because it must support the reasonable probability that criminal activity is “likely” being carried on at the time of the issuance of the warrant. Heaslet v. State, 11 Ark. App. 333, 74 S.W.3d 242 (2002). There is no requirement that officers prove that criminal activity is for a fact being carried on at the time the search warrant is issued, only that it is likely that criminal activity is ■ occurring. Based on the information contained in the affidavit, we hold that there was no error in concluding that it was likely that criminal activity was occurring at appellant’s residence at the time the search warrant was issued.
Affirmed.
Neal and Roaf, JJ., agree.
There are no Arkansas cases analyzing circumstances under which a fifteen-to-twenty-second wait is sufficient with regard to officers knocking and announcing their presence when executing a search warrant. However, two Arkansas cases have determined that a two to three-second wait is insufficient under the circumstances presented in those cases. See Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999) (holding that mere technical compliance with the “knock and announce” requirement, absent demonstrated exigent circumstances, was not sufficient); Syakhasone v. State, 72 Ark. App. 385, 39 S.W.3d 5 (2001) (holding that a waiting period of two to three seconds was not sufficient to establish that officers were constructively denied entry into the home by the occupants). | [
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Layton Roaf, Judge.
Following a bench trial, appellant Larry Dewayne Jones was convicted of two counts of second-degree battery. The State also introduced two prior convictions reflecting that Jones has previously been convicted of burglary and rape, and the trial court sentenced Jones as an habitual offender to twelve years’ imprisonment on each count, with the sentences to be served consecutively. On appeal, Jones argues that the trial court imposed an illegal sentence because his two prior convictions arose out of the same incident, and pursuant to Ark. Code Ann. § 5-4-501(e)(l) (Repl. 1997), Jones asserts that these prior convictions should have been considered a single conviction for habitual sentencing purposes. We affirm because Jones failed to preserve this argument for appeal.
Because Jones challenges only the legality of his sentence rather than the sufficiency of the evidence supporting his convic tions for second-degree battery, a detailed recitation of the facts is unnecessary. Jones was charged on August 15, 2001, with two counts of second-degree battery, a Class D felony, for which the sentencing range is zero to six years’ imprisonment. In addition, the information alleged that Jones was an habitual offender under Ark. Code Ann. § 5-4-501 (a) (Repl. 1997), with more than one but less than four prior felony convictions.
After the bench trial, the trial court found Jones guilty of each count of second-degree battery. The State then sought to introduce evidence of Jones’s habitual-offender status, and the following colloquy occurred:
State: Your Honor, at this time, we’d move to — we’ll mark it State’s 6. Your Honor, move to introduce State’s 6. It is an ADC pen-pack, and it reflects that the defendant has two prior felony convictions that resulted out of the same case. It’s Case Number 87-1647 in Pulaski County Circuit Court. The defendant was represented by Ferdie Padilla and pled guilty to one count of burglary and one count of rape and received 18 years [in the] Arkansas Department of Correction.
Court: Any objection?
Defense Counsel: No objection, Your Honor.
Court: It is admitted.
Court: Anything further?
State: None from the State.
Defense Counsel: No objection.
The trial court then noted that the enhanced sentencing range was zero to twelve years on each count and sentenced Jones as an habitual offender with more than one but less than four felony convictions to twelve years’ imprisonment on each count, to be served consecutively for a total of twenty-four years’ incarceration. This sentence is twice as long as the maximum sentence that could have been imposed had Jones not been found to be an habitual offender. At no time did Jones object to the sentence imposed by the trial court.
Jones argues on appeal that his sentence is illegal because his two prior convictions for burglary and rape arose out of the same July 1987 incident, and pursuant to Ark. Code Ann. § 5-4-501(e)(1) (Repl. 1997) , Jones asserts that these prior convictions should have been considered a single conviction for habitual-offender sentencing purposes. Section 5-4-501 (e)(1) states that “[f]or the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.”
Jones contends that an examination of the State’s proof of his judgments of conviction for the rape and burglary shows that both offenses arose out of a single incident that took place on July 11, 1987. Jones argues that the burden is on the State to show that the attending felony was not the object of the burglary, see Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980), and because the State failed to offer proof that the rape was not the obj ect of the burglary, Jones contends that he had only one prior felony conviction pursuant to section 5-4-501(e)(l). Jones thus asserts that he was illegally sentenced as an habitual offender, as there is no statutory authority for sentencing a defendant with one prior felony conviction as an habitual offender.
The State contends that Jones’s argument is not preserved for appellate review because he failed to object to his habitual-offender status at trial. Jones acknowledges that there was no objection made to the trial court, but because he is alleging that the sentence imposed in this case is illegal, he asserts that this court may address his argument. This court views an allegation of a void or illegal sentence similarly to a problem of subject-matter jurisdiction, in that it reviews such allegations whether or not an objection was made in the trial court. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). A sentence is “void” or “illegal” when the trial court lacks authority to impose it. Mayes v. State, 351 Ark 26, 89 S.W.3d 926 (2002). An “illegal sentence” has also been described as a sentence that is illegal on its face. Ashe v. State, supra.
The State argues that Jones’s sentence is not illegal on its face, because a sentence of twelve years’ imprisonment on each count is within the permissible statutory range for a defendant who has been convicted of two felonies. See Ark. Code Ann. § 5-4-501(a)(2)(E) (Repl. 1997). Instead, the State contends that Jones is challenging the sufficiency of the evidence supporting the trial court’s finding that he is an habitual offender with two prior convictions, which must be argued in the trial court in order to preserve the issue for appeal. A review of other cases addressing the habitual- offender statute supports the State’s argument in this regard.
In Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997), the defendant claimed that there was insufficient evidence to support the finding that he was an habitual offender because the State did not introduce proof of the prior convictions into evidence. The defendant did, however, admit to his prior record in his testimony. Id. The defendant did not object to the trial court’s finding that he was an habitual offender at any time during the trial. Id. The supreme court overturned this court’s decision and held that a contemporaneous objection is required to challenge the existence of prior convictions to establish habitual-offender status for the purpose of sentencing. Id.; see also Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993) (holding that defendant waived argument as to evidence of his prior convictions for habitual-offender purposes by not objecting below, despite defendant’s argument that his substantial rights had been affected); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992) (finding that defendant’s argument that there was a lack of evidence as to his prior convictions because the State failed to introduce a pen-pack was not preserved for review where no objection was made to the trial court). The court in Mackey, supra, stated that “the purpose for the contemporaneous-objection rule is to give the trial court the opportunity to know the reasons for disagreement with its proposed action before or at the time the court makes its ruling.” Id. at 234, 947 S.W.2d at 362.
? in Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984), a case dealing with the same subsection of the habitual-offender statute as in the present case, the defendant argued that the habitual-offender statute in effect at the time was unconstitutional because it allowed the trial court to instruct the jury as to the number of prior convictions. The supreme court disagreed with the defendant’s argument, but also noted that the trial court had erroneously instructed the jury that the defendant had three prior convictions when the statute provided that the defendant’s burglary and the object of the burglary, the battery conviction, should only be counted as one conviction. Id. However, because the defendant did not object to the erroneous instruction, the court found that any consideration of that issue on appeal was precluded. Id.
Jones argues that both Mackey and Shockley are distinguishable from this case and are not binding precedents. For example, he asserts that Shockley involved jury instructions, whereas he was sentenced by the court, and that the issue of whether a violation of section 5-4-501 (e)(1) resulted in a void or illegal sentence was not present in that case. Jones also contends that Mackey is distinguishable because it does not involve an allegation of an illegal sentence based on a violation of section 5-4-501(e)(l). While neither of these cases involves the precise issue before this court in this case, both of these cases are strongly analogous, and Jones has cited no persuasive authority that the contemporaneous objection rule should not apply here. In fact, the supreme court has found that, even where the defendant argues that one of the prior convictions was not shown to be a felony, the defendant must have objected in the trial court to preserve the issue for appeal. Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980). Also, where the defendant challenges whether a prior conviction was properly used to enhance his sentence because the proof of the conviction does not show that he was represented by counsel, the supreme court has held that this issue must first be raised in the trial court. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); McDonald v. State, 284 Ark. 201, 680 S.W.2d 703 (1984).
Based on the previously cited authority, Jones’s contention that this court may address his argument on appeal because it involves an illegal sentence, rather than the sufficiency of the evidence supporting the trial court’s finding that he is an habitual offender, is without merit. We hold that Jones’s argument is not preserved for appellate review because he failed to object to the proof of his habitual-offender status during his sentencing. Jones may, however, still seek postconviction relief from his sentence.
Affirmed.
Hart and Crabtree, JJ., agree.
This statute was amended by Act 1553 of 2001, which became effective on August 13, 2001. See Op. Att’y Gen. # 2001-138. Because Jones committed the offenses of second-degree battery in June 2001, before the effective date of the amendment, the 1997 version of the statute applies to this case. See State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995). However, the amendments did not materially change the subsection at issue in this case. | [
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Bird, Judge.
The Death and Permanent Total Disability Trust Fund brings this appeal from a decision of the Workers’ Compensation Commission involving the interpretation of the statutory term “full-time student.” Arkansas Code Ann. § 11 — 9— 527(d)(2) (Repl. 2002) directs that benefits to an otherwise eligible child of a deceased employee “shall not terminate at the age of eighteen (18) years .provided the child is a full-time student who has not attained the age of twenty-five (25) years.” The Commission interpreted the statute to mean that benefit payments to an otherwise eligible student should not be suspended during summer breaks after commencement of college even when the “full-time student” does not attend summer sessions on a full-time basis. The decision of the Commission is affirmed.
Chris Anderson, the deceased claimant in this case, was a police officer who sustained a fatal work-related injury on February 12, 1996. His widow and his daughter, claimant Amanda Anderson, were eligible for workers’ compensation benefits at the time of his death. Under Ark. Code Ann. § ll-9-502(b)(l) and (2) (Repl. 2002), when appellees City of Hot Springs and Arkansas Municipal League Workers’ Compensation Trust have paid $75,000 in benefits, appellant Death and Permanent Total Disability Trust Fund becomes obligated to pay any further weekly benefits.
This case arose from Amanda’s claim for benefits in the summers between her sessions of full-time college enrollment after she was eighteen. The Arkansas Municipal League Workers’ Compensation Trust (Municipal League) supported her claim, while the Death and Permanent Total Disability Trust Fund (Trust Fund) contended that she should be denied benefits during summers in which she was not enrolled as a full-time student.
A hearing was held before the administrative law judge to decide whether Amanda was entitled to weekly benefits continuously throughout the year, without suspension of benefits in the summers. The parties stipulated that Amanda had reached her eighteenth birthday on March 3, 1997, while she was in her last year of high school. They also stipulated that she was entitled to weekly dependent benefits for the following periods of time:
February 13,1996, through May 22,1997, which was the date that she graduated from high school;
August 27,1997, through May 14,1998, when she was a full-time student at Henderson State College;
August 24,1998, through May 14,1999, when she was a full-time student at Garland County Community College;
August 23, 1999, through June 30, 2000, (which included first-session summer school) when she was a full-time student at Garland County Community College;
August 21, 2000, until December 15, 2000, when she was a full-time student at Garland County Community College until she graduated.
At the conclusion of the hearing, the law judge ruled that Amanda was entitled to dependency benefits for the summer breaks when she was not attending college as a full-time student “between the commencement of her secondary education beginning August 27, 1997, through her graduation of December 15, 2000.”
The Trust Fund appealed the law judge’s decision to the Workers’ Compensation Commission. The Commission remanded the case to the law judge for further development of issues, including whether the Trust Fund should credit the benefits paid by the Municipal League during the time periods in question against the limitations imposed by Ark. Code Ann. § 11-9-502. The law judge’s second opinion incorporated the stipulations of his first opinion. In the second opinion, the law judge concluded:
In the absence of a clear definition in the Arkansas Workers’ Compensation Act, I am not willing for respondent No. 2, the Fund, to take a credit against its ultimate liability for those benefits paid by respondent No. 1 [the Municipal League] to Amanda Anderson during those summer sessions when she was either not enrolled, or was not taking sufficient hours to classify her as a “full-time student” according to the college handbook or catalog.
The Trust Fund appealed this decision regarding the credit issue, and the Commission affirmed and adopted the law judge’s decision. The Fund now appeals the decision of the Commission.
Point on Appeal
The Trust Fund raises one point on appeal, contending, as it did below, that the Municipal League was not entitled to credit for benefits paid to Amanda when she was not classified as a full-time student according to the college catalog or handbook. The provisions of our workers’ compensation law are to be strictly construed. Ark. Code Ann. § ll-9-704(c)(3) (Repl. 2002). Strict construction is a narrow construction, requiring that nothing be taken as intended that is not clearly expressed. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The doctrine of strict construction is to use the plain meaning of the language employed. Id. In considering the meaning of a statute, the appellate court will construe it just as it reads, giving the words their ordinary and usually accepted meaning. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998).
Discussion
The Commission, adopting the decision of the law judge, addressed the Trust Fund’s argument that the statutory definition of “full-time student” is dependent on the classification of “full-time student” according to an individual college’s handbook or catalog. The Commission rejected this approach, reasoning as follows:
The problem which arises from ... using that particular college or university’s handbook or catalog to define a “full-time student,” is that there is no uniformity of that definition from institution to institution. This gives rise at least to the potential for some students drawing benefits while others may not, resulting again, potentially, for the unequal treatment of one student as opposed to another.
The Trust Fund argues that this reasoning is faulty on several bases: first, that no evidence shows that the definition of “full-time student” differs among educational institutions; second, that even if so, no equal-protection argument exists because payment of benefits is contingent upon obtaining the status of a category known as “full-time student”; third, that decisions must be made on a case-by case basis; and fourth, that all educational institutions would agree that Amanda would not be considered a “full-time student” for the summer sessions when she did not attend at all. The Fund relies upon various documents, including a June 27,2001, letter from the assistant registrar for Garland County Community College, which sets forth student classifications as shown in the college’s general catalogue:
Full-Time Student- — Students enrolled in 12 or more student semester hours in the Fall or Spring semester, or six hours in the Summer Sessions, are considered full-time students.
Part-Time Student — Students enrolled in eleven or less semester hours in the Fall or Spring Semesters and less than six hours in the Summer Sessions are considered part-time students.
The Fund contends that the clear legislative intent of section ll-9-527(d)(2) is to provide financial assistance to those dependents who, by virtue of their full-time student status, cannot work. The statute must be interpreted, according to the Fund, to mean that a dependent over eighteen years of age should be a full-time student twelve months of the year if she chooses to attend further schooling in lieu of embarking on a work career. The Fund argues that it is just as likely to assume that Amanda’s father would have insisted that she work during the summers when she was not attending college full-time as to assume that he would have supported her for those times. It complains that Amanda did not choose to attend summer school full time when she could have chosen to do so. Noting that she earned $130 weekly for twenty hours’ work while attending a summer session part time, the Fund argues that Amanda’s income could have been even greater during the semesters she did not attend school at all. The Fund argues that workers’ compensation benefits become nothing more than unemployment compensation insurance if a dependent is over eighteen, is not going to school full-time, and is available for employment.
The Municipal League responds that the ordinary and usually accepted meaning of “full-time student” is one who during the regular school year attends class and makes normal academic progress with passing grades towards a degree. The League argues that the traditional two-semester school term, based on our agrarian economy and especially in this state, includes the traditional summer break. The League contends that denying benefits to a student who is doing what is commonly and ordinarily done would defeat the statute’s intent of paying benefits so that a dependent child may receive an education, enter the work force, and become a productive member of society.
The basic rule of statutory construction, to which all other interpretative guides must yield, is to give effect to the intent of the legislature. Id. In ascertaining legislative intent, the appellate court may examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within the jurisdiction of the court, and in this case the Commission. See Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). A primary purpose of the workers’ compensation laws is to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury arising out of and in the course of their employment, and then to return the worker to the work force. Ark. Code Ann. § 11-9-101 (b) (Repl. 2002). Subject to certain limitations, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in a percentage of the average weekly wage of the employee. Ark. Code Ann. § 11-9-527(c).
Because the Arkansas workers’ compensation statutes do not define the term “full-time student,” the parties have offered definitions from other areas both in our state’s statutes and in federal law. For example, Ark. Code Ann. § 24-6-216(d)(B)(i) (Supp. 2003), concerned with survivors’ pensions upon the death ■of a police retirant, states that a child’s dependency shall terminate at age eighteen but shall be extended until age twenty-three “as long as the child is continuously enrolled as a full-time student at an accredited secondary school or accredited postsecondary institution of higher education.” The same language is found in Ark. Code Ann. § 24-6-217(e)(1) (B)(i), addressing survivors’ pensions upon death of a member of the state police retirement system.
Regarding retirement benefits for state police members who die in service before retirement, Ark. Code Ann. § 24-6-411(d)(3)(B)(i) (Repl. 2003) extends eligibility of a dependent child until the age of twenty-three “as-long as the child continues uninterruptedly being a. full-time student. ...” The latter language is also found in Ark. Code Ann. § 24-4-608, regarding dependent children of members of our state public employees’ retirement system who die before retirement; and at section 24-7-710, addressing survivor benefits to dependent children of members of our school employees’ retirement system.
A third Arkansas statute, Ark. Code Ann. § 6-68-202(7) (Repl. 1996), specifically defines “full-time student” within our state scholarship program for post-secondary education:
“Full-time student” means an individual resident of Arkansas, as prescribed by the department, who is a student at an approved private or public institution in a course of study leading to an associate’s or bachelor’s degree or completion of an occupational training program, and who is enrolled in at least twelve (12) semester hours or some other reasonable academic equivalent as defined by the department^]
Congress has considered a student’s full-time course of study in determining a dependent child’s eligibility for death benefits of workers covered under the Longshoremen’s and Harbor Worker’s Act. The following definition is found at 33 U.S.C. § 902(18) (1994):
The term “student” means a person regularly pursuing a full-time course of study or training. . . but not after he reaches the age of twenty-three or has completed four years of education beyond the high school level.... A child shall not be deemed to have ceased to be a student during any interim between school years if the interim does not exceed five months and if he shows to the satisfaction of the Secretary that he has a bona fide intention of continuing to pursue a full time course of education or training during the semester or other enrollment period immediately following the interim or during periods or reasonable duration during which, in the judgment of the Secretary, he is prevented by factors beyond his control from pursuing his education.
(Emphasis added.)
Social security law specifies at 20 CFR § 404.350(a)(5) (2003) that an eligible child who is a full-time student is entitled to dependency benefits from the ages of eighteen through twenty- three. Under 20 CFR § 404.368, eligibility of a full-time student may continue during a period of nonattendence if (a) the period of nonattendance is four consecutive months or less, (b) there is a showing of intent to resume studies as a full-time student at the end of the period or at the end of the period of being a full-time student, and (c) the period of nonattendance is not due to expulsion or suspension from the school.
Conclusion
The term “full-time student” is not defined in Ark. Code Ann. § 11-9-527(d)(2), which directs that benefits to an otherwise eligible child shall not terminate at the age of eighteen years provided the child is a full-time student who has not attained the age of twenty-five years. Nor is the term defined elsewhere in our workers’ compensation law. However, Arkansas statutes for beneficiary payments to eligible dependents of our police and public employee retirement systems direct that a child may be eligible “as long as the child continues uninterruptedly being a full-time student” or “as long as the child is continuously enrolled as a full-time student at an accredited secondary school or accredited postsecondary institution of higher education.” For purposes of our state scholarship program, the statutory definition of a “full-time student” is, in part, a student “enrolled in at least twelve (12) semester hours or some other reasonable academic equivalent as defined by the department.” In the Longshoremen’s and Harbor Worker’s Act, Congress has determined that a student pursuing a full-time course of education is not deemed to have ceased being a student during an interim between school years that does not exceed five months. For purposes of social security regulations, a child remains a full-time student during a period of nonattendance for four consecutive months coupled with a showing of intent to resume full-time studies at the end of the period.
Had our legislature intended to restrict the definition of full-time student in Ark. Code Ann. § 11-9-527 to students so defined by an institution’s student handbook or catalog, it easily could have done so by including such language within our workers’ compensation statutes. In the absence of such language by the Arkansas legislature, in light of reading this section in conjunction with the purpose of making timely payments to beneficiaries, in light of the purpose of this section to extend dependency payments to eligible children who are “full-time” college students, and because a traditional approach to education consists of a school year that excludes summer attendance, we will not read into the statute the restriction that “full-time student” is defined by each individual student’s college handbook or catalog.
The interpretation given a statute by the agency charged with its administration is highly persuasive, and while not conclusive, it should not be overturned unless it is clearly wrong. See Death & Permanent Total Disability v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). We agree with the Commission’s interpretation of Ark. Code Ann. § 11-9-527(d)(2) that dependency benefit payments shall include the time during summer breaks after commencement of college when a “full-time student” does not attend summer sessions on a full-time basis. We affirm the Commission’s decision that Amanda was a full-time student during the disputed times when she was not enrolled for full-time summer classes. Therefore, we affirm the Commission’s ruling that the Municipal League was entitled to credit for benefits paid to Amanda when she was not classified as a full-time student according to the college catalog or handbook.
Affirmed.
Stroud, C.J., and Vaught, J., agree.
Ark. Code Ann. § 11-9-502 (Repl. 2002), addressing limitations on compensation, states in pertinent part:
(b)(1) ... [T]he first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or its insurance carrier in the manner provided in this chapter.
(2) An employee or dependent of an employee who receives a total of seventy-five thousand dollars ($75,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this chapter, but all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund.
It is clear that this reference is not to Amanda’s secondary education but to her post-secondary education, which began with her first semester of college on August 27,1997. “Secondary school” is defined as a school that is intermediate in level between elementary school and college_The American Heritage College Dictionary 1253 (4th ed. 2002). | [
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Crabtree, Judge.
This is a probation-revocation case. The appellant, Frederick Lee Smith, challenges the Jefferson County Circuit Court’s order revoking his probation. Appellant argues that the circuit court lacked jurisdiction to revoke his probation. We affirm.
On May 1, 1995, appellant pleaded guilty to four counts of residential burglary and four counts of theft of property, alleged to have occurred between May 1, 1992, and November 8, 1993. On June 6, 1995, the circuit court entered a judgment and order of probation, reciting that appellant had pleaded guilty to one count of residential burglary and one count of theft of property for which he had been placed on five years’ probation.
The court subsequently amended that order, in an order entered on September 18, 1995, to reflect that appellant’s probation was for four counts of burglary and four counts of theft of property. The amended order also recited that a condition of appellant’s probation was that he make monthly payments to the Department of Community Punishment, which included payments for court costs, a fine, and restitution to the victims of his offenses. The trial court entered the amended judgment, which corrected various clerical errors and omissions in the original judgment. Each of the revisions was contained in appellant’s plea agreement. Appellant has never complained about the entry of the amended judgment. Regardless, a circuit court is allowed to amend a judgment to speak the truth. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999).
On January 20, 1997, the State filed a petition to revoke appellant’s probated sentence. The petition alleged that appellant had violated a condition of his probation by failing to make any payments since June 17,1996. The petition specifically alleged that appellant was delinquent with respect to his restitution payments in the amount of $1,485 and that he owed a total of $2,080 in restitution. On March 11, 1997, the trial court conducted a hearing on the petition and found that appellant violated the conditions of his probation, but chose merely to continue him on probation. However, the court also set the case for a compliance review on June 10, 1997.
Appellant did not appear for what the court deemed to be a revocation hearing on June 10, 1997, and as a result, an alias warrant was issued due to his failure to appear. The court subsequently set that aside on appellant’s motion but scheduled a new revocation hearing for January 13, 1998. Appellant again failed to appear at that hearing, so the court entered an order on January 21, 1998, directing the court clerk to issue another alias warrant for appellant’s arrest. In an order entered on March 17, 1998, the court continued the hearing on the petition to revoke at appellant’s request until April 14, 1998. Another order resetting the hearing at appellant’s request until May 12, 1998, also was entered. When appellant failed to appear on May 12, 1998, the court ordered another alias warrant be issued for his arrest. An alias warrant issued for appellant’s failure to appear at a revocation hearing was finally served on May 25, 2002. The hearing was then held on July 9, 2002.
At the hearing, appellant’s probation officer, Angela Ven-tress, testified that her office filed a violation report dated January 21,1998, which alleged that appellant was not reporting to her and not making his payments. She added that “nothing” had changed since that time. Although appellant telephoned changes of address twice in early 1998, he had not physically reported to the probation office since February 6, 1997, and had not had any other contact with the office since May of 1998. He also had not made any payments on his restitution, fines, or costs since making a $25 payment on February 6, 1997, leaving a total outstanding balance of $2,615. Appellant, who was unemployed all but one week since 1997, did not deny that he had failed to report and failed to make payments. He blamed these failures on his past stupidity and immaturity. At the end of the hearing, the court concluded that appellant had not reported or made his payments and revoked his probation, sentencing him to six years’ imprisonment on each count, to run concurrently.
We note that the January 21, 1998 violation report does not appear in the record. Only the original petition to revoke, stemming from a January 15, 1997 violation report, is contained in the record. Appellant has never complained that an appropriate petition to revoke was not filed or that he did not have notice of the grounds alleged for revocation.
On appeal, appellant argues that the circuit court lacked jurisdiction to revoke his probation under Ark. Code Ann. § 5-4-309(e) (1987) & (R.epl. 1993) and Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002). Specifically, he claims that the court lacked jurisdiction because he was not arrested for a probation violation and a warrant for his arrest for a probation violation was not issued prior to the expiration of the probation period in 2000. An appellant can raise such a jurisdictional argument for the first time on appeal. See Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002).
In making our review of appellant’s jurisdictional argument, appellant directs us to Arkansas Code Annotated § 5-4-309(e), which states:
The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.
In Carter, supra, our state supreme court held that an alias bench warrant issued for a defendant does not meet the statutory requirements of Ark. Code Ann. § 5-4-309 (e) because the warrant was not issued for arrest due to violation of probation. In this case, appellant was not arrested before his probation expired in 2000, and the trial court failed to issue a timely warrant for his arrest for violation of probation. The trial court only issued alias warrants. An alias warrant for failure to appear is insufficient to preserve a circuit court’s jurisdiction to revoke probation under Ark. Code Ann. § 5-4-309(e). See Carter, supra.
However, in this instance Arkansas Code Annotated § 5-4-303(h)(2) (Supp. 2001) gave the circuit court jurisdiction to revoke appellant’s probation. It provides:
If the court has suspended the imposition of sentence or placed a defendant on probation conditioned upon his making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence. [ ]
Our state supreme court interpreted this statutory language in Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993), stating, “Pursuant to Ark. Code Ann. 5-4-303(f) [currently § 5-4-303(h)(2)], the trial court retains jurisdiction until the full amount of restitution is paid, even beyond the period originally allowed.” Id. at 278, 849 S.W.2d at 938. In that case, our supreme court held that the provisions of what is now Ark. Code Ann. § 5-4-303(h)(2) control over Ark. Code Ann. § 5-4-309 (e), which provides that probation can be revoked after the period of probation is expired if the defendant is arrested or a warrant for the defendant’s arrest is issued before the end of the probationary period. The supreme court reasoned that Ark. Code Ann. § 5-4- 303(h)(2) governs because it was adopted by the legislature after Ark. Code Ann. § 5-4-309(e).
Here, appellant’s probation was conditioned upon his making restitution, and he did not satisfactorily make all of his payments by the end of the probation period, which expired on June 6, 2000. Therefore, the trial court continued to exercise jurisdiction over appellant as he owed $2,615 in restitution and fines. See Ark. Code Ann. § 5-4-303(h)(2); Kyle, supra (extending probation after expiration of period as Kyle still owed restitution). On July 9, 2002, the trial court held a probation-revocation hearing and revoked appellant’s probation. Based upon Ark. Code Ann. § 5-4-303(h)(2) and Kyle, supra, we conclude that the circuit court had jurisdiction over appellant to not only extend his probation but also to revoke it.
We affirm.
Stroud, C.J., and Neal, J., agree.
This subsection was formerly part of subsection (£). See Ark. Code Ann. § 5-4-303(f) (1987); Act 1569 of 1999. | [
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osephine Linker Hart, Judge.
Appellant, Roy Breshears, J was convicted of the crimes of possession of methamphetamine and possession of drug paraphernalia and was sentenced to thirteen years on each count with the sentences to run consecutively. For his sole issue on appeal, he argues that his convictions were based only upon uncorroborated accomplice testimony, and therefore, the trial court erred in failing to grant his motions for directed verdict on the two charges. We affirm.
The State’s evidence at trial was as follows: On February 8, 2001, Detective Michael Hardester and Detective Mike Frost, both of the Saline County Sheriff s Department, went to a residence in Saline County. After knocking at the front door and receiving no answer, the officers walked to the back of the residence. From there, they heard noises coming from inside, and again they knocked at the front door, but no one answered.
After twenty minutes, the mother of Heather Hanson arrived and stated that she thought her daughter was there, noting that Hanson’s car was parked outside. Hanson’s mother, who had a key to the residence, opened the door, letting Hardester enter. With the mother’s consent, Frost walked over to an unused commercial chicken house that stood approximately 150 feet from the residence.
When Hardester first entered, he noticed a strong chemical odor he associated with the manufacture of methamphetamine. He found Misty Summerville standing in the living room. Heather Hanson walked in from the master bedroom. While speaking with the two, Hardester noticed that someone in the master bedroom was moving around under a pile of clothes in a closet. When Hardester heard someone yell, he ran into the room, called the person (who was identified as appellant) out of the closet, and placed him in handcuffs. Appellant stated that he was hiding because he was afraid; however, he only shrugged his shoulders when asked why he was afraid.
As Hardester walked through the residence to determine whether anyone else was hiding, he noticed by the kitchen sink a small glass jar containing a liquid with a red powder sediment. He believed it to be red phosphorus, a substance used in one process for manufacturing methamphetamine. It was later identified as a combination of acid and phosphorus. In the drain board next to the sink he saw a plastic bottle with attached tubing that, in his experience, is used in the manufacture of methamphetamine. He then ordered everyone to exit the residence.
After Hardester exited the residence, he went with Detective Frost to the chicken house, where Frost had found a plastic bottle with attached tubing that appeared to be an HC1 generator, an item used in the manufacture of methamphetamine. In a trash bag they found other items associated with the manufacture of methamphetamine.
Hardester obtained a search warrant, and other officers participated in a search of the area, recovering various items connected to the manufacture of methamphetamine. In the kitchen refrigerator, officers found a fake Pepsi can containing a powder substance in a plastic bag. The powder was later determined to be 2.921 grams of adulterated methamphetamine. Other-items collected from the kitchen area included a pill blender, a plastic lighter, a glass funnel, and various cans and bottles labeled as camp fuel, drain cleaner, acetone, muriatic acid, and lye. In the master bedroom, officers found clear plastic tubing with reddish staining inside the tube and a small, hand-held torch lighter. A glass beaker wrapped in men’s clothing and two cans of camp fuel were found in the laundry room. Also, various electronics were found in the residence, including two scanners, two pair of night-vision goggles, a sound device used to detect movement, and a closed-circuit video monitoring device attached to an outside camera.
Heather Hanson testified that in February of 2001 she lived at the residence with Misty Summerville. Hanson and appellant, who were reestablishing a previous relationship, had been dating for two weeks, and he was also living at this residence. During this time, she and appellant had agreed to manufacture methamphetamine, and with Summerville’s assistance, they gathered the materials necessary for a “small cook.” On the evening of February 7, 2001, they brought the materials back to the residence, and appellant manufactured methamphetamine in the kitchen. Upon completing the cook, the three smoked some of the methamphetamine. Hanson fell asleep, and appellant later woke her, telling her that the police were there. She did not answer the door, but from the bed in the master bedroom watched the police on the video monitor until the police turned off the electricity. Her mother opened the door for the police, and Hanson left the master bedroom to ask what was going on. She testified that appellant was hiding in the closet.
Misty Summerville testified that she lived at the residence with Hanson and appellant, with Hanson and appellant sleeping in the master bedroom. According to Summerville, the night before their arrest appellant was manufacturing methamphetamine in the kitchen. Summerville admitted to smoking some of the methamphetamine before going to sleep in her bedroom. She awoke to an officer knocking at the door, and she listened to the police on the scanner until the police turned off the electricity. She testified that when the police entered the residence, Hanson told them that appellant was in her room, and the police found appellant hiding in the closet.
Citing statutory authority, appellant argues on appeal that his convictions for possession of drug paraphernalia and possession of methamphetamine should be dismissed because the testimony of Hanson and Summerville, as his accomplices, was uncorroborated. That statute provides that “[a] conviction ... cannot be had in any case of felony upon the testimony of an accomplice ... unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark. Code Ann. § 16-89-111(e)(1)(A) (Supp. 2003). Further, the statute provides that “[t]he corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Code Ann. § 16-89-111 (e)(1)(B) (Supp. 2003).
Appellant further relies on Miles v. State, 76 Ark. App. 255, 64 S.W.3d 759 (2001), which he argues is factually indistinguishable from the present case. There, police saw Miles and another man exit a bedroom in a residence owned by a third person. The bedroom contained several items used in the manufacture of methamphetamine, and the entire residence had the odor of a methamphetamine laboratory. The issue on appeal was whether there was sufficient corroboration of the accomplice’s testimony, who, as the owner of the residence, testified that Miles had manufactured methamphetamine at the residence and had spent several nights every week there.
In Miles, this court noted that the corroborating evidence did not have to be sufficient, standing alone, to sustain the conviction, but the evidence must, to a substantial degree, tend to connect the defendant with the commission of the crime. Further, we stated that the corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient. We also noted that the accused’s proximity to the crime, opportunity to commit the crime, and association with a person involved in the crime, are all relevant facts in determining the connection of an accomplice with the crime, but proof that merely places the defendant near the scene of a crime is not sufficient. This court further observed that in reviewing the issue on appeal, we eliminate the accomplice’s testimony and examine the other evidence to determine whether it independently established the crime and connected appellant with its commission.
While concluding in Miles that the remaining evidence was sufficient to independently establish the crimes of possession of methamphetamine ánd possession of drug paraphernalia, we noted that the only evidence connecting Miles to the commission of the offenses was that he was walking out of a bedroom in the accomplice’s residence when the police arrived. We observed that while constructive possession may be implied when the contraband is in the joint control of the accused and another person, joint occupancy, standing alone, is insufficient to establish possession or joint possession, and the State is also required to show that the .accused exercised care, control, and management over the contraband and knew that the matter possessed was contraband. Our holding was that there was no evidence, other than the accomplice’s testimony, to show that Miles exercised care, control, or management over the contraband that was found in the accomplice’s home, and the case was reversed and dismissed.
Appellant concludes that the present case is controlled by this court’s holding in Miles. He contends that the cases are almost factually identical: both appellant and Miles were arrested in a residence owned by someone else and neither had actual possession of any controlled substance or drug paraphernalia. We also add that in both residences, there was an odor as well as drug paraphernalia associated with the manufacture of methamphetamine. Appellant concludes that in the present case, the State failed to corroborate the testimony of the accomplices that he exercised care, control, and management over the contraband and knew that the matter possessed was contraband.
We note, however, that appellant did not raise his accomplice-corroboration argument in his motions for a directed verdict on the possession of methamphetamine charge. Instead, he argued that possession of methamphetamine was a lesser-included offense of manufacturing methamphetamine, with which he was also charged, and that it constituted double jeopardy to charge him with both crimes. Also, he contended that there had not been any testimony that he “possessed anything,” arguing further that although he was present in the residence, the residence was not his. Appellant’s failure to raise his accomplice-corroboration argument when he moved for a directed verdict on the possession-of-methamphetamine charge precludes our review of this argument, and we affirm his conviction for possession of methamphetamine. See Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000)(holding that because defense counsel did not specifically challenge the sufficiency of the accomplice-corroboration evidence, the argument was not preserved for appellate review).
Appellant did properly preserve his accomplice-corroboration argument on the charge of possession of drug paraphernalia. We conclude, however, that this case is distinguishable from Miles and affirm his conviction. In the present case, when the officer entered the residence, appellant was found hiding in ^ closet under a pile of clothes. The Arkansas Supreme Court has previously noted flight to avoid arrest can be considered as corroboration of evidence tending to establish guilt. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000)(holding that flight to avoid arrest was corroborative of accomplice testimony); Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990)(holding that flight to avoid arrest was corroborative of constructive possession of a stolen vehicle). Likewise, evidence of an attempt to avoid detection and arrest could be considered as corroborative of guilt. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Thus, as in Miles, appellant was found in a residence containing drug paraphernalia and an odor associated with the manufacture of methamphetamine. Unlike Miles, appellant attempted to avoid detection and arrest. This evidence, along with appellant’s presence in the residence and the presence of drug paraphernalia and an odor associated with the manufacture of methamphetamine, corroborates the testimony of the accomplices and tends to connect appellant with the commission of the offense of possession of drug paraphernalia.
Affirmed.
Crabtree and Roaf, JJ., agree. | [
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Battle, J.
This is a contest between a father and grandfather for the custody of a boy, about ten years old, named Richmond Sypert.
Henry Sypert married Caroline Coulter, the daughter of Joe Coulter. The issue of this marriage'was Richmond Sypert. Caroline, being in bad health and her husband failing or refusing to secure for-her needed medical attention, returned to her parents in the fall of one year, and lingered there until the spring of the next year, and died. He did nothing for her in her last illness, and visited her only once. Richmond, his son, at this time was about one year old. His father permitted him to remain with his grandparents until he was ten or eleven years old, when this proceeding was instituted to gain his custody. During all this time he contributed nothing to the support of his son. He visited him about twice. The grandparents cared for, clothed and fed the boy, and sent him to school. After he was four years old.the father says he asked the grandfather for him, and repeated this request several times thereafter. But no earnest effort was made to recover his custody until he had reached the age of ten or eleven years, and was old enough to be of some service. While he manifested such utter indifference to his child, the grandparents were much attached to him, and treated him with the care and consideration due from parents to children, and in their devotion to him are unwilling to give him up.
In the ten .years that have expired since his wife’s death Henry Sypert accomplished the following: He married again; in the first year of the second marriage he separated from his wife and remained apart for about one year and a half; had three children by the last marriage; indulged sometimes, though not frequently, in shooting craps, for which he was indicted three times; and accumulated one cow and seven hogs and household furniture, worth, he says, about fifty dollars. His second wife owned an interest in about forty acres of land, of which eighteen acres were cleared. Henry purchased an interest in it, but never paid a cent of the purchase money. At the commencement of this proceeding he was earning twenty dollars a month; and he and his wife own one horse, two cows and a calf and about seven hogs and household furniture. Joe Coulter owns one hundred and seventeen acres of land, upon which is a farm of 80 acres in cultivation; he has two mules, one pony mare, ten hogs, six cattle,- and farming implements; and he is a carpenter, and has no young children. He paid $800 for his land, and does not owe a cent for it.
The chancellor who tried this case awarded the custody of the child to Henry Sypert, and Joe Coulter appealed.
The father has no proprietary right or interest in or to the custody of his infant child. As said by Senator Paige in Mercein v. People, 25 Wend. 64, 103, decided in the Court of Errors of New York in 1840: “There is no parental authority independent of the supreme power of the State, but the former is derived altogether from the latter. * * * The moment a child is born, it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated, by its duty of protection, to consult the welfare, comfort and interests of such child in regulating its custody during the period of its minority.” In the case of U. S. v. Green, 3 Mason, 482, which arose upon an application by habeas corpus of a father for his infant daughter, aged about ten years, alleged to be detained in the custody of her maternal grandfather, Judge Story said: “As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of -the father, but for the benefit of the infant, the law presuming it to, be for its interest to be under the nurture and care of its natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant; and, if the infant be of sufficient discretion, it will also consult its personal wishes. It will free it from all undue restraint, and endeavor, as far as possible, to administer a conscientious, parental duty with reference to its welfare. It is an entire mistake to suppose that the court is, at all events, bound to deliver over the infant to his father, or that the latter has an absolute, vested right in the custody.”
In the Matter of Waldron, 13 Johns, 418, is something like this case. In that case a habeas corpus was issued to Andrew McGowan to' bring up the body of Margaret Eliza Waldron, an infant, alleged to be detained in his custody. John P. Waldron had married the daughter of Andrew McGowan, and, becoming embarrassed and insolvent, McGowan took his daughter to his house. She lived with him until her death; and during her resi dence with her father Margaret Eliza Waldron was born, who was always supported by her grandfather. Waldron used to visit his wife shortly after her removal to her father’s, but had discontinued his visits for a long time previous to her death, and had not visited his child. McGowan was a man of very affluent circumstances, and abundantly able to educate and maintain his granddaughter; and it appeared that Waldron was insolvent, and unable to pay certain trifling debts which he had contracted, although it was alleged that his mother, with whom he lived, was competent and willing to support him and his daughter. It also, appeared that the infant’s mother was the only daughter of McGowan, and the infant the onfy remaining grandchild in the family. It appearing that it would be more for the benefit of the infant to remain with its -grandfather than to be put under the care of the father, the court refused to direct it to be delivered to the father.
In McShan v. McShan, 56 Miss. 413, the court held: “While, as a matter of abstract law, the father, as head of the family bound to provide therefor, is entitled to the custody of his children, yet such -right is modified by the circumstances of each case; and where the mother, whom her husband has deserted without means among strangers, has found with her father a pleasant and permanent home, where her two infant girls are excellently cared for, her husband can not, repenting of having broken up the family, by habeas corpus take the little girls, although the mother refuses his proposals to again cohabit, and declares that the separation shall be perpetual. While the children, if of age of discretion, could be consulted, yet when very young the court must be guided by their best interests, in view of all the circumstances.”
Mr, Hochheimer, in his work on the “Custody of Infants,” says: “The following statement very nearly expresses the general'result of authorities: ‘The courts are, in no case, bound to deliver a child into custody of the claimant or any other person, but will investigate all the circumstances, and act according to sound discretion in the exercise of a conscientious^ parental duty, as the welfare of the child at the time appears to require, without regard to any technical right of custody, when such custody is not proper and beneficial, and without regard to mere technicalities of procedure.’ ” Page 96, and cases cited.
In Verser v. Flood, 37 Ark. 30, this court said“As between the father, too, and the mother, or any other relation of the infant, where sympathies on either side of the tenderest nature may be relied on with confidence, the father is generally to be preferred. In the great majority of cases, his greater ability and knowledge of the world renders him the fittest protector, although that is not the test. The preference is conceded to the ties of duty and affection, and attends the primary obligation of the father to maintain, educate and promote the happiness of the child, according to his own best judgment and the means within his power. * * * Nevertheless, keeping these leading principles always in view, there are exceptional cases, depending on their own circumstances, in which the sovereign power of the State as parens patriae, acting through the chancellor, has interfered so far as may be necessary to afford the child reasonable protection. It is impossible to define them, further than to say that they should be of such urgency as to overcome all considerations based upon the natural affections and moral obligations of the father; and it may be added that this delicate discretion will be more freely exercised in behalf of one whose ties of affection are next to those of the father himself, upon whom the accpmpanying moral obligations would devolve in case of the father’s death.
“In this case the motherless infant, two days old, was taken by the maternal grandmother, with the father’s assent, and tenderly guarded through all the perils of infancy. There has been all of a mother’s care, and scarcely less than a mother’s affection. The child is yet scarcely three years of age, delicate in health: she is in a safe asylum, surrounded by those who may be trusted to guard her anxiously against pernicious influences, and to do their best to instill into her mind such principles as will promote her future usefulness and happiness. They, too, plead the full strength of natural affections. * * * * The father has shown himself to be a moral man, with the means of discharging his parental obligations. Certainly, under the circumstances, if he had been in possession of the child, no chancellor could have found warrant in equity for taking her away to be placed under the grandmother’s care. But it can not be ignored that the case does not present that attitude. The child was placed where she is by the father’s assent. By his assent ties have been woven between the grandmother and granddaughter which he is under strong obligations to respect, and which he ought not wantonly and suddenly to tear asunder. He has shown no urgent necessity for present action, and his appeal to the circuit court for aid was not such as to enlist in most hearts any very strong sympathy.”
