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Wood, J.,
(after stating the facts.) AVe find no reversible error in the instructions of the court. They cover the various' phases of the evidence, and are in accord with principles announced in many decisions of this court. We find it unnecessary to review them critically, for the reason that appellant’s own evidence, we think, would fully justify the' jury in returning against him a verdict for murder in the second degree.
The refusal of the court to permit appellant “to introduce George Green on the proposition of having been with Jett Lewis [ the appellant] the day the lumber was missing” was not error. It had no connection whatever with the case, in the form presented. The fact of George Green having been with the appellant on the day the lumber was missing throw's no light, that we can see, upon the- fatal rencounter. Moreover, if this were error, it is not preserved in the motion for new trial. For the 11 th ground of the motion is the only one that calls attention to the refusal of the court to allow George Green to testify, and it is not responsive to the ruling of the court as reflected by the bill of exceptions.
If appellant were only guilty of murder in the second degree, as the jury finds, the punishment seems severe under the facts as disclosed alone by his testimony, but we have not been asked, and do not feel at liberty, to reduce the punishment, since we would not have disturbed a verdict for a higher degree.
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Wood, J.,
(after stating the facts.) Appellant contends that it did not offer the reward. The proof showed that one who had acted for more than three years under the title and in the capacity of general manager of the road, with the knowledge of the president, had posted the reward. He had received the card offering the reward by express from the office of the vice-president in St. Louis, with instructions to post same. This was done at every station, and the president of the road passed over it as often as every ten days.
In Central Railroad & Banking Company v. Cheatham, 85 Ala. 292, it was held that a railroad corporation has the implied power to offer a general reward “for the detection, apprehension and bringing to justice of persons obstructing the road,” and that authority to offer such rewards'is incident to the business and duties of the superintendent, and to the purposes of his department, and consequently within the scope of this agency. This is sound doctrine. But appellant contends that the agency of Kress has not been established by competent proof. The court ruled that the agency of Kress could not be established by what he said, but-that his acts in the capacity of superintendent and general manager might be considered. This was correct, since there was proof to justify the conclusion that these acts were assented to by the company. St. Louis, I. M & S. Ry. Co. v. Bennett, 53 Ark 208. We are of the opinion that the proof was sufficient to show that Kress was the superintendent and general manager of the road he was seeking by the offer of the reward to protect. But, if not, still appellant is shown to have had knowledge of his acts as superintendent and general manager, for he had acted in that capacity and under, that title for more than three years, and appellant had not repudiated any of his acts as such. And appellant is shown to have had knowledge, not only of his acts in general, but of this specific act, for the knowledge of its president would be sufficient to show that the company had knowledge. The company can only act through its representatives. The pres ident of the company, as we have said, went over the road every ten days, and these rewards were posted at every station. This and other evidence, such as the fact that the reward came from the office of the vice-president, was entirely sufficient to show that the company had knowledge of the act of Kress in offering the reward. In Central Rd. & Banking Co. v. Cheatham, supra, the court said: “On questions of ratification, facts that circulars were posted at various places on the line of the railroad, by direction of an employee who was under the control of the superintendent, and remained posted for several months and until after the rendition of the service, were proper to go to the jury as tending to show that the officers of the company were cognizant of the superintendent’s act in offering the reward.”
Appellant contends that, before it could be held" liable, it was essential that the appellee prove that Zach Furlow placed obstructions upon appellant’s track within the terms -of the published reward. Appellants contend that there is no such proof, and that the papers and record of the proceedings showing that Zach Furlow had been arrested and convicted of the criminal offense in which he was so charged was not sufficient to show that appellant’s track had been obstructed in the manner set forth in the offer of reward, and appellant objected to such papers and record going to the jury as evidence of that fact. There is in the record an affidavit made by appellee before a justice of the peace charging Zach Furlow, with others', of the offense of “maliciously placing obstructions on the Arkansas Southwestern Railroad.” Appellee testified that he procured the arrest of Zach Furlow on this charge, and assisted in his prosecution for same because of the offer of the reward. The indictment on which Zach Furlow was convicted in the circuit court charged that he “did unlawfully, feloniously, etc., place an obstruction upon the track of the Arkansas Southwestern Railway Company.” The trial court permitted the indictment and the record of conviction of Zach Furlow in the circuit court to go before the jury for the purpose of showing his conviction, and also the mandate of the Supreme Court, showing that the judgment of the circuit court was affirmed, for the same purpose.
On the cross-examination of appellee by appellant, this appears in the record: “Q. This is the affidavit (exhibiting paper) that you made, is it? A. Yes, sir. Q. Now, you say the reward was put up the next day after the offense was committed? A. Well, I saw it the next day after it was committed.”
One of the witnesses for appellee testified as follows: “Q. Mr. Westbrook, do you remember the circumstances of the track having been obstructed between Delight and Antoine? A. Yes, sir. I remember hearing of it. Q. With reference to that, when was the reward stuck up, as you remember? A. To the best of my knowledge, it was two or three da)^, something like that, after the obstruction was placed on the track; wouldn’t be positive about that; just after something of that kind had happened, ' whether it was that particular obstruction I could not say. Q. You remember the circumstance of Zach Eurlow being arrested charged with this offense? A. Yes, sir. Q. And he was arrested for an obstruction between Delight and Antoine?” The defendant objected to that part of the question referring to the place where the obstruction occurred, and the objection was by the court sustained.
Another witness testified that he “remembered the circumstance of Zach Eurlow’s being arrested over there for placing obstructions on the track.”
A reasonable interpretation of this contract is that the railroad company offered a reward of one thousand dollars for the arrest and conviction of any person or persons charged with the offense of placing obstructions upon a railroad track under section 1999, Kirby’s Digest. The arrest and conviction of any person for the offense was evidently aimed at by the appellant, and the appellee accepted and duly performed the contract on his part when he secured the arrest and conviction of a person for that offense. It is obvious from the language of the reward that the company contemplated in its offer' that the conviction for the offense should be taken as an evidence of the fact that the offense had been committed, and that the person convicted was the real offender. If this be the correct construction of the contract, the doctrine of res inter alios does not apply. In Brown v. Bradlee, 156 Mass. 28, the offer of reward was as follows: “$2,500 reward will be paid for any person furnishing evidence that will lead to the arrest and conviction of the person who shot Mr. Edward Cunningham.”' The plaintiff in that case had furnished evidence that led to the arrest and conviction of a person for the shooting of Cunningham. In the civil suit for the reward it was proved by the record that one De Lucca had been convicted for shooting Edward Cunningham, and De Lucca’s evidence at his trial, admitting that he shot Cunningham, was also put in, but the defendants contended in that case, as appellant contends here, that such evidence was res inter alios, and not competent to prove the action against them for the reward that De Lucca was the guilty man. The court said: “This position rests on too strict a construction of the words ‘the person who shot Mr. Ed-, ward Cunningham’ in the contract. We will assume that they mean a little more than ‘a person for shooting,’ and that it would be open to the defendants to prove mistake or fraud in the conviction. But we have no doubt that the contract so far adopts the proceedings of the criminal trial as a test of liability that the conviction is prima facie evidence of guilt.” In Borough of York v. Forscht, 23 Penn. St. 391, a reward was offered “for the detection and conviction of the person who set fire to” a certain barn, and the suit was.to recover on this offer of reward by one who had' given the information upon which a certain party was arrested, and afterwards tried and convicted. The court held, quoting syllabus, “where a reward is offered for the detection and conviction of an offender, and a person is detected and convicted, the record of conviction is evidence in an action for the reward that the person convicted is the true offender.” The doctrine of these cases comports with our construction of the contract under consideration. See Brennan v. Haff, 1 Hilt. (N. Y.), 151, and Mead v. Boston, 3 Cush. (Mass.) 404. See also, contra, Burke v. Wells, Fargo & Company, 34 Cal. 61.
But, aside from this, it is doubtful from the state of the record whether appellant could avail itself of a failure on the part of appellee to make proof that the offense was actually committed and that Zach Eurlow was the real offender, when on the trial below it objected to evidence that was tending in that direction.
The objection made here for the first time that the court erred in permitting the indictment and the record of conviction in the circuit court and the mandate of the Supreme Court in the case of Furlow v. State, (72 Ark. 384), to be introduced in evidence without being read to the jury, can not avail appellant. The record shows that “it was agreed by the parties that they (these papers) be considered as read to the jury.” Such being the case, appellant is in no position to complain that such papers were not read, and it will not be heard to make such complaint. An amended record, brought here by agreement, shows that “upon the trial of this case in the lower court, the mandate, judgment and indictment were introduced.” That effectually “answers the con-' tention in the brief that the court erred in not having these papers read to the jury under section 3145, Kirby’s Digest. Where a paper “is introduced in evidence,” it must be considered here that its contents were made known to the jury.
Measured by the doctrine already announced, we find the instructions of the court correct.
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Josephine Linker Hart, Judge.
Appellant, Mark Harness, appeals from the circuit court’s decision granting appellees, Buddy Curtis and Rose Curtis, possession of real property and awarding them damages in the amount of$5,000 after concluding that appellant, as the purchaser, materially breached the parties’ contract. He also appeals from the circuit court’s denial of his claim for the damages that resulted from his wrongful dispossession. We hold that the trial court erred in enforcing a forfeiture of appellant’s contractual rights, in awarding damages to appellees, and in refusing to award damages to appellant.
On November 17, 1994, the parties entered into a contract in which appellant agreed to purchase, for $35,000, a tract of real property on which a doublewide mobile home, a “body shop” garage, and a storage shed were located. Appellant paid $5,000 in cash and agreed to pay the balance of $30,000 in monthly installments of $295.15. The parties agreed that time was of the essence and that, “if [appellant] defaulted] in the payment of any installment of principal and interest for a period of thirty (30) days,” or violated any of the other covenants, appellees could either declare the entire debt due and payable.or rescind the agreement. Further, the agreement provided that upon recission of the agreement, all money paid by appellant would be retained by appellees as rent, and after notice, appellees could demand possession of the property. The parties also agreed that the “agreement shall not be sold, transferred or assigned without written consent of [appellees], and in the event of any sale, assignment or transfer, without written consent, [appellees] shall have the right to exercise the options herein before provided....” Appellant agreed that he “shall not commit or permit waste; and shall maintain the property in as good condition as at present,” and “[u]pon any failure so to maintain, [appellees] may cause reasonable maintenance work to be performed at the cost of [appellant].”
For the first time in seven years, appellant was eight days late with a monthly payment in December 2001. On December 9, 2001, appellees had the sheriff serve appellant with a notice to vacate the property within ten days. On January 14, 2002, appel-lees filed an unlawful-detainer complaint alleging that appellant had agreed to make monthly payments on the first of each month “with no grace period” and that appellant had breached the agreement by failing to make the December 1, 2001, payment and by committing waste upon the property. Appellant filed a counterclaim requesting damages for wrongful dispossession.
At a preliminary hearing held February 19, 2002, appellee Buddy Curtis testified that appellant had always made his payments on time but, in December 2001, no payment was forthcoming. He said that on the ninth or tenth of December, he went to the residence to see what had happened and observed that appellant “had turned the place into a junk yard....” He testified that there were thirty-five to forty vehicles parked on the property and that there was “trash everywhere.” He learned that appellant was in jail and that appellant’s daughter, Melissa Davis, and his brother, Richard Harness, were present on the premises. He told Richard that the agreement “was void.” Richard gave him a copy of a “contract” between Richard and appellant that provided that, on October 1, 1996, appellant had sold to Richard “1 parcel ofland at 5324 Wordsmith Trail, North Little Rock[,] Ark[.]” with the “property measuring 90 ft. length by 30 ft. width lying on the east side of garage for the sum of $2,500.00.” Curtis testified that, although the parties’ agreement provided that appellant was not supposed to “sell anything,” he had “sold something.” At this hearing, the circuit court concluded that appellees had established a prima facie case of unlawful detainer and issued a writ of possession, with a trial to be held on a later date.
At the June 28, 2002, trial, the court considered testimony given at the earlier hearing and heard additional testimony. On cross-examination, Mr. Curtis admitted that the agreement was prepared by his attorney. He also admitted that, according to the contract, appellant had until the end of December 2001 to make the December payment. He also admitted that he had not asked appellant to clean up the property because he “no longer wanted to be associated with” appellant.
Following the hearing, the judge ruled that there was an enforceable land-sale contract and that appellant had breached it. When asked to specifically state his findings of fact and conclusions of law, he said that the conveyance to Richard in October 1996 and the late payment were breaches of the contract. The court’s written order provided that appellant had materially breached the contract, that the funds paid by appellant would be considered rent for the period that appellant had occupied the property, and that appellees were entitled to remain in possession of the property. The order awarded appellees $5,000 for damages to the property and $350 in attorney’s fees. This appeal followed.
The standard that we apply when we review a judgment entered by a circuit court after a bench trial is well established. We do not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998).
Appellant argues on appeal that the trial court erred in: (1) awarding possession of the property to appellees; (2) awarding damages in the amount of $5,000 to appellees for repairs they made to the property after appellant was ejected; (3) refusing to award appellant damages that he sustained as a result of his wrongful dispossession of the property. We agree with appellant on all points.
Appellant contends that the trial court should have treated the contract as a mortgage giving him an equity of redemption. We need not address that issue, however, because appellant did not sufficiently breach the agreement to warrant forfeiture of his rights thereunder. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996). However, a relatively minor failure of performance on the part of one party does not justify the other seeking to escape any responsibility under the terms of the contract. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W. 3d 762 (2003). Although appellant failed to make a payment on December 1, 2001, that was not a material breach under the terms of the parties’ agreement, as the contract did not give appellees the right to declare a default until thirty days without payment had passed. By serving appellant with a notice to vacate on December 9, appellees committed the first material breach of the agreement, which released appellant from his contractual obligations. See Vereen v. Hargrove, supra.
Moreover, while Arkansas’s appellate courts have upheld forfeiture clauses in executory land sale contracts, see Abshire v. Hyde, 13 Ark. App. 33, 679 S.W.2d 214 (1984), a court may refuse to enforce a forfeiture provision in a land contract when there are substantial equitable circumstances. See Hatfield v. Mixon Realty Co., 269 Ark. 803, 601 S.W.2d 894 (Ark. App. 1980). The right of forfeiture can be a harsh remedy producing great hardships, and therefore, before a forfeiture is enforceable, equity requires strict compliance with the important terms of the contract even where there is an express provision for forfeiture. Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964). Appellees did not substantially comply with the default provision of the contract when they declared a default and served appellant with notice to vacate only eight days after the payment was due.
Appellant also contends that the trial court clearly erred in finding that appellant’s purported conveyance of property to Richard breached the agreement between appellant and appellees. We agree. According to the document memorializing the conveyance, appellant sold Richard a parcel of land. The agreement between appellant and appellees, however, provided that the “agreement shall not be sold, transferred or assigned without written consent.” (Emphasis added.) Here, appellant clearly did not sell, transfer, or assign the agreement to Richard; instead, he purportedly sold a small portion of the land to Richard. Given the plain language of the agreement, we conclude that the trial court clearly erred in finding that appellant breached the parties’ agreement when he executed a document purporting to sell to Richard a small portion of the land.
We also note that, by awarding damages to appellees, the trial court obviously believed that appellant committed waste on the property. Our review of the evidence, however, leads us to conclude that a finding to that effect would be clearly against a preponderance of the evidence. The contract provided: “Buyer shall not commit or permit waste; and shall maintain the property in as good condition as at present, reasonable wear and tear excepted.” Here, Mr. Curtis testified that appellees had spent $5,394.34 to repair the property. Appellees’ daughter, Tina Tendall, also testified about the repairs. Although Mr. Curtis and Ms. Tendall testified extensively about the state of the property after appellant’s eviction, other than describing it as “very nice,” they presented no specific evidence of its condition at the time appellant took possession of it. Without such proof, we cannot say that the residence actually deteriorated, in excess of normal wear and tear, during the term of the contract. In O’Kane v. O’Kane, 117 Ark. 33, 173 S.W. 821 (1915), the court explained that waste involves the destruction or removal of buildings, the carrying away of the soil, the cutting of ornamental or sheltering trees and shrubs, and the cutting of saplings and timber. Here, there is no evidence of any kind of destruction to the property, and therefore, we cannot say as a matter of law that the unsightly presence of thirty or forty vehicles on this property amounted to waste.
In light of appellant’s history of timely payments and appellees’ material breach of contract in prematurely declaring default, we reverse the trial court’s forfeiture of appellant’s contractual rights. We order the contract reinstated and direct that, on remand, the trial court award possession of the property to appellant.
We also reverse the trial court’s award of $5,000 to appellees for damages on the ground that appellant caused or permitted waste on the property. When the damages to the property are capable of repair, restoration costs are a recoverable element of damages for temporary damage done to the property. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002). When injury to real property is temporary, the measure of damages is the cost of restoring the property to the same condition that it was in prior to the injury. Id.; see also Howard W. Brill, Arkansas Law of Damages §§ 30-1, 30-2 (4th ed. 2002). In our view, there was a failure of proof that the repairs performed by appellees were more than normal wear-and-tear damages to a mobile home that was twenty to forty years old. Therefore, we reverse the award of damages awarded to appellees.
Appellant also argues that, because he was wrongfully dispossessed of the property, the circuit court erred in failing to award him damages pursuant to Ark. Code Ann. § 18-60-311 (Repl. 2003). Again, we agree and remand for the circuit court to determine the damages that he sustained as a result of the wrongful dispossession.
Reversed and remanded.
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Robert J. Gladwin, Judge.
The trial court dismissed this wrongful-death action for lack of subject-matter jurisdiction because the suit was brought by appellant James Filyaw, the special administrator of the estate of Katherine Brown, deceased, prior to the date that the order appointing appellant was filed with the court clerk. On appeal, appellant contends that the trial court improperly granted the motion to dismiss because the order of appointment was effective when signed, not when the order was actually filed with the clerk. We affirm.
The facts of this case are not disputed. From July 21, 1999, until her death on July 27, 1999, Katherine Brown was receiving medical care from appellee Dr. Michael Bouton at appellee Sparks Regional Medical Center (Sparks). Appellees Dr. Catherine Womack and Dr. Steven Edmondson consulted with Bouton concerning the use of the anticoagulant Coumadin. Appellant filed a petition seeking appointment as special administrator of Brown’s estate on July 20, 2001, and Circuit Judge Norman Wilkinson signed an order appointing appellant that same day. The order of appointment was not filed with the circuit clerk’s office until July 23, 2001. However, appellant had filed his wrongful-death complaint on July 20, 2001, the same day that the order of appointment was signed. Appellant’s acceptance of the appointment was also filed on July 23, 2001, and letters of administration were issued the same day. Appellant later filed both a first-amended complaint and a second amended complaint. Appellees answered, denying the allegations of the complaint. Appellees moved to dismiss the complaint, alleging that the court lacked subject-matter jurisdiction. Appellees argued that, under Ark. R. Civ. P. 58 and Administrative Order No. 2, the order appointing appellant as special administrator was not effective until filed with the clerk. The trial court found that the complaint was a nullity because it was filed prior to the filing of the order appointing appellant special administrator. The trial court also found that, because appellant did not refile the suit after the order of appointment was filed, it was barred by the applicable statute of limitations. Therefore, the trial court dismissed appellant’s complaint, and this appeal followed.
Appellant argues one point: that the trial court erred in dismissing the lawsuit. When reviewing a trial court’s decision on a motion to dismiss, the facts alleged in the complaint are treated as true and are reviewed in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). All reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Martin v. Equitable Life Assurance Soc’y, 344 Ark. 177, 40 S.W.3d 733 (2001). A party who relies upon a statute of limitations as defense to a claim has the burden of proving that the full statutory period has run on the claim before the action was commenced. Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). In order to prevail on a motion to dismiss on the basis of limitations, the complaint must be barred on its face. Id.
In Arkansas, a medical-malpractice action must be brought within two years of “the date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (Supp. 2003). The medical malpractice act applies to all causes of action for medical injury arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002); Pastchol v. St. Paul Fire & Marine Ins., 326 Ark. 140, 929 S.W.2d 713 (1996).
For the first part of his argument, appellant argues that the order appointing him special administrator was effective when signed, not when filed with the clerk. However, in a long series of cases beginning with Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), both the supreme court and this court have rejected that contention and held that a judicial order is not effective under Rule 58 and Administrative Order No. 2 until it is filed with the clerk of court. Rule 58 provides:
Subject to the provisions of Rule 54(b), upon a general or special verdict, or upon a decision by the court granting or denying the relief sought, the court may direct the prevailing party to promptly prepare and submit, for approval by the court and opposing counsel, a form of judgment or decree which shall then be entered as the judgment or decree of the court. The court may enter its own form of judgment or decree or may enter the form prepared by the prevailing party without the consent of opposing counsel.
Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2. Entry of judgment or decree shall not be delayed for the taxing of costs.
Section (b)(2) of Administrative Order No. 2 provides:
The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word “filed.” A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.
Rule 58 specifically provides that it is to be read in connection with Administrative Order No. 2. Appellant was appointed special administrator of Brown’s estate by order signed on July 20, 2001. This was the relief requested in his petition to the probate court. The order granting that relief was not filed with the clerk until July 23, 2001. Therefore, under Rule 58 and Administrative Order No. 2, the order appointing appellant was not effective until July 23,2001, when it was filed with the circuit clerk and the letters of administration were issued.
Appellant argues that Rule 58 and Administrative Order No. 2 do not apply in this situation because Ark. Code Ann. § 28-48-103(f) (2004) makes an order appointing a special administrator nonappealable and Rule 54(a), referenced in Rule 58, defines “judgment” as any order from which an appeal lies. However, section 28-48-103(f) does not offer any guidance as to when an order appointing a special administrator is effective. In this regard, Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967), is instructive. That case involved an automobile accident in which both drivers were killed. As a result, the estate of driver one sued the estate of driver two and named the personal representative of driver two’s estate as a defendant. However, the probate court had not yet appointed a personal representative for driver two’s estate. The estate of driver two then sued the estate of driver one in a different venue and named the personal representative of driver one’s estate, already appointed, as the defendant. The question before the Arkansas Supreme Court was which suit was first-filed for purposes of determining priority of venue. The court held that the first suit, even though it was first-filed, had never been commenced and did not have priority for venue purposes, because the named defendant, the personal representative of driver two’s estate, did not exist when suit was filed. Also, the supreme court held that it would not retroactively amend the pleadings in the first suit to account for the appointment of the personal representative. The court further noted that, under what is now Ark. Code Ann. § 28-40-102(b) (2004), a personal representative cannot sue or be sued until letters of administration have been issued.
Appellant attempts to distinguish Jenkins as being a venue case, which is not an issue in the present case. However, Jenkins is important for its holding that a personal representative cannot act until the letters of administration have issued, and the only way the clerk will know to issue the letters is to have the order of appointment filed under Rule 58 and Administrative Order No. 2. In the present case, the letters of administration were not issued until July 23, 2001, after appellant had filed the wrongful-death action. Until the issuance of the letters, appellant had no standing under Jenkins to file suit. Therefore, the complaint filed on July 20, 2001, was a nullity.
In McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002), this court, relying on St. Paul Mercury Insurance, supra, held that the trial court did not err in dismissing a wrongful-death complaint filed by the surviving husband as executor when he was not appointed executor until some six months after the complaint was filed. This court held that the husband’s subsequent appointment as executor did not relate back to the filing of the original complaint because the original complaint was a nullity because all of the heirs had not been named in the complaint and, therefore, was not properly filed. McKibben controls the outcome of this case because, as in McKibben, an improper complaint was filed prior to the effective appointment of the personal representative and a proper complaint was not filed prior to the expiration of the limitations period. The fact that appellant’s order of appointment was filed prior to the expiration of the limitations period does not change the analysis because appellant did nothing to ratify or refile the action prior to the running of the statute.
Affirmed.
Pittman and Neal, JJ., agree.
In their original answers, Dr. Womack and Dr. Edmondson both admitted that the court had subject-matter jurisdiction. Sparks also admitted jurisdiction in its answer to the original complaint but was dismissed by appellant’s taking a nonsuit before being rejoined as a party by appellant’s second-amended complaint. All three later moved to dismiss the complaint for lack of subject-matter jurisdiction.
See Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003); Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000); Shackelford v.Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Blaylock v. Shearson Lehman Bros., Ike., 330 Ark. 620, 954 S.W.2d 939 (1997); Clayton v. State, 321 Ark. 217, 900 S.W.2d 537 (1995); General Motors Acceptance Corp., 318 Ark. 640, 887 S.W.2d 292 (1994); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); A-1 Bonding v. State, 64 Ark. App. 135, 984 S.W.2d 29 (1998); Morrell v. Morrell, 48 Ark.App. 54, 889 S.W.2d 772 (1994); Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989). | [
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Curiam.
In this appeal of a workers’ compensation case, appellees initially filed with this court motions for remand and for an enlargement of the briefing schedule. Appellees alleged that the record that they had finally received from appellant was in extremely poor physical condition with its binding separated, and with pages loose and out of order; and that it was unclear whether all pages were included. Appellant did not respond to the motion. By order of July 30, 2003, we denied appellees’ motion to remand but granted their motion for an enlargement of the briefing schedule.
Appellees have now filed a motion to supplement the record with pages that they allege are unaccounted for. Appellees specifically allege:
That, when [appellees] placed the pages of the record in order, after having held it in the same condition in which it was received from [appellant], it was discovered that approximately ninety (90) pages of the record were missing, specificaUy’pages 1 through 48, 129, 141, 197-98, 203 through 232, 324 through 331 and 334....
Appellees further allege that although they have made repeated attempts to secure cooperation from appellant’s counsel in correcting deficiencies in the record and in replacing missing pages, they have received minimal assistance from counsel. Appellant, again, has not responded to appellees’ motion.
Upon a party’s filing in the office of the Workers’ Compensation Commission a notice of appeal of the commission’s order or award, “the commission under its certificate shall send to [this] court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.” Ark. Code Arm. § 11-9-711(b) (A) (Repl. 2002). Because appellees have alleged in their motion that pages are missing from the record, we remand to the Commission so that the record can be settled. The settled record shall be filed in the clerk’s office within thirty days. Expenses incurred by the Commission in settling the record shall be paid to the commission by appellant.
Appellees have also moved for an enlargement of the briefing schedule, which we grant. Appellees’ brief shall be due within thirty days after the settled record has been filed.
Remanded for settling of the record. Motion for an enlargement of the briefing schedule granted. | [
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Bird, Judge.
Appellant Randall Bradford appeals the decision of the Arkansas Board of Review that affirmed the denial of his application for unemployment benefits. Bradford was hired as the Executive Chief Information Officer (ECIO)of the State of Arkansas on October 15, 2001. On the morning ofjune 13, 2002, during a meeting with the governor’s chief of staff", Brenda T urner, he submitted his letter of resignation to Governor Huckabee. The letter stated:
Unfortunately, I have concluded that I must resign from my position as the Executive Chief Information Officer for the State of Arkansas for professional reasons. I do not believe that the current working environment within your staff is conducive to effective management. I am disappointed in the lack of leadership I have seen and I simply feel that we are not on the proper course.
In order to be effective, I would need to be allowed to work in a collaborative environment, with a spirit of cooperation, with my Information Technology Oversight Committee and the Joint Committee for Advanced Communications and Information Technology. Those relationships have been strained by your staffs attempts to restrict communications to the point that my office cannot be as effective as it should be.
I am proud of the accomplishments of my staff. The items outlined in Act 1042, Section 4, have been addressed and the results of our efforts can be seen on the website (www.cio.state.ar.us). To continue, however, under the restrictions that have been placed on me, would be detrimental to the citizens of the State of Arkansas. We have done all that we can do under these conditions. Therefore, I must resign my position. I am giving two weeks’ notice effective today and wait to receive your instructions as to what you would like for me to do during this time.
Later the same day, Bradford received a letter from Turner stating, in pertinent part:
As a result of our meeting this morning, I have been directed by Governor Huckabee to terminate you from your position of State Executive CIO effective 12:00 noon today, June 13, 2002.
Following his termination, Bradford made application to the Arkansas Employment Security Department (ESD) for unemployment benefits, which that agency denied. He timely appealed that decision to the Arkansas Appeal Tribunal and then to the Arkansas Board of Review, both of which affirmed the ESD’s decision. He now appeals to this court, arguing three points for reversal: (1) whether an employee who leaves his or her last work “because he is asked to violate the law” voluntarily and without good cause connected with the work leaves his or her last work for purposes of Ark. Code Ann. § 11-10-513; (2) whether there is substantial evidence in the record that he left his last work without good cause connected with the work; and (3) whether there is substantial evidence in the record that he failed to take appropriate steps to prevent or complain of the improper actions of the governor’s staff. We affirm the decision of the Board of Review.
The findings of the Board of Review are conclusive if they are supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). 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. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). Issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board of Review to determine. W. C. Lee Construction v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985). Even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Bradford, the only witness to testify at the hearing on this matter, testified that as the state’s ECIO, he reported directly to the governor. He testified that he worked as ECIO until June 13, 2002, when he tendered his resignation. Bradford testified that after he tendered his letter of resignation, he gave an exclusive interview to a reporter from the Arkansas Democrat-Gazette and that he also called a press conference for that afternoon. Later that same day, Bradford received the termination letter from Brenda Turner.
Bradford testified that he had thought for a couple of months about resigning, and that he had confided with “key decision makers” and had written a letter a week before June 13. He said that he had started to feel uncomfortable in his job in January with one issue in particular, and that his uneasiness evolved over a period of time. Bradford testified that he believed he had been asked by personnel in the governor’s office to violate the law or, at least, to violate ethical standards. Specifically, Bradford testified that he believed that he was being asked to violate Act 1042 of 2001 that created the ECIO position, to evade Arkansas’s Freedom of Information Act, and to participate in a scheme by the state to illegally bill the United States Department of Health and Human Services for charges expended on information technology.
Regarding his contention that he was being asked to violate Act 1042, Bradford testified that the governor’s office had asked him to do things that were inconsistent with his obligations under that Act. He testified that he had been instructed to be careful about involving the legislature in his work; not to allow the legislature to infringe upon the responsibilities of the administra tion and other agencies; and not to allow the legislature to “stick its nose in the administration’s business.” Bradford referred in his testimony to an email that came from a member of the governor’s staff that stated in part:
I would recommend as litde direct interface with the [legislature] as you can get away with, there is nothing good to come from their involvement. I have dealt with Lindall and Gullet and Magnus and Kevin Smith for a while now. I can promise you that they have other agendas that will cause them to be less than altruistic with their dealings with you. You have a good reputation with the [legislature] right now, don’t risk it through over-familiarity with them, nothing, capital Nothing, good ever comes from a committee meeting.
Bradford testified that the recommendation contained in this email violated Act 1042 because, under the Act, the ECIO was obligated to report to the legislature and to work with its Joint Committee on Advance Communication and Information Technology (JCACIT) and the Information Technology Oversight (ITO) Committee. He said that he had emails instructing him not to be completely forthcoming with members of the legislature, not to invite them to meetings of the ITO Committee, and not to trust the chairman of the ITO Committee because he had been nominated by the Democratic legislature. Bradford referred to and quoted several emails that he contended instructed him to withhold information from the legislature in violation of Act 1042.
Regarding his contention that he was asked by the governor’s staff to evade Arkansas’s Freedom of Information Act, Bradford testified that he was instructed to communicate with Governor Huckabee via the governor’s private email address. He said that he believed that the purpose of this request was to avoid the obligation that he and the governor had under the Arkansas Freedom of Information Act. He further stated that the governor had at least two, and maybe three, email addresses. Bradford also stated that a member of the governor’s staff came to him and told him to use the private email address that the governor had given to him and not to send anything to the governor’s email address that he uses for official business. Bradford contends that this was an attempt to keep information about the Arkansas Administrative Statewide Information System (AASIS) computer program from the public.
Regarding his claim that he had been asked to participate in an illegal scheme to defraud the federal government, Bradford testified that he was asked to improperly allocate expenses of the state’s AASIS computer system to the federal government by submitting inflated billings to the Arkansas Department of Human Services. He said that this would enable the state to obtain three-to-one matching funds from the U.S. Department of Health and Human Services under the Medicaid program for AASIS operating expenses that were not eligible for matching funds. He stated that this scheme “smacked” of fraud or of conspiracy to commit fraud.
The Board of Review affirmed the ESD’s denial of benefits, finding that Bradford’s resignation was equivalent to his “voluntarily leaving last work,” relying on Arkansas Code Annotated section ll-10-513(a)(l) (2002), which provides that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” We affirm the decision of the Board of Review.
In Osterhout v. Everett, 6 Ark. App. 216, 639 S.W.2d 539 (1982), we said:
Although the Arkansas Employment Security Law is remedial in nature and must be liberally constmed, Harmon v. Laney, 239 Ark. 603, 393 S.W.2d 273 (1964), the Act must be given an interpretation in keeping with the declaration of state policy, Little Rock Furniture Mfg Co. v. Commissioner of Labor, 227 Ark. 288, 291, 298 S.W.2d 56 (1947). Ark. Stat. Ann. § 81-1101 (Repl. 1976) sets forth the State’s public policy of setting unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. We cannot say that appellant has become unemployed through no fault of his own since it was appellant’s own action of resignation which set in motion the chain of events which ultimately resulted in his unemployment.
6 Ark. App. 216, 218, 639 S.W.2d 539, 540 (emphasis in original).
Applying our decision in Osterhout to the case at bar, the Board clearly could have viewed Bradford’s resignation letter as a clear and unequivocal manifestation of his intention to leave his job as the state’s ECIO. In his letter he expressed his inability to work with the governor’s staff because of its lack of effective leadership, and he expressed the view that the state’s information technology program, was not on the proper course. While expressing pride in the accomplishments of his staff, he stated that he could not be effective as the ECIO under the restrictions placed upon him by the governor’s staff and that continuing as ECIO under those restrictions would be detrimental to the citizens of the State of Arkansas. Finally, he said that he would wait to receive the governor’s instructions as to what he should do during the two weeks between the tender.of his resignation letter and its effective date.
This is exactly the situation we were discussing in Osterhout. An employer should not be required to retain in its employment an employee who has prospectively tendered his resignation and acknowledged, as the reason for his resignation, his inability to perform the job within the framework of the employment as determined by the employer. As a high-echelon employee of the state’s executive branch, answerable directly to the governor, Bradford was not immune from the imposition of restrictions by the governor or his staff relating to Bradford’s relationship with the legislature, its committees, or individual members thereof, where those restrictions did not contravene Act 1042.
We also note that section 1 of Act 1042 of 2001, which Bradford contends that he was being asked to violate, provides: “There is hereby created the position of Executive Chief Information Officer, which shall be appointed by and serve at the will of the Governor.” Ark. Code Ann. § 25-33-103(a) (Repl. 2002). We are aware of no authority that would permit an at-will employee, as Bradford was, to resign from his job prospectively and thereby defeat the authority of the employer to terminate the employee “at will,” prior to the resignation date desired by the employee. The authority of the employer to accelerate the termination date becomes even more compelling where the employee concedes, as Bradford did, that for the ensuing two weeks he was not going to be able to perform his job because of restrictions placed upon him by the employer. See also Middleton v. Ark. Emp. Sec. Div., 265 Ark. 11, 576 S.W.2d 218 (1979).
First and Second Points on Appeal
For his first and second points on appeal, Bradford argues that although he voluntarily resigned from his employment, he did so with good cause connected with his work because he was asked by his employer to violate the duties imposed on him by Act 1042, to violate the Freedom of Information Act, and to participate in a scheme to defraud the federal government. We disagree with these arguments and hold that there is substantial evidence to support the Board’s conclusion that, while Bradford voluntarily left his employment, he did so without good cause connected with his work.
We have carefully read the provisions of Act 1042 of 2001, codified at Ark. Code Ann. § 25-33-101 etseq. (Repl. 2002), with particular emphasis on Section 4(a), which sets forth the duties of the ECIO, and we find nothing in the Act that would preclude the Governor or his staff from imposing restrictions on the ECIO’s working relationships with either the legislature, its committees, or its members. Of the fifteen subparagraphs contained in section 4(a), only four refer either directly or by implication to the legislature. Subparagraph 3, codified at Ark. Code Ann. § 25-33-104(a)(3), requires the ECIO to develop a process for how all state agencies shall have input into the formation of policies, standards and specifications, and guidelines relating to the retention, preservation, protection, and disposition of electronic records and to present the plan to the Governor and the General Assembly. Subparagraph 5, codified at Ark. Code Ann. § 25-33-104(a)(4), requires the ECIO to “[o]versee the development of legislation and rules and regulations affecting electronic records management and retention, privacy, security, and related issues.” Subparagraph 8, found at Ark. Code Ann. § 25-33-104(a)(8), requires the ECIO to “[djirect the development of policies and procedures, in consultation with the CIO Council, which state agencies shall follow in developing information technology plans and technology-related budgets and technology project justification.” Lastly, sub-paragraph 13, codified at Ark. Code Ann. § 25 — 33—104(1)(13), requires the ECIO to “[m]ake a quarterly report to the Joint Committee on Advanced Communications and Information Technology regarding the status of information technology deployment to meet the goals set forth in this enabling legislation.”
We do not see how any of the “restrictions” imposed by the governor’s office on Bradford prevented him from performing any of these duties. As for subparagraph 3, Bradford did not testify that he had been restricted in any way by the Governor or his staff from reporting to the General Assembly his plan for the retention, control, preservation, protection, and disposition of electronic records. While subparagraph 5’s duty to “oversee the development of legislation” would probably entail some interaction with legislative committees and members, the only requirement imposed by subparagraph 5 is that the ECIO function in an oversight capacity as to the development of legislation. Bradford did not testify that he was restricted in any way in the performance of that duty.
Subparagraph 8 requires the ECIO to consult with the CIO Council in the development of policies and procedures to be followed by state agencies in the development of information technology plans. Bradford complained that he was instructed by the governor’s staff to give the CIO Council only such information as it requested, but to volunteer no information. He testified that when he informed the governor’s staff that he had been invited to make monthly reports to the JCACIT on new policies, standards, and guidelines that his office was working on, he received a reply recommending “as little interface with the [legislature] as you can get away with, there is nothing good to come from their involvement....” He also testified that had been instructed not to be forthcoming with members of the Information Technology Oversight Committee (ITOC), not to invite members of the legislature to ITOC meetings, and not to trust the ITOC chairman because he was nominated by the Democratic legislature.
Subparagraph 13 requires the ECIO to make quarterly reports to the JCACIT as to the status of information technology deployment. Bradford does not contend that he was restricted in any way from making these reports. In fact, he testified that he was never prohibited from attending and reporting to JCACIT’s quarterly meetings. Bradford was not required by subparagraph 13 to make monthly reports to the JCACIT on new policies, standards, and guidelines that his office was working on. Consequently, we do not consider that Act 1042 was violated when Bradford was discouraged by the governor’s staff from making such reports.
While Bradford apparently interpreted the provisions of section 4(a) of Act 1042 to require him to do these things that he was encouraged not to do, we do not read the recitation of the ECIO’s duties as prohibiting the governor and his staff from placing restrictions on the ECIO’s activities that are neither expressly required nor prohibited by the Act. Bradford testified that he was unwilling to compromise his ethics and the integrity of the ECIO’s office in order to curry favor with the administration, and that he could no longer remain silent about critical issues, which clearly warranted the oversight and intervention of the legislature. Certainly, Bradford is to be commended for adherence to his ethical standards. But the Board of Review found that the duties of his job as ECIO, as set forth in Act 1042, were not hampered in any way by limitations placed on him by the governor or his staff. Rather, his ethical principles appear to have interfered with his performance of his job in the manner requested of him by the governor and his staff, so he quit. The Board found that the evidence was insufficient to show that the instructions he received either circumvented the requirements of Act 1042, or constituted mistreatment for the purposes of unemployment law. The Board characterized the situation as a difference of opinion as to the legal requirements of the Act. The Board ruled that “[t]he preponderance of the evidence indicates that the interpretation of the governor’s office was neither unreasonable nor illegal.” We hold that the Board could reasonably have reached its decision upon the evidence before it.
Furthermore, the Board found that Bradford had not presented sufficient evidence to show that the requested limitation actually had a detrimental effect on his ability to perform his work. After reviewing Act 1042, along with testimony and evidence presented by Bradford, we hold that the Board could have reasonably reached its conclusion based on the evidence presented.
As to Bradford’s contention that he had been asked by the governor’s staff to violate Arkansas’s Freedom of Information Act by communicating with the governor at his private email address rather than his official one, the Board found insufficient evidence to support the claimant’s allegations. We hold that there is substantial evidence to support the Board’s finding. It is the purpose of the Freedom of Information Act to ensure “that the public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy....” Ark. Code Ann. § 25-19-102 (Repl. 2002). To accomplish this purpose, the Act provides that public records shall be open for inspection and copying by any citizen, and it sets forth in detail how and when access to such records is to be afforded. Ark. Code Ann. § 25-19-105 (Repl. 2002). The Act also provides that, with some exceptions, all meetings of governing bodies supported by public funds shall be public meetings, and it sets forth the means by which the public is to be notified of such meetings. Ark. Code Ann. § 25-19-106 (Repl. 2002).
We find nothing in the Freedom of Information Act that specifies that the cbmmunications media by which the public’s business is conducted are 'limited to publicly owned communications. The creation of a record of communications about the public’s business is no less subject to the public’s access because it was transmitted over a private communications medium than it is when generated as a result of having been transmitted over a publicly controlled medium. Emails transmitted between Bradford and the governor that involved the public’s business are subject to public access under the Freedom of Information Act, whether transmitted to private email addresses through private internet providers or whether sent to official government email addresses over means under the control of the State’s Division of Information Services. Bradford provided no evidence of any emails that were generated as a result of having been sent to or from the governor’s private email address to which a requesting citizen has not been provided access.
As to Bradford’s contention that he was asked to participate in a scheme to bill the United States Department of Health and Human Services for charges expended on information technology as ordinary expenses rather than billed, as they should be, for purposes of Medicaid reimbursement, the Board stated the following:
[T]he Board finds insufficient evidence to support the claimant’s conclusory allegations. Moreover, as noted by the Appeal Tribunal, the claimant’s testimony indicates that this ‘problem’ arose in January, some six months before his separation. Given the remote ness in time to the date of the claimant’s separation, the Board finds it improbable that this ‘concern’ played a significant role in the claimant’s decision to quit.
Bradford points to nothing in the record other than his testimony to support this claim regarding billing. Once again, we note that issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board of Review to determine. W. C. Lee Construction v. Stiles, supra. Given our standard of review, we hold that there is substantial evidence to support the Board’s decision in this matter.
Third Point on Appeal
As to Bradford’s final challenge on appeal, whether or not there is substantial evidence in the record that he took the appropriate steps to prevent the improper actions of the governor’s staff, the Board concluded:
[T]he claimant’s evidence fails to establish that he made any real effort to remedy what he perceived to be problems before quitting, or that it would have been futile for him to have made such an effort. In this regard, the Board notes that although the claimant alleged that he requested a meeting with the governor in January and that his request was not granted, his evidence does not support his contention. However, the claimant’s testimony does indicate that he made further efforts to meet with the governor, or to contact the governor, although he had been given (as reflected in Exhibit ‘P’ to the claimant’s federal complaint) various means by which he could contact the governor directly. Consequently, the Board finds that the claimant has failed to show, by a preponderance of the evidence, that he made a reasonable effort to rectify the perceived problems before quitting, or that it would have been futile for him to have made such effort.
Taking appropriate steps to prevent perceived misconduct from continuing is an element to be considered in determining whether an unemployment compensation claimant had good cause to quit work. Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996).
Concerning Bradford’s contention that he was denied access to the governor, the Board further noted that “the email referred to by the claimant as conveying the governor’s instructions, appears to actually provide the claimant with various avenues for contacting the governor should the need arise.” The Board further stated that “[i]n this regard, the Board also notes that this email directly contradicts the claimant’s assertion that he did not have ‘access’ to the governor, and that such contradiction diminishes the claimant’s credibility.”
Finally, with regard to this issue, the Board stated that:
[T]he vast majority of the emails sent, both by and to the claimant, show the claimant’s ‘official’ email address of @mail.state.ar.us, and not the alleged ‘private’ address of @aol.com, which the claimant alleges he was instructed to use. This contradiction also diminishes the claimant’s credibility.
Issues of credibility of witnesses and weight to be ■afforded their testimony are matters for the Board of Review to determine. W. C. Lee Construction v. Stiles, supra. Given our standard of review, we hold that the Board could have reasonably reached its conclusion based on the evidence presented.
Bradford contends in his reply brief that there is no evidence that he had access to the governor other than by violating the Freedom of Information Act; thus, he could not have attempted to resolve this matter without violating the law. Fie further contends that he made a written request to meet with the governor in January of2002, but that his request was not honored. We have already discussed why the mere use of personal email to conduct the State’s business is not a violation of the Freedom of Information Act. Furthermore, and as also discussed earlier, there is evidence in an email to Bradford that appears to fully support the Board’s contention that Bradford had access to the governor if needed, as it appears to provide numerous ways in which to contact him. Given the evidence before the Board, we hold that the Board’s decision that Bradford failed to rectify the perceived problems is supported by substantial evidence.
The dissenting opinion suggests that the majority opinion constitutes a holding that an employee’s giving notice of intention to resign at a specified future date is tantamount to the employee’s leaving his work as of the date his resignation letter is submitted. We believe that the dissenting judge reads our opinion too narrowly. What we hold is that when an employee submits a prospective resignation letter stating that he disagrees with the leadership provided by the employer to the point that he can no longer effectively perform his job and that for the employee to continue on the job would be detrimental to the interests of the employer, there is substantial evidence to support the Board’s finding of fact that the employee voluntarily left employment, notwithstanding that the employee would like to continue to be paid for another couple of weeks.
We also disagree with the assertion of the dissent that Bradford’s resignation letter “established his clear intent and explicit desire to work for the full two weeks.” To the contrary, Bradford’s letter makes clear that although, in his opinion, he is no longer able to do his job without detriment to the interests of his employer, he would like the employer to suggest some other things he can do that will enable him to remain on the payroll for the next two weeks anyway, even though he is unable to do his job.
The dissent also disregards that Bradford conceded that his resignation was voluntary, and that he argued to the Board and this court only that he should not be disqualified from receiving benefits because his resignation was for good cause connected with his work. The Board found that Bradford’s resignation was not for good cause connected with his work, and we have devoted a considerable part of this opinion to explaining why the Board’s decision is supported by substantial evidence. Obviously, we are perplexed by the dissent’s position that, because Bradford was fired (a position not even taken by Bradford), no consideration need be given to whether he left his job for good cause, the very point Bradford argues. The dissent’s position also ignores Arkansas Code Annotated § ll-10-513(a)(l), which makes it clear that, in determining whether an employee is disqualified for benefits as a result of voluntarily leaving employment, the ESD must determine not only whether the employee left work voluntarily, but also whether the employee’s leaving was without good cause connected with his work.
In sum, viewing the evidence, as we are required to do, in a light most favorable to the Board, and considering our limited review as to whether the Board could have reasonably reached its conclusion based on the evidence presented to it, we affirm.
Affirmed.
Pittman, Gladwin, Robbins, and Vaught, JJ., agree.
Griffen, J., dissents.
The CIO Council is created by § 5 of Act 1042 and is to be appointed by the governor with the advice of Information Technology Oversight Committee (ITOC), to be made up of representatives from state government, public education, cities, and counties. Its function is to advise the ECIO on information technology resource usage and prioritization. The record is silent to as whether any of the members of the Council were legislators, but Bradford did testify that the Chairman of the Council was nominated by the legislature. | [
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Battle, J.
This action was instituted by Enos J. Tomlin-son, by his next friend, W. H. Tomlinson, against the St. Louis, Iron Mountain & Southern Railway Company. Plaintiff alleged in his complaint that “he was a minor, eleven years of age; that while he was being driven across the railroad at Magness Station in a wagon, the defendant negligently, wantonly and recklessly ran its engine against the wagon; that the defendant negligently failed, to ring the bell or sound the whistle of its engine for the crossing; that its employees negligently failed to keep a lookout for persons and property at the crossing; that the engineer and fireman were unskillful arid incompetent, and at said time were in a state of intoxication; that, though able to avert the danger of plaintiff after discovering same, said employees failed and neglected to do so; that, as a result of the engine being run against the wagon, the plaintiff was thrown out of the same, and his brain, eyes and vision were injured, to his damage in the sum of $20,000.”
The defendant answered, and specifically denied all the material allegations in plaintiff’s complaint, and alleged that his injuries were caused by his own contributory negligence.
The jury in the case returned a verdict iri favor of the plaintiff for $15,000, and the defendant appealed.
The jury might have found from the evidence adduced at the trial in this action the following facts: “A special train, called a pay train, was run out of Poplar Bluff, Mo., and from Newport up the White River Branch, a considerable distance above Batesville, Ark., and on its return, at or about Batesville, the locomotive engine broke down and became what is called a dead engine. * * * Upon the disabling of the engine, another engine and crew were wired for, and the same were sent from Newport to the relief of the special train. * * * This relief engine was attached to the special pay train at Batesville, early on the morning of October 17, 1902, and proceeded towards Newport, and about seven o’clock in the morning, much earlier than any «regular train was due at Magness Station, struck the wagon in which plaintiff was riding.
“A train going from Batesville towards Newport, before reaching Magness Station, would pass the ‘Oak Grove Crossing,’ about a mile and a half before reaching Magness, then after a considerable distance would pass the ‘Military Road Crossing’ (a county road), then after going 370 yards would pass the ‘Newark and Batesville Road Crossing’ (a county road), and then, after going through a cut 75 yards long, would pass over a trestle and then over the Magness Public Crossing, where the collision occurred. (This road, although it had not been established by-the county court, was used by the public more than the other two roads, and had been so used by the public for about twenty years, and defendant railroad company had put the crossing in there.) * * * Neither the whistle was sounded, nor the bell rung, nor other warning was given for either of these three crossings at or about the time of the collision. * * * In going out of the cut and approaching Magness Crossing, there was a slight curve toward the left, on account of which the engineer, on the right-hand side, while keeping a lookout ahead, could not see the wagon in which plaintiff was riding, while it was on or approaching the track from the left-hand side. The fireman, being on the left-hand side, the best position to make the lookout effective, was not keeping a lookout. * * *
“If the statutory signals had been given for either of the three crossings named, such warning could have been heard, and the collision and injury might have been averted. If the.fireman, being on the inside of the curve and in position to make the lookout most effective, had been keeping such lookout, he would necessarily have seen the wagon approaching, not only in time to have given effective statutory warning, but also in time to have caused the train to come to a full stop' before reaching the Magness Crossing, where the collision occurred. * * *
“Plaintiff was a boy about eleven years of age, riding in the wagon, which was driven by his brother, Ed Tomlinson, and his father, W. H. Tomlinson, was standing in the rear end of the wagon, and he was standing between the two. The driver, Ed Tomlinson, when about twenty feet from the track, looked up the track toward Batesville, and, seeing no train and hearing no bell or whistle sounded, drove on, and attempted to cross the track, at the same time looking down the track towards Newport, from which direction a gravel train was expected about that time. Just as the driver was driving his wagon across the track, the special train at an unusual hour for trains from that direction, and at an unusual speed for trains upon that road, and without any warning or statutory signal, and without any lookout on the left side, where, on account of the construction of the track, a lookout would be most effective, struck the wagon, knocking the plaintiff out and injuring him.
“The plaintiff, by the collision and fall, had his skull broken, the fracture being about one inch to the right of the middle line of the skull, on the posterior part of the frontal bone, and being about one inch by its shortest diameter, and about an inch and a quarter by its longest diameter. Pie was rendered unconscious by the fall, and remained so for about 18 hours. Doctors operated upon him. By the fall a piece of bone was driven upon his brain, lacerating and puncturing the dura mater,- a membrane forming the outer covering of the brain. This piece of bone, together with other pieces, was removed by the operation called trephining, and the hole in the skull, remaining after the operation, was described by the doctors who operated upon him as being about the size of a silver half-dollar. After the operation the boy remained semi-unconscious for five or six days. Upon the healing of the wound, an adherent, depressed scar remained, and the aperture was partially closed with a cartilaginous substance, and from the edges of the old bone and below the natural levél, there appears to be a very slight and slow growth of a harder material which may perhaps in time become bone, and make progress towards closing the aperture with bony substance, which, if it does take place, will be below the level of the old bone, and produce permanent pressure upon the brain. Before the injury the boy was subject to headache about once a month, and since'the injury he has been subject to headache twice a month, and the spells are of longer duration. Before the injury he was fairly intelligent for a child of his age, learned with average rapidity, was goodnatured and even-tempered, obedient to his parents and industrious; whereas since the injury he has been dull and slow of perception, disobedient, hard to control, quick-tempered, easily irritated and forgetful. Before the injury the boy’s eyes and vision seemed to be normal, but since he at times appears to see two objects when looking at only one object.
“According to expert testimony adduced in the case, ‘the future mental development of the boy will necessarily be one-sided, and the injury may produce epilepsy, insanity, or even idiocy; and the injury has caused a periodical double vision, which doctors call diplopia.’ ”
The court instructed the jury at the request of plaintiff, over the objection of the defendant, as follows:
“4. If the plaintiff shows by a preponderance of the evidence that he was injured by the operation of defendant’s train, it is presumed that the injury was negligent, unless shown not to. be negligent, and the burden in such cases is upon the defendant to show that the injury was not the result of such negligence upon its part.
“5. You are instructed that .the burden of proof is upon the defendant to show by a preponderance of evidence in the whole case that the plaintiff was guilty of contributory negligence.
“7. You are instructed that while it is the duty of a person about to cross a railway track to look both up and down the track, and to listen for trains from each direction, yet if it appears to him before crossing, as a reasonably prudent person under the surrounding circumstances, that greater danger is to be apprehended from one end of the track than the other, he may give more attention to that end of the track from which he as a reasonably prudent person under all the circumstances apprehends the greater danger.”
And the court refused to give the following instructions at the request of the defendant:
“6. Where the view of a railroad track is obstructed, and the danger of a road crossing is thus increased, a greater degree of care is required of. one about to cross the railroad' track than would be his duty to exercise at a crossing not particularly dangerous; but a traveler upon a railroad is bound to exercise ordinary care and diligence at the intersection of a railroad by looking and listening in both directions in order to ascertain whether or not a train is approaching, and so avoid a collision; and if he fails to do so, and for that reason is injured, he is not entitled to recover.
“11. Even if you find that the employees in charge of defendant’s train failed to give the signals for crossings by blowing the whistle or ringing the bell as required by law, or were otherwise negligent, your verdict will be for the defendant, if you find from the evidence that the plaintiff on approaching the crossing was himself guilty of negligence by failing to look and to listen in both directions for approaching trains, provided you also find from the evidence that by doing so he could have seen or heard the approaching train in time to have avoided the injury.”
And modified and gave the sixth as modified as follows:
“6. Where the view of a railroad track is obstructed, and the danger of a road crossing is thus increased, a greater degree of care is required of one about to cross a railroad track than would be his duty to exercise at a crossing not particularly dangerous.” •
And gave the following at the request of the defendant:
“2. You are instructed that an ordinarily prudent person, before attempting to cross a railroad, will use his eyes and ears in order to determine whether or not he can safely do so; and if the circumstances require it, as where the view of a railroad is obstructed, he will stop in order to see and hear more clearly. If a traveler neglects to do what an ordinarily prudent person would do under the circumstances, such traveler is guilty of negligence and can not recover.
“3. You are instructed that the rule of law that requires a traveler on a road, on approaching a railway crossing, to listen and to look in both directions for an approaching train is not relaxed in favor of one being carried by a vehicle driven by another. It is the duty of a person riding in a wagon driven by another to use his eyes and ears to discover danger, so that he may avoid it. In this case you are instructed that the plaintiff had no right, t because his brother was driving the wagon, to omit taking reasonable and prudent precaution to learn for himself that the crossing was safe. He was bound to listen and look in both directions for approaching trains, and to continue to do so as he approached; and if you find from the evidence that he failed to listen and look in both directions for the train, your verdict will be for the defendant.
“4 The jury are instructed that the want of care on the part of a traveler in failing to look arid listen for the approach of a train is not excused by the neglect of the employees in charge of the train either to keep a careful lookout on the track for persons and property, or to give the usual signals on approaching a crossing. If, therefore, you find from the evidence in this case that .the plaintiff went upon the railroad track before listening and looking in both directions for an approaching train, and was for that reason injured, your verdict will be for the defendant, even though you should further find that the men in charge of the train failed to keep a careful lookout or to blow the whistle or to ring the bell on approaching the crossing.
“5- If the facts and circumstances in evidence in this case show that the plaintiff, at the time of the injury of which he complains, was in a dangerous position, and was where a prudent person would not have been under the circumstances, and that this fact directly contributed to his injury, then plaintiff will not be entitled to recover, unless the evidence shows that the employees in charge of the engine saw the danger the plaintiff was in in time to have prevented the accident by the exercise of ordinary care, and failed to exercise such care.”
And modified the 8th and 10th instructions asked for by the defendant, and gave them modified as follows:
“8. The jury are instructed that if they find from the evidence in this case that the defendant was guilty of negligence, and that the plaintiff was guilty of negligence, your verdict will be for the defendant — and this covers every kind of negligence by plaintiff, or defendant contributing to the injury — unless the evidence further shows that defendant’s employees in charge of the engine became aware of the negligence of the plaintiff in time to have avoided injuring him by the use of ordinary care and failed to exercise such care.
“10. If the plaintiff saw or heard, or by the exercise of reasonable care could have seen or heard, the approaching train in time to have avoided the injury by the exercise of reasonable care, and failed to exercise such care, then he can not recover.”
It is contended that the appellant was guilty of no negligence at the time of the accident. But this is not true. There was evidence to show that it failed to sound the bell or whistle at any time before reaching any of the public crossings near the place of appellee’s injury, and at the same time failed to keep a proper lookout. It is true that the Magness Crossing was not a place where a road, laid out, constructed, repaired and maintained at the expense of the county, crossed the railroad, but a road crossed there which had been used by the public for about twenty years, and appellant had made the crossing; and it is such a crossing as the statute refers to when it requires railroad companies to ring the bell or to sound a whistle at the distance of at least eighty rods from the place where the railroad shall cross any other road or street, and to keep ringing the bell or sounding the whistle “until it shall have crossed said road or street.” Persons traveling over same belong to the class intended to be protected by the statute. It may be true that the engineer on the train was keeping a lookout on the right-hand side of his engine when the accident complained of in this action occurred, but this was not sufficient. It was also necessary to keep a lookout at that time on the left-hand side on account of the curve in the road to protect persons traveling over the Magness Crossing. Railroad Company v. Chriscoe, 57 Ark. 194; St. Louis Southwestern Railway Company v. Russell, 62 Ark. 186; St. Louis, Iron Mountain & Southern Railway Co. v. Denty, 63 Ark. 184.
The injury to appellee might have been avoided by complying with the statutes requiring signals to be given and a lookout to be kept.
But it is said that appellee was guilty of contributory negligence. At the time he was injured he was about eleven years old, and was traveling in a wagon with his father and an elder brother. It was natural for him, on account of their áge and experience, to rely upon them for protection. He was required to exercise only such care and caution as is according to his maturity and capacity. Whether he did so was a question for the jury to decide. Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 372; Davis v. Railway Co., 53 Ark. 128; Brinkley Car Co. v. Cooper, 60 Ark. 549; King-Ryder Lumber Company v. Cochran, 71 Ark. 55.
5Appellant insists that the court erred m giving to the jury the instructions numbered 4 and 5 at the request of appellee, because, he says, they took from the jury the consideration of all evidence on the part of appellee showing contributory negligence. But this defect was covered by the instructions numbered 2, 3, 4, 5 and 12, given at the request of appellant, and modified instructions numbered 8 and 10. In every case in which they could have been prejudicial, so far as we can see, the jury were properly instructed as to what they should do. Prejudice was further guarded against by the instructions of the court to the jury to consider all the instructions given to them together and as a whole.
We see no reasonable objection to the instruction numbered 7 given at the request of the appellee. In that instruction the jury were told that it is the duty of a person about to cross a railway to look both up and down the track, and to listen for trains from each direction, and that, if it appears to him, as a reasonably prudent person, that the greater danger is to be apprehended from one end of the track than the other, he may give more attention to that end of .the track from which he apprehends the greater danger. The instruction does not relieve such person of the duty to look and listen in both directions, but says that he may give more attention to the end of the track from which the greater danger is apprehended. This is reasonable, and in accordance with that prudence and care an ordinarily prudent person would exercise.
So much of instruction numbered 6, asked for by appellant, as was not given was supplied by instruction numbered 7, given at the request of appellee, and instructions numbered 2, 3 and 4, given at the request of appellant.
The instruction numbered 11, asked for by appellant and • refused by the court, was, so far as it is correct, covered by other instructipns which were given.
The evidence is sufficient to sustain the verdict.
Judgment affirmed. | [
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McCulloch, J.
Appellant commenced this action in the circuit court of Jefferson County to recover the sum of $185 alleged to be due for merchandise sold upon a written order or contract and shipped by appellant from its place of business at Iowa City, Iowa, to appellees at Wabbaseka in Jefferson County. Appellees filed their answer, alleging that the order for the goods was delivered by one of the members of their firm to the traveling salesman of appellant upon condition that the same should be subsequently approved by the other member of the firm, who was then absent, and under an express verbal agreement with said agent that he would not forward the same to appellant until they notified him of such approval. They further allege that immediately upon the return of the member of the firm the next day he disapproved said order, and they immediately notified said agent by mail to cancel it. They asked that the cause be transferred to equity, and that the contract- be canceled.
The circuit court ordered the transfer to equity over the objection of appellant (to which exceptions were duly saved), and the chancellor rendered a decree in favor of the defendants.
The answer presented a complete defense at law. Graham v. Remmel, 76 Ark. 140; State v. Wallis, 57 Ark. 64; Ware v. Allen, 128 U. S. 590; Burke v. Dulaney, 153 U. S. 228.
This being true, it was error to transfer the cause to equity. Weaver v. Arkansas Nat. Bank, 73 Ark. 462.
Reversed and remanded with directions to transfer the cause to the circuit court for trial. | [
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McCulloch, J.,
(after stating the facts.) The facts of this case are practically undisputed.
There are two questions of law presented: (1) Whether the court had jurisdiction to hear and determine the cause of action against appellant Rugg for the recovery of half the cost of the wall;'and (2) which of the two claimants should recover the same, Mrs. Womack, the widow and legatee of J. P. Warren, the original owner of lot 47 and builder of the wall, or Eemley and Work, the grantees of Warren under deed conveying lot 47 “with all appurtenances thereunto belonging.”
The proof failed to sustain the cause of action stated in the original complaint, and the court denied the relief prayed. The amendment to the complaint, filed after the dissolution of the injunction, stated a different cause of action and one inconsistent with the facts stated in the original complaint, but one which was cognizable in equity. The agreement of Rugg to pay part of the cost' of the wall, when he commenced use of the wall, became a charge in the nature of an equitable lien upon the lot on which the wall was erected, and was enforcible in equity. Washburn on Easements & Servitudes, p. 612; Richardson v. Tobey, 121 Mass. 457; Nelson v. McEwen, 35 Il. App. 100; Roche v. Ullman, 104 Ill. 11; Keating v. Korfhage, 88 Mo. 524; Burr v. Lamaster, 30 Neb. 688; First Nat. Bank v. Security Bank, 61 Minn. 25.
The fact that only a personal judgment against Rugg was prayed for and granted did not prevent the court from assuming jurisdiction. The statement of facts in the complaint, and not the prayer for relief, constituted the cause of action which conferred jurisdiction upon the court. Sannoner v. Jacobson, 47 Ark. 31; Waterman v. Irby, 76 Ark. 551.
The more serious question in the case is whether the agreement concerning the payment for use of the party wall is a covenant which runs with the land and the right to recover the agreed sum passes to the grantee of the origiilal builder, under his deed to the lot, or whether it is the personal asset of the covenantee which passes to his assignee or personal representative.
Upon this question the authorities are inharmonious, but we incline to the view that the chancellor was correct in adopting the line of authorities which hold that such an agreement is a covenant which runs with the land and passes to the grantee of the original builder’s lot. Richardson v. Tobey, 121 Mass. 457; Maine v. Cumston, 98 Mass. 317; Tomblin v. Fish, 18 Ill. App. 439; McChesney v. Davis, 86 Ill. App. 380; Platt v. Eggleston, 20 Ohio St. 414; Adams v. Noble, 120 Mich. 545; Kimm v. Griffin, 67 Minn. 25.
Under the contract, when the wall was built, the builder became the sole owner thereof, with an easement over the strip of the adjoining lot built upon, subject to the right of the owner of the adjoining lot to use the wall upon payment of half the cost thereof. The whole wall, together with the easement over the adjoining lot, passed under the deed executed by the builder as an appurtenance to his lot. McChesney v. Davis, supra; Kimm v. Griffin, supra.
The owner of the adjoining lot, by paying half of the cost of the wall in accordance with the terms of the contract, not only obtained title to that part of the wall which was built upon his lot, but he also acquired an easement over the other lot for support of the wall. These consummated rights he obtained, not from the builder, the original owner of the lot, but through and from the person who was the owner of the lot at the time he used the wall and paid the agreed price. Though the rights of the parties were fixed by the original contract, yet the enjoyment of them was consummated only when the agreed price should be paid. Therefore, in contemplation of law, these rights were obtained through and from the present owner of the lot and wall, and he alone is entitled to the compensation.
As is well stated by the Supreme Court of Illinois in the case of Gibson v. Holden, 115 Ill. 199: “In all such cases (that is, where the title to the wall is in the builder) the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing, by every conveyance of it, ¿until a severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases until the payment is made; and so necessarily it is, constructively, a sale by the assignee of so much of the wall.”
The contrary view is taken by the Nebraska court, and the question is discussed with much learning and ability by that court in the recent case of Cook v. Paul, 66 L. R. A. 673, where all the authorities supporting that view are cited, but we are unable to agree with the conclusion there reached.
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McCulloch, J.
A judgment of conviction against appellant in a former trial was reversed by this court (Lee v. State, 72 Ark. 436), and upon another trial he was again convicted of the crime of manslaughter and sentenced to a term of three years in the penitentiary. He again appeals to this court.
The facts, briefly stated, are about as follows: H. McGough, the person killed, was a constable residing at Wilton, Little River County, where the killing occurred. Appellant lived at Richmond, in Little River County. Ill feeling is shown to have existed between the parties, growing out of certain accusations against appellant of cattle-stealing and alleged mistreatment of appellant by McGough while in custody of the latter as constable.
On the day on which the killing occurred appellant came to Wilton for the ostensible purpose of procuring subpoenas for witnesses in the trial of the larceny cases against him, and also to procure evidence to put McGough under bond-to keep the peace. Appellant was in the store of Smith & Coats, when McGough came into the store approaching appellant, and the latter drew his pistol and shot McGough, killing him instantly. There is conflict in the testimony as to what occurred between the two men. The evidence on the part of the State tended to show that McGough came into the store and accosted appellant in friendly terms as he approached him, and without any hostile demonstration, and that appellant drew his pistol and shot him without justification. The State’s evidence tended to show that McGough was unarmed at the time; that he was in his shirt sleeves, and had left his coat and pistol in a saloon near by, and that no pistol was found upon or near his body after he was killed. Appellant testified that he went into the store of 'Smith & Coats, and, while waiting for a clerk to find some cartridges for his pistol, heard a voice behind him saying “Hello, Jim!” or “Here, Jim!” and, looking around, saw McGough approaching with his hat in his left hand when he (appellant) “whirled, and turned around, and drew my pistol quick, and fired. As he drew his pistol, I drew mine.” He testified that McGough had a pistol in his hip pocket, and introduced other witnesses whose testimony tended to show that a 38-caliber pistol was found near the body of McGough soon after he was killed. He also introduced testimony to the effect that McGough’s reputation was that of a turbulent, dangerous, over-bearing man, and one witness testified that he told appellant that “McGough told me that his way of attacking a man was to raise the racket, and, when the man started onto him, to slap him in the face with his hat, thereby make him drop his head, then shoot him.”
Much testimony was introduced on both sides as to the character of McGough, the former occurrences between the two men, and the circumstances attending the killing, and as to whether or not McGough was armed.
The State was permitted to show by a witness that immediately before the killing — just before McGough went into the store where he was killed — he said to the witness that he (McQpugh) stopped in the saloon, took off his pistol and coat, and hung them up. Appellant excepted, and assigns this ruling of the court as error. We think this statement was incompetent, and should not have been admitted, but we can see no prejudice resulting from it. It is undisputed that McGough had left his coat and pistol (a large one worn in a belt or scabbard) in the saloon near by, and that he was in his shirt sleeves when he was killed. It is not contended that he had this pistol with him when he was killed, but that he had a smaller one in the hip pocket of his trousers. The whole theory of the defense rested upon the contention that McGough had two pistols, one of which (the large one) he had left in the saloon, and the smaller one he carried in his hip pocket. A witness was introduced by appellant to prove that McGough said on one occasion, that “he never wore pants without a little 38 S. & W. pistol in his pants’ pocket. He said he carried it all the time.” The whole controversy over the question as to McGough being armed was whether he had a small pistol in his pocket at the time he was killed, and not whether he had the large pistol. The statement introduced related only to the large pistol, so it was manifestly harmless error of the court in admitting it.
Error is also assigned in the refusal of the court to permit appellant to prove by a witness that he (appellant) went to Wilton that day for the purpose of procuring evidence to put McGough under bond to keep the peace. This was not competent. Nor was it material, in view of the fact that appellant was on trial for manslaughter, and the question of malice and premeditation was not involved.
The court gave to the jury thirteen separate instructions asked by the State, and fifteen asked by appellant’s counsel, and refused four asked by the latter. Error is assigned in giving some of the instructions asked by the State and refusing those asked by appellant. Without setting out the instructions or discussing them in detail, it is sufficient to say that we have considered them carefully and find no error in either giving or refusing instructions. They completely and correctly put every phase of the case before the jury, and left nothing further to be properly said in declaring the law.
It is also contended that error was committed by the court in failing to properly admonish the jury when adjournments were taken during the progress of the trial. The record shows that the members of the jury were kept in charge of an officer and not allowed to separate, and were properly admonished at each adjournment or recess except once, when the court merely admonished the officer in charge to “see that nobody talks to them, and don’t you talk to them, and don’t you let anybody else talk to them, and keep their minds free from anything until the proper time.” This admonition was given in the presence of the jury and, though addressed to the officer in charge, was a sufficient reference to the original admonition to the jury to comply with the requirements of the statute.
Moreover, the jurors were not allowed to separate, and no prejudice is shown to have resulted from the failure to admonish. The statute requiring the court to admonish the jury is mandatory, but where the jurors are kept together, and the defendant is present when the jury retires for an adjournment of the court, and fails to ask for an admonition to the jury, he waives it and can not, after the verdict is rendered, take advantage of the omission. Atterberry v. State, 56 Ark. 515.
This disposes also of the assignment of error in the court failing to administer the oath to the officer in charge of the jury when it retired on one occasion.