The case before us is one of the exceptional cases. On the part of Henry Sypert, the ties of duty and affection for the son, to which preference is as a rule conceded to the father, are lacking. He has not shown as much concern and attachment for his son Richmond as some brutes manifest for their young. For ten years he has manifested an utter indifference for his son and contributed nothing to his • maintenance and support. He has shown no evidence of a disposition or ability to discharge the duties of a father to the son. No ties of affection of the father for the son exist to be torn asunder. But ties have been woven between grandparents and grandson. They have taken care of, maintained and supported him nearly all of his life, and they give evidence that they will continue, if permitted, to care for, maintain and support him as their own child. No doubt can be entertained that it will be more for the benefit of the son to remain with his grandparents than to be put under the care and custody of bis father.
The decree of the chancery court is reversed; and it is ordered that Richmond Sypert remain in the custody of Joe Coulter until the further order of a court of competent jurisdiction, with leave to the father, on all suitable occasions, to see him. | [
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Wood, J.
The issue, as made by the -complaint and answer and the proof that had been taken at the time the motion to transfer to the law court was made, presented a cause for the law court. Moreover, appellant did not except to the ruling of the court transferring the cause to .the law court; and, as this court had jurisdiction under the issues presented, no error is shown in this-respect.
The answer and proof showed, when the motion to transfer was passed on, that appellant was in possession of the lands in suit. Appellant did not insist on the demurrer nor motion to dismiss in the court below. He answered and went to trial on the merits, and he can not complain here. There is no error presented in the first and second grounds of the motion for new trial.
The complaint with sufficient definiteness set up that the land in controversy “had been granted to the State of Arkansas by the United States as swamp and overflowed lands.” A duplicate of the patents is proffered with the complaint, and filed as exhibits D and E. The answer in response to these allegations says that defendant is “not advised.that they (the lands) were granted to the State as swamp and overflowed lands,” and that defendant has no information “that*the lands were patented to the State as swamp and overflowed lands.” This presented no denial of the allegations of the complaint that these lands were duly granted to the State by the United States Government as swamp and overflowed lands. Haggart v. Ranney, 73 Ark. 344.
The third ground of the motion for new trial assigns as error the admission of the certificate of the State Land Commissioner of the sale by the State to Craig and Clopton of the land in controversy, without proof that the land had been confirmed to" the State by the United States as swamp and overflowed land. The allegations of the complaint as to this, being sufficient and not denied, must be taken as true, and there was no error presented by this assignment:
’True, appellant called for the patents to Craig and Clopton in the answer, but he went to trial without insisting upon a ruling on his motion to produce them; and when the certificate of the Land Commissioner was offered as evidence, appellant did not object to same, nor move afterwards to exclude it on the ground that it was not the best evidence, and not competent as secondary evidence until (the proper foundation had been laid for its introduction by a showing that the patents to Craig and Clopton were lost, destroyed, or otherwise beyond the power of appellees to produce them. It thus appears that appellant in the court below did not avail .himself of the rule applicable in such cases as declared by this court in Driver v. Evans, 47 Ark. 297; Boynton v. Ashabranner, 75 Ark. 415, and Carpenter v. Dressler, 76 Ark. 400.
Nothing is presented for our consideration in the fourth ground of the motion for new trial, which is as follows: “That the court erred in giving the following instructions for appellees, over objections of this appellant, numbered 3, 5, 7, 8 and 10.” The bill of exceptions recites- that “the court gave, over the objections of defendant, the following instructions, “setting them out and numbering them consecutively 3, 5. 7, 8 and 10.” The objection to the instructions given was in gross, and at least one of the instructions was correct.
The fifth ground of the motion, for new trial is “that the court erred in refusing to give instructions numbered 4 and 5 asked by appellant.” Number 5 is as follows: “5. The jury are instructed that under no circumstances presented in this case can they find a verdict for plaintiffs for possession of the land involved in this suit.” Request for instruction number 5 should have been granted. It appeared that appellant Wade was in possession of the land claimed by him under a donation deed good on its face, based on a sale of forfeited lands to the State October 25, 1882. It is contended by appellees that this sale was void for the reason that the decree of the Chicot Chancery Court, rendered at an adjourned term thereof beginning on the 25th day of September, 1882, ordering the lands re-assessed and sold was void. Brit this contention is riot established by the proof. We have searched the records in vain to find when this land was forfeited, and how it was sold. If sold under a decree of the Chicot Chancery Court, at an adjourned term beginning September 25, 1882, which was void because rendered by a special judge when the regular judge of the circuit was at the same time holding court elsewhere, the record nowhere shows it. True, we find among the papers what purports to be an original bill of exceptions in die case of James M. Goza et al. v. H. S. Caldwell et al., pending in the Chicot Circuit Court, in which it appears that James M. Goza et al., the plaintiffs, appealed from a judgment in fhvor of certain defendants in that suit, towit: Asbury Moses, Jane Jones, S. B. Brown, James Brown and Henry Love, and that the bill of exceptions sets forth the decree of the Chicot Chancery Court at the adjourned term beginning September 25, 1882, which appellee contends renders the sale and donation deed under which appellant claims title herein void. But that bill of exceptidns, even if it disclosed what appellee claims for it, was never embodied in the transcript of this record.
The appeal by appellees here against the parties named in that bill of exceptions, and in whose favor judgment was rendered in the court below, was never perfected by the filing of the transcript in this court, as the law requires. Appellees prayed a cross-appeal in this case December 9, 1905. But this cross-appeal only brings up questions decided in favor of appellant or any co-appellee against the appellee praying cross-appeal. Section 1225, Kirby’s Digest. And we can only look to the transcript of the record in this court to determine what those questions are. Now, the parties who were joined with Wade as defendants in the court below, and in whose favor judgment was rendered, have not appealed, and Wade’s appeal brings up no question against them. They are not co-appellees with the appellees, Goza and Kimberlin. They are therefore not parties to this record. So we find nothing in this record to impeach the donation deed of Wade. The court erred, therefore, in not granting appellant’s request for instruction number five.
The giving of this would have rendered the granting of requests asked by him unnecessary. But, in view of a new trial in which the same questions may be raised, it is proper to say that we find no error in the refusal of the court to grant appellant’s requests for instructions two and six.
The court properly submitted the questions embraced in these instructions in those numbered two and six which were given. It was a question for the jury, under the evidence, as to whether or not the title to the land in controversy had passed out of Aaron Goza by the proceedings in bankruptcy. If the lands for any reason were not disposed of b)' the referee in bankruptcy, such title as Goza had at the beginning of such proceedings reverted to him upon their termination. “Where a surplus remains in the hands of the assigned or trustee, after the proceeding has terminated, and the debts proved, if any, have all been paid, such surplus reverts to the bankrupt.” In equity he would be the owner of such real estate as might remain, even if a decree were necessary to revest title in him. 16 Am. & Eng. Enc. Law, 699, 700, notes. The court did not err in adding the clause, “or that the lands were not disposed of by the referee in the administration of the bankrupt’s estate,” to appellant’s request for instruction two, and giving it as thus modified.
Likewise, the court properly modified appellant’s request for instruction number six by making it show that the statute of limitations would be reckoned from the date of the deeds, where the parties were then in possession claiming under them, till the beginning of the suit against them for possession. If they had not acquired title under their donation deed by the two years’ statute of'limitations prior to the institution of the suit for possession, they could not acquire it after that time, and while such suits were pending. Of request numbered four by appellant and refused, it suffices to say that it is impossible to forecast what would be a proper instruction upon the question of taxes, interest, improvements and rents. For we can not anticipate what the proof on another trial may develop as to those. But nearly all questions that can arise concerning these matters have already been passed upon by this court in some recent cases. See Bender v. Bean, 52 Ark. 132; McGann v. Smith, 65 Ark. 305; Cowley v. Spradlin, 77 Ark. 190; Cowley v. Thompson, 77 Ark. 186.
For the error of the court in refusing to grant request of appellant for instruction number five, the judgment is reversed, and the cause is remanded for new trial. | [
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Wood, J.
On a good indictment charging appellant with the crime of murder in the first degree in the killing of one Will Payne, appellant was convicted of voluntary manslaughter, and sentenced to three years in the pentitentiary. Two grounds are urged for reversal.
1. That the court erred in permitting the prosecuting attorney to ask the witness, Thomas East, who testified for appellant, this question: “Did you ever have any contract with Dr. Myers in regard to testifying'?” and in permitting the witness to answer. Appellant contends that the question was improper and prejudicial. He says “that it had a tendency to prejudice the minds of the jury against appellant, and injure his cause, by attempting to show that his father, Dr. Myers, was using his influence and means to secure false testimony in behalf of the appellant, without showing that appellant was present and consenting thereto, or that he had authorized his father to do so. The question was not prejudicial, because the witness answered it in the negative. Had it been shown that appellant’s father had made an attempt to influence improperly a witness to testify falsely in behalf of his son, and had failed, such testimony would be prejudicial; but such is not the effect of the question and answer here. On the contrary, it shows that there was no attempt by appellant’s father to bribe the witness. If the question, as asked, had been answered in the affirmative, showing that the witness was testifying under contract with Dr. Myers, it would have been proper testimony going to the credibility of the witness East.
2. It is contended that the verdict was contrary to the evidence, but, after carefully reviewing the evidence in the record, we are of the opinion that it amply sustains the verdict. Appellant and deceased at the time of the killing were bitter enemies, the result of a previous quarrel and fight in which appellant had been “badly beaten up” by Payne, who was the larger and stronger man. Appellant had not seen Payne after the previous fight “until the day of the shooting.” He had been heard to say “shortly after the fight” that he “would get him yet,” meaning Payne. On the day of the shooting witnesses for the State testified that they saw Payne and appellant in front of the drug store of the father of appellant; that 'the first thing that attracted their attention was the first shot; then they saw Payne running, and appellant firing at him. Appellant fired several shots at Payne while he was running. One witness testified for the State that the party shooting “seemed to be in the door of the drug store.” Other witnesses for State say that Payne did not turn toward the appellant “at any time,” “or attempt to do anything.” Witnesses also say that after the shooting appellant came into the drug store, and said: “I got the son of a bitch; I fixed him.” Deceased was shown to have been shot in the back and on the right side. True, testimony for appellant tended to show threats on part of Payne to kill Dr. Myers and his son, which threats were communicated to appellant on the day of the killing, and the appellant’s own testimony tends to prove that Payne was the aggressor at the time of the killing. But the weight of the evidence was for the jury.
From the viewpoint of the State, the evidence certainly warranted a verdict for even a higher degree than the jury found.
Affirm.
Hiee, C. J., not participating. | [
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McCulloch, J.
The plaintiff, J. T. Langley, sued the defendant, Chicago, Rock Island & Pacific Railway Company before a justice of the peace of Hot Spring County to recover a debt of $41:60 for labor performed, and the further sum of $1.83 per day as statutory penalty for nonpayment of wages; and on the return day of the summons the justice of the peace rendered judgment in favor of the plaintiff for the amount of wages sued for and the accrued penalty, aggregating the sum of $131.40.
On the same day defendant presented to the justice of the peace an affidavit and prayer for appeal to the circuit court, in which it tendered to plaintiff the full amount claimed by him as wages, interest and cost of suit, and prayed an appeal from the judgment for the penalty. Defendant also tendered a supersedeas bond in proper form. The justice of the peace refused to allow the appeal, whereupon the defendant filed in the circuit court a petition for a rule on the justice requiring him to grant the appeal. The court denied the prayer of the petition, and defendant appealed to this court.
The appeal was refused on the ground that it was sought to be taken from only a part of the judgment.
The court erred in refusing to order the allowance of the appeal. 'Appeals from all judgments of justices of the peace to the circuit court are allowed as a matter of absohite right, regardless of the amount involved. Art 7, § 42, Const. 1874; Kirby’s Digest, § 4665.
The defendant had the right to pay, or offer to pay, the amount of the judgment which it conceded to be just, so as to stop further cost of litigation, if that amodnt should be finally adjudged to be all that was due, and appeal from the remainder. To the extent of the amount conceded to be just, it was not aggrieved by the judgment. The plaintiff could not, by refusing to accept the undisputed amount tendered, cut off the right of appeal from that part of the judgment at which the defendant was aggrieved.
The penalty for nonpayment of wages was a separate cause of action (St. Louis, I. M. & S. Ry. Co. v. Pickett, 70 Ark. 226), and defendant had the right to appeal from that part of the judgment without subjecting itself to further cost by litigating! the amount of wages which it conceded to be justly due to plaintiff. It is the policy of the reformed procedure to encourage the speedy termination of litigation by permitting a defendant to offer to pay or confess judgment for an amount conceded to be due at any stage of the action, and thereby stop the accrual of further cost against him.
The question of the right of a party to accept a benefit under one part of a judgment and appeal from another is not involved in this case. The defendant accepted no benefit under the judgment of the justice of the peace. It simply offered to pay the undisputed amount of wages due plaintiff.
The cause is reversed and remanded with directions to enter a judgment in accordance with the prayer of the petition, requiring the justice of the peace to grant the appeal and certify a transcript of the procedings as provided by the statute. | [
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Hide, C. J.
Breckinridge brought a divorce suit against his wife in Lawrence County on the ground of adultery. On the 27th of February, 1905, he paid the costs and dismissed the ac tion. Subsequently his wife filed answer and cross-complaint, upon which an order for alimony and attorney’s fees was made in her favor. At a subsequent term Breckinridge moved to set aside said order, and on hearing before the court, both sides represented, oral testimony was taken, and the court set aside the order as void. The evidence taken at that hearing is not preserved, and the court must presume that the evidence brought the cause within some of the causes mentioned in section 4431, Kirby’s Digest, authorizing the court to set aside judgments and orders after the term. Breckinridge brought this suit in Garland County, where he was residing after he had dismissed in Lawrence County, and to the Garland County suit the Lawrence County proceeding was pleaded; but, as it was properly set aside by the court rendering it, of course it could not avail.
The counsel for appellant frankly admits that the evidence adduced, if believed, was sufficient to entitle appellee to a decree for divorce. This evidence comes here accredited by the chancellor, and in the main it is uncontradicted save by the appellant. It sustains the allegation of cruel treatment, and also sustains the charge of adultery which was made in the Lawrence County court, but not in this suit. Objection is raised to this evidence as to adultery having been admitted; but as each party was seeking the custody of the children, it was entirely proper to show the character of each, in order that the court could determine the best interests of the children. The main question in the case is over the custody of the children, one a girl of 4 and a boy of 3. The husband intended having his sister take care of and rear them, and the evidence shows that would have been a good and fitting home for them, but the sister died before the case went to trial. The evidence establishes that the father is not the kind of man that should have the care and control of these little children. He can offer no home for them, and his character is shown to be such that his rearing of them does not promise anything for their good. The mother’s character is proved to be bad, and at times she was shown to be unkind to the children. Mrs. Breckinridge and the children, after the separation of these parties, went" to the parents of Mrs. Breckinridge, Mr. and Mrs. R. E. Jones, at Alicia, Lawrence County. These grandparents are caring for the children, and offer to care and provide for them, to see that they are treated .kindly and properly reared. Unfortunately, these grandparents do not escape the fate of other parties in this record, and there is considerable testimony to show that.their home is not suitable for the children, and among other things a bill for divorce brought by Mr. Jones against his wife in which he makes serious charges against her. But that suit was dismissed. Mr. Jones says he was misinformed, and has become reconciled to his wife.
The court is satisfied that the children will be better off with their grandparents and their-mother than with the father during their tender years at least. There .they have a home and a mother’s and grandparents’ care. The evidence leaves hope that the mother’s conduct, when in the home of her parents,. will not be as when living alone.
The chancellor found that the children were under the control of Mr. Jones at Alicia, and ordered that a writ be issued to the sheriff of Lawrence County to take the children from the grandparents and deliver them to Breckinridge. In this there is error, and so much of the decree is reversed, and the cause remanded for proper orders for visitation and support to be made in the premises which the chancellor may find proper and not inconsistent herewith. The decree, in so far as it divorces this couple and in all other things except the custody of the children, is affirmed. | [
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Battle, J.
This case is very much like Pratt v. Meyer, 75 Ark. 206. Walter Pratt & Company brought an action against M. A. Metzger, before a justice of the peace of Conway County, for $198.88, upon a written contract by which the plaintiffs agreed to sell and deliver to the defendant a bill of perfumes, soaps and toilet articles. In the justice’s court the defendant recovered judgment, and the plaintiffs appealed to the circuit court, where the defendant was again successful, and plaintiffs appealed to this court.
The same order for the goods was given in this case as was given in Pratt v. Meyer, supra, and the same warranty was made and on the same conditions. The same evidence, substantially, was adduced by the plaintiffs in the two cases.
Appellee testified over the objections of appellants as follows: “And in the contract I never noticed about notes at all until that night I sat down and read it, and I noticed it said ‘notes.’ * * * I wrote that I didn’t notice that the contract called for notes, and that I didn’t make any notes at all,” and that the goods purchased were not suitable for his trade.
The court refused to instruct the jury, at the request of appellants, as follows:
“1. The failure to comply with reasonable conditions imposed by the contract of sale is fatal to the vendee’s remedy for a breach of the warranty, whether he attempts to exercise it by action on the warranty or by setting up a breach of the warranty in defense of an action for the price by the seller. The law is well settled that where an express warranty is upon condition, or where duty is devolved upon the purchaser by the terms of warranty, such condition must be fulfilled or such duty performed before an advantage can be taken of a breach of such warranty.
“2. A party is bound to know the contents of a writing signed by him; and if he signs it without reading it, or relying upon the representations of a. stranger, he is nevertheless bound by the contract, and can not testify as to his understanding of the contract, different from the plain, written terms of the contract.
“3. A contract, having several distinct items and founded upon a consideration apportioned to each, is severable. If you find that a part of the articles covered by the contract is in grade, kind and quality as therein provided, and they have a value 01-price apportioned to them, separate from the price of other goods not up to contract price and grade, then you will find for the plaintifE for the price of goods which are equal in grade to that provided by the contract.”
And instructed them, over the-objections of the appellants, as follows:
“A. If you find from the testimony that the goods were inferior in quality to the samples by which they were sold, and that the defendant, on receipt of the goods, notified the plaintiff, or the plaintiff’s attorney, that he declined to accept the goods because of the fact that they were not equal to the samples by which they were sold, and if the defendant has not yet accepted the goods, your verdict should be for the defendant.
“C. If the original contract was induced by fraudulent representations made by the representative of the plaintiff, then, when Mr. Metzger discovered that he had been imposed upon, if the fact was true, he would have a right to repudiate the whole contract. I doubt if he would be required to give anybody notice. If that is true, the original contract was fraudulent. If he notified the attorney of plaintiff that he declined to accept the goods, in my opinion the notice was sufficient, although the contract may have required a written notice to be sent to the Chicago office, Then, if you find the contract binding, on the other hand, the notice would not be sufficient.
“D. If the proof shows the plaintiffs were manufacturers of the goods sold to the defendant, that the use for which the defendant bought or contracted for the goods was known by the plaintiffs, or the agent making the sale, then the law would imply an agreement and warranty upon the part of the plaintiffs that the goods were suitable for the uses bought for, and the defendant would be under no obligation to accept them; provided, also, that it appears that the goods were inferior to the samples by which they were sold.”
The first instruction asked for by the appellants was based upon the contract sued on, and should have been given. Appellee agreed, as a part of the contract, “to examine and inspect the goods at once upon their arrival at destination, and, if said goods fail to comply with said warranty, he shall, within five days from date of arrival at destination, give detailed, written notice of such failure by registered letter to Walter Pratt & Company, Chicago, Ill.; otherwise all warranty of said goods is waived.” This was held to be a valid contract in Pratt v. Meyer, supra, “and it was also held that the failure to give the notice within the five days was an acceptance of the goods and a waiver of the warranty, and the sale became absolute.”
As to the second instruction asked for by the appellants, it is sufficient to say that there was no evidence that the execution of the contract sued on was obtained by fraud, such as misreading, surreptitious substitution of one paper for another, or by some other trick or device; and that the evidence proved that he had the opportunity to examine it before signing it; and that he can not now be heard to say that when he signed it he did not know what it contained. Colonial & United States Mortgage Co. v. Jeter, 71 Ark. 185.
The testimony of the appellee as to his failure to notice what is said in the contract about the giving of notes, admitted over objections of appellants, should have been excluded.
The third instruction asked for by appellants should have been given. Duffie v. Pratt, 76 Ark. 74.
The instruction given by the court on its own motion, and numbered “A,” ignores the contract sued on. The goods were sold by samples, and the appellants warranted them to be the same in quality, material and in all other respects as samples. The contract provided that the appellee should “examine and inspect the goods at once upon their arrival at destination, and, if said goods fail to comply with said warranty, he shall, within five days from date of arrival at destination, give detailed, written notice of such failure; otherwise, all warranty of said goods is waived.” A detailed, written notice was to be given within five days from date of arrival of goods at destination. Under the in struction of the court such notice was not necessary, notwithstanding it was a condition of the warranty and sale. Instruction “A” was erroneous.
We fail to find any evidence in the record upon which to base the instruction of the court numbered “C,” and it should not have been given.
Instruction numbered “D” should not have been given. The only warranty, express or implied, made by appellants as to the quality, material or otherwise, of the goods sold was that they were the same as the samples. There was no warranty that they were suitable for the uses for which they were bought. The evidence admitted to show that the goods purchased were not suitable for appellee’s trade was incompetent.
Reverse and remand for new trial. | [
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Wood, J.,
(after stating the facts.) There was no error in the court’s ruling. The cases of St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32, and St. Louis & S. F. Rd. Co. v. Carlisle, 75 Ark. 560, are not applicable. In those cases the statutory presumption of negligence arising from the killing was not overcome by the proof. On the contrary, the evidence in the latter case tended affirmatively to show negligence on the part of the railway company. The case at bar is ruled by the principle announced in St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514.
Here the statutory presumption of negligence is fully overcome by the testimony of the engineer, which is consistent, reasonable and uncontradicted in essential points. Indeed, it is corroborated by the testimony of appellant's witness. The engineer and fireman did not fail to keep a lookout. They saw the animals feeding on the right of way thirty or forty feet from the track. But the animals had their heads turned away from the track, and seemed to be going from it, as long as they were in the line of vision of the engineer, who continued to observe them, and not until they had passed out of his line of vision did they become confused and suddenly turned toward the railway track. Whereupon the fireman notified the engineer. Then he did everything in his power that could be done to avoid injuring them. Unless the testimony of appellee's witness could be arbitrarily disregarded, which can not be done, we do not see how the court could have ruled otherwise. St. Louis, I. M. & S. Ry. Co. v. Landers, supra, and cases cited. It was not the. duty of the engineer to slow down or take other precautionary measures for the protection of the animals until their presence upon the track or in proximity thereto indicated that they were in danger.
Affirm. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal J case was charged with non-support, a Class-D felony. He pled guilty to that offense and received a six-year suspended imposition of sentence on September 18, 2002. As a condition of his suspension, appellant was ordered to pay arrearages in the amount of sixty dollars per week in addition to child support in the amount of fifty dollars per week as ordered by the court. He failed to make these payments as ordered, and a petition to revoke his suspension was filed. After a revocation hearing September 10, 2003, the trial court found that appellant violated the terms of his suspension by willfully failing to pay these amounts, and sentenced the appellant to six years’ imprisonment, with an additional three years’ suspended imposition of sentence. This appeal followed.
For reversal, appellant contends that the evidence adduced at trial was insufficient to support a finding that he violated the conditions of his suspended imposition of sentence. We affirm.
In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant has violated a condition of his suspension. Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). Where the sufficiency of the evidence is challenged on appeal from an order of revocation, we will not reverse the trial court’s decision unless its findings are clearly against the preponderance of the evidence; in making our review, we defer to the superior position of the trial court to determine questions of credibility and the weight to be given to the evidence. Id.
In the present case, there was evidence that appellant was $20,000 in arrears, and that he had made only three fifty-dollar payments during the year following his conviction for nonsupport. There was also evidence that these payments were made only after appellant had been arrested and detained in Fort Smith, Arkansas, on charges of failure to pay child support. On February 10, 2003, appellant secured his release by posting a cash bond in the amount of $500. Appellant forfeited this bond by failing to appear in court as ordered. He was located through N.C.I.C. and arrested in the state of Washington on charges of failure to appear and non-support on April 23, 2003, and was extradited to Arkansas on August 2, 2003. Appellant testified at trial, asserting that he had been unable to make the ordered payments because he was unemployed and was unable to find work during the period in question.
We do not think that the trial court erred in declining to believe appellant’s testimony. There was evidence that appellant was an able-bodied and skilled welder capable of earning a good wage. Although we recognize that a probationer cannot be punished by imprisonment solely because of a failure to pay restitution in the absence of a determination that the failure to pay is willful, a defendant’s failure to make bona fide efforts to seek employment or to borrow money to pay restitution may justify imprisonment. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997). Here there was evidence that appellant was able to quickly raise $500 to secure his release from jail following his arrest in Arkansas. Furthermore, appellant’s failure to appear and subse quent apprehension in the state of Washington can properly be viewed as flight, and it is well-settled that flight is a circumstance from which criminal intent may be inferred. See, e.g., Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990); Oliver v. State, 14 Ark. App. 240, 687 S.W.2d 850 (1985).
Affirmed.
Gladwin and Neal, ]]., agree. | [
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Andree Layton Roaf, Judge.
Appellant Jimmy Linton appeals the Workers’ Compensation Commission’s (“Commission”) decision affirming and adopting the Administrative Law Judge’s (“ALJ”) findings and denying him compensation on the basis that he failed to prove by a preponderance of the evidence that he sustained an injury in the course of and arising out of his employment with appellee Arkansas Department of Correction (“ADC”). On appeal, Linton argues that the Commission erred in denying him compensation where his injury falls within an exception to the “going and coming rule,” because he was on a special errand for his employer, he was paid for his travel time, and he was a law- enforcement officer. We affirm.
Linton had been employed by the ADC as a correctional officer since 1988. On January 6, 2000, he was told by his supervisor, Joe Porchia, to attend a required staff meeting at 6:30 a.m. the next morning, January 7, which was Linton’s day off. Linton was being promoted to the position of captain, and this announcement was to be made at the meeting. Linton testified that he was requested to dress in his uniform. While driving from his home to his normal place of employment at the Mississippi County Work Release Center on the morning of January 7 to attend the meeting, Linton was involved in a one-vehicle accident at approximately 6:00 a.m. and sustained serious injuries. Linton is now paralyzed from the waist down and is confined to a wheelchair. Linton filed a claim for workers’ compensation benefits, which was controverted by the ADC. The ADC argued that Linton was not performing employment services within the meaning of the law at the time of the accident.
At the hearing, Linton testified that his normal work hours were 5:45 a.m. until 6:00 p.m. when he worked the day shift. He stated that he was on call at all times. Linton further testified that he understood that if he was called in on a day off to attend a meeting, such as on January 7, 2000, he would be paid from the time he left home until he arrived back home. He elaborated that if the meeting lasted for one hour, he would put down two hours on his time sheet so that he would be compensated for his travel time. Linton verified that he did not specify this as travel time and that he was not reimbursed for travel. He stated that this was the policy and that his supervisor, Mr. Porchia, had advised him to add the extra hour to the time sheet. Linton testified that he considered himself to be a law-enforcement officer and stated that he was certified as such in 1978, although he admitted that he was not currently certified.
Walter Todd and Kennett Bassett, retired employees of the ADC, testified that they were paid for their travel time when they attended a meeting on their day off and that they were told by their supervisors to include their travel time on their time sheets. Todd, who had been in charge of time sheets, testified that this was the written policy in the ADC manual.
Porchia testified that Linton was told to be at the staff meeting at 6:30 a.m. on January 7, 2000, for the purpose of announcing his promotion to captain, which would not take effect until the following Monday, January 10. According to Porchia, Linton was a correctional officer and not a law-enforcement officer. Porchia testified that Linton was not authorized to stop speeders on his way to work or to investigate accidents. Although the correctional officers could occasionally be called in the event of a natural disaster, Porchia stated that this was only to supervise a team of inmates providing assistance.
Porchia also testified that employees are not paid for travel time when they come to meetings on their day off and that he was not aware employees were adding an extra hour to their time sheet on these occasions. The ADC’s policy manual was introduced into evidence, which showed that travel during normal working hours on regularly scheduled working days is work time, as well as travel performed on non-work days during the same hours. However, employees are not compensated for their travel outside their normal working hours on non-work days. Porchia testified that although Linton had often worked from 5:45 a.m. until 6:00 p.m. when on the day shift, on the Wednesday and Thursday before the accident, his schedule had changed to eight-hour shifts, from 7:00 a.m. until 4:00 or 4:30 p.m. Porchia stated that these were the hours for an administrative position and that this would have been Linton’s new schedule as captain.
Following the evidence, the ALJ found that Linton had failed to prove by a preponderance of the evidence that he sustained a compensable injury in the course of and arising out of his employment with the ADC. The Commission affirmed and adopted the findings of the ALJ, and Linton now appeals from this decision.
Linton argues on appeal that his claim is compensable and arose out of and in the course of his employment because it falls within the following exceptions to the “going and coming rule:” (1) he was on a special errand for his employer; (2) he was paid for his travel time; (3) he was a law-enforcement officer.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
A “compensable injury” is defined as an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment. Ark. Code Ann. § ll-9-102(4)(A) (Supp. 2003). Act 796 of 1993 redefined the term “compensable injury” to exclude an injury that was inflicted upon the employee at a time when employment services were not being performed. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1997); Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2003). The same test is used to determine whether an employee was acting within the course of employment at the time of the injury as is used when determining whether an employee was performing employment services. Privett v. Excel Specialty Prods., 76 Ark. App. 527, 69 S.W.3d 445 (2002). The test is whether the injury occurred within the time and space boundaries of the employment while the employee was carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Id.
An employee is generally not said to be acting within the course of employment when he is traveling to or from the workplace, and thus, the “going and coming rule” ordinarily precludes compensation for injuries sustained while an employee is going to or returning from his place of employment. Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). The reason for this general rule is that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. City of Sherwood, supra. However, there are éxceptions to the “going and coming rule” where the journey itself is part of the employment service, such as traveling men on a business trip and employees who must travel from job site to job site. Campbell, supra. The court in Campbell also noted that whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services. Id.
Linton first argues that he was within the course of his employment while driving to his meeting on his day off because he was performing a “special errand” for his employer by attending the required meeting. The “special errand” exception has previously been recognized by our appellate courts in Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967), and Lepard v. West Memphis Machine & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995). Linton also cites the decision in Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S.W.2d 637 (1955), as support for his argument. In that case, the claimant was awarded compensation for his injuries sustained in an automobile accident that occurred when the claimant was returning from an out-of-town sales meeting required by his employer. Id. However, that case awarded compensation based on the fact that the claimant was a traveling salesman and did not discuss the “special errand” exception.
As is argued by the ADC, it is not clear that the “special errand” exception is still valid after the passage of Act 796 of 1993, which revised the definition of a “compensable injury” and required that the workers’ compensation statutes now be strictly construed. For example, in Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997), in which the claimant was a teacher who was injured when she slipped on ice in the employer’s parking lot, the claimant was denied benefits on the basis that “merely walking to and from one’s car, even on the employer’s premises,” does not qualify as performing employment services. Id. at 164. The court stated that the premises exception to the “going and coming rule” would have applied in that situation under prior law, but that since the 1993 amendment to the workers’ compensation statutes, this exception has been eliminated. Id.
There are no Arkansas cases expressly applying the “special errand” exception to injuries sustained after 1993, although in Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997), the claimant was awarded benefits for injuries sustained in a car accident while returning to his employer’s premises after retaking a required urine test. This case can be distinguished from Fisher, as the claimant in that case had reported to work in order to obtain a work assignment when he was informed that he had to retake the urine test before receiving the assignment. After retaking the test, the claimant was delivering the results to his employer when he was involved in the car accident. In this case, Linton was driving to work at his normal place of employment when he was involved in the accident. There was testimony that ADC employees were often required to attend these staff meetings, and Linton was not performing any sort of special errand or other service for his employer other than reporting to the meeting.
Linton argues that because he was required to attend the staff meeting and because his attendance at the meeting benefitted his employer, he was performing employment services at the time of his accident. However, it is essential to every employer that its employees come to work, and merely traveling to and from the workplace is not an activity covered under our workers’ compensation statutes. Linton also contends that traveling to the meeting on his day off distinguishes this situation from other cases in which compensation was denied and asserts that this extra day of travel increased the “quantity” if not the “quality” of the risk. Linton does not cite to any controlling authority for this proposition, and we do not find this argument to be persuasive. Although he cites cases from other jurisdictions that have awarded benefits to employees who were performing some employment service on their day off, it appears that none of these jurisdictions have a similar statutory requirement that employment services are being performed at the time of the injury. See Allen v. Board of Selectmen of Weymouth, 15 Mass. App. Ct. 1009, 448 N.E.2d 782 (1983); Indiana Toll Road Comm. v. Bartusch, 135 Ind. App. 123, 184 N.E.2d 34 (1962); Benjamin H. Sanborn Co. v. Industrial Comm., 405 Ill. 50, 89 N.E.2d 804 (1950). It is also not clear that these jurisdictions require strict construction of their workers’ compensation statutes, as in this state.
In addition, none of these cases involve the same situation as in the present case, where an employee is driving to a meeting held at his normal place of employment on his day off. In fact, in McDaniel v. Bus Terminal Restaurant Management Corp., 271 S.C. 299, 247 S.E.2d 321 (1978), the claimant was denied compensation under facts very similar to this case. The claimant was attending a required meeting at her normal place of employment, and she was involved in a car accident on the way home from the meeting. Id. The court held that the claimant was not on a “special errand” for her employer and that her injuries did not arise out of or in the course of her employment. Id. In sum, the Commission did not err in denying compensation to Linton on this basis.
Linton next argues that he was to be paid for his travel time to and from the meeting, bringing his activities within the course of his employment. While the payment of compensation is not necessarily conclusive to the issue of whether employment services are being performed, it is a factor to be considered. See Olsten Kimberly Quality Care v. Pettey, supra. However, in this case, there was substantial evidence from which the Commission could conclude that Linton was not being paid for his travel time to and from the January 7 meeting. Linton’s supervisor, Porchia, testified that the employees were not compensated for travel time, and the ADC policy manual introduced into evidence stated that employees were only compensated for travel on their days off when the travel occurred during their normal hours of employment. Although Linton had worked from 5:45 a.m. until 6:00 p.m. on previous occasions, Porchia testified that on the Wednesday and Thursday before the accident, Linton was assigned to the administrative shift, from 7:00 a.m. until 4:00 or 4:30 p.m., and that this was to be Linton’s new shift in his position of captain. The meeting on January 7 started at 6:30 a.m., and Linton’s accident occurred just after 6:00 a.m. Thus, there was substantial evidence to support the ALJ’s finding, which was adopted by the Commission, that Linton was not traveling during his normal work hours at the time of the accident. Although Linton and two other retired employees testified that they were normally compensated for travel time by putting an extra hour on their time sheet, it was for the Commission to resolve this conflicting evidence and to weigh the credibility of the witnesses. Searcy Indus. Laundry, Inc. v. Ferren, supra.
In his final argument, Linton contends that his status as a law-enforcement officer excepts his activities from the “going and coming” rule and brings him within the course of his employment. As support for his argument, Linton cites City of Sherwood v. Lowe, supra, in which a police officer, on his way to work while wearing his uniform and riding his personal motorcycle equipped with police blue lights, was killed in a car accident and awarded compensation. In that case, the court fpund that there was an exception to the “going and coming” rule for police officers, who are on duty twenty-four hours a day and may at any moment be called into service. Id. The court stated that the City of Sherwood derived a benefit from the claimant’s presence on city streets in his uniform and operating a police-equipped-vehicle. Id.
The present case is clearly distinguishable. Not only was Linton in his personal vehicle at the time of the accident, Porchia testified that Linton was not considered to be a law-enforcement officer and that, as a correctional officer, Linton did not have authority to stop speeders or investigate accidents. While Linton was on duty at all times, this was only in the event he was called in by the ADC because of some problem at the correctional facility. Although Linton testified that he had previously been certified as a law-enforcement officer, he admitted that he had not kept up his certification. Thus, the law-enforcement exception to the “going and coming” rule does not apply in this case, and the Commission’s decision denying Linton compensation on the basis that he did not prove that he sustained a compensable injury in the course of and arising out of his employment is supported by substantial evidence. We affirm.
Affirmed.
Vaught and Baker, JJ., agree. | [
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Robert J. Gladwin, Judge.
This is an appeal from the ..Arkansas Workers’ Compensation Commission. Appellant sought medical benefits for a gradual onset neck injury, contending that a work-related rapid repetitive motion injury caused an aggravation of her preexisting asymptomatic degenerative cervical disc disease. Appellees controverted the payment of all benefits relative to appellant’s neck injury. The administrative law judge (ALJ) found in favor of appellant and awarded benefits. The Commission reversed the decision of the ALJ, finding that, as a matter of law, an injured worker with a work-related aggravation of preexisting disc abnormalities cannot meet the major cause requirement of Ark. Code Ann. § 11 -9-102 (4) (E) (ii) (Repl. 2002) by establishing that the disc abnormalities were asymptomatic for at least a significant period before a work-related injury but became symptomatic when work conditions gradually aggravated the previously asymptomatic disc abnormalities. We disagree with this statement in general and with its application to the situation herein, that appellant failed to establish that the rapid repetitive motion aggravated her preexisting condition and was the major cause of her disability and her need for treatment. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.
In June of 1998, appellant began working for appellee Atlantic Research Corporation, which manufactures defense products and parts for automobile air bags. In May of 1999, appellant was transferred to a production line in the “pack out” division, where her duties involved packing parts for air bags. The Commission noted that while it was difficult to determine the exact sequence of events involved in appellant’s work routine, it appeared from the testimony that appellant would pick up small parts coming down a conveyor belt, inspect the parts, and then put each part in a box. Each box contained ninety-six parts, and it took appellant approximately fifteen minutes to fill each box. Appellant’s supervisor testified that the motions involved quick and fast movements of the head and neck, requiring appellant to look to one side to find an appropriate part as it came down the belt, inspect the part, and then look in the other direction to place the part into the appropriate slot in the box.
Appellant testified that in May of 1999, after she transferred to the “pack out” division, she began to experience pain in her arms, right shoulder, hands, and neck. She reported these problems to her supervisor and stated that she needed medical treatment. With the knowledge of her supervisor, appellant began seeing her family doctor for medical treatment for these problems.
Appellant saw her family doctor, Dr. John Sarnicki, on June 8, 1999. After appellees were notified, they referred appellant to their medical provider, Dr. Judson Hout. Dr. Hout referred her to Dr. Gordon Gibson, a neurologist. Eventually Dr. Gibson referred appellant to Dr. Scott Schlesinger, a neurosurgeon, who recommended conservative management of her complaints.
Following her evaluation by Dr. Schlesinger, appellant sought a second opinion. On October 11, 1999, she was evaluated by Dr. Wilbur Giles, a neurosurgeon. Dr. Giles diagnosed appellant with “C6-7 cervical radicular syndrome.” Following a myelogram-CT, Dr. Giles diagnosed “cervical stenosis and cervical spondylosis at C6-7.” He noted that based on the CT, appellant had “significant findings compatible with her neck, shoulder, and arm pain and possibly could benefit from an anterior cervical diskectomy and arthrodesis at the C6-7 level using donor bone.” On December 3, 1999, appellant underwent this surgical procedure.
When appellant sought medical benefits related to the treatment of her neck condition, appellees denied the compensability of her neck complaint and liability for any related workers’ compensation benefits. The Commission reversed the ALJ award for benefits, and held that appellant failed to prove that the aggravation was the major cause of her disability, reasoning that because the disc abnormalities observed on the MR.I, myelogram, and post-myelogram CT all preexisted the work-related aggravation, appellant could not, as a matter of law, establish the aggravation as the major cause of her disability- Appellant argues on appeal that there was no substantial basis for the Commission’s decision to deny benefits.
The standard of review in workers’ compensation cases is well settled. When reviewing a decision of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The issue is not whether this court might have reached a different result from the Commission; the Commission’s decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Horticare Landscape Management v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002); Wheeler Constr., supra. When a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003).
In workers’ compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).
If the aggravation/new injury is an accidental injury, it must meet the following criteria to establish compensability: it must be (1) an independent incident; (2) work-related; (3) caused by a specific incident identifiable by a time and place of occurrence. See Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002); Farmland Ins. Co. v. DuBois, supra. An injury does not have to be accidental in order to qualify as an aggravation/new injury; it must, however, fall within one of the definitions of a compensable injury as set forth in Ark. Code Ann. § ll-9-102(4)(A).
Where, as in the case before us, a rapid repetitive motion injury is argued to be an aggravation of a preexisting condition, the claimant must prove by a preponderance of the evidence that the injury: (1) arose out of and in the course of her employment; (2) caused internal or external physical harm to the body requiring medical services; (3) was caused by rapid repetitive motion; (4) was the major cause of the disability or need for treatment; (5) was established by medical evidence supported by objective findings. See Ark. Code Ann. § ll-9-102(4)(A) and (E) (Repl. 2002); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). See also Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998) (affirming the Commission’s finding that the claimant’s employment activities in the form of rapid repetitive movement had aggravated his degenerative osteoarthritis in the area of his hands and wrists, and that his conditions of bilateral carpal tunnel syndrome and aggravation of his preexisting degenerative arthritis constituted the major cause of his need for ongoing medical treatment).
The Commission specifically found that appellant had satisfied the objective medical findings requirement, noting the presence of a muscle spasm for which Valium was prescribed. The record also reveals documentation of hand and finger swelling, and a trip to the emergency room occasioned by appellant being unable to move her head. In Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000), our supreme court held that muscle spasms can constitute objective medical findings to support compensability. In the case at bar, there is written documentation of the presence of a muscle spasm and the swelling found in appellant’s hands and fingers. There was, therefore, substantial evidence to support the finding of the Commission that appellant had satisfied the requirement that an injury be established by medical evidence supported by objective findings. Regarding the requirement of rapid repetitive motion, the Commission considered the testimony of appellant’s supervisor and concluded that if appellant inspected approximately 6.5 parts per minute (96 parts every 15 minutes), and made two neck movements per part, appellant would engage in thirteen neck movements per minute. There was substantial evidence to support the Commission’s finding that the rapid repetitive motion requirement was satisfied.
In High Capacity Products, supra, the claimant used an air gun to assemble blocks, with a quota goal of 1,000 units per day. She would hold the parts of the unit with her left hand and work the air gun with her right hand to attach two nuts to each block, averaging attachment of one nut every fifteen seconds. Her job required three maneuvers to be repeated in succession all day: assembling the separate parts, using the air-compressed equipment to attach the parts together with nuts, and throwing the units into a box.
Citing our decision in High Capacity Products, supra, the Commission in the instant case found that appellant’s job duties fell within the meaning of rapid repetitive motion. Considering the multiple job tasks that appellant performed at high volume with quick and fast movements and the repetitive nature of such movements over the course of a sometimes ten-to-twelve hour shift, six to seven days a week, there was substantial evidence to support the Commission’s finding that appellant’s job duties required rapid repetitive motion.