The case of Johnson v. State, 68 Ark. 401, relied upon by counsel for appellant, is not controlling in this case. There the jurors were permitted to separate without admonition, and the court held that it was reversible error where it was not affirmatively shown that they were exposed to no improper influences.
We find no error in the proceedings, and the judgment is affirmed. | [
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McCulloch, J.,
(after stating the facts.) It has been held by this court in a number of cases that equity will not grant relief by injunction against the cutting of timber unless it be shown that an irreparable injury to the property will result, that the destruction of the timber will render the freehold less susceptible of enjoyment, or the acts of trespass are of a nature to constitute a nuisance, or unless it is obvious that the defendant is insolvent, and can not be compelled to respond in damages. Ellsworth v. Hale, 33 Ark. 637; Myers v. Hawkins, 67 Ark. 413; Western Tie & Timber Co. v. Newport Land Co., 75 Ark. 286; Haggart v. Chapman & Dewey Land Co.; 77 Ark. 527. Appellants invoke this doctrine against the decree in this case. There may, however, be other grounds existent for the exercise of jurisdiction to grant the relief, and we are of the opinion that they sufficiently appear in this case.
This is not a suit by a landowner to restrain a trespass or trespasser upon the land. It is a controversy between rival claimants to the title to the timber, and the plaintiff alleges and proves, not only that defendants' have no valid and subsisting right to cut the timber, but that, by abandoning their previously asserted claim to the timber, and by remaining silent and failing to assert a claim thereto, they induced the plaintiff to purchase the timber from the owner of the land, and to erect, at great expense, a mill on or near the land to manufacture the timber into lumber. Plaintiff also shows that recovery of damages at law to the extent of the market value of the timber would not, under those circumstances, afford full compensation for the injury, and that there is, therefore, no adequate remedy at law. We think that contention is sound, and that the‘ distinction is plain between this case and those cited above holding that equity jurisdiction will not be exercised to restrain a mere trespass.
It is unnecessary in this case to go to the extent of holding, as in the case of Wadsworth v. Goree, (Ala.), 10 So. 848, cited by counsel, that, merely because the plaintiff has purchased the timber and erected a sawmill in the vicinity of the land on which it is situate for the purpose of sawing it into lumber, the jurisdiction of the court of equity may be invoked to enjoin other persons from trespassing by’Cutting the timber; but when to this element is superadded the other found in this case that the defendants, or one under whom they hold, have, by their conduct in failing to reassert an apparently abandoned claim, induced the plaintiff to erect a mill at great expense, and when it is shown that reim bursement to the extent of the market value of the timber would not fairly compensate for the injury which will be done by the threatened trespass, we think the jurisdiction of a court of equity to prevent it by injunction is plain. The loss, is, under those circumstances, irreparable, and the remedy at law for recovery of damages is inadeqxxate.
Appellants contend that, under the terms of the consent decree, there being no limit of time fixed within which the timber should be removed, Smith and his grantees could remove it at his or their own pleasure or convenience. On the other hand, appellee contends that the right of Smith and his grantees to cut timber expired January 1, 1900, the time limit of his occupancy of the lands in cultivation; or, that, being without time limit fixed by the decree, the law implies the right to remove the timber within a reasonable time.
The recent decision of this court in the case of Liston v. Chapman & Dewey Land Co., 77 Ark. 116, settles the question in favor of the latter contention of appellee.
The court there said: .“In the absence of something in the instrument itself, or in the proof aliunde, showing a contrary intention, a deed to merchantable timber which specifies no time for its removal conveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber, after the execution of the deed, has expired.” The authorities on both sides” of this question are fully collected in that opinion, and need not be cited or discussed again. The same rule of construction applies to a decree of court, especially a consent decree, which is a contract as well as a judicial decree. We need not determine whether the decree passed the title to the timber to Smith, or whether it operated merely as a privilege or license to cut the timber, as contended by counsel for appellee. The rule would, in either event, exclude the right of the grantee or licensee to cut and remove the timber after a reasonable time had elapsed.
The evidence in this case establishes the fact that the timber could, with reasonable diligence, have been removed long before appellants asserted their right to cut it, and no excuse is given why it was not cut and removed earlier. The chancellor found that a reasonable time had long since elapsed, and we see no ground upon which his findings should be disturbed.
Other grounds are assigned by counsel for appellee why the decree of the chancellor should be sustained; but as those already discussed are decisive of the case, we need not pass upon othérs.
Decree affirmed. | [
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Wood, J.,
(after stating the facts.) Appellant’s counsel contend that witnesses Orear and Thompson were not competent to give an opinion that any particular condition of the handcar was a defect, nor as to what would be the result of operating a handcar with defects, until they had qualified themselves as experts.
Conceding, as this does, that a handcar is such a machine as requires expert testimony to determine what would be the effect of operating a defective one and what would be a defect in any particular condition of the car, we must say that the witnesses, in our opinion, have sufficiently qualified themselves to give expert testimony. The record does not warrant the conclusion that a handcar was such a complicated machine that great length of time employed in the use and. operation thereof was necessary in order to enable one to understand its various parts, whether they were defective or not, and what would be the consequences of the operation of a defective one. Orear had run a handcar “off and on” for about three years, and Thompson had about fifteen or twenty years’ experience in operating cars. He could take one to pieces, and put it together again. We very much doubt whether any peculiar skill, or special habits of study, or any unusual knowledge was necessary in order to master the details of handcar machinery and its operation. But, if so, then Orear and Thompson showed sufficient familiarity and knowledge of the subject-matter to entitle them to testify as experts, and their testimony was properly admitted.
Instructions one and two given by the court were abstract, and moreover were not accurate statements of the law upon the subjects intended to be covered by them. If it was a question of fact as to whether or not Hopkins was inexperienced, there was no evidence whatever that appellant had notice or knowledge of such inexperience. 'And while it is the duty of the master to warn its servants of certain kinds of defects in machinery and the danger likely to ensue from the operation thereof, it is not the duty of the master to warn its servants of all dangers that are incident to the business about which the servant may be employed, as the first instruction might be construed to mean. But these instructions, when taken in connection with instruction number four and with instructions given at request of appellant, especially those ^numbered one, three, eight, ten, eleven and twelve, could not have been prejudicial, for the whole matter covered by instructions one and two given by the court and the particulars wherein they needed explanation were covered fully by other instructions given, and that too in a more favorable light in some respects than appellant had the right to demand.
Instruction number three given by’the court was defective in form, but appellant did not ask to have it corrected by suggest ing the proper qualification. The exact point covered by this instruction is ruled by St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
The court did not err in refusing instruction number six asked by appellant. The instruction was abstract and misleading. Besides, it leaves out all knowledge on the part of Hopkins of the defects mentioned and the danger to be anticipated in the use of such defective machinery. There was no evidence that the handcar was run too fast.
The court properly refused to give an instruction directing a verdict for appellant. The case was one for the jury upon proper instructions, and there is nothing in the ruling of the court in giving or refusing instructions of which appellant can complain.
We need riot again discuss the doctrines of assumed risks and contributory negligence presented by some of the charges, for the whole subject has been gone over exhaustively by us in the recent case of C., O. & G. R. Co. v. Jones, 77 Ark. 367. Nothing remains except to apply these principles to the facts of each case as they arise where these questions are involved. In addition to the authorities cited by Judge Riddick, I wish to refer, for the benefit of those who may be interested in investigating these subjects further, to the case of Limberg v. Glenwood Lumber Co., 49 L. R. A. 33, and the elaborate notes thereto.
The twelfth ground of the motion for new trial is: The court erred in refusing to exclude from the consideration of the jury the evidence of Sam Thompson, R. J. McKay and R. L. Orear as to placing or replacing wheels on the handcar after the time of the accident. Over the objection of appellant, witness McKay was permitted to testify that the rear wheels of the handcar were taken off some time after the accident, but he could not tell how long, whether three weeks or a month. Witness Thompson was asked to state to the jury how came the change to be made, and over objection of appellant answered: “I suppose it to be for safety.” He was then asked: “The other wheels were not considered safe by the men who ordered them off?” and over objection was allowed to answer, “No.” Exceptions were properly saved. Motion was made to strike out this testimony, and the bill of exceptions shows that “the court overruled the motion to strike out the testimony of Orear and Thompson in reference to change of the wheels made' on the handcar, and permitted the testimony to go to the jury, but not for the purpose of establishing conclusively that the change was made on account of defects, but it might be considered by the jury, together with all other circumstances.” Such testimony was incompetent, as was recently ruled by this court in Prescott & Northern Ry. Co. v. Smith, 70 Ark. 179. It was prejudicial, for it can not be said that the evidence, apart from this, conclusively established the negligence of appellant.
The question was for the jury. The evidence was conflicting as to whether or not there were defects in the handcar which appellant knew or by the exercise of ordinary care should have known.
For the error in admitting this testimony and refusing on motion afterwards to exclude it, .the judgment is reversed, and cause remanded for new trial. | [
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Hill, C. J.
Ruff Boyett was assessor of Hempstead County, and was re-elected to said office without opposition in the general election of September, 1904. On the 21st of November he wrote the Secretary of State requesting his commission as assessor, and sending the fee, $2, therefor. On December 2, 1904, the Governor took the position that the failure of Boyett to apply for his commission within 60 days and pay the fee therefor and file his duplicate oath of office within fifteen days after the receipt of the commission, vacated the office, and he thereupon appointed L. E. Cowling assessor. This suit resulted, the circuit judge gave judgment for'Cowling, and Boyett appeals.
The appellant makes these contentions:
1. That sections 647-648, Kirby’s Digest, containing the provisions above referred to, viz.: applying and paying for commission within 60 days and filing duplicate oath within 15 days thereafter, were repealed.
2. That said statutes are unconstitutional.
3. That the Governor did not have the right to fill a vacancy in the office of assessor.
The contention is made,that said sections were repealed by act of March 14, 1881 (pp. 73-75), and said act being in turn repealed by act of March 2, 1883 (pp. 73-74), which is found in Kirby’s Digest, § 646.
The act of 1881 provides for commissions for district, county and - township offices to be sent to the clerks of the several counties, and that the clerk should collect the fees therefor and deliver the commissions to the officers upon their payment of the fees, and when default was made should return the commissions to the Secretary of State. The clerk was required to notify the officers, and to keep a record of the commissions, date of qualifications and other details. The act of 1883 provided for payment into the treasury, and required the Secretary of State, on receiving duplicate receipt from the Treasurer, to forward the commission. Section 646, Kirby’s Digest. None of these matters reached to the point covered in the act of 1875, which constitutes § § 647 and 648. The requirement that the commission be applied for and paid for within 60 days, and that the oath of office be taken within 15 days thereafter, and the duplicate filed with the Secretary of State, was consistent with each change in the method of receiving the commissions and the amount of fees due therefor and the officer to whom the fees were payable.
It is elemental that repeals by implication are not favored, and they are only recognized when efforts to harmonize the legislation are futile. These acts are susceptible of being read together without being inconsistent or in conflict with each other.
It is also argued that sections 6955, 6956 and 6958, Kirby’s Digest, parts of the Revenue Act of 1883, repealed sections 647, 648, in so far as the assessor is concerned. Section 6955 requires the assessor, within 15 days after receiving his commission, to enter into bond, and section 6956 requires him on or before the first day of January, and before discharging the duties of his office, to take the oath prescribed by the Constitution for all officers, and also an additional oath therein set out, pertaining to his office, which must be indorsed on his book, and sectipn 6958 provides for a forfeiture of the office for failing to obey the foregoing provisions. These are all additional requirements to sections 647, 648, and- there is no such inconsistency between them as to require the court to hold the former act repealed. The whole subject-matter is not covered by any of this later legislation, and, the acts all being susceptible of standing without impinging on each other, it is the duty of the court to give effect to each of these legislative enactments, and therefore the court holds sections 647, 648 not repealed.
Are these statutes unconstitutional?
The State has a right to require its officers to take an oath to support the Constitution 'of the United States and of the State of Arkansas and to faithfully discharge the duties of the office. This is not denied. The Constitution requires certain officers to be commissioned by the Governor. Some fee has always been attached to official commissions. In early days only the fee to the Secretary of State for affixing the Great Seal, but later an act graduating fees for the various offices, from one to fifteen dollars, was passed. Persons elected to office take'the office subject to such regulations, impositions and restrictions as the General Assembly may impose which are not forbidden by the Constitution, directly or by necessary implication. Hyde v. State, 52 Miss. 665.
It is urged that the constitutional requirement that the Governor commission the officers carries with it an inhibition on the Legislature fixing a fee to be paid for the commission; but it would be a straining of the purport of this clause to construe it into such a prohibition; it was only a mandate that the officers should be commissioned, and that the Governor was to perform this duty. No question of an unreasonable restriction on the issuance of the commission is in this case as there was in Chism v. Martin, 57 Ark. 83.
The New Hampshire court said: “The choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any cere mony of inauguration, these are forms only, which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable.” Johnson v. Wilson, 2 N. H. 202, s. c. 9 Am. Dec. 50; Mechem on Officers, § 114.
It will be noted that, this statute renders commission and oath indispensable to the incumbency of the office. In State v. Johnson, 26 Ark. 281, it was held that a provision of the schedule of the Constitution of 1868 requiring officers to qualify within 15 days after notification of election or appointment was mandatory.
After a careful and exhaustive review of the authorities, the Nebraska court says: “It will thus be seen that the overwhelming weight of authority under statutes much less mandatory than our own is to the effect that, where a time is prescribed within which one, in order to be inducted into office, must take the oath or file a bond, the taking of the oath or the filing of the bond is a condition precedent to the right to enter upon the office, and that the right is absolutely lost by a failure to perform the condition within the time limited.” State ex rel. Berge v. Lansing, 46 Neb. 514, s. c. 35 L. R. A. 124. The statutes at bar are of exactly the same character as those above mentioned, and the foregoing statement is equally applicable to them. It follows that these statutes are valid.
This brings the case to the question of whether the Governor could fill the vacancy.
In the case of Rice v. Palmer, ante, p. 432, the court holds that the amendment conferring the appointing power upon the Governor failed to be adopted.
It is contended that Boyett’s having failed to comply with sections 647-648, Kirby’s Digest, created a vacancy in the office of assessor, and he, having no right to the office thus lost to him, could not maintain an action against Cowling for it; and has no more right to question Cowling’s title to the office than any other citizen. This would be the case if Boyett was not the holdover assessor. He was in office when this vacancy in the new term was created, and, it not being legally filled, left him in office until a legally elected successor qualified.
The office of assessor was created by section 46, art. 7, Const, and vacancies in all offices created by art. 7 are to be filled by special election called by the Governor, except when the vacancy occurs in county and township offices within six months and in other offices within nine months of the general election, in which event the Governor appoints for the remainder of the term. Const., art. 7, §. 50; Sand. & H. Digest, § 2691 (a section not carried into Kirby’s Digest).
The judgment is reversed, and judgment entered here dismissing Cowling’s complaint.
Justice Wood concurs in the judgment, but not in opinion on subject of the effect of the statutes.
Justices Riddick and McCueloch concur in opinion except as to that part holding that "Amendment No. 3 was not adopted, their views on this subject being expressed in their dissenting opinions in the case of Rice v. Palmer, supra. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by George M. Block, trustee in bankruptcy of the George Taylot Commission Company, from a judgment rendered by the Pulaski Chancery Court against him and the German National Bank of Little Rock in favor of W. K. Shaw for the sum of $461.84 and for the proceeds of certain cotton held by the bank. The facts, briefly stated, are as follows:
Shaw was a cotton broker of Boston, Massachusetts. The George Taylor Commission Company was also engaged in buying and selling cotton. Its principal office was at St. Louis, Mo.', but it had an agent at Little Rock who bought cotton for the commission company to fill its contracts. In the year 1903 Shaw made contracts with certain manufacturers of cotton goods to furnish them cotton. In order to procure the cotton to fill these contracts, he made an offer to purchase from the George Taylor Commission Company about fifteen hundred bales of cotton of a certain grade and staple, known as long staple cotton, at a price of about 12j4 to iy/2 cents per pound, to be paid on delivery of cotton. This offer was accepted by the commission company, which agreed to sell Shaw the cotton at the price named. In order to carry out this contract which the commission company had made with Shaw, its agent at Little Rock went into the market there, and from time to time, as he was able to do so, purchased cotton of the grade and staple required by the contract with Shaw. The company borrowed money from the German National Bank of Little Rock to pay for this cotton, and to secure the bank transferred to it the warehouse receipts for the cotton. Three hundred bales of this cotton were shipped to Shaw or to customers of his as directed by him on the contract, but the company failed, and became bankrupt before the other cotton was delivered or shipped to Shaw. At the time the company quit business the bank held warehouse receipts for about 1000 bales of this cotton purchased by the commission company for the purpose of carrying out its contract with Shaw. After selling all but six bales of this cotton, and discharging the debt of the commission company to it, the bank had in its possession a surplus of $461.84, and held bills of lading for the six bales of cotton.
Shaw had paid nothing on his contract, for he was not required to pay until the cotton was delivered. The price of cotton had gone up after his contract of purchase was made with the commission company, and the cotton sold by the bank brought a much higher price than Shaw had contracted to pay for it, and his loss by reason of the failure of the commission company to carry out its contract was probably much greater than the surplus held by the bank after paying its debt.
The question presented by this appeal is whether Shaw or Block, the trustee in bankruptcy for the commission company, is entitled to this money and cotton held by the bank after paying its debt.
There was no delivery of the cotton to Shaw, so as to make him the owner of -the legal title thereto; but counsel for Shaw contends that in equity the cotton, so soon as purchased, belonged to Shaw, and that a court of equity will protect this equitable title. They say that, as this particular cotton was bought by the agent of the commission company specially for the purpose of carrying out its contract with Shaw, the case falls within the equity rule that a contract for the sale of chattels to be afterwards acquired transfers the beneficial interest in such chattels to the vendee so soon as they are acquired by the vendor. Benjamin on Sales, § 81; Apperson v. Moore, 30 Ark. 56.
It is, no doubt, true, to quote the language of Professor Pomeroy, that “a sale, assignment or mortgage, for a valuable consideration, of chattels or other personal property to be acquired at a future time operates as an equitable assignment, and vests an equitable ownership of the articles in the purchaser or mortgagee as soon as they are acquired by the vendor or mortgagor, without any further act on the part of either; and this ownership a court of equity will protect and maintain at the suit of the equitable assignee.” Pomeroy, Equity, § 1288; Holroyd v. Marshall, 10 H. L. Cases, 191; Apperson v. Moore, 30 Ark. 56; Bett v. Carter, 2 Lowell (U. S.), 458; Morrell v. Noyes, 56 Me. 458. But to have this effect there must be a sale or a contract for a sale of certain specific property. This question was discussed in Official Receivers, 13 Appeal Cases, Law Rep. 1888, 533. In that case the question was whether the mortgage of a stock of goods and all book debts which during the continuance of the security should become due and owing to the mortgagor was void as to the future book debts on account of vagueness. The Court of Appeals held that the description was too vague and general, and that no title passed, but the House of Lords reversed this judgment. The judges said, in substance, that, while it might be uncertain when the mortgage was executed what book debts, if any, would come into existence, yet, as soon as these debts were-acquired, their identification was complete, and the assignee for value took in equity the same interest as if the debt had been in existence at the time the assignment was made.
As bearing on the case before us, we wish to call special attention to the language of Lord Watson, who delivered an able opinion in that case. “There is,” he said, “but one condition which must be fulfilled in order to make the assignee’s right attach to a future chose in action, which is that, on its coming into existence, it shall answer the description in the assignment, or, in other words, that it shall be capable of being identified as the thing or as one of the very things assigned.”
Now, in this case plaintiff shows that he had a contract with the George.Taylor Commission Company to sell him a certain number of bales of cotton of a particular grade and staple at a price named, but no particular cotton was sold or agreed to be sold. The fact that the commission company or its agent after-wards bought certain cotton of the kind described in the contract, and bought it furthermore with the intention afterwards to deliver it to the plaintiff in performance of their contract, is a matter of no moment, for it was never delivered. If the evidence showed that this cotton was kept by the commission company separate from the other cotton owned by it, this still was not a delivery to Shaw, and the title to this cotton, both legal and equitable, remained in the company up to the time of its failure. The company could, at any time before its failure, have changed its mind, and could have disposed of this cotton in any way it saw. fit. It could have delivered other cotton of the same kind to plaintiff in fulfillment of its contract, and he would have had no ground of complaint, for the company, as before stated, never agreed to deliver any particular cotton, but only cotton of a certain grade and staple. It can not be said that this cotton is the- identical cotton sold to Shaw or agreed to be sold to him, for, as before stated, his contract calls for no particular cotton, and the facts do not bring this case within the equitable rule referred to.
Plaintiff has neither bought any particular cotton from the company, nor paid anything to the company on its contract for cotton, and there is no reason why a court of equity should interfere in his behalf to give him a preference over the other creditors of this bankrupt company. If he has suffered loss by the failure of the company to carry out its contract, he has his remedy at law, and the insolvency of the company does not change the rule.
If he had purchased or contracted to purchase all the cotton of a certain grade and'staple bought by the agent of the commission company at Little Rock during the fall of 1903, and to enable the company to carry out its contract had advanced a large part of the purchase price, a different question would have been, presented, for this would have been a purchase for value of certain specific cotton, and not a contract for the purchase of a quantity of cotton of a certain kind only, upon which nothing has been paid or advanced.
In its last analysis this is nothing more than an action for specific performance of an executory contract for the sale of cotton, an article of commerce which can at all times be bought in the market. Courts of equity do not enforce such contracts, and the remedy for their breach, as before stated, is at law.
In our opinion plaintiff fails to make out a case for the interposition of a court of equity. The judgment in favor of plaintiff is therefore reversed, and the cause remanded, with an order to enter a decree in favor of the appellant, and for other proceedings. | [
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Battle, J.
On April 11, r.904, the appellant filed her complaint, which alleges:
“That at the date of the accident hereinafter complained of the said plaintiff and her deceased husband, Ivan I. Matthews, were citizens of Miller County, Arkansas, and the defendant company was and is an incorporated accident insurance company, incorporated under the laws of the State of Indiana.
“That on the nth day of December, 1902, while the relation of husband and wife existed between this plaintiff and the said Ivan I. Matthew's, her said husband, he took out a policy of accident insurance in -and with the said Continental Casualty Compan33 the defendant herein, whereby the said defendant undertook and did insure the said Ivan I. Matthews against loss by accident, and in case of death by accident the said company agreed and bound itself to pay this plaintiff as beneficiary in said policy the sum of one thousand dollars in case of such accident occurring 'within one year from 12 o’clock noon, standard time,' of the date’ of the policy.
“That the premium of said policy was duly paid and the same duly delivered to the assured, a true copy of which is attached to this complaint.
“That on the nth day of December, 1903, about the hour of four o’clock and thirty minutes in the afternoon, standard time, and before the said policy, had expired, while the said Ivan I. Matthews was hunting in Miller County, Arkansas, and while he was attempting to cross a fence, his gun was accidentally discharged, and load took effect in his shoulder, from which he died the same day, two or three hours afterwards.
“That this plaintiff has complied with all the terms of said contract, given the notice of death, and furnished the proof of death of her said husband, but the defendant neglects and refuses to comply with the terms of said contract of insurance and pay the indemnity, although often requested, and denies liability thereunder.
“Wherefore, premises considered, plaintiff prays judgment for one thousand dollars, with interest thereon, for costs and for general relief.”
The defendant demurred to the complaint. The court sustained the demurrer. The plaintiff refused to plead further; and the court dismissed the action.
The defendant insured Ivan I. Matthews against accidents occurring “within one year from 12 o’clock, noon, standard time, of the date of the policy, which was the nth day of December, 02.” The accident to Matthews happened on the nth day of December, 1903, at four o’clock and thirty minutes in the afternoon. Did the defendant insure Matthews against this accident? This is the only question in the case.
The parties to the contract of insurance agreed and stipulated when the year should begin. They had the right to fix the time and did so. The contract is valid, and must be enforced according to its terms. The accident did not occur'within the year so fixed, and plaintiff can not recover.
Judgment affirmed. | [
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Battle, J.
On the 21st day of August, 1903, Jane Cantwell purchased a ticket of the Choctaw, Oklahoma & Gulf Railroad Company for transportation over its road from Mansfield in Arkansas to Holdenville in the Indian Territory. She was on the depot platform with her three children, ready to take the train when it arrived. It remained from five to ten minutes. She succeeded in getting the eldest child, a little girl, on the train, when it moved out and left her and the other two children at the depot. Upon discovering the little girl on board, the trainmen stopped about one or two hundred yards from the depot and put her off. They made no effort to run the train back to the depot. To have done so, it would have been necessary to send a brakeman back about a half mile with a flag to protect against collisions and delayed the train until it would have missed connections with other trains. Mrs. Cantwell made no effort and showed no disposition to get to the train when it stopped, and it moved on.
The railway company filed an offer in court to confess judgment in favor of Mrs. Cantwell for the sum of ten dollars, which exceeded her actual damages, and she refused to accept it.
The jury in the case returned a verdict in her favor for $150, and in it included exemplary damages to which she is not entitled; for the evidence shows that the servants and employees of the railroad company were guilty of nothing more than negligence; and “negligence, however gross, will not justify a verdict for exemplary damages, unless the negligent party is guilty of willfulness, wantonness, or conscious indifference to consequences from which malice will be inferred.” Railway v. Hall, 53 Ark. 7; St. Louis, I. M. & So. Railway Co. v. Wilson, 70 Ark. 136; Arkansas & Louisiana Ry. Co. v. Stroude, 77 Ark. 109.
If Mrs.’ Cantwell will remit $140, her judgment will be affirmed as to $10; otherwise the judgment will be reversed, and the cause will be remanded for a new trial.
Him,, C. J., did not participate. | [
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McCulloch, J.
Appellant purchased at Erin, Tennessee, on the Louisville & Nashville Railroad, a carioad of lime to be transported to Stuttgart, Arkansas, on the railroad of appellee. Fie inquired of appellee’s agent at Stuttgart as to the freight rate, and was advised that the through rate from Erin to Stuttgart, via appellee’s road and connecting carriers, would be 22 cents per hundredweight. He also ascertained that the through rate from Erin to Brinkley, Arkansas, was 14 cents, and the local rate from Brinkley to Stuttgart fixed by the Arkansas Railroad Commission over appellee’s road was 5 cents, so he caused the carload of lime to be consigned to himself at Brinkley. It was shipped over the Louisville & Nashville Railroad (which extends from Erin to Memphis, Tennessee), and the Choctaw, Oklahoma & Gulf Railroad, which extends westward from Memphis and crosses appellee’s road at Brinkley.
Upon arrival of the car of lime at Brinkley, appellant, with out unloading or opening the car, paid the freight from Erin to that point and reshipped it over appellee’s road to himself at Stuttgart. When the car arrived at Stuttgart, appellant tendered to the agent of appellee 5 cents per hundredweight upon the consignment, which the latter refused to accept and demanded pay-, ment of 12% cents per hundredweight, which would have been its pro rata of a through rate.
The question presented to us now is whether appellant had the right, under the circumstances detailed above, to take advantage of the local freight rate from Brinkley to Stuttgart fixed by the Arkansas Railroad Commission, or whether the consignment must be deemed continuous from Erin to Stuttgart, and therefore an interstate commerce transaction. The lower court held that it was interstate commerce, and rendered judgment against appellant at the rate of 8 cents per hundredweight, which, with the rate of 14 cents paid from Erin to Brinkley, made up the through rate of 22 cents from Erin to Stuttgart.
We are not concerned about the correctness of the judgment, inasmuch as appellee does not question it, further than to inquire whether or not it imposed upon appellant a more burdensome freight rate than he was entitled to. There is no dispute about the facts, or that appellant intended to procure continuous transportation of the lime from Erin to Stuttgart, the only question being whether he had the right to take advantage of the situation presented; viz., the interstate rate from Erin to Brinkley and the Railroad Commission rate from Brinkley to Stuttgart, in order to secure a rate through to the latter place at less than the inter' state rate fixed between the two points.
In other words, as Erin, Tennessee, was the initial point of consignment, and Stuttgart, Arkansas, was intended as the final destination, did the character of the consignment as an interstate transaction continue until the latter point was reached? The question is by no means free from doubt, and there are few decisions of the courts bearing upon it, but those to which our attention has been directed sustain the ruling of the circuit judge. In Augusta S. R. Co. v. W. & T. R. Co., 74 Fed. 522, it was held (quoting from the syllabus) that “the fact that a railroad lies wholly within one State does not exempt it from obligations imposed by the interstate commerce act, if the transportation over it is part of a shipment from one .State to another, or to or from a foreign country.” In Interstate Commerce Com. v. Bellaire, Z. & C. Ry. Co., 77 Fed. 942, and United States v. Chicago, K. & S. R. Co., 81 Fed. 783, it was held that railroads operating wholly within a State, and not participants in a common arrangement for interstate shipments, were not within the terms of the interstate commerce act. There are decisions of the Interstate Commerce Commission to the same effect. Mo. & Ill. R. T. & L. Co. v. Cape Girardeau & S. W. Ry. Co., 1 Int. Com. Com. Rep. 30; New Jersey Fruit Exch. v. Central R. Co., 2 Int. Com. Com. Rep. 142.
The case of Cin., N. O. & Tex. Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 184, is relied on to some extent by both sides here, but we do not find it conclusive of the particular question. There the railroad was operated wholly within the State of Georgia, but carried freight in that instance, under a through bill of lading, and under an arrangement with other carriers for continuous shipment from other States. Mr. Justice Si-iiras, speaking for the court, said: “All we wish to be understood to hold is that when the goods shipped under a through bill of lading from a point in one State to a point in another are received in transit by a State common carrier, under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. When we speak of a through bill of lading, we are referring to the usual methods in use by connecting companies, and must not be understood to imply that a common control, management or arrangement might not be otherwise manifested.”
In the two cases, State v. Gulf, C. & S. F. Ry. Co. (Court of Civ. App. Texas), 44 S. W. 542, and Cutting v. Florida Ry. & Nav. Co., 46 Fed. 641, the same principle was involved as in the case at bar, and was decided contrary to the contention of the appellant. The only difference between these cases and the case at bar is that in the former the shipper intended to ship freight out of the State, but, in order to take advantage of a lower interstate rate from another point in the State, attempted to ship to that point, and enforce the local rate thereto, and then reship to the intended final destination. The courts, in both the cases cited, held that it was an interstate transaction from the initial point of shipment, and that the State commission rates could not be enforced. The Texas court, referring to the case of Houston Direct Nav. Co. v. Ins. Co. of North America, 89 Tex, 1, 32 S. W. 889, said: “We regard that decision as directly in point, and therefore hold that the shipment Long & Company desired to make over appellee’s road would have been interstate commerce, and consequently not subject to regulation by the State or its railroad commission.” _ Those two cases are decisive of the question presented in this case, and are supported by sound reason.
A section of the Federal Interstate Commerce act is as follows :
“That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place.of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage, or to evade any of the provisions of this act.” 24 Stat. L. 382.
This section clearly prohibits the carrier from doing, either directly or indirectly, what the shipper has attempted to do in this case, and we see no reason why it should not be a protection to the carrier as well as a limitation upon its acts. As we understand them, the Federal statutes providing for the regulation of interstate commerce, as well as the statutes of this State providing for the regulation of intrastate railroad traffic rates, are designed for the protection of shippers, each covering a separate field of operation, the latter yielding to the former where there is possible conflict. The rate fixed under State legislation can not be used to affect or frustrate the rate fixed under the superior power. To permit that would be a regulation of interstate com merce by State laws, a power conferred solely by the Constitution upon Congress. Louisville & N. R. Co. v. Eubank, 184 U. S. 47.
The decisions of the Interstate Commerce Commission hereinbefore cited are not in conflict with the views here stated. In those cases the question presented was one of jurisdiction of the commission to regulate an interstate rate. The question we are dealing with here is whether the State commission rate can be demanded and enforced in favor of the.shipper on a consignment which was in fact intended to be a continuous interstate shipment but which has been interrupted inside the State for the sole purpose of evading the interstate rate. We say that it can not be done. The consignment is an interstate transaction, and continues to be such until the final destination is reached.
Affirmed.
Riddick, J., not participating. | [
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Battle, J.
L. E. O’Neal brought this action against V. G. Richardson and J. M. Jackson, partners doing business as Richardson & Jackson, to recover.the possession of certain twenty-three bales of cotton. Richardson and Jackson answered, and denied that the cotton belonged to O’Neal, and alleged that the cotton was their property, and that they had sold the same to Resser-Goldman Cotton Company and the Planters Compress Company. These companies, purchasers, intervened and claimed to be the owners, and entitled to the possession of the cotton.
Richardson & Jackson were operating a round-bale cotton gin, and in order to operate the same it was necessary to buy seed cotton to furnish the gin. The}' were without sufficient means to continue the operation of the gin, and applied to O’Neal for assistance; and finally entered into an agreement with him, under and in pursuance of which O’Neal claims that all the cotton ginned by Richardson and Jackson was purchased by and belonged to him, and that when it was ready for shipment he sold it to them, and that under this agreement and arrangement the cotton in controversy was purchased by him, but never was sold to them, and still belongs to him.
Richardson & Jackson say that they had $350, and that,' under the agreement with O’Neal, he signed a note for $350, as surety, and they borrowed on it $350, and this and the other $350, making $700, were placed in his hands for the purpose of paying for the cotton to be purchased by them; that he acted as their cashier, and in pursuance of said agreement, and for his protection against any losses on account of being their surety, paid with their money for the cotton purchased for the gin, and received the proceeds of the sale of the cotton sold by them, and with such proceeds paid for other seed cotton; and in this manner the gin was kept in operation. He ivas to receive compensation for his services. They further say that the cotton in controversy was purchased by them and sold to interveners, and that O’Neal “had nothing to do with it.”
Each party adduced evidence in the trial in the action which tended to support his or their contention. Evidence was also adduced which tended to prove that the interveners were purchasers of the cotton in controversy for a valuable consideration without notice' of any lien thereon.
Over the objections of the plaintiff the court instructed the jury as follows:
“3. If you find from a preponderance of the evidence herein [that], in order to secure the means to run their gin, the defendants, Richardson & Jackson, induced the plaintiff to go upon their notes to the bank for money and to make advances to them from ‘ time to time, [that] they agreed [that] the plaintiff should.jhold all funds received by defendants, and [that] all cotton shipped or sold by them was delivered to plaintiff by the delivery of the bills of lading therefor, and [that] the plaintiff was to be repaid his advances and for the money borrowed on his name, and he was to receive a compensation therefor, such an arrangement would not confer the title of the cotton upon the plaintiff.
“4. If you find, from a preponderance of the evidence herein, [that] the defendant requested O’Neal to become their surety to the bank, and the defendants further gave him certain sums of money, and [that] it was further agreed [that] he should hold the money and disburse the same for seed cotton for them, and hold the bills of lading therefor and collect the proceeds of sale and repay his advances, and was later on to receive compensation for services rendered, such an arrangement would not be sufficient to give such a title to the plaintiff as would entitle him to recover in this suit, and you should find for the interveners.
“5. If you find from the evidence that the plaintiff was not the absolute owner of the cotton in controversy, but was to hold the same or proceeds thereof until he was made safe or repaid for advances made by him, such would not be sufficient, but the cotton must have been actually delivered to him; and if you find the cotton in controversy was bought and ginned in the ordinary course of business, and the same was never delivered to O’Neal, he can not sustain his action against the interveners, and you will find for the interveners.
“6. If you further find from the evidence that O’Neal became surety for Richardson & Jackson to the Bank of Newport for $350, and that he was to have a lien upon the cotton that was ginned by Richardson & Jackson,- in case the said note became due and O’Neal had it to pay, this would not prevent a recovery of the cotton in controversy by the interveners and the Lesser Cotton Company, unless you further find that said Lesser Cotton Company bought said cotton with notice of said lien.”
After the case was submitted to the jury, and they had been t>ut sometime, and had returned into court, being unable to agree, the court stated to them: “Of course, it is necessary for all of you, or some of you, to make concessions. I hope you will go out now with a view to getting a verdict.” To this statement of the court the plaintiff at the time objected and excepted. They retired to their room, and after they had been out sometime they again returned into court, being unable to agree, and the court instructed them orally as follows: “Gentlemen, these instructions mean about this: If there was an agreement between Richardson & Jackson on one side and O’Neal on the other that O’Neal should buy cotton from the wagon, and own it for himself, and then to turn it over to them to gin, and then they would buy it from him, then the title was not to pass to Richardson & Jackson until after it was ginned and baled, then O’Neal would be the, owner, and Richardson & Jackson would have no right under any circumstances, in such an event, to sell the cotton, either to innocent holders or any one else. On the other hand, it means about this: That if O’Neal was buying this cotton for Richardson & Jackson, and that he just had a lien on the cotton, and on the fund for what he had advanced and his security to the bank, if he was a security, then that would be Richardson & Jackson’s cotton, and they have violated their agreement; the title would pass to Lesser Cotton Company, and be a better title than O’Neal’s lien, unless they had notice of that kind of an agreement. That is all there is in it. The question is whether or not O’Neal absolutely owned it, or whether he had a lien, or such a lien as the Lesser Cotton Company had no notice of. I also instruct you that the fact that there had been no settlement as to the wages of O’Neal or a settlement, on the other hand, as to what he was to pay for ginning, that would not determine the issue in this case. It is only a question to be looked at. The mere fact that they had not settled the pay for ginning, if he was the owner, or the fact that they have not settled as to what he was worth as security — that doesn’t necessarily settle it. In fact, there has been no settlement.”
To the oral instructions the plaintiff objected and excepted. Thereupon the jury retired, and after being out sometime returned a verdict in favor of the interveners. Plaintiff appealed.
In examining instructions for the purpose of ascertaining whether they be correct, they should be considered in connection with other instructions upon the same subject. The instructions numbered 3, 4, 5 and 6, to which appellant objected, were explained by the oral instruction. As explained, they contain no reversible error. See Hauselt v. Harrison, 105 U. S. 401, 405.
The statement of the court'to the jury as to the necessity of making concessions was improper, but it does not seem that it was prejudicial. After it was made they retired and remained out some time, and then returned into court and reported that they were unable to agree, and did not agree until the oral instruction^ was given. Under'the statement and instructions then given to them the jury were unable to agree. The statement yielded no results.
Appellant insists that the court erred in orally instructing the jury. He objected to it as he did to written instructions, but there was no request or demand that it be reduced to writing. It is only at the request of either party that a court is required to reduce instructions to writing. Constitution, art. 7, § 23.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by the defendant, Cottonwood Lumber Company, from a judgment rendered against it in favor of W. R. Hardin for the recovery of a tract of land in Lee County. The defense of the lumber company against the action brought by Hardin to recover this land was based on the act of 1899 in reference to tax payments on wild and unoccupied land, but the case was decided by the circuit judge before the recent decision of this court in Toivson v. Denson, 74 Ark. 303, in which the meaning and effect of that statute was declared arid explained. By reference to the statement of the facts in this case, it will be seen that the learned circuit judge held the same opinion in reference to the meaning of the act as was held by the judges who dissented in Towson v. Denson. I concurred in the dissenting opinion delivered by Chief Justice Hide in that case, and, but for the decision of the court in that case, I should concur in the ruling of the circuit court in this case. But the judgment of this court in Towson v. Denson was rendered after argument and a careful consideration of the question presented. The question decided in that case was not one of principle, but related only to the proper interpretation of an act of the Legislature. As the meaning of the act was not clear, and as the decision was made after a full consideration of .the arguments of learned counsel, I feel bound thereby, for, the decision became a rule of property, which should not now be overturned unless the statute, as interpreted by the court, is unconstitutional.
The only question, then, in this case is whether the statute of 1899 in reference to the effect of payment of taxes on wild and unoccupied land is unconstitutional and void. After consideration of the question", we do not think that this contention can be sustained. Taking the act to mean what the court said it meant in Towson v. Denson, still we think the cases cited by counsel for appellant show that it is a valid law. The act declares that unimproved and uninclosed lands shall be deemed and held to be in the possession of the person who pays taxes thereon, and it contains the provision that “no person shall be entitled to invoke the benefit of the act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” Kirby’s Digest, § 5057. Were it not for the clause that requires that at least three of the tax payments must have been made after the passage of the act, it would, under the construction given it by the court in Towson v. Denson, 74 Ark. supra, have been clearly unconstitutional, so far as it was retrospective in character; for, if valid, it would then have divested the title of land from many of those who had neglected to pay taxes thereon and vested it in the persons who had paid these taxes continuously for seven years or over under color of title.
But when we consider this provision of the act which requires that at least three of the tax payments must have been made subsequent to the passage of this act, we can not say that the act arbitrarily attempts to divest the title of land from owners who had not paid taxes thereon, and vest it in those who had paid taxes thereon continuously for over seven years, for the provision referred to gave owners of land who had not paid taxes at least two years in which to pay taxes and obviate the effect of the statute. This provision of the act brings it within the scope and reason of those decisions that hold that limitation laws and laws regulating the registration of deeds are not unconstitutional when a reasonable time is given within which the effect of such a statute as it applies to rights of action already existing or to existing conveyances may be avoided and rendered harmless in respect to vested rights. Munn v. Illinois, 94 U. S. 134; Turner v. New York, 168 U. S. 90; Saranac Land & Timber Co. v. Comptroller, 177 U. S. 318.
As in our opinion the act of March 18, 1899, was a valid law, it follows, from the decision of the court in Towson v. Denson, supra, under the undisputed facts in the case which show a continuous payment of taxes by defendant and.those under whom he holds for over thirty years under color of title and claim of ownership to the land adverse to the claim of plaintiff, that the judgment should be for the defendant.
Reversed and remanded, with an order that judgment be rendered accordingly.
McCulloch, J., did not participate. | [
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Riddick, J.,
(after stating the facts.) There are in this case two appeals, one by the administrator ad litem of the estate of Joseph Meehan, the other by Mrs. Malinda M. Plair. The appeal of the administrator ad litem brings before us for review the trial and judgment against the estate of Meehan in favor of plaintiff for $.1,840. The testimony tends to show that Meehan was indebted to the plaintiffs for mules, horses and other property sold to him by them for a considerable sum. The complaint alleges this sum to be $3,121.63 and that no part of this debt had been paid.
The plaintiffs introduced at least some competent evidence tending to prove his debt, and this evidence was not contradicted. We see no reason for reversing this judgment in favor of plaintiffs, even if it be conceded that the court admitted incompetent evidence in support thereof, for strike all of that out, and the undisputed evidence remaining not only'supports this judgment, but shows that plaintiffs were entitled to a greater sum than that for which they recovered judgment. They did not appeal, and the administrator ad litem of Meehan has no right to complain that the judgment against him is less than the proof shows Meehan owed. The judgment in favor of plaintiffs against the estate of Meehan for $1,840 will therefore be affirmed.
The appeal of both of these defendants presents a number of questions in reference to the rulings of the trial court on admission of evidence tending to show that plaintiffs had reserved title to eighteen mules and to other property attached by them. It will not be necessary to discuss these rulings on the admission and rejection of evidence bearing on this claim of reservation of title for the reason that we are of the opinion that the question of reservation of title can not be considered in this case, for this is not an action to recover the property, but to recover the purchase price thereof. When this debt became due and was unpaid, the vendors, T. M. Dodson & Son, if they had reserved title until the price was paid, had their election to take either of two courses. They could elect to retake the property, and thus in effect cancel the debt, or they could bring their action to recover the debt, and thus affirm the sale and waive the reservation of title. They chose the latter course, brought their action for the debt, and attached the property as belonging to defendant: By doing so they waived the right to claim the property as their own, and all the evidence admitted to show a reservation of title was improperly admitted, and the instructions given on that point were erroneous and prejudicial, because under the pleadings that question was not before the court for decision. Jones v. Daniels, 67 Ark. 206; Baker v. Brown Shoe Co., ante, p. 501.
If the action to recover the debt had been brought in ignorance of the fact that the defendant had mortgaged all his property to the intervener, Mrs. Plair, then it is possible that if plaintiffs, on discovery of that -fact, had promptly dismissed their action for the debt, and elected to retake the property, the courts might have permitted them to do so. Jones v. Daniels, 67 Ark. 206. But nothing of that kind was done. The plaintiffs are still claiming their debt, and now have a judgment for the same, and in our opinion their reservation of title has been completely waived, and is no longer a question in the case. Plaintiffs have now only a claim for their debt. The defendant is dead; and as the attachment levied by plaintiff has been dissolved, and plaintiffs have taken no appeal, plaintiffs have no lien on the property or proceeds thereof. They have only a judgment against the estate of the defendant, upon which no execution can be issued against the property of the estate, and the order of the court directing that a certain proportion of the money arising from the sale of the attached property be turned over to plaintiffs was, under the view we take of the facts, erroneous. This money belongs to the estate of Meehan unless the mortgage to Mrs. Plair is valid; and if that be so, then so much of it as arose from the proceeds of the sale of mortgaged property is subject to the payment of the mortgage debt. But, while the jury sustained this mortgage, they did not determine the amount of the mortgage debt. As the attachment brought by the plaintiffs was dissolved, and as their reservation of title has been waived, the question now as to who is entitled to the money arising from the sale of the attached property is one between the intervener, Mrs. Plair, and the estate of Meehan.
After consideration of the matter, we are of the opinion that the judgment in favor of plaintiffs for $1,840 should be affirmed; that in other respects the judgment should be reversed, and the cause remanded for further proceedings to determine the amount due on the mortgage of Mrs. Plair, that, upon -such amount being ascertained, the money in the hands of the court be applied to the payment of the same, and that the balance' of the money, if any, be turned over to the administrator or legal representatives of Joseph Meehan, deceased. It is so ordered. | [
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McCurroch, J.
The plaintiff, David M. Rinaldo, brought this suit against the defendants, B. Gottlieb and the Pacific Express ^ompany, to recover $372, the value of two diamond rings. It is alleged in the complaint that the plaintiff is a merchant doing business in the city of Hot Springs, dealing in watches, diamonds, jewelry, etc., that defendant Gottlieb is a merchant engaged in like business in the city of Pine Bluff, and defendant Pacific Express Company is a common carrier; that the plaintiff delivered said rings to defendant Gottlieb “with the agreement and understanding that, Hf she (defendant) was pleased with same, she should keep them and account to the plaintiff at the above value, and, if not pleased, would, within a reasonable time, return them to plaintiff at said city of Plot Springs.” It is further alleged that the rings were never returned, and judgment is prayed in the sum.of their aggregate value.
Defendant Pacific Express Company paid to plaintiff the sum of $300, and the action, as to that defendant, was dismissed.
The other defendant, Gottlieb, filed her separate answer as follows:
“It is true, as alleged in the complaint, that on or about the 20th day of December, 1902, the plaintiff delivered to her, through the Pacific Express Company, the two diamond rings of the billed value as charged in the complaint, under the agreement that, if the same could be used £>y her, she would keep the rings and pay the plaintiff the price charged for the same; but, if not, she was tc return the same to plaintiff. She charges that she is in the same business at Pine Bluff as the plaintiff is engaged in at Plot Springs, and, having customers who desired to purchase from her diamond rings of the kind charged in the complaint, and, she knowing that the said plaintiff had for sale diamond rings, she ordered the same from the plaintiff under this agreement: that if she was pleased with the same she would keep them and account with the plaintiff at the value fixed in the complaint, and if not pleased would within a reasonable time return them to the plaintiff at the city of Hot Springs, Arkansas; and the same'were received by her at or about the time stated in the complaint, through the Pacific Express Company, at a valuation of $300. That, as soon as she could find her customers, she exhibited to them the rings, and, the diamonds being of off color, her customers refused to make the purchase, and on the 26th day of December, and within a reasonable time, she safety and sécurely sealed both the rings in a box, property addressed to the plaintiff at Hot Springs, Arkansas, and on that day deposited said package containing said rings with the Pacific Express Company at Pine Bluff, consigned and to be delivered to the plaintiff at Plot Springs, Arkansas, fixing the same valuation upon said package as was fixed by the plaintiff when he sent said rings to her, towit: at the sum of $300. That the said Pacific Express Company, through which she sent the said rings consigned to the plaintiff, is a common carrier of goods and merchandise between Pine Bluff and Hot Springs, Arkansas, and the most reliable carrier between said cities, and responsible for any loss, and said company afforded the speediest and most accurate mode of transportation of said rings from herself to the plaintiff. That she has done all in her power to return said rings to the plaintiff, but she is informed and so charges that the said jpackage has been lost by the said Express Company, without fault or negligence on her part.”
The court sustained a demurrer to the answer, and, the defendant declining to plead further, judgment against her in the sum of $72 was rendered in favor of the plaintiff.
It is argued in support of the decision of the court below that the contract set forth in the pleadings amounted, in effect, to what is known in trade language as an agreement for “sale or return” of the articles named. Under such a contract the title passes to the purchaser, subject to the right to return the articles within the specified time, and if, before the expiration of such time, the property is destroyed, either by inevitable accident or by the negligent act or omission of the purchaser, he is responsible for the price. Such, however, is not the effect of the contract set forth in the pleadings. The complaint alleges that the rings were delivered to the defendant “with the agreement and understanding that if she was pleased with the same she should keep them and account to the plaintiff at the above value, and if not pleased would within a reasonable time return them to plaintiff at said city of Hot Springs.” The answer states the contract in the same language, and the same does not constitute a contract of “sale or return.” Under the contract stated, the title remained in the seller, and any loss or damage sustained from any cause except- negligence of the purchaser fell upon the seller. Tiedeman on Sales, § 213; Sturm v. Boker, 150 U. S. 312; Hunt v. Wyman, 100 Mass. 198. The distinction between the two classes of contracts is concisely stated by the Supreme Court of Massachusetts in Hunt v. Wyman, supra, as follows: “An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined; -in the other the property passes at once, subject to the right to rescind and return.”
But’in whatever light the contract in this case may be viewed, whether as a contract for “sale or return,” or as an agreement to purchase if satisfied with the article, we think that the defendant, in stating in her answer that she delivered the rings to the carrier for transportation, showed performance of her contract to return them to the plaintiff. The delivery to a responsible carrier properly consigned to the plaintiff was a delivery to the plaintiff. State v. Carl, 43 Ark. 353; Burton v. Baird, 44 Ark. 556; Berger v. State, 50 Ark. 20; Herron v. State, 51 Ark. 133; Benjamin on Sales, § 693; 1 Mechem on Sales, § § 736, 739; Magruder v. Gage, 33 Md. 344; Wheelhouse v. Parr. 141 Mass. 593.
We see no reason why the same rule applicable to delivery to carriers of goods sold should not apply to an agreement to return articles sent for inspection. Where the mode of transportation in return is agreed upon, or where no mode is agreed upon, and the party under obligation to return adopts a mode of transportation justified by the usages of trade, the delivery is complete when the goods are placed in the hands of the carrier properly consigned. Here the defendant delivered the rings to a responsible public carrier, the one employed in the first instance by plaintiff to transport the rings to defendant.
The learned circuit judge erred in holding that the answer óf the defendant failed to state a defense.
The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer to the answer. | [
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John B. Robbins, Judge.
Appellant Robin Dansby appeals the order entered by the Miller County Circuit Court judge that changed joint custody between Robin and appellee Lathaire Dansby over their younger daughter Krysten to Lathaire’s full custody. The parties married in 1984 and had Lynzi Dansby , bom in 1985, and Krysten Dansby, bom in 1997. They divorced at the end of July 1999, though the order was not entered until September 1999, but continued to live in the same household for another eight months, finally separating in the spring of 2000. Lathaire was the father of an older son in his twenties, two daughters bom of his marriage to Robin, and a son conceived during the parties’ marriage. The decree contemplated that the parties would have joint custody of Lynzi and Krysten. The decree specified that as concerned Krysten, the parties would alternate one-week periods of custody, from Friday evening to Friday evening. On three occasions leading up to the motion to change custody, Robin filed motions for contempt for Lathaire’s failure to pay child support. Lathaire paid in full subsequent to each of these filings.
In response to the last of the three contempt motions filed by Robin, on November 27, 2002, Lathaire moved for contempt for Robin’s failure to allow him his decreed joint-custody and moved to change custody based upon a change in circumstances. The cause was heard in January 2003, and the judge entered an order denying the contempt motion but granting the change of custody and allowing Robin visitation. This appeal resulted.
Appellant Robin challenges the trial judge’s findings, asserting that they were clearly erroneous in two respects: (1) in concluding that there had been a material and substantial change in circumstances, and (2) in limiting Robin’s visitation to alternate weekends, Wednesdays, alternate holidays, and one month in the summer. We affirm.
The standard of appellate review governing custody modifications is well settled. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). In cases involving child custody and related matters, we review the case de novo, but we will not reverse a trial judge’s findings in this regard unless they are clearly erroneous. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999). Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
The evidence at the hearing included the testimony of Lathaire, who testified that Robin basically let him have his younger daughter only when Robin was working her night shift at the hospital, although this still permitted each parent one-half of Krysten’s time. Lathaire was concerned that Robin was drinking, smoking, and having boyfriends spend the night with Krysten present. Lathaire said that some of Robin’s boyfriends had criminal histories and that Krysten was witness to violence at Robin’s house. In addition, Lathaire objected to Robin putting Krysten in a biracial situation by dating white men.
In contrast, Lathaire said that he lived in a three-bedroom house with his older son, his seventeen-year-old daughter Lynzi, and Krysten. Lathaire said he also saw his twelve-year-old son from another relationship at least once or twice a month and paid support for him. Lathaire confirmed that he had many brothers and sisters in the immediate area to help care for Krysten when he was at work as a car salesman or when he had to work at the family business, which apparently was a local bar or tavern.
Lathaire’s main concern was that even though Robin always smoked, drank, and had boyfriends, he could not monitor Robin’s behavior after they separated. Lathaire complained that her smoking was detrimental to Krysten’s asthma, and he could not prevent her being drunk in front of their daughter, or her having boyfriends stay overnight.
Lathaire explained that his older daughter Lynzi did not have a relationship with her mother Robin because Robin berated her and they did not get along. Lathaire acknowledged that Lynzi was not a perfect child. Lynzi had undergone an abortion, but was currently on birth control. Lynzi had been suspended from school once after a fight in which she was not the original aggressor, but otherwise, she was a fairly good student.
Lathaire admitted that he was arrested once while driving in a caravan from a Razorback game back home and that the children were with him, but he explained that he did not understand the police to be trying to pull his car over, he had a minor wreck, he went to the station, and he waited with his children on a bench until posting bail. Lathaire also confessed that he had fallen behind in child support from time to time, but he thought that he had the right to do so when Robin denied his court-ordered visitation. He understood differently now. Lathaire said he had yet to have a female visitor over in Krysten’s presence, and he was bothered by what he characterized as Robin’s revolving door of boyfriends. Lathaire also said that Robin had kept his daughter out at a restaurant past her bedtime on a school night, and Robin was drinking.
Lynzi testified that she was a senior in high school, that she had no relationship with her mother, and that her mother did not even give her a birthday or Christmas gift. Lynzi testified that she observed hef mother get drunk and smoke in front of Krysten, as well as have boyfriends spend the night while Krysten was present. Lynzi said that her mother said derogatory things about her father and his family. Lynzi said that her mother was currently dating a white man. Lynzi reportedly found marijuana in her mom’s house but did not tell her about it. Lynzi helped to care for her little sister when her father had to be away, and she assisted in transporting her sister back and forth between houses. Lynzi wanted her little sister to live with her at their father’s house.
Robin testified that she and Lathaire had never abided by the original decree but that they had arranged it such that they each had Krysten about half the time. In fact, they continued to live together for months until Robin moved out of the marital home. Thereafter, she said he had no problem with having 4-3 day splits during each week to accommodate her work schedule at the hospital. Robin said she had worked graveyard shift (7 p.m. - 7 a.m.) for about twelve years, and she said her mother helped with Krysten when work prevented her from being at home on those occasions when Lathaire insisted on the full-week exchanges. Robin agreed that she would go back to the seven days on, seven days off schedule if that was what Lathaire wanted. Robin agreed that Lathaire was a good father and that Krysten loved her dad and spent time with him. However, Robin believed that she had more time to spend with her daughter, and she saw no reason to depart from their practice in the past of arranging it so that Krysten would never have to be with a sitter. At the time of the hearing on this matter, Krysten was five years old.
Robin pointed out that she had to seek court intervention three times to get her child support, but Lathaire would pay prior to coming to court. As to morals, Robin reminded the court that Lathaire impregnated a woman with his now twelve-year-old son while he and Robin were still married. Robin also pointed out that she was not racist like Lathaire and that, concerning Lynzi, he was too lenient and did not discipline Lynzi, which led to the discord between Lynzi and her mother. Robin said that the specific acts that Lynzi testified about were untrue, and furthermore that Lynzi never spent any time with Robin so that Lynzi would have no way of knowing what went on in her household. Robin feared that Krysten would befall the same behavioral problems later that Lynzi had already experienced by working her father against her mother.
Robin testified that she did not have a problem with one of Lathaire’s sisters caring for Krysten because even though the aunt had apparently had a drug problem, she was good to Krysten. Robin said that she had a friend who formerly had a drug problem, but she underwent treatment and was better, similar to Lathaire’s sister. Robin denied smoking in the house when Krysten was there, and she denied ever being drunk in front of her. Robin said that she did have a male overnight visitor once, but it was only because there was a winter storm and it was unsafe to leave. Robin denied any inappropriate behavior with him while Krysten was there. Robin explained that she did have Krysten out at Red Lobster on one occasion after her bedtime; Robin admitted to having one margarita. However, Robin said that this was a one-time occurrence.
Lathaire’s older son Jason Dansby, age twenty, testified that he was in college and living with his father. Jason said he helped take care of Krysten when she was there, until their father got home from work at around 7:00 p.m. Jason said that only family members helped to care for Krysten when their father was at work.
Robin’s mother testified that she knew Robin and Lathaire had made their own custody schedule since the divorce, accommodating Robin’s work schedule. Robin’s mother acknowledged that they did go back to the ordered schedule at least once, and she had to assist in keeping Krysten while her daughter worked. However, she said that Robin and Lathaire went right back to the altered schedule and that Lathaire never complained to her about it. She testified that she occasionally talked to Lathaire on the phone about the children and that they remained cordial.
The parties submitted their respective proposed findings of fact at the end of the case and thereafter the court filed its fifty-six findings of fact about what it believed to be true in the testimony. Apparently, everything negative about Robin was believed true, and everything positive about Lathaire was believed true. The most egregious bad acts found were that Robin smoked, drank, cursed, and cohabited with boyfriends in the presence of Krysten. He found that Lathaire provided a greater moral example and provided a more secure and structured life for Krysten than Robin. He found that Robin had allowed a known drug user in Krysten’s presence and that Robin and a boyfriend engaged in domestic violence in front of the children. The judge noted in his findings that Robin stated that she has no problems with Lathaire Dansby as a father and said that he is a good father. He found that they had not followed the ordered visitation due to Robin’s fault, that material changes had occurred, and that Krysten’s best interest would be to be placed in her father’s custody. Robin was granted every-other-weekend, every Wednesday, alternate holiday, and one-month summer visitation. This appeal followed.
Before we consider the points on appeal in our de novo review, we must first make clear that one of the fifty-six findings of fact was an impermissible consideration. The trial judge stated in finding number thirty-nine that appellant, “a black woman, dates only white men.” No objection was raised to the testimony on this issue at any time; nor did appellant object to this finding when it was proposed by appellee’s counsel or when the trial court included it in its findings of fact and conclusions of law filed on March 21, 2003, some twelve days before the final order was entered. We do not consider an issue on appeal, even of constitutional concern, that has not been first raised to the trial court for resolution. See Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 333 (2001); Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004). This case is similar to the recently decided Tipton v. Aaron, supra, wherein the parties were litigating the question of whether custody of a child should be changed, and testimony was elicited from both parties concerning the impact of the child remaining in an interracial household with his mother. No objection was raised at any time to that line of inquiry, and we held that the issue was not preserved for our review. Likewise, in the present appeal, both parties shared their personal views about Robin’s choice to date men of another race, no objection was raised until appeal to our court, and we again hold that this issue as not preserved for appellate consideration.
In response to the dissenting judges’ assertion that the issue of race was first advanced by Robin, we disagree. Lathaire, as the moving party, testified first and made clear that he objected to his daughter being exposed to a biracial situation. Robin raised no objection. When Robin testified, she acknowledged that Lathaire did not like the fact that she dated white men, claimed that she did not teach prejudice, affirmed that Lathaire was a good father, and asked the court to leave intact the joint-custody arrangement. At no time did she or her counsel claim that it was legally wrong to advance concerns about biracial dating as a basis for changing custody.
Nevertheless, we take this opportunity to state that the United States Supreme Court made abundantly clear in Palmore v. Sidoti, 466 U.S. 429 (1984), that it violates the Equal Protection Clause of the Constitution to factor race into a custody decision. In Palmóte, the sole consideration upon which custody was changed from the mother, who married a man of another race, to the father was that the child remaining in an interracial household would be detrimental to the child. The Palmóte opinion, written by Chief Justice Burger, noted that the appeal raised important federal concerns arising from the Constitution’s commitment to eradicating discrimination based upon race and that the Court was compelled to reverse the decision to change custody made only on racial considerations.
Even though no objection was raised to the inappropriate finding number thirty-nine, we do not find on our de novo review that it is of any consequence inasmuch as it neither strengthens nor weakens either party’s position on the best interest of the minor child. Therefore, we proceed in our de novo review to examine the remaining fifty-five findings of fact to determine whether they support the conclusion that material changes occurred and that it was in Krysten’s best interest for Lathaire to be granted custody. We hold that those findings support the trial court’s decision, and we affirm.
In determining whether a change in custody is warranted, the trial judge must first decide whether there has been a material change in circumstances since the most recent custody order. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). The burden of proving such a change is on the party seeking the modification. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). While custody is always modifiable, in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues, our courts require a more rigid standard for custody modification than for initial custody determinations. Vo v. Vo, supra.
Joint custody or equally divided custody of minor children is not favored in Arkansas. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The relevant statute, Ark. Code Ann. § 9-13-101(b)(l)(A)(ii), was amended in 2003 to specifically permit the court to consider the award of joint custody. However, the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of joint custody. See Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984). When the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the children, this constitutes a material change in circumstances affecting the children’s best'interest. Word v. Remick, supra. Moreover, our courts have never condoned a parent’s promiscuous conduct or lifestyle when conducted in the presence of the child. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998).
Applying the proper standard of review to the order on appeal, we affirm. Here, the change in circumstances was that Robin’s bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin’s house by Lynzi; that Robin spoke disparagingly of Lathaire in the children’s presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten’s time, they were in disagreement now. The judge apparently was persuaded by Lathaire’s explanations for not paying child support when he was frustrated, and for his arrest in the children’s presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. See Word v. Remick, supra. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody.
In contrast to the dissenting judges, we do not see this, after credibility determinations were made, to be a “close case.” If we sat as the finders of fact on credibility, we might have also determined this to be a close case. However, de novo review requires that we examine the record as a whole, but it does not allow us to change .what testimony was believed true or untrue as found by the trial judge. With the extensive findings of fact, clearly demonstrating that the trial judge believed Lathaire to be a better moral, stable, and proper parent for Krysten than Robin, we are not left with a definite and firm conviction that a mistake was committed.
Robin’s second point on appeal asserts that if the change of custody is affirmed, the trial court committed reversible error in granting her limited visitation with Krysten. We disagree. We review cases such as this de novo and reverse only when the trial court’s findings are clearly erroneous. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). A finding is clearly erroneous when, despite the existence of evidence supporting it, we have the definite and firm conviction based on the entire evidence that a mistake was committed. Id. We are not left with such a definite and firm conviction in this case.
Robin states in her brief that she should be given “the same visitation that Mr. Dansby had for four years.” She is in error. The parties had joint custody, and the trial court’s order changed this to full custody in Lathaire. Consequently, it was incumbent upon the trial judge to set appropriate visitation for the noncustodial parent, Robin. The order changing custody set visitation as every other weekend, every Wednesday, and “the Standard Visitation schedule concerning holidays and all other general provisions of the Standard Visitation schedule which is attached as Exhibit ‘A’ in regard to all other visitation.” Standard visitation provided alternating holidays and thirty days during the summer. Robin has not demonstrated clear error where she was granted visitation in conformity with the trial judge’s typical practice concerning non-custodial parents.
Affirmed.
Stroud, C.J., Bird, and Crabtree, JJ., agree.
Pittman and Baker, JJ., dissent.
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John F. Stroud, Chief Judge.
Appellant, Miranda Walrack, and appellee, Stacy Edge, were divorced in May 2001. The parties were granted joint custody of their minor son, Cody, born April 4, 1997, with Miranda receiving primary physical custody. In March 2002, Miranda, who had remarried, filed a motion requesting permission for her to relocate from Hazen, Arkansas, to Marion, Illinois, with Cody, a distance of approximately 300 miles. Stacy responded with a petition to change custody of Cody solely to him. A hearing was held on Miranda’s motion on May 27,2003, and by order filed June 12, 2003, the trial judge denied Miranda’s motion to relocate with Cody, finding that Miranda had not satisfactorily demonstrated “a real advantage for her or the minor child to relocate ..., that the relocation would be harmful or injurious to the child and it would be in the best interest of the child” to remain in Arkansas. After the trial judge announced his decision denying Miranda’s motion, Stacy withdrew his petition for change of custody, but the order stated that if Miranda were successful in appealing the trial court’s decision, the trial court would then conduct proceedings “to determine whether the request to relocate and the granting of such request constitutes a material change of circumstances sufficient to reconsider the issue of modifying primary custody and placing same with [Stacy] based on the best interests of the parties’ minor child.”
Onjune 5, 2003, the Arkansas Supreme Court handed down its decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), which specifically addressed the issue of a custodial parent’s right to relocate to another state with the children, holding that there is a presumption in favor of relocation for custodial parents and that it is the noncustodial parent’s burden to rebut that presumption. Onjune 23, 2003, Miranda petitioned the trial court to reconsider its decision in light of the supreme court’s Hollandsworth decision; on July 15, 2003, the trial court denied her request without a hearing, finding that Stacy had overcome the presumption in favor of relocation, specifically because Stacy had “significant visitation beyond standard visitation [and that] evidences that [Stacy] had a stronger bond than most; that all of [Cody’s] family resides in Hazen, Arkansas, including a grandfather who is almost like a father to [Cody]; and that [Cody] has no other family in Illinois.” The trial judge also stated that he had given “considerable weight to the short duration of [Miranda’s] current marriage” and determined that there must be a “longer history of relationship” before allowing Cody to relocate from an area in which other family members lived to an area where no family members other than his mother resided.
Miranda now appeals to this court, arguing that the trial court erred in finding that Stacy overcame the presumption in favor of allowing a custodial parent to relocate with the child. We hold that the trial court was clearly erroneous in denying Miranda’s request to relocate to Illinois; therefore, we reverse and remand.
In Hollandsworth v. Knyzewski, supra, our supreme court set forth the standard of review to be used in custodial-parent-relocation cases:
This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. These common-law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which became effective July 1, 2001.
353 Ark. at 475, 109 S.W.3d at 656-57 (internal citations omitted).
At the May 27, 2003 hearing, Miranda testified that she had been married for over one year to Michael Walrack and that they had a twenty-one-month-old child, Alex, who was Cody’s half-brother. She stated that she lived in Hazen, Arkansas, with her parents and worked at Wal-Mart in Bryant, while her husband resided in Marion, Illinois, the town in which he grew up, and worked in Carbondale, Illinois. She said that her husband’s mother and stepfather lived in Marion as well, but that Cody did not have any family in that area. She testified that because of this arrangement, she normally only got to see her husband on the weekends, and that on average, she only got to spend about ten hours per week with him because of his work schedule.
Miranda said that she had recently been promoted to Management Trainee with Wal-Mart, which required her to work forty-eight hours per week and had doubled her salary to $30,000. One of the stipulations of being in the management program was that she would have to relocate, and she had been told by her supervisor that it would be to southern Illinois, northwestern Kentucky, or southeast Missouri, which were all in the vicinity of Marion, Illinois. She stated that once she completed her training, her salary would be $32,500.
Miranda described the house that she and her husband owned in Marion, which had three bedrooms, two bathrooms, and a fenced-in yard. She said that in her parents’ home in Hazen, neither child had his own room, and that she shared a bedroom with her younger son while Cody slept with her father.
Miranda stated that the school in which Cody would be enrolled was four blocks from their home, and she believed that it would be a better school than the one in Hazen. She also said that she had been admitted to John A. Logan College for the fall semester, and she intended to take classes there and then transfer her hours to Southern Illinois University. However, she said that she could not take classes at Logan College from Arkansas because she had to be an Illinois resident. She said that tuition at the colleges in Arkansas was more expensive than it was in Illinois, and if she went to college in Arkansas, she would have to pay for 100% of it, whereas if she went to college in Illinois, she could go to school on grants due to her husband’s status as a Persian Gulf veteran.
Miranda said that the only reason she was still in Hazen was because of the court-ordered restrictions, and she opined that allowing her to move with Cody to Illinois would improve life for not only Cody but her entire family. She said that allowing the move would give Cody a set schedule and would give him some sense of normalcy, which was not present in his life right now. She also noted that Cody’s half-brother adored him and that Cody needed to be in a family unit.
Miranda told the court that she wanted Stacy to be a part of Cody’s life, that she had no desire to frustrate his visitation, and that she would be willing to help with the travel expenses for visitation. The only change she wanted to make in the visitation schedule was for Stacy to have Cody six weeks at a time in the summer instead of in two-week intervals, so that Cody would not have to travel as much. Miranda assured the court that she would follow all substituted visitation orders if she were allowed to move to Illinois, and she would make sure that Stacy got to see his son. She stated that she believed that Stacy was opposing her request to move out of spite because he had wanted full custody of Cody during the original divorce proceedings, and it was her belief that he was just .trying to control her. She also said that it was her opinion that Stacy did not utilize his time with his son as well as he should; however, she said that she would never downgrade him or talk bad about him because he was Cody’s father.
Miranda said that for the last two years or so, her time with Cody had been weekend trips to Illinois and evenings after work. She said that her husband usually saw Cody one weekend per month when she took him to Illinois, and that they had also spent Christmas vacation in Illinois. She acknowledged that none of her family had been to Illinois yet and that her parents initially did not want Cody to move to Illinois, but that now they wanted him to move. She said that she had never kept Cody from being with his family, but that she did not want to leave him in Arkansas and move to Illinois to be with her husband and other son and just visit Cody, because she did not feel like she should have to choose between her children. She said that Cody and her father were “inseparable,” and that her father would find ways to visit in Illinois as often as he could. She said that other than her parents, Stacy’s mother and brother, and a few aunts and uncles lived in Prairie County; and that other than her husband’s family and her, Cody would have no other relatives in Illinois.