Even though the Commission found that appellant had satisfied her burden of proof as to objective medical findings and rapid repetitive motion, it nonetheless declined to award benefits. The Commission reasoned that because all of the disc abnormalities that showed up on the various studies preexisted the work-related aggravation, appellant could not establish, within the meaning of Ark. Code Ann. § ll-9-102(4)(E), that a work-related aggravation injury was the major cause of a disability or need for treatment simply by establishing that the preexisting condition was asymptomatic prior to becoming inflamed by the work activity.
We first disagree with this statement because it is inaccurate as applied to this situation. Appellant did not merely establish that her preexisting condition was asymptomatic prior to becoming inflamed by work; she introduced objective medical findings, as discussed above, to substantiate her claim of an aggravation/new injury.
Secondly, we disagree with the Commission’s finding that “major cause” cannot be established in a situation in which a claimant was symptom-free prior to the work-related aggravation of a preexisting condition. A claimant is required to prove that the work-related injury is the major cause of the disability or need for treatment. But for the work-related injury in this case, there would have been no disability or need for treatment. Appellant’s doctor testified within a reasonable degree of medical certainty that the work-related aggravation/new injury was the major cause of appellant’s disability and need for treatment.
In his deposition on February 4, 2002, Dr. Giles testified that he believed that appellant had degenerative arthritic disease in her neck prior to her employment, but that if she had no symptoms prior to the employment, as she stated, then “the only way that her employment could have hurt her from that is if her neck was used in such form on a repeated basis that she made the degenerative disk inflammatory. Then it would have become inflammatory as a result of what she was doing, although it preexisted her employment.”
The Commission interpreted Dr. Giles’ testimony and written opinion report to conclude that appellant’s previously asymptomatic neck abnormalities became inflamed/symptomatic as a result of her job duties. The Commission further found:
Based on the fact that the claimant’s neck was asymptomatic prior to the new job duties in 1999, and in light of the temporal relationship between the start of the new job duties and the beginning of her symptoms, Dr. Giles has concluded that the claimant’s work-related aggravation of a preexisting neck condition was the major cause of the surgical treatment that Dr. Giles performed. On the other hand, Dr. Giles has also testified that all of the disk abnormalities observed on MRI, myelogram, and post-myelogram CT, all preexisted the claimant’s work-related aggravation.
The Commission also noted that the facts that formed the basis of Dr. Giles’ opinion were not in dispute.
Although the Workers’ Compensation Act must be strictly construed, even a strict construction of statutes requires that they be construed in their entirety, with each subsection relating to the same subject to be read in a harmonious manner. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Furthermore, construction of the Workers’ Compensation Act must be done in light of the express purpose of that legislation, which is to timely pay temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. Ark. Code Ann. § 11 — 9—101 (b) (Repl. 1996); Farmers Cooperative, supra.
When reviewing the Commission’s interpretation and application of its rules, we give the Commission’s interpretation great weight; however, if an administrative agency’s interpretation of its own rules is irreconcilably contrary to the plain meaning of the regulation itself, it may be rejected by the courts. Death & Perm. Total Disab. Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). An administrative agency’s interpretation of a statute or its own rules will not be overturned unless it is clearly wrong. Id.
In consideration of the above standard and the purposes of the Workers’ Compensation Act, we hold the Commission was clearly wrong in its decision that the “major cause” requirement of Ark. Code Ann. § ll-9-102(4)(E) categorically cannot be established by a showing that an asymptomatic preexisting condition became symptomatic, and thus required treatment, due to a work-related aggravation of that condition. All the requirements discussed herein were satisfied by appellant, and there was no substantial basis for the denial of relief. Accordingly, we reverse and remand.
Reversed and remanded.
Bird and Griffen, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Michael Cam-pea appeals his sentences, as an habitual offender, for breaking and entering and attempted theft of property convictions. For reversal, Campea argues that the trial court imposed an illegal sentence. We find that the trial court did not impose an illegal sentence, and because Campea failed to object during sentencing, his arguments are thus not preserved for review.
Campea pled guilty to breaking and entering, a Class D felony, and attempted theft of property with a value of $2,500, a Class C felony. Campea was also an habitual offender with more than one, but less than four prior felonies. The Pulaski County Circuit Court accepted his plea, and a jury was impaneled to hear evidence for sentencing. Campea admitted that he had committed the new offenses while on parole. After hearing the evidence, the jury sentenced Campea as an habitual offender with two prior convictions to 12 years’ imprisonment for the breaking and entering offense, and to 20 years’ imprisonment for the attempted theft of property offense. The trial judge ran these sentences concurrently. The judge also ran the two sentences consecutive to the twenty-year sentence Campea received for the parole violation, stating that by statute the new sentences had to be run consecutive to the parole violation statute. Campea did not object to these sentences in the trial court.
Campea asserts on appeal that the trial court imposed an illegal sentence when it found that, as a matter of statute, it must run his sentences for the new convictions consecutive to the sentence for the parole violation. It is well settled that a challenge to an illegal sentence may be raised for the first time on appeal. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Further, the issue of an illegal sentence is an issue of subject matter jurisdiction, which this court can raise sua sponte. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
A sentence is void or illegal when the trial court lacks the authority to impose it. Sentencing in Arkansas is entirely a matter of statute . . . We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of a crime. Where the law does not authorize the particular sentence pronounced by the trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded.
State v. Fountain, 350 Ark. 437, 440, 88 S.W.3d 411, 413 (2002) (citations omitted).
Arkansas Code Annotated section 16-93-107(e)(l) (1987) provides in pertinent part:
When a convicted felon, while on parole, is convicted of another felony, the felon shall be committed to the Department of Correction to serve the remainder of his original sentence, including any portion suspended, with credit for good-time allowances. Upon conviction for the subsequent felony, the court shall require the sentences for the subsequent felony to be served consecutively with the sentence for the previous felony.
(Emphasis added.) Section 16-93-607 defines “felonies” as “those crimes classified as Class Y, Class A, or Class B by the laws of this state.” Here, Ark. Code Ann. § 16-93-607 did not authorize the trial court to run Campea’s sentences consecutively because he was not subsequently convicted of a Class Y, Class A, or Class B felony. Instead Campea was convicted of a Class C and D felony. Therefore, section 16-93-607 was inapplicable in this case.
Campea also argues that pursuant to Ark. Code Ann. § 5-4-403, the trial court had discretion to run the sentences consecutively or concurrently. Arkansas Code Annotated § 5-4-403 (b) states in pertinent part:
When a sentence of imprisonment is imposed on a defendant who has previously been sentenced to imprisonment, whether by a court of this state, a court of another state, or a federal court, the subsequent sentence shall run concurrently with any undischarged portion of the previous sentence, unless, upon recommendation of the jury or the court’s own motion, the court imposing the subsequent sentence orders it to run consecutively with the previous sentence.
(Emphasis added.)
While section 5-4-403 mandates that subsequent sentences be served concurrently, it permits the court on its own motion to run the sentences consecutively. Ark. Code Ann. § 5-4-403(b). Therefore, because section 5-4-403(b) authorizes the trial court to impose a consecutive sentence, Campea’s sentence is not illegal. To the extent that Campea argues that his sentence is improper because the trial judge failed to exercise his discretion under Ark. Code Ann. § 5-4-403(b), the failure to exercise discretion in this regard does not render the sentence illegal. Thus, this argument is not preserved for review because it was not raised to the trial court. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997).
Finally, Campea argues that there is a conflict between sections 5-4-403 and 16-93-607 that deserves resolution. Campea did not object to his sentence below and any argument regarding his sentence, other than an illegal-sentence argument, Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992), is not preserved for appellate review. Accordingly, his sentence is affirmed.
Affirmed.
Pittman, Hart, Neal, and Baker, JJ., agree.
Griffen, J., dissents. | [
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Sam Bird, Judge.
J. C. Harrison Jr. appeals an August 21, 2003, decision of the Faulkner County Circuit Court that denied his claim to a reversionary interest in certain real estate. After considering the pleadings and briefs of the parties, the trial court rejected appellant’s prayer that the quiet-title portion of an October 22,1965, decree of the Faulkner County Chancery Court be declared void and subject to collateral attack.
Appellant raises three points, contending that the trial court erred (1) in finding that appellant’s father, J. C. Harrison Sr., conveyed his interest in the land to predecessors in interest of appellees, the trustees of the Mount Vernon Church of Christ, by means of a January 10, 1957, deed; (2) in ruling that a 1965 decree was res judicata to the issues appellant presented in the 2003 proceeding; and (3) in sanctioning appellant under Rule 11 of Arkansas Rules of Civil Procedure by assessing attorney’s fees and expenses against him. Appellees assert that the trial court did not err regarding these three points, and they also request that attorney’s fees and expenses be levied against appellant as appropriate sanctions for pursuing this appeal. We affirm appellant’s first and second points on appeal. We reverse the trial court’s assessment of attorney’s fees and expenses against appellant, and we do not assess sanctions against him for appealing the trial court’s decision to this court.
The facts of this case are as follows. Appellant is an heir at law of J. C. Harrison Sr., who died in 1994. A warranty deed of December 6, 1946, executed by Harrison Sr. and Violet Harrison, his wife, purported to convey unimproved land to the Church of Christ of Mount Vernon, Arkansas, with the following provision: “The above property is to revert back to J. C. and Violet Harrison or their heirs in the event the said Church of Christ is disbanded or has no further use of the said property.” Although the deed was never recorded, a church building was constructed on the land described in the deed shortly after it was executed. The congregation met there for a number of years.
On January 10, 1957, Harrison Sr., by then a widower, executed a warranty deed for a parcel of land that included the parcel described in the 1946 deed. The grantors and grantees named in the deed were identical: D.C. Beene, S. K. Riggins, Dewey Mason, J. C. Harrison Sr., and Cletus Heffington, who are identified as Trustees for Mt. Vernon Church of Christ. Only “J. C. Harrison Sr., Widower” is typed in a space at the top of the deed form where the grantor is normally identified; the singular pronoun “I” is used twice in referring to the grantor in the habendum clause; the signature at the bottom is that of J. C. Harrison Sr. alone; and the deed is acknowledged solely by J. C. Harrison Sr., who is not identified in the acknowledgment as a trustee of the church. The deed was recorded in Faulkner County.
On August 16, 1963, Harrison Sr. executed a deed whereby he, as grantor, purported to convey to himself and other persons as trustees of the church the same lands described in the 1957 deed. This deed, which contained certain restrictions not pertinent to this appeal, was also recorded.
On August 16, 1965, Harrison Sr. filed a complaint against trustee Randall Leach, asking that Leach be ordered to deliver the 1947 deed for filing of record or, alternatively, return it to Harrison Sr. The complaint stated that after the execution of the unrecorded 1947 deed, Harrison Sr. had executed and delivered to the Church of Christ a different deed bearing only his name; that “the second deed [executed in 1957] ... conveys the meaning and intent of the grantor and grantee”; but that, for reasons of sentiment, Harrison Sr. wished to have the first deed recorded in order to show that his wife had participated in the first deed and in a gift to the church. An answer filed by Leach and other persons, claiming to constitute a majority of the board of trustees of the Mt. Vernon Church of Christ, asked that Harrison Sr. be enjoined from recording the 1947 deed unless the reversionary clause were stricken, and that title to the lands described in the 1957 deed be confirmed and quieted in the trustees and their successors in office.
On October 22, 1965, the Faulkner County Chancery Court entered a consent decree that concluded Harrison Sr.’s suit. The decree stated that the first deed conveying land to the Church of Christ of Mount Vernon was executed by Harrison Sr.. (Cecil) and his wife, that it contained a reversionary clause, that the deed “was executed without monetary consideration to grantors but . . . in consideration of other donations by other persons” to help build a church on the lot described in the deed, and that the deed had never been recorded. The decree also addressed the 1957 deed:
On January_, 1957, the saidj. C. Harrison, Sr. executed a deed, which is of record in Book 140, Page 341, Deed records of Faulkner County, Arkansas, by which he conveyed to the trustees of said Church of Christ of Mt. Vernon for a valuable consideration, a parcel of land, including said parcel conveyed on December 6,1947, and other lands in Faulkner County, Arkansas, to-wit:
Beginning at the southeast corner of Lot Numbered Nineteen (19), in Block Numbered Three (3) of the town of Mount Vernon, Arkansas, and running west 206 feet; thence running north 70 feet; thence running east 206 feet; thence running south 70 feet to the point of beginning,
in which there were no restrictions or reversions.
The chancery court further ordered that the land at issue be confirmed and quieted:
in Randall Leach, J. D. Loyd, D. G. Beene, Faber Mullins, S. K. Riggins, J. C. Harrison, Sr., J. C. Harrison, Jr., Cletus Heffington, and Dewey Mason, as trustees for the Church of Christ of Mt. Vernon, Arkansas, free from any and all restrictions and from any possibility of said parcel of land, or any part thereof, reverting to the plaintiff, his heirs or assigns, in case the said Church of Christ of Mt. Vernon should disband or cease to use said property for church purposes.
Additionally, the court ordered that the trustees return to Harrison Sr. the unrecorded 1947 deed, which contained the reversionary clause,, so that he might have it recorded if he so desired.
In 2002 appellant, J. C. Harrison Jr., filed a complaint for declaratory judgment against the trustees of the church seeking a declaration of the rights of the parties in and to the real property that had been the subject of the Faulkner County Chancery Court’s October 22, 1965, consent decree. He attached to his complaint the 1946 deed, which was referred to as Deed #1; the 1957 deed, referred to as Deed #2; and the file of the 1965 chancery case. In his complaint appellant asked that the quiet-title portion of the 1965 decree be declared void and subject to collateral attack because of an alleged legal defect:
Defendant Leach knew that Plaintiff herein, J.C. Harrison, Jr., had an interest in the subject land as a remainderman under Deed #1. Ark. Stat. Ann. §§ 34-1902 and 1903 required that Plaintiff herein, J.C. Harrison, Jr., be named as a counter defendant in the quiet title counterclaim. Further, Ark. Stat. Ann. § 34-1905 required the publication of notice of the quiet title claim in a newspaper having a circulation in Faulkner County, Arkansas. There was no such notice issued by the Chancery Clerk and, consequently, no publication.
Appellant also asked for a declaration that he, as an heir at law of Harrison Sr. and Violet Harrison, was a remainderman under the unfiled Deed #1; that the church trustees were bound by the reversion provision of Deed #1; and that Deed #2 was ineffective as a transfer of the property because Harrison Sr. executed it in his capacity as a trastee of the church and not in his individual capacity.
Appellees responded that appellant’s assertions regarding Deeds #1 and #2 had been fully litigated in the 1965 case, and that his claims were barred by res judicata. Appellees denied that appellant had standing as an heir or in any other manner to maintain his cause of action, and denied that the grantors in Deed #2 were the trustees. They affirmatively asserted that no possible defect in the pleadings could be raised regarding the 1965 case because Harrison Sr., the sole plaintiff therein, was the only party who could object; and that having so failed, Harrison Sr. and all those who claimed by, through, or under him were bound by the court’s decree. They asserted that all necessary and proper parties were before the court in the 1965 case, that the decree could not be collaterally attacked, and that the decree was a final and complete disposition of all matters involving those parties. They asserted that Deed #1 was void because the Church of Christ of Mt. Vernon was not incorporated at the time the deed was executed, resulting in no grantee capable of taking and holding title. Finally, appellees alleged that the 1957 deed was an unlimited conveyance of all the interest that Harrison Sr. had in the lands described therein, including any reversionary interest he may have retained in Deed #1 if it were valid, which validity appellees denied. Appellees asserted in a motion for sanctions that the appellant had filed a frivolous lawsuit.
In the 2003 decree of the Faulkner County Circuit Court, the order under our review, the trial court made the following findings: (a) that appellant’s purported reversionary interest in the land at issue was claimed through the 1946 deed, the grantee was an unincorporated religious association, and the deed was not delivered to or accepted by the named trustees of the grantee; (b) that the 1957 deed was accepted and recorded by the grantees, who were the named trustees of the church; (c) that in the agreed decree of 1965, the chancery court determined that the 1946 deed was void for lack of monetary consideration to the grantors and because, the Church of Christ of Mt. Vernon not being a valid corporation, there was no grantee capable of taking title under that deed.
In the 1965 decree, title to the lands was confirmed and quieted in the then trustees of the church, free from any and all restrictions and free from any possibility of reversion to Harrison Sr., his heirs, and assigns. Noting the previous ruling of the chancery court that appellant’s predecessor in title had no title to the lands, the circuit court ruled that appellant was barred by res judicata from retrying the same lawsuit in a later proceeding. The circuit court assessed $3741.32 against appellant for attorney’s fees and expenses incurred by appellees in defending against “a frivolous cause.”
1. The 1957 Deed
Appellant contends in his first point of appeal that the trial court erred in finding that his father, J. C. Harrison Sr., conveyed his interest in the real property to predecessors in interest of appellees by means of the deed of January 10, 1957. As a general rule, the requisites of a valid deed are that there be competent, identifiable parties and subject matter; a valid consideration; effective words expressing the fact of transfer or grant; and formal execution and delivery. White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992).
Appellant concedes that the 1946 deed is void for want of a capable grantee because the Church of Christ of Mount Vernon did not formally exist at that time. He characterizes the 1957 deed as “an obvious attempt to convey the realty from J. C. Harrison, Sr.” to the trustees of the church. However, noting that the grantor and grantee are the same parties, he argues that the 1957 deed’s legal defect of conveying land from and to identical parties renders the deed of no force or effect. He further contends that the 1957 deed conveyed nothing because only Harrison Sr.’s interest as a church trustee was conveyed and because the church, by and through its trustees, did not have any property to convey under the 1946 deed. We do not agree with these arguments.
In Bishop v. City of Fayetteville, 81 Ark. App. 1, 97 S.W.3d 913 (2003), we related the well-settled rules that must be followed in cases involving the construction of a deed:
When interpreting a deed, the court gives primary consideration to the intent of the grantor. Winningham v. Harris, 64 Ark.App. 239, 981 S.W.2d 540 (1998). When the court is called upon to construe a deed, it will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. The court will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful. Id. When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grantor, and interpret the language in the light of attendant circumstances. Id.
It is only in case of an ambiguity that a deed is construed most strongly against the party who prepared it, see Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974), or against the grantor. Goodwin v. Lofton, 10 Ark.App. 205, 662 S.W.2d 215 (1984). Even then, the rule is one of last resort to be applied only when all other rules for construing an ambiguous deed fail to lead to a satisfactory clarification of the instrument and is particularly subservient to the paramount rule that the intention of the parties must be given effect, insofar as it may be ascertained, and to the rule that every part of a deed should be harmonized and reconciled so that all may stand together and none be rejected. Gibson v. Pickett, supra. In arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973). Courts may also acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Id.
Bishop, 81 Ark. App. at 8-9, 97 S.W.3d at 918-19 (2003).
In the case we now review, an ambiguity exists in the 1957 deed because identical parties are typed on the deed form as both grantors and grantees. An examination of the four corners of the deed, however, enables us to determine the intent of the parties from the language employed. Only the name J. C. Harrison, Sr. is typed in the space at the top where the grantor’s name typically appears; the singular pronoun “I” is typed in twice as the grantor in the habendum clause; the sole signature at the bottom of the deed is that of J. C. Harrison Sr.; and the deed is acknowledged only by Harrison Sr., and not in his capacity as a trustee.
It is clear to us that the listing of identical names as both grantors and grantees is merely a scrivener’s error, and on this basis alone we would not hesitate to find that Harrison Sr. as an individual, not acting as a trustee of the church, was the grantor. Additionally, however, there is other evidence that Harrison Sr. was the grantor in the 1957 deed. Harrison Sr. agreed to convey a tract of land as his pledge to the new church and he executed the 1946 deed. That deed failed because there was no proper grantee or monetary consideration and because the church did not accept it due to the reversionary clause. The 1957 deed was signed by Harrison Sr., and it was acknowledged and delivered to the church trustees. Harrison Sr. stated in his 1965 complaint that the second deed “conveyed the meaning and intent of the grantor and the grantee.” From this evidence, we find that the intention of Harrison Sr. was to convey the realty to the trustees of the church, and that the 1957 deed was a valid conveyance of the lands therein described. Thus, we hold that the circuit judge did not clearly err in finding that appellant’s father, Harrison Sr., conveyed his interest in the land to predecessors in interest of appellees, the trustees of the Mount Vernon Church of Christ, by means of the January 10, 1957, deed.
2. The 1965 Decree as Res Judicata
The trial court ruled that because the 1965 consent decree had decreed that appellant’s predecessor in title had no title to the subject lands, appellant was barred by res judicata from retrying the same lawsuit in a later proceeding. The trial court then ordered:
It is accordingly considered, ordered, adjudged and decreed that the 1946 deed above referred to was void because there was no consideration to the Grantors for the same and there was no legal entity named as grantee therein which was capable of holding title thereto: that as the result thereof that 1946 deed was void and is a nullity, that the Plaintiff herein has no reversionary interest in the lands described in the 1946 deed pursuant to the 1946 deed or any other conveyance; that the Defendants’ plea of res judicata is proper and the Plaintiff is barred from again trying the issues tried by his predecessor in title in the said 1965 Chancery Court decree.
Appellant argues that res judicata, or claim preclusion, does not apply in this case because in the 1965 suit the trial court and parties did not comply with the statutory quiet-title procedures, such as by naming in the quiet-title petition any person known to claim an interest in the land and by publishing notice of the petition. Appellant contends that because these required procedures were not followed, the 1965 quiet-title decree was void and is subject to his collateral attack in the present suit. Appellees respond that all persons who were required to be notified of the 1965 suit and who had an interest in the land were before the court in that action, and that appellant cannot collaterally attack the decree. We agree.
Four elements must exist for res judicata to apply: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the same cause of action or claim; (4) both suits involve the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). Thus, where a lawsuit is based on the same events as the subject matter of the previous lawsuit, res judicata will apply even if the subsequent lawsuit raised new legal issues and seeks additional remedies. Id.
We hold that because the 1946 deed was void, appellant had no reversionary interest in the property under that deed. Appellant’s only possible interest in the land would have been that of a statutory heir of his father, Harrison Sr., who in 1957 deeded away all his interest in the land and retained no reversionary interest. Because Harrison Sr. was still alive in 1965, appellant was not an heir and had no interest in Harrison Sr.’s land that would have entitled appellant to notice of the 1965 quiet-title action. Thus, appellant’s current claims are barred under the doctrine of res judicata. See Bentrup v. Hoke, 245 Ark. 572, 433 S.W.2d 139 (1968) (homeowner was precluded by res judicata from operating a beauty parlor in her home because her predecessors in title had previously litigated the issue).
Appellant admits that if the 1957 deed was valid, appellees could have instituted the quiet-title action under common law, as the party in possession holding legal title, and they would not have had to comply with the statutory quiet title procedures. See Driver v. Driver, 223 Ark. 15, 263 S.W.2d 914 (1954) (equity jurisdiction to quiet title, independent of statute, can be invoked only by a plaintiff in possession holding the legal title, the remedy at law being otherwise adequate). We hold that because the current action involves the same subject matter as the 1965 suit, because the same parties or their privies are involved, and because the 1965 decree was a final judgment based upon proper jurisdiction, appellant’s claims in the current suit are barred by res judicata. We affirm the trial court’s ruling that appellant was barred by res judicata from retrying the same issues previously tried.
3. Assessment of Sanctions
Appellees’ motion for sanctions at the trial level asserted that appellant knowingly, maliciously and wrongfully, and for the purpose of harassing appellees, caused his attorney to file a frivolous complaint to re-litigate the precise findings and orders in the 1965 chancery case when appellant “knew or should have known his purported cause of action was without just cause and without hope of success.” The trial court granted the motion, awarding appellees attorney’s fees and expenses in the sum of $3741.32. We reverse the awarding of sanctions.
Rule 11 of Arkansas Rules of Civil Procedure (2004) reads in pertinent part:
(a) Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name. . . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
The primary purpose of Rule 11 sanctions is to deter future-litigation abuse. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999), citing Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). By signing a pleading, motion or other páper, a party or attorney warrants that to the best of his knowledge, information and belief, formed after a reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as harassment or unnecessary delay. State v. Craighead Co. Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). The party asking for Rule 11 sanctions has the burden of proving a violation of the rule. Id.
The imposition of sanctions pursuant to Rule 11 is a serious matter to be handled with circumspection, and the trial court’s decision is due substantial deference. Hodges v. Cannon, supra, citing Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998). We review a trial court’s determination of whether a violation of Rule 11 occurred under an abuse-of-discretion standard. Id. In deciding an appropriate sanction, trial courts have broad discretion in determining whether sanctionable conduct has occurred and what an appropriate sanction should be. Id.
The practice of law is not an exact science: Rule 11 does not require a lawyer to anticipate with precision how the evidence will be perceived, nor is it intended to permit sanctions just because the trial court later decides that the attorney against whom sanctions are sought was wrong. Hodges v. Cannon, supra, citing Crockett & Brown, P.A. v. Wilson, supra. In exercising its discretion under Rule 11, the trial court is expected to avoid using the wisdom of hindsight and should test the lawyer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Id. The essential issue is whether the attorney who signed the pleading or other document fulfilled his or her duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of the legal theory espoused in the pleading and the complexity of the issues raised. Id.
We do not agree with appellees’ characterization of this case as frivolous. We do not agree that the issues presented by this litigation are so simple that the result could be or should have been readily ascertainable by appellant’s counsel when the complaint was filed. Although the trial judge ultimately ruled in appellees’ favor, the answers to the factual and legal issues presented for the court’s consideration were not foregone conclusions without thorough examination. While our decision upholds the trial court’s findings that appellant’s father conveyed interest in the land by means of the 1957 deed and that the 1965 decree was res judicata to the issues appellant presented in the 2003 proceeding, we found these issues to be complex, and they have required much examination on our part. Therefore, we hold that sanctions were not justified at the trial level, nor are they called for on appeal. We reverse the sanctions assessed against appellant, and we remand to the trial court for entry of an order in keeping with our holding.
Affirmed in part; reversed and remanded in part.
Crabtree, J., agrees.
Roaf, J., concurs.
Harrison Sr. is identified in the complaint as Cecil Harrison.
Appellant notes that although the date of the first deed is December 6,1947, its date of notarization is December 6,1946. He states his belief that it was executed in 1946. In the briefs before us, both parties refer to the 1946 deed. The 1965 complaint and resulting 1965 consent decree identify the first deed as a 1947 deed, but the order from which the present appeal is taken calls it a 1946 deed. | [
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John Mauzy Pittman, Chief Judge.
The parties were diJ vorced in 1993 by a decree awarding custody of the parties’ minor child to appellant. No provision for payment of child support by appellee was made in the decree. The decree also provided that appellant had been on active military duty for sixteen years during the course of the marriage but had not at the time of the divorce satisfied the requirement for retirement from active duty, and established a formula for awarding a portion of appellant’s prospective military retirement benefits to appellee.
The Uniformed Services Former Spouses Protection Act, 10 U.S.C.A. § 1408, establishes a procedure for an ex-spouse to receive his or her portion of military retirement benefits directly from the federal government. Appellee did not comply with these procedures when appellant retired in 1996; consequently, she did not receive her portion of the retirement benefits directly from the government, nor did she receive her portion from appellant. Almost seven years later, she brought a motion for contempt alleging that appellant failed to pay her portion of the retirement benefits. Appellant asserted laches and estoppel as a defense, and testified that the parties entered into an oral agreement shortly after the decree was entered whereby appellant would not seek an award of child support in return for appellee’s agreement to forgo her portion of the military retirement benefits until their child had completed her education.
The trial judge did not consider appellant’s defenses of laches and estoppel, stating in his letter opinion that “[t]his court does not believe such an oral agreement regarding child support would be enforceable in any event.” The letter opinion was expressly incorporated into the decree granting appellee judgment for back retirement benefits in the amount of $30,087.50. This appeal followed.
For reversal, appellant contends that the trial court erred in interpreting the decree so as to impose a burden on appellant to ensure that appellee was paid the portion of the military retirement benefits awarded her under the decree, and in disregarding appellant’s arguments regarding laches and equitable estoppel. Appellant’s second point is meritorious, and we reverse and remand.
Appellant first contends that the trial court, by ordering him to pay appellee the back retirement benefits to which she was found to be entitled, improperly placed a burden on appellant that was not imposed by the prior order. We do not agree. Nothing in the decree required appellee to collect her share of the benefits directly from the government; she was simply found to be entitled to this property, and the trial court could properly enforce its decree to ensure that it was delivered to her. See Thomas v. Thomas, 246 Ark. 1126, 443 S.W.2d 534 (1969).
The second argument hinges on whether or not the trial judge erroneously believed that estoppel and laches were unavailable. We think that his comment in his letter opinion demonstrates that he did. The trial judge’s stated reason for concluding that laches and estoppel could not be based on an agreement to forego child support was that such agreement regarding child support would not be enforceable. It is true that the trial court always retains jurisdiction over child-support issues as a matter of public policy, no matter what the parties’ independent contract provides, Harris v. Harris, 82 Ark. App. 321, 107 S.W.3d 897 (2003), and that an agreement promising not to seek child support therefore would not be an enforceable contract. However, the appellant here was not seeking to enforce a promise, but instead was asserting that an agreement that had been completely executed had given rise to an estoppel.
Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such a manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy. Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). Estoppel does apply to child-support matters. Estoppel has been applied in a case where a father failed to pay child support as ordered, but was actually supporting his children in his home, and the contempt citation for the arrearage was not filed until after the mother removed the children and the father was no longer supporting them. Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993). Similarly, it has been held that long delay by a wife in invoking the process of the court to enforce a decree may give rise to an estoppel against her claiming an accrued arrearage. Bethell v. Bethell, supra.
The same principle applies to the defense of laches. The Arkansas Supreme Court has held that:
There is no hard and fast rule as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy.
Padgett v. Bank of Eureka Springs, 279 Ark. 367, 376-77, 651 S.W.2d 460, 465 (1983). Here there was testimony of an agreement, detrimental reliance, and resultant injury, and there is no question that there was an “undue and unexplained” delay of seven years in seeking the retirement benefits to which appellee was entitled under the decree. Under these circumstances, we think that the trial judge clearly could have applied laches or estoppel had he found that application of those doctrines was warranted by the facts. Because he did npt do so because of a mistake of law, we remand for him to determine whether the facts so warrant.
Reversed and remanded.
Stroud, C.J., and Robbins, Neal, and Crabtree, JJ., agree.
Griffen, J., concurs.
No appeal was taken from this order and no argument has been made concerning whether nonvested military retirement benefits are marital property subject to division. See Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). | [
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Per Curiam.
Appellees’ motion to strike appellant’s abstract and brief and motion to dismiss appeal is denied. Appellees’ brief is due in thirty days. | [
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D. Vaught, Judge.
This appeal is from the Conway County Circuit Court’s imposition of a prescriptive easement in favor of appellees Leo Moore and Lewis Moore over land that is owned by appellants River Bar Farms,‘L.L.C., and Compton Properties in Perry County. Appellants appeal from the trial court’s refusal to dismiss this action on the basis of improper venue. We find no error and affirm.
Appellants reach their land by way of a Conway County dirt road, over which they have a written easement. A bridge and a locked gate are located on this road. Evidence was introduced at trial demonstrating that the bridge and gate are in Conway County. The road extends across appellants’ land to appellees’ property. Since purchasing their property in 1989, appellees have had a key to the gate and have also used the road for ingress and egress. A dispute between the parties arose in 2001, and appellants changed the lock on the gate, preventing appellees from using the road. Appellees then filed a complaint in Conway County against appellant River Bar Farms, seeking injunctive relief directing appellants to permit appellees to use the gate and preventing them from interfering with appellees’ use of the roadway. In their complaint, appellees asserted that they had acquired an easement by prescription over the road across appellants’ property. The court issued a temporary restraining order prohibiting appellants from “maintaining a lock on the gate in Conway County,” or, in the alternative, permitting appellants to place an interlocking lock on the gate that provides access to appellees.
Appellants moved to dismiss on the ground that venue lay in Perry County, where appellants’ land is located, citing Ark. Code Ann. § 16-60-101 (1987). In this motion, appellants stated that they did not contest the injunctive relief. Théy also argued that appellees had failed to name a necessary party to the action, Compton Properties. Appellees filed an amended complaint adding Compton Properties as a defendant, asserting a prescriptive easement over appellants’ land, and requesting injunctive relief. Appellants filed a second motion to dismiss, which the court did not grant.
Appellees testified at trial that the gate is in Conway County and that they had used the road as a matter of right since purchasing their property. The circuit court made the following findings:
[PJlaintiffs’ Exhibit 17 which was stipulated to by counsel for both parties, shows the road beginning in Conway County and traversing into Perry County upon the land of the defendants which is more particularly described as shown on Exhibit A to this decree and made a part thereof and continuing until it reaches plaintiffs’ property, which is more particularly described as shown on Exhibit B attached to the Court’s decree and made a part thereof. Plaintiffs’ Exhibit 17 shows this road to be county road 247. The exhibit does not show the county road 247 continuing entirely across defendants’ property but the testimony of both the plaintiffs and defendants shows that it continues until it reaches plaintiffs’ property and shortly before reaching it, it forks to the right into a hay meadow of plaintiffs’ property.
The Court finds that that portion that was designated on the map as county road 247 doesn’t require permission from adjoining land owners for the use thereof and it appears to the Court that this road has been used by previous owners.
The Court further finds that the plaintiffs have established a prescriptive easement under the remainder of the road including the right fork that goes into a hay meadow and that the plaintiffs have established a right to use this road for ingress and egress, including the right fork, but they are not permitted to leave this road and cross onto the defendants’ land for hunting or any other purpose.
The Court therefore finds that the plaintiffs have established a prescriptive easement across the entire length of the road as it traverses the property of defendants, including the right fork to their hay meadow and the defendants are restrained from interfering with their use of the road, including the right fork, in any manner. The Court finds that the defendants have the right to put a gate and a lock on it, that the plaintiffs are entitled to place a lock and interlock it with any lock placed thereon by the defendants.The Court finds that the prescriptive use of the road is that which has been used over a period of time as shown by the map as set out on plaintiffs’ Exhibit 17, and continuing upon its present course.The Court further finds that the width of the road is the width that has been established by usage and the defendants are enjoined from taking any action that would narrow the width of the road.
Argument
The only issue raised in this appeal is whether the trial court erred in its determination of venue. According to appellants, venue was appropriate in Perry, not Conway, County, because appellees sought a prescriptive easement across land located in Perry County.
Standard of Review
Whether venue is appropriate in a particular county is a matter of law. Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark. App. 25, 940 S.W.2d 889 (1997).
Venue
We note that the parties have used the terms “venue:” and “jurisdiction” somewhat interchangeably in their briefs; in fact, the confusion between these terms is not uncommon. See David Newbern, et al., Arkansas Civil Practice & Procedure § 6-1, at 90 (3d ed. 2002). However, the concepts are distinguishable:
Jurisdiction is the power and authority of the court to act, while venue is the place where the power to adjudicate is to be exercised. Consequendy, venue should have to do with nothing but choosing among courts of two or more places in which subject matter and • personal jurisdiction exist.
Id.; accord Arkansas Game & Fish Comm’n v. Harkey, 345 Ark. 279, 45 S.W.3d 829 (2001).
Ordinarily, if the effect of a decree is to reach and operate upon the land itself, it is regarded as a proceeding in rem, and is a local action, which must be brought in the county where the land is situated. Drum v. McDaniel, 215 Ark. 690, 222 S.W.2d 59 (1949); Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997). Arkansas Code Annotated section 16-60-101 (1987) provides that actions for the recovery of real property, or of an estate or interest therein, must be brought in the county in which the subject of the action, or some part thereof, is situated. It is clear that the land over which appellees established a prescriptive easement is in Perry County.
However, in this case, venue was proper in the Conway County Circuit Court because a transitory claim — the request for an injunction prohibiting appellants from interfering with appellees’ use of the gate in Conway County — was included in the complaint. In actions such as this, venue is determined by the essential character of the action. In Atkins Pickle Co. v. Burrough-Uerling-Braswell Consulting Engineers, Inc., 275 Ark. 135, 138, 628 S.W.2d 9, 11 (1982), the supreme court said that, when a transitory cause of action is combined with a local cause of action in a complaint, venue is determined by “the real character of the action, by its principal purpose or object, by the principal right being asserted. Accord Frank A. Rogers & Co. v. Whitmore, 275 Ark. 324, 629 S.W.2d 293 (1982). In this case, the principal right asserted in appellees’ complaint was a request for injunctive relief prohibiting appellants from interfering with appellees’ right to use the bridge and gate in Conway County. Therefore, the essential character of this action, as demonstrated by the complaint, established venue in Conway County; appellees’ later concession of the injunctive-relief issue did not defeat that venue, once established. Accordingly, the trial court’s refusal to dismiss on the basis of venue was correct.
Affirmed.
Stroud, C.J., and Bird, J., agree.
Appellants argue that it was not proven at trial that the gate is actually located in Conway County and they point out that the trial judge made no finding to that effect in the final decree. Appellees, however, presented testimony that it is located in Conway County. | [
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D. Vaught, Judge.
This appeal arises from a default judgment obtained by appellees, David and Janet Wilkins, against appellant, Builder One Carpet One a/d/b/a Design One Carpet One (Carpet One). Previously, we remanded this case for rebriefing. See Builder One Carpet One v. Wilkins, CA02-2691 (Ark. App. Sept. 25, 2002). Carpet One filed a motion to set aside the default judgment on the ground that service did not comply with Ark. R. Civ. P. 4 and therefore the judgment was void. The trial court denied the motion, finding that the service upon appellant complied with Ark. R. Civ. P. 4(d)(5) and was proper. Based on the facts before us, we cannot say that the trial court erred in refusing to set aside the default judgment.
On March 30, 2000, appellees entered into a contract with appellant, in which appellant agreed to install carpet, ceramic tile, and laminate flooring in appellees’ home. On March 25, 2001, appellees filed a complaint against appellant alleging that appellant committed fraud and negligence in carrying out the contract. Specifically, they alleged (1) that appellant represented the carpet to be installed as 100% nylon material and that the material installed was 80% olefin and 20% nylon; (2) that the installation of the tile was defective because it was off-center; and (3) that the laminate flooring installation was defective because the material was not acclimated to the environment of the house for forty-eight hours as required by the manufacturer’s specifications, that there were gaps between the slats, and that some areas did not have glue and some areas were beginning to crack and flake. The complaint alleged that appellant was an Arkansas corporation with its principal place of business in Pulaski County, Arkansas. The summons and complaint were served upon “Richard Akel/Agent...the duly designated agent for service of process for the defendant namely Builder One Carpet One.”
Appellant failed to respond to the complaint, and a default judgment was entered against it on June 15, 2001, in the amount of $10,206.72. On August 13, 2001, appellant filed a motion to set aside the default judgment on the ground that the judgment was void because the attempted service did not comply with Rule 4, alleging that appellant was not a corporation and that Richard Akel was not a “registered agent” of Carpet One. Appellees responded that pursuant to Ark. R. Civ. P. 4(d)(5), service of the summons and complaint may be made upon an officer or partner of a partnership, limited liability company or any unincorporated association subject to suit under a common name. Appellees contended that appellant was presumably an unincorporated association based on appellant’s denial that it was a corporation and that Richard Akel was an officer and owner of appellant.
A hearing took place on November 2, 2001, where counsel for the parties argued their respective positions. In addition, through the testimony of Janet Wilkins, several of appellant’s advertisements were introduced, which represented that Richard Akel was an owner and president of Design One Carpet One. At the conclusion of the hearing, the trial court denied the motion to set aside the default judgment and subsequently entered an order finding that service complied with Ark. R. Civ. P. 4(d)(5). From that decision, comes this appeal.
Appellant contends on appeal that because service upon Richard Akel did not comply with Ark. R. Civ. P. 4(d)(5), the trial court erred in refusing to set aside the default judgment. Appellant correctly states the law concerning our construction of the statutory service requirements. Statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). The same reasoning applies to service requirements imposed by court rules. Id. Proceedings conducted where the attempted service is invalid renders judgments arising therefrom void ab initio. Id. Actual knowledge of a proceeding does not validate defective process. Id.
Rule 4(d)(5) of the Arkansas Rules, of Civil Procedure provides:
(d) Personal Service Inside the State. A copy of the summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made upon any person designated by statute to receive service or as follows:
(5) Upon a domestic or foreign corporation or upon a partnership, limited liability company, or any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.
First, appellant argues that service did not comply with Rule 4(d)(5) because Richard Akel does not fall within any of the categories of persons to receive service for the entity named as defendant, “Builder One Carpet One a/d/b/a Design One Carpet One.” Although appellant’s counsel argued its position, appellant offered no evidence at the hearing on its motion to set aside the default judgment Appellee Janet Wilkins testified that they unsuccessfully attempted to find out what type of business entity Design One Carpet One operated. Appellees did, however, introduce copies of advertisements wherein Richard Akel held himself out to be president and an owner of “Design One Carpet One.” Based on this evidence, we conclude that Richard Akel held himself out to the public as being an officer and owner of the entity called Design One Carpet One and that service upon him was proper pursuant to Rule 4(d)(5).
Appellant also argues that service was not proper because “Builder One Carpet One” was not a corporation as alleged by appellees in their complaint and that without a recognizable entity for which to serve, Richard Akel cannot be a “duly designated agent.” Appellant, in its brief, states that a “corporation” known as “Builder One Carpet One” does not exist and that Mr. Akel has no knowledge of or relationship with the alleged corporation. This statement of Mr. Akel’s knowledge of or relationship with Builder One Carpet One is not supported by the record because Mr. Akel did not testify at the hearing and argument of counsel is not evidence. In its brief appellant further states:
In this case, a plain reading of the Complaint reasonably led Mr. Akel to take no action with regard to the Complaint against the phantom entity named as defendant [Builder One Carpet One a/d/b/a Design One Carpet One]. However, the business which he does operate [Design One Carpet One] is now being pursued based upon default judgment entered against a business entity that is a fiction of the Appellees[’] imagination. This distinction in the names of the businesses, which led to the erroneous entry of a default judgment, is certainly relevant. Further, as will be explained in more detail herein, such failure to properly name and serve the correct defendant makes the default judgment void.
We disagree with appellant’s contention that the plain reading of the complaint would reasonably lead Mr. Akel to take no action.
The record indicates that Richard Akel did receive service of process, although as a representative of an improperly named defendant. The question of misnomer on a complaint in regard to the validity of service of process has not been often addressed in Arkansas. However, the issue has been addressed with regard to service of a writ of garnishment. See May v. Bob Hankins Distrib., 301 Ark. 494, 785 S.W.2d 23 (1990). In May, the supreme court stated that when there is some slight elaboration of a party’s exact corporation name, such an error is immaterial when no separate party is actually involved. Id. (citing Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968)). The court went on to state that a misnomer is only fatal when it is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued. Id. (citing 19 Am. JuR.2d Corporations § 2216 (1986)); see also Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976) (stating that when a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the true name of the individual doing business under that name where the amendment to the complaint only corrected a misnomer and did not substitute a new party).
While May involved a corporation and the misnomer consisted of only a slight variation of the corporate name (“Bob Hankins Distributing Company” instead of “Bob Hankins Distributing Company, Inc.”), the law set out is still applicable to the present case. The question is whether the misnomer is so material and substantial as to indicate a different entity or produce doubts as to the party intended to be sued.
Although the issue at bar has not been precisely addressed in Arkansas, the Texas Court of Appeals, in a state where strict compliance with service requirements is also required, has upheld service of process where a misnomer existed in a complaint but the intended defendant was served. See Dezso v. Harwood, 926 S.W.2d 371 (Tex. Ct. App. 1996) (upholding default judgment based on misnomer); see also Union Pacific Corp. v. Legg, 49 S.W.3d 72 (Tex. Ct. App. 2001) (addressing the distinction between misnomer and misidentification of a defendant and reversing a default judgment where defendant was misidentified and the wrong defendant served).