Michael Walrack, Miranda’s husband, testified he lived in Marion, Illinois, and that his mother, step-father, and grandparents lived about thirty-five minutes away. He said that he worked two jobs, with his primary job being at Lowe’s and a part-time job-at Auto Zone to help with the legal bills. He said that he and Miranda had talked about moving to Hazen, but that he could not find comparable employment making the amount of money he made in Illinois. Because of his and Miranda’s living arrangements, he had missed much of Alex’s first and second years, which he said he regretted. He stated that when Cody was in Illinois, he had his own room, which was decorated in a tractor theme. He said that he usually saw Cody every two weeks, but that sometimes Cody wanted to stay with his grandparents.
Clifford James, Miranda’s father, testified that Miranda and Cody had been living with him for about one year, and that Miranda was Cody’s primary care giver when she was not working. He said that Cody and his brother were “crazy” about each other, and that Cody seemed to enjoy being a big brother. Mr. James said that he and Cody were very close and that he was protective of him, but that he had no reservation about Michael Walrack being around Cody, and he thought he would be a good influence on Cody. He said that he supported Miranda’s desire to move to Illinois because it would be best for Cody. He admitted that he would not get to see Cody as much, but said that would be okay because he was looking out for Cody’s interests, not his. He noted that Cody was not doing well in the present arrangement, and that he would rather give up his relationship with Cody than see him living in his current situation.
Ruth James, Miranda’s mother, testified that Miranda usually gave the children their baths, and that she helped Cody with his homework every night. She described Miranda as a loving and caring mother. She said that she supported Miranda’s request to relocate even though she would miss Cody, because it was in Cody’s best interest to be with his mother and his little brother. She also stated that she believed that Cody would be better off in a school system other than Hazen. Mrs. James noted that she would be able to visit Cody, and that grandparents had to “back off.”
Patricia Strieker, a psychotherapist, testified that she had counseled Cody for six sessions. She said that during those sessions, Cody talked about his mother, his baby brother, Mr. Mike, and his grandparents, but that he talked very little about his father. She said that Cody would not answer questions when his father’s name was brought up, and she found that unusual.
Stacy did not testify or call any witnesses on his behalf. The trial judge, ruling from the bench, stated that his understanding of the law was that he must first determine whether the relocation of the child would be harmful or injurious to the child, and then there were other factors to be considered. He found that nothing material had changed since the divorce, that separating Cody from his grandfather, father, and all of his family members would be harmful, and he denied Miranda’s request to relocate on that basis, adding that he did not believe that it was in Cody’s best interest to move to Illinois. Miranda petitioned the trial court to reconsider its ruling in light of the supreme court’s decision in Hollandsworth; the trial court denied that request without holding a hearing, finding that Stacy had overcome the presumption in favor of relocation set forth in Hollandsworth. Miranda now brings this appeal.
On appeal, Miranda contends that Hollandsworth v. Kny-zewski, supra, is directly on point. We agree. Hollandsworth clearly and specifically holds that there is “a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating.” 353 Ark. at 476, 109 S.W.3d at 657. The court noted that conflicts inevitably arise when the noncustodial parent objects to the custodial parent’s relocation with the children. However, citing Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), the court also noted that nothing prevented a noncustodial parent from leaving the state to seek a different lifestyle after a divorce, although such actions might be disruptive to the noncustodial parent’s relationship with his or her children, and stated that the custodial parent had the same right to seek a better lifestyle for herself or himself and the children as did the noncustodial parent.
Our supreme court goes on to discuss several other states’ views toward custodial-parent relocation in the Hollandsworth decision, as well as older Arkansas case law regarding custodial-parent relocation. In Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960), the supreme court reversed the denial of a custodial mother’s request to move with her child from Fort Smith to Oklahoma. In that case, the court recognized a custodial parent’s right to ordinarily relocate to another state with the child. The Hollandsworth court, quoting Walter v. Holman, 245 Ark. 173, 178, 431 S.W.2d 468, 471 (1968), stated that it was “a matter of common knowledge that at least one parent must necessarily forfeit some individual rights to the constant companionship of minor children when a divorce decree is granted.” 353 Ark. at 485, 109 S.W.3d at 663. The court held that it had historically recognized the custodial parent’s right to relocate with his or her children, and it was adhering to that determination.
The Hollandsworth court set forth the following factors to be considered in determining the best interest of the child in the matter of a request for relocation: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; (5) the preference of the child, including the age, maturity, and the reasons given by the child a.s to his or her preference. See also Blivin v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003); Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003).
Upon applying the law set forth in Hollandsworth, we hold that the trial judge clearly erred in denying Miranda’s petition to relocate with Cody to Illinois. Miranda’s reasons for wanting to relocate to Illinois were valid; all of the testimony regarding schools indicated that the Illinois school was better than the Hazen school; and Miranda testified that she would be willing to work to ensure that Stacy received his visitation with Cody, even offering to help pay for the travel expenses. Although Cody’s extended family lived in Arkansas, his maternal grandparents, the extended family to whom he was closest, testified that they believed that it was in Cody’s best interest to allow Miranda to move to Illinois and that they could visit him. Cody did not testify, so the fifth factor is not applicable to this case.
We further hold that the trial judge’s ruling that Stacy had rebutted the presumption in favor of allowing Miranda to relocate was also clearly erroneous. Stacy presented no evidence on his behalf in the hearing, and there was absolutely no evidence before the trial court to rebut the presumption in favor of relocation. The trial judge noted that he gave considerable weight to the short duration of Miranda’s current marriage and determined that a “longer history of relationship [was] needed in order to determine its likelihood of success or failure before authorizing relocation of the minor child from an area in which other family members reside to an area in which no family members other than his mother reside.” However, this is not a proper factor for consideration under Hollandsworth, and in fact, the marriage in Hollandsworth was of much shorter duration that the one in the present case. These cases will almost always arise soon after a remarriage due to the strong and logical desire of a newlywed to reside with his or her new spouse.
We also note that the order denying Miranda’s request to relocate provided that Stacy withdrew his petition for change of custody on the basis that if Miranda was successful on appeal, she would not be allowed to relocate outside of Hazen until the trial court considered whether the granting of her request to relocate constituted a material change of circumstances sufficient to reconsider the issue of the primary physical custody of Cody. However, Hollandsworth also answers the question of whether the grant of Miranda’s request to relocate constitutes a material change of circumstances sufficient to allow the trial court to reconsider a change of Cody’s primary custody to Stacy by specifically holding that the “relocation of a primary custodian and his or her children alone is not a material change in circumstance.” 353 Ark. at 476, 109 S.W.3d at 657. Therefore, we reverse and remand for entry of an order allowing Miranda to immediately move to Illinois with Cody.
Reversed and remanded.
Neal and Crabtree, JJ., agree. | [
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Wendell L. Griffen, Judge.
This is a one-brief appeal from an order of the Bradley County Circuit Court that reversed and set aside an order of the Office of Appeals and Hearings (OAH) of the Arkansas Department of Human Services (ADHS) requiring appellee Floyd Campbell to be listed on the Child Maltreatment Central Registry. ADHS appeals, raising procedural questions concerning judicial review in the circuit court under the Administrative Procedures Act (APA). We hold that OAH lacked authority to reopen its earlier determination that appellee should not be listed in the registry and affirm the circuit court’s reversal of the OAH order placing appellee’s name on the registry.
The facts are largely undisputed. On December 19, 1999, a report was made to the child-abuse hotline regarding alleged physical abuse toward a child by appellee. ADHS made a finding of child maltreatment against appellee and placed appellee’s name on the child maltreatment central registry. Appellee requested a hearing before OAH to determine whether his name should remain on the central registry. At the hearing on June 13, 2000, ADHS sought a continuance of the hearing because a criminal investigation against appellee was pending but had not been concluded. The request for a continuance was denied, and ADHS advised the hearing officer that it would not proceed or present evidence but that, if appellee was charged and convicted, it would ask for reconsideration and for appellee’s name to be listed in the registry. The hearing officer proceeded to hear evidence presented by appellee and, on July 14, 2000, issued a final order finding that ADHS failed to prove by a preponderance of the evidence that appellee physically abused the minor child. The hearing officer ordered ADHS to remove appellee’s name from the registry.
Appellee was eventually charged and convicted of first-degree domestic battery based on the same conduct. On November 16, 2001, ADHS filed a motion pursuant to Arkansas Rule of Civil Procedure 60 seeking to have OAH reconsider the prior order in light of appellee’s having been convicted of domestic battery. Appellee was served with the motion by certificate of service. On January 22, 2002, after appellee failed to respond, the hearing officer entered a substituted order granting the motion for reconsideration and finding that ADHS had met its burden of proving that appellee had abused the minor child.
On February 15, 2003, appellee filed a petition for review in circuit court. The petition alleged that the ADHS decision was based on unlawful procedure, was in violation of statutory provisions, was contrary to law, and was not supported by lawful evidence. The petition contained a certificate of service indicating that a copy was served on the ADHS attorney and on the hearing officer. On March 4, 2002, ADHS responded with a motion to dismiss for insufficiency of process, alleging that the APA, in Ark. Code Ann. § 25-15-212 (2002), requires that service of the petition comply with the Arkansas Rules of Civil Procedure. ADHS specifically argued that Rule 4(d)(7) requires service to be on the director of a state agency, and that appellee failed to perfect service because he served the hearing officer and ADHS attorney instead of the ADHS director. Appellee responded to the motion by asserting that Ark. R. Civ. P. 5 applied, authorizing service on ADHS’s attorney. The trial court entered an order on October 10, 2002, indicating that, unless appellee properly served ADHS within thirty days, ADHS’s motion to dismiss would be granted. An affidavit of proof of service was filed that same day by appellee’s attorney, stating that service on ADHS’s director was made on October 2, 2002.
At the hearing before the circuit court, no additional evidence was submitted. The trial court entered an order on June 10, 2003, finding that ADHS’s petition for modification of the final order entered in July 2000 was barred by res judicata and noting the eighteen-month lapse between the entry of the July 2000 order and the substituted order entered in January 2002. This appeal followed.
ADHS raises three points on appeal: because the circuit court lacked jurisdiction to consider appellee’s petition for judicial review, the findings of the administrative law judge (ALJ) should be affirmed; because appellee failed to argue issues of res judicata before the ALJ, those issues should not have been considered by the circuit court; and because appellee was convicted by a jury of felony domestic battery against a child, his name should be included on the child maltreatment registry. We do not address ADHS’s arguments because we find another issue dispositive of this appeal.
On appeal from the circuit court, our review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Vallaroutto v. Alcoholic Bev. Control Bd., 81 Ark. App. 318, 101 S.W.3d 836 (2003). We review the case only to ascertain whether there is substantial evidence to support the agency’s decision or whether the decision runs afoul of one of the other criteria set out in Ark. Code Ann. § 25-15-212(h) (2002). Where the agency’s failure to follow its own procedural rules is urged on appeal, the applicable question on review is “whether the [agency’s] decision is based upon unlawful procedure.” Stueart v. Arkansas State Police Comm’n, 329 Ark. 46, 50-51, 945 S.W.2d 377, 379 (1997). “It has become axiomatic that an agency is bound by its own regulations.” Id. Thus, the decision of an administrative agency may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings from which appeal is taken were made upon unlawful procedure. City of Benton v. Arkansas Soil & Water Conservation Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001); Stueart, supra.
Here, ADHS filed a motion for reconsideration under Ark. R. Civ. P. 60. The Arkansas Supreme Court has held that the rules of civil procedure do not apply to administrative proceedings. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992); Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984). As such, we reverse the OAH decision because there was no' authority for OAH to reconsider the case via a Rule 60 motion for reconsideration. Further, Rule 60 itself, assuming arguendo that it does apply, provides for a ninety-day limitation on setting aside judgments unless there is newly discovered evidence that could not be discovered in time to file a motion for a new trial, misprisions of the clerk, or fraud or misrepresentations, among others. See Ark. R. Civ. P. 60(c). ADHS does not allege fraud, misrepresentations, or misprisions, so the only possible basis for reconsideration would have been newly discovered evidence. The only “newly discovered” evidence relied upon by ADHS was the fact that appellee was convicted in October 2001. However, that conviction was based upon the same conduct originally presented to OAH during the July 2000 hearing. Therefore, we do not consider this to be newly discovered evidence. This was beyond the ten-day period for filing a motion for a new trial. Finally, Rule 60(c) also has a one-year time limit running from the earlier of the order being filed or the discovery of the new evidence. ADHS filed its motion within one month of appellee’s conviction. However, the motion was filed more than one year from the July 2000 order sought to be modified. Therefore, ADHS’s motion was untimely, and OAH abused its discretion by acting without authority in reconsidering its earlier order removing appellee from the registry.
In view of the foregoing factors, we hold that the January 22, 2002 substituted order by the hearing officer, which granted ADHS’s motion for reconsideration and directed that appellee be listed on the registry was void. Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000); see also West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993). Thus, the decision of the agency is reversed.
Affirmed.
Gladwin and Bird, JJ., agree.
The hearing officer later entered an amended and substituted order on July 25,2000.
Appellee was fined $10,000. This court affirmed the conviction in Campbell v. State, No. CACR02-574 (Ark. App. Mar. 12, 2003). | [
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Larry D. Vaught, Judge.
The Workers’ Compensation Commission affirmed and adopted a decision from an Administrative Law Judge (ALJ) that denied benefits to the appellant, Ralph Whitten. The Commission found that appellant did not sustain a compensable injury, but rather that he suffered from a non-compensable idiopathic fall. On appeal, appellant claims that the Commission’s decision was not supported by substantial evidence. We affirm.
Appellant, age fifty-six, contends that he sustained a com-pensable injury on February 5, 2002, after he fell at his place of employment, Edward Trucking/Corporate Solutions. The appel-lee, Edward Trucking/Corporate Solutions, employed appellant as a dump-truck driver. On the day the injury occurred, appellant was on the premises with his truck, delivering fuel tickets to validate his work for the previous week in order to be paid. He was scheduled to leave immediately thereafter to deliver another load of sand to a customer in Muskogee, Oklahoma. As appellant was walking up the stairs to enter appellee’s office, he reached for the door of the office, felt pain in his back, and fell to the ground. He neither tripped or stumbled, nor was he carrying anything heavy at the time of the fall.
Appellant filed his claim, which was denied as a non-compensable injury by the ALJ on October 4, 2002. The ALJ found that appellant was not engaged in a work-related activity at the time he fell, that there was insufficient evidence of an employment risk as the cause of the injury, and that fall the was idiopathic, stemming from one or more of the following: (1) a stroke or cerebral vascular accident; (2) a herniated disc at the L3-4 level; (3) a compressive lesion on his thoracic cord. The full Commission affirmed and adopted the ALJ’s decision without further explanation, finding that the decision was supported by a preponderance of the credible evidence and correctly applied the law.
When a workers’ compensation claim is denied, the substantial evidence standard of review'requires us to affirm the
Commission if its opinion displays a substantial basis for denial of the relief sought by the worker. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Caffey v. Sanyo Mf'g. Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004). 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. Williams, supra. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be 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 or heard the case de novo. Id. In making our review, we recognize that it is the Commission’s function to determine the credibility of witnesses and the weight to be given their testimony. Id. Moreover, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the' Commission. Id.
Appellant testified at the hearing. He offered no explanation or evidence as to the cause of the fall, except that it occurred after he reached for the office doorknob while climbing the stairs. The ALJ, whose opinion was subsequently affirmed and adopted by the Commission, concluded that appellant’s incident was idiopathic. The Arkansas Supreme Court has distinguished injuries suffered from unexplained causes and injuries sustained from idiopathic causes:
We first note that injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. An idiopathic fall is one whose cause is personal in nature, or peculiar to the individual. 1 LARSON, WORKERS’ COMPENSATION LAW, §§ 12.11 (1998); see also 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). Because an idiopathic fall is not related to employment, it is generally not compensable unless conditions related to employment contribute to the risk by placing the employee in a position, which increases the dangerous effect of the fall. LARSON, supra.
ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998). A workers’ compensation claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. Moore v. Darling Store Fixtures, supra. “Arising out of the employment” refers to the origin or cause of the accident, while “in the course of the employment” refers to the time, place and circumstances under which the injury occurred. See Little Rock Convention & Visitors Bureau, supra. When a truly unexplained fall occurs while the employee is on the job and performing the duties of her employment, the injury resulting therefrom is compensable. Id. In ERC Contractor Yard & Sales, supra, the supreme court found that although the claimant’s fall was caused by his alcohol withdrawal, which was a condition personal to him, his job requirement of working on scaffolding twelve to fifteen feet above the ground increased the dangerous effect of the fall. Id. Therefore, the court concluded that substantial evidence supported the Commission’s finding that the workman suffered a compensable idiopathic fall. Id.
In the case at bar, the Commission found that appellant’s fall was idiopathic and affirmed the ALJ’s opinion, which stated that appellant had been diagnosed as suffering from three separate conditions, none of which were caused or aggravated by appellant’s employment. The first was a stroke or cerebrovascular accident, the second was a herniated disc at the L3-4 level that was revealed on an MRI more than a year prior to this incident, and the third was a compressive lesion on his thoracic spinal chord. There was insufficient evidence that the February 5, 2002 fall caused either internal or external physical harm to appellant’s body, which required medical services or resulted in disability, and no objective findings that established a new injury resulting from the fall. To the contrary, Dr. Rogers indicated that the fall may have been caused by the lesion on the thoracic chord. This evidence presented at - the hearing provided the basis for the Commission’s conclusion that appellant’s injury was idiopathic rather than unexplained.
Furthermore, we are not persuaded that appellant’s employment contributed to his accident. By appellant’s own testimony, he established that he was simply ascending stairs to the appellee’s business office holding nothing heavier than his fuel tickets when the incident occurred. By contrast, in ERC Contractor Yard & Sales, supra, the claimant’s job duties required him to be on scaffolding twelve to fifteen feet above the ground when his accident occurred. There, the Commission found that his injury was compensable, although it was also idiopathic, because of the increased risk associated with claimant’s employment duties. In this instance, the evidence supports that appellant’s fall was idiopathic, but it was not compensable as no evidence suggested that his employment contributed to his fall. Accordingly, this case is distinguishable from ERC Contractor Yard & Sales, supra.
Appellant has failed to establish by a preponderance of the credible evidence of record that his injury arose out of his employment. Additionally, he has not shown that his employment significantly increased his risk of injury. See Moore v. Darling Store Fixtures, supra. Therefore, we hold that substantial evidence supported the Commission’s decision to deny him benefits.
Affirmed.
Baiíer and Roaf, JJ., agree. | [
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ohn F. Stroud, Jr., Chiefjudge.
Appellant, AntwonBank-J ston, was .found guilty by a Saline County Circuit Court jury of the offenses of incest and rape. He was sentenced to the Arkansas Department of Correction for a period of six years on the incest conviction and ten years on the rape conviction, with the sentences to be served concurrently. On appeal, appellant argues that the trial judge erred in reading jury instruction AMCI 2d 8102 to the jury and in denying his motion for a mistrial. We affirm.
Because appellant does not contest the sufficiency of the evidence, it is not necessary to recount the testimony of the witnesses. Both the State and the defense presented their cases and, after the appropriate motions, instructions to the jury, and closing arguments, the jury retired to deliberate at 3:07 p.m. Two hours and twenty minutes later, the jury foreman informed the trial judge that the jury had been deadlocked eight to four for a little over an hour. At that time, the State requested in chambers that the trial judge give the jury AMCI 2d 8102, commonly known as the “dynamite” instruction. Counsel for appellant objected, arguing that the foreman had said that the vote was not likely to change, that two of the jurors had come out of the courtroom in a display of anger when they had been told to go back and continue deliberations, and that by giving the dynamite instruction, the court was trying to press some members of the jury into changing their positions. Over appellant’s objection, the trial judge read AMCI 2d 8102:
It is in the interest of the State of Arkansas and of the Defendant for you to reachan agreement in this case, if at all possible. A hung jury means a continuation of the case and the delay in the administration ofjustice. You should consider that this case will have to be decided by some jury and in all probability upon the same testimony and evidence. It is unlikely that the case will ever be submitted to 12 people more intelligent, more impartial, or more competent to decide it. Under your oath as Jurors, you have obligated yourselves to render verdicts in accordance with the law and the evidence. In your deliberations, you should weigh and discuss the evidence and make every reasonable effort to harmonize your individual views on the merits of the case. Each of you should give due consideration to the views and opinions of other Jurors who disagree with your views and opinions. No Juror should surrender his sincere beliefs in order to reach a verdict. To the contrary, the verdict should be the result of each Juror’s free and voluntary opinion. By what I have said as to the importance of the Jury reaching a verdict, I do not intend to suggest or require that you surrender your conscientious conviction, only that each of you make every sincere effort to reach a proper verdict. Therefore, I request the Jury to retire for further deliberation for a reasonable time in an attempt to reach a verdict, if you will, please.
After the trial judge had given the instruction and the jury had returned to the jury room for further deliberations, appellant’s counsel again objected to the instruction, stating that two of the jurors leaving the jury room expressed anger at being told to report back to the jury room for further deliberations. The prosecutor replied that what was expressed to the trial judge at the time the jurors left the room was a request for an additional break; that the jury was properly instructed; and that -the instruction clearly indicated that there was no intention on the part of the trial court to force any juror to change his or her convictions, only to make a sincere attempt to reach a verdict.
The jury again returned to the jury box with a question for ' the judge; after discussion with counsel, the trial judge instructed the jury that they had been given all of the instructions and charges that he was permitted to give them. After the jury had retired for further deliberations, appellant’s counsel made the following motion:
Your Honor, on behalf of the Defendant, at this point I would move for a mistrial. The Jury went into deliberation at 3:07 p.m. They returned at 5:30 p.m., advised the Court that they were deadlocked at an eight and four split. The Court read them the, quote, dynamite instruction, unquote. Part of that instruction tells them to return and deliberate for a reasonable time. It is now 8:25, two hours and 55 minutes after you told them to consider this for an additional reasonable time. In light of the fact that the first time they stopped and advised the Court that they were hung was less than two and a half hours, an additional two hours and 55 minutes does constitute a reasonable time, under these circumstances and I’ll ask the Court for a mistrial.
The prosecutor responded, “We believe they’ve reported that they are making progress and they have requested additional time in which to deliberate and at this point it would be premature to, I think, stop such deliberations when it appears that they’ve already made [progress] in the process.” The trial judge, in denying the motion for mistrial, noted that on the two occasions that the jury foreman had come out of the jury room since the jury was given the dynamite instruction, he had indicated both times that some progress was being made. The jury returned at 9:00 p.m. with verdicts of guilty for the offenses of incest and rape and a verdict of not guilty for the offense of sexual abuse in the first degree; each juror was individually polled for his or her verdict on each of the counts.
Appellant first argues that the reading of AMCI 2d 8102 to the jury was premature, improper, and prejudicial. He contends that the instruction forced the jurors to compromise their opinions as to his guilt or innocence, especially after two jurors had openly displayed their anger about being instructed to deliberate further. He also argues that the instruction should not have been given after only two hours and twenty minutes of deliberation.
The use of the “dynamite” instruction has been approved by our supreme court. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983); Walker v. State, 276 Ark. 434, 637 S.W.2d 528 (1982), cert. denied, 459 U.S. 975 (1982). Such an instruction is not improper if the admonition is given without the trial judge’s opinion as to the weight of the evidence, if there is no change in any of the instructions previously given, and if there is no suggestion that any juror must yield his convictions to obtain a verdict. Walker, supra. None of these factors were present in the instruction given in the instant case; in fact, the trial judge specifically stated that he did not intend to suggest or require that any juror surrender his or her conviction. Therefore, the giving of the instruction was not improper or prejudicial.
Appellant further asserts that the “dynamite” instruction was given prematurely to the jury. In his brief, he cites Miller, supra, and Walker, supra, in support of his argument. In those cases, the juries deliberated for five hours and four hours, respectively, before the instruction was given. In this case, appellant argues that two hours and twenty minutes was not a long enough period of time to require the dynamite instruction; therefore, the giving of it was reversible error. We disagree. Appellant’s argument overlooks Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995), in which the “dynamite” instruction was given after only two hours, and our supreme court held that the trial court did not abuse its discretion in denying a mistrial. We cannot say that the giving of the instruction after two hours, and twenty minutes of deliberation was reversible error.
Appellant’s second contention on appeal is that the trial court erred in refusing to grant his motion for a mistrial after the jury had still not returned with a verdict almost three hours after being given the “dynamite” instruction. A mistrial is a drastic remedy that should only be employed when there has been an error of such prejudicial magnitude that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The decision whether to declare a mistrial due to a jury’s inability to reach a verdict is discretionary with the trial court and is not reversed absent an abuse of that discretion. Davis, supra.
In the present case, the jury deliberated for two hours and twenty minutes before being given the “dynamite” instruction and returning for further deliberations. Two hours and fifty-five minutes later, appellant requested a mistrial. In denying appellant’s motion, the trial judge noted that during both of the times that the jury foreman had left the jury room, he had indicated that the jury was making progress. Approximately thirty-five minutes after appellant’s motion for a mistrial, the jury returned with its verdicts. Under these facts, we cannot say that the trial judge’s denial of appellant’s motion for a mistrial was an abuse of discretion.
Affirmed.
Bird and Vaught, JJ., agree.
Although appellant’s counsel makes this argument in an objection prior to the giving of the “dynamite” instruction, there is nothing contained in the abstract or the record indicating that the jury had been instructed to continue its deliberations prior to AMCI 2d 8102 being read to them. | [
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F. Stroud, Jr., Chief Judge.
Appellant, Hugh'Brown, and appellee, Kathy Brown, were married in 1991. Two children, twins, were bom in October 2000 by means of artificial insemination, using sperm from a donor bank in California. It is undisputed that the statutorily required written ¡consent was not obtained from appellant prior to the artificial insemination. Appellee filed for divorce in 2002. Appellant sought to avoid child-support obligations, contending that the children were not his. The divorce decree was entered December 19, 2002. The trial court determined that while the written consent required by statute had not been obtained, appellant was “barred by the doctrine lof estoppel from denying the children are his.” The sole issue on appeal is whether the “trial court’s finding that appellant should be legally declared the father of the minor children bom during the marriage is contrary to the weight of the evidence and is clearly erroneous.” We affirm.
In this one-brief case, appellant relies upon Arkansas Code Annotated section 9~10-201(a) (Repl. 2002), to support his position. It provides:
(a) Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artficial insemination.
(Emphasis added.) In addition, Arkansas Code Annotated section 9-10-202(b) (Repl. 2002), provides:
(b) Prior to conducting the artificial insemination, the supervising physician shall obtain from the woman and her husband or the donor of the semen a written statement attesting to the agreement to the artificial insemination, and the physician shall certify their signatures and the date of the insemination.
It is undisputed that appellant did not consent in writing to the procedure, and he contends that, contrary to the trial court’s application of the doctrine of estoppel, the lack of such consent should be dispositive of the issue. We disagree.
Here, appellant testified that during his marriage to appellee, she gave birth to twin girls, Megan Leigh Brown and McKenzie Lauren Brown. He stated that his name was on the birth certificates and that he was aware that the children were being given the last name of “Brown,” with him being shown as the father on the birth certificates. He stated that he accompanied appellee to the doctor twice while she was pregnant and that those two visits were for ultrasounds. He said that he was concerned about the health of the children and that he was supporting appellee.
Appellant explained that appellee was artificially inseminated and that the sperm came from a donor bank in California. He said that he had a vasectomy performed prior to marrying appellee; that she first told him she wanted to have children about five years ago; that he told her “he guessed that she needed to find another husband”; that he had his vasectomy reversed about two years later, but not because he wanted children; and that the reversal was performed to relieve a chronic problem with epidymitis.
Appellant stated that he and appellee discussed the possibility of having a child at the time the reversal was performed, and that the doctor said the chances were about one in one thousand that they would be successful. He said that around the first of February 2000, he had sperm counts performed, one in Little Rock and one in Searcy, and that the tests indicated all of his sperm were dead. He testified that during all of that time he had no intention of appellee becoming pregnant.
Appellant explained that appellee subsequently contacted the California Cryobank and showed him papers from there that she wanted to discuss. He said that she told him she wanted to get some information from that facility; that since they were married, the facility would not release any information to her without his signature; that he confirmed with her that he was only signing to find out information because he was concerned about diseases and genetic problems; that she assured him his signature was only for the purpose of getting information; and that at the time he signed the document, she told him it was only to pay for the information that the sperm bank was sending about the program and the donors. He said that she received the information and that she then told him she wanted to purchase a sample of semen.
Appellant testified that he was not told about the insemination procedure until it was over and that he first learned appellee was pregnant during the first week or two of April. He said that he told her he could not believe that she had undergone the procedure because she knew that he was against artificial insemination with donor sperm; that he was also against the procedure “based on Christian principles”; and that he did not like the fact that his wife was pregnant by another man. He also acknowledged, however, that he could not really say that his objections were based on the fact that he did not want another child; that he was there when the girls were born; that he and appellee agreed on names for the children; that they called appellee’s family to inform them of the births; and that he expressed to her family how happy he was about the births.
Appellant stated that as long as there was a marriage partnership, he was willing to meet appellee halfway on any issues, including raising the girls, but that once appellee decided to divorce him, he wanted nothing to do with the girls and did not feel that he should be financially responsible for them.
Appellee, Kathy Brown, testified that she was aware appellant had undergone a vasectomy prior to the marriage, but that after the marriage, she decided she wanted to have children. She acknowledged that he told her that she would “need to get another husband.” She stated that appellant later had his vasectomy reversed due to complications. She said that at that point they were both hopeful that they might have a child together, but that they later learned his sperm count was not sufficient. She explained that they started looking at the alternatives of adoption and artificial insemination. She said that they assumed because of their ages they might not be able to adopt and that she presented him with documents from the California Cryobank. She stated that she did not agree with appellant’s testimony that her contact with Cry-obank was for information only and that when she received the information regarding donors from Cryobank, appellant actually picked the donor from the information provided. She testified that she told him that she was going to order a semen specimen from the donor that he had chosen and that they both signed a document shielding Cryobank from liability in connection with the sale of donor sperm. She denied forging appellant’s signature on the document.
Appellee stated that appellant was in the delivery room when the girls were born; that he helped choose their names; and that he was listed as the father on the birth certificates, with his consent. She testified that she assumed appellant had consented to the artificial insemination procedure because he signed the papers and he never told her not to undergo the procedure. She also stated that he never asked her to have an abortion after she became pregnant and that he had supported the children since their birth, holding them out as his own.
Appellee stated that she took appellant’s silence as an agreement that she could proceed. She testified that appellant knew on the day of the insemination that she was going to have the procedure performed; that she had gotten an ovulation kit and told him that she was ordering the sperm and going to the doctor the next day to have the procedure performed. She stated that she could not remember why appellant did not accompany her, but that she thought it was because he could not get away from his job. She testified that appellant was only religious when it suited his purposes and that if he denied picking the donor, he would not be telling the truth.
Appellee stated that she and appellant went to the Women’s Clinic in January 2000 to discuss pregnancy; that she had already contacted the Cryobank at that time; and that they discussed with the doctor appellant’s sperm count and artificial insemination using donor sperm. She said that she ordered the sperm on a Thursday and went to the Clinic on Friday for the procedure; that she told appellant what she planned to do the day before; and that he did not say much, but did not tell her she could not have the procedure done. She stated that she called appellant after the procedure was completed and told him she was going home. She explained that he never let her believe that it would be the end of their relationship if she had the procedure performed.
The trial court subsequently ruled that “despite the fact that the husband’s consent was not obtained in writing ... , he is estopped as a matter of law to deny that these children are his because of his conduct . . . .” The trial court then recounted the facts that supported its conclusion, clearly crediting appellee’s testimony over that of appellant: (1) that appellant knew appellee was going to get the sperm; (2) that appellant never said he would not consent to the procedure being performed and he signed the documents that were placed in front of him; (3) that appellant helped pick out the donor for the sperm; (4) that he allowed his name to be used on the birth certificate; (5) that after the children were born, he recognized them as his children; (6) that it was only after appellee began to talk about divorce that he decided he should not be responsible for the children.
The elements of equitable estoppel are these: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; (4) the party asserting estoppel must rely on the other’s conduct to his detriment. Office of Child Support Enforcement v. King, 81 Ark. App. 190, 100 S.W.3d 95 (2003).
In accordance with the trial court’s credibility determinations, (1) appellant knew the facts, i.e., he knew that appellee was having the artificial-insemination procedure performed; (2) appellant acted as if he agreed to the procedure, accepted the children as his own, and showed every intention to support them, i.e., leading appellee to believe that he so intended; (3) appellee was ignorant of the facts asserted by appellant at the hearing, i.e., that he did not know she was having the procedure and did not plan to treat the children as his own; and (4) appellee relied to her detriment on appellant’s conduct, i.e., she proceeded with the artificial insemination, fully expecting appellant to support the children as his own. We find no error in the trial court’s conclusion that appellant was estopped to deny that he is the father of these two children.
Affirmed.
Neal and Roaf, JJ., agree. | [
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Layton Roaf, Judge.
Nancy E. Wall appeals the decision of the Board of Review that she is liable to repay $447 in unemployment benefits she received in June 1997. Wall contends that it is not fair or just to allow the Employment Security Department (ESD) to recover the non-fraud overpayment where the ESD waited from December 1997 until January 2003 to attempt recovery. We agree that the Department is barred from recovering the overpayment based on the doctrine of laches, and reverse.
Wall received the $447 that is at issue in June 1997. The non-fraud overpayment resulted when her employer appealed, and the award to her of benefits was reversed by the Appeal Tribunal. Wall did not appeal, and according to an ESD worksheet in the record, the issue thus became final on August 19, 1997. Wall was sent a “Notification of Right to Request Waiver of Potential Overpayment” dated July 25, 1997, and she promptly submitted such a request on July 29, 1997. There is no further activity reflected in the record until a “Notice of Non-fraud Overpayment Determination” setting out the amount of the overpayment and dated January 10, 2003, over five and a half years later, was sent to Wall. Wall appealed and the Appeal Tribunal ruled that, based on her current resources and income, Wall should be liable for repayment. The Board of Review affirmed and, although noting that Wall “may have reason to be upset about the delay of the Department in seeking repayment,” did not address at all what was in essence an estoppel and/or laches argument raised by Wall, but focused instead on the four-year statute of limitations applicable to collection of claims after a final determination of the amount of overpayment is issued, found in Ark. Code Ann. § 11-10-532(b)(2) (Repl. 2002). However, there was an unexplained five and one-half year delay in issuing this notice, and Wall asserted that it is this delay that was detrimental to her because she no longer had records from 1997 and because she could not seek a refund of income taxes withheld by ESD from the unemployment benefits she received and reported to IRS.
The statutory provision relied upon by the Board, Ark. Code Ann. § 11-10-532, provides in pertinent part:
(B)(1)(A) If the director finds that any person has received any amount as benefits under this chapter to which he or she was not entitled by reasons other than fraud, willful misrepresentation, or willful nondisclosure of facts, the person shall be Hable to repay the amount to the fund.
* * *
(2) Any person held hable to repay an amount to the fund or to have the amount deducted from any future benefits payable to him or her shall not be hable to repay the amount nor shall recovery be made from any future benefits after four (4) years from the date the determination of the amount of the overpayment becomes final within the meaning of the provisions of § 11-10-527.
Clearly, this four-year period commenced to run only after the notice was sent to Wall in January 2003. Just as clearly, pursuant to the Board’s decision, the Department could thus delay any number of years before sending out the notice without the limitations period even commencing to run.
This court has held that the equitable defense of estoppel barred recovery of unemployment overpayment in Wells v. Everett, 5 Ark. App. 303, 635 S.W.2d 294 (1982), where the overpayment was not the fault of the claimant, who had informed the Agency that the payment was incorrect when she received her first check, but was assured by it that the amount was correct. In Wells, this court defined estoppel as follows:
The doctrine of estoppel is applicable when four essential elements are present: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury. Rainbolt v. Everett, 3 Ark. App. 48, 621 S.W.2d 877 (1981).