In Dezso, the appellant Elsie Dezso was served with a complaint naming Judi Dezso, followed by several d/b/a names, none of which included the name Elsie Dezso. A default judgment was obtained against her for failing to respond, and she argued on appeal that because her name was not on the complaint, she was not a party to the suit, and therefore jurisdiction was not proper given the requirement of strict compliance with manner and mode of service of process. The court stated:
When the correct defendant is served under the wrong name the case is not one of misidentification but rather misnomer. Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990); Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (1939); West v. Johnson, 129 S.W.2d 811, 815 (Tex.Civ.App.—Fort Worth 1939, writ ref'd); Haley v. Young, 541 S.W.2d 217, 219 (Tex.Civ.App.—Houston 1976, no writ).The supreme court in Adams explained the misnomer rule:
When a person intended to be sued is sued and served by a wrong name, and such person fails to appear and plead such misnomer in abatement, and suffers judgment to be obtained, he is bound by such judgment, and in all future litigation he may be connected with such suit or judgment by proper averments; and when such averments are made and proved, the party intended to be named in the judgment is affected or concluded to the same extent that he would have been if he had been named and served by his true name.
Adams, 124 S.W.2d at 841. As the court in West stated, “The test seems to be whether or not the right person was sued, and whether or not he was put on notice that he, and not some other person, had been sued.” West, 129 S.W.2d at 815.
Id. at 374.
Applying the law of misnomer to the present case, we conclude that the misnomer was not fatal because, based on the pleadings and service, Design One Carpet One could not have been misled nor could the misnomer have produced doubts that Design One Carpet One was the intended defendant of appellees’ suit involving the defective installation of flooring in their home. It is apparent that Design One Carpet One was the intended defendant and was simply misnamed “Builder One Carpet One a/d/b/a Design One Carpet One” because appellees were unable to identify the form of business that Design One Carpet One operated. Appellees used the d/b/a “Design One Carpet One” throughout the complaint, and appellees introduced evidence at the hearing on appellant’s motion to set aside that Design One Carpet One was a member of the Better Business Bureau of Arkansas, Inc. (BBB), and that the BBB records indicated that it was a member, that Richard Akel was the owner, and that the “company is affiliated with Builders One — Carpet One.” In addition, Richard Akel was identified as the president and owner of Design One Carpet One in public advertisements. Because the misnomer was not fatal and Richard Akel was a proper person to receive service of process for Design One Carpet One, we hold that the service of process in this case was valid and that the trial court did not err in refusing to set aside the default judgment.
Affirmed.
Crabtree and Baker, JJ., agree. | [
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Neal, Judge.
Appellant was convicted of first-degree forgery and sentenced to twelve years in the Arkansas Department of Correction. His conviction stems from the presentment of a $500 check, issued by the State of Arkansas payable to appellant’s step-father Hurshel Eagle, to Best Western Motel clerks in Stuttgart, Arkansas. On appeal, appellant argues that the evidence was insufficient to convict him and that the trial court erred in determining that his sentence should be served consecutively to the one that he was already serving. We affirm.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (March 12, 2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id.
Appellant asserts that, although he stole the check with the purpose to defraud, he did not commit forgery because he did not “forge” anything. Appellant misunderstands the requirements of the statute. “A person forges a written instrument if with the purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.” Ark. Code Ann. § 5-37-201(a) (Repl. 1997) (emphasis added). A person commits forgery in the first degree if he forges a written instrument that is issued by a government. Ark. Code Ann. § 2-37-201 (b)(1) (Repl. 1997). The use of the disjunctive “or” between clauses indicates an alternative, an either-or choice. See Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002).
There is no question that appellant, with the purpose to defraud, possessed the check. Furthermore, appellant uttered the check to Best Western Motel, purporting that he had the authority to cash it. “Utter,” as used in Ark. Code Ann. § 2-37-201 (a) (Repl. 1997), includes the delivery or attempted delivery of a written instrument. Faulkner v. State, 16 Ark. App. 128, 697 S.W.2d 537 (1985). Appellant represented to clerks Jessica Larson and Amanda Hale that he wanted to use the check to acquire a room and that Mr. Eagle was on his way and wished to use the check to rent rooms at the motel for business. Moreover, Mr. Eagle testified that he did not authorize appellant to have the check or to negotiate it. Therefore, the foregoing facts are sufficient evidence to support appellant’s conviction for first-degree forgery.
Next, appellant argues that his sentence should have been set concurrently with the sentence that he was already serving. Arkansas Code Annotated section 5-4-403(b) (Supp. 2001) provides:
[W]hen a sentence of imprisonment is imposed on a defendant who has previously been sentenced to imprisonment, whether by a court of this state, a court of another state, or a federal court, the subsequent sentence shall ran concurrently with any undischarged portion of the previous sentence unless, upon recommendation of the jury or the court’s own motion, the court imposing the subsequent sentence orders it to run consecutively with the previous sentence.
However, the State argues that appellant’s failure to file an amended notice of appeal prevents this court from addressing the issue. We agree.
A notice of appeal must designate the judgment or any final order appealed from, and final orders not mentioned in a notice of appeal are not properly before an appellate court. See Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998). Here, after appellant’s conviction, the following colloquy took place:
Prosecution: For the record,Your Honor, since Mr. Ruffin is here, do you want me to make that Judgment and Commitment consecutive or concurrent?
Defense: Your Honor, I believe the law provides that it is concurrent unless specifically made consecutive. We would ask that it be made concurrent. Or we would ask that the Court not modify it and make it consecutive.
Prosecution: I’m just asking the Court.
Court: All right. I will allow a week to submit anything you want to on that, about the things you consider.
Prosecution: I will leave that blank out.
Court: All right.
The judgment and commitment order was entered on March 21, 2002, and did not indicate whether the sentences would run concurrently or consecutively. Appellant filed his notice of appeal on April 5, 2002, prior to the trial court’s order filed May 21, 2002, determining that appellant’s sentences would be consecutive. There is no conten tion that appellant’s sentence is illegal in any manner, which would entitle him to an automatic appeal pursuant to Ark. R. Crim. P. 37.1. Therefore, appellant was required to file an amended notice of appeal, and his failure to do so prevents us from addressing the issue on appeal.
Affirmed.
Stroud, C.J., and Crabtree, J., agree. | [
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Layton Roaf, Judge.
Gregory S. Rogers appeals from an order in which the trial court clarified and enforced provisions in his divorce decree regarding child support and payment of medical and college expenses. On appeal, Rogers argues that the trial court erred in (1) reimposing child support for an adult child; (2) interpreting and modifying the agreement entered into by the parties regarding the child’s college expenses; (3) interpreting ambiguities in the parties’ agreement against him by enlarging his financial obligations under the guise of payment of college expenses; (4) ordering him to reimburse appellee Linda Rogers for medical expenses for the adult child not paid by her to medical providers and for which she received an insurance settlement intending to cover the expenses; and (5) ordering him to pay Linda’s attorney’s fees and costs where no proof of contempt was shown. We agree that the trial court erred with respect to all payments with the exception of the award of attorney’s fees, and consequently we reverse on all points except the award of attorney’s fees.
Gregory and Linda were divorced in 1998 and were awarded joint custody of their two children, Breanne and Kasey Rogers. Gregory began making child-support payments pursuant to the Family Support Guidelines. Payment of college education expenses for the children was set out in a separate property-settlement agreement prepared by Linda’s attorney and signed by both parties. Gregory did not have an attorney for either the divorce or the property-settlement agreement.
In December 1999, Linda and Breanne were involved in an automobile accident. Breanne, who was seventeen years old at the time, sustained a broken leg and a head injury, and has since recovered after surgery on her leg and rehabilitation for reading and memory loss. On June 21, 2000, after the accident, the parties entered into an Agreed Order terminating child support for Breanne, who was then eighteen, and reducing the amount of support to be paid for Kasey, commensurate with Gregory’s income and the Family Chart Guidelines for support for one child. Linda had moved to Texas, so the Agreed Order also changed sole custody of Kasey to Linda.
On July 25, 2001, Linda filed a Motion for Contempt alleging that Gregory should be ordered to pay one-half of the medical bills for Breanne incurred from December 30, 1999, to April 28, 2000, with respect to the automobile accident. Linda also sought to increase child support for Kasey and to “clarify” the term “expenses associated with attending college,” which was set out in the parties’ property-settlement agreement. Linda later filed an amended motion asking that Gregory pay all of the insurance premiums for Kasey, although the parties had agreed to divide the premiums in the order entered on June 21, 2000. On April 8, 2002, just seven days before the hearing on her contempt motions, Linda filed a Second Amended Motion asking that child support for Breanne be reinstated due to a disability resulting from the automobile accident. The Second Amended Motion also requested that Gregory pay one-half of the continuing medical expenses on Breanne, including medical-insurance premiums. A hearing was held on April 15, 2002, and a ruling was entered on May 8, 2002. Gregory’s counsel asked for a clarification of some issues, and a second ruling was issued on May 21, 2002.
Gregory filed a Motion to Set Aside Ruling From the Bench or in the alternative, a Motion for Reconsideration on June 10, 2002. The trial court denied the Motion by letter order, and the final order was entered on August 1, 2002. The order reimposed child support, medical-insurance premiums, and payment for Breanne’s medical bills until she obtains her undergraduate degree. The order also required Gregory to pay one-half of the medical expenses from Breanne’s accident to Linda. The order interpreted the college education expense section of the parties’ property-settlement agreement, and required Gregory to pay to Breanne, in addition to child support on her behalf to Linda, the sum of $300 per month, and to pay for her books and tuition not covered by scholarship funds. The court also ordered Gregory to pay $350 in attorney’s fees and costs. Gregory appeals from this order.
Gregory first argues that the trial court’s ruling to reimpose child support, which had ceased by court order after the child had reached majority, was contrary to Arkansas statute and case law. We agree. Arkansas Code Annotated section 9-14-237 (Repl. 2002) provides that an obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen years of age or should have graduated from high school, whichever is later. The parties entered into an agreed order to terminate child support after Breanne had reached the age of eighteen and completed high school. This order was also entered into after the accident from which Linda now claims that Breanne suffers a disability. The trial court based the reinstatement of child support on its finding that Breanne is disabled.
The general rule in Arkansas is that a parent is legally obligated to support his or her child at least until the time the child reaches majority. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000); see Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985). However, we have held the duty to support a child does not cease at majority if the child is mentally or physically disabled in any way at majority and needs support. Towery v. Towery, supra; Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977) (dyslexia); Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972) (epilepsy); Eskridge v. Eskridge, 216 Ark. 592, 226 S.W.2d 811 (1950) (physically injured at birth). These cases all involved unemancipated children who had reached majority but were unable to care for themselves. Towery, 285 Ark. at 116, 685 S.W.2d at 157.
Moreover, although we have often said that the trial court is in the superior position to weigh the credibility of the witnesses, and that we will defer to the trial court absent an abuse of discretion, see e.g., Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981), in this instance, the record is devoid of any medical testimony or evidence other than the personal opinions of Breanne, Linda, and Gregory as to the extent of Breanne’s impairments. In fact, the trial judge noted this deficiency; however, in his letter order, he found Breanne disabled but did not explain what led him to this conclusion. Breanne and Linda testified that, since the accident, Breanne has had trouble with reading, math, and memory. However, following the accident, Breanne was still able to graduate first in her class, and has maintained a 3.8 G.P.A. in her first two years of college. In describing her reading limitations, Breanne said that where she once could scan a document quickly, she now has to read things “word for word.” She further stated, “I cannot just read over stuff, like, two times real quick and go in and take the test. I -have to study, like, two hours a night.” Breanne lives independently in an apartment, has been employed, is able to travel, and attends classes regularly. Breanne further testified that her school provides her with a counselor to address her scholastic limitations and needs. Breanne further testified that her father had been paying her apartment rent and utilities and also gave her additional spending money. In a factually analogous case, Aikens v. Lee, 53 Ark. App. 1, 918 S.W.2d 204 (1996), this court found that a son who had reached majority, finished a year at university, played in the college band, and worked, lacked sufficient cause to show special circumstances requiring continued payment of child support. Accordingly, we conclude that, under the circumstances of this case, the trial court clearly erred in reinstating child support, and we reverse this award.
Gregory next argues that the trial court had no authority to interpret and modify the contractual agreement entered in by the parties with regard to the child’s college expenses. Linda requested that the court “clarify” the property-settlement-agreement provision concerning payment of college education expenses for Breanne. The provision states, “Defendant is actively involved in the selection of colleges for the children to attend. Defendant agrees to pay for books, tuition and expenses associated with attending college, which are not covered by scholarship funds for the children. Payments are to be made directly to the provider or to the child, upon presentation to the defendant of a statement setting out the expense involved.”
Gregory argues that the language of the decree was clearly stated and that the court did not have the authority to modify a contractual agreement entered into by the parties. Gregory relies on a case that states that a court may not modify or change a contractual property-settlement agreement over the objection of one of the parties, in the absence of fraud. Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967). It is true that an independent property-settlement agreement, if approved by the court and incorporated into the decree, may not be subsequently modified by the chancellor. Jones v. Jones, 26 Ark. App. 1, 4, 759 S.W.2d 42, 44 (1988). However, such agreements are subject to interpretation by the court. See Sutton v. Sutton, 28 Ark. App. 165, 167, 771 S.W.2d 791, 792 (1989); Jones, supra; Kunz v.Jarnigan, 25 Ark. App. 221, 226, 756 S.W.2d 913, 915-16 (1988); Martin v. Martin, 6 Ark. App. 18, 19, 637 S.W.2d 612, 613 (1982); Stracener v. Stracener, 6 Ark. App. 1, 2, 636 S.W.2d 877, 878 (1982).
The trial court found that Gregory had agreed to pay for “some other expenses” in addition to Breanne’s tuition and books not covered by scholarship funds, and ordered him to pay her $300 per month so long as she attended college as a full-time student, away from home. The testimony presented at the hearing indicated that Breanne’s tuition and books were covered by scholarship funds, and that although Gregory was not allowed to become involved in the selection of colleges for Breanne as provided in the agreement, he had been paying her rent, utilities, and other costs. We agree that the trial court erred in ordering Gregory to pay to Breanne $300 per month for what Gregory has characterized as “spending money,” in addition to the college expenses set forth in the parties’ agreement, and that Gregory had already been paying. There is simply no provision in the agreement for such an allowance, and no evidence to support this award other than Linda’s testimony that Gregory should be required to pay Breanne’s living expenses plus an allowance for “miscellaneous expenses.” We thus reverse outright the award of $300 per month to Breanne, and consequently need not address Gregory’s third argument that the trial court interpreted ambiguities in the agreement against him by enlarging his obligations for payment of college expenses.
Gregory next argues that the trial court erred in ordering him to reimburse Linda for Breanne’s medical expenses where Linda had not paid the medical providers herself or from either her or Breanne’s insurance settlement from the automobile accident. In this regard, Linda filed a motion alleging that Gregory was in contempt for failing to pay her $2,194.31, which was one-half of the amount that health insurance did not cover; Gregory’s medical insurance had paid for 97.1% of Breanne’s medical bills. Gregory contends that this $4,235.65 should have been paid from the $75,000 settlement paid to Breanne by the party who caused the accident or from the proceeds of Linda’s own vehicle insurance policy for underinsured motorist coverage. Gregory also contends that the amount remaining after his health insurance paid 97.1% was not overly burdensome, and Breanne would have netted $70,764 after payment of the outstanding bills.
The divorce decree provided that Gregory would carry medical insurance on the minor children and further provides that the parties would only divide equally the childrens’ medical bills “not covered by insurance,” without designating the type of insurance. At the time of the accident, Breanne was still a minor. With regard to the insurance settlement she received, the testimony reflects that Breanne bought a $21,000 Ford Explorer for which she paid cash, loaned her mother $30,000 toward a down-payment on a home, and loaned her mother another $10,000 to buy a car. Breanne also testified to using some of the money to buy clothes and for recreational activities. There was no evidence presented that Linda had paid any medical bills, and, although she did state that she had “made arrangements” with the providers, she did not explain or clarify what this statement meant, or why the insurance settlement had not covered them. The trial court simply found that Linda had “incurred” the medical expenses of $4,388.63 for Breanne and ordered Gregory to pay one-half of this sum directly to Linda within ninety days. We agree that the trial court erred in ordering this payment to Linda in the absence of evidence that Linda had paid these expenses, and in light of the insurance settlement that was intended to cover them. Consequently, we reverse and remand for the trial court to determine whether Linda has paid any of Breanne’s medical expenses, and whether any such payments came from her funds or from the insurance settlements.
Gregory’s final argument is that the trial court erred in requiring him to pay Linda’s attorney’s fees and costs. It has consistently been the rule in Arkansas that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). However, our courts have recognized the inherent power of a court of equity to award attorney’s fees in domestic relations proceedings, and whether the trial judge should award fees and the amount thereof are matters within the discretion of the trial court. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994); Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983). A trial court’s decision as to attorney’s fees will not be disturbed on appeal absent an abuse of discretion. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).
The trial court found that Linda was entitled to an attorney’s fee of $350 for issues she prevailed on. Although we are reversing on all of the points raised in Gregory’s appeal, Gregory stipulated at trial that he had failed to provide Linda a copy of his income tax return as provided in the parties’ divorce decree, and was ordered to do so within thirty days of filing. Moreover, child support for the parties’ remaining minor child had to be modified as a result of Breanne’s attaining majority. Although the trial court did not find that Gregory was in contempt, under the circumstances of this case, we cannot say that the trial court abused its discretion in awarding a $350 attorney fee to Linda and affirm on this point.
Affirmed in part, reversed in part; reversed and remanded in part.
Neal, Vaught, and Crabtree, JJ., agree.
Stroud, C.J., and Baker, J., concur in part; dissent in part. | [
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D. Vaught, Judge.
This is an appeal from the Washington County Circuit Court in which appellant Chancey Baird was convicted of attempted first-degree murder and sentenced to thirty years’ imprisonment in the Arkansas Department of Correction and to a fine of $15,000. On appeal, appellant argues that the trial court erred by denying his motions to suppress the physical evidence recovered from the residence and the statements he gave to police following his arrest. We reverse and remand for a new trial.
On February 7, 2001, at approximately 5:30 a.m., Officer Jason Hiatt of the Elm Springs Police Department received a call requesting that he go to the hospital in Springdale regarding an assault on Jessica Gamblin. While at the hospital, Officer Hiatt heard Ms. Gamblin say the name “Chancey” in reference to the person who had assaulted her. He assumed she was referring to appellant Chancey Baird. Officer Hiatt also talked with two other police officers at the hospital who confirmed that she had identified appellant as her attacker.
Officer Hiatt then contacted Chief Kenneth Martin of the Elm Springs Police Department, who came to the hospital. Upon reviewing the comments made by Ms. Gamblin, Chief Martin agreed that she was referring to appellant as her attacker. Chief Martin, Officer Hiatt, Deputy McAffe of the Washington County Sheriffs Department, and two other officers then proceeded to appellant’s mobile home, allegedly to arrest him, to check for other victims, and to secure the scene. They arrived approximately one hour subsequent to Officer Hiatt’s original notification of the attack.
Upon arriving, Chief Martin, Officer Hiatt, and Deputy McAffe went to the front door. Officer Hiatt and Chief Martin testified that they both saw what appeared to be blood droplets on the front door facing, and a smear of blood near the door, although they disagreed as to the number of droplets of blood and whether they were wet or dry. Chief Martin stated that the officers did not know how many people had been at the house and were concerned there might be other victims.
Officer Hiatt knocked on the front door and yelled “police,” but received no response. The officers testified that the lights were on and the television was playing loudly. Chief Martin then knocked harder on the door, and the unlatched door opened slightly. Chief Martin then entered the residence and noticed appellant’s brother, Brent Baird, asleep on the couch. Officer Hiatt and Deputy McAffe followed Chief Martin into the residence. Chief Martin called out Brent Baird’s name, and he sat up to respond. After confirming that Brent was alright, Chief Martin asked Brent where his father, Buddy, was. Brent pointed to a bedroom that was located behind the officers off of the living room. There is no evidence that officers ever asked Brent if anyone at the residence had been injured.
Chief Martin then walked over to the bedroom, pushed the door open, and went in followed by Officer Hiatt and Deputy McAffe. They found Buddy Baird asleep, called out his name, and after receiving no response, awakened him by shaking his foot. Chief Martin noticed what appeared to be a blood stain on Buddy’s shirt, but Buddy then called Chief Martin by name and confirmed that he was also okay. Chief Martin asked Buddy where appellant was, to which he responded that, if appellant was there, he was probably in the back bedroom. Chief Martin then explained to Buddy that Jessica Gamblin had been hurt and that they were looking for appellant. He asked if they could check the residence and garage. Buddy told Chief Martin that he could “look where you want to.”
The three officers proceeded down a hallway to appellant’s bedroom. Along the way, they noticed a shirt on the floor that appeared to have blood stains on it. Officer Hiatt and Deputy McAffe, followed by Chief Martin, entered appellant’s bedroom where they found appellant sleeping. They awakened appellant, and then Officer Hiatt placed him under arrest, handcuffed him, took him outside the residence, and placed him in the patrol vehicle.
Chief Martin exited the residence and then went to the garage. Outside of the garage, he saw a large puddle of blood in the gravel, and a “drag mark” with blood going into the garage. Chief Martin then entered the open door to the garage, where he saw “numerous clumps of clotted blood” on the floor, as well as on the front of an automobile parked in the garage. He testified that his main purpose for entering the garage was to see if any injured persons were inside.
Officer Hiatt then returned to the Elm Springs Police Department to get a consent to search form, which was subsequently signed by Buddy Baird. The form gave officers consent to search the garage, the front of the house, appellant’s bedroom, and the bathroom and hallway in the rear of the residence. After additional investigators arrived to process the crime scene, Chief Martin determined that it would take some time to process everything, so he obtained a search warrant for the residence and garage.
After the warrant was obtained, crime scene investigators collected the evidence seen earlier by Chief Martin in addition to other evidence discovered during their search. Appellant was first questioned by Detective Rexford at the crime scene, and then again later that day he was interviewed on two occasions by law enforcement authorities.
Appellant filed a motion to suppress both the physical evidence recovered from his residence and the statements he gave to the police following his arrest. The motions were based on the theory that the entry into appellant’s home was warrantless and without exigent circumstances, and therefore illegal. The argument was that, because the entry was illegal, anything that flowed directly from the illegal entry was “fruit of the poisonous tree” and subject to suppression. The trial court denied both the motion to suppress the evidence and the motion to suppress appellant’s statements. Regarding the denial of appellant’s motion to suppress the evidence collected, the trial judge noted that a search warrant was issued, indicating that the officers had probable cause to conduct a search. He also credited Chief Martin’s testimony that he was concerned that other victims might have been at appellant’s residence, particularly after authorities noticed blood on the front door of the house in the course of an investigation of a possible murder. The trial judge found that the officers’ entry into the residence was permissible based on exigent circumstances, and that they obtained Buddy Baird’s consent before proceeding to appellant’s bedroom.
Standard of Review
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Cummings v. State, 353 Ark. 618, 631, 110 S.W.3d 272, 279 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)).
A. Exigent Circumstances
Appellant contends that the trial court erred in denying his motion to suppress all physical evidence that was obtained from his residence, arguing that three officers entered his residence with the intention of arresting him with neither a warrant nor under exigent circumstances. A warrantless entry into a private residence is presumptively unreasonable under the basic principles of the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The United States Supreme Court wrote in Payton, supra:
[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.
* * *
The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home ■— a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that“[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” [Citation omitted.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Holmes v. State, 347 Ark. 530, 537, 65 S.W.3d 860, 863-864 (2002) (quoting Payton, 455 U.S. at 585-86, 589-90). Further, the United States Supreme Court has noted that “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31 (2001). The burden is on the State to prove that the warrantless search was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). In order to justify a warrantless felony arrest inside a residence, the State must show that both probable cause and exigent circumstances exist. See Payton v. New York, supra; Mitchell v. State 295 Ark. 264, 742 S.W.2d 895 (1988).
Arkansas Rule of Criminal Procedure 14.3 (2003) sets forth the emergency searches/exigent circumstances exception to the warrant requirement, stating:
An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm; or
(b) things imminently likely to bum, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property; or
(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed; may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destmction.
The State argues that there were exigent circumstances that night that afforded them an exception to the warrant rule, namely the officers’ concern that other victims might be inside appellant’s residence. Appellant maintains that although Chief Martin testified as to his concern for additional possible victims, the officers failed to inquire about other victims once inside the residence, and left the residence once appellant had been apprehended.
Even prior to the actual arrival and entry at appellant’s home, there is evidence that the focus of the police was not directed toward other potential victims. The evidence is clear that subsequent to being called to the hospital around 5:30 a.m. to interview Ms. Gamblin, Officer Hiatt discussed the case with other officers present, called Chief Martin, and waited for him to arrive and assess the situation. Appellant points out that neither Officer Hiatt nor the other officers went directly to the Baird residence. They did not dispatch any other officers to the scene and instead waited for Chief Martin to arrive. It appears that it took approximately one hour from the time Officer Hiatt learned of the alleged attack by appellant to the time he and the other officers went to appellant’s residence. Additionally, there is no testimony that Officer Hiatt believed there were other victims.
The conflicting testimony presented regarding the scene at appellant’s house also bolsters appellant’s argument that the exigent circumstances exception was not appropriate in this case. All three officers who testified gave differing accounts regarding the bloodstains on the front door frame: (1) Chief Martin testified they were dry; (2) Officer Hiatt testified that he thought they were wet; (3) Detective Rexford did not even notice them. Detective Rexford, the crime-scene investigator who collected the evidence, testified specifically that he noticed dark stains on the porch, but that they were not unusual for that type of residence. He did not testify that the stains were bloodstains, and did not photograph them as evidence of importance to the processing of the scene. At most, the evidence showed that officers noticed a very small amount of blood upon arrival at the front door of appellant’s residence. The officers had just come from the hospital where they had seen first-hand the extent of the victim’s injuries. Even viewing the testimony regarding the blood evidence in the light most favorable to the State, what they saw was consistent with the known attack against the victim and would not necessarily give rise to a reasonable belief that someone else was in imminent danger.
Additionally, Chief Martin testified that he was never given any indication that there were other victims in addition to Ms. Gamblin. When asked why he did not procure a warrant before going to appellant’s residence, he testified that he did not need one because he had probable cause based on the victim’s statements at the hospital. Appellant argues that this testimony confirms that Chief Martin already had the idea that he had a right to enter appellant’s residence and arrest him before he arrived on the scene based on probable cause, not because of any belief that an individual was in imminent danger of death or serious bodily injury. He asserts that such reasoning is inconsistent with both Payton, supra, and Mitchell, supra, which require the State to show that both probable cause and exigent circumstances exist in order to justify a warrantless felony arrest inside a residence.
The trial judge determines the credibility of witnesses who testify at a suppression hearing, and this court defers to the trial judge’s superior position to determine credibility. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Additionally, in conducting a clear-error review on factual issues, we defer to the trial court’s resolution of conflicting testimony and its assessment of witnesses’ credibility. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002). However, based upon the totality of the circumstances standard, it was speculative, at best, for the officers to claim exigent circumstances as justification for their entry. This court has held that speculative or potential harm is not sufficient to show imminent harm and is insufficient to justify exigent circumstances. Starks v. State, 74 Ark. App. 366, 49 S.W.3d 122 (2001).
Rule 14.3(a) (2003) of the Arkansas Rules of Criminal Procedure requires an officer to have reasonable cause to believe that premises contain individuals in imminent danger of death or serious bodily harm in order to justify a warrantless entry into a residence. Although Chief Martin testified that he was looking for other possible victims at appellant’s residence, the evidence does not support the conclusion that he had reasonable cause to believe there were individuals in imminent danger of death or serious bodily harm at the residence. The police waited over an hour before proceeding to the residence. They never received information from anyone, including the victim, that there might be other potential victims at appellant’s residence. The amount of blood police officers saw upon their arrival at the residence was small in amount and would not give rise to any indication that an attack, other than the known assault against Ms. Gamblin, had recently occurred at the residence. Even upon entry into the residence, officers failed to ask either Brent or Buddy Baird if there were other potential victims. They simply verified their respective conditions and then inquired as to appellant’s location. Chief Martin’s general statements regarding his concern for other victims are insufficient to establish reasonable cause in light of all the contradictory evidence. We therefore hold that the warrantless entry into the residence cannot be sustained based on exigent circumstances.
Having concluded that the initial entry into appellant’s home was unlawful, all evidence obtained which flowed directly from the unlawful entry must be excluded under the “fruit of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471 (1963) (providing that evidence obtained by the exploitation of a primary illegality must be excluded).
B. Consent
Buddy Baird’s consent to “look where you want to” was given after the officers’ illegal entry into the home, and generally, consent to search obtained after an illegal search has begun is not valid and cannot remove the taint of the illegal search. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). While federal case law recognizes that a search preceded by a Fourth Amendment violation may still be valid if a defendant’s consent to that search was voluntary in fact under the totality of the circumstances, the government bears a heavy burden of showing that the primary taint of that violation was purged, proving a sufficient attenuation or break in the causal connection between the violation and the consent. See United States v. Reyes-Montes, 233 F. Supp. 2d 1326 (D. Kan. 2002). The factors set out in Brown v. Illinois, 42 U.S. 590 (1975)-, have been used in reviewing the totality of the circumstances: (1) the temporal proximity of the illegal entry and consent; (2) any intervening circumstances; (3) the purpose and flagrancy of any official misconduct.
Under the facts of the instant case, the consent was obtained from appellant’s father shortly after the officers’ illegal entry. They awakened appellant’s brother, who indicated his father’s location by pointing to a bedroom located off of the living room. They immediately entered appellant’s father’s bedroom and awakened him, asking about appellant’s whereabouts. There were no intervening circumstances to “break the causal connection” or eliminate the coercive effects of the unlawful entry. Regarding the purpose and flagrancy of the officers’ misconduct, the officers may have been well-intentioned, but as noted in Reyes-Montes, supra, “a warrantless entry into a house is presumptively unreasonable, and the physical entry of the house is the chief evil against which the Fourth Amendment is directed.” United States v. Reyes-Montes, 233 F. Supp. 2d at 1331.
In the present case, the State argues that because Buddy consented to the search of the residence, the search was constitutionally permissible. We cannot agree with this assessment. Buddy did not verbally consent to the search until after the illegal entry had occurred and did not sign the written consent-to-search form until after appellant had been arrested and significant evidence had been found. In Holmes v. State, supra, the supreme court affirmed this court’s reversal of the defendant’s conviction, correctly reciting the “fruit of the poisonous tree” doctrine. Consequently, based on the totality of the circumstances, we conclude that the trial court erred in denying appellant’s motions to suppress the evidence collected at appellant’s residence.
C. The Search Warrant, Appellant’s Statements, and the Garage
The State argues that appellant does not challenge the validity of the search warrant on appeal, and therefore all evidence illegally obtained prior to the issuance of the warrant would have been inevitably discovered by the warrant. We disagree. Appellant challenges the admission of all physical evidence and alleges that everything flowing from the illegal entry is tainted. This includes the warrant because the affidavit for the warrant was based entirely on appellant’s statements, and the warrant must fall if the statements were illegally obtained.
Appellant asserts that any statement made from a suspect following an unlawful arrest is “fruit of the poisonous tree” and subject to suppression. See Wong Sun v. United States, supra. Based on the facts of this case, specifically that appellant was awakened by the three officers, immediately put in restraints, and taken from his residence to the rear of the patrol car until subsequently interviewed, the statements were not obtained by means sufficiently distinguishable to be purged of the primary taint. He was continuously in custody from the moment he was awakened (approximately 6:30 a.m.) through three sets of officer interviews, which concluded at approximately 10:30 a.m. There were no intervening factors of free will sufficient to remove the taint of the illegal arrest as set forth in Wong Sun, supra. Accord ingly, we find that the trial court erred and the appellant’s statements should have been suppressed.
It follows that the affidavit for the search warrant must fall because it was based on the tainted statements of appellant. Moreover, while the victim’s statement might have been sufficient to justify a warrant, it was not included in the affidavit and cannot be used as an independent source after the fact. The first prong of the test for inevitable discovery is whether, after excising the tainted material, the affidavit is sufficient to support the issuance of the warrant. Lauderdale v. State, 82 Ark. App. 474, 120 S.W.3d 106 (2003). Obviously, it is not sufficient here where only tainted material was used.
Additionally, we disagree with the State’s contention that the evidence seized from the garage is admissible. Although there was blood that might have been visible from outside the garage, by his own testimony, Chief Martin admits that he went out to the garage after appellant had been arrested and removed from the residence. No additional information had been discovered that indicated that there might be additional victims in the garage. The garage was located next to the residence and used as a garage, and was therefore subject to the same expectation of privacy as curtilage. See Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); State v. Cashion, 260 Ark. 148, 539 S.W.2d 423 (1976). Absent exigent circumstances, valid consent, or a valid warrant, entry into the garage was also prohibited.
D. Harmless Error
The State argues harmless error based on the victim’s identification of appellant and account of the attack. See Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999) (finding that even the erroneous admission of evidence is not prejudicial and is harmless error where there is overwhelming evidence supporting the conviction). While there may be sufficient additional evidence to convict appellant, we cannot say that the admission of all the physical evidence and appellant’s confession, which were obtained as “fruit” of the unlawful entry, search, and arrest, was harmless error.
Reversed and remanded.
Stroud, C.J., and Robbins, Griffen, and Neal, JJ., agree.
Bird,J., dissents.
According to Officer Hiatt’s testimony, the shirt was the only item of evidence found inside the residence.
The dissent states that Officer Hiatt testified that they went to the residence “on or around 6:00” He actually said “it was after six in the morning, at or around six in the morning” After further questioning by the court Officer Hiatt confirmed that he was there roughly an hour after visiting with the witness at the hospital. Whether it was thirty minutes or an hour, it is undisputed that no officers were immediately dispatched.
The dissent’s reliance on Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), to support the warrantless entry in this case is misplaced. In Humphrey, the court found valid consent by the appellant’s grandmother and analyzed exigency as a secondary issue. Even so, in Humphrey, the officers heard the gunshots, had two victims down, and immediately proceeded to the residence to apprehend the shooter. The supreme court rightfully found exigent circumstances in that situation. Here, the victim identified appellant, and the police (who knew appellant and his family) waited close to an hour while assembling everyone at the hospital and then proceeded to appellant’s residence. There was no indication of anything other than a stabbing by a friend or acquaintance, and no pursuit of a fleeing shooter as in Humphrey. | [
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Bird, Judge.
In this declaratory-judgment action, ap-pellee Scottsdale Insurance Company (Scottsdale) sought a determination that a surplus-lines insurance policy it issued to appellant George Gawrieh excluded coverage for claims resulting from a shooting at his private club, appellant Georgio’s, Inc., d/b/a Ace of Clubs. Appellant Gawrieh is the president of the club and the owner of the real property on which it operates. The circuit court granted summary judgment to Scottsdale and found that the policy did not provide coverage to either appellant for these claims. The primary issues in this appeal are whether the court erred in its construction of the policy; whether Scottsdale complied with Arkansas’s insurance laws in amending the original policy to include the exclusion in question; and whether Scottsdale should be estopped to deny coverage. We believe that the court erred in construing the policy; we affirm its decision in part and reverse and remand in part.
Procedural History
In December 1995, Scottsdale issued a one-year surplus-lines liability insurance policy for $500,000 to appellant George Gawrieh. In the document at issue, entitled Commercial General Liability Coverage Part/Supplemental Declarations, the business was described as a “private club.” The original policy did not include an “assault and battery” exclusion. However, after an inspection of the club revealed that it employed bouncers, Scottsdale added such an exclusion. In March 1996, Scottsdale sent a notice to Gawrieh stating:
The inspection for the captioned has been completed and attached is a list of recommendations. Please advise our office no later than 4-16-96 that these have been completed. Please call ifyou have any questions.
Also, we will be adding [an] assault and battery exclusion to this policy due to the presene [sic] of bouncers.
The endorsement containing the assault and battery exclusion, which was mailed to appellant Gawrieh later that month, stated:
This insurance does not apply to Bodily Injury or Property Damage arising from:
A. Assault and Battery committed by any insured, any employee of any insured, or any other person, whether committed by or at the direction of any insured;
B. The failure to suppress or prevent Assault and Battery by any person in A. above; or
C. The negligent hiring, supervision or training of any employee of the insured.
Gawrieh eventually signed and returned the notice form to Scottsdale.
While the policy was in effect, on October 6,1996, a patron at the club shot and killed one person and injured several others. The injured parties and the estate of the person who was killed sued appellants for negligence in the Miller County Circuit Court. Scottsdale then filed this action for declaratory judgment, arguing that the assault and battery endorsement to the policy excluded all claims arising out of the shooting incident. Appellant Gawrieh filed a counterclaim, arguing that the purported endorsement was ambiguous and seeking a declaratory judgment that the policy covered the claims. In his answer, Gawrieh asserted that Scottsdale had previously waived its defenses to coverage by sending him a letter that stated: “Contained within your policy there is a liability deductible endorsement for which you are responsible. We have been handling this claim on your behalf and a deductible is now owed. We are requesting reimbursement from you in the amount noted on the enclosed invoice.” Included with this letter was an erroneous statement indicating that Scottsdale had already paid $21,189.37 for “loss” and $3,333.22 for “expense.” There is no dispute that this computer-generated statement was sent to Gawrieh by mistake or that Scottsdale later notified Gawrieh of the mistake.
Both sides moved for summary judgment. The court granted partial summary judgment to Scottsdale, finding that the assault and battery endorsement was a valid addition to the policy, pursuant to the requirements of Ark. Code Ann. § 23-65-311 (Repl. 2001), which applies to surplus and excess lines of insurance. The court also found that:
the portion of the Arkansas Insurance Code entitled Minimum Standards B Commercial Property and Casualty Insurance Policies, and found at ACA 23-79-301, et. seq., and more specifically ACA 23-79-307 are not applicable to this case. See Arkansas-Oklahoma Gas Company v. Lukis Stewart Forbes & Company, 306 Ark. 425, 816 S.W.2d 571 (1991).
The court found that the assault and battery exclusion was not ambiguous and that it excluded coverage of the claims. The court also stated that the policy provided coverage only to the named insured, appellant Gawrieh, but it did not obligate Scottsdale to defend Gawrieh in the underlying negligence action. The court did not.at that time decide the waiver, estoppel, and laches arguments raised by appellants.
In a motion for reconsideration, appellants argued that Scottsdale had withheld from them discovery documents indicating that it had subsequently changed its assault and battery exclusion. The court denied this motion, stating: “[T]he fact that [Scottsdale] changed the form of its policies issued thereafter does not sufficiently persuade or cause the Court to change its prior ruling ....”
Scottsdale moved for summary judgment as to the remaining waiver, estoppel, and laches issues. The court granted summary judgment to Scottsdale, stating:
The [appellants’] allegations in this regard were based upon the written request of Scottsdale that Gawrieh pay a Two Hundred Fifty Dollar ($250.00) deductible pursuant to the provisions of the deductible endorsement of the policy, which the [appellant] Gawrieh did after consulting with counsel. Mr. Gawrieh incorrectly concluded based upon said written communication that the claim in the underlying case had been settled. The communication in question is a two page computer generated letter from Dan Hyduck with Scottsdale Insurance Company to George Gawrieh dated May 11,1999 and attached to Scottsdale’s Second Motion for Summary Judgment as Exhibits “B” and “C”.
The communication in question contained an error as to the amount expended by Scottsdale in adjusting and defending the claim, which error was in part corrected by a second letter under date ofjanuary 17,2000 to George Gawrieh from Cynthia Wyatt of Scottsdale Insurance Company, said second letter being attached as Exhibit “E” to Plaintiffs Second Motion for Summary Judgment.
The Court specifically finds that the statement and/or invoice sent to Mr. Gawrieh by the [Scottsdale] regarding the Two Hundred Fifty Dollar $250.00 deductible does not estop or prevent the [Scottsdale] from asserting its defenses or denying coverage of this claim. Further, the Court finds that Mr. Gawrieh’s statements in his deposition indicated that he did not rely upon the statement to his detriment, nor did he change his position on the issue of coverage as a result of his receiving the statement. He did testify in his second deposition under date of September 21, 2000 that he thought the case was settled; but he did not do anything that materially altered his position in this or the underlying case to his detriment. Mr. Gawrieh did pay the Two Hundred Fifty Dollar ($250.00) deductible as requested, but this was an expense he would have incurred and was obligated to pay anyway by reason of Scottsdale’s expenditures in defending the case, and the terms of the deductible endorsement.
The Court finds that the Two Hundred Fifty Dollar ($250.00) deductible under the policy would have been required to be paid by Mr. Gawrieh whether the required monetary amount was a loss paid to the Claimant or expenses paid for handling the litigation. Scottsdale has continuously asserted the position that there was no coverage under the policy, and Mr. Gawrieh continuously indicated his belief that there was coverage. Scottsdale had previously and consistently indicated that it was defending and participated in the underlying case and this matter while reserving its right to deny coverage. Neither party changed their position to their detriment or otherwise.
Arguments
Appellants make the following arguments on appeal: (1) the judge erred in holding that the assault and battery exclusion of the policy was not ambiguous; (2) the judge erred in denying their motion for reconsideration; (3) the judge erred in finding that Scottsdale had properly added the exclusion to the policy; (4) the judge committed error in finding that the policy did not cover Georgio’s, Inc., d/b/a Ace of Clubs; and (5) the judge erred in finding that Scottsdale was not estopped from denying coverage. As explained below, even though the court applied the correct statute, it erred in holding that the endorsement was not ambiguous. Applying the appropriate rules of construction, we hold that the endorsement did not exclude coverage for the incident in question and that the policy did provide coverage to appellants Gawrieh and Georgio’s. Accordingly, we need not consider the estoppel argument or whether the exclusion was properly added.
Summary Judgment
In reviewing summary-judgment cases, this court determines whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Summary judgment is appropriate if different conclusions cannot be reached as to what the undisputed facts demonstrate. See Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001).
Addition of the Exclusion
Appellants contend that the court erred in its application of Arkansas law regarding the exclusion. They assert that the issue is controlled by Ark. Code Ann. § 23-79-307 (Supp. 2001), which requires the acceptance and signature of an exclusion by the insured. We disagree. This statute is part of the statutory subchapter containing minimum standards for property and casualty insurance. It states in pertinent part:
In addition to other applicable provision of the Arkansas Insurance Code, § 23-60-101 et seq., insurers and insurance policies subject to the provisions of this subchapter shall meet the following standards:
(3) Forms or endorsements issued after the policy inception date not at the request of the named insured which reduce, restrict, or modify the original policy coverage must be accepted and signed by the named insured ....
The trial court found that this statute does not apply in this case, citing Arkansas-Oklahoma Gas Corp. v. Lukis Stewart Price Forbes & Co., 306 Ark. 425, 816 S.W.2d 571 (1991), which held that the specific provisions of the surplus-lines insurance law control over the general provisions of the insurance code. Instead, he found that Ark. Code Ann. § 23-65-311 (Repl. 2001), which specifically applies to surplus-lines insurers, is controlling. We agree.