5 Ark. App. at 306, 635 S.W.2d at 295. Although the doctrine of estoppel does not apply in Wall’s case, because of lack of intent by the Department, the related defense of laches is clearly implicated by the ESD’s more than five-year delay in pursuing recovery of the overpayment to her.
The doctrine of laches requires a detrimental change in the position of the one asserting the doctrine as well as an unreasonable delay on the part of the one against whom it is invoked. Padgett v. Haston, 279 Ark. 367, 651 S.W.2d 460 (1983). In Arkansas County v. Desha County, 351 Ark. 387, 392, 94 S.W.3d 888, 890 (2003), the supreme court distinguished the closely-related defenses of laches and equitable estoppel, stating:
The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plaintiff s delay in pursuing a claim.
The record does not reflect Wall’s financial state at the time of the initial determination of overpayment in 1997. However, she has asserted a detrimental change in position in that she has not maintained records from 1997 and cannot now seek recovery of the federal taxes withheld from the benefits she received because the three-year period for filing amended tax returns has expired. She has suffered a disadvantage resulting from ESD’s delay in pursuing its claim, and we hold that, under these circumstances, laches bars recovery of the overpayment.
Reversed and dismissed.
Vaught, Crabtree, and Baker, JJ., agree.
Stroud, C.J., and Neal, J., dissent. | [
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ohn B. Robbins, Judge.
Appellee Roger Lee Watkins and Karla Watkins are the parents of a minor child, Brandon. On November 4,1997, a hearing was held on a motion by the appellant, Office of Child Support Enforcement (OCSE), against Mr. Watkins. Subsequent to the hearing, the trial court entered a judgment against Mr. Watkins for $2082.50, which represented unpaid child support owed to the state of Missouri. The debt accrued as a result of an assignment of child-support rights to the State of Missouri by Ms. Watkins upon her receipt of public assistance. The November 4, 1997, order further required Mr. Watkins to pay current child support.
In an order dated July 6, 1998, the trial court found Ms. Watkins in contempt for denying visitation, and placed temporary custody with Mr. Watkins. On October 6, 1998, the trial court entered an order granting permanent custody to Mr. Watkins, and Ms. Watkins was ordered to pay child support. The order recited that Ms. Watkins shall be given credit toward her child-support obligation for any arrears owed by Mr. Watkins.
On July 8, 2002, the trial court entered an order finding Ms. Watkins in contempt based on her child-support delinquency of at least $5300.00. OCSE subsequently intervened and filed a motion for citation against Mr. Watkins for failure to pay the 1997 judgment, and a hearing was held on its motion on August 14, 2002.
The hearing on appellant’s motion consisted only of stipulations and argument by each party’s counsel. On October 21, 2002, the trial court entered an order denying appellant’s motion for citation. In its order, the trial court found that Mr. Watkins made only one payment toward the judgment and still owed $2032.50. However, the trial court chose not to enforce the judgment against Mr. Watkins. The trial court’s order, in pertinent part, stated:
[T]he Court finds that the Plaintiff, Karla Jeen Watkins, is over $6,000.00 in arrears to the Defendant, Roger Lee Watkins, in child support. That the Court applies the equitable doctrine of set-off and therefore estops the Intervenor from collecting the outstanding balance of $2,032.50 from the Defendant, Roger Lee Watkins. That even though Karlajeen Watkins assigned her support rights to the State of Missouri, the State of Missouri does not acquire any greater claim as assignee to back support than what Karla Jeen Watkins possesses herself.
Further, that the Court acknowledges that the Plaintiff, Karla Jeen Watkins, was provided a credit towards child support obligation for an arrearage due and owing by the Defendant, Roger Lee Watkins, but, had accepted funds from the State of Missouri, and therefore, her credit is abrogated for any amounts due and owing the State of Missouri as she was not entitled to ofiset the debt owed to the State of Missouri.
OCSE now appeals from the order entered October 21, 2002.
For reversal, OCSE acknowledged that Arkansas Code Annotated section 16-65-603(a) (1987) provides, “Judgments for the recovery of money may be set off against each other, having due regard to the legal and equitable rights of all persons interested in both judgments.” However, OCSE argues that it is inequitable to allow the judgment owed by Mr. Watkins to the State of Missouri to be set off against Ms. Watkins’s child-support arrearage. OCSE submits that Ms. Watkins has no interest in the judgment granted to Missouri, nor does Missouri share in her liability to Mr. Watkins. OCSE contends that the trial court’s reasoning depended on the assignment of Ms. Watkins’s rights to the State of Missouri, and that the reasoning was flawed because the judgment itself was not an assignment; rather, it was a judicial determination of Mr. Watkins’s obligation to the State of Missouri.
OCSE agrees that an assignee ordinarily obtains only the rights possessed by the assignor at the time of the assignment, and no more. 6A C.J.S. Assignments § 88 (1975); See First Nat’l Bank of Fayetteville v. Massachusetts Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988). However, it argues that collection of the judgment by the assignee in this case should not be barred because the assignment and entry of judgment both occurred prior to any child-support obligation on the part of Ms. Watkins. Since the set-off defense was not available to Mr. Watkins against the assignor at the time of the assignment, OCSE contends it should not be now available against the assignee. The general rule is that the assignee of a chose in action is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor, and to all other defenses and equities that could have been asserted against the assignor at the time of the assignment (emphasis added). 6 Am. Jur. 2D Assignments § 149 (1999).
The standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. City of Fort Smith v. River Valley Reg’l Water Dist., 344 Ark. 57, 37 S.W.3d 631 (2001). However, a trial court’s conclusion of law is not entitled to the same deference. See Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999). We hold that under the particular facts of this case, the trial court erred as a matter of law in ruling that the set-off doctrine estops OCSE from collecting the outstanding judgment of $2032.50 from Mr. Watkins.
Because Ms. Watkins was receiving public assistance while she resided in Missouri with the child, her child-support rights were assigned to the State of Missouri by operation of law. See Mo. Ann. Stat. § 208.055 (2002). Pursuant to Missouri Annotated Statutes section 454.410 (2002), support rights assigned to the state shall constitute an obligation owed to the state by the person responsible for providing such support, and the obligation shall be collectible pursuant to all legal processes. Through legal process, OCSE obtained a judgment against Mr. Watkins for unpaid child support, and Mr. Watkins took no appeal from the judgment. Significantly, Ms. Watkins’s assignment of her rights to Missouri was not a voluntary assignment for her benefit, but by operation of law due to her receipt of public assistance for her minor child. Thus, collection on the judgment is a matter strictly between Missouri and Mr. Watkins.
In this case, Mr. Watkins has no right to set off the judgment owed to the State of Missouri against the child-support arrearages owed to him by Ms. Watkins. At both the time of assignment and entry of the judgment, Ms. Watkins owed nothing to Mr. Watkins and thus, absent the assignment, Ms. Watkins would have had the right to collect on the judgment. As Mr. Watkins would have had no set-off defense against Ms. Watkins, he cannot now assert the defense against the assignee, State of Missouri. The fact that Ms. Watkins later became delinquent on her child-support obligation to Mr. Watkins does not affect the State of Missouri’s right to collection on its judgment.
We reverse the trial court’s order to the extent that it estops OCSE from collecting the outstanding balance on the judgment against Mr. Watkins. We remand the case to the trial court for reconsideration of OCSE’s motion for citation against Mr. Watkins in light of our holding.
Reversed and remanded.
Griffen and Neal, JJ., agree. | [
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Mauzy Pittman, Judge.
The appellant in this criminal case was charged with solicitation of capital murder of two police officers. After a jury trial, she was convicted of those offenses and sentenced to two thirty-year terms of imprisonment to be served consecutively. From that decision, comes this appeal.
For reversal, appellant contends that the evidence is insufficient to support her convictions; that she was denied a fair trial by the prosecution’s reference to terrorist activity; that the trial court erred in refusing to require the State to produce federal Drug Enforcement Administration employment files of a witness; and that the trial court erred in refusing to give proffered jury instruc tions on her defense of impossibility and her theory that her conduct was nothing more than constitutionally-protected speech. We affirm.
We first address appellant’s contention that the evidence is insufficient to support her convictions. 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. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (May 29, 2003). We affirm a conviction if it is supported by substantial evidence, i.e., evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.
A person commits the offense of capital murder if, with the premeditated and deliberated purpose of causing the death of any law enforcement officer acting in the line of duty, he causes the death of any person. Ark. Code Ann. § 5-10-101(a)(3) (Repl. 1997). Pursuant to Ark. Code Ann. § 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 that 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.
Viewing the evidence, as we must, in the light most favorable to the appellee, the record reflects that Officers Jerry Hart and Andre Dyer of the Little Rock Police Department were assigned to bicycle patrol in appellant’s neighborhood near Central High School. In the course of their patrols, they learned that appellant was a drug addict, and they arrested her several times for various offenses during May 2000. Appellant was angered by these arrests. On May 23, 2000, she told an acquaintance, Bryan Johnston, that she wanted Officer Hart killed. Appellant talked to Johnston for two hours about wanting to have Officer Hart killed.
Unbeknownst to appellant, Bryan Johnston was, in reality, an undercover informant for the federal Drug Enforcement Agency. After appellant expressed her desire to have Officer Hart killed, Johnston became concerned that she might find someone to do it for her of whom the police would be unaware. Johnston then told appellant that he might know someone who could help her and that he would get back to her after he made a couple of telephone calls. Johnston later telephoned the Drug Enforcement Agency and the Little Rock Police Department and reported the incident. Johnston agreed to contact appellant again and record their conversations. On May 24, 2000, Johnston met appellant. Johnston informed appellant that he found someone who would kill Officer Hart for a price if she still wanted it done. Appellant stated that she did want it done because Officer Hart was making her life miserable. Appellant then asked when the killing would take place, and remarked that she couldn’t believe that she was “plotting a murder.”
Johnston then had a conversation with appellant in which he told her that he would introduce her to the assassin. On June 6, 2000, Johnston introduced appellant to Steve Pledger, a detective with the Little Rock Police Department who was posing as a hired assassin. Appellant told Steve Pledger that she wanted it done, that she wanted Officer Jerry Hart dead because he tried to send her to the penitentiary. She described Officer Hart as a black police officer who rode “a bicycle over in the hood,” and described his beat as being “from 24th Street over to 10th and 11th Street, back down to Martin Luther King, all the way up to Chester.” Appellant described Officer Hart’s personal automobile and told Steve Pledger where he parked it. She stated that she did not care how the killing was done, just “do it. Do it.” Appellant also told Steve that she wanted Officer Hart’s partner “Henry” killed as well. (Henry was Officer Dyer’s radio call sign.) Appellant agreed to pay Steve $1000 to kill both police officers, although she cautioned Steve that “if something happens, I just — I don’t feel like going to the penitentiary for plotting a murder.”
Johnston recorded another conversation he had with appellant on June 7, 2000. Appellant informed Johnston that Officer Hart had jailed her again “for walking down the f --g street” and that she had just been released on probation. Johnston asked appellant if she still wanted his friend. Appellant responded: “Yeah. Are you kidding? But I don’t have the money. I can’t get on the street.”
Johnston telephoned appellant again on June 7, 2000, and told her that Steve would be in town next week and would need to speak to her. Appellant told Johnston to give Steve her address, “2012 West 17th, and I’ll talk to him because I want this done, and I want it done. Once I have [the] $500, I’ll have it done. In fact, if I have to f— k for it, I’ll have your $500.” She then added that “I don’t want one of them, I want both of them. I’ve had it. I’ve had it. I can’t take it any more. My freedom is on the line. Now that - now that I’m on probation, if I walk to the store he throws me in jail.”
Onjune 15, 2000, Steve met again with appellant. Appellant told Steve that she did not yet have the money, but she said that she would get it and reaffirmed her desire to have the police officers killed. She told Steve that Officer Hart wore a bullet-proof vest, agreed that Officer Hart’s head was vulnerable despite his protection, and stated that “I want him dead immediately. Yeah. I’d kind of like his partner to watch, and then he’ll be next, you know what I’m saying. He’ll be like squatting, saying, ‘No, no, no, no,’ like squealing and everything. You know what I’m saying.”
Steve Pledger had a third conversation with appellant on July 21, 2000. He told appellant that the other officer’s name was not Henry, but was instead Dyer, and appellant agreed that was correct. Steve told appellant that he was “ready to do it” immediately and had everything lined up for the assassinations. Appellant told Steve that she did not have the money but that she would do what she could to get it.
On August 16, 2000, appellant told Johnston that she was going to leave town to visit her family in Texas so that she would not be around when Steve killed the police officers and she could “hide out there until the heat cooled.” Appellant was arrested that day.
Appellant argues that there is no evidence that appellant “ever actually urged, commanded, or requested that another person kill” the police officers. There is no merit in that argument. As the testimony recited above clearly indicates, appellant was quite aware that she was plotting a murder, and repeatedly told Steve that she wanted him to kill both police officers. Appellant asserts that her actions were mere “window shopping,” and that they did not rise to the level of criminal solicitation because she never paid the purported assassin his agreed-upon fee of $1000. We do not agree. The identical issue was presented to the Maryland Court of Special Appeals in Gardner v. State, 41 Md. App. 187, 396 A.2d 303, aff'd 286 Md. 520, 408 A.2d 317 (1979). There it was argued that Gardner’s conviction for solicitation to commit murder should be reversed because the prospective murderer was never actually directed to proceed with a murder, and because payment for the murder, which never occurred, was a condition precedent to any contemplated action by the prospective murder. We agree with the Maryland court’s holding that “the crime of solicitation requires neither a direction to proceed nor the fulfillment of any conditions. 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; accord, State v. Davis, 110 N.C. App. 272, 429 S.E.2d 403 (1993). Here, the record shows that appellant urged Steve Pledger to engage in specific conduct that would constitute capital murder, and we hold that her convictions are supported by substantial evidence.
Next, appellant contends that she was denied a fair trial by the prosecution’s reference to terrorist activity at trial. As noted above, appellant’s theory of the case was that no criminal liability would arise until she had actually paid the assassin, and that she had therefore not committed any offense because her behavior was “just talk.” In furtherance of this theory, appellant elicited testimony from Detective Steve Pledger conceding that appellant’s actions had been “just talk.” Immediately afterward, the prosecution on redirect asked Detective Pledger if “just talk” about terrorism was something that warranted police investigation. Appellant then requested a mistrial, which was denied.
Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). We are not convinced that the prosecutor deliberately introduced a prejudicial response in this case. His question on redirect was clearly intended to respond to appellant’s previous question to the witness and to address appellant’s theory that criminal liability could not be imposed for “just talk.”
Although the introduction of the issue of terrorism into this trial was perhaps inflammatory, we think any possible prejudice to appellant could have been cured by an admonition to the jury stating that there was no question of terrorist activity in this case. In Wilkins v. State, 324 Ark. 60, 66, 918 S.W.2d 702, 705-706 (1996), the Arkansas Supreme Court said that:
[A] mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). An admonition is the proper remedy where the assertion of prejudice is highly speculative. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 .(1994). . . . This court has held that the failure to request a cautionary instruction or admonition may not inure to the appellant’s benefit on appeal. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).
In any event, appellant does not appear to be concerned with any potential bias that might have arisen by virtue of a mistaken association of her behavior with terrorism; instead, her theory of prejudice is that the jury may have been led by the prosecutor’s question to misconstrue the law in such a way as to impose criminal liability for mere “talk” without an additional overt act. However, that would not be a misconstruction. As we noted in our discussion of the sufficiency of the evidence, “talk,” in the form of urging one to commit a specific criminal act, is precisely what the solicitation statute forbids. We find no error on this point.
Next, appellant argues that the trial court erred in refusing to require the State to produce federal Drug Enforcement Administration employment files of Bryan Johnston pursuant to a request made under Arkansas Rules of Criminal Procedure Rule 17. Appellant’s argument is based on Brady v. Maryland, 373 U.S. 83 (1963), where the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.
The Arkansas Supreme Court discussed the subsequent development and application of this rule in Cloird v. State, 349 Ark. 33, 37-38, 76 S.W.3d 813, 815-16 (2002), noting that:
In Stickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936 (1999), the Court revisited Brady and explained its implications. It noted that since the decision in Brady, the court had held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Moreover, the rule encompasses evidence “known only to police investigators and not the prosecutor.” Therefore, to comply with Brady, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf. . . .” Stickler, supra; Larimore [v. State, 341 Ark. 397, 17 S.W.3d 87 (2000).] In Stickler, the court set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.
We do not agree that there was reversible error in the case at bar. First, there is no evidence indicating that the employment files themselves were in the hands of any Arkansas state agency or were otherwise subject to the jurisdiction of the court as required by Ark. R. Crim. P. Rule 17.3(b). See Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Second, it is impossible to tell from the record before us precisely what information appellant was seeking and what she did not obtain. Although she informed the trial judge prior to trial that she had interviewed Johnston but that he gave her “no information with respect to Brady material vis-a-vis his prior history with DEA,” it is unclear from the record before us what was asked and answered in that interview, whether Johnston refused to answer questions, or whether he simply had no relevant information to offer.
However, it is clear that Johnston did testify at trial concerning his employment as a paid informant for the DEA, describing the manner in which he was paid and disclosing the financial interest he had in the cases to which he was assigned. Johnston also readily testified that he had sex with appellant on one occasion and that he drove her to purchase drugs. While it is well settled that the prosecution’s suppression of evidence material either to guilt or to punishment and favorable to an accused violates the defendant’s due-process rights, irrespective of the good faith or bad faith of the prosecution, Brady v. Maryland, supra, there is no indication that any such evidence existed in the case at bar. On this record, we think appellant has failed either to establish any violation of Brady or to demonstrate that any prejudice ensued.
Next, appellant contends that the trial court erred in failing to give her proffered jury instruction on the defense of impossibility. The proffered instruction, Arkansas Model Jury Instruction — Criminal 503(d)(2), provides an affirmative defense where “the conduct charged to constitute the solicitation was inherently unlikely to result in the commission of a crime and neither the conduct nor the defendant presented a public danger warranting a criminal conviction.” Appellant asserts that her conduct was inherently unlikely to result in the commission of a crime because she never paid the purported assassin. This argument, too, is premised on appellant’s theory that her conduct was merely “just talk” for which no criminal liability arose until she paid the assassin, a theory that we have rejected supra. There was no evidence to support a finding that the murder of the police officers was “inherently unlikely,” and we can find no error in the refusal of the instruction offered. Chronister v. State, 265 Ark. 437, 580 S.W.2d 676 (1979).
Finally, appellant contends that the trial court erred in failing to give her proffered instruction purporting to set out First Amendment limitations on the power of a state to criminalize speech. Fler proffered instruction stated that:
Speech, which “merely advocates law violation,” is protected speech under the First Amendment to the United States Constitution. Criminal prosecution for words is limited to speech which “incites imminent lawless activity.” In the event you find Defendant’s speech was not speech such that it would “incite imminent lawless activity,” you must find the Defendant not guilty of all the offenses charged.
A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). An appellant may not complain of the refusal of the trial court to give an instruction which is only partially correct, as it is his duty to submit a wholly correct instruction. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003). It is true that constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe mere advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969). Here, however, there is no question of mere advocacy. Instead, the only proof before the jury was that appellant contracted to pay Steve Pledger to murder Officers Hart and Dyer. The United States Supreme Court has said that:
The fact that ... an agreement [to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation . . . remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.
Brown v. Hartladge, 456 U.S. 45, 55 (1982). Appellant’s proffered instruction does not distinguish between mere advocacy of law violation and an agreement to engage in criminal conduct, and was therefore both misleading to the jury and not a wholly correct instruction. Under these circumstances, the trial court did not err in refusing to submit it to the jury. See State v. Brown, 265 Ark. 41, 577 S.W.2d 581 (1979); Merritt v. State, supra.
Affirmed.
Hart and Griffen, JJ., agree. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by the Stecher Cooperage Company from a judgment rendered against it for damages on account of the injury and death of J. W. Steadman, one of its employees. At the time of his injury Steadman was working at a machine called an edger. This machine had a wheel some four or five feet in diameter made of cast iron, with a steel rim around it to strengthen and hold it together, somewhat after the manner that the tire of a wagon wheel strengthens the wheel. Attached to this wheel were knives, the edges of the blades protruding about one sixteenth of an inch beyond the face of the wheel, and set so that a stave pressed against the side of the revolving wheel would be cut and trimmed into the proper shape by the knives. While Steadman was at work pushing staves against the wheel to cut them into shape it burst into fragments, which were thrown with great violence, some of them going through the top of the shed and falling several hundred yards away. Steadman was struck by a fragment of the wheel, and severely injured, so that he died about 24 hours afterwards from the effects of his injuries.
There is nothing beyond the fact that the wheel, while the machine was being operated, suddenly flew into fragments to show that the wheel was cracked or defective in any respect. The allegation in the complaint that the wheel was cracked and otherwise defective is therefore not supported by the evidence. The evidence does not clearly show what was the cause of this accident. There was some evidence tending to show that it was caused by running the machine at too high a speed. It is also possible that the wheel may have been slightly out of balance, but this is by no means clear. If the accident was due to the fact that the machinery was through the carelessness of the foreman of defendant run at great and unusual speed, or to the fact that through the carelessness of the foreman the wheel was being operated while it was out of balance, then the company would be liable, for we see nothing.in the evidence tending to show that Steadman was guilty of contributory negligence, and he did not assume any risk due to the negligence of the foreman of the company, who was not his fellow-servant. But, while the verdict is moderate, and while there may be evidence tp sustain it, yet we are of the opinion that the court during the course of the trial admitted incompetent evidence.
In the first place, the testimony of Mrs. Steadman concerning the statement of the manager, Otto Stecher, to her, about 24 hours after the accident, in which he said that he was very sorry, that he did not feel clear himself, and offered to pay the funeral expenses, was in our opinion incompetent. If Otto Stecher had been himself the defendant, his statement would have been competent evidence; for one’s admissions are competent evidence against himself. But it is not shown that he was the owner, or even that he had any interest in this company. So far as the evidence shows, he had no more right to make admissions affecting its rights than aiiy other employee of the company. The fact that one is in the employ of a corporation does not make all his acts and declarations competent evidence against the company. Only those made by its agents while acting for it.in the line of their duty are thus competent. But there is nothing to show that Stecher was acting for the company at the time he made this statement.
It is said that this testimony was introduced for the purpose of contradicting and impeaching the testimony of Stecher. But this testimony was introduced as part of the evidence to make out the case for plaintiff, and was heard before Stecher was put on the stand. Besides, counsel for defendant afterwards expressly asked the court to tell the jury not to consider this evidence in determining whether defendant was guilty of negligence, but the court refused to do so, thus showing that this evidence was allowed by the court to go to the jury as evidence tending to make out the case for plaintiff. These declarations of the foreman 24 hours after the accident can not be treated as a part of the res gestae. They were not made by any officer of the defendant company having the right to speak for it and bind it by declarations of that kind, and were therefore improperly admitted and prejudicial to defendant. Fort Smith Oil Co. v. Slover, 58 Ark. 168.
The testimony of several witnesses that the old machine could be heard a mile or two distant, and much further than such machines can ordinarily be heard, was probably not entitled to much weight, for the increased noise might have been caused by the lack of oil on the bearings or by the condition of the machine, as well as by high speed at which the machine was operated. But it would have been competent, had it been confined to the time of the accident. The witnesses do not fix a time at or near the time of the accident, and for that' reason we think that this testimony was incompetent. The object of showing that the noise made by the edger before the accident could be heard much further than such machines could ordinarily be heard was to prove that it was the custom of the company before the accident to operate the machine at great and unusual speed. But the fact that' the company may have on several occasions some months or years be’fore the accident operated the edger at great speed does not show that they did so at the time of the accident; and, as before stated, this testimony should have been confined to the time of the accident.
The instructions given to the jury are much longer and more voluminous than necessary; but, as most of them were asked by defendant, it has no right to complain. Some of the instructions given at the request of plaintiff do not correctly state the law, for they, in effect, make the company an insurer against accidents to its employees through defects in its machinery. For instance, in instruction number one given at the request of plaintiff it is said that “if the injuries received by the deceased were caused by the defective condition of defendant’s machinery, the plaintiff is entitled to recover,” etc. But this is not correct, for the law makes the company liable only, when such defects are due to its negligence. As this matter has been so frequently discussed by this court in recent cases, we deem it unnecessary to do more than call attention to it here.
We see nothing prejudicial in the argument of counsel for plaintiff set out in the transcript. His appeal to the jury to remember, if “they had any little girls,” that when the “finger of scorn” should be pointed at them they would be there to defend them with their “strong right arms,” and so act that they would be able “to look into this woman’s countenance” and say to her that their duty had been discharged, was a species of perfervid eloquence quite common in perorations of counsel for plaintiff in actions of this kind. From time immemorial such oratorical appeals to juries have been heard. Great latitude is allowed counsel in making arguments; and where there is no misrepresentation of the law or facts and no abuse of this privilege, they furnish no grounds for reversal on appeal. Miller v. Nuckolls, 77 Ark. 64.
For the reasons stated the judgment is reversed, and the cause remanded for a new trial. | [
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Him,, C. J.
Grimmett was short in his accounts as collector of Columbia County, and, in order to secure funds, executed a note, secured by real estate mortgage, for $2,100, to Brewer and Shannon. Brewer assumed Shannon’s share, and afterwards assigned the note, and this is a suit by the representative of the assignee to recover a balance on the note, and to foreclose the mortgage. Grimmett pleaded payment. Two questions are presented on appeal. The first are two items claimed as credits by Grimmett and rejected by .the chancellor.
Various notes and accounts of Grimmett’s were turned over to Brewer, and those which were paid were credited in the judgment, but these two were not shown to have been paid, and Grimmett insists that he should have credit because he says that they were accepted as payment pro tanto. But there was no definite evidence of a novation. A mere statement that he so understood it is not sufficient to overcome the finding of the chancellor treating them as collateral, which the circumstances justified the court in doing. Practically all the credits contended for, amounting to nearly $1,000, were allowed. Grimmett has no ground of complaint on this score.
The. second question is as to an accord and satisfaction. Grimmett testifies, and he is corroborated by others, that, he offered Brewer four lots in the town of Buckner in settlement of the balance of the mortgage debt, and that, after viewing them, Brewer agreed to accept two of them in satisfaction of the residue of the debt. There are circumstances tending to prove that this particular debt was not settled when Brewer died; but, accepting Grimmett’s version of the facts, still he can not recover. There is no evidence of the execution of this agreement, no deed is shown, no release of the mortgage, no surrender of the note. Grimmett continued to pay taxes on the property. The burden was upon Grimmett to prove, not only the agreement to accept these lots in satisfaction of the mortgage debt, but an execution of the agreement. Judge Thompson in a recent article on accord and satisfaction thus states the law: “To constitute' a bar to an action oh the original claim or demand, the accord must be fully executed unless the agreement or promise, instéad of the per formance thereof, is accepted in satisfaction.” 1 Cyc. 313-314. This principle has had frequent application in this State. Ballard v. Noaks, 2 Ark. 45; Pope v. Tunstall, 2 Ark. 209; Crary v. Ashley, 4 Ark. 203; Levy v. Very, 12 Ark. 148.
The judgment is affirmed. | [
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Wood, J.
This is the second appeal. Weil v. Fineran, 70 Ark. 509. On the first appeal the only question presented. was whether the trial court erred in dismissing the action for the alleged reason that it was prematurely brought. On that appeal we held that the suit was not prematurely brought, and that the lower court erred in dismissing the action. The court did not err in treating the action as a suit for breach of the contract, and in refusing to permit appellant to recover on a quantum meruit. Appellant had not elected to treat the contract as rescinded, but, on the contrary, his complaint shows that he was suing for a breach of the contract, and he was asking for damages accordingly. True, we said on the former appeal: “The appellant sued for breach of contract. Fie was entitled to recover on a quantum meruit.” This clause, “Fie was entitled to recover on a quantum meruit,” doubtless misled the learned counsel for appellant to contend below and urge here that appellant should be allowed to recover for the value of his services rendered appellee. But the clause mentioned was an obiter dictum, as the issue presented on the former appeal clearly shows. In the present trial the lower court apprehended the issue.
No error in the court’s rulings is presented by assignments of error 1, 2, 3, 4 and 5 of the motion for new trial. We find no error in the giving of the instructions numbered 2, 3, 4 and 5. The instructions properly presented the law applicable to the issue and the facts in evidence. The court erred, however, in giving instruction No. 6 as to measure of damages. Brodie v. Watkins, 33 Ark. 545. See also, Van Winkle v. Satterfield, 58 Ark. 621, on the issue of the breach of contract and the measure of damages therefor. See Brodie v. Watkins, supra, and Webber v. Davis, 66 Ark. 195, and Thweatt v. Freeman, 73 Ark. 575, on the question of the duty of good faith from the attorney to his client.
The court erred, also, in giving instruction' 7 at the request of appellee. That instruction was objectionable in telling the jury that, if Mrs. Fineran was induced to enter into the contract with Weil by the “false representation about the place of the death of Margaret J. Greenwood,” they might find in favor of appellee. There is nothing in the record to warrant the conclusion that appellee was induced to enter the contract on account of a false representation by appellant of the place of the death of appellee’s mother, Mrs. Greenwood. Under the undisputed facts of the record, such a representation was wholly immaterial, and could not have been an inducement for entering upon the contract. There is nothing to show that appellee acted upon such representation, that she was led by it into a course of conduct that she otherwise would not have pursued, and that was prejudicial to her interests. It is not shown that she was deceived by it, and prevented from getting information that she otherwise might have obtained that would have been beneficial to her interests. On the contrary, the undisputed evidence shows that appellee received the first information of her mother’s death and of her own status with reference to the estate from the appellant. Therefore, we do not see from this record how it was material whether appellee’s mother died in Pine Bluff or Little Rock. But, if it was material, appellee does not show how it was material, and. how she was prejudiced by it. Yet the court treats this specific and particular representation as material in the case. The court points it out, and tells the jury that if it was false and induced the contract appellee was not liable. The instruction in this respect, we think, was highly prejudicial, because the jury may have found in favor of appellant on other alleged matters of false representation, about which there was a conflict in the evidence, and found in favor of appellee upon this one. The vice of the instruction is in giving prominence to this specific representation, and treating it as material to the contract, when there is no proof to show that it was. The question is not even submitted to the jury as to whether it was a material representation or not. The court assumes that it was.
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Sam Bird, Judge.
Appellant Frankie Cobbs brings this appeal from an order terminating her parental rights to her children, D.C. and Q.C. On February 7, 2002, Arkansas Department of Human Services (ADHS) filed a petition alleging that the children of appellant were dependent/neglected in that they were at a substantial risk of serious harm as the result of appellant’s physical abuse of the youngest child, D.C. In addition, the petition alleged that appellant refused to work on a case plan designed to prevent the need for removal of the juveniles and refused to cooperate with the caseworker. The children were adjudicated dependent/neglected, and the court found that the allegations contained in the petition were true and correct and that the juveniles were in need of the services of ADHS. The court also noted that ADHS had opened a protective-services case on the family as a result of the substantiated report of physical abuse ofD.C. At that time, the court noted in its adjudication order that ADHS had attempted to offer services to appellant, including parenting classes and home visits, but that appellant had failed to cooperate with ADHS. The court ordered appellant to complete parenting classes, submit to a psychological evaluation, and complete any recommended treatment.
After an April 18th review hearing, the court entered a review order stating that the juveniles continued to be in need of ADHS services and that ADHS had made reasonable efforts to provide services to achieve the case-plan goal. In the order, the court stated, “The mother has made no contact with the Department and the Department is relieved of providing services to the mother until she appears and requests services. The Department shall provide the mother with visitation if she appears and requests it.” After another review hearing took place, the court entered a review order finding that the children were still in need of ADHS services and should remain in ADHS custody. The court stated that the case plan for D.C. be permanent alternate custody and the case plan for the oldest child, Q.C., be independence. The court then ordered the mother to obtain and maintain stable, appropriate housing; obtain and maintain income sufficient to support the juveniles; complete parenting-without-violence classes; and attend family therapy as requested. The mother was held responsible for the cost of the parenting-without-violence classes.
A permanency planning hearing was entered in February 2003. The court found again that the children were in need of ADHS services and that custody had to remain in ADHS. The mother was again ordered to obtain and maintain stable, appropriate housing; obtain and maintain income sufficient to support the herein juveniles; complete parenting-without-violence classes; and attend family therapy as requested. The mother was held responsible for the cost of the parenting-without-violence classes. The goal remained reunification. Another review hearing was held on May 15, 2003 , at which time the court found that it was in the best interests of the juveniles that the case plan be modified to termination of parental rights and adoption. The court further found that the mother had not made any significant progress on the case plan in that ADHS had had no contact with the mother since February, that appellant had lost her employment and housing, and that appellant had not completed parenting classes or anger-management classes. On June 17, 2003, ADHS filed a petition to terminate parental rights, contending that the juveniles had been adjudicated dependent/neglected and currently resided in the care and custody of ADHS pursuant to court order. Further, the juveniles had resided outside the parental home since March 4, 2002, and despite a meaningful effort on the part of ADHS to rehabilitate the home and correct the conditions that caused the removal, the conditions had not been remedied by appellant.
A hearing was held on the petition to terminate parental rights. Appellant testified that she currently resided at the Sebastian County Adult Detention Center because she was arrested for second-degree battery of her boyfriend. She testified that before being arrested, she had lived for three months in an apartment that was rented in her boyfriend’s name. She stated previous addresses, including various shelters where she had lived, but she had not lived in any one of them for more than a few months. She admitted to being charged with interfering with child custody, a charge of which she was acquitted. She testified' that she had a job from October 2, 2002, through February 13, 2003, when she quit after getting into an argument with her supervisor. She stated that since she quit, she had been supporting herself with food stamps and had no other option but to move to Oklahoma to live with a relative. She admitted that during the time that she was living in Oklahoma, ADHS did not have her address. She also admitted that when she returned to Arkansas, she did not provide ADHS with an address or have contact with ADHS.
She stated that her mother had been raising her children and that her mother died New Year’s Day in 2001, when the children began living with appellant. She noted that she was ordered to pay child support to her mother, but had not done so. She stated that ADHS took custody of the children after there was a true finding of physical abuse of the younger child. She stated that the court had ordered her to attend anger-management classes and parenting classes, and to obtain a stable job and stable housing. But she admitted that she had not done so. She also stated that she was not able to meet the needs of her children because she was “locked up.” However, she stated that when she is released, she would get a job and a stable place to live. She stated that she had not been able to accomplish the court’s orders because she had been going through a lot with her mother’s death. But she stated that she was “past that,” had joined a church, and was ready. She admitted that she had not had contact with ADHS for long periods of time.
She also admitted that her mother had raised the children and had custody of them before she died, and that she (appellant) had only had custody of the children for four months of their lives. She noted that D.C. was eleven years old and that Q.C. was fifteen years old. During the time that her mother had custody of her children, she visited them twice a month, on birthdays, Christmas, and graduations.
She admitted that she had not completed either the anger-management classes or the parenting classes that were ordered. She stated that the caseworker for her case had not given her a referral or told her where to obtain a psychological exam. She asked the judge not to terminate her parental rights because she stated that when she got out of jail, she would get a full-time job and housing. She stated that it was in her children’s best interests for the judge to give her more time to work on her case plan.
Stacy Glass, the caseworker assigned to appellant’s case, testified that in order for appellant to achieve reunification, appellant was ordered to attend parenting classes and anger- management classes, maintain stable housing and employment, obtain a psychological evaluation, and attend family therapy with her children. Glass admitted to not referring appellant for her psychological evaluation because she could not get in contact with her. Glass stated that she did refer appellant to parenting classes and that appellant did not complete those classes. Further, Glass testified that appellant had not maintained stable employment during the course of her case. The only place that Glass knew that appellant had worked since her case was opened was at Atlantis Plastics, and it was only for five months. In addition, Glass testified that appellant had not maintained stable housing.