Arkansas Code Annotated section 23-65-311 does not require that the insured consent to'a material change in the policy; it simply requires that any material change in surplus-lines coverage be delivered to the insured. It provides in pertinent part:
(a) Upon placing a surplus lines coverage, the broker shall promptly issue and deliver to the insured evidence of the insurance, , consisting either of the policy as issued by the insurer or, if the policy is not then available, the surplus lines broker’s certificate. The certificate shall be executed by the broker and show the subject, coverage, conditions, and term of the insurance, the premium charged and taxes collected from the insured, and the name and address of the insurer. If the direct risk is assumed by more than one (1) insurer; the certificate shall state the name and address and proportion of the entire direct risk assumed by each such insurer.
(b) If, after the issuance and delivery of the certificate, there is any change as to the identity of the insurers, or the proportion of the direct risk assumed by the insurers as stated in the broker’s original certificate, or in any other material respect as to the insurance coverage evidenced by the certificate, the broker shall promptly issue and deliver to the insured a substitute certificate accurately showing the current status of the coverages and the insurers responsible thereunder.
(d) Any surplus lines broker who knowingly or negligently issues a false certificate of insurance, or who fails promptly to notify the insured of any material change with respect to the insurance by delivery to the insured of a substitute certificate as provided in subsection (b) of this section,upon conviction, shall be subject to the penalties provided by § 23-60-108 or to any greater applicable penalty otherwise provided by law.
Arkansas Code Annotated section 23-79-307, upon which appellants rely, is found in the statutory subchapter setting forth minimum standards for property and casualty insurance policies. Arkansas Code Annotated section 23-79-301 (Repl. 1999) sets forth the purpose of the subchapter:
The purpose of this subchapter is to provide minimum standards for commercial fines property and casualty insurance policies or contracts. These minimum standards are designed to minimize restrictions in coverage and to assure minimum standards for these commercial policies or contracts for the protection of the public. This subchapter is not intended to impede flexibility and innovation in the development of commercial property and casualty insurance policy or contract form or content.This subchapter is not intended to conflict with the provisions concerning insurance contracts in the Arkansas Insurance Code, 23-60-101 et seq., and, in particular, the provisions of § 23-60-105. This subchapter is not intended to conflict with nor apply to insurance policies and contracts of surplus line insurers operating in this state in compliance with 23-65-310.
The Reporter’s Note to this statute states that the last sentence was added by the General Assembly in 1999. The exception set forth in Ark. Code Ann. § 23-79-303(9) (Repl. 1999), which provides that this subchapter does not apply to “large commercial risks,” was also added in 1999. Even though those amendments were added to the statutes after the insurance policy in dispute was issued, they are helpful in determining the General Assembly’s intent as to the application of that subchapter to surplus-lines insurance policies. See Bourne v. Board of Trustees of the Little Rock Policeman’s Relief Pension Fund, 347 Ark. 19, 59 S.W.3d 432 (2001); Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000); American Cas. Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993).
Accordingly, we hold that the court applied the correct statute to this surplus-lines policy. However, as explained below, our construction of the exclusion leads us to conclude that coverage for the incident in question is not excluded, even if Scottsdale complied with the proper statute in adding the exclusion. Although a genuine issue of material fact may exist as to whether Scottsdale followed Ark. Code Ann. § 23-65-311(b) and properly delivered the endorsement to Mr. Gawrieh, whether it did so is immaterial to the result in this appeal. Even if the endorsement was properly delivered, it would not exclude coverage for this incident because, as explained below, it is ambiguous and must be construed in the insured’s favor. If it was not delivered .to the insured, the endorsement would have no effect and the original policy would continue to provide coverage. In either case, the result would be the same. Because the determination of the delivery question would have no effect on the outcome of this appeal, we need not remand that issue to the trial court.
Construction of the Insurance Policy
Appellants contend that the assault and battery endorsement is ambiguous and that, following the rules of construction, the court should have resolved the ambiguity in their favor. According to appellants, the exclusion can be read as excluding coverage only for assaults committed “by or at the direction of the insured” and not by those committed by patrons. We agree.
In reviewing an insurance policy, the appellate court submits to the principle that, when the terms of the policy are clear, the language in the policy controls. Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark. App. 166, 47 S.W.3d 909 (2001). The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Norris v. State Farm Fire & Cas. Co., supra. If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction; if, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, the policy will be construed liberally in favor of the insured and strictly against the insurer. Id. Whether the language of a policy 'is ambiguous is a question of law to be resolved by the court. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Elam v. First Unum Life Ins. Co., supra.
We believe that the language of the endorsement is fairly susceptible to more than one reasonable interpretation, and that it is, therefore, ambiguous. Although it can be read as excluding all assaults and batteries, including those committed by third parties, it can also be construed as applying only to assaults and batteries committed by or at the direction of the insured. Applying the rules of construction, as we must, we hold that the policy does not exclude coverage for this incident.
Coverage of the Club
Appellants further contend that the court erred in finding that the insurance policy does not provide coverage for the club. Again, we agree. Although only appellant Gawrieh is listed as the named insured, the policy describes the business as a private club. It is, therefore, reasonable to construe the policy as also providing coverage for the private club operated by Gawrieh, the named insured. When policy language is susceptible to more than one reasonable interpretation, it is ambiguous and will be liberally construed in favor of the insured and strictly against the insurer. Norris v. State Farm Fire & Cas. Co., supra. Therefore, we hold that the protection offered by the policy also extends to appellant Georgio’s.
Subsequent Changes to Similar Policies
? contend, without citation to authority, that the court erred in denying their motion for reconsideration because Scottsdale withheld information about subsequent changes it made in the language of assault and battery exclusions in similar policies. According to appellants, such changes are tacit admissions that the exclusion in dispute is ambiguous. We need not, however, address this question. An assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent, without further research, that the assignment of error is well taken. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993).
Accordingly, appellants Gawrieh and Georgio’s are entitled to a declaratory judgment holding that the policy provided cov erage for these claims. We affirm in part and reverse and remand in part for further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Stroud, C.J., and Hart, Robbins, and Baker, JJ., agree.
Gladwin, Griffen, Vaught, and Crabtree, JJ., dissent. | [
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Neal, Judge.
This is a will-contest case involving the disposition of the estate of Hurley Nash, who died on January 13, 2000. A holographic will that Mr. Nash wrote in 1994 was admitted to probate. This will, however, lacked a residuary clause; this lawsuit is between several of Mr. Nash’s intestate heirs and some of the named beneficiaries. Appellants Kathleen Metzgar, Sue Yow, Betty Sturch, Joe Fleece, and the Estate of William D. Fleece are intestate heirs of Mr. Nash. Appellees Charles Rodgers, Marty Krutchen, Martha Williams, Roy Seaton, Nora Seaton, and Chuck Smith are beneficiaries of the will. Appellant Virginia Williams and appellee Smith are named beneficiaries of the will as well as intestate heirs of Mr. Nash. Mr. Nash’s will provided as follows for distribution of the assets involved in this appeal:
CD
1st Nat’l BK West Mphs to Marty Krachten — she knows how to help her get the form in
BK of West Memphis —• Chas., David
UPB2 (Mphs) — 3/4 to Evely Scruggs — “some” to help with son Jimmy
1/4 to Martha Peden (nurse)
1st Tenn Bk (Mphs) —> for any inheritance taxes on farms
Merrill Lynch IRA & Mutual Fund to
1/2 cousin Va Williams
1/4 to Martha Williams
1/4 Roy & Nora Seaton
Farm: 1/3 to my cousin Chuck Smith
1/3 to Marty Kruchten (cousin)
1/3 to David Rodgers with 1st option to buy if Chuck and Marty want to sell
On May 20, 2002, the trial court issued a letter opinion, stating:
The will provides that CD, “First National Bank of West Memphis” will go to Marty Kruchten.The proof shows that at the time of making the will, in 1994, and for some ten (10) years prior thereto, there had been two CDs at that bank.The proof also shows that in October of 1995, these same CDs were converted to CDs in the Union Planters Bank, which had purchased the First National Bank ofWest Memphis.The proof shows that these CDs had been “rolled over” many times, but had remained in existence since they were originally opened in February of 1984. As the Court views it, the only change in these CDs from the time of the will in 1994, to the testator’s death in 2000, was the result of the bank’s change in ownership. This is viewed by the Court as one in form, not substance. The fact they were “rolled over” many times is likewise viewed as form only.
The most difficult decision is whether the Court must conclude that because there were, and are two CDs, and the will only has a heading CD, this specific bequest must fail for being too indefinite. See Cook v. Worthington, 116 Ark. 328, 173 S.W 395 (1915). After all, the court may not speculate as to what the testator meant, or to re-write the will. Cook, supra. Moreover, where the will speaks in the singular, the beneficiary is not entitled to all accounts at the named institution. Basinger v. Bridges, 292 Ark. 396, 730 S.W.2d 486 (1987). (The Court holding there “this account” was “unambiguously singular”).
But in construing this will, it seems to the Court that the CD used in the will was a heading, not an indication of the singular. (See Black’s Law Dictionary: Singular: In grammar, the singular is used to express only one. In law, the singular frequently include the plural.) The testator was obviously cryptic and truncated in his writings and habits. He did not say “a CD”, or “the CD”.Yet, he obviously was aware he had more than one CD at the time he was writing the will. And while the Court may not speculate as to the testator’s intent, the Court may consider what the testator must have known. In re Ritter’s Estate, 239 Iowa 788, 32 W.W.2d [sic] 666,2 A.L.R.2d 1301 (). It seems likely the testator used CD to distinguish it from other accounts. As the Cook v. Worthington, supra, Court points out, in quoting with approval from Jarman on Wills, a wide latitude must be given to testators, in dealing with the intent:
“The most unbounded indulgence has been shown to the ignorance, unskillfulness, and negligence of testators.”
The Court concludes, and holds, that the two CD’s at Union Planters Bank, numbered 16450 and 16451 were specifically bequeathed to Marty Krutchen.
The court also found that the three First Tennessee Bank CDs were part of the intestate estate because there was no evidence to indicate whether they were in existence at the time the will was executed. It explained:
CD-First Tennessee Bank
The will provides “First Tennessee Bank (Memphis) — -for any inheritance taxes on farms.” The proof shows that tracing back to the time of making the will in April of 1994 is not possible, due to the bank having no records, and the only record of the estate is a sheet that, for convenience, has been marked 2-5. But really, the Court has no firm knowledge of what the deceased owned at time of making the will, as to what CD, or CDs, the deceased had at First Tennessee Bank. Page 2-5 is undated, and may be totally unrelated to the April 1994 will, terms of date. It may be much sooner or later, so far as the Court can determine. Although the will speaks at time of death, in the effort to determine intent, the Court will look to the date of execution of the will. Webb v. Webb, 111 Ark. 54, 163 S.W. 1167 (1914):
“... the judges submit to be bound by precedents and authorities in point, and endeavor, as we have seen, to collect the intention upon grounds of judicial nature, as distinguished from arbitrary occasional conjecture.”
The deceased may have had one or more CDs with this institution at the time of the will, and the amount of them may have been small or large. It really does not seem likely that the testator intended to include after acquired property in his bequest. As noted, he updated and changed his will many times over the years, and it is unlikely, he would have included after acquired assets under the heading “CD’’.The Court is aware of the holding in Brock v. Turner, 147 Ark. 421, 2276 S.W.597 (1921), that after acquired property does pass under a will, where the intent so indicates.The dispositive words there were “all my personal property and real estate,...” No such language is used in the will here.
The court made the following findings regarding the Merrill Lynch IRA and the Nuveen fund:
Merrill Lynch IRA and Mutual Fund
The will provides — “Merrill Lynch IRA and Mutual Fund to cousin Virginia Wilhams (1/2), (1/4) to Martha Williams, 1/4 Roy and Nora Seaton.” The proof shows that deceased purchased the Nuveen Municipal Advantage on January 18,1990, and that this is a Mutual Fund.The proof also shows that the Merrill Lynch IRA was cashed in by the deceased on October 29,1999.
It seems to the Court that the Nuveen Municipal Advantage Fund has been shown to be the mutual fund set out in the will, having been acquired in 1990.The Merrill Lynch IRA was cashed out by the deceased in 1999, and thus was adeemed by the deceased. SU2
The Court holds that the Nuveen Fund will be taken 1/2 by Ms.Virginia Williams, 1 /4 by Ms. Martha Williams, and 1/4 by Roy and Nora Seaton.
An order incorporating these findings was entered on June 19, 2002.
On July 19, 2002, appellants Metzgar, Yow, Sturch, Fleece, and Estate of Fleece filed a notice of appeal from the June 19, 2002, decision. Their points on appeal attacked the disposition of the two CDs at Union Planters Bank that were bequeathed to appellee Krutchen and the disposition of the Nuveen fund awarded to appellant Virginia Williams, appellee Martha Williams, appellee Roy Seaton, and appellee Nora Seaton. Appellants Metzgar, Yow, Sturch, Fleece, and Estate of Fleece filed the record with the supreme court clerk on October 10, 2002. Their first brief was filed with this court on December 23, 2002.
On June 28, 2002, appellee Smith moved for reconsideration of the court’s June 19, 2002, order on the ground of newly discovered evidence. In his motion, he stated that his attorneys had been advised in April 2002 by Jeanne Griffis, the manager of legal records for First Tennessee Bank, that she had conducted a diligent search for the CDs that were in existence in 1994, that all records prior to 1996 had been disposed of, and that First Tennessee Bank would be unable to authenticate any records prior to 1996. Piowever, Smith stated, after the court’s June 19, 2002, order was entered, he was able to persuade another officer for First Tennessee Bank, Paul Fehrman, to conduct another search of the bank’s records during which he was able to find copies of the CDs that Mr. Nash owned in April 1994.
Appellee Smith filed an affidavit by Mr. Fehrman, who stated:
1. I am a branch manager for First Tennessee Bank, Memphis, Tennessee. I have been employed by First Tennessee Bank for eight years.
2. As an officer of First Tennessee Bank, I am familiar with the Bank’s records and I do certify that the Exhibits attached to this Affidavit are part of First Tennessee Bank’s business records which are kept in the ordinary course of the Bank’s business. I further certify that the Exhibits attached hereto are true and accurate copies of the originals of these documents attached.
3. Attached hereto as Exhibit “1” is a copy of a Certificate of deposit receipt number 460146, that was issued by First Tennessee Bank to C. Hurley Nash, Jr. on 01-10-92, in the amount of 50,000.00, bearing interest at the rate of 6% per annum. Said certificate ofDeposit was issued for a term of sixty months, with a maturity date of 01-10-97. At maturity, the proceeds from the above numbered Certificate ofDeposit were used by Mr. C. Hurley Nash, Jr., to purchase Certificate ofDeposit number 833290 in the amount of $50,000.00, dated January 10, 1997.
4. Attached hereto as Exhibit “2” is a copy of a Certificate of Deposit receipt number 460123, that was issued by First Tennessee Bank to C. Hurley Nash, Jr., on 12-21-91, in the amount of $50,000.00, bearing interest rate of 6.4% per annum. Said Certificate of Deposit was issued for a term of sixty months, with a maturity date of 12-21-96. At maturity, the proceeds from the above numbered Certificate ofDeposit were used by Mr. C. Hurley Nash, Jr., to purchase Certificate ofDeposit number 12794438 in the amount of $50,000.00, dated December 21, 1996.
5. Attached hereto as Exhibit “3” is a copy of a Certificate of Deposit receipt number 497891, that was issued by First Tennessee Bank to C. Hurley Nash, Jr., on 12-30-91, in the amount of $10,000.00, bearing interest at the rate of 6% per annum. Said Certificate ofDeposit was issued for a term of sixty months, with a maturity date of 12-30-96. At maturity, the proceeds from the above numbered Certificate ofDeposit were used by Mr. C. Hurley Nash, Jr., to purchase Certificate ofDeposit number 833277 in the amount of $10,000.00, dated December 30, 1996.
6. Attached hereto as Exhibit “4” is a copy of the form 1099-NT, Federal Tax reporting document on interest earned by C. Hurley Nash, Jr., for the tax year 1994, which shows that the full face amounts of interest were paid on the three above described Certificates of Deposit for the entire tax year of 1994.
The court granted this motion and took additional evidence. Paul Fehrman’s deposition was taken on August 30, 2002. In its letter opinion dated October 23, 2002, the court explained its decision:
The issue presented is whether three certificates of deposit owned by deceased, at the First Tennessee Bank, should pass under the will, or as intestate property.The question turns on whether the funds were there when the will was prepared, and continued to time of death.
The proof offered is the testimony of the financial center manager of the bank issuing the certificates, and seven exhibits sponsored by this witness.The exhibits offered invoke A.R.E. 803(6) and 901.
In arriving at the decision, the Court consulted the authorities cited, as well as other research. Probably the outer limit of business records admissibility is the case of Wildwood Contractors v. Thompson-Halloway Real Estate, 17 Ark. App. 169, 705 S.W.2d 897 (1986). There, the Court upholds records prepared by another party (the insurance company), sponsored by an agency of the company (the appellee/plaintiff), concerning an audit prepared by someone at the insurance company, the audit being based upon information obtained from someone employed by another party (the appellant/defendant).As the Court there noted, there were “several close questions.” But the audit was admitted, and the trial court was affirmed.
But surely a close second for outer limit of admissibility, is Beard v. Ford Motor Credit, 41 Ark.App. 174, 850 S.W.2d 23 (1993).There, a statement from a third party as to its business was admitted, despite the only sponsor being an employee of the appellee, who testified “he is not familiar with this particular auction company.” Yet the statement from that third party company was admitted, and it was upheld on appeal.
Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (1979), shows that the sponsor does not have to be an employee of the business, to testify both as to the contents of the records, and how those records applied to a particular person. Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994) teaches that the phrase “other qualified witness” is to be given a broad interpretation. Mitchell v. State, 309 Ark. 151, 828 S.W.2d 351 (1992) seems to say even an employee unfamiliar with the particular entries, can still be a sponsor of the records, if shown he is familiar with the business and its record keeping practices.
Columbia Mutual Insurance Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995), shows that in addition to the requirement of proving admissibility under A.R.E. 803(6), you must also establish authenticity under A.R.E. 901. There, the Court ruled that a form type policy must be shown to be, by the sponsoring witness, the exact insurance policy issued to an insured, and the trial court was affirmed in denying its admission, even though the reason given was a lack of knowledge by the sponsor, which was an erroneous reason. The lesson here is that even though a record is admissible under 803(6), it still must pass muster under 901 .To the Court, there does not seem to be an authenticity problem here, as was present in Patterson. There, the witness could not definitely state the proffered form policy contained the exact language as the insured’s policy. Here, it seems obvious to the Court that the original certificates purchased by the deceased prior to his writing of the will, continued until death, although they were renewed at maturity, by purchase of renewal certificates.
The crux of the inquiry is whether the records are “worthy of belief” — ■ Wilburn, supra — or, put another way, are they trustworthy? Here, it seems to the Court the documents are shown to be trustworthy. The sponsor is a manager at the bank, having been employed there since 1994. The records show they were prepared in conformity with the requisite of 803(6), and authentic within the meaning of 901. The seven prong test set out in several of the cases, appear to the Court to be satisfied.
It seems the witness was familiar with the workings of the bank, and how the records were kept, and how they were generated. The proof shows all three certificates were initially taken out prior to the will, existed at the time of execution, and at the time of death.
The Court holds the certificates pass under the will.
On November 19, 2002, the court entered an order disposing of the property as expressed in its letter opinion. On November 20, 2002, appellants Williams, Metzgar, Yow, Sturch, Fleece, and Estate of Fleece moved to amend the November 19, 2002, decision on the ground that Mr. Fehrman lacked personal knowledge of the matter, and that the exhibits were inadmissible for lack of authentication and for failure to meet the requirements for an exception to the hearsay rule.
On December 18, 2002, the trial court entered an order finding:
[T]he testimony of Paul Fehrman together with the exhibits offered by this witness reveal that the three First Tennessee certificates of deposit that existed in the name of Hurley Nash prior to the execution of his will in 1994 were used to acquire the three First Tennessee certificates of deposit that were in existence at the time of his death.
That the Court’s letter opinion dated October 23, 2002, is hereby amended to include this specific finding but otherwise the Joint Motion ofVirginia 'Williams, Kathleen Metzgar, Sue Yow, Betty Sturch,Joe Fleece, and the Estate ofWilliam Fleece to alter or amend order entered herein on November 19,2002, is denied.
On December 31, 2002, appellant Williams filed a notice of appeal from the court’s November 19 and December 18, 2002, orders. Onjanuary 3, 2003, appellants Metzgar, et ah, filed another notice of appeal to include the November 19 and the December 18, 2002, orders.
In addition to a procedural issue (whether the court erred in granting the motion to reconsider), the rights to three specific legacies are at issue in this appeal: (1) two $100,000 CDs at Union Planters Bank (formerly First National Bank of West Memphis); (2) three CDs from First Tennessee Bank in the sums of $10,000, $50,000, and $50,000; (3) 1,400 shares of Nuveen Municipal Advantage Fund. All of the appellants dispute the disposition of the First Tennessee Bank CDs. Only appellants Metzgar, Yow, Sturch, Fleece, and Estate of Fleece dispute the disposition of the Union Planters Bank CDs and the Nuveen fund.
Probate cases are reviewed de novo on appeal, and we will not reverse unless the findings of the probate court are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).
Union Planters Bank CDs
At the time of his death, Mr. Nash owned two $100,000 CDs with Union Planters Bank. Appellants Metzgar, et al., argue that the trial court erred in finding that two $100,000 CDs, numbers 16450 and 16451, at Union Planters Bank, were specifically bequeathed to appellee Krutchen in the April 1994 will. Both certificates were dated October 27, 1995, and were originally issued by First National Bank of West Memphis, Arkansas, which was subsequently acquired by Union Planters Bank. Certificate of Deposit No. 16450 originated from First National Bank CD No. 1051 dated February 1, 1984, in the sum of$98,391.75. Certificate of Deposit No. 16451 originated from First National Bank CD No. 1052 dated February 1, 1984, in the sum of $89,040.62.
Appellants point out that the evidence reveals that there were two First National CDs in existence in April 1994 in the amounts of $98,391 and $89,040.62. They argue that there is no evidence of the source of the additional funds in the amounts of $1,609 and $10,959.38, respectively, that were obviously added to the original certificates to equal the $100,000 amounts in the CDs that Mr. Nash owned at his death. According to appellants, these two CDs cannot be traced to the CDs identified in the will.
The trial court’s finding of fact on this issue is not clearly erroneous. In fact, the evidence clearly demonstrates that the original CDs’ interest was reinvested or rolled over through the years. Martha Hunt, an assistant vice president of financial services at Union Planters Bank, who has been affiliated with the bank for about twenty-five years, testified that Union Planters Bank acquired First National Bank of West Memphis in 1995 or 1996. She testified that she had researched the CDs that Mr. Nash had at the bank and stated that the two $100,000 CDs that were in existence at the time of his death originated at First National Bank of West Memphis in 1984 and remained there until they were rolled over in October 1995 when First National Bank was acquired by Union Planters Bank. She testified that First National Bank CD No. 1051 became CD No. 16450 and that CD No. 1052 became CD No. 16451.
Appellants also argue that the will did not designate which CD Mr. Nash intended for Ms. Krutchen to have. They argue that, because the will only designates “CD” in the singular sense, it was improper for the trial court to speculate on Mr. Nash’s intent or to rewrite his will to achieve what it believed he may have intended. Appellants contend that, because there were two CDs of different denominations in existence at the time of the execution of the April 1994 will and the will did not state which CD the beneficiary was to receive, the bequest must fail.
In the interpretation of wills, the paramount principle is that the intent of the testator governs. In re Estate of Harp, 316 Ark. 761, 875 S.W.2d 490 (1994); Carpenter v. Miller, 71 Ark. App. 5, 26 S.W.3d 135 (2000). The testator’s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will are ambiguous. Id. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Id. Although the use of extrinsic evidence is appropriate when the will expresses an intent, it is inappropriate when the instrument expresses no intent. David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984). Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt. Id.
The apparent meaning of particular words, phrases or provisions in a will should be harmonized, if possible, to such scheme, plan, or dominant purpose that appears to have been the intention of the testator. Bradshaw v. Pennington, 225 Ark. 410, 283 S.W.2d 351 (1955). When the words of one part of a will are capable of a two-fold construction, the construction that is most consistent with the intention of the testator, as ascertained from other portions of the will, should be adopted. Cross v. Manning, 211 Ark. 803, 202 S.W.2d 584 (1947).
There is also a strong presumption against partial intestacy, and a will is to be interpreted so as to avoid it unless the language of the will compels a different result. Rufty v. Brantly, 204 Ark. 32, 161 S.W.2d 11 (1942). The presumption against partial intestacy, though not controlling, must always be taken into account when the language employed in a will is so ambiguous as to require construction. Brock v. Turner, 147 Ark. 421, 227 S.W. 597 (1921). However, the rule against partial intestacy is not used unless there is some ambiguity. Chlanda v. Estate of Fuller, 326 Ark. 551, 932 S.W.2d 760 (1996).
In Basinger v. Bridges, 292 Ark. 396, 730 S.W.2d 486 (1987), the will in question provided in part: “I give, devise and bequeath to my niece, Mary Katherine Basinger of Route 1 Box 185, Huntington, Arkansas, my savings at First Federal Savings and Loan Association in Van Burén, Arkansas. Her name has been placed on this account.” The decedent, however, died possessed of three savings accounts at that institution, and only one of them listed the appellant as a payable-on-death beneficiary. The trial court granted the beneficiary’s claim to the account that listed her name but denied her claim to the other accounts. The supreme court agreed, stating that the use of the term “this account” in the will was “unambiguously singular.” Id. at 396-97, 730 S.W.2d at 487. The court concluded by noting that, when the language of the testatrix is unambiguous and leaves no doubt as to her intent, it would not look beyond that language in construing the will.
We hold that the trial court’s construction of the will is reasonable. In this case, we are presented with a situation that is distinguishable from the facts in Baysinger v. Bridges, supra. In his will, Mr. Nash did not limit his bequest to a single account. The term “CD” is obviously a heading under which Mr. Nash listed the banks at which he had CDs and the people he wanted to receive them. He obviously knew that he had more than one CD. Accordingly, we hold that the trial court’s findings regarding the Union Planters Bank CDs are not clearly erroneous.
The Nuveen Fund
Appellants Metzgar, et al, also contend that the trial court erred in finding that the Nuveen fund should be divided among appellant Virginia Williams, appellee Martha Williams, appellee Roy Seaton, and appellee Nora Seaton, as provided in the will. They point out that there was testimony that the Merrill Lynch IRA fund was closed in October 1999 and argue that an ademption occurred at that time. Appellants also argue that the court’s finding that the Nuveen fund is a mutual fund is clearly erroneous and assert that it is a stock fund. Further, they argue that, even if the trial court properly found that the Nuveen fund was a mutual fund, there was no evidence to suggest that it was the mutual fund that the decedent bequeathed in his April 1994 will. They argue that, although the Nuveen fund was acquired by Mr. Nash in 1990, a municipal trust fund, which he acquired in 1983, was also in existence at the time of the drafting of the 1994 will and at the time of Mr. Nash’s death. A specific legacy is the bequest of a particular thing, as distinguished from all others of the same or similar kind, and must be satisfied only by the delivery of the particular thing. Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982). The rule is universal that, in order to make a specific legacy effective, the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator that has been specifically bequeathed by will is the familiar and almost typical form of ademption. Id.
The trial court’s finding of fact that the Nuveen fund was the mutual fund mentioned in the will is not clearly erroneous. Metzgar Exhibit 9, a copy of a certificate for 1,400 shares of the Nuveen fund, was dated January 18, 1990. William Ayers, the administrator, testified that that certificate was in effect at the time of Mr. Nash’s death. In his view, the Nuveen fund appeared to be akin to a mutual fund because Mr. Nash received a monthly check that had shares that were valued each month on the check stub in different amounts. Mr. Ayers testified that he found evidence demonstrating that Mr. Nash had closed his Merrill Lynch IRA account in October 1999. However, he possessed the original of a letter to Mr. Nash from Merrill Lynch Investment Company dated July 20, 1998, that he found among Mr. Nash’s papers. This letter provided in part: “Nuveen Municipal Advantage Fund is a closed end mutual fund that is traded on the exchange. The ticker symbol is NMA and the current price as of today’s date is $16.1875. The next dividend payment is 8-3-98. This also pays a monthly dividend.”
In our view, this letter supports the trial court’s finding that the Nuveen fund was the Merrill Lynch mutual fund bequeathed by the will. We also affirm on this issue.
Newly Discovered Evidence and Its Admissibility
Appellants Metzgar, et al, further argue that the trial court abused its discretion in granting a new trial to appellee Smith on the distribution of the First Tennessee Bank CDs on the basis of newly discovered evidence. Noting that the decedent died on January 13, 2000, and that the first order addressing the CDs’ ownership was entered on June 19, 2002, they argue that appellee Smith could have discovered these documents with reasonable diligence. Appellant Williams makes a similar argument.
A new trial may be sought on the basis of newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at trial. Ark. R. Civ. P. 59(a)(7). A new trial based on newly discovered evidence is not a favored remedy, and whether to grant a new-trial motion on such a ground is within the sound discretion of the trial court. Virginia Ins. Reciprocal v. Vogel, 73 Ark. App. 292, 43 S.W.3d 181 (2001). On appeal from the grant of a new trial, the appellate court will affirm unless there has been a manifest abuse of discretion. Id. A manifest abuse of discretion in granting a new trial means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id. Further, the burden is on the movant to show that he could not with reasonable diligence have discovered and produced the evidence at the time of the trial, that the evidence is not merely impeaching or cumulative, and that the testimony would have changed the result of the trial. Id. A stronger showing of abuse of discretion is necessary when a new trial has been granted, on the theory that the beneficiary of the verdict that was set aside will have another opportunity to prevail and has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Id.; David Newbern and John Watkins, Arkansas Civil Practice & Procedure § 27-1 (3d ed. 2002).
We cannot say that the trial court manifestly abused its discretion in granting the motion for reconsideration or that appellee Smith was not reasonably diligent in relying upon the statements of Jeanne Griffis regarding the unavailability of the records at First Tennessee Bank. In her affidavit, Ms. Griffis stated that she was the custodian of records for First Tennessee Bank, that all records prior to 1996 had been disposed of, and that she could not authenticate any records prior to that time. Given Ms. Griffis’s position at the bank, appellee Smith’s reliance upon her statements was justifiable. However, his contact with Paul Fehrman, of First Tennessee Bank, after the June 19, 2002, order was entered proved that Ms. Griffis had been mistaken. We cannot say that the trial court acted thoughtlessly and without consideration in granting this motion after it had reviewed the affidavits of Ms. Griffis and Mr. Fehrman and heard the arguments of counsel, and we affirm the trial court’s decision on this issue.
Appellants also contend that the court erred in admitting the First Tennessee Bank documents into evidence. They assert that appellees failed to establish their admissibility as exceptions to the hearsay rule as business records under Ark. R. Evid. 803(6). The admission of evidence is left to the sound discretion of the trial court. Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). On appeal, the trial court’s ruling will not be reversed absent a manifest abuse of discretion. Id.
Rule 803 of the Arkansas Rules of Evidence provides that certain statements are not excluded by the hearsay rule, even though the declarant is available as a witness. Subsection (6) provides that the following is not excluded from evidence:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
“This exception to the hearsay rule is broadly worded to liberalize old rules and permit the records of most business activity to be admissible into evidence provided certain specified conditions are met.” Wilson Howe, Arkansas Rules of Evidence 229 (2d ed. 1995 and Supp. 1997). However, the rule does not require that the records be authenticated by the record custodian; provided he has sufficient familiarity with the records, another qualified witness will do. Id. The 1997 supplement to this treatise notes at page thirty that the rule has been further liberalized in recent years: “Actual testimony of the custodian of the records is no longer required; the proper foundation for admission of such records may now be laid by introduction of an affidavit of such person stating the necessary foundational items.” See Ark. Code Ann. § 16-46-108 (Repl. 1999).
A trial court has wide discretion to determine whether a business record lacks trustworthiness, and we will not' reverse absent an abuse of that discretion. Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986). It is the fact that regularly kept business records are relied upon for business decisions that makes them trustworthy enough to be admissible as an exception to the hearsay rule. Id. The sponsor witness need not have actual knowledge of the actual creation of the document itself; such personal knowledge of its creation goes to the weight rather than the admissibility of the evidence. Id. The length of time that a witness has been employed by a business and his knowledge of how the business records are maintained are relevant to a witness’s qualification under Rule 803(6). Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992).
Appellees easily satisfied the requirements of Rule 803(6) and proved that the First Tennessee Bank’s records were admissible as an exception to the hearsay rule. Through Mr. Fehrman’s testimony in his deposition, copies of the three CDs owned by Mr. Nash in April 1994 were introduced, as were copies of the three CDs Mr. Nash owned at the time of his death. These records show the date each certificate was issued, the amount, and the maturity date. When the documents are compared, it is apparent that the CDs that Mr. Nash owned in 1994 were rolled over into the three CDs that he owned at his death. The maturity dates on the earlier certificates coincide with the issue dates of the later certificates. The fact that the cashing-in dates of the earlier certificates and the issuing dates of the later ones vary by a few days was explained by Mr. Fehrman, who testified that the bank’s policy is to give CD customers seven days after the maturity date to come into the bank and purchase a new CD, in which case the CD would be back-dated to the maturity date of the earlier certificate so that the customer would not lose any interest.
The facts that Mr. Fehrman is not the custodian of the records, had no personal knowledge of their preparation, and was not employed at the bank when these documents were prepared do not prevent the admission of these records into evidence. The rule does not require that the sponsoring witness have knowledge of the creation of the document; his personal knowledge regarding the preparation of the business record goes to the weight, rather than the admissibility, of the evidence. Mr. Fehrman testified that he has been employed by the bank since October 1994 and is familiar with the bank’s normal business operations and its record-keeping procedures. Mr. Fehrman was an “other qualified witness” within the meaning of Rule 803(6).
Additionally, appellants argue that appellees failed to authenticate these documents as required by Ark. R. Evid. 901, which requires a party offering evidence to establish by a competent witness that their content is worthy of belief — that they are what they are claimed to be. The requirement of authenticity is separate from the requirement that a hearsay document must satisfy an applicable hearsay exception for admissibility. Columbia Mut. Ins, Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995).
We also believe that Mr. Fehrman adequately authenticated the records under Rule 901. He repeatedly testified that the copies to be introduced were true and accurate copies of the records that they depicted. Accordingly, we hold that the trial court did not abuse its discretion in admitting these documents into evidence.
Appellants also argue that the trial court erred in concluding that the First Tennessee Bank CDs passed under the 1994 holographic will. They contend that it was improper for the trial court to construe the will as providing for three CDs because it designates “CD” in the singular rather than in the plural. We disagree and hold that the trial court properly construed the will as providing for more than one CD at First Tennessee Bank. The trial court believed that the singular term “CD” was simply a heading used by Mr. Nash in his will. As with the CDs discussed above, the trial court’s construction of this part of the will is reasonable. Mr. Nash, in listing property at four banks under a heading of “CD,” obviously knew that he owned more than one CD. He apparently used the term “CD” as a heading to refer to his certificates of deposit and to distinguish them from his other types of assets, such as “farm” and “Merrill Lynch IRA & Mutual Fund.” None of the bequests under the heading “CD” referred to the actual number of CDs or their denominations held at those banks; they were simply identified by the bank issuing them. We affirm the trial court’s decision on this issue.
Appellants further argue that the three First Tennessee Bank CDs that Mr. Nash owned at the time of his death were not proven to be the same CDs that were mentioned in his will. We disagree. Mr. Fehrman’s testimony clearly demonstrated that they were the same. As with the other tracing issues, this is a finding of fact that is not clearly erroneous.
Therefore, we affirm the trial court’s decision regarding the disposition of the First Tennessee Bank CDs.
Affirmed.
Stroud, C.J., agrees.
Roaf, J., concurs.
Appellees Rodgers and Smith argue that they were reasonably diligent in relying on Ms. Griffis’s affidavit because she was subpoenaed to produce all documents pertaining to Mr. Nash’s CDs from 1993 through the present.As a supplemental addendum to his brief, appellee Rodgers attached a copy of this subpoena. In their reply brief, appellants Metzgar, et ah, point out that this subpoena is not a part of the record on appeal and that it was issued only by appellant Rodgers, who did not move for reconsideration. In their reply brief, they argue that appellee Smith cannot rely on the issuance of the subpoena by appellee Rodgers to support his assertion of reasonable diligence. Because this argument was first raised in a reply brief, we need not consider it. Helena/W Helena Schs. v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002). In any event, the trial court stated, in the order granting the motion for reconsideration, that it did not consider “any argument, pleadings or other matters presented by” appellee Rodgers, nor need we do so. | [
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BatteE, J.
At the October, 1904, term of the Ouachita Circuit Court the grand jury returned into court an indictment against F. P. Adams, charging him with incest committed by having illicit intercourse with his niece, she being an unmarried woman and he a married man; and at the October, 1905, term of that court he was tried upon a plea of not guilty, found guilty as charged in the indictment, and his punishment was assessed at three years imprisonment in the penitentiary. He appealed to. this court.
In the trial of appellant for the offense charged against him, evidence was adduced by the State, over the objections of the appellant, to prove illicit relations between him and the niece mentioned in the indictment, which occurred more than three years before the finding of the indictment. The evidence tended to prove that these illicit relations, constituting incest, commenced six or seven years before the finding of the indictment, and continued to the time when the act for which he was indicted was committed. This evidence, although it discloses other acts of incest with the same niece, the indictment for which is barred by the statute of limitations, is admissible for the purpose of showing the probability of the commission of the offense charged, and sustains the evidence of such offense. Commonwealth v. Bell, 166 Pa. St. 405.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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McCulloch, J.
Appellee, N. T. Jenkins, presented to appellant, P. G. Jenkins, as administrator of the estate of P. N. . Vaugine, deceased, for allowance a claim of $1,168.33 against said estate.
The administrator made the following indorsement upon the claim:
“Seven hundred and eighty-eight dollars and thirty-three cents of this claim is allowed as a fourth-class claim, which should be credited on an indebtedness due estate by N. T. Jenkins. The balance of the claim is refused.
“May 11, 1900.
“P. G. Jenkins, Administrator.”
Appellee thereupon filed his claim, with said indorsement thereon, in the Probate Court of Jefferson County, and the same was by said court duly allowed in the sum of $788.33 as a claim against said estate, and classed on the fourth-class.
Subsequently the administrator appeared, and took an appeal to the circuit court from said judgment of allowance, and on a trial de novo in the circuit court the claim was again allowed, and the administrator appealed to this court.
It is not denied that the estate of Vaugine is indebted to appellee in said sum of $788.33, but appellant set up, by way of defense, that appellee was justly indebted to said decedent in the sum of $1,746.93 on open account, and that appellee’s claim should be credited on that indebtedness, and should not be allowed as a claim against the estate. He introduced testimony, tending to show that appellee was indebted to said decedent in said sum.
The circuit court decided that neither that court on appeal, nor the probate court, had jurisdiction to adjudicate the disputed setoff pleaded by the administrator against the claim of appellee; that the addition by the administrator of the words “which should be credited on an indebtedness due the estate by N. T. Jenkins” to his .indorsement allowing the claim of appellee was mere surplusage, and constituted no contract between the parties that the amount of said allowance should be so credited; and that, under the law and evidence in the case, appellee was entitled to a judgment allowing his said claim.
The correctness of this ruling of the circuit court is challenged by this appeal.
Subsequent to the rendition of this judgment by the circuit court and the appeal to this court, the administrator brought another suit in the circuit court of Jefferson County against the appellee herein to recover the amount of the alleged indebtedness of $1,746.93 which he had attempted to assert by way of setoff in the other suit, and the defendant (appellee herein) pleaded (1) that he had never been indebted to said decedent; (2) that he had paid all his indebtedness to decedent during the lifetime of the latter, and (3) that the alleged indebtedness was barred by the statute of limitation. That cause was tried by the court, sitting as a jury, and the court, after hearing the evidence, found that the defendant (appellee herein) had paid all his indebtedness to ■said decedent during the lifetime of the latter, and was not then indebted in any sum .to said estate, and rendered judgment in favor of said defendant, which judgment has not been appealed from. Appellee now files here a transcript of the record of that case, and pleads that judgment in bar of appellant’s right to further prosecute this appeal.
The sole question to be determined is whether or not the estate of Vaugine has a cause of action against appellee for indebtedness on account which may be setoff against appellee’s claim against the estate. It has been adjudged in the suit subsequently brought in the circuit court that the estate has no cause cf action against appellee. That adjudication is conclusive against appellant, and bars the further prosecution of his appeal. Church v. Gallic, 75 Ark. 507.
It was a final adjudication of the only question which is sought to be determined by this appeal.
The appeal is therefore dismissed. | [
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Battle, J.
This is a suit brought by the Harris Lumber Company, a corporation organized under the laws of the State of Arkansas, domiciled in Polk County in the State of Arkansas, against the collector of Scott County, to restrain him from collecting taxes upon the personal property of the appellant situated in Scott County.
The complaint is as follows:
“Comes Harris Lumber Company, and complains of the defendant, George M. Grandstaff, as collector of Scott County, and for its cause of action says: That it is a corporation duly created and existing under and by authority of the laws of the State of Arkansas, and domiciled in the county of Polk, in the State of Arkansas, having its principal place of business in the said county of Polk; that the county of Polk is designated in its articles of incorporation as its place of business; that its articles of incorporation are duly filed in the office of the county clerk of Polk County, and that it is carrying on its business of buying, selling and manufacturing lumber in- said county of Polk. That it owns real and personal property in Scott County, Arkansas, and has paid its taxes upon all real property owned by it in Scott County, Arkansas. That it has personal property, consisting of merchandise, sawmill and various and divers other articles of personal property, situated in Scott County, which constitute a part of its corporate assets, and the same are managed and controlled by the corporation from its office in Polk County, Arkansas. That, being duly advised in the premises, the said corporation made its return for the purpose of taxation in Polk County, Arkansas, and made out and delivered to the assessor of Polk County, Arkansas, a statement as required by section 6462 of Sandel & Hill’s Digest, and included in that statement all of its property in Polk County, Arkansas, and also all of its property in Scott County, Arkansas, as well as all other personal property belonging to the corporation wheresoever situate. That the assessor of Scott County called upon the plaintiff for a statement of its property subject to taxation in Scott County, and the plaintiff gave the assessor a list of its real property, and notified the assessor that it was a Polk County corporation, and was advi^gd to pay its taxes on its personal property situated in Scott County. That the plaintiff had no further information in regard to the taxation of its personal property in Scott County until it went to pay its taxes in the year 1903 for the year 1902, when it found that the assessor of Scott County had assessed the following articles of personal property against the plaintiff, towit:
“Value of goods and merchandise............$ 3,000
“Value of material and manufactured articles.. 12,000 “Total value of all other property required
to be listed.......................... 8,000
“Total value of personal property............$23,000
“That the same was described as situated in School District No. 26, and there was charged against the plaintiff an assessor’s penalty of 50 cents and school fund penalty of 50 cents, and a total tax, including said penalties, against the plaintiff of $316. That the county clerk of Scott County has extended said tax against the plaintiff, and delivered the same to the defendant, as collector of Scott County, with a warrant authorizing a levy by the collector on any property, of the plaintiff, in default of the payment of said $316. That the board of equalization took no action upon said action 'of the assessor, and the plaintiff did not know of said assessment.until after the board had adjourned, and the plaintiff then, and before the collector closed his books, filed a petition in the Scott County Court setting forth that it was not subject to said taxation, and praying that the same be adjusted and the taxation corrected by causing the same to be stricken from the taxes extended against the plaintiff. That the county court of Scott County refused the prayer of the petition, and the plaintiff has taken an appeal therefrom to the Scott Circuit Court. That the next term of the Scott County Court is the first Monday in August, 1903. That it will be the duty of the collector before the convening of said Scott Circuit Court, and before said appeal can be heard, to levy upon the property of the plaintiff in Scott County to satisfy said tax extended against it. That the plaintiff’s remedy by law is wholly inadequate and insufficient to afford the plaintiff relief from said illegal assessment and attempted taxation of its property in Scott County; that, unless restrained, the collector will proceed to collect by distraint said amount of taxes together with a penalty of twenty-five per cent, thereupon. That there is no other adequate remedy for plaintiff than by the interposition of a court of chancery restraining and preventing the defendant from levying or attempting to levy upon the property of the plaintiff and adding a penalty against it for nonpayment of said illegal taxes; that the illegality of said assessment does not appear upon its face, and can not be corrected by certiorari.