Glass stated that from March to June 2002, she had no contact with appellant. During that same period appellant did not have contact with her children. When appellant did call in June 2002, she left two numbers, which Glass used in an effort to contact her. Appellant could not be reached at either number. From August 2002 through December 2002, appellant did request visitation with her children. In February 2003, Glass lost contact with appellant and did not see her until the day of the hearing. Glass stated that she had learned that appellant was back in town by reading in the paper that she was in jail. Glass stated that it was her opinion that appellant did not have a relationship with her children. Glass testified that ADHS had offered the following services to appellant: parenting and anger-management classes, visitation with her children upon therapeutic recommendations, and family therapy. She stated that she/ADHS planned on referring appellant for a psychological exam if appellant had maintained contact with her.
Glass stated that reunification did not occur because of appellant’s lack of stability and lack of commitment to her children. She recommended terminating her parental rights. She stated that although both children were in therapeutic foster care, she did not feel that the issues the children had to work through were severe enough to make the children unadoptable.
On cross-examination, Glass stated that appellant had completed three of the anger-management classes. She also stated that appellant might have made some visitation appointments with her children but did not visit often because the children’s therapist did not recommend visits by their mother. Glass stated that on a few occasions, she would go to appellant’s home to take her to visitation, but often she was either not home or too tired to go. Glass stated that appellant had not provided her children with birthday cards, Christmas gifts, birthday gifts, child support, clothing, food, or anything else during the past year. However, appellant testified that she was not allowed to send the children anything. Appellant also stated that she was unaware that she was supposed to be paying child support and stated that during the last hearing, the court had ordered her not to do so.
At the end of the hearing, the court found that ADHS had shown by clear, cogent, and convincing evidence that it was in the children’s best interests that parental rights be terminated. The court found that the children were adoptable and stated that the goal of the case plan should be adoption. It further found that because the children had lived with their grandmother since they were born, appellant had abandoned her rights to the children from the time they were born. In addition, it found that appellant had failed to comply with the case plan in that she had not maintained stable housing or a stable income, she had not completed anger-management classes or parenting classes, she had not participated in family therapy, and she had not visited on a regular basis. The court found that ADHS had provided therapeutic foster care and medical care for the children, had made referrals for appellant for anger-management and parenting classes, had provided visitation arrangements, and had made a referral for family therapy. It found that even though ADHS had provided these services, the mother had not complied. From that order terminating parental rights, appellant brings this appeal.
Our standard of review in termination-of-parental-rights cases is well-settled. In Johnson v. Arkansas Dep’t of Human Servs., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002) the court wrote:
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations.
An order forever terminating parental rights must be based upon clear and convincing evidence that, the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. In addition to determining the best interests of the child, the court must find clear and convincing evidence that the circumstances exist that, according to the statute, justify terminating parental rights. One such set of circumstances that may support the termination of parental rights is that the child has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period out of home be consecutive. (Citations omitted.)
Arkansas Code Annotated section 9-27-341 (Supp. 2003) states:
(b)(1)(A) The circuit court may consider a petition to terminate parental rights if the court finds that there is an appropriate permanency placement plan for the juvenile.
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents, and
(B) Of one (1) or more of the following grounds:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
Appellant argues that based upon the testimony presented at the hearing on the termination of parental rights, she made an effort to complete many of the elements of her case plan. She asserts that for five months, she maintained stable housing and had a stable income. She completed all but two of the parenting classes and half of the anger-management classes. She maintains that she was not allowed to visit her children, but nonetheless inquired about visits and even visited D.C. on one occasion. She maintains that the testimony shows that she made a concerted and successful effort to comply with her case plan during a five-month period even though she was not allowed to visit her children regularly and was suffering from depression following her mother’s death.
We do not find that argument convincing. At the time of the hearing, appellant, who was incarcerated, did not have stable housing or a stable job. She had not completed parenting or anger-management classes as ordered. The children had been out of her home since Feb. 7, 2002, and in ADHS custody for more than one year, giving her plenty of time to meet the requirements of the case plan.
For her second point on appeal, she contends that the court erred in finding that ADHS presented clear and convincing evidence that it made reasonable efforts to provide services to reunify the family because ADHS did not refer her for a psychological evaluation. She contends that it is unknown whether she suffers from severe emotional problems or a diagnosable mental illness because her caseworker did not refer her for a psychological evaluation. She states that it is clear from the testimony that ADHS did not make reasonable efforts to determine whether she suffered from a disability that would require special accommodations.
This argument is also not convincing. At one point early on in the case, April 18, 2002, the court found that ADHS was relieved of providing services to appellant until she appeared and requested services. ADHS continued to try to offer services. She complains that a psychological evaluation was not ordered and that was in error. However, the record is replete with testimony from Glass that had she been able to maintain contact with appellant, Glass was more than willing to make a referral. However, appellant failed to maintain contact with ADHS and ADHS was at a loss as to where to find her. She cannot now complain of the lack of referral when she failed to stay in contact with ADHS so that it could provide services.
For her third point on appeal, she contends that the court erred in granting ADHS’s petition to terminate parental rights because the evidence presented was not sufficient to support a finding by clear and convincing evidence that an appropriate permanency plan existed that the children are likely to be adopted. She states that because the children had many emotional problems and were eleven and fifteen years old at the time of the final hearing, they were not likely to be adopted. She points to several letters from certain counseling services that state that Q.C. had mood swings, depression, anxiety, verbal aggression, difficulty with male relationships, and disrespect to authority in a school setting. In addition, she states that a report from Rivendell Behavioral Health Services found D.C. to be bi-polar and to have oppositional defiant behavior. She argues that these documents support her argument that her children could not be adopted. However, these documents are not abstracted. To the contrary, the record contains Glass’s testimony that, although the children had issues to work through, not only did she believe that they could be adopted, but she believed that there was a possibility that they could be adopted together.
Although we conclude that the trial court’s order terminating Cobbs’s parental rights should be affirmed, we decline to do so “summarily” as ADHS urges us to do. In its responsive brief, ADHS argues that this court should summarily affirm because Cobbs failed to abstract the testimony from any hearings other than the termination hearing. ADHS argues that an abstract of all proceedings in parental-termination cases, including those in the underlying dependency-neglect action, should be made a part of the record on appeal because the evidence adduced at those proceedings could be considered by the trial court at the termination hearing, citing Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). ADHS also points to Ark. Code Ann. § 9-27-341 (b) (3) (B)(ix) (d)(2) as authority for the proposition that the appellant was required to include the entire record of all proceedings in the dependency-neglect action that led to the parental-termination case in her record on appeal.
We do not agree with ADHS’s interpretation of either Wade, supra, or of § 9-27-341(b)(3)(B)(ix)(d)(2). In Wade, an appellant contended that,'in her appeal of the termination of her parental rights to her three children, the supreme court should not consider ADHS’s supplemental record that contained documents and statements presented to the trial court in hearings relating to the earlier dependency-neglect case involving her children. The supreme court disagreed, noting that it had already decided, in granting ADHS’s motion to supplement the record, that the information in the supplemental record was “relevant to the instant appeal in that the proceedings and orders pertaining to the termination of parental rights were in fact a continuation of the original dependency-neglect case.” Wade, 337 Ark. at 361, 990 S.W.2d at 514. We interpret this language in Wade to mean that either party to an appeal from a parental-termination order may include in the record on appeal the record of the underlying dependency-neglect case. Nothing in Wade suggests that the appellant in an appeal from a parental-termination order is required to include, in the designated appeal record, all or any part of the record of the underlying dependency-neglect proceeding.
Arkansas Code Annotated section 9-27-341 (b) (3) (B)(ix) (d)(2) requires that, in cases where the parent was represented by counsel, “the trial court shall take judicial notice and incorporate by reference into the record all pleadings and testimony in the case incurred before the termination of parental rights hearing.” This statute clearly requires that the pleadings and testimony from hearings prior to the termination hearing are to be incorporated by reference into the trial record. There is no language in the statute that can be interpreted to mean that those proceedings must also be designated as a part of the appeal record. Such an interpretation of the statute would be inconsistent with Rules 3(e) and 6(b) of the Arkansas Rules of Appellate Procedure — Civil. Under Rule 3(e), an appellant may designate in his or her notice of appeal only “specific portions” of oral testimony or proceedings as a part of the record on appeal. Rule 6(b) provides that an appellant “shall order from the reporter a transcript of such parts of the proceedings as he has designated in the notice of appeal . . . .” Rule 6(b) clearly permits the appellant in civil cases to determine, at his own risk, what parts of the record in the trial court he considers necessary for the prosecution of his appeal, subject to the right of the appellee to designate additional parts of the record to be included in the appeal record, “if he deems a transcript of other parts of the proceedings to be necessary.”
ADHS also argues that Rule 4-2(a)(5) of the Rules of the Supreme Court requires an appellant to bring up such material parts of the trial court record as are necessary to an understanding of all the questions presented on appeal. It appears that ADHS misreads the rule. Rule 4-2(a)(5) merely provides, in part, that an appellant should abstract “only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the court for decision.” Rule 4(a)(5) does not purport to deal in any way with the question of what portions of the trial court record an appellant is required to designate as his appeal record.
Finally, ADHS argues that, although Ark. R. App. P. 6(b) permits it to supplement the appeal record designated by appellant, there was no record in this case for it to supplement. We disagree. In her notice of appeal, appellant designated “the record, proceedings, and evidence from the September 19, 2003 termination hearing to be contained in the record on appeal.” From the abstract, it is obvious that the record designated included the testimony and other proceedings at the termination hearing. Under Rule 6(b), ADHS was free, within the time specified, to designate such additional parts of the record as it considered necessary, including the record of previous testimony and proceedings in the dependency-neglect case.
Affirmed.
Vaught and Crabtree, JJ., agree.
Although the hearing was held on May 15,2003, the order from that hearing was not filed until June 18,2003, a day after the petition for termination of parental rights was filed by ADHS. | [
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Darrell Hickman, Justice.
Herschel Glen Murry was convicted of killing his mother and sentenced to life imprisonment. He denied the act and the case against Murry was circumstantial. On appeal it is argued the conviction should be reversed because there was no substantial evidence to support the verdict and because the trial court erred in permitting law enforcement officers to testify regarding statements Murry made to them at the initial stage of the investigation.
Actually, Murry convicted himself when he admitted writing a letter that was mailed to the Chief of Police of Ashdown, Arkansas, two weeks after the murder, and when it became obvious that Murry’s first statements to the law enforcement officers could not be reconciled with an autopsy report. Those statements placed him at home with his mother at the time of the murder — not elsewhere as he testified at his trial.
Murry, seventeen, and his mother lived alone in a house trailer in Little River County near the Oklahoma state line. His mother, Nedra Sharp, who had been married twice before and was single at the time, worked as a licensed practical nurse in a nursing home in Ashdown, Arkansas. Murry had finished the eleventh grade in high school, had dropped out of school, and was working as a welder for a local man. He said he got off work about 3:00 or 3:30 p.m. on Friday afternoon, January 11,1980, and went home. Shortly thereafter his mother arrived home. He left to check on some animal traps he had set nearby, went on into Foreman, washed his pickup truck and returned home. He told two officers his mother was eating supper when he left and he specifically recalled she was eating fish sticks. He said he did not eat. He said his mother mentioned that she was going to meet an old friend that evening from Shreveport and he did not recall the man’s full name but thought he was called Lane. He said after he returned from washing his truck, he took a shower, changed his clothes, and left in his mother’s Pontiac Trans Am for Betty’s Place which is located in nearby Oklahoma; Betty’s is a local establishment that sold beer and is frequented by young people. He and a friend played pool, later went to his friend’s home and in the early morning hours of the next day he returned to the trailer. He said the lights were on, the television was on, there was blood all over the trailer, and his mother was missing. He awakened a relative of his who lived about a mile away and brought him to the trailer. The relative called the local deputy sheriff. The deputy got to the trailer at 4:09 a.m. He made a preliminary investigation. He left and then returned with several other officers about 8:00 a.m. The officers questioned Murry about his whereabouts that night, his mother’s activities and friends and what he knew about the possibility of her death. A crime scene investigation was made of the trailer and as one officer testified, it was obvious there had been a fierce struggle. Blood was on the carpet, walls, and door steps; large chunks of hair were found in the trailer and two small pieces of what appeared to be a human skull. The officers were told about the man named Lane and found that name in Mrs. Sharp’s telephone book. Indeed such a man lived in Shreveport who had dated Mrs. Sharp. He was Lane Barmore. He was not her regular boyfriend; he was married, but had dated Mrs. Sharp. Several Arkansas officers went to Shreveport and with Louisiana authorities conducted an investigation. The officers were satisfied that Mr. Barmore had an honest alibi. His vehicle had been searched and inspected. Evidence of blood was found in the trunk and examined but it proved to be animal blood. He was no longer a suspect. It was not until January 24th, two weeks after the incident, that the officers said they suspected Herschel Glen Murry. That day a letter was received at the police department in Ashdown which was printed in large letters. It read:
NEDRA WAS A GOOD PIRSON BUT SHE HAD TO DIE FOR SHE DID NOT WONT TO MARY ME. I LOVED HER BUT I HAD TO DO IT I HAIF TO KILL THE BOY TO HE WILL DIE TO I NO WHERE HE IS
I PUT NEDRA UNDER SOME TREE TOPS ABOUT 1000 YARDS EAST OF THE OLD HOUSE PLACE AT PINNEY
THE BOY IS DID TO
The sheriff’s office called Murry to the office. He was warned of his rights and asked to give them ten samples of his handwriting. The officers directed that he write out the contents of the letter they had received. Murry was not shown the letter; an officer read it to him. Shortly thereafter an expert concluded that Murry had written the letter. Murry was asked about the letter, and after about two hours he admitted he had written it. He said when he was in Louisiana with relatives during the past week, a man stopped him on the road, got in his pickup truck, held a pistol on him and threatened to shoot Murry if he did not do exactly as the man said. He said the man told him he had his mother and unless he did what he was told he would kill her. He could only give a general description of the man but he said the man was very upset and crying. He said he wrote down exactly what he was told and later mailed the letter. He did not tell anyone of this incident. He still denied killing his mother or knowing anything about her disappearance. On the basis of the letter, a search was conducted in the area and eventually the body of Nedra Sharp was found on the 31st of January in a shallow grave near the old Piney Cemetery. It was near an old home place approximately one-half mile from the home of Murry and his mother. The grave was covered with dead pine tree tops and located at the edge of a sage grass field.
Other critical circumstantial evidence in this case was that Murry in conversations with at least two of the officers told them that he left the trailer at 4:30 or 5:00 p.m. to wash the truck and his mother had prepared some fish sticks before he left. He said that his mother ate her supper but that he did not. The medical examiner conducting the autopsy said that because of the weather conditions in January, the body of the deceased was well preserved and he was able to determine that Mrs. Sharp died within thirty minutes or an hour after she ate supper. He said he was able to determine this because he found undigested fish in her stomach and therefore he could estimate accurately her time of death. If Murry’s first version given to the police was true, he was at the trailer when she was killed which would have been well before 8:00 p.m., which was about the time that he left the trailer that evening. He was seen in town washing his truck by his friend, Don Cleghorn. His friend testified that he saw Murry at the car wash between 6:30 and 7:00 p.m., January 11th. He said he saw what appeared to be some tufts of hair that looked like animal hair in the back of the pickup truck which Murry was washing. Murry told him he had killed a deer. Murry testified that he did tell this acquaintance that he had killed a deer, and that he was washing out his pickup truck because he did not want to get caught by the Game and Fish people. Actually, at the trial he said he had not killed a deer that day but had killed one several days before. Murry testified that he was at the car wash between 5:30 and 6:00 p.m.
A distant relative of Murry’s who lived in the vicinity said that he saw Murry as he drove by the trailer that evening shortly between 6:00 and 6:20 p.m.; it was dark. He saw Murry pull out from the trailer in his pickup truck. He said that Murry was going very slowly behind him 75 to 100 yards, and this aroused his attention because Murry usually drove fast. He said that he continued on down the road and after he topped a hill, Murry’s vehicle did not follow him. Between Murry’s place and the hill was the turnoff to the Piney Cemetery. This witness, Mr. John Oglesby, testified that the next day when he learned of the incident and the investigation of the possible murder, he went down the road towards the cemetery. He drove into a sage grass field near the cemetery and saw that tracks had been left by a vehicle which had large mud grip tires and it appeared that a “short gauge” vehicle had made a circle in this field. Murry owned a four-wheel drive Chevrolet Luv pickup truck which had extra large mud grip tires. The evidence showed that his mother’s body was found not many feet from the tracks this vehicle had made as it turned in the field.
The medical examiner who performed the autopsy testified that Mrs. Sharp had been killed by strangulation, numerous knife wounds, and blows to her head. The pieces of skull found at the trailer came from her skull. Her voice box had been crushed in one blow when she was strangled by someone right-handed. Murry was right-handed. She had at one point been impaled on the trailer floor by a large knife. A knife which matched the wounds and cut in the floor was found about twelve feet from the body. It was identified by Murry as an old “antique” knife his former stepfather had found while working on a pipeline. The body was found wrapped in bed clothes and tied with the belt to Mrs. Sharp’s robe. There was a shovel, located outside the trailer where they lived, in a hole which was being dug to house a foundation for a C.B. radio antenna. After the body was found, one of the officers had the shovel examined and in a splintered part of the handle, was found a thread which was proven to be consistent with the fabric of the belt to Mrs. Sharp’s robe. Blood specks found in the cab of Murry’s truck were determined to be human blood.
On the 12th of January when Murry was asked what was missing from the place, he said that the day before he had given his mother two fifty dollar bills which she placed in her purse. The purse was evidently rifled and the money was not there. He said she had a twenty-five caliber automatic pistol which was missing. It was discovered in the pocket of a jacket found in his pickup truck the day after the murder. He said he must have carried it with him to run his traps. He said his cowboy boots with metal toe tips that he wore home from work that day, and the clothes he wore that evening were missing, as well as some bed clothes.
When Murry testified, he denied that he told the officers that his mother had eaten early that evening when he came home. He said she did not eat until he left that evening about 7:45 or 8:00 p.m. This was critical testimony, of course, because the medical examiner testified that she died shortly after she ate. Obviously the jury refused to believe Murry in his sworn testimony and chose to believe that he told the officers the truth on the morning after the murder about when she ate supper. It is also obvious that the jury rejected Murry’s explanation of the letter that described where his mother was buried.
Another bizarre event occurred on June 1, 1980. Murry, while staying alone at the trailer, reported that an unidentified intruder had tried to kill him. He said he was shot at several times and had a bullet hole in the webbing of his left hand and a wound in his shoulder. An officer investigating the incident testified that he was of the opinion it was self inflicted.
It is argued that the State was unable to show Murry’s motive for the killing. There was no evidence that there were serious problems between him and his mother or that Murry had ever been in trouble. While there was no eyewitness to the murder and he never admitted the killing, certainly the evidence in this case would support a finding that Murry killed his mother. The law is incapable of looking into the minds of everyone accused of a crime and determining their exact thoughts, and that is particularly true in a family situation. But the jury could easily conclude that Murry became enraged that evening and murdered his mother. He testified that when he questioned her about the man named Lane she refused to tell him his name and that she had refused at previous times to tell him about things he wanted to know about her work. He admitted that she had struck him before, but that he had never struck her; he said she had cursed him before, but he had never cursed her. He said that, in effect, he had become the head of the household in recent years, taking on the responsibility of doing things that his mother could not do. It was and is, of course, a tragic case, but Murry was afforded a fair trial and there is evidence sufficient to support his conviction.
Where circumstantial evidence, alone, is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Darville v. State, 271 Ark. 580, 609 S.W.2d 50 (1980). Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury. The test on appeal is whether there was substantial evidence to support the jury’s verdict. Substantial evidence was defined in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), as evidence of sufficient force and character to compel a verdict with reasonable certainty. It must compel the verdict without resort to speculation or conjecture. In this case it was for the jury to decide whether Murry was telling the truth about the evening of his mother’s death. There was substantial evidence to support its decision.
Murry argues that the statements that he made to the officers during the two days after his mother was killed were not admissible because he was a suspect at the time and was not warned of his rights before he made these statements. The officers testified that the investigation never focused on Murry until they received the letter and this is borne out by the evidence. When the police found Lane’s name and address in Mrs. Sharp’s telephone book and contacted the Louisiana authorities, an investigation was immediately conducted regarding the possibility of this man’s involvement in the murder or disappearance of Mrs. Sharp. Lane Barmore was brought into the Shreveport police station on the 13th of January and his vehicle was searched. The Louisiana and Arkansas authorities concluded that he had an alibi and could not have killed Mrs. Sharp.
These statements made by Murry were all made on the 12th and 13th of January while an investigation was being conducted to see if, in fact, there was a murder and they were routine questions. He was never placed under arrest or held in custody until the letter was received and at that time he was warned of his rights. The Miranda rights do not attach until an investigation is focused on a suspect. Lascano v. State, 275 Ark. 313, 631 S.W.2d 258 (1982); Miranda v. Arizona, 384 U.S. 436 (1966). We cannot say the trial judge was clearly wrong in finding that the investigation had not focused on Murry at the time he made these statements to the officers. Therefore, they were admissible.
We have reviewed the record and no error is shown by the abstract of other objections.
Affirmed. | [
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Darrell Hickman, Justice.
We grant a rehearing on the issue of the doctor-patient privilege; and, finding no error was committed, affirm the conviction and sentence of Theodis Baker.
Theodis Baker, while in the Pulaski County jail, was treated for gonorrhea by the jail nurse. The trial court admitted into evidence the simple fact that he had been treated for gonorrhea. In our opinion in Baker v. State (May 24, 1982), we held this was error because Baker had “communicated” this information to the nurse and under Ark. Stat. Ann. § 28-1001, Rule 503 (b) (Repl. 1979), the information was privileged. Nothing Baker said to the nurse was admitted; in fact, she could recall no conversation whatsoever.
Rule 503 replaced Ark. Stat. Ann. § 28-607 (1947), which was a much stricter privilege. It read:
Hereafter no person authorized to practic physic or surgery and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. [Emphasis added.]
That essentially encompasses all conceivable information a physician could have about a patient, and it was so construed. National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720 (1922). But Rule 503 (b) does not grant a privilege to “any information,” only “communications” between the patient and doctor, and confidential ones at that. So Rule 503 is not in essence the same as the former law as we acknowledged in our opinion. It is decidedly different; it protects only confidential communications.
Rule 503 specifically includes psychotherapists and licensed psychologists in the category of “doctor.” Obviously what is told to those doctors is more sensitive than that told to average practitioners. So the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence. But the privilege does not go to treatment and that is all the State offered as evidence. In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), a psychiatrist alerted police that a crime had been committed and indirectly enabled them to discover the defendant’s identity. We found no breach of the privilege.
It would be privileged information if Baker had told the nurse in confidence who he had sexual intercourse with, but that is not the question before us. The only issue is whether treatment for gonorrhea is privileged information.
There is no element of self-incrimination involved because Baker voluntarily sought the treatment and thereby subjected himself to the privilege, its protection as well as its limitations. See Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).
In our original opinion we construed Rule 503 so that it has exactly the same practical effect as the repealed statute; that is, it protects any information the physician collects regarding a patient by incorrectly characterizing it as communication. The legislature made a significant change by adopting a more sensible rule and on rehearing we recognize that change. The rule not only applies to criminal cases but civil as well. See Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968).
Actually there has long been serious opposition to the existence of any such privilege. As McCormick says: “More than a century of experience with the statutes [of the states granting the privilege] has demonstrated that the privilege in the main operates not as a shield of privacy but as the protector of fraud.” McCORMICK’S EVIDENCE § 105 (2d ed. 1972). Wigmore’s criticism is in the same vein: “From asthma to broken ribs, from influenza to tetanus, the facts of the disease are not only disclosable without shame, but are in fact often publicly known and knowable by everyone — by everyone except the appointed investigators of the truth,” which, in this case were the jurors. See VIIIWIGMORE ON EVIDENCE § 2380a (McNaughton rev. 1961).
Since we find the trial court made no error in admitting the evidence, the decision on rehearing is affirmed.
Adkisson, C.J., concurs.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
The Court of Appeals reversed and remanded respondent’s conviction for first degree battery. Vowell v. State, 274 Ark. App. 150, 628 S.W.2d 599 (1982). The reversal was based upon two points of statutory interpretation. We granted certiorari pursuant to Rules 29 (6) (a) and 29 (1) (c) to review (1) whether voir dire was conducted in accordance with Ark. Stat. Ann. § 43-1903 (Repl. 1977), and (2) whether there was error in admitting evidence pursuant to Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979).
At trial, the respondent Vowell moved that the State and the respondent voir dire each prospective juror one at a time and, at the conclusion of individual voir dire, the State and then the respondent exercise their peremptory challenges. The trial court denied the motion and ruled that the State could conduct voir dire on three jurors at a time and the respondent could conduct individual voir dire. The Court of Appeals held that § 43-1903 requires that voir dire be conducted upon one prospective juror and that juror be accepted or rejected before the next juror be examined. We reverse the holding of the Court of Appeals because the respondent has shown no prejudice, even though an erroneous voir dire procedure may have been used. In his designation of the record for appeal the respondent specifically excluded voir dire questioning. As a result, we do not know whether either party exercised a peremptory challenge.
Before the State can gain an unfair advantage by the procedure used at trial it must exercise a peremptory challenge. Since the record does not reflect peremptory challenges, if any, the respondent has not demonstrated prejudice. In Arkansas we have long held that a judgment of conviction will be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). That is still the law. We do not reverse for non-prejudicial errors. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). We have often applied this principle to jury selection. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972); Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954). Thus, we reverse the Court of Appeals on this point.
The evidence indicated the respondent had been drinking most of the day and was driving in an intoxicated condition when his automobile crossed the center line of a highway and collided with the victim’s vehicle. The respondent took the stand and testified on direct examination that the wreck was an accident caused by a mechanical malfunction of his automobile. The trial court allowed the State to cross-examine him about three convictions within the past twenty-six months for driving while under the influence of intoxicants in violation of Ark. Stat. Ann. § 75-1027 (Repl. 1977) and allowed the State to cross-examine him about driving while his license was revoked. The Court of Appeals held the questions on cross-examination were improper. We reverse the holding of the Court of Appeals on this issue and hold that the cross-examination was proper.
Rule 404 (b) is as follows:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The respondent was charged with causing serious physical injury “under circumstances manifesting extreme indifference to the value of human life.” Ark. Stat. Ann. § 41-1601 (1) (c) (Repl. 1977). The quoted phrase is not more specifically defined in the Criminal Code, but it is in the nature of a culpable mental state, Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977), and therefore is akin to “intent,” for the proof of which evidence of other offenses is admissible under Rule 404 (b).
Pursuant to Rule 404 (b) the evidence of the three convictions for driving while under the influence of intoxicants and the fact respondent was driving while his license was revoked were admissible on cross-examination to prove the warning quality of the other convictions and to infer that the respondent must have arrived at a mental state inconsistent with mistake and consistent with the culpable mental state of causing serious physical injury “under circumstances manifesting extreme indifference to the value of human life.”
Because of its disposition of the case, the Court of Appeals did not rule on respondent’s point alleging that the trial court committed error in failing to grant a directed verdict. Because of our holding, we have found it necessary to examine the point and we find the evidence was sufficient to support the conviction. We find no reversible error in the other five points raised.
Reversed and the judgment of conviction is affirmed.
Hickman and Purtle, JJ., concur. | [
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John I. Purtle, Justice.
This appeal is from a Pulaski Circuit Court decree which affirmed the ruling of the Arkansas Savings & Loan Association Board in granting a charter to First American Savings and Loan Association. The appellant argues that there was not substantial evidence to support the board’s findings and that the board’s findings as required by Ark. Stat. Ann. § 67-1824 (2) and (5) (Repl. 1980) are not accompanied by concise and explicit statements of underlying facts supporting the findings. We disagree with the appellant on both points.
A group of people in Marion County filed an application with the Arkansas Savings and Loan Board to charter an organization called First American Savings and Loan Association. The Bank of Yellville, Citizens Bank and Trust of Flippin, and First Federal Savings and Loan Association of Harrison protested the petition for a charter. The board held extensive evidentiary hearings and considered a number of depositions at the hearing on April 15, 1980. At the conclusion of the hearing the board voted, 3 to 1, to approve the application. The board made findings of fact which were included in the order of June 18,1980. The protesting parties petitioned for a rehearing which was granted and held on October 10, 1980. An order was issued by the board on December 15, 1980, adopting findings of fact in support of the board’s decision. Appellants appealed to the Circuit Court of Pulaski County which entered an order upholding the board on August 21, 1981. This appeal is from the order of the Pulaski County Circuit Court.
We will consider all of appellants’ points at the same time. The argument is so interwoven that we deem it to be in the interest of clarity and brevity to address them together. In considering cases involving a charter application for a bank or savings and loan association we review the evidence to determine if it is substantial enough to support the decision of the board. Cases supporting this standard of review are: First State Building & Loan Assn. v. Arkansas S. & L. Assn. Board, 261 Ark. 482, 549 S.W.2d 274 (1977); Northwest S. & L. Assn. v. Fayetteville S. & L. Assn., 262 Ark. 840, 562 S.W.2d 40 (1978) and Independence S. & L. Assn. v. Citizens Federal S. & L. Assn., 265 Ark. 203, 577 S.W.2d 390 (1979); Arkansas S. & L. Board v. Central Arkansas S. & L. Assn., 260 Ark. 58, 538 S.W.2d 505 (1976).
We will now consider whether there was substantial evidence to support the decision of the board in the case before us. The present case is not unlike Independence S. & L. Assn. v. Citizens Federal S. & L. Assn., supra, wherein we observed that there was conflicting evidence. We found that some of the board’s specific findings of underlying facts were weak and possibly could not support the board’s conclusion. Nevertheless we held that there was enough substantial evidence to support the finding of the board. The appellants’ dissatisfaction involves whether the board fulfilled its obligation under the provisions of Ark. Stat. Ann. § 67-1824. Appellants argue that there was not substantial evidence to support the board’s findings as required by the above statute. The order of the Arkansas Savings and Loan Association Board dated December 15, 1980, includes the findings upon which the order is based. The findings are contained in ten pages and seem to us to adequately support the conclusion reached by the board. We are not unmindful that the appellants strenuously argue that two of the proposed directors or officers of First American Savings and Loan Association did not meet requirement (2) of Ark. Stat. Ann. § 67-1824, alleging that they fraudulently obtained subscriber signatures. It is true that some eight of the 229 alleged subscribers to the new institution said they had signed the papers without full knowledge of what was contained therein. Admittedly there is some evidence which would support a decision contrary to the action of the board. The board heard and observed the witnesses as they testified. The credibility and weight to be accorded witnesses is the prerogative of the board and not that of reviewing courts.
Appellees have set forth the names and qualifications of the organizers of the proposed institution. Without going into the lengthy details of each of the arguments we note that the board found that all of the organizers were of good character, responsible, and generally fit to perform the duties involved in a savings and loan association. One had been a municipal judge, prosecuting attorney, state representative, and circuit judge. Another had managed a hardware company for 25 years and served as chief of the volunteer fire department and as a member of the Yellville Planning Commission. Additionally, one was president and chief executive officer of the largest industry in the county and had served 11 years on the school board. Another was a practicing dentist who also operated a turkey farm. One owned a real estate company, had served on the County Quorum Court, was president of the local chamber of commerce and was a member of the board of directors of the Bank of Yellville. Finally, one of the organizers had been named man of the year by his local chamber of commerce in 1977. He was one of the organizers of the Citizens Bank of Flippin and had served seven years as secretary and vice chairman of the bank’s board of directors. All of the organizers had other qualifications which we will not mention here. About 16 witnesses appeared on behalf of the appellee savings and loan association at the board hearing and all testified favorably. The witnesses included the Mayor of Yellville as well as the Superintendent of the Yellville and Summit School District. Many other prominent witnesses testified.
There is no requirement that the board’s findings of fact be stated separate from the order by the board. Citizens Bank v. Arkansas State Banking Board, 271 Ark. 703, 610 S.W.2d 257 (1981). The order in the present case was circulated to all board members who were given an opportunity to make any changes in the finding of facts. Since the primary purpose of the underlying facts is to assist the courts in understanding the case, we believe the findings in the present case are adequate for that purpose. Arkansas S. & L. Board v. Central Arkansas S. & L. Assn., 256 Ark. 846, 510 S.W.2d 872 (1974). Without going through each and every requirement which must be found by the board before a charter is granted, we can see from a careful review of the record that the board considered each organizer’s background and determined that none of the proposed directors or officers had an affiliation with another financial institution, or closely related business, which would affect the independence of the proposed association. We recognize that this was a hard fought case and feelings obviously ran high on both sides. Nevertheless, we find there is substantial evidence to support the decision of the board as affirmed in the circuit court.
Affirmed.
Holt and Hays, JJ., not participating. | [
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Per Curiam.
Appellant, Odis Donnell Thomas, by his attorney, has filed for a rule on the clerk.
His attorney, Robert B, Wellenberger, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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John I. Purtle, Justice.
The Pulaski County Chancery Court held appellant liable for damages to appellee resulting from the sale of appellee’s real estate by appellant. The court held that the appellant failed to exercise reasonable care and diligence in not selling the property for a better price than he did. This appeal is from the decree awarding damages to appellee. We disagree with the trial court and reverse and remand the case for purposes stated later in this opinion.
The appellee and her husband purchased 20 acres of land from the trust department of Worthen Bank. The land had been a part of the Gannaway estate prior to the sale by Worthen to the appellee and her husband. Two deeds were executed by Worthen, at the request of the appellee. A house was situated upon a 5-acre tract which was deeded separately from the 15-acre tract of vacant land. The total purchase price was $60,000 but the appellee requested that the sale be broken down to indicate payments of $18,000 for the 15 acres and $42,000 for the 5 acres and the house. Appellee borrowed the full purchase price of the entire tract, $33,600 on the 5-acre tract and $26,400 on the 15-acre tract.
Very shortly after the purchase the appellee contacted the appellant, a licensed real estate broker, about selling the property for her. She had previously worked for appellant as a real estate salesman; however, she had not been active within the past five years. The property was listed for a total sale price of $75,000. The listing also had the two parcels as separate properties and if sold separately the price of the 15-acre tract was to be $35,000 and the 5-acre tract, including the house, was to be $45,000. The listing was dated September 4,1979, following appellee’s purchase of the property on August 21,1979. Therefore, she listed the property at a price of $15,000 or $20,000 above what she had purchased it for two weeks earlier. The record reveals that the appellee called the appellant and asked him to look at the property and handle the sale. The appellant went out and looked at the property and informed the appellee and her husband that in his opinion it was worth between $800 and $1,200 per acre. Neither the appellant nor appellee consulted an appraiser or any other person relative to the value of the property at the time of the listing.