“Wherefore, petitioner prays that the defendant be restrained from collecting or attempting to collect said taxes assessed against the aforesaid personal property of the plaintiff, and until the hearing herein, or until the hearing of the appeal in the Scott Circuit Court, that a temporary injunction issue restraining the defendant from proceeding in the collection of said taxes, and for all other equitable and proper relief which the plaintiff may be entitled to receive.”
The answer admits that appellant is a corporation organized under the laws of Arkansas, and that it has paid taxes upon its real property situated in Scott County, but denies that it is'domiciled in Polk County. The answer alleges thalj ¡ appellant is a manufacturing establishment, and as such is doing business in Scott County, and is engaged in buying, selling and manufacturing lumber, and that it is the owner of sawmills and planers, which are used in the manufacture of lumber in Scott County, and that said tangible property is subject to taxation in said county.
By agreement the appeal case from the county court was consolidated with this suit, and both tried together.
Upon the hearing the court rendered the following judgment:
“Comes plaintiff by Hill & Brizzolara, and comes the defendant by H. N. Smith, his attorney, and by agreement the answer in the case at law is treated as the answer herein. The court heard the testimony and agreement of counsel, and doth find:
“1. The personal property of the plaintiff is subject to tax* ation in Scott County.
“2. The property of plaintiff is assessed for 25 per cent, more than it should be.
“3. It is therefore ordered, considered, adjudged and decreed that the temporary order be and is hereby dissolved to the extent of preventing the collection of taxes upon $15,000 of personal property without any penalty thereupon by non-payment prior to the 10th of April. To the extent of-collecting taxes upon more than $15,000, and extending the penalties against plaintiff, the injunction is made perpetual. The costs are adjudged against the plaintiff, and defendant may have and recover of plaintiff all the costs andl its taxes upon said $15,000 of personal property.”
The evidence adduced at the hearing of this cause sustained the allegations of the complaint.
The only question in the case is:
“Was the plaintiff required to assess and pay taxes on its personal property situated in Scott County to the collector of said county, or was it required to pay taxes on all its personal property, wherever situated, to the collector of Polk County, the domicil of said corporation?”
A statute governing corporations of the class to which plaintiff belongs is as follows:
“Gas, telephone, bridge, street railroad, savings banks, mutual loan, building, transportation, construction, and all othe\ companies, corporations or associations, incorporated under thi laws of this State, or under the laws of any other State, and doing business in this State, other than insurance companies and the companies and corporations whose taxation is in this act specifically provided for, in addition to the other property required by this act to be listed, shall, through their president, secretary, principal accounting officer or agent, annually, during the month of July, make out and deliver to the assessor of the county where said company or corporation is located or doing business a sworn statement of the capital stock, setting forth particularly:
“First. The name and location of the company or association.
“Second. The amount of capital stock authorized, and the number of shares into which such capital stock is divided.
“Third. The amount of capital stock paid up, its market value, and, if no market value, then the actual value of the shares of stock.
“Fourth. The total amount of all the indebtedness, except indebtedness for current expenses, excluding from such indebtedness the amount paid for the purchase or improvement of the property.
“Fifth. True valuation of all tangible property belonging to such company or corporation. Such schedule shall be made in conformity to such instructions and forms as may be prescribed by the Auditor of State.” Kirby’s Digest, § 6936.
The object of this statute is to secure a list of the personal property of the corporation for assessment. Other statutes make it the duty of the assessor receiving it to return it to the county clerk for taxation. The statute first mentioned obviously intends that a domestic corporation shall list its personal property in only one county. It makes the capital stock a subject of taxation, and makes it the duty of the corporation to give the assessor a statement showing the amount and value of it. Ordinarily, the capital stock is the only means a corporation has of acquiring property. Both the property thereby acquired and the capital stock used in purchasing it, under the Constitution of this State, are not subject to taxation. Hempstead County Bank v. Hempstead, County, 74 Ark. 37. This would be double taxation. To comply with the statute by listing its capital stock, and to avoid complications arising from the purchase of personal property with capital stock, all of the personal property of the corporation should be assessed in the same county. Under the statute the domicil of the corporation is the situs of the capital stock, and, all of its other personal property being required by the statute to be given in at the same time and by the same statement, it follows that all of the personal property should be assessed for taxation in the same county.
Polk County being the principal place of business, the plaintiff is, in respect to its personalty, the proper place of taxation. The assessment and taxation of its personal property in Scott County are illegal. 1 Cooley on Taxation (3 Ed.), p. 673; 1 Desty on Taxation, p. 341.
The decree of the trial court is reversed, and the cause is remanded, with instructions to the court to enter a decree herein in accordance with this opinion. | [
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McCulloch, J.
Appellee, W. F. Brewer, was employed by appellant as its agent, and brought this action to recover the sum of $308.57 alleged to be due him, according to' contract, for comr missions on sales of sewing machines made by him in the course of his employment. There was a written contract between the parties prescribing the duties of appellee as “managing salesman for the company at its sub-office in the city of Pine Bluff, Arkansas, and that part of the contract fixing the compensation to be paid to him for his services is as follows:
“Third. The company agrees to pay the said party of the second part for all his services the following compensation with the restrictions and limitations hereinafter expressed:
“A. A salary at the rate of twelve dollars per week, .lost time to be deducted, which shall include the use and keeping of horse and wagon.
“B. A commission of fifteen per cent, of the value of all sales or leases of family machines at retail list prices made by said company, said commission to be computed on the net value after all deductions for old machines or discounts shall have been made. This commission shall be payable only as payments in cash are made oil said sales and leases, and paid over to said company, and shall be at the rate of fifty per cent, of such cash payments until the full amount of commission shall have been paid, except on leases where the payment is less than $5, then commission shall be payable from the second and subsequent payments. .
“C. A remitting commission of five per cent, on the actual amount of money remitted by him from said sub-office, and said remittances are to be made only from money remaining on hand after payment of the running expenses of said sub-office and any advances from division or department headquarters for expenses are to be deducted from such remittance in computing this percentage.
“Fourth. It is expressly understood and agreed between the parties hereto that the foregoing compensation shall be full payment and satisfaction for all services of every kind and nature rendered by said party of the second part, and that all his claims therefor shall cease immediately upon the termination of this agreement.
* * * * * * * * * * *
“Tenth. This agreement may be terminated at the pleasure* of either party.”
Appellant discharged appellee from its service on January 15, 1903, and paid the amount of all commissions collected up to that time on sales. The commissions sued for were on sales made upon installment plan prior to his discharge, but the amounts were not collected until after he was discharged from service.
The sole question presented by the appeal is whether, under the contract, appellee was entitled to commission on sales made during his period of service where the collections were made after his discharge.
It is the contention of appellant that appellee was entitled only to commission on collections made while he was in service, and that he was precluded from recovering commissions on collections made after his discharge by the fourth clause of the contract which provides that “all his claims therefor shall cease immediately upon the termination of this agreement.” We do not think that the proper interpretation of the contract supports that contention. It will be observed that the contract provides three methods of compensation for the services of the algent, viz.: (1) A fixed salary of $12 per week, which included pay for the use of his horse and wagon; (2) a commission of fifteen per cent, on all sales or leases of machines, the same to be payable as payments on the sales or leases which were made, and (3) a remitting commission of five per cent, on the net amounts collected and remitted to the company.
It is evident that the commission of fifteen per cent, was intended as compensation for the sales and leases, and was earned when the sales or leases were consummated, though payment of the commission was to be postponed until the collections were made. Not so, however, as to the remitting commission of five per cent. That commission was not earned until the money was collected and actually remitted to the company. The selling com mission having been earned by the agent while in service, he could not by discharge be deprived of it, even though the payment was, under the contract, postponed until the money should be collected. His right to it depended upon the prices or rentals of the machines which he had sold or leased being finally collected, but it was not essential that the collections should be made during his period of service. _
We do not think that the language of the contract quoted above was meant to work a forfeiture, upon termination of the period of service, of compensation already earned. Forfeitures are not favored in the law, and in order to be enforced they must be plainly and unambiguously provided in the contract. It is the duty of courts, when contracts are fairly susceptible of more than one construction, to adopt such as will not work a forfeiture of the acquired rights of either party. Arkansas Fire Ins. Co. v. Wilson, 67 Ark. 553; Letchworth v. Vaughan, 77 Ark. 305; Little Rock Granite Co. v. Shall, 59 Ark. 408.
The language referred to must be construed to mean, not that compensation already earned should be forfeited, but that-either party should have the right to terminate the contract at any time and stop the earning of further compensation, and that upon such termination no further compensation should be claimed, except that stipulated in the contract and already earned at that time.
The construction contended for by appellant would cut off the right of . appellee, upon discharge, to claim unpaid salary which he had earned while in service, but this is too unreasonable to find support in any fair rule of interpretation. While the cardinal rule for construction of contracts is to arrive at the real intention of the parties, if possible, yet where that intention is doubtful or .obscure, a construction should' he adopted by the courts which is most fair and reasonable, and which will impose the least hardship upon either of the contracting parties. 1 Beach, Contracts, § 708; Little v. Banks, 77 Hun, 511; Wright v. Reusens, 133 N. Y. 298.
Applying this salutary rule of construction, we think the trial court properly interpreted the contract and allowed a recovery for commissions.
Evidence was introduced to the effect that during the pend- ency of the contract between appellant and appellee, where the person to whom the agent had sold a machine moved out of his agency territory before paying for the machine in full, the selling agent would, according to custom, forfeit his commission and the account would be transferred to the agency to whose territory the purchaser moved, and all future collections made there. This custom is urged as an interpretation of the contract by the parties themselves which the court must follow. It has been said that the best guide obtainable for the interpretation of an ambiguous contract is what the parties themselves have done in execution of it. Robbins v. Kimball, 55 Ark. 414. “Tell me what you have, done under a deed, and I will tell you what that deed means.” Tord Chancellor Sugden in Attorney General v. Drummond, 1 Dr. & W. Irish Ch., 353.
There may, however, have been much reason consistent with the terms of the contract for occasionally transferring the account of a person moving out of the territory, so that the selling agent lost his commission; but that, in the nature of the business, could not occur frequently, and the settling agent was relieved of the burden of looking after the collection. The parties doubtless had in mind the fact that the removals from one territory to another would be equalized, and an agent who lost the remitting commission on one purchaser who moved out of his territory would gain it back in another who moved in from another territory. But the business of selling sewing machines is shown to be conducted largely on the installment plan, the selling commission of the agent is the largest part of his compensation for services, and we can not assume, from the custom with reference to transfer of unpaid accounts of removing purchasers, that the parties intended that the agent should, upon discharge, forfeit his selling commissions on uncollected sales.
We think the circuit judge was right in his conclusion, and his judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) A court of equity can not make a contract for parties and then decree its specific performance, in order to carry out its notions of what the abstract justice and right of the case as disclosed by the proof demands. The court will only decree specific performance when the contract itself is clearly established by a preponderance of the evidence. We said in Moore v. Gordon, 44 Ark. 334, speaking of the contract: “Its terms must be definitely shown, * * * fairly made out, by decided preponderance, in a manner to be satisfactory to the chancellor, not only that the contract was made, but also as to the precise terms.” The appellant testified concerning the terms of the contract as follows:
“About the 5th or 6th of January, 1881, near the gin lot of appellee, it was agreed between myself and appellee that I was to clear land, one-half for the other, and he put in a half section of which I was to clear 160 acres. He was to give me one-half of the cleared land, • and as many more acres of timbered land. The reason I asked for one-half of the land in timber was because I would have to sell out unless I had timbered land to keep up the cleared part. I cleared on the half. Fie, Mr. Warner, said if I cleared 500 acres, he would deed me 500, and if I cleared 1000, he would give me 1000, and half I cleared.”
A witness for appellant who heard the agreement between appellant and appellee testified:
“I heard Mr. Fielder propose to buv the tract from Mr. War ner. Warner replied: ‘Thad, you are not able to buy it. You need a home, and I would like for you to have it. Go over there, and clear the land deadening, and I will give you half you clear,’ or a certain division of the land. I don’t recollect now what that was, but he was to have timber in proportion to that piece of land. I think it was a half section. It was to be cleared across the east side of-it, and back as far as possible. As well as I remember, Fielder said: Tf I clear so much I will have no timber,’ but I do not recollect that Warner said that he was to have half of the land that was not cleared. Mr. Fielder agreed to the proposal.”
The appellee testified that he had the northwest quarter of 25 deadened, fenced, and 62 acres had been cultivated. He told appellant “to move in the houses, clear up the 160 acres under fence and they would farm in co-partnership,” and added, “when we get this in cultivation, we will clear some more.” The contract was not intended to cover the northeast quarter.
Who can tell from this evidence what the precise terms of the contract were which appellant is seeking to have performed ? His own evidence leaves it uncertain whether he was to clear the land, and get half of what he cleared, or whether he was to clear the land and receive the same number of acres as he had cleared in consideration for the clearing, or whether he should receive half of what he.had cleared and an additional number of acres in the woods to make area equal to what he had cleared? Certainly, if appellant and his witnesses could not be definite and certain as to what the contract was, the court could not be. But even if there had been a contract definite in terms established, there are other insuperable barriers to the relief which appellant asks; namely, a preponderance of the evidence shows that, even if the contract were as appellant claims in his complaint and brief, still it would be impossible to frame a decree that would put appellee in stahi quo] or approximate it. It would be impossible after this great lapse of time to have appellant comply with his part of the agreement, even as he contends it should be. Then, too, a finding that if there was an original agreement as set up in the complaint, such agreement had been, long years before rescinded wduld be sustained, we think, by the dear preponderance of the evidence.
So the decree of the chancellor was right, and it is affirmed. | [
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Hill, C. J.
Hornberger was indebted to Brooks, and evidenced the same by ten promissory notes, each for the sum of $50. The first one fell due December x, 1903, and one fell due each month thereafter. Each note recited that it was one of a series of ten notes, and that, upon default in payment of any one on the option of the holder, all became due and payable; and the notes further recited that in case of default the mortgage securing the notes should become enforceable. A chattel ’ mortgage secured the notes.
In January, 1904, default having been made on two of the notes, suit was filed before a justice of the peace, in Pope County, on all of the notes. The justice’s record shows that the ten notes were filed as the original causes of action, and that the debtor was duly summoned, appeared and the cause was tried, resulting in a judgment for the aggregate of the notes and interest, amounting to $513.88.
After a nulla bona return a transcript of the judgment was filed with the circuit clerk, and docketed as a circuit court judgment pursuant to statute.
An execution was issued by the circuit clerk, and while in the hands of the sheriff a stay bond was given with G. G. Dandridge as surety, which was approved. After expiration of stay, execution was sued out against the principal and surety on the stay bond, and thereupon the said principal and surety instituted proceedings to quash the execution on the ground that the judgment of the justice of the peace was void. The circuit court quashed the execution, and Brooks appealed.
In Berry v. Linton, 1 Ark. 252, it was settled that the amount of each separate demand or cause of action, and not the aggregate of various, causes which may be joined in an action, determines the jurisdictional amount. The last reiteration of this rule was in Paris Mercantile Co. v. Hunter, 74 Ark. 615, April 1, 1905, and between those cases is an unbroken line of decisions applying this principle in many ways. It is idle to repeat them. The leading ones are cited in appellant’s brief. The fact that the notes were of a series secured by chattel mortgage, and that all were due on default of one at the election of the holder, does not change the rule in the least. The basis of the rule is that each note is a separate cause of action, and the mere fact that several notes may be joined into one suit, instead of a separate suit for each, does not change the nature of the cause of action, or in any way affect anything except the mere procedure.
The judgment is reversed, and cause remanded. | [
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Hill, C. J.
The appellee insists upon á dismissal of the appeal on the ground that the abstract is not prepared in accordance with Rule 9, in that parts of the evidence are copied literally and not abstracted, and the instructions are not set out in full. Counsel for appellant believed it was necessary to set forth in detail the evidence of the respective litigants, so as to fully present his cause, and the other testimony was stated. Counsel should always abstract and condense, where he can do so without injury to a proper presentation of the case, but the rule was never intended to compel the counsel to abstract when he felt it necessary to set forth in full. The instructions should always be set forth in full, and a failure to do so invokes the presumption that correct instructions were given curing those complained of, if they are curable. Carpenter v. Hammer, 75 Ark. 347, and cases there cited.
The charge consists of nine separate paragraphs, but they are not numbered, and the exception is to each and every instruction. The motion for new trial sets forth so much of the charges as it assigns as error. Appellee insists that this is an unavailing exception. The question of general and gross exceptions is discussed in Darden v. State, 73 Ark. 315; Young v. Stevenson, 75 Ark. 181; Wells v. Parker, 76 Ark. 41.
This case is disposed of on another ground, and the court will not pass upon this question.
The instruction chiefly complained of is this: “That the plaintiff, in order to entitle her to recover dathages under this action, is required to prove that the accident occurred through the negligence of W. D. Reeves.”
Abstractly, this is, of course, correct. No liability rested upon him except through negligence, but the instruction was misleading in this case in not being qualified or coupled with another one explaining that the evidence of the accident and injury following therefrom, when the occurrence was not out of the usual course, was prima facie evidence of negligence, and shifted the burden on to the defendant to prove that it was not caused by any want of care on his part. The facts disclosed in evidence brought this case squarely within this rule as announced in Railway Company v. Hopkins, 54 Ark. 213; Railway Company v. Mitchell, 57 Ark. 418; Arkansas Telephone Co. v. Ratteree, 57 Ark. 429.
The application of this rule to the duty of the owners of electric wires to the passerby is thus stated: “The occupier is not liable in the absence of negligence; but in some cases, as for example, the falling of an object from a building upon the highway, the accident itself, in the absence of explanation, is evidence of negligence. The maxim res ipsa loquitur is applied, and the defendant can only discharge himself by showing affirmatively that the accident was due to some cause consistent with due repair and careful management of the structure.” Keasbey on Electric Wires, § 232.
It is said that, the foregoing instruction being abstractly correct, appellant should have asked the qualification, and, failing to do so, can not complain of the court failing to give what was not asked when what was given was a correct statement so far as it went. Probably this is the correct view. As the case must be reversed on another ground, it is unnecessary, as heretofore stated, to decide these questions of practice.
The facts, briefly stated, are: Reeves owned a private telephone line running from his sawmill into the city of Helena. It was strung on trees and posts, and at places in the public road. The line was illy constructed, and usually in bad condition at places. The place in question was on one of the leading thoroughfares out of the city of Helena, about a mile and a half from the city. Owing to a broken pole, the wire sagged over the highway, and was in this condition for two days prior to the accident. In broad daylight Mrs. Jacks, Mrs. Fitzpatrick and Miss lone Fitzpatrick, drove along this road in a surrey drawn by a gentle horse. Miss Fitzpatrick was driving, and the other ladies were in the rear seat. The sagging wire caught the top of the surrey, made a rasping, scraping noise, tore off the top, and frightened the horse into running. The evidence is not clear whether Mrs. Jacks was thrown out or in her fright jumped out. Her last remembrance was the crash of the top of the surrey. She was seriously injured. The only evidence to rebut the presumption of negligence was that of Mr. Reeves. He says his teamsters passed this road nearly every day, and were instructed to give notice of the line being “out of fix,” and he had the line repaired when out of order. He was absent for several months, and left instructions with the foreman to repair it when it was reported out of order by the teamsters. No other means were adopted. There is a total dearth of evidence as to whether teamsters were passing at this time, whether the broken pole and sagged wire were observed or reported. The whole defense rested on mere instructions to teamsters to report to the foreman and to the foreman to repair when reported, and that some teamsters usually, passed there every day. The evidence is uncontradicted that the line was usually in bad order, and was crudely constructed along a much-traveled road, and the pole and wire, which caused this 'injury, were down for at least two days prior to the accident. It is obvious that this evidence was wholly insufficient to rebut the presumption of negligence.
The rule is thus stated: “Entirely apart from the fact that the wires may be charged with a dangerous current, the fact that such a structure is set up in a public street; even though duly authorized, involves the obligation to take care that it shall be constructed of good materials, in a substantial manner, so as to withstand all strains that may reasonably be anticipated, and that it shall be maintained in good order.” Keasbey on Electric Wires, § 233.
The appellee failed to affirmatively show “that the accident was due to some cause consistent with due repair and careful management of the structure.” Keasbey on Electric Wires, § 232.
The appellee contends that the question of contributory negligence was properly submitted to the jury, and that there was evidence justifying the jury in finding appellant guilty of contributory negligence. The statement from Keasbey, supra, (§ 230) is relied upon: “It is not to be expected that a man in driving, or even in walking along a street, will see a small wire stretched across the way or lying upon the pavement when he has a right to suppose that the street is unobstructed; and the fact that he runs into such a wire is not held, as a matter of law, to be contributory negligence, but the question whether he exercised due care will be left to the jury.” The author cites no authority for this statement, but likely it is a fair deduction from the cases. Many of them are reviewed and cited in this section, and they are cases where the.traveler saw the wire or knew it was there. Conceding, without deciding, the above statement to be correct, still it does not reach to this case. Certainly it is not expected or required of a traveler driving easily along the middle of a much-traveled highway to be looking up to see if perchance a stray wire is in reach of the top of the vehicle.
■It is said that contributory negligence may have been inferred from .permitting a fourteen-year old girl to do the driving. It can not be said as a matter of fact or of law that it is negligence for a fourteen-year old girl accompanied by two grown women to drive a gentle horse along'a public highway in broad daylight.
It is also said that if Mrs. Jacks had stayed in the surrey, instead of jumping out, she would not have been injured. The evidence is not clear whether Mrs. Jacks jumped out or was thrown out; nor is it the least material. When any one is in danger through the negligence of another, his action in the emergency suddenly thrown upon him can not be weighed- in scales to determine whether he acted wisely or foolishly in the imminency of great danger. This has been too often held to need citations. The court fails to find any contributory negligence in evidence.
The judgment is reversed, and cause remanded for a new trial.
Wood, J., dissents; McCulloch, J., disqualified and not participating. | [
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Wood, J.,
(after stating the facts.) Requests for instructions six and seven should have been granted. They were based upon the evidence. Also other instructions of similar purport.
We are also of the opinion that the court should have given the peremptory instruction to return a verdict for the appellant. The undisputed evidence showed that appellant had not failed to ventilate the mine where appellee was at work. In that compartment the air was all right. The act of Congress required that the air be forced through to the working places. This was done, and- the places that were not fit for working places on account of the accumulation of gas or poisonous air were properly “dead-lined.” This is all that could be required by the exercise of reasonable prudence. But, if it were conceded that the company was negligent in allowing the' gas to accumulate beyond room 26, it had given the necessary and proper warning to its employees of the danger, and they understood it thoroughly. This being true, we do not see how it can be said that the negligence of appellant contributed to or was concurrent in the injury; much less, that it was the proximate cause thereof. It seems clear to us that the injury here complained of, upon the undisputed facts, was caused solely by the negligence of fellow-servants, for which the master was in no wise responsible. New York, Chicago & St. Louis R. Co. v. Perriguey, 138 Ind. 414, and many cases cited therein.
Reverse, with directions to dismiss the cause of action. | [
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McCulloch, J.,
(after stating the facts.) It is urged here that the chancellor erred in decreeing a foreclosure, because the debt was barred by' limitation, but an examination of the plead ings fails to disclose a plea of the statute bar. The statute of limitations, when relied upon as a defense in suits in equity, as well as in actions at law, must be specially pleaded. Wilson v. Anthony, 19 Ark. 16. Chief Justice English in delivering the opinion of the court in the case just cited said: “The statute of limitation cannot be insisted on as a bar in equity without being pleaded or in some form relied on as a defense in the pleadings. (Citing Hickman v. Stout, 2 Leigh, 6; Hudson v. Hudson, 6 Munf. 356; Dey v. Dunham, 2 Johns. Ch. Rep. 191; Crutcher v. Trabue, 5 Dana, 82; Whitney v. Whitney, Id. 331; Van Hook v. Whitlock, 2 Edward. Ch. 307; Prince v. Heylin, 1 Atk. 494; Colvert v. Millstead, 5 Leigh, 88; Maury v. Lewis, 10 Yerger, 118; Jones v. Chiles, 4 J. J. Marsh. 610.) The reason of the rule is that the complainant should have notice of the defense, in order that he may have an opportunity of bringing his case within the exceptions of the statute by special replication, or, according to the modern practice, by an amendment of his bill, and not to be taken by surprise at the hearing.” This view is sustained by more recent decisions. 13 Enc. Pl. & Pr., p. 183; Thompson v. Parker, 68 Ala. 388; Lux v. Haggin, 69 Cal. 255; Brush v. Peterson, 54 Iowa, 243; Lawrence v. Rokes, 61 Me. 38; Wilkinson v. Flowers, 37 Miss., 579; Bruce v. Baxter, 7 Lea (Tenn.), 477; Gibson v. Green, 89 Va. 524.
The language used by Judge Eakin in Riley v. Norman, 39 Ark., 158, appears to be against this view, but the learned judgq seems to have been discussing the equitable doctrine of laches, rather than the statute of limitation, as the former doctrine was applied in that case in denying the relief sought. None of the elements upon which courts of equity apply the doctrine of lachesi are found in the case at bar. The defendant purchased the land from the administrator of J. E. McCall with full knowledge of the asserted claim of the.plaintiff. If the defendants intended to rely as a defense upon the fact that the debt secured by the mortgage was barred by limitation, the rules of good pleading, as well as fairness to the plaintiff, demanded that such intention should have been plainly manifested by an appropriate plea. Instead of doing so in this case, the defendants based tkeir defense upon other grounds and said' nothing about the statute of limitations, or the facts upon which the court could apply the statute. Noth ing appears in the answer from which the court could infer an intention to plead the statute bar except, possibly, the bare statement that “no credits were entered on the margin of the mortgage.” This is not sufficient as a plea of the statute bar. The facts constituting the bar should have been set forth.
It is contended that t'he mortgage was not properly assigned to the plaintiff because the authority of the agent who made the assignment is not shown. The assignment was made for the benefit of the principal; she has not questioned it, and the authority will be presumed until the contrary is made to appear.
The defendant objected to the testimony of the plaintiff on the ground that it was a suit against the administrator, and that his testimony related, in part, to transactions with the deceased. For several reasons the testimony was not incompetent. The suit was against the purchaser of the land, and as to him the testimony was competent. Nolen v. Harden, 43 Ark. 307; Lawrence v. LaCade, 46 Ark. 378. The testimony, so far as it tended to sustain the relief granted by the court, did not relate to a transaction with the deceased, but to an independent transaction, i. e., the assignment to him of the note and mortgage by the holder. It is only as to “transactions with or statements of” the deceased that the opposite party is rendered incompetent to testify. Const. 1874, sec. 2, Schedule.
Moreover, there was testimony of other witnesses bearing upon the issue sufficient to sustain the decree of the chancellor, and he is presumed to have reached his conclusion only upon competent evidence, and disregarded that part which was incompetent. Niagara Fire Ins. Co. v. Boon, 76 Ark. 153.
Decree affirmed. | [
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Wood, J.,
(after stating the facts.) Learned counsel for appellant urge:
That the court erred in admitting evidence of the declarations and acts of John Davis and Bob Martin, two of the alleged co-conspirators of the defendant, made and done after the killing and in the absence of the defendant.
The law is well settled that the acts and declarations of co-conspirators in the absence of the defendant after the consummation of the criminal enterprise can not be admitted in evidence. Polk v. State, 45 Ark. 165; Foster v. State, 45 Ark. 328; Bennett v. State, 62 Ark. 516; Willis v. State, 67 Ark. 234.
There is nothing in the bill of exceptions upon which to base appellant’s sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments of error in his motion for new trial. The only objection saved was to the following questions and answers:
“Q. Who did you first tell about the burning of these cloth'es? A. I told Mr. Sweet about it. Q. He is a white man, is he? A. Yes, sir. Q. When did you tell him about it? A. I told him about it after that.”
The witness John Davis had testified without objection to the burning of the clothes. The fact sought to be established by the accomplice, Davis, that appellant, after the commission of the crime, had burned the clothes of the man whom he was alleged to have murdered, was highly prejudicial to appellant because it tended to show guilty consciousness, in an effort to suppress evidences of his crime. But this evidence went to the jury with • out objection, and, having been thus admitted, there could have been no prejudice in the mere fact that he had told some one about it, especially since the one to whom he said he communicated the fact was not questioned concerning this, and had nothing whatever to say about it.
The language in the bill of exceptions in the objection, towit: “And the defendant here states that, in order to save the time of the court, he objects to all evidence of actions, conversations, etc., transpiring after the commission of the offense, related by this witness and accomplice,” was not an objection to testimony that might thereafter be admitted, and was not an exception to the ruling of the court thereon. The objection was too general and indefinite. Besides, there is nothing in the record to show that the parties agreed that all exceptions to the rulings of the court on the admission or rejection of testimony were saved without being especially mentioned at the time the decision was made. In the absence of an understanding of that kind, the objection to the introduction of testimony must be made when the testimony is offered, and the' exception reserved at the time the ruling is made. Sec. 6222, Sandels & Hill’s Digest. It is but fair to the court that any objection to testimony should be made at the time it is offered. Burris v. State, 38 Ark. 221.
There was no prejudicial error in the witness John Davis being permitted to testify that appellant gave him his clothes to carry to Lucy Witherspoon to be washed. This is the extent to which the objection to the testimony reached, and as an independent fact it could throw no light upon the question of the guilt or innocence of the accused. It could not have injured his cause.
The court permitted Sam Martin, a negro witness for the State, after he had stated that on the Sunday night following June 6, 1905, while he was engaged in a crap game at Gray’s store with Bob Martin (the alleged co-conspirator and accomplice of appellant), some one came up, and said that the body found in the river had been identified as that of Walter Gray, to testify as follows: “While the game was going on, Frank McClelland came running down the hill, and said that that body they found was Walter Gray’s, and Bob Martin had up fifty cents, and he lost thirty cents, and he left the money, and would not have it, and walked off, and said, T have to see Mr. Benton,’ as he walked off. (Defendant objected to this testimony; objection overruled; exception saved.) Q. You say he said something about going and seeing Mr. Benton? A. Yes, sir. Q. Now, you say that Bob Martin was there at the time — that night? A. Yes, sir. Q. And when a man came up and said that was Walter Gray’s body he got up and left twenty cents he still had in the half dollar? A. Yes, sir. Q. And walked off, and said he must see Mr. Benton? A. Yes, sir.”
Bob Martin was a witness for appellant, and was asked, on cross-examination, this question:
“Q. I will ask you if it is not a fact that while you were engaged in this negro crap game right at the end of Walter Gray’s store, if some one did not come up there and announce publicly in the game that the dead body found in the river the day before at Madison was Walter Gray, and did you not then get up and give a negro a half dollar that you owed five cents to, and quit, and say you had to go and see Mr. Benton? A. No, sir; I did not.”
The testimony of Sam Martin was proper, in impeachment of the testimony of Bob Martin. The defendant, by introducing him, subjected him to the same rule of impeachment as applicable to all other witnesses. Section 3138, Kirby’s Digest.
It is contended that the court erred in refusing to direct the jury, as prayed by appellant, not to consider the evidence of the acts and declarations of John Davis, after the killing and in the absence of Benton, and tending to connect Benton with the crime.” The instruction was properly refused. Appellant, on the cross-examination of one Sweet, a witness for the State, had' gone beyond the examination in chief of this witness, and had made Sweet his witness, and elicited from him the entire confession of the accomplice, John Davis, and had brought out acts and declarations of Davis which, under this instruction, would be taken from the jury. The appellant] having elicited the testimony, presumably because he thought it would be advantageous for him to do so, could not afterwards repudiate it because he conceived that it might be detrimental. A party can not, even in a criminal case, take inconsistent positions and play fast and loose with the court. If he sees proper to waive rules of evidence that are made for his protection, he may do so. If he, by affirmative acts, ignores these rules because he thinks it will advance his interest, he can not afterwards undo his work,, because he did not reap the anticipated benefit. Such conduct would destroy orderly procedure of trials, and would be unfair to the commonwealth. If appellant desired to have other declarations and acts of John Davis than those elicited by him removed from the jury, he - should have specifically called attention to these in the instruction he asked. A general instruction to disregard the acts and declarations of accomplice John Davis, where some of his acts and declarations were properly before the jury, would not suffice. Western Coal & Mining Co. v. Jones, 75 Ark. 76; Vaughan v. State, 58 Ark. 353.
The next contention is that the court erred in permitting the prosecuting attorney to ask the defendant if he had not been married to a negro woman and indicted for same.
The record shows that, on cross-examination of the defendant by the prosecuting attorney, the following questions and answers were made: “Q. Did you not marry a negro woman in the State of Ohio, and live with her on Cat Island? A. No, sir; I never was married — to a white woman, negro or Indian. Q. Were you not married to a negro woman, and prosecuted in the Dee Circuit Court for living with a negro woman ?” ( Obj ected to by defendant; objection overruled, the court saying as ground therefor: “I don’t know what proof the State may have.” Exception saved by defendant.) Q. You deny these things, do you? A. Yes, sir. I have never been married in my life, and no record will ever show that I got a license for any woman. Q. Nowhere? A. No. Q. And you lived in Missouri and Mississippi and on Cat Island, and you deny that you have ever been married? A. I told you so. I have never been married. Q. And you were never prosecuted on this charge? A. No, sir.”
In Hollingsworth v. State, 53 Ark. 387, this court, quoting from Wilbur v. Flood, 16 Mich. 40, said: “It has always been held that within reasonable limits a witness may, on cross-examination, be very thoroughly sifted, upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which explain his credibility.” See also Little Rock Vehicle & Implement Co. v. Robinson, 75 Ark. 548.
Such of the questions as were directed to the past association of appellant with a negro woman were proper, but those that sought to show his prosecution therefor were improper. Stanley v. Aetna Insurance Company, 70 Ark. 107. However, the witness answered all in the negative, and there was no prejudicial misconduct on the part of the prosecuting attorney in persisting in asking the witness improper questions seemingly for the purpose of making the impression on the jury that appellant had lived with a negro woman and had been prosecuted for same, notwithstanding his denial thereof. The record on this point hardly brings the case within the rule announced in Burks v. State, 72 Ark. 461. We do not see how the jury could have reached the conclusion, in view of appellant’s negative answers, that appellant had married and lived with a negro woman, and had been prosecuted for same. Unless they did reach such conclusion, there could not have been any prejudice to appellant’s cause by reason of the. improper questions.
Learned counsel urge that the court erred in giving ad ditional instructions to the jury, in the absence of the defendant, by answering the note of inquiry addressed to the court by the juror Cowen, and by telling the jury, in response thereto, that they might find the defendant guilty of murder in the second degree. The record discloses that, after “the jury had deliberated for a time, they returned into open court, and asked the judge of the court to give them additional instructions as to the law in the case; and the court proceeded to do so. One of the jurors then handed the judge a written note, the judge read it, and then turned to the jury and said ‘Yes.’ This note asked the judge whether or not the jury had the right, under the law, to find the defendant guilty of murder in the second degree. The contents were not publicly announced, and were known to the prosecuting attorney alone besides the judge. After the judge had read it and laid it down, the prosecuting attorney then read it himself. Counsel for the defendant had no knowledge of its contents. To this the defendant at the time objected and excepted.”
It appears that the defendant was present during this proceeding, else how could he have “objected and excepted?” It is conceded that the defendant was present in person in the court room when the inquiry was made by the juror of the judge, and his answer given thereto. But it is now insisted -that, inasmuch as the contents of the note were known only to the judge and prosecuting attorney, the proceeding was tantamount to a ruling of the court upon a substantive matter in the absence of appellant or his counsel. Not so. The appellant was present in person and by counsel. It does not appear that he asked that the contents of the note be disclosed, and that the court refused to reveal to him the contents of the note. If he had made the request of the court to discover the contents of the note, no doubt such request would have been granted. The record does not warrant the conclusion that the trial court, intentionally or otherwise, concealed from appellant or his counsel the contents of the note. The most it shows is that they had no knowledge of its contents. But, for aught that appears to the contrary, they might have had such knowledge upon the asking. For aught that appears to the contrary, they might not have desired such knowledge. For aught that appears to the contrary, it was their own fault that they did not obtain knowledge of the contents of the note. Appellant can not complain here that the contents of the note were unknown to him, or kept secret from him, when it does not appear that he asked to have such information imparted to him at the time the note was presented to the trial judge. He contented himself with a mere general objection and exception, and he must be held to have waived the information which a specific request would doubtless have brought him. The record does not show that the ground of objection to this proceeding before the trial court was that the contents of the note were unknown to appellant. Such objection can not avail here for the first time.
The inquiry by the juror of the court was “whether or not the jury had the right, under the lazv, to find the defendant guilty of murder in the second degree.” It will be observed that the question did not call for an expression of opinion by the judge on the facts in evidence. Giving the jury credit for average intelligence, they must have understood that the court meant to tell them that under the charge laid in the indictment they had the right to find appellant guilty of murder in the second degree if the facts warranted such finding. The inquiry and answer were equivalent to an instruction to that effect. The jury wanted to know, not what the facts were, but what the law gave them the right to do under the facts as they might find them. This, we think, is the only reasonable conclusion deducible from the inquiry, when it is considered in connection with the charge that the court had given them declaring that they were to find the facts in the case from the testimony. In instruction number twelve, given at the request of appellant, the court told the jury that the defendant was presumed to be innocent until there was testimony proving his guilt beyond a reasonable doubt; “That the law requires proof by legal and credible evidence of such a nature that, when it is all considered by the jury, giving to it its natural effect, they feel, when they have weighed and considered it all, a clear and entirely satisfactory conviction of the defendant’s guilt.” In the first paragraph of the oral instructions given by the court the jury were told that the instructions were to cover each and every phase of the testimony, that the jury were to “take the instructions together after they have first found the facts;” that, “zuhen they have found zvhat the facts are in the case, then they are to take all the instructions together, and see what instructions are applicable to the facts as they find them.” In view of these instructions, we do not see how the jury could have reached the conclusion, from the question of the juror and the answer of the court, that the court intended to express the opinion that the defendant was guilty of murder in the 'second degree as contended by counsel for appellant. Their argument is plausible, but their conclusion is unsound. It is at least exceedingly strained and technical.
The last proposition is that “the court erred in refusing to instruct the jury on the question of alibi.” On this subject the appellant asked the following:
“No. 7. You are instructed that the evidence must support and be in conformity to the allegations made in the indictment, and must show that the accused was present, standing by, aiding, abetting and assisting at the time of the alleged killing; and if you believe that the defendant was absent at the time of the alleged killing, you can not convict under the indictment in the cause.”
The court refused this request, but gave .the following:
"No. 7. You are instructed that the evidence must support and be in conformity to the allegations made in the indictment, and must show, beyond a reasonable doubt, that the accused was standing by, aiding, abetting and assisting at the time of the alleged killing; otherwise you can not convict under the indictment in this cause.”
Appellant also asked the following:
“10. The court charges the jury that the defendant need not prove an alibi by a preponderance of evidence; but if, by reason of the evidence in relation thereto, the jury doubt his guilt, he is entitled to an acquittal.”
“11/ And the court further charges the jury that where the defense is an alibi, the jury must acquit if, from a consideration of all the evidence, they have a reasonable doubt of the presence of the accused at the place and time of the alleged crime, whether such doubt be from lack of proof on the part of the State or from evidence adduced on behalf of the defendant.”
These requests the court refused. But the court gave at.the request of appellant the following:
“No. 2. If you find from the testimony, beyond a reasonable doubt, that Walter Gray has been killed, and also find that he was killed by some one or more of several persons, but there is a reasonable doubt as to which person committed the offense, that reasonable doubt must prevail and result in the acquittal of the defendant, unless you find that the defendant was present, aiding, abetting or assisting in the commission of the offense.”
“No. 3. The jury are instructed, as a matter of law, that when a conviction for a criminal offense is sought upon circumstantial evidence alone, the prosecution must not only show, by a preponderance of evidence, that the alleged facts and circumstances are true, but they must show by such facts and circumstances as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant.
The defendant testified that, from shortly after nine o’clock on the night of the alleged murder until the next morning he was asleep in the Lácefield house, about seventy-five or a hundred yards away from the place where it is alleged the killing occurred at about ten o’clock in the night. Conceding that this testimony of appellant tended to prove an alibi, and warranted him in asking an instruction on that subject, and conceding that the requests were proper, the court did not err to the prejudice of appellant in refusing them. For instructions numbered two and three given at the request of appellan,t, and instruction number seven given by the court, covered the ground embraced in the refused requests. The instructions given required the jury to find beyond a reasonable doubt that the defendant was standing by, aiding, abetting and assisting at the time of the alleged killing; otherwise, they should acquit. Such is the purport of the seventh instruction, and the second, supra, declares “unless you find that the defendant was present, aiding, abetting, and assisting,” etc. It necessarily followed, as the converse of the proposition presented by these instructions, that if, the jury found that appellant was absent when the killing was done he was not guilty, and the jury should so find. We can not agree with the zealous counsel that it was as “great travesty of justice to convict Benton of murder in the second degree as it would have been to have convicted him of the higher degree.” The proof tends to show a most atrocious murder, and is ample to have sustained a verdict against appellant for the higher instead of the lower degree. Since the record is otherwise free from error, that the jury were lenient is a matter to appellant for congratulation rather than for complaint.
Affirm.
Battre, J., dissenting. | [
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Wood, J.,
(after stating the facts.) The various answers leave the issues in much confusion. It is clear from the complaint that only the Bonanza Mining & Smelter Company of Virginia was sued. There is nothing in the record to show that the “Bonanza Mining & Smelter Company of Arkansas,” a corporation of South Dakota, was sued. There is no order of record making it a party to the suit. No appearance vras entered by it, and no answer was filed by it. True, the decree of the court recites that the Bonanza Mining & Smelter Company of Virginia and the Bonanza Mining & Smelter Company of Arkansas “come by attorney,” and that the cause is heard upon, inter alia, the answer of the Bonanza Mining & Smelter Company of Arkansas. But we do not find any answer of the “Bonanza Mining & Smelter Company of Arkansas,” a corporation of South Dakota, in the record; so that it must be taken from the record that all the answers, original, am'ended and separate, were filed by the “Bonanza Mining & Smelter Company” of Virginia, the only corporation sued in this action. As thus considered, the defenses set up are inconsistent. Eor in the original answer, which was introduced in evidence, appellant admits that'it made a contract with appellee for the purchase of the lands, and executed the notes set forth in the complaint, but alleged that the purchase was to become complete upon the-payment of these notes, and the delivery of a deed to the lands, which should be deposited in the Bank of Yellville in escrow, awaiting the payment of the notes. It is alleged also in this answer that the plaintiff should not recover on the notes because of the false and fraudulent representations of one Dickerson, the agent and partner of plaintiff, as to the title and character of the land alleged to have been sold to appellant. While in the amended answer, in addition to this defense, it is set forth that the contract was only an option for the-purchase of the land, which should fail on account of the fraudulent representations of Dickerson concerning same; and, in what is designated as the “separate answer,” appellant for the first time denies that it executed the notes .sued on, and sets up that the contract and notes were made with and by F. S. Coburn for the “Bonanza Mining & Smelter Company of Arkansas,” and not for appellant, and that at the date of the execution of such notes appellant had no corporate existence. So the defenses set up in the original and the amended answers, and that set up in the so-called “separate answer” are inconsistent. However, it does not appear that any of these answers were verified. Appellee permitted them to be filed in the manner indicated without any objection, and treats them here as raising the following issues:
1. “That the contract between appellant and appellee concerning the land was merely an option to purchase.
2. That the appellant was not in existence at the time the notes sued on were executed and the alleged sale of the land made; that if there was a sale of the land, the sale was to the Bonanza Mining & Smelter Company of Arkansas, a corporation of South Dakota, and that appellant is not liable.”
The testimony is voluminous, and it could serve no useful purpose to review it in detail.
The appellee, as the owner of the land, testified, in substance, that one Dickerson came to him to buy the land for some Washington parties. Appellee says: “They submitted another proposition, that they would pay me $6,000 of the money at the end of six months, and another $6,000 at the expiration of twelve months, motes to bear 8 per cent, interest from date until maturity. It was made by the company through Mr. Dickerson. I accepted the proposition, and took two notes for $6,000 -each, dated Washington, D. C., March 23, 1901, signed by F. S. Coburn, president, and George Johnson, secretary. They were president and secretary of the Bonanza Joining & Smelter Company. The company accepted that deed as a conveyance of land, and executed a deed to said company on the 21st day of March, 1901, and the deed was the conveyance of the above-described land in consideration of the $12,000. I delivered the deeds to the Bank of Yellville for the Bonanza Mining & Smelter Company. The company accepted that deed as a conveyance of land, and turned the notes over to me, and, by agreement with me and the Bonanza Mining & Smelter Company, the deed was to be turned over to the company by the bank on the payment of the said notes, and I turned the land over to them, and they came and took possession of it. Mr. Coburn came and took possession of it, and he and Mr. Dickerson worked the land, and I have never had any control or possession of the land since that time. I owned the land individually. Neither J. H. Dickerson nor any one else had any interest in same till I sold it to the Bonanza Mining & Smelter Company. Dickerson was not my agent in the sale of this land, and did not represent me in any way.”
Dickerson, who claims to have represented appellant in the purchase of the property, and who negotiated the transaction between the parties, agrees substantially with the appellee as to the terms of the contract. Their testimony and the notes and the deeds in evidence show that the chancellor was correct in holding that the contract was a sale, and not a mere option to purchase.
In McMillan v. Philadelphia Company, 159 Pa. 142, it is said: “The distinction between an option and a contract of sale or lease is broad and plain. An option is an unaccepted offer. It states the terms and conditions on which the owner is willing to sell or lease his land, if the holder elects to accept them within the time limited. If the holder does so elect, he must give notice to the other party, and the accepted offer thereupon becomes a valid and binding contract. If an acceptance is not made within the time fixed, the owner is no longer bound by his offer, and the option is at an end. A contract of sale or lease fixes definitely the relative rights and obligations of both parties at the time of its execution. The offer and acceptance are concurrent, since the minds of the contracting parties meet in the terms of the agreement.”
“An option is simply a contract by which the owner of property agrees with another that he shall have a right to buy the property at a fixed price within a certain time.” Litz v. Goosling, 19 S. W. 527, 21 L. R. A. 128; Hopwood v. McCausland, 120 Iowa, 218; Hanly v. Watterson, 39 W. Va. 214; Johnson v. Trippe, 33 Fed. 530.
This was not a mere offer to sell on the part of the vendor, which the vendee could accept or reject at pleasure within the time prescribed for the payment of the notes. Upon the delivery of the deed appellee had the right to demand the payment of the notes when due. True, the deed was in escrow, but that was for the benefit of the vendor, a benefit which he could waive at any time by tendering the deed to the grantee. Nothing remained to complete the sale except the payment of the notes and the delivery of the deed, and the vendee could not have escaped the payment of these notes if the vendor, either before or after the time for the payment of the last note and within the period of limitation for liability on the notes, had delivered or offered to deliver to the vendee a deed to the land. If it had been only an option to purchase, appellee could not have compelled the holder of the option to pay the notes upon an offer to deliver the deed and possession of the property under it. If an option only, the actual delivery of the deed and possession of the property under it would not have entitled the appellee as the owner of the land to payment of the notes. If an option only, the holder of the option could avoid the payment of the notes simply by refusing to do so until the time when they were due had expired. But we do not so understand this contract. There was a straightout contract for the sale of the land, the specific performance of which either party to it had the right to demand of the other when it had fully complied with the conditions on its part.
Having determined that there was a contract for the sale of the land, the next questions are, with whom was it made, and was appellant liable? The testimony, of appellee shows that the contract he made was with Dickerson, who claimed to be representing some Washington parties. True, he testified in a general way that he “sold the lands to the Bonanza Mining & Smelter Company, that bought and operated the mine known as the Beulah on Clabber Creek.” He also testified that F. S. Coburn and George Johnson were president and secretary, respectively, of the Bonanza Mining & Smelter Company, and that “he executed a deed to the company,” etc. But the other uncontradicted proof in the record, documentary and oral, shows that this was matter of opinion or conclusion on the part of appellee, and that he was mistaken about it. Dickerson, who negotiated the deal with Ware, claimed to be representing Washington parties, but his evidence shows that he was really representing one F. S. Coburn, and his testimony,.as well as the testimony of Coburn, shows that the land was sold to Coburn. True, the notes name the Bonanza Mining & Smelter Company as the payer, and are signed by F. S. Coburn as president and George Johnson as secretary, and the original deed was executed to the' Bonanza Mining & Smelter Company. But the articles of incorporation of the appellant, made an exhibit, show that it was not in existence at the time these notes and deed were executed. The notes were therefore not executed by appellant, nor was the deed made to it. This is conceded by appellee’s counsel. But they contend that appellant was organized at this time, and afterwards chartered for the purpose of succeeding to all the rights, and assuming all the obligations of the “Bonanza Mining & Smelter Company of Arkansas,” a corporation of South Dakota, that was in fact the real purchaser. There is an exhibit in the record showing that at the time the notes and deed were executed there was a corporation in existence chartered under the laws of South Dakota, and known as the “Bonanza Mining & Smelter Company of Arkansas,” and there is enough perhaps to show that F. S. Coburn and George Johnson were, respectively, the president and secretary of such corporation. But, if this be sufficient, with the other proof, to show that the “Bonanza Mining & Smelter Company of Arkansas,” the Dakota corporation, purchased the land of appellee, it falls far short of showing that appellant purchased same, or was liable for the purchase price thereof. There is no proof whatever in this record that appellant, the Virginia corporation, ever assumed- the obligation of the Dakota corporation in any way. This was necessary, and the burden was upon appellee to show it before he could hold appellant liable. It is obvious that neither appellee nor Dickerson, his witness, knew anything about either the Dakota or the Virginia corporations, and the testimony of Coburn does not show that he was authorized by the Virginia corporation to purchase the property from the Dakota corporation, or that he did so. The utmost that his testimony tends to establish along this line is that he made the purchase. It nowhere appears that he made, or was authorized to make, it for appellant, while the proof on behalf of appellant is clear and undisputed that it was not connected in any manner with the Dakota corporation. True, Coburn was the president of both corporations, but he was the only stockholder and member of the Dakota corporation that had any interest in the Virginia corporation. The members of the two corporations were entirely different, and the corporations were independent of each other.
One of the witnesses for appellee, towit, C. E. Wood, testified that he was one of the incorporators of appellant, and, among other things, he said: “The Virginia company was. organized to handle any properties it might see fit to purchase, and it declined to purchase the Ware property and one or two other properties which Mr. Ware was desirous of .transferring to the company. In fact, the Virginia company, when it was organized, purchased only the interest of E. S. Coburn and the Bonanza Mining & Smelter Company of Arkansas in the properties which were conveyed to it, but did not at any time assume any of the obligations upon these properties nor agree to pay the same, but left the matter open to the determination of the company, and it never at any time assumed or authorized assumption of any obligation given by Coburn individually, or by the Bonanza Mining & Smelter Company of Arkansas, or the South Dakota Company.” He further testified: “The Bonanza Mining & Smelter Company of Virginia never at any time either purchased or agreed to purchase the J. C. Ware property, and was never at any time in possession of it or exercised any authority over it or considered that it had any title to it.”
Other witnesses for appellant corroborate this, and we do not find anything in the record to refute it. There is no deed in this record showing that Coburn, or “The Bonanza Mining & Smelter Company of Arkansas,” conveyed the Ware land to the appellant, and no proof that appellant assumed the obligation of Coburn or of the South Dakota corporation to pay for the land. True, Ware is now offering to convey the land to the appellant upon the payment of the notes executed by Coburn or the South Dakota corporation, but appellant refuses to take the land and pay the price. Under the proof, we think it has the right to do so. This is not the case of a corporation holding on to property and pleading the doctrine of ultra vires against the obligation to pay for it, as in Seymore v. Spring Forest Cemetery Association, 26 L. R. A. 859; and the facts of this case differentiate it entirely from the case of Spring Garden Bank v. Hulings Lumber Co., 3 L. R. A. 583, cited and relied on by appellee. In that case, it is said: “The said company was at the time the deed was delivered to and accepted by it a complete corporation duly chartered and organized; and not only this, but it had, at the date of said deed, a potential existence which subsequently became an actual and legal corporation.” The same parties, who were'a partnership, with a “potential existence” and who had signed an agreemént to become a corporation, at the time the deed was executed, afterwards became the corporation, and “accepted the deed executed and delivered to it.” Of course, it was held in that case that the deed vested the title to the lands described therein to the corporation.' But there is nothing in this case like that, and therefore we have not thought it necessary to review that case in extenso. We see nothing in the facts of this record to justify appellee in invoking the doctrine of ratification against appellant. The appellee fails to show a cause of action against appellant. The decree is therefore reversed, and the complaint is dismissed for want of equity.
Hile, C. J., not participating. | [
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John B. Robbins, Judge.
Appellant Judy Michael appeals the J decision of the Arkansas Workers’ Compensation Commission. Appellant contends that the Commission’s decision, denying her claim for the nine percent permanent anatomic impairment rating given by her treating physician, is not supported by substantial evidence. Due to the Commission’s failure to render findings and draw a conclusion on the issue presented and litigated, we reverse and remand for additional findings of fact, conclusions of law, and such further proceedings as may be needed to comply with our opinion.
Appellant is the Director of the Keep & Teach Daycare located in Sheridan, Arkansas. She injured her back on Friday, August 24, 2001, while she was holding a child. The child was trying to break free, when appellant “popped” her back. The pain that appellant experienced over the weekend caused her to visit a physician on Monday. Her physician, Dr. Clyde Paul, diagnosed her condition as a lumbar strain. Appellant continued to experience pain, so she went to the emergency room. She underwent a magnetic resonance imagery (MRI) study and was referred to Dr. Sunder Krishnan, a neurosurgeon. After the employer’s claim representative suggested that she visit Dr. Cathey for a second opinion, appellant went to Dr. Cathey one time on January 8, 2002. After meeting with Dr. Cathey, appellant returned to Dr. Krishnan for therapy. She was treated by Dr. Krishnan until he released her in April 2002. Dr. Krishnan signed a form stating that the appellant had a nine percent impairment rating to the body that was more than fifty percent related to the injury at work. Dr. Cathey stated that he did not believe appellant sustained any impairment as a result of the August 24, 2001, injury. The administrative law judge denied her claim, and appellant appealed. The Commission adopted the administrative law judge’s decision, found that appellant “failed to demonstrate by a preponderance of the evidence that the compensable injury was the major cause of the permanent disability or need for treatment (9% permanent impairment rating),” and denied her claim. This appeal followed.
We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the findings are supported by substantial evidence. The Commission’s decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). However, where it is clear what the appropriate law is but the Commission fails to apply the law to the facts of the case, it is appropriate to reverse and remand. See, e.g., Westside High School v. Patterson, 79 Ark. App. 281, 86 S.W.3d 412 (2002) (reversing and remanding, stating that “the Commission must apply the appropriate law to the evidence before it to reach a conclusion.”)
We hold that the Commission erred in not rendering a conclusion of law on the only issue presented by the parties: whether appellant proved entitlement to the permanent partial impairment rating. The ALJ set forth the issue to be litigated as follows:
Is claimant entitled to a permanent impairment rating of 9% to the whole body (respondent says that claimant is not entitled to any permanent impairment rating)?
This issue is reiterated and addressed in the discussion portion of the ALJ’s opinion. Nevertheless, the conclusion of law specifically states that appellant failed to prove entitlement to permanent disability or the need for treatment because she did not prove that the compensable injury was the major cause therefor.
Arkansas Code Annotated sections ll-9-104(F)(ii)(a) and (b) (Supp. 2002) state:
(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
(Emphasis added.) Arkansas Code Annotated section 11-9— 102(14)(A) (Supp. 2002), defines a major cause to be more than fifty percent of the cause.
We hold that the Commission’s decision is based on a flawed application of Ark. Code Ann. § ll-9-102(F)(ii). Although the Commission’s opinion appropriately examined appellant’s claim regarding the issue before it of permanent impairment, the Commission’s conclusions addressed whether the compensable injury was the major cause of the permanent disability or need for treatment. We cannot perform appellate review until the issue raised and litigated is answered by the Commission.
This error is made more evident because a finding on entitlement to disability is premature without appellant first proving entitlement to some impairment rating. Arkansas Code Annotated section 11-9-102(8) (Supp. 2002) defines disability as “incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.” In Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003), we cited Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000), for the proposition that the percentage of a claimant’s permanent physical impairment must be established before the Commission can consider a claim for permanent partial-disability benefits in excess of the impairment. See also Ark. Code Ann. § ll-9-522(b)(l) (Repl. 2002).
In short, we hold that the Commission’s decision to deny appellant’s claim is based on an incorrect application of Ark. Code Ann. § 11-9-102(4) (F) (ii). Accordingly, we reverse that decision and remand the case so that the Commission can make appropriate findings of fact and conclusions of law for us to review.
Reversed and remanded.
Hart and Roaf, JJ., agree.
Griffen, J., concurs.
Neal and Crabtree, JJ., dissent.
In response to the dissenting judges, we must point out where we are in agreement. First, we agree that the correct “issue” was brought forward to the ALJ, the Commission, and framed to us on appeal, which was entitlement to the impairment rating. Second, we also agree that on appeal from a decision from the Commission, we perform a substantial-evidence review to determine if the findings of fact support the conclusion of law to grant or deny benefits. Where we differ is that, at present, the question of law went unanswered. The statutory law, as cited by the Commission and the ALJ, is inapplicable to the issue as framed and the facts as found. Permanent disability and need for treatment are not at issue. To offer an appellate opinion about whether the findings of fact constitute substantial evidence to support denial of this claim for an impairment rating, where no such conclusion of law has yet been made, is premature. | [
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Andree Layton Roaf, Judge.
Appellants Jose Flores, Alejandro Hinojosa, and Kervin Robertson entered conditional pleas of nolo contendere to possession of marijuana and were each sentenced to ten years’ imprisonment. On appeal, appellants argue that the trial court erred in failing to grant their motions to suppress the evidence obtained during an illegal search of sealed containers in their vehicle, which they allege was stopped without probable cause. We affirm.
At the suppression hearing, Trooper Richard Eads with the Arkansas State Police testified that on March 14, 2003, at approximately 2:18 p.m., he made a traffic stop of a vehicle that he had observed speeding on Highway 67 in White County. Eads stated that the vehicle was going seventy-four miles per hour in a seventy-mile-per-hour zone. Flores was driving, Hinojosa was the front seat passenger, and Robertson, the owner of the vehicle, sat in the rear seat. Eads testified that he asked Flores to bring his license and the vehicle registration and accompany him to his police car. While in the process of issuing Flores a warning ticket for speeding, Eads became suspicious based on appellants’ answers to questions asked during the traffic stop. For example, Elores stated that he and Hinojosa were from Houston, Texas, and were on their way to a one-day refrigeration seminar in St. Louis, while Robertson, who had Missouri tags on the vehicle, stated that he was on his way to visit family in Missouri. Eads testified that he found it unlikely that Flores and Flinojosa would travel that distance to attend a one-day seminar in St. Louis, that they would be wearing their uniforms during the journey, and that they would not know where they were staying in St. Louis. Eads testified that he asked Robertson for consent to search the vehicle and that Robertson gave his permission. According to Eads, he knew that Robertson was the owner of the vehicle because Flores and Robertson had told him that and because the vehicle was registered to Robertson. A police videotape of the traffic stop and the search was also entered into evidence.
During the search, Eads found two large freon bottles in a partially sealed box in the rear of the vehicle. He shook the bottles, and instead of the liquid he expected, the bottles appeared to be empty. Eads wondered why appellants would be attending a refrigeration seminar with empty freon bottles. He opened the seal on one of the bottles and smelled a strong odor of marijuana. On closer examination, Eads found that the bottles had been cut in half and resealed with a sealant. A large quantity of marijuana was found inside the bottles, and appellants were arrested and charged with possession of marijuana.
Motions to suppress were filed by appellants, arguing that there was no probable cause to. stop the vehicle and that the search of the vehicle was illegal. After hearing all of the testimony, the trial court denied the motions by letter opinion filed on September 10, 2003. The court found that the traffic stop was pretextual, in that it was not made because the vehicle was speeding but rather because of the race of the occupants and because the vehicle had out-of-state tags. However, relying on State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003), the trial court found that the fact that the stop was pretextual did not necessarily invalidate the subsequent search as long as the search itself conformed to the requirements of state and federal law. The court further found that Robertson’s consent to the search of the vehicle was voluntary and that the State met its burden of proof on that issue. The court stated that it was not relying on the audio portion of the videotape to show consent because it was of such poor quality, but stated that nothing on the videotape indicated that Robertson was under threat, duress, or coercion in giving his consent to the search. Finally, relying on Florida v. Jimeno, 500 U.S. 248 (1991), the trial court found that it was reasonable for Trooper Eads to conclude that the permission granted by Robertson included a search of any container found inside the vehicle and that the scope of the search did not exceed reasonable bounds.
Subsequent to the denial of their motions to suppress, appellants entered conditional pleas of guilty to the charge of possession of marijuana, reserving their right to appeal the suppression issue under Ark. R. Crim. P. 24.3(b). Appellants were each sentenced to ten years’ imprisonment.
Appellants argue on appeal that the trial court erred in failing to grant their motions to suppress the evidence obtained during an illegal search of sealed containers in a vehicle stopped without probable cause. In reviewing the denial of a motion to suppress, appellate courts conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We also defer to the superior position of the trial judge to decide the credibility of witnesses and to resolve evidentiary conflicts. Id.
Appellants first contend that the trial court erred by holding, consistent with State v. Harmon, supra, that a pretextual traffic stop of their vehicle did not require suppression of the evidence. In Harmon, the supreme court held that, unlike pretextual arrests, our state constitution does not support invalidation of a search because a valid traffic stop was made by a police officer who suspected other criminal activity. Id. Appellants claim that the ruling in Harmon was incorrect and that the issue should be revisited. However, this court lacks the authority to overrule decisions of the Arkansas Supreme Court. Brown v. State, 63 Ark. App. 38, 972 S.W.2d 956 (1998). The trial court was correct in this case in relying on Harmon and in finding that the fact that the stop of appellants’ vehicle may have been pretextual did not invalidate the subsequent consensual search of the vehicle.
Appellants also argue that there should be an exception to Harmon where it is clear that the traffic stop was racially motivated. As appellants recognize, this type of argument has previously been addressed in Whren v. United States, 517 U.S. 806 (1996), where the Court indicated that racially-motivated stops and arrests are an Equal Protection issue rather than a Fourth Amendment issue. Appellants nevertheless contend that the only procedure available to deter these types of actions is through the exclusion of evidence seized during the racially-motivated stop or arrest and that this court should hold that all evidence seized under these circumstances should be excluded under our state constitution. However, as stated earlier, this court does not have the authority to overrule the supreme court’s decision in Harmon holding that a pretextual stop, which is otherwise valid, is not a violation of our state or federal law.
Appellants next argue that there was no probable cause for the stop of their vehicle. Citing Ark. R. Crim. P. 3.1, appellants contend that an officer may only stop and detain a person when he reasonably suspects that the person is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. A traffic stop, however, can be distinguished from a Rule 3.1 detention. A police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Probable cause for a traffic stop exists when 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. Laime, supra; Travis, supra. Once the officer has made a valid traffic stop, he may detain the offending motorist while he completes a number of routine tasks related to the traffic violation, including computerized checks of the vehicle’s registration and the driver’s license and criminal history, as well as the writing up of a citation or warning. Laime, supra. This detention is unrelated to a Rule 3.1 detention. Id.
Here, Trooper Eads testified that appellants’ vehicle was traveling seventy-four miles per hour in a seventy-mile-per-hour zone and that he stopped the vehicle for speeding. Because the trial court found that the traffic stop was pretextual and that the officer did not stop the vehicle because it was speeding, appellants assert that the officer did not have probable cause for the stop. However, as the State argues, a finding that the stop was pretextual does not equate to a finding that there was no probable cause for the stop, as these are two different concepts. The trial court did not find that the vehicle was not speeding, but rather stated that the reason for the stop was not based on the speeding violation. Under Ark. Code Ann. § 27-51-201(c) (Repl. 1994), it is a violation of the law to drive a vehicle on a highway in excess of the speed limit. Because Eads had probable cause to believe that appellants were traveling in excess of the posted speed limit, the traffic stop was valid.
Appellants next challenge the validity of Robertson’s consent to a search of the vehicle. They first contend that Robertson’s consent was invalid because it was not reasonable for Trooper Eads to believe that Robertson had the authority to consent to the search, especially given that Flores was the driver. Citing Illinois v. Rodriguez, 497 U.S. 177 (1990), appellants argue that there must be facts available to the officer that would warrant a person of reasonable caution to believe that Robertson had authority to consent to the search. Contrary to appellants’ argument, such evidence was present in this case, as Eads testified that Flores told him that Robertson owned the vehicle, that Robertson told him that he was the owner, and also that the vehicle was registered to Robertson. According to Ark. R. Crim. P. 11.2, the consent to a search of a vehicle must be obtained by the person registered as its owner or by the person in apparent control of its operation and contents at the time consent is given. Here, Eads obtained consent from the person registered as the vehicle’s owner, Robertson, in compliance with Rule 11.2.
Appellants also argue that Robertson’s consent did not extend to the freon tanks contained in the vehicle. However, where there are no limits placed on the search, the consent to search includes any containers found inside the vehicle. Florida v. Jimeno, supra; Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). The standard for measuring the scope of a suspect’s consent to search is that of objective reasonableness, or what the typical reasonable person would have understood by the exchange between the officer and the suspect. Jimeno, supra. If the police wish to search closed containers within a vehicle, they do not need to separately request permission to search each container, although the suspect is free to limit the scope of the search. Id. Here, Robertson placed no limitation on the scope of the search, and Eads testified that appellants were standing by and watching as he searched the freon tanks, but did not object or attempt to stop him. Thus, it was reasonable for Eads to assume that the permission granted by Robertson included a search of any container found inside the vehicle, and the trial court did not err in denying the motions to suppress on this basis. The trial court’s ruling denying appellants’ motions to suppress was not clearly erroneous, and we affirm.
Affirmed.
Bird and Crabtree, JJ., agree. | [
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Terry Crabtree, Judge.
The Workers’ Compensation Commission reversed the decision of an Administrative Law Judge and found that the appellant, Leon Crawford, suffered a noncompensable idiopathic injury to his knee on February 13, 2002. On appeal, appellant claims that substantial evidence does not support the Commission’s denial of benefits. We reverse and remand.
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep’t Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002); Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). We readily acknowledge that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).
The appellee, Single Source Transportation, began employing appellant as a cement-truck driver on March 10, 1988. On February 13, 2002, appellant drove a load of cement for appellee to Kickapoo, Louisiana. Upon arriving at the destination, appellant stepped out of his truck, down two steep steps, and onto an oil field. As his foot reached the ground, appellant’s knee “gave” or buckled. As a result, appellant fell to the ground and began to feel pain in his knee. Appellant testified that “I opened the door, and there are two steps and then the ground. I grabbed hold of the steering wheel, and I stepped out on the last step and put my left foot on the ground, and it just gave way with me.” At the time of his injury, appellant was almost sixty years old:
After falling, appellant got up and proceeded to engage the truck’s air lines to release the cement. In order to accomplish this, appellant held onto the truck while maneuvering the air lines and hose. Appellant finished the process and returned to appellee’s plant. Appellant’s knee swelled and continued to hurt on his return trip. Ultimately, appellant drove to his home hoping that his knee would recover. The next day, appellant went to work, but at the end of the day with his knee still hurting, appellant notified appellee of his injury. Appellant went home, and appellee sent a company car to transport him to Southern Clinic for medical attention. After his examination at the clinic, appellant was taken off work for three weeks and referred to Dr. Frank Hamlin, an orthopedic physician in Texarkana.
Appellant presented to Dr. Hamlin one week after the fall, and Dr. Hamlin noted in his medical report:
I first saw [appellant] on 2-20-02 with chief complaint of pain and swelling of his left knee. He had an episode getting out of his truck on 2-13-02, at which time his knee buckled on him. As it did, he did have a twisting, flexion injury to his knee. He said immediately after that he could hardly walk. His knee became swollen almost immediately and it caused him to limp severely.. . He said previous to that, he had been having some soreness over the medial side of his knee when he would repeatedly use his clutch in his track. He evidently drives a large 18 wheeler. He said he has never had any acute episodes like this before. When I saw him he said his knee was not nearly as swollen as it was initially. When I saw him, he said he was placed on some Mobic by his family physician. We x-rayed him the first day I saw him and he did have some degenerative changes with some medial joint space narrowing. Other than that, the x-rays were not remarkable. . . MRI was ordered and did show a tear of the posterior horn of the medial meniscus and possible medical collateral ligament strain.
(Emphasis added.)
On March 14, 2002, Dr. Hamlin admitted appellant to St. Michael Health Care Center for orthroscopic knee surgery and a partial medial meniscectomy. The operative report reflects a preoperative diagnosis of internal derangement of the left knee and possible osteoarthritis of the left knee. The postoperative diagnosis reported a tear of the posterior horn of the medial meniscus of the left knee and osteoarthritis of the femoral intracondylar notch and of the medial femoral condyle. Following the orthroscopic procedure, appellant underwent injections in his left knee. Dr. Hamlin released appellant to work on May 4, 2002.
At the hearing below, appellant sought temporary-total disability benefits in addition to medical benefits for his specific-incident knee injury. We note that appellant did not claim benefits caused by a gradual-onset injury from repeated use of the clutch on appellee’s cement truck. After hearing testimony from appellant and one of appellee’s employees, the ALJ found that appellant suffered an unexplained compensable fall and awarded him temporary-total disability benefits as well as medical benefits. The Commission reversed the ALJ and found that appellant suffered a noncompensable idiopathic fall. We agree with appellant’s argument that his injury was neither idiopathic or unexplained but rather that he sustained a specific-incident injury.
As the claimant, appellant had the burden of proving his compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(I) (Repl. 2002). A compensable injury is one arising out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(I) (Repl. 2002). Arkansas Code Annotated section 11-9-102(4) (D) provides that a compensable injury must be established by medical evidence supported by objective findings. Objective findings are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16); Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). In order to prove a compensable injury the claimant must prove, among other things, a causal relationship between his employment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002).
The Commission found that appellant suffered a noncompensable idiopathic injury. We hold that this finding is not supported by substantial evidence. An idiopathic injury is one whose cause is personal in nature, or peculiar to the individual. See Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Little Rock Convention & Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987). Injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Where a claimant suffers an unexplained injury at work, it is generally compensable. Little Rock Convention & Visitors Bur., supra. Because an idiopathic injury is not related to employment, it is generally not compensable unless conditions related to the employment contribute to the risk. Id. Employment conditions can contribute to the risk or aggravate the injury by, for example, placing the employee in a position which increases the dangerous effect of a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. Id.
Here, we believe that appellant’s employment conditions contributed to his injury and thus cannot consider it to be a noncompensable idiopathic injury. In the course of his employment, appellant drove appellee’s cement truck to Louisiana. In order for appellant to enter or exit the driver’s compartment of the truck, he had to negotiate two steep steps. Vicky Dangerfield, who is employed by appellee in its accounting department, testified that the “bottom step is a pretty good distance off the ground. It is very hard for me to get into the truck. I went on one trip, and I required assistance.” At the time of the incident, appellant attempted to exit the truck by descending the steps to an oil field. As appellant made his final stride to the ground below, his knee “gave,” and as a result, he twisted it and suffered an injury.
We cannot say that the injury appellant suffered was simply personal in nature as it was caused while he attempted to exit his employer’s vehicle from an elevated position. As a result, appellant’s employment conditions contributed to his accident. Furthermore, we cannot say that appellant’s injury was unexplainable as his testimony fully informs us as to the circumstances surrounding his fall.
We reverse the decision of the Commission and remand for it to determine the extent of the injury suffered by appellant as a result of his fall, any disability resulting therefrom, and the amount of compensation to which he is entitled.
Reversed and remanded.
Hart, Griffen, and Roaf, JJ., agree.
Vaught, J., concurs.
Bird, J., dissents. | [
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Battle, J.
Annie Spears brought this action against A. H. Fox to recover a lot and a half of a lot in the city of Little Rock. She alleged in her complaint that this property belonged to William Spears in his lifetime; that Josiah Spears was his only child, and she was the only child of Josiah Spears; that her father died intestate, and left William Spears surviving him; and that William Spears, while seized and possessed of the property sued for in this action, died intestate, and left her his only heir him surviving.
The defendant answered and denied the material allegations of the complaint; and alleged that he, on the 15th of September, 1888, purchased the property of William Spears, and took possession thereof, and thereafter held the same adversely; and pleaded seven years adverse possession in bar of plaintiff’s right to maintain this action.
Plaintiff recovered judgment for one-half of the property in controversy, and the defendant appealed.
The evidence adduced at the trial tended to prove that appellee, Annie Spears, and Emma Fox, wife of appellant, are the only heirs of William Spears; and that he died seized of the property in controversy, and intestate.
There was evidence adduced by the appellant tending to prove that he purchased the property of William Spears on the 15th day of September, 1888, but took no deed, and thereafter held possession of the same.
In the progress of the trial S. S. Wassell testified that he knew Williams Spears in his lifetime., and the following interrogatories were propounded to him:
“Q. Did you ever have any talk with William Spears with reference to this property on Second and Byrd streets ?”
"Q. Mr. Wassell, tell whether or not Mr. Spears in 1888 or 1899 got you to draw a deed to a part of his property, stating at the time that he was deeding it to Asa Fox, and .told you that he had sold the property on the corner of Second and' Byrd streets to A. H. Fox, and wanted you to draw a deed of that property from him to A. H. Fox; that is, to the property in controversy, and whether you drew the deed at his request?”
And he declined to answer them on the ground that the relation of attorney and client existed between him and William Spears, and they (questions) asked him to divulge privileged communications from his client to him. The court sustained him and refused to compel him to answer. He was thereupon excused and retired. Afterwards he was recalled, and testified in response to interrogatories as follows:
“Q. When you were called upon by Mr. Spears to write the deed for Asa Fox, had Spears made any statement to you with reference to Ad Fox’s property?”
“A. Yes, sir.”
“Q. Had you been employed with reference to Ad Fox’s property at that time?”
“A. No.”
“Q. I mean with reference to any transaction between Spears and Ad Fox?”
“A. I might say that along about .that time I was employed by them jointly, Spears and Ad Fox.”
“Q. But at the time you were called upon with reference to the Asa Fox deed, you were not called upon as an attorney with reference to the Ad Fox property?”
“A. Yes; it was all about the same matter — in reference to these deeds he wanted me to draw. I was attorney for both of them, Mr. Spears and Ad Fox.”
“Q. (by the court.) Did the relation of attorney and client exist between you and Mr. Spears at that time?”
“A. With reference to these papers, it did. Of course, I could only have gone to see him in a professional capacity with reference to these papers.”
“Q. (by the court.) Did Mr. Spears employ you as an attorney, consult with you and talk to you about these matters, and get your advice about them in the relation of attorney and client?”
“A. I could not have talked with him in any other capacity than that of an attorney.”
He was asked, “Is it not true that at the time you were called upon to draw the deed for Asa Fox, Mr. Spears stated to you that he had made a deed to Ad Fox for this property down there?” The apppellee objected to the question, the court sustained the objection, and the appellant exce_pted.
The court instructed the jury, over the objections of the appellant, in part, as follows:
“5. The jury are instructed that if they believe from the testimony that the defendant and William Spears entered into a contract for the sale and purchase of the land in controversy, and that such contract was oral and not in writing, then, in order to take such contract out of the statute of frauds by reason of the possession of the defendant, it must appear from the evidence that the defendant took possession of said property solely under the contract and in reference exclusively to it.
“6. The jury are instructed that, to constitute a valid and effectual adverse possession, the possession must have been hostile in its inception, that is, from the time the defendant claims he purchased the property; that no possession could be adverse except where the person in possession held for himself to the exclusion of all others and under a claim of title entirely antagonistic to that of the true owner.
“7. Adverse possession is to be taken strictly and not to be made out by inferences, but it must be established by proof. Every presumption is in favor of possession, subject to the title of the true owner.”
And the court gave the following at the request of the appellant:
“7. If you find that the defendant entered into a verbal contract for the purchase of the land in question,. and took possession of it under the contract, and solely in reference to it, these facts take the case out of the statute of frauds, and the contract is as good to prove the sale as if it was in writing; and if you find that the defendant, while continuing in possession, made the payment agreed upon, his title became perfect, and is good against the claim of the plaintiff, although he has no deed or other written evidence of title.
“8. If you find from the evidence that the defendant was in possession of part of the property in controversy as a tenant of William Spears, and while in such possession purchased the property, then, to constitute possession under such.purchase, it is not necessary to actually change the possession; it is sufficient if the defendant at once asserted and claimed ownership and continued to do so. Such acts constitute a holding adverse to the former ow;ner and landlord, the former owner and landlord having knowledge thereof, and the statute of limitations begins to run from the time of such adverse acts.”
The trial court did not err in refusing to require witnesf Wassell to answer the first two questions propounded to him The relation of attorney and client existed between him and the William Spears mentioned therein, and the appellant by the questions sought a disclosure of privileged communications from client to attorney. The witness, under the laws of this State, was not at liberty to do so without the consent of client first had and obtained. Kirby’s Digest, § 3095; Bobo v. Bryson, 21 Ark. 388; Andrews v. Simms, 33 Ark. 774.
After the witness was recalled and he testified that he was employed by Spears find appellant jointly, the question which he refused to answer were not again propounded, but he was asked: “Is it not true that at the time you were called upon to draw the deed for Asa Fox, Mr. Spears stated to you that he had made a deed to Ad Fox for this property down there?” The failure and refusal to answer this question was not prejudicial, for appellant did not claim or prove that any such deed had been delivered to him, and without delivery it could have been of no effect.
The instruction numbered 5, and given over the objection of appellant, was substantially covered by instruction numbered 7, given at his request. Fie ought not to complain. Flis objection to it is that it is not based upon the evidence. But we think that he is mistaken. There was sufficient evidence upon which to base it.
Appellant's objection to the instruction numbered 6, and given over his objection, is that it told the jury to find in favor of appellee as to adverse possession, unless the possession of appellant was hostile from the time when he claimed to have purchased the property. This was error, but it was not prejudicial. There was no evidence, and he did not claim, that it was hostile, if it ever was, from any other period of time.
Instruction numbered 7, given over the objections of appellant, is ambiguous. As we understand it, it means that possession is presumed to be in subordination to the title of the true owner, until the contrary is proved. The defects in it should have been pointed out by specific objections, and appellant should have asked additional explanatory instructions, which was not done. A general objection was not sufficient. Fordyce v. Jackson, 56 Ark. 602; White v. McCracken, 60 Ark. 613; St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 624; McGee v. Smitherman, 69 Ark. 632; St. Louis, I. M. & So. Ry. Co. v. Norton, 71 Ark. 314; St. Louis, I. M. & So. Ry. Co. v. Pritchett, 66 Ark. 46; Williams v. State, 66 Ark. 246; Phoenix Ins. Co. v. Flemming, 65 Ark. 54.
Construing the instructions as a whole with reference to the evidence in the case, we find no reversible error in them.
The evidence is sufficient to sustain the verdict of the jury.
Judgment affirmed. | [
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Battle, J.
An action was brought in the name of Bodenheimer, Landau & Company against Robert Liddell, before a justice of the peace of Clay County, to recover the possession of certain personal property. Plaintiffs recovered judgment, and the defendant appealed to the circuit court.
In the circuit court (the term is not shown) plaintiffs represented to the court that the action was brought without their ronsent, and asked that it be dismissed, and thereupon S. D. Hawkins, who had possession of the property in controversy and claimed the same, appeared, and asked that he be substituted for plaintiffs, and that the action proceed in his name as such. The action was dismissed as to Bodenheimer, Landau & Company, and revived in the narrie of S. D. Hawkins as plaintiff. This order was not entered of record.
At the January, 1894, term of the Clay Circuit Court for the Eastern District, the action proceeded in the names of Bodenheimer, Landau & Company and S. D. Hawkins, plaintiffs, against Robert Liddell and John Matthews Apparatus Company, defendants, and Hawkins recovered judgment against the defendants for the property in controversy. This proceeding was had after the action was dismissed as to Bodenheimer, Landau & Company. On motion of the defendants the judgment in favor of Hawkins was set aside, and a new trial was granted.
At the August, 1895, term of the Clay Circuit Court for the Eastern District of Clay County, the action was called for trial, and the plaintiffs failed to appear. Judgment by default was rendered against Bodenheimer, Landau & Company in favor of the defendant, Robert Liddell, for the property in controversy and costs.
In August, 1901, Bodenheimer, Landau & Company filed an application in Clay Circuit Court for the Eastern District, in which they stated the foregoing facts, and asked that the order omitted from the record be entered nunc pro tunc. All parties appeared, and the court heard the application and the evidence adduced in respect thereto, and found that the order was made, and ordered that it be entered, and ordered that the judgment in favor of Liddell against Bodenheimer, Landau & Company for property be corrected so as to be,, against Hawkins, and to show that Bodenheimer, Landau & Company were and are not parties thereto; and Liddell appealed.
Parol evidence of an order omitted from the record, if satisfactory, is sufficient to authorize a nunc pro tunc order or judgment. Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12. The application for the order was not barred by the statute of limitations. 1 Freeman, Judgments (4 Ed.), § 73, and cases cited.
The court erred in setting aside or modifying a judgment which was actually rendered. It had no authority to set aside or modify a judgment after the term at which it was rendered has expired, on application for a nunc pro tunc order.
The nunc pro tunc order is affirmed, and the order setting aside or modifying a judgment rendered at a previous term is reversed.
Hibb, C. J., did not participate. | [
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Hill, C. J.
Gallaher was convicted of knowingly receiving stolen property. Without going into the evidence, it is sufficient to say that it was ample to sustain the verdict. Errors are assigned in the instructions, but the court fails to find any departure from established precedents.
Gallaher purchased the propeiW at night for a greatly reduced price of one Reed, who has pleaded guilty to stealing it. The property (ten sacks of sugar) was placed in stock in the store of Cunningham & Gallaher. Two witnesses for the State testified that Samuel Gallaher, father of the appellant, stated that the appellant was a member of the firm of Cunningham & Gallaher. Cunningham, the other member of the firm, also a State’s witness, testified that Samuel Gallaher, and not the appellant, was the member of‘the firm. The appellant claims that he was surprised at the evidence to the effect that he was a .member of the firm, and asked a postponement of the cause to enable him to get his father from an adjoining county as a witness to contradict these statements. The court refused the postponement. This is a matter in the sound judicial discretion of the trial judge, and for which a reversal can only be had when it appears that there is an arbitrary abuse of discretion. Such is not the case here. The appellant had the benefit of his own testimony and the other member of the firm, and the latter accredited by the State as her own witness, and his father’s testimony would have been merely cumulative. The testimony did not go to the gist of the case; the appellant, according to his own statement, managed and controlled the business for his father; and as hiis interest in the store, and consequently the purchase of goods therefor, only went to furnish a possible motive, it can not be said that his interest as manager and representative of his father was much less than as partner. The issue of fact was an unimportant one, and ■ the action of the cohrt was not arbitrary in refusing a continuance to enable appellant to fortify his other evidence.
Error is assigned to the court refusing this (the 12th) instruction: “I charge you that if you find from the evidence that the defendant, Hugh Gallaher, was not a partner in the firm of Gallaher & Cunningham, and had no finahcial interest in their business, then the jury would be authorized to consider this fact, together with all the other evidence and circumstances testified to and before you in evidence, as tending to prove whether or not the defendant received the sugar alleged to have been received, if you find he received it, knowing it to be stolen property at the time it was received.” This instruction was properly refused. Appellant admitted receiving and purchasing the goods, and the inquiry was as to his guilty knowledge, whereas this instruction sought to have considered his interest in the business as evidence tending to prove whether he had received it. If it had been drawn to have pointed out this lack of interest indicating a dearth of motive for purchasing with guilty knowledge, it might well have been given, and probably would have been; still the point was not important, as before stated, and could have had little, if any, bearing upon the question of appellant’s guilt, which was fairly submitted to the jury on abundant evidence.
Questions as to the admissibility of evidence are discussed; but, as they were not raised in the motion for new trial, they were waived.
The judgment is affirmed. | [
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Battle, J.
“The appellant, James B. Swing, a trustee, etc., brought this suit in the Monroe Circuit Court on April 9, 1902, against the Brinkley Car Works & Manufacturing Company, and alleged in substance that he is the trustee for the creditors of the Union Mutual Fire Insurance Company, of Cincinnati, Ohio, and that said Brinkley Car Works & Manufacturing Company was a corporation organized under the laws of the State of Arkansas; that said insurance company had been duly incorporated under the laws of Ohio, and that the Supreme Court of Ohio had disincorporated said insurance .company and ap-i pointed the plaintiff-appellant trustee for the creditors of said insurance company; that he accepted the trust, and brought this suit by order of the court appointing him. That said insurance company was a mutual one, organized under the laws of Ohio, and that section 3650 of the Revised Statutes of Ohio provided: 'Every person who effects insurance in a mutual company and continues to be insured, and his heirs, executors, administrators and assigns, shall hereby become members of the company during the period of insurance, shall be bound to pay for losses and such necessary expenses as accrue in and to the company in proportion to the original amount of his deposit note or contingent liability.’
“That said insurance company was doing business in the years 1889 and 1890, and that said defendant accepted from said insurance company two policies of insurance, No. 1745 for $2,000, held in force from February 1, 1889, to February I, 1890, and policy No. 3914 for $2,000, held in force from February 1, 1890, to December 19, 1890. That the contingent liability to assessment of said defendant on said policies under the by-laws of said company, and under the statutes of Ohio and under the'decree of the Supreme Court of Ohio, was and is five times the agreed annual premium, viz.: $700. That, by accepting and holding said policies, said defendant effected insurance in said insurance company during the time and in the amount aforesaid, and that by reason thereof said defendant became a member of said insurance company, and became legally and equitably liable for defendant’s just proportion of all unpaid losses and expenses incurred by said insurance company during the time said defendant held its said policies, and to pay such percentage on the amount of said contingent liability to assessment of said defendant’s said policies, as should be required by law. That the Supreme Court of Ohio, on June 11, 1901, rendered a decree, in which it fixed and determined the rate of liability of each member of the insurance com7 pany for losses and expenses in various periods of time. That said defendant, on or about December 9, 1901, was duly notified according to law by said trustee to pay said assessment, but that it refused to do so and has paid no part thereof, and alleges that there is due said trustee from said defendant on said assessment, the sum of $651.47, with interest thereon from January 9, 1902, and prays judgment for said sum. And afterwards, on May 13, 1902, the defendant filed its answer, admitting that defendant is a corporation organized under the laws of Arkansas, and denying that it accepted said policies, and that its contingent liability was $700; and saying that, if such policies were issued to defendant, they were not taken or accepted by authority or consent of defendant; and that defendant was not organized for the purpose of engaging in the insurance business; and that, if defendant did accept said policies, it did it in violation of the laws of the State of Arkansas set forth in section 1328 of Sandels & Hill’s Digest.”
The following judgment was rendered in this action:
“On this day, this cause coming on to be heard, the plaintiff appeared by Messrs. Thomas & Dee and P. A. Reece, Esq., and defendant by C. F. Greenlee, Esq., and, both parties announcing themselves ready for trial, this cause is submitted to the court sitting as a jury, upon the complaint, answer and exhibits, reply, agreed statement of facts and testimony adduced before the court, from which the court finds that the defendant is a member of the corporation, the Union Mutual Eire Insurance Company, of Cincinnati, Ohio. That, by the terms of the policy’ issued and the by-laws indorsed on the said policy, the defendant was not liable beyond the cash premium paid, and, having paid said premium in full on a policy issued for one year, and never having given a premium note, the judgment against said corporation is of no force and effect against the defendant; and 'the court finds that the defendant is not indebted to the plaintiff in any sum. It is therefore ordered and adjudged that the plaintiff take nothing, and that the defendant have judgment for all its costs herein expended.”
Plaintiff appealed.
No bill of "exceptions was filed in this case within the time prescribed by law or allowed by the court. We are left to determine from the findings of fact by the court whether the court committed any reversible error. It found that the appellee was not affected by the assessments made by the Supreme Court of Ohio against the Union’ Mutual Eire Insurance Company of Cincinnati, Ohio, because by the terms of the policy issued, and the by-laws indorsed thereon, the defendant was not liable beyond the cash premium paid, and because it paid the premium in full and never gave a premium note. The policy and by-laws are in no way made a part of the record, and we can not tell whether the court erred in its conclusions as to their effect. The presumption is in favor of the judgment of the trial court, and there is nothing in the record to remove that presumption.
Judgment affirmed. | [
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McCueeoch, J.,
(after stating the facts.) There is sufficient evidence to sustain the findings of the chancellor that the money was borrowed by the defendant for her own use, and the findings, not being against the clear preponderance of the evidence, will not be disturbed. Du Hadaway v. Driver, 75 Ark. 9; Sulek v. McWilliams, 72 Ark. 67; Greer v. Fontaine, 71 Ark. 605.
This court, in Sidway v. Nichols, 62 Ark. 154, said: “Our conclusion is that a married woman has, under the law, the right to purchase personal property, or borrow money for her separate use, and that the property purchased or money borrowed becomes her separate property. Her contract to pay for the same is a contract in reference to her separate property, and creates a personal obligation, valid ifi law and in equity, and this without regard to whether she owned any additional property or not.” It is unimportant what use she made of the money after she received it, as the lender was not bound to see that she actually used it for her own purposes and benefit. All that is necessary is that the money shall have passed to her as her own property to do with it as she pleased. The evidence shows that this was done in this case.
It is contended that the suit was prematurely brought because it was agreed, by indorsement upon the mortgage that “this deed is not to be foreclosed until the seventh or last payment is due.” It was not agreed, however, that payment should not be enforced until the last note became due. Only the date of foreclosure was postponed. The plaintiff could have brought suit on either of the notes any time after the respective dates of maturity, and the running of the statute of limitations would have been arrested by commencement of such suit. The only purpose of this suit was to have a lien declared on the land, and we are not called upon to determine whether the statute of limitations had begun against a foreclosure of the mortgage as to these notes, or whether this suit arrested the statute, as this question was not raised by the pleadings, and the court did not decree a foreclosure. For the same reason appellant was not prejudiced by the decree merely declaring the debt to be a lien on the lands. The court might, under the allegations of the complaint and general prayer for relief, have gone further and rendered a personal decree against the defendant for the amount of the debt, but it did not do that. The appellant can not complain that the relief granted to appellee stopped short of that which the pleadings and proof justified. If appellee is content to accept that relief only, no prejudicial wrong is done to appellant.
The suit is somewhat novel on account of the peculiarity of the contract in relation to postponement of foreclosure of the mortgage, but we find nothing in the decree of which appellant may justly complain, and the same is affirmed. | [
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Wood, J.
The cause was tried by the court sitting as a jury, and was heard upon “the complaint, the answer of the defendants, and their demurrers reserved therein to the said complaint, together with an agreed statement of the facts.” The court found the facts as set forth in the agreed statement, and declared the law generally both upon the demurrer and the facts t© be for the defendants.
In Smith v. Maginnis, 75 Ark. 472, in considering whether '“the fact that the notary public falsely certified that the parties had made affidavits to their ownership was the proximate cause of the injury,” we said: “Though the plaintiff may have relied upon the affidavit and the certificate of the notary public in making his purchase, still such certificate was not in law the proximate cause of his injury. The proximate cause of his injury was the act of the party who sold him homestead rights which he did not own; not the negligence of the notary in certifying that such party had sworn that he was the owner of the right. Oakland Savings Bank v. Murfey, 68 Cal. 459; Wyllis v. Haun, 47 Iowa, 614; Doran v. Butler, 74 Mich. 643; Hatton v. Holmes, 97 Cal. 208; Henderson v. Smith, 26 W. Va. 829; 53 Am. Rep. 139.” That case rules this. There is no such difference in the facts as will warrant the application of a different principle.
The whole case below was tried upon the theory that the notary and his bondsmen were liable to appellant because the notary falsely certified that one Mayberry personally appeared be-, fore him (the notary) to him known to be the person who executed the assignment and affidavit, and that certain other parties had made affidavit before him which were in corroboration of the affidavit of Mayberry. In other words, that appellees were liable because the notary had certified falsely as to the identity of the parties named in his certificates. It was alleged in the complaint that the affidavits were in proof of and to establish the right of the said Mayberry to a soldier’s additional homestead right, and also that “said assignment and affidavits, if true, would have established the right of the said Mayberry to a soldier’s additional homestead right under the laws of the United States.” It is set forth in the agreed- statement that said assignment and affidavits purporting to have been executed before said Bruton, if true, would have established the right of said plaintiff as assignee to the soldier’s additional right of the said Mayberry. And that said Coffin used all proper efforts to secure the rights purported to have been sold and transferred by said assignment and papers, but failed in his efforts by reason of the facts that said Mayberry, Jr., never signed and executed said assignment and affidavits as certified by said notary public. But all this falls short of alleging and proving that Mayberry had in fact a right of additional homestead entry. The utmost that these allegations <j,nd the agreed facts show is that Mayberry and his assignee could, if the facts so falsely certified to had been true, have established “a soldier’s additional homestead claim.” The very statement shows that the right had not in fact been established, but could be only upon condition that the affidavits were true. Well, unless Mayberry had additional homestead rights to transfer, it is certain that a false certificate of acknowledgment that he had executed an assignment of such right to another, and a false certificate that certain affidavits were made that would establish his right, if true, would not be the proximate cause of injury and the basis of liability. So the complaint is defective in not alleging that Mayberry had a right of additional entry which he could assign, and the demurrer should have been sustained.
Again, as to the facts, the trial court may have concluded that the agreed statement failed to show that Mayberry had a right of additional homestead entry. Giving to appellees the benefit of every deduction, the trial court may have drawn from the evidence in their favor, who can say that it was not warranted in such a conclusion? There is no affirmative statement that Mayberry had a right to additional homestead entry, and taking the whole agreed statement together, the intention and effect of it was to show that appellant purchased for a valuable consideration from one Hamm the claim of Mayberry to have a soldier’s right of additional homestead established, which had been assigned in blank, and appellant purchased this claim of Hamm upon the certificate of the notary that Mayberry had appeared before him and acknowledged the execution of the assignment of the claim, and made affidavit in proof of his right to have his claim approved or established, which affidavit, if true, would establish his right; and that certain other parties had made affidavits also in proof of Mayberry’s right to have his homestead claim established, which, if true, would establish such right ; and that such certificate of the notary that the persons appeared and made the acknowledgment and affidavits was in fact false, but that appellant believed it to be true, and acted upon the faith of it. This comes short of showing that Mayberry had a right of additional homestead already established, but only showed that he had assigned such right if it should be established or approved.
The question of whether or not the right of additional homestead could be established depended upon the truth of the facts set up in the affidavits. There is no statement in the complaint or the agreed statement that the facts set forth in the affidavits were in fact true. So the complaint and the proof failed to show a cause of action. We conclude that'what we said in Smith v. Maginnis, supra, is applicable to the pleadings and facts of this record, and the judgment is therefore affirmed. | [
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McCueeoch, J.
Appellant, A1 Burks, was convicted of the. crime of assault with intent to kill. The facts of the case are sufficiently stated in the opinion of this court on a former appeal. 72 Ark. 461. The prosecuting witness, W. W. Reiblin, who was the party upon whom the felonious assault is alleged to have been committed, testified that he identified appellant as one of his assailants, and appellant’s counsel, after laying the proper foundation by asking Reiblin if he had not on other occasions stated that he did not recognize the persons who assaulted him, to which questions he replied in the negative, introduced witnesses who testified that Reiblin had made such contradictory statements. The court permitted the State in rebuttal, over the objection of appellant, to prove that Reiblin stated to witness, a few hours after the assault, that he recognized appellant as one of the assaulting parties.
The question is therefore presented whether or not, where a witness has denied having made a statement contradictory of those made upon the witness stand, and proof is introduced tending to establish such contradictory statements, former statements of the witness consistent with those made by him upon the stand are admissible in support of his testimony. Authorities are not wanting sustaining the rule as to admissibility of such testimony Prof. Wigmore, after reviewing the decisions on the subject, casts the weight of his opinion in favor of its admissibility.' 2 Wigmore on Ev., § 1126. There are some courts which hold to the rule that the evidence is admissible for the purpose of corroborating or re-establishing the testimony of the witness on the main question, on the ground that the jury should be permitted to hear the previous consistent, as well as contradictory, statements and decide which are true, but that rule finds scant support in the adjudged cases, and is generally discredited. The courts which have adopted the rule of admissibility of the testimony put it on the ground stated by Prof. Wigmore, that it is for the purpose of supporting the witness in his denial of the contradictions. This view is stated by Judge Cooley in delivering the opinion in Stewart v. People, 23 Mich. 74. “The rule is,” says Reade, J., in State v. Parish, 79 N. C. 610, “that when the witness is impeached — observe, when the witness is impeached— it is competent to support the witness by proving consistent statements at other times, just as a witness is supported by proving his character; but must not be considered as substantive evidence of the truth of facts, any more than any other hearsay evidence.”
This view, while not without reason and authority to support it, is, we think, clearly against the weight of authority. The courts of the following States adhere to that rule: Indiana, North Carolina, Pennsylvania, South Carolina, Tennessee and Texas. Perkins v. State, 4 Ind. 222; Hinshaw v. State, 147 Ind. 334; State v. Parish, supra; McKee v. Jones, 6 Pa. 425; Tyler v. Tyler, 1 Hill. Eq. 77; Graham v. McReynolds, 90 Tenn. 673; Red v. State, 40 S. W. 408.
The courts of the following States are found arrayed against the admissibility of such evidence: Alabama, California, Georgia, Iowa, Louisiana, Massachusetts, Mississippi, Missouri, Montana, New Hampshire, New York and Vermont. Jones v. State, 107 Ala. 93; People v. Doyell, 48 Cal. 90; Mason v. Vestal, 88 Cal. 396; McCord v. State, 83 Ga. 521; State v. Vincent, 24 Iowa, 570; State v. Cady, 46 La. Ann. 1346, 16 So. 195; Commonwealth v. Jenkins, 10 Gray, 485; Hewitt v. Cory, 150 Mass. 445; Head v. State, 44 Miss. 731; State v. Taylor, 134 Mo. 109; Kipp v. Silverman, 25 Mont. 296; Reed v. Spaulding, 42 N. H. 114; Dudley v. Bolles, 24 Wend. 465; Lavigne v. Lee, 71 Vt. 167.
The courts of Missouri, New Plampshire and New York first admitted such testimony, but in later decisions excluded it. So the earlier English decisions held it admissible, but later repudiated the doctrine.
Greenleaf lays down the rule in accord with the majority of the courts as before cited, but states an exception, which is found in many decisions, “where a design to misrepresent is charged upon the witness in consequence of his relation to the party, or to the cause; in which case, it seems, it may be proper to show that he made a similar statement before .that relation existed.” Wharton, Cr. Ev., § 492; Greenleaf, Ev. (15 Ed.), § 469; 2 Phillips, Ev. 445, 446; Nichols v. Stewart, 20 Ala. 358; People v. Doyell, supra; State v. Vincent, supra; State v. Cady, supra; State v. Reed, 62 Me. 129; Red v. State, supra; State v. Flint, 60 Vt. 304; Ellicott v. Pearl, 10 Pet. (U. S.) 412; Conrad v. Griffey, 11 How. (U. S.) 480.
The facts .of the case at bar do not, however, fall within any of the exceptions noted in the cases cited. It is true that appellant introduced testimony tending to establish contradictory statements of the prosecuting witness, Reiblin, and that the latter entertained feelings of animosity toward him which prompted a design to misrepresent the facts and connect him with the assault as the assailant, but there was no testimony tending to show that the relations between the parties were in anywise changed between the dates of any of the alleged statements and the date of the trial at which the testimony of Reiblin was given which was sought to be contradicted. The proof of ill feeling and personal animosity all showed that it existed before the assault, and that there was no change in this respect after the assault. The state of feeling was precisely the same at the various times all the alleged .statements were made, and the only purpose which the previous consistent statements could serve would be to - corroborate the statement given under oath at the trial. This, we think, is clearly improper. We can see no distinction whatever in admitting the testimony for the purpose of corroborating the witness as to his statement on the main fact, and in admitting it for the purpose of corroborating his denial of the contradiction, unless, as in some of the cases just cited, there has been some change in the circumstances or relations between the parties which might have prompted a recent fabrication or design to misrepresent the facts. After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the witness under oath by his own words uttered on another occasion. It would add nothing to his statement upon the witness stand, either as to his testimony on the main issue, or as to his denial of the contradiction. A¥e are of the opinion that the admission of the testimony by the court was improper and prejudicial, and should not have been allowed.
Numerous other rulings of the court are assigned as error, but, after consideration of the whole record, we find nothing prejudicial to appellant.
But, for the error indicated in admission of evidence, the judgment is reversed, and the case remanded for a new trial.
Riddick, J., not participating. | [
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Riddick, J.
The defendant, D. T. Goddard, was indicted, tried and convicted of murder in the first degree for killing one Ed Ward by shooting him with a gun, on the 17th day of May, 1905, in Sevier County, Arkansas.
The brief filed for defendant presents only two questions: One of these was based on the fact that the record failed to show that the jury before which defendant was tried was sworn as the law requires. But the record has since been amended so as to show that the jury were properly sworn. The circuit court at a subsequent term heard the testimony of the jurors who tried the case and of other parties at the trial, and found from this testimony that the jury had been duly sworn as the law requires, and amended its record accordingly so as to speak the truth. Counsel for defendant contend with much force that it was improper to amend the record in that way on oral evidence alone. But, while there is conflict in the decisions of the different States on that point, the rule is established in this State that a court has authority to amend its records so as to make them speak the truth as to what was done, and may do so upon any competent and legal evidence. There is no difference between criminal and civil cases in the power of courts to amend their records so as to reflect the facts. Freel v. State, 21 Ark. 213; Binns v. State, 35 Ark. 118; Sweeny v. State, 35 Ark. 586; Ward v. Magness, 75 Ark. 12; Liddell v. Bodenheimer. post, p. 364; In re Black, 52 Kansas, 64, s. c. 39 Am. St. Rep. 331; In re Wight, 134 U. S. 136.
The other question is whether the court erred in refusing to grant a continuance on account of the physical condition of the defendant. The affidavit 'of the physician tended to show that defendant had sustained a buckshot wound, from which he suffered great bodily pain, and that' he was in no fit condition for a trial. So far as the record shows, this affidavit was all the evidence introduced at the trial of the motion for continuance. But the court found that “defendant walked some 14 miles after receiving the buckshot wound; that after he was put in jail he walked to the doctor’s office, some two blocks, until after the special term of court was called; that he had no fever at the time his case was called.” The court therefore found that defendant was physically and mentally able to undergo the ordeal of the trial, and he overruled the motion for continuance. Continuances, especially those based on the physical condition of the defendant at the time of the application therefor, are addressed largely to the discretion of the trial court. This must necessarily be so, for that court has the defendant before it in person, and can to some extent judge from his personal appearance whether his physical condition is such as to enable him to stand the ordeal of a trial. But this means which the trial court has of determining the defendant’s physical condition can not be preserved in the record except in a very imperfect way. No attempt is made in this record to state what the appearance of the defendant was at that time. further than it is shown by the affidavit of the physician and the finding of the court. If the condition of the defendant was such as described by the physician, we think the case should have been continued, for it would have been unnecessary, and more or less cruel, to put a defendant on trial for his life while he was suffering great pain from a dangerous wound, and when his chance of recovery would be jeopardized by the trial. But his testimony, as it appears from the record, seems very full and clear, and it does not appear that his condition was unfavorably affected by the trial. The findings of the court show that the court was of the opinion that he had no fever, and was able to undergo the trial without prejudice to his legal right to a fair trial and without jeopardizing his health.
While the affidavit made by the physician raises some doubt in our minds of the propriety of overruling this motion for continuance, we do not feel sufficiently convinced to overturn the judgment of the trial court on that point.
The State made out a strong case against the defendant. On the day of the tragedy Ward was engaged in hauling lumber, and the road along which he had to travel led by the field where the defendant was at work. There had been some ill feeling between them by reason of the fact that Ward, so defendant testified, had accused defendant’s son, a small boy, of taking an axe belonging to Ward.
Defendant, on the day of the killing, took his gun with him to the field near which he knew that Ward would pass. No one was present at the time of the shooting except these two. According to defendant’s own statement, he stood inside of his field and shot Ward, who was on the outside of the fence, because Ward used an abusive epithet and started to throw a rock at him. He shot Ward twice, and the trail of blood showed that Ward staggered a few steps, fell and died. Defendant ran off, and remained in hiding until captured.
We think the evidence shows clearly that he was guilty of some degree of unlawful homicide, and is sufficient to sustain the rerdict for the highest degree.
While, as before stated, we are not fully convinced that the court should not have granted the continuance, we do not think that we would be justified in setting this conviction aside and granting a new trial on that account, for we do not see that any prejudice resulted to the defendant from being tried at that time.
Judgment affirmed. | [
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McCulloch, J.
Appellee, R. M. Smythe, being the owner of a bond numbered 2034 in the sum of $1,000 with fifty-five semi-annual interest coupons of $30 each attached thereto, issued by the State of Arkansas on January 1, 1870, and due thirty years after date, applied to the Commissioner of State Lands to purchase a certain tract of Real Estate Bank lands situated in Phillips County at the price of $240, and tendered to the Treasurer of State eight of said interest coupons in payment therefor.
The Treasurer refused to accept said coupons on the ground that the bond- and coupons attached were barred because not presented within the time required by an act of the General Assembly approved May 3, 1901, and appellee thereupon presented to the circuit court of Pulaski County his petition for writ of mandamus to require the Treasurer to accept said coupons in pa3'ment for the land.
The Treasurer appeared, and demurred to the petition; the demurrer was overruled, and final judgment was rendered awarding the writ in accordance with the prayer of the petition, and the Treasurer has appealed to this court.
Said bond was issued by the State pursuant to the provisions of an act of the General Assembly of April 6, 1869, providing for the funding of the public debt of the State, the particular bond in question being a reissue, under said act, of Real Estate Bank bonds then outstanding. Section 10 of said act of 1869 pledged the faith of the State for the payment of said bonds and interest, and to provide annually a sinking fund to pay off the principal as the same should become due. Section 11 of the act provides that “the proceeds of all of the mortgages, notes, bills, and other securities in possession of the State, obtained as security for the' bonds issued to the Real Estate and State Bank, are hereby set aside as a sinking fund for the payment of the interest and principal of the bonds to be issued in pursuance of this act.”
The act of May 3, 1901, the validity of which is challenged by appellee, is entitled “An act to provide for the cancellation of certain State bonds, and to fix the rate of Sinking Fund tax.” It provides (sec. 1) that immediately after its passage “the State Treasurer shall make a call for all outstanding valid bonds of the State, except those of the issue of 1899;” and (sec. 2) that the publication should be made in a daily newspaper published in the city of Little Rock, and certified copies of the call should be filed with the secretaries of the stock exchanges of New York, Boston and St. Louis, six months before the day fixed in the notice for expiration of the time in which the owners of bonds were allowed to present bonds for redemption. Section 3 provides that the call or notice shall warn all holders of bonds to present same for redemption and payment within six months from the first day of said publication, “or that said bonds shall thereafter be null and void and nonpayable out of the treasury.” Section 5 provides that all valid bonds presented within the time prescribed shall be redeemed and paid by the Treasurer out of the moneys in his hands to the credit of the sinking fund, and the succceeding section provides for a levy of taxes to raise a sinking fund, out of the which the bonds shall be paid.
Section 4 of the act is as follows:
“All persons who shall hold any of said valid bonds, and shall neglect or refuse to present same to the Treasurer of State for redemption within the time prescribed by this act and set out in said notice, shall thereafter be debarred from deriving any benefit from same; and said bonds shall thereafter be invalid and nonpayable. The Treasurer of State shall, upon expiration of the period of presentation and redemption herein fixed, indorse on the record of each of said bonds herein called in but not presented that same is barred of payment by the provisions of this act, and same shall no longer be carried on the books of the Treasurer or Auditor as part of the valid indebtedness of this State.”
Appellee in his petition attacks the validity of the act of May 3, 1901, on the following grounds:
“A. Because said act seeks to deprive the owner of this bond of his property, without due process of law, by canceling said bond without payment, in violation of the Constitution of the State of Arkansas, and of the Constitution of the United States.
“B. Because said act seeks to call in or to cancel, without payment, an obligation of the State of Arkansas, under terms and condition which were not the law, and not therefore a part of the contract at the time of the issuance of said bond, and thereby impairs the obligation of the contract between the State of Arkansas and the holder of the bond, and said act is in conflict with the Constitution of the State of Arkansas, and the Constitution of the United States.
“C. Because the time within which to present said bond for payment is too short, and in violation of public policy.
“D. Because said act does not repeal section 4866 of Kirby’s Digest, providing for the acceptance of said bonds in payment of the purchase price of Real Estate Bank lands belonging to the State of Arkansas.”
A feature of both the first and second contentions of appellee, that the act in question seeks to call in and cancel the bonds of the State without payment thereof, can easily be disposed of by reference to the express terms- of the act itself. The express object and purpose of the act is to call in the bonds for payment and redemption, and not for adjudication as to their validity or cancellation without payment. No unreasonable provisions are found in the act requiring the bondholder to submit his bond to the Treasurer or any other person or board for final determination as to its validity. It is true that the act authorized the Treasurer to pay valid bonds only, and thereby imposed upon him the duty of ascertaining the validity of all bonds presented for payment; but his adverse decision as to the validity of a bond was in no wise binding upon the bondholder, to whom the courts are always open for an adjudication of such questions. In this respect the act in question is entirely different from the statute condemned by this court in McCracken v. Moody, 33 Ark. 81, whereby holders of school district warrants were required to present them within a fixed time for cancellation and reissue, and to submit them for final determination as to their validity to a board composed of the county judge and county clerk.
It is urged against the validity of the statute that it is in violation of the Constitution of this State and of the Constitution of the United States, because the time within which the bonds must have been presented was too short, and the effect was to deprive the holder of his property “without due process of law,” and that it impaired the obligation of the contract between the State and its bondholders inasmuch as, at the date of the issuance of the bond, no authority existed in the law for peremptorily calling in such obligations.
We do not think either contention is sound. The statute merely prescribes a period of limitation within which outstanding past-due bonds of the State might be presented for payment and redemption. That the Legislature may prescribe a period of limitation within which rights may be asserted, even though no limitation existed when the right accrued, or may shorten a period of limitation which existed when the right accrued, is too well settled now for controversy. The only restriction upon that power is that the added limitation must be reasonable and must afford an ample opportunity for the assertion of existing rights, otherwise the effect would be to impair the obligation of a contract or to deprive a person of property without due process of law.
Chief Justice Waits in delivering the opinion of the court in Terry v. Anderson, 95 U. S. 628, said: “This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect (citing Hawkins v. Barney, 5 Pet. 451; Jackson v. Lamphire, 3 Pet. 280; Sohn v. Waterson, 17 Wall. 596; Christmas v. Russell, 5 Wall. 290; Sturges v. Crowninshield, 4 Wheat. 122). It is difficult to see why, if the Legislature may prescribe a limitation when none existed before, it may not change one which has already been established. The parties to .a contract have no more a vested interest in a particular limitation which has been fixed than they have in an unrestricted right to sue. * * * In all such cases the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the Legislature is primarity the judge; and we can not overrule the decision of that department of the Government unless a palpable error has been committed.”
The same doctrine has been announced by that pourt in the following cases: Koshkonong v. Burton, 104 U. S. 668; Vance v. Vance, 108 U. S. 514; In re Brown, 135 U. S. 703; Turner v. New York, 168 U. S. 90; Saranac Land & Timber Co. v. Comptroller of N. Y. 177 U. S. 318; Wilson v. Iseminger, 185 U. S. 57.
To the same effect see Cooley’s Const. Lim. (7 Ed.), p. 523; 2 Lewis’ Sutherland, Stat. Const. § 668; Meigs v. Roberts, 162 N. Y. 371; Bigelow v. Bemis, 84 Mass. 496.
It being therefore clear that the Legislature had the power to pass a statute fixing a period within which the State’s obligations should be presented for payment and redemption, it only remains for us to determine whether the statute in question prescribed a reasonable limitation upon the right of presentation. Of this the Legislature is primarily the judge, as we have already seen. Koshkonong v. Burton, supra.
“It is essential,” says Judge Cooley, “that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the Legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar. unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.” Cooley’s Const. Lim. (7 Ed.), p. 523.
In determining whether or not the statute is reasonable, the court must consider the circumstances under which it is made to apply, and also whether the notice provided for is reasonable.
“It is evident from this statement of the question that no one rule as to length of time which will be deemed reasonable can be laid down for the government of all cases alike. Different circumstances will often require a different rule. What would be reasonable in one class of cases would be entirely unreasonable in another.” In re Brown, supra. However, a reference to cases will illustrate the shortest periods which the courts have approved as reasonable. The shortest statute of limitation of this State which has theretofore been passed upon by this court is the two years statute as to suits to recover lands held under sales for nonpayment of taxes, and the court has repeatedly upheld the statute. Ross v. Royal, 77 Ark. 324; Finley v. Hogan, 60 Ark. 499.
In Terry v. Anderson, supra, a statute which limited the time for bringing suit to nine and a half months was held not unreasonable.
In Turner v. New York, supra, the Supreme Court of the United States, following the decision of the New York Court of Appeals in Meigs v. Roberts, supra, held that a statute of that State providing that deeds from the Comptroller of the State of lands in the forest preserve sold for nonpayment of taxes should, after having been recorded for two years and in any action brought more than six months after the act took effect, be conclusive evidence that there was no irregularity in the assessment of the taxes, was a statute of limitation, and as such was reasonable and valid. This decision was also followed in Saranac Land & T. Co. v. Comptroller, supra, where Mr. Justice McKenna, speaking for the court, said: “The decision (in Turner v. New York) establishes the following propositions:
“1. That statutes of limitations are within the constitutional power' of the Legislature of a State to enact.
“2. That the limitation of six months was not unreasonable.”
In Vance v. Vance, supra, the same court upheld as reasonable a provision of the Constitution of the State of Louisiana adopted in 1868, and a statute pursuant thereto passed March 8, 1869, requiring that all “tacit mortgages [in favor of a minor on the property of his tutor] and privileges now existing in this State shall cease to have effect against third parties after January 1, 1870, unless duly recorded.” The statute gave only the period from the date of passage March 8, 1869, until January i, 18704 within which such mortgage? might be recorded, and the court held it to be a reasonable provision, even against an infant.
In Krone v. Krone, 37 Mich. 308, the court, by Judge Cooley, upheld a statute shortening the period of limitation to one year on causes of action then existing. In Osborne v. Lindstrom, 9 N. D. i; a statute under which an existing cause of action could be asserted within nine months after the statute went into effect was upheld as reasonable. In Bigelow v. Bemis, supra, the Supreme Court of Massachusetts held that a statute was reasonable which shortened the period of limitation and left about five months within which an existing cause of action might be asserted.
Applying the rule illustrated by these cases, we see no grounds upon which the statute under consideration can be held to be unreasonable.
It must be remembered that when this statute was passed the bonds were past due about a year and a half. The statute required the notice to be published in a daily newspaper in the capital city of the State, and certified copies to be filed with the secretaries of the stock exchanges of New York, Boston and St. Louis for six months before the expiration of the time for presenting the bonds for payment.
It is alleged in the petition that appellee was, at the time of the passage of this act and the publication of the notice, without the limits of the United States, and had no information thereof. It is argued that the statute was unreasonable because a bondholder so situated could receive no notice of the terms of the statute. The same argument could be made in favor of a bondholder in foreign lands if the statute had given six years, instead of six months, for presentation if he had been making no effort to secure payment of his matured demand against the State. The Legislature doubtless had in contemplation, when it fixed a short period, that the bonds were past due, and that the holders were accessible and in waiting for payment. It was not unreasonable to anticipate such a condition, and indulge the reasonable presumption that the holders of matured bonds would receive notice given in the manner pointed out by the statute. It is known that such securities are generally handled through the medium of the stock exchange in the principal cities of the country, and that information concerning their value may be ascertained through those channels.
We can not say that the statute imposed such unreasonable terms, either as to the length of time or adequacy of the notice, that it deprived the bondholder of his property “without due process of law,” or impaired the obligation of the contract.
Again, it is argued that the statute in question impairs the obligation of the contract if it be construed to bar the bondholder of using the bond in payment of Real Estate Bank lands, as provided by statute. Kirby’s Digest, § 4866. The statute just cited provides that such bonds shall be receivable in payment of the purchase price of Real Estate Bank lands, but it was enacted February 26, 1879, long after the issuance of the bonds, and therefore its provisions did not enter into and become a part of the contract. But, conceding that they did, the contract was in no wise impaired by the act of May 3, 1901, as payment of the bond in money was provided for, and would have been made if it had been presented. The Supreme Court of the United States in the case In re Brown, supra, where a statute authorizing the issuance of refunding bonds, as an inducement for acceptance of the bonds, provided that they should be receivable for taxes, held that a subsequent statute limiting the time within which the same might be so used was void because it impaired the obligation of the contract. The decision was placed upon the ground that, as long as the bonds remained unpaid, the holder had, according to the terms of the original statute authorizing the issuance of the same, the right to use them in payment of taxes, and that a restriction of that right impaired the obligation to that extent. No provision was made for payment of the bonds within the limits prescribed by the new statute, and the court found that it would be impracticable for the bondholder to use all the bonds in payment of taxes within the time prescribed.
The statute we are now considering is vastly different in its operation. There can be no higher method of discharging a past due obligation than by payment in money; and when this method of payment was provided by the statute, the bondholder sustained no impairment of his contract by being deprived of the right to use it in payment for lands.
Lastly, it is contended that the statute does not in express terms repeal the act of 1879, making the bonds receivable in payment of the purchase price of Real Estate Bank lands, and should be construed not to deprive the holder of that right given by the former statute. The statute in the broadest terms provides that bonds not presented within the time prescribed should thereafter be treated as invalid and barred for all purposes. By no sort of reasoning can the act be construed to leave the bonds in force fo® the purposes of use in payment for lands purchased from the State.
The circuit court erred in awarding the writ of mandamus, and the judgment is reversed and cause remanded with directions to sustain the demurrer to the petition. | [
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BattxE, J.
'In March, 1906, F. O. Butt appeared before the grand jury of Pulaski County in obedience to a summons to testify. Among many questions propounded to him by that body he refused to answer the following:
“1. . Do you know where room 2x5 in the Fulk Building in the city of Little Rock is?
“2. Did you not, during the last session of the last Legislature, have a key similar to the one which I now show you, for the purpose of getting in and out of room 215, Fulk Building?
“16. Did you not use free transportation during the last term of the Legislature ?
“17. Have you during your term as senator accepted or used, or both accepted and used, free transportation from the St. Louis, Iron Mountain & Southern Railway Company, or what is commonly known as the Frisco Railway, or the Choctaw, Ok. & Gulf Ry. Co., or the Rock Island Ry. Co. ?
“20. Please examine the letter dated May 9, 1903, which is addressed to T. L. Cox and signed F. O. Butt, and state whether you wrote -the letter.
“21. Please examine the letter written June 9, 1903, addressed to Thomas L. Cox and signed F. O. B,, and state whether you wrote that letter.
“22. Please examine the letter of October 7, 1904, and signed Butt, and state whether you wrote that letter.
“23. Please examine the letter dated May 25, 1903, and the slip which is pinned to it, dated August 6, and state whether or not the letter dated May 25, 1903, is not the reply of T. L. Cox to you, answering your letter of May 19, 1903, and whether or not you wrote the slip dated August 6, and attached it to Cox’s letter of May 25, and returned Cox’s letter to him with the slip of August 6 attached to it.
“25. Did you write to the president of the street-railway company of Eureka Springs, during the”, last Legislature, and state to him that it would be necessary for the company to put up $1,000, or some amount, to defeat the Holland bill which affected street railways, stating in your letter that you did not want any for yourself, but the other boys would have to have some; did you write such a letter in substance and effect ?
“31. Did Representative Fuller deliver to you any mileage or mileage books during this last General Assembly of this State?
“32. Did you not tell Mr. James, Fuller’s partner, that Fuller had delivered to you a mileage book?”
Thereupon the foreman of the grand jury proceeded with the witness, F.‘ O. Butt, into the presence of the Pulaski Circuit Court, First Division, and there stated to the court that the grand jury had propounded to the witness the foregoing questions, and that he had refused to answer them; and the court, having heard the witness, decided that he was bound to answer the questions, and inquired of him if he persisted in his refusal, and, he having answered that he did, committed him to the jail of Pulaski County until he expressed a willingness to answer them, or until the further order of the court. Witness now seeks by certiorari to have such proceedings set aside.
It is argued that petitioner has mistaken his remedy, and that appeal is his mode of relief. In Cossart v. State, 14 Ark. 538, this court held that “whatever may be the remedy, where the inferior court, in punishing for contempt, shall exceed its lawful authority or jurisdiction, there is none according to existing law, by writ of error or appeal.” Among the reasons given for such ruling, the court said: “If a contumacious witness, juror, party litigant, or counsel be entitled to an appeal or writ of error, he could also claim the full benefit of a supersedeas or stay of execution of the sentence by complying with the statute in such cases, and thereby effectually check the machinery of the court in its operation, and frustrate the wholesome administration of the law.” But it is said that this rule-has been changed by an act entitled “An act to permit defendants in felony cases to give bond after conviction in the circuit court,” approved May 6, 1899. But an examination of that act will show that it does not extend the right of appeal, but regulates the manner in which it shall be granted, and gives to appellant the right to bail during the pendency of the ■ appeal, and regulates the proceedings upon forfeiture of bail.
Petitioner, Butt, contends that a witness can not be punished for contempt for refusal to answer irrelevant questions. If a witness is interrogated before a court or officer about a matter entirely outside of its jurisdiction, he may refuse to testify. This, of course, does not authorize him to refuse to answer questions propounded in a legitimate cross-examination. But, if the court or officer has jurisdiction of the subject-matter involved, a witness should not be permitted to refuse to answer a question on the ground that it is irrelevant. To permit him to do so against the opinion of the court or officer taking his testimony would “be subversive of all order in judicial proceedings. The fact that such questions are irrelevant or improper” furnishes no reason for impeaching the commitment of the witness for refusing to answer them. Ex parte McKee, 18 Mo. 600; People v. Cassels, 5 Hill (N. Y.), 165; Bradley v. Veazie, 47 Me. 85; Rapalje on Contempt, § 66, and cases cited.
A statute of this State, section 3087 of Kirby’s Digest, provides : “In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.” This has been held to be a valid statute by this court. State v. Quarles, 13 Ark. 307; Cossart v. State, 14 Ark. 539; Pleasant v. State, 15 Ark. 649; State v. Bach Liquor Co., 67 Ark. 163.
In State v. Bach Liquor Company, supra, the court held that the word “concerned” in this statute is used in the sense of the word participants. It is said: “In relation to what crime shall he be sworn? Manifestly, the crime in the commission of which he participated with the defendant in whose trial for which he is sworn. In what criminal prosecution is he protected against his testimony? Obviously, criminal prosecution for the offense of which he was sworn to testify — ‘the same offense.’ His protection is limited. He is not protected against the use of his testimony in other prosecutions. To 'the extent of the protection offered by the statute, he can be compelled to testify as to facts incriminating'himself; but beyond this he can not be required to go in that direction, without violating the Constitution.” Ac cordingly the court held that “an infant over the age of eighteen years, called to testify against a saloonkeeper indicted for selling liquor to him without the written consent of his parents or guardian, is privileged to refuse to answer where his answer would tend to establish his guilt of another crime, namely, procuring liquor without informing the saloonkeeper that he was a minor.”
In cases in which the statute does not provide for protection, a witness can not be compelled to criminate himself. He may refuse to answer all questions the answers to which may criminate him. But who shall be the judge as to the crimination — the court or witness? If the court, how can'he decide? The witness can not be required to show how an answer can criminate him.
In Regina v. Boyes, 1 B. & S. 311, 321, Chief Justice Cock-burn said: “To entitle a party, called as a witness, to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer, * * * * [although] if the fact of the witness being in danger be once made to appear, great latitude should be allowed to “him in judging for himself of the effect of any particular question. * * * Further than this, we are of the opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things — not a .danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.”
In the Burr trial Chief Justice Marshauu said that the rule which, it is conceived, courts have generally observed, is this: “When a question is propounded, it belongs to the court to Consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege whch is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court can not participate with him in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims.” United States v. Burr, 25 Fed. Cas. p. 38.
Mr.. Justice Mitchell, in State v. Thaden, 43 Minn. 253, 255, said: “All the authorities agree to the general proposition that the statement of the witness that the answer will tend to criminate himself is not necessarily conclusive, but that this is a question which the court will determine from all the circumstances of the particular case, and the nature of the evidence which the witness is called upon to give. * * * It would be difficult to conceive of an instance where the circumstances of the case, and the nature of the evidence called for, would be entirely neutral, in their probative force upon the question whether or not there was a reasonable ground to apprehend that the answer might tend to criminate the witness. After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the'.English cases, and adopted and followed by Chief Justice Cocicburn, in Regina v. Boyes. * * * To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial.”
We think that the conclusion of Mr. Justice Mitchell as to the rule is correct. See 3 Wigmore on Evidence, § 2271, and cases cited.
According to the test stated, should witness Butt have been required to answer the questions propounded to him by the grand jury which he refused to answer?
Questions numbered x and 2 in reference to room 215 in the Bulk Building should have been answered. They were preliminary to other questions propounded to the witness at the same time, which he refused to answer, but offered to do so in the circuit court, and has not yet answered. The object of these questions. 1 and 2, included, it seems, was to ascertain whether the room referred to was not a place where persons offering and receiving bribes met, and where he received a bribe or bribes. We can not see how any information acquired by answers to questions 1 and 2 could have been used for any purpose except to show that the room 215 was used as a place of meeting of two or more persons. If he knew that such persons committed bribery there, although jointly concerned, he could be compelled under the statutes of this State, to testify and tell what he knows in relation to the same. There is no reasonable ground to apprehend that any answer to the questions will criminate witness beyond what he can be required to do under the statute.
He should not have been required to answer questions numbered 16 and 17, as to the acceptance and- use of free transportation by the railroads. A direct answer to these questions may criminate him.
The statutes of this State provide:
“No railroad or transportation company organized or doing business in this State under any act of incorporation or general law of the State now in force or which may be hereafter enacted shall grant any free pass in the cars or other modes of conveyance over the line of any such railroad or transportation company, for any length of time, or for any distance, to any officer of this State, legislative, executive or judicial, whereby any such officer may be transported for any length of time or for any distance over the line of any such railroad or transportal.'cn company, either free of charge therefor or for less compensation than that demanded or received from the general public.”
“Any such railroad or transportation company that shall grant any free pass to any such officer in violation of this act shall forfeit and pay for every such offense not less than two hundred dollars, nor exceeding two thousand dollars, to be recovered in an action at' law brought in the name of the State by the prosecuting attorney, etc.
“Any such officer, legislative, executive or judicial, of this State, who shall accept and use any such free pass to be transported for any distance over the line of any such railroad or transportation company, either free of charge or for less compensation than that received therefor from the general public, shall, for every case where such pass is used, be deemed guilty of a misdemeanor, and on conviction thereof shall be subject’to a fine of not less than twenty dollars nor more than two hundred dollars, and shall be removed from office,” etc. Kirby’s Digest, § § 6694, 6695 and 6697.
By the violation of these statutes only one crime or misdemeanor is committed, and that is committed by the officer accepting and using the free pass. In this case the witness, Butt, being a member of the General Assembly of the State of Arkansas, by accepting and using a free pass issued by a railroad company in this State, committed a misdemeanor for the prosecution of which he only is liable, and in relation to which he can not, against his consent, be sworn or required to testify under section 3087 of Kirby’s Digest. State v. Bach Liquor Company, 67 Ark. 163.
In the form questions numbered 20, 21, 22 and 23 were propounded to witness it can not properly be held that he ought to have been required to answer. The letters referred to were a part of the questions, and do not appear in the record before this court, and it does not appear that they were submitted to or examined by the circuit court. Without knowing their contents, we can have no conception as to the information sought by the questions. Question numbered 23 is objectionable for the further reason that it does not submit the letter of May 19, 1903, referred to therein, to witness for examination before answering. These questions may yet be propounded by the grand jury to the witness in an amended form.
Question numbered 25, in which reference is made to a suggestion to the president of the street-railway company of Eureka Springs as to the necessity of “putting up” money to defeat the Holland bill in the Eegislature, ought to have been answered. The grand jury had the right to propound it for the purpose of acquiring information as to indictable offenses. Its object, obviously, was to obtain information as to bribery, if any, of the members of the General Assembly. If witness Butt was con cerned in such bribery, it must have been jointly with others. In that event he could have been required to testify under the statute.
Questions numbered 31 and 32, as to mileage or mileage books delivered to witness, should have been answered. No sufficient reason is shown for the refusal to answer them, except that the answers to the same by the witness might criminate him. If the mileage was delivered to him for a lawful purpose, his answer could not do so. If, however, it was delivered to him by another person as an inducement to commit a crime, and he committed the crime, such person would be jointly concerned with him in the commission of- the crime, and he could be required to testify under section 3087 of Kirby’s Digest. Of course, if- no crime was committed in consequence of the delivery of the mileage, he could not criminate himself by answering the questions.
The judgment of the circuit court is affirmed except in so far as it is inconsistent with this opinion.
Riddick, J., did not participate. | [
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