On September 28,1979, appellant procured a prospective buyer who offered $27,500 for the 15 acres. The appellee rejected the offer and countered with an offer of $30,000 for the property. The proposed buyer rejected the counter offer. On October 3,1979, the same buyer renewed his interest and made an offer of $28,500 for the 15 acres which was accepted by appellee and her husband. However, the appellee decided not to close the deal stating that her husband coerced her into agreeing to the sale and later alleging that the appellant failed to represent her properly in the matter. The pur chasers sued for specific performance on November 7, 1979. Several other parties became involved in the litigation but we will restrict ourselves to the pertinent pleadings. The appellee filed a cross-complaint against the appellant alleging he caused her to list and sell the property at a price well below the market value. The appellant counterclaimed for a commission on the sale and alleged the appellee cancelled the listing thereby depriving him of commission on the sale of both parcels of land. The trial was a protracted one and involved more than one chancellor but the final result was that the trial court ruled the purchasers were entitled to specific performance on the contract relating to the 15 acres. At a later date the hearing on the present proceedings was conducted. On March 16, 1981, the special chancellor entered a decree awarding appellee judgment in the amount of $16,500 representing the difference between the sale price of $28,500 and the actual market value which the court placed at $45,000. In addition, the chancellor awarded the appellant judgment of $1,995 as a commission on the sale of the property for which he had decreed specific performance. He also awarded appellee a judgment of $16,500 because of appellant’s breach of duty to exercise reasonable care and diligence on behalf of the appellee.
There was testimony from a number of appraisers and other people relating to the market value of this property on the date of the sale. We do not deem it relevant to set forth this information in view of the decision we have made.
We agree with the parties that this is a case of first impression in this court. Therefore, we must determine the standard to be utilized in situations similar to this. There are three standards of care which we could adopt in this case: first, is the standard for intentional misrepresentation or other acts of fraud committed by the listing agent or his representative; second, that liability would rest on the negligent acts of the broker or his agents; and, third, the theory of strict liability. An annotation in 94 A.L.R. 2d 468 (1964) contains a statement relating to the standard of care with which real estate brokers are charged. It is as follows:
It is the well-established rule that a real-estate broker,
who is not a mere middleman, but is employed by a principal to act as agent in a real-estate transaction, is under a duty to exercise reasonable care and skill, or that degree of care and skill ordinarily employed by persons of common capacity engaged in the same business, and that a broker is liable to his principal for all consequences directly flowing from his failure to exercise such degreee or ordinary care and skill in the handling of the matter entrusted to him.
The above standard of care was adopted by the Arkansas Court of Appeals in Townsend v. Doss, 2 Ark. App. 195, 618 S.W.2d 173 (1981). We think this is the proper standard to be adopted by this court. Therefore, we must examine the record to determine whether the appellant breached his duty of ordinary care and skill in the handling of this sale on behalf of the appellee. The record reveals that the appellee, a former salesman for appellant, initiated the listing in this case. At her request the appellant came to the property and looked at it and informed her he thought it was worth between $800 and $1,200 per acre. There had been no appraisal of the property and none was done at this time. There is no indication that the appellant indicated to the appellee that he knew the real value of the property or that he was working for the interest of any other person. Certainly, if the appellant had assured the appellee that he would get the full market value for the property, he would be held responsible for his representations. That is not the issue. She knowingly and voluntarily listed the property at the prices previously mentioned. She subsequently turned down an offer of $27,500 and made a counter-offer of $30,000. The buyer rejected the counter-offer and nothing further happened until October 3 when the same buyer submitted a second offer for $28,500. The appellant recommended that she accept this price. She did accept the offer but subsequently refused to close with the purchasers. The trial court ordered her to specifically perform the contract and there does not appear to have been an appeal from that decree.
To adopt the standard of care urged by the appellee would in effect put all real estate transactions in limbo for a period of five years. Also, it would render the former seller of this property liable to the owner for the sale in which appellee purchased the property. We think neither the law nor public policy demands such a strict standard.
The question before us is not establishing the fair market value of the property at the time of the sale but whether the appellant breached his duty to the appellee. Under the circumstances and facts of the present case we find neither substantial evidence nor a preponderance of the evidence to support the decree of the trial court. The trial court apparently adhered to the rule which we have quoted above but found from the facts that the appellant had breached his duty of ordinary care and skill in handling the matter entrusted to him. We do not imply by this decision that a broker or salesman would never be liable for failure to determine the fair market value of real estate listed by him for sale. Certainly, the parties may agree or contract to do or not do any number of things. We are stating that the standard of performance under an arm’s length real estate transaction is the standard set out previously. This case is reversed and remanded to the trial court with directions to enter a judgment on behalf of the appellant for $1,995 which represents the sales commission on the 15-acre tract of land.
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Charles B. Roscopf, Special Justice.
This case concerns the constitutionality of the Sunday closing law, Ark. Act 135 of 1965 (codified as Ark. Stat. Ann. Sections 41-3852 through 41-3863 [Repl. 1977]). The Plaintiffs, seven private individuals and five retail establishments residing and doing business in Pulaski County, brought this action to enjoin the Defendants, five competing retail establishments, from engaging in retail sales on Sunday in violation of the act. The attorney general was made a party to this action as required by Ark. Stat. Ann. Section 34-2510 (Repl. 1962). While the Sunday closing law is a criminal law providing criminal penalties, Section 7 declares the Sunday sale of prohibited articles to be a public nuisance subject to injunctive action. The Defendants filed Answers challenging the constitutionality of the act.
After a trial of the issues, the chancellor found that all of the Defendants were in violation of the Sunday closing law and that the law was constitutional. The Defendants were permanently enjoined from selling the prohibited articles on Sunday.
The issue on appeal is whether Act 136 of 1965 is constitutional. The questions presented are (1) whether the Sunday closing law is so vague that it fails to give reasonable notice of the forbidden conduct and therefore violates due process as guaranteed by the U.S. Constitution, Amendment XIV, and the Arkansas Constitution, Article 2, Section 8; (2) whether the classifications within the law deny equal protection as guaranteed by the U.S. Constitution, Article XIV, and the Arkansas Constitution, Article 2, Section 3; (3) whether the enforcement of the act amounted to constitutionally prohibited discriminatory enforcement, and (4) whether the trial court erred by enjoining all of the Defendants’ stores in the County.
It should be made quite clear at this point that Appellants do not invoke the religious establishment challenge which is so often connected with Sunday closing cases.
Before the questions raised are discussed, it is appropriate to consider the presumptions and burdens of proof involved in cases which challenge the constitutionality of legislative acts. This Court has always held that before it may strike down an act of the legislature on the basis of unconstitutionality, it must clearly appear that the act is at variance with the Constitution. An act of the legislature is presumed to be constitutional, and any doubt on the question of constitutionality must be resolved in favor of the act. Davis Warehouse Company v. Bowles, 321 U.S. 144, 64 S. Ct. 474, 88 L. Ed. 635 (1943); Baratti v. Koser Gin Co., 206 Ark. 813, 177 S.W.2d 750 (1944); Bush v. Martineau, 174Ark. 214, 295 S.W. 9 (1927); State v. Moore, 76 Ark. 197, 88 S.W. 881 (1905). Further, the party who alleges the unconstitutionality of a statute has the burden of proving that claim. State ex. rel. Kimberlite Diamond Mining and Washing Company v. Hodges, 114 Ark. 155, 169 S.W. 942 (1914); and Rice v. Lonoke-Cabot Road Improvement District No. 11, 142 Ark. 454, 221 S.W. 179 (1920).
The arguments pressed by the Appellants are not new in the area of Sunday closing cases, and the tests prescribed are well established. Four landmark Sunday closing cases, relied on heavily by the Appellees, were decided by the U.S. Supreme Court in 1961. McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135,6 L. Ed. 2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); and Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2d 536 (1961). A fairly recent scoreboard on Sunday closing cases has been conveniently compiled in Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 417 A.2d 343 (1979).
It will be seen from these cases that in applying the tests and interpreting the cases, each case is controlled to a great extent by statutory development over many decades, sometimes centuries. This accounts, in part, for the wide diversity of results reached in different jurisdictions. State cases decided since McGowan, supra, and the other 1961 landmark cases continue to be divided. This is because the precedential value of these landmark cases is limited by the particular legislative schemes involved. The constitutional challenges made by the Appellants are not new to this court either, and likewise the language of the ordinance or act being considered must be carefully scrutinized in the process of case interpretation.
Sunday closing laws have their roots in the very earliest stages of human history. Justice Wood in Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917) recites a classic statement of the evolution of the original Arkansas Sunday closing laws. See, e.g., Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 160 A.2d 265 (1960): Note, “Sunday Closing Laws in The United States: An Unconstitutional Anachronism”, 11 Suffolk U. L. Rev. 1106 (1977).
Contained in our Revised Statutes adopted in 1837 were comprehensive Sabbath Breaking Laws that prohibited not only all sales on Sunday but also all labor on Sunday with some minor exceptions for acts of daily necessity and charity. Rev. Stat., ch. 44, div. 7, Art. II. Justice Wood in Rosenbaum, supra, points out that these Sabbath Breaking Laws are almost a literal copy of an act adopted during the reign of Charles II. Incredibly, these Sunday laws stayed on our books almost unchanged until the labor proscription section (Ark. Stat. Ann. Section 41-3801 [1947]) was repealed by Ark. Act 554 of 1953 and the sales proscription section (Ark. Stat. Ann. Section 41-3802 [1947]) was repealed by Ark. Act 367 of 1957. From 1957 until the enactment of Ark. Act 135 of 1965, Arkansas had no Sunday closing laws applicable generally to the entire state. It is important to note that the Sunday closing laws which were effective in Arkansas from 1837 to 1957 prohibited the retail of “any goods, wares and merchandise” on Sunday with the only exception being “charity or necessity on the part of the customer”. This brief statutory history is included in order that Act 135 may be considered in the proper historical perspective.
We will consider the questions presented in the order set out above. First, we will discuss Appellants’ contention that Act 135 is unconstitutionally vague. The core provision of this act is Section 2 (Ark. Stat. Ann. Section 41-3853 [Repl. 1977]), which provides that it shall be unlawful to sell or offer to sell on Sunday the following commodities: (1) clothing and wearing apparel; (2) clothing accessories; (3) household utensils, glassware and china; (4) home, business or office furniture; (5) mechanical or electrical household or office appliances; (6) hardware, tools and paints; (7) building and lumber supply materials; (8) jewelry, silverware, watches and clocks; (9) luggage and leather goods; (10) musical instruments and recordings; (11) radios and television sets, receivers, record players, recording devices and components and parts therefor; (12) lawnmowers and other manual and power driven outdoor gardening equipment; (13) cameras, projectors and parts and equipment therefor (except film, flashbulbs and batteries); and (14) linens, yard goods, trimmings and sewing supplies.
It is fundamental that a criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Connally v. General Construction Company, 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1925). The rationale behind this rule was clearly expressed in Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972):
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
The most recent Arkansas case involving the point is Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), which reiterates the due process requirements in the criminal law field as in Grayned, supra, and cites Papa Christou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), and Herndon v. Lowry, 301 U.S. 243, 57 S. Ct. 732, 81 L. Ed. 1066 (1937). It is against these basic rules of fair play that Act 135 must be tested.
The facts for the most part are undisputed. The Plaintiffs proved the unlawful sale of prohibited articles and explained the effects on their businesses of such sales on Sunday when.Plaintiffs were closed. They offered excerpts from the minutes of the Board of Directors of the City of Little Rock which instructed the city manager to put blue laws last on the priority list of enforcement. The Defendants offered store managers and clerks to show their inability to identify clearly articles prohibited by the act and to show the pervasive confusion which exists in the interpretation of Section 2 of Act 135. Walter E. Simpson, Chief of the Little Rock Police Department, called by the Defendants, testified that enforcement of the act had been sporadic and that “usually a couple of times a year we take enforcement action”. He confirmed the testimony of other witnesses that identification of prohibited articles had been rendered more difficult since 1977 and 1978 by reason of the development of large full-service stores which sell thousands of different articles. In this connection store managers testified that they had for sale fifty thousand to seventy thousand articles and that only a cursory survey revealed that scores of articles could not be identified as prohibited or permitted. Simpson candidly admitted that only articles in clear violation were purchased when enforcement action was taken and that there were three categories of articles, those clearly prohibited, those clearly permitted, and those not clearly defined as either prohibited or permitted. In the latter category, he stated, were hundreds and hundreds of articles.
From a cursory reading of the fourteen prohibited categories it would seem that a man of common intelligence could steer a safe course on the side of lawful sales, but a studied analysis quickly reveals that the prohibitions are vague and do not meet constitutional standards. Indeed, the act raises more questions than it answers. For example, are yard sprinklers and high pressure hoses within the category “other manual and power driven outdoor gardening equipment”? Can a merchant sell an electronic strobe light for a camera, which performs the same function as a permitted flashbulb? Is a slide viewer within the category of “cameras, projectors and parts and equipment therefor”? Is a non-musical comedy phonograph record within the classification of “musical instruments and recordings”? Is the sale of a toy drum prohibited, even though sales of toys are not? Does “china” include paper, plastic or crockery dishes, or only items (whatever their purpose) made of highly fired translucent porcelain? Are artists’ paints, oils, acrylics, water colors, etc. prohibited under the category “paints”? Does “paints” include wood stains and fingernail polish? Is a portable outdoor barbecue grill, with or without a motor-driven rotisserie unit, within the category of “household appliances”? A fertile mind, with seventy thousand articles to work with and only fourteen categories in which to place them, could no doubt extend this list of perplexities ad infinitum.
It can be seen that public confusion as to the meaning of this act is well justified. That same lack of understanding exists even with law enforcement personnel. If the top law enforcement officer in the largest city in the state cannot definitely identify the prohibited articles, how can it be argued that the act is not vague? Citizens of this state are guaranteed, both under the U.S. and Arkansas Constitutions, the right to clear notice and fair warning of prohibited conduct before they can be subjected to loss of liberty. Act 135 does not satisfy the basic principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be prohibited. From the record herein and from the argument of counsel it would clearly appear that the ordinary citizen is incapable of determining what is prohibited and what is not under Act 135.
Appellees make a vigorous argument that the issues presented in this case have already been decided contrary to the contentions of Appellants in the following cases: H. V. Hickenbothan v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1957); Green Star Supermarkets, Inc. v. Stacy, 242 Ark. 54, 411 S.W.2d 871 (1967); Lockwood v. State, 249 Ark. 941, 462 S.W.2d 465 (1971); Bill Dyer Supply Company, Inc. v. State, 255 Ark. 613, 502 S.W.2d 496 (1973).
Act 135 has been before this court only one time before. Bill Dyer, supra. The issue of vagueness was not considered in Bill Dyer, and the case provides no precedent on this issue. Hickenbothan, Green Star, and Lockwood, supra, had under consideration the early Sunday closing law and city ordinances which provided an entirely different legislative scheme than Act 135. These schemes generally provided for the prohibition of all Sunday sales with certain well-defined exemptions. Such schemes are not vague for they clearly and specifically define the commodity exempted. Act 135 prohibits the sale of fourteen broad categories of articles and then provides certain exemptions. In effect, it creates two classes of exempt articles, those not included in the prohibition and those included in the specific exemptions. This difference, in our view, clearly distinguishes not only the Arkansas cases cited by Appellees but also McGowan, supra. Moreover, the vagueness issue, though discussed in McGowan, was finally not considered because it was not properly raised in the Maryland Court of Appeals.
A statute similar to Act 135 prohibiting Sunday sales of a broad category of commodities was tested for vagueness and found wanting in State v. Target Stores, Inc., 279 Minn. 447, 156 N.W.2d 908 (1968).
The Connecticut and Utah Sunday closing laws were tested for vagueness in State of Connecticut v. Anonymous, 33 Conn. Super. 55, 364 A.2d 244 (1976); State v. Anonymous, 33 Conn. Super. 141, 366 A.2d 200 (1976); and Skaggs Drug Centers, Inc. v. Ashley, 26 Utah 2d 38, 484 P.2d 723 (1971). In these cases the statutes were so riddled with exceptions that the Courts held that they were not sufficiently intelligible to pass the vagueness test.
This court holds that Appellants have clearly demonstrated that Act 135 fails to meet the minimal requirements of due process in regard to vagueness and that both of the evils inherent in vague laws, as mentioned in Grayned, supra, are present in Act 135.
The second question presented is whether Act 135 denies equal protection of the law. This issue was considered by this court in Bill Dyer, supra, albeit perfunctorily. The rules involved in testing Sunday closing laws were fully discussed in the 1961 landmark cases of McGowan, Krown Kosher, Two Guys, and Braunfeld, supra, and have been further developed in the scoreboard of cases referred to in Caldor, supra. As will be seen, state cases go both ways on the equal protection challenge. In Bill Dyer this court found that on its face Act 135 did not contravene equal protection, but held that the constitutional challenge failed for want of proof. In light of the strong presumptions favoring constitutionality, we must likewise hold that Appellants have not clearly demonstrated, to the extent necessary, that Act 135 violates the equal protection clauses of either the U.S. or Arkansas Constitutions.
Chief Justice Warren established the broad perimeters of state discretion in the following language in McGowan, supra\
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the States’ objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
We simply hold on this issue that Appellants have not borne the strong burden required of them sufficient to overturn Act 135.
In light of our conclusion that Act 135 is unconstitutionally vague, it is not necessary for us to address questions 3 and 4 raised by the Appellants. Act 135 contains a severability clause, but we find that all of its provisions are so mutually connected with and dependent on Section 2 that the legislature would not have adopted the residue independently. The act is not severable and the entire act must fall on account of the invalidity of Section 2. Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975); Borchert v. State, 248 Ark. 1043, 460 S.W.2d 28 (1970).
For the reasons stated, the Decree of the Chancery Court is reversed and the action remanded with directions to enter a Decree in accordance with the views herein expressed.
Reversed and remanded, with directions.
George Rose Smith, J., not participating. | [
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Robert H. Dudley, Justice.
The principal issue in this complex case is whether there was a claim of the debtor’s homestead exemption which would allow title to real estate to be conveyed free of a judgment lien. In January, 1978, Patricia Stanley filed suit for divorce against Harvey Stanley. They agreed to sell their home in Pulaski County, which they owned as tenants by the entirety, and the proceeds of the sale were to be paid into the registry of the court for division. On January 29, 1979, Harvey Stanley vacated the home and since then has not occupied it. On February 12, 1979, appellee Frances Hayes obtained a judgment in Pulaski County against only Harvey Stanley in the amount of $12,755.95. Judgment was entered the same day and Harvey Stanley did not appeal. Thus a judgment lien was created. Harvey Stanley has never claimed the judgment debtor’s homestead exemption from the judgment lien.
Meanwhile, Patricia Stanley and the two minor children occupied the home. On February 21, 1979, the Stanleys executed a contract for the sale of their home and agreed to withhold $10,000 from the proceeds of the sale for the court to divide. The remainder of the net proceeds were to be divided equally. On March 20, 1979, the court in an interlocutory decree approved the agreement and, on the same day, the Stanleys conveyed the property by warranty deed to appellants James R. and Jeanette Morrison. Patricia Stanley in the warranty deed released her homestead rights in the lands.
On April 4, 1979, appellee Frances Hayes filed a writ of garnishment on the court clerk, who was withholding $10,000 from the sale of the property. Subsequently half of the money was paid to Patricia Stanley and the other half was paid to appellee Frances Hayes, the judgment creditor.
Next, appellants James R. and Jeanette Morrison conveyed the property by warranty deed to appellants Robert A. and Marsha Elliott who mortgaged the property to appellant Arkansas Savings and Loan Association who, in turn, assigned the mortgage to appellant Worthen Bank and Trust Company. Appellee Frances Hayes, the judgment creditor, then commenced this action by seeking to foreclose her judgment lien against the property for the balance of the judgment. Appellants Robert A. and Marsha Elliott wanted to sell the property but found the litigation to be a severe obstacle. They did not want to wait on a final decree and so they impleaded $10,000 and in their petition stated:
Petitioners herewith submit $10,000.00 to be paid into the Register of the Court and be substituted for the property of the defendants against which the lien is claimed. All rights and claims, all defenses and encumbrances which any party to the litigation may have against the real estate be transferred and in the same manner be impressed upon the fund placed in the Register of the Court. That the Court order and direct the property herein before described, the property of the litigation, be released and the lien discharged as to this real estate.
The parties subsequently agreed to an order which provides that the $10,000 is substituted for the real estate and is to be treated in the same manner as if it were real estate.
Appellants, who are subsequent purchasers and mortgagees argue they are entitled to assert the homestead exemption of the Stanleys. The trial court denied the homestead exemption and held that the judgment lien was a valid first lien on the $10,000.00. We reverse.
The sale of a homestead can convey title free of a judgment lien in existence at the time of the sale, Stanley et al v. Snyder et al, 43 Ark. 429 (1884), and it is well established that as to a homestead there are no creditors. White v. Turner, 203 Ark. 95, 155 S.W.2d 714 (1941). Once the property is occupied as a homestead nothing more need be done to give the debtor the right to claim the personal privilege against a judgment creditor’s sale. Snider et al v. Martin, 55 Ark. 139, 17 S.W. 712 (1891). Atone time, in order to claim the homestead exemption, the judgment debtor was compelled to file a schedule of the property claimed and have the clerk issue a supersedeas staying the sale under execution. Norris et al v. Kidd, 28 Ark. 485 (1873). Today the judgment debtor does not lose the right to claim the exemption by the failure to claim the homestead before sale, but instead may wait until suit is brought before asserting his exemption. Ark. Stat. Ann. § 30-210 (Repl. 1979); Davis v. Day, 56 Ark. 156, 19 S.W.2d 502 (1892). However, once putting the debtor’s homestead right at issue, the burden of proof is on the one claiming the right to the exemption. Chastain v. Arkansas Bank & Trust Co., 157 Ark. 423, 249 S.W. 1 (1923). For an excellent comment on the subject see Pryor, Establishment of the Homestead Exemption in Arkansas, 9 Ark. L. Rev. 37 (1954).
Harvey Stanley did not, and does not now, seek to exercise his right against execution. Thus his right to the exemption has now been forfeited. Snider et al v. Martin, supra. The appellants, who are subsequent purchasers and mortgagees, cannot claim the judgment debtors’ right to the exemption because it is a personal right which must be exercised by the party who seeks its benefits, Jones v. Thompson, 204 Ark. 1085, 166 S.W. 1036 (1942). However, appellants correctly contend that Patricia Stanley has claimed the right of exemption. She was entitled to the exemption for when a husband refuses or neglects to claim the homestead as exempt, the wife may do so. Section 30-210, supra; Hollis v. State, 59 Ark. 211, 27 S.W. 73 (1894). It is not disputed that the home was her homestead and that she claimed it as such. Therefore, the sale of the homestead conveyed title free of the judgment lien which existed at the time of the sale. Stanley et al v. Snyder et al, supra. The trial court erred by allowing foreclosure of the exempted homestead.
Reversed. | [
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Steele Hays, Justice.
Appellant was convicted of a violation of Ark. Stat. Ann. § 41-2206 (5) (i) (Repl. 1977), receiving stolen property having a value of more than $100 but less than $2500. As a habitual offender he was sentenced to 20 years in prison. For reversal, he argues there was insufficient evidence to justify a finding the property had a value in excess of $100; that the trial court should have granted his motion for a directed verdict and should have declared a mistrial. We find no error and affirm the judgment.
Around 4 p.m. on October 29, 1980, Mr. Harold Walls discovered that his home at 2627 Louisiana Street, Little Rock, had been burglarized. A number of articles were missing, including three pieces of CB equipment: a Royce Base Station, a TGAD-104 microphone and a power supply. At about 5 p.m. Officer J. E. Chandler of the Little Rock Police Department stopped a Ford station wagon on West 10th Street for an expired license tag. The vehicle was occupied by appellant and his brother. Appellant was arrested on a warrant for another charge and the station wagon was impounded. Among its contents were the three articles of CB equipment; they were inventoried and stored in the property room at the police department. Appellant was subsequently charged with theft by receiving.
At trial appellant stoutly denied knowing the equipment was in the car and relied in defense on the testimony of Christopher Pickens that Pickens had won the CB equipment earlier that day in a dice game on the corner of 29th and Cumberland. Pickens explained that he had put the articles in the station wagon after winning them but had forgotten to take them when appellant dropped him at his house. The j ury verdict resolved these disputed facts in favor of the State.
First, appellant contends the evidence was not sufficient to establish a value in excess of $100. The argument cannot be sustained. The owner testified the equipment had a total value of $240; that he had bought the items new some two years earlier, paying $149 for the Royce Base Station, which was on sale, $50 for the TGAD-104 microphone and $20 for the power supply. This evidence stands unchallenged except for the unsupported argument that CB equipment has recently depreciated. However that may be, there was no evidence except that of the owner and we find it more than sufficient to establish a value in excess of $100. Our law recognizes the original cost of property as one factor the jury may consider in determining value, if not too remote in time and relevance. Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972); Cowan v. State, 171 Ark. 1018, 287 S.W. 201 (1926).
Appellant next asserts the State failed to prove he had possession of the property or knew it to be stolen. We disagree. Appellant testified the articles were in a pillowcase in the back of the station wagon and he wasn’t even aware of their presence. Testimony by the State placed the articles in the front of the car on the floor board adjacent to the passenger side. Without more, neither location would seem conclusive as to possession; however, the trial court admitted as voluntary an oral statement by appellant that he had purchased the property from someone named Banks for $20 and that, we believe, provided the connection. It is not necessary that the State prove the accused had actual possession of stolen property, it is enough to prove he had constructive possession or the right to control. Parker v. State, 270 Ark. 3, 603 S.W.2d 393 (1980). Here, appellant’s claim of ownership of property recently stolen provided the necessary element of proof to sustain the charge, absent a credible explanation for its presence.
Finally, it is insisted that a mistrial should have been declared because the jury was told of another warrant for appellant’s arrest. But the argument does not stand up under scrutiny. Officer Chandler testified to having stopped the appellant for an expired license tag and stated simply, “he was subsequently arrested on a warrant and...” Appellant moved promptly for a mistrial which was denied, correctly we think, for the reason that the jury had no way of knowing what warrant the witness was referring to. It is clear from the proceedings in chambers, outside the presence of the jury, that Chandler was referring to a warrant for some offense other than the one being tried (the warrant in this case not having been issued until November 6). Appellant urges strenuously that because the trial judge commented that if subsequent testimony brought out the fact that Chandler was referring to a different offense then appellant would be entitled to a mistrial. Thus, he argues, when witnesses for the State later testified the warrant on the charge of possession of the stolen CB equipment was issued on November 6, the jury could have inferred the warrant Chandler spoke of was not the one for which appellant was being tried. The argument is untenable. The jury still did not know there were two warrants, as Chandler merely said the appellant “was subsequently arrested on a warrant,” which told the jury nothing of other warrants, even in the light of the later testimony. For all the jury could have known, the warrant Chandler spoke of was the warrant issued in this case. The fact that appellant’s motion for a mistrial was never renewed during the course of trial is an indication that the jury was never apprised by the testimony that more than one warrant existed.
The judgment on the sentence is affirmed.
Purtle, J„ dissents. | [
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John I. Purtle, Justice.
An automobile driven by appellant Tillotson was involved in an accident with a vehicle driven by Mayhew, one of the appellees. The occurrence was on July 9, 1978, and appellant subsequently filed a suit for damages which is not involved in this appeal. On February 13, 1981, the insurance carrier for appellee Mayhew, Farmers Insurance Company, filed a complaint for declaratory judgment in the Second Division of the Pulaski County Circuit Court. The complaint for declaratory judgment named Donnie Edmond Mayhew, Patricia Ann Tillotson, Robert N. Cox and Janeil Cox, his wife, d/b/a Cox Fixture & Supply Company, and Maryland Casualty Company as defendants. On August 31, 1981, Tillotson filed a motion for summary judgment in which she sought a declaration that Farmers Insurance Group and Maryland Casualty Company be jointly declared to afford automobile liability coverage on the vehicle which Mayhew was driving on the date of the accident. On September 15, 1981, defendant Mayhew filed a motion for summary judgment. On September 15,1981, a hearing was held on the various motions for summary judgments. The trial judge issued an order which was filed on September 16, 1981. The court found that the vehicle driven by Mayhew was furnished for his business use all the time and that on some occasions he used it for personal use. The court held that Mayhew fell under the omnibus clause of the policy provided by his employer and was therefore covered under the liability policy issued by Maryland Casualty Company. The court reaffirmed its ruling that the coverage of May-hew’s private vehicle carrier, Farmers Insurance Company, did not extend to the vehicle he was driving at the time of the accident. The result of the judgment was that Maryland Casualty, Cox's liability carrier, had coverage for liability on the vehicle Mayhew was driving and Farmers Insurance, Mayhew’s personal insurance carrier, was not responsible for coverage for this occurrence. Appellant appeals from the foregoing decision. She argues three grounds for reversal in her appeal: (1) the trial court erred in not dismissing the motions for summary judgment filed within ten days of the hearing on the motions; (2) the trial court erred in refusing to grant appellant’s motion for summary judgment; and (3) the trial court erred in granting the motion for summary judgment on behalf of Farmers Insurance. We agree with appellant that Farmers Insurance should not have been granted a summary judgment.
The facts in this case reveal that Tillotson was driving her vehicle in Faulkner County, Arkansas, when a van driven by Mayhew allegedly crossed the center line causing an accident resulting in severe injuries and damages to appellant. It was undisputed that Mayhew had possession of the vehicle he was driving at all times. It was owned by Cox and furnished to him for his regular use in Cox’s business. He was allowed to take the vehicle home at nights and on weekends. At the time of the occurrence in question he was driving the vehicle on a personal errand. The evidence before the court revealed that Mayhew used the Cox vehicle for personal business no more than once a week and possibly as infrequently as once a month. Tillotson filed suit against Mayhew for her damages on October 31, 1979. Robert N. Cox and Janeil Cox, his wife, d/b/a Cox Fixture & Supply Company, were named as additional defendants. We shall refer to them as Cox throughout this opinion. That suit is not involved in the present appeal. It has been put on the back burner, pending resolution of the complaint for declaratory judgment and motions for summary judgments. Farmers Insurance Company filed a complaint for declaratory judgment on February 13, 1981. In the complaint for declaratory judgment Farmers admitted they insured May-hew’s personal vehicle, which was not involved in the accident. They further alleged that Maryland Casualty Insurance Company afforded liability coverage to Cox and that because Mayhew drove the vehicle frequently and regularly the Farmers’ policy did not apply and Maryland Casualty was the only insurance carrier for Mayhew at the time of the accident. On August 31, 1981, appellant filed a motion for summary judgment. Various other motions for summary judgment were filed shortly before the hearing on appellant’s motion on September 15, 1981. All of the motions for summary judgment were denied except that of Farmers which was granted. Some of the motions were not filed until less than ten days before the hearing was set on appellant’s motion.
In view of the decision reached in this case we do not find it necessary to discuss the timeliness of the filing of the motions for summary judgment on behalf of the various parties. This appeal involves only the granting of the summary judgment to Farmers. An order granting a motion for summary judgment is an appealable order. Widmer v. Fort Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W.2d 63 (1968). It is true that appellant’s motion for summary judgment was denied and that the denial of the motion for summary judgment is not an appealable order. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). In view of the fact that appellant was named as a defendant in the suit for declaratory j udgment filed by Farmers Insurance she is entitled to appeal the order granting the summary judgment. At the same hearing on September 15, 1981, the court granted appellant’s motion for summary judgment against Maryland Casualty. The appellant is satisfied with that result and does not appeal from it.
This dispute involves the policy of insurance issued to Mayhew. It appears to be a standard automobile liability insurance policy with stated limits for each coverage includ ing bodily injury and property damage. It is admitted that the policy was in effect at the time of the occurrence here in question. The insuring clause states that the carrier will
. . . pay all damages the insured becomes legally obligated to pay because of: (A) bodily injury to any person, and/or (B) damage to property arising out of the ownership, maintenance or use, including loading or unloading, of the described automobile or a non-owned automobile. (Emphasis supplied.)
Under the definition portion of the policy a non-owned automobile is described as follows:
Non-Owned Automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.
It is clear that the insuring provision of the policy included a non-owned automobile. The vehicle Mayhew was driving was a non-owned automobile. We must now determine whether the non-owned automobile is excluded under the definition portion of the policy. A non-owned automobile is not excluded from the policy except if it is used regularly and frequently by the insured. Therefore, the definition clause requires a detrmination of whether this particular non-owned automobile was regularly or frequently used by the named insured. It is obvious that he regularly and frequently used the automobile in going to and coming from work and while on the job. However, such use is not involved in this particular occurrence. Mayhew was using the van for his own personal use, and the record reveals he made such use of the automobile from one to four times per month. We think the personal usage of the automobile is separate and distinct from the job-related use of the vehicle.
In the case of The Travelers Indemnity Co. v. Hyde, 232 Ark. 1020, 342 S.W.2d 295 (1961), we held that an exclusion for medical coverage while occupying a non-owned automobile, furnished for the regular use of the policyholder, rendered the policy ambiguous and its meaning a question of fact. In Hyde the exclusion was under the exception section of the policy. If it were ambiguous, certainly the present one is at least as ambiguous. In discussing the exclusion of a vehicle furnished for the insured’s regular use, we stated in the Hyde case:
... These provisions of the policy render it ambiguous. •Just what is meant by “for the regular use of either the named insured or any relative?” If “for his regular use” means personal use, it is one thing; if partly for his personal use and partly for the use of the employer, it could mean something else. If the insured was to use it in a certain area for one purpose, and he was injured while on a trip outside that area, for another purpose, then there could be a different meaning. Standing alone the terms of the policy are not sufficient to clear up the ambiguity, and the stipulation is not sufficient to enable the court to say as a matter of law what the ambiguous provisions really mean. .. . Perhaps it can be inferred that exclusive use means regular use. On the other hand, it could be exclusive without being regular. A jury could find that the wording in the policy “for the regular use of the insured” means personal use. This language certainly has that connotation. And the jury could reach the conclusion that the term means “for the benefit of the insured.” If this construction were put on the language by a j ury, then under the facts as set out in the stipulation the insured would be entitled to recover.
We can see from the language quoted from Hyde that this court has held that this same language is so ambiguous as to become a jury question. Many times we have held that if there is any substantial evidence to establish an issue in favor of the claiming party the motion for summary judgment must be denied. Cockman v. Welder’s Supply co., 265 Ark. 612, 580 S.W.2d 455 (1979).
One of the very few cases attempting to define regular and frequent use is that of Alabama Farm Bureau Mutual Casualty Ins. Co. v. Carswell, 374 So.2d 250 (Ala. 1979), wherein “regular use” was defined as “principal use as distinguished from casual or incidental use.” Frequent use was defined as “an often repeated but irregular, casual or incidental use... (Emphasis supplied).” Under the terms of the policy and in accordance with The Travelers Indemnity Co. v. Hyde, supra, and the principle set forth in Carswell we think that Mayhew’s use of the vehicle on personal errands is a proper matter for consideration in this case. The policy obviously excluded coverage while he had regular or frequent use of the vehicle. We hold that this means he was regularly and frequently using the vehicle from the time he left home to go to work until he returned to his home at the end of his work period. The use made thereafter for his personal convenience is the use we are considering at this time. Therefore, applying the definitions set forth in the Carswell case, we can see that the particular use of the vehicle at the time of the occurrence was outside the period when the vehicle was furnished for his regular and frequent use. To say the least, it is as ambiguous as the policy in the Hyde case. We hold that there was and is a genuine issue of fact to be determined with reference to the policy in question.
Under “conditions” set out in the policy, number 13 relates to other insurance. The other insurance provision reads as follows:
With respect to a substitute or non-owned automobile, coverage A, B, F and G shall be excess insurance over any other collectible insurance of any kind available to the insured irrespective of whether such other insurance was obtained by a person other than the named insured.
Therefore, it appears that the Farmers policy coverage is excess to Maryland’s policy in regard to claims arising out of the occurrence here in question. From the language contained in the policy, the provisions for non-owned automobiles would have given Mayhew coverage had he borrowed any other vehicle and become involved in a similar accident.
The case will be reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.
Holt, J., not participating. | [
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Frank Holt, Justice.
The issue in this case is whether the appellant Governor Frank White’s appointment of appellant Raymond Pritchett, confirmed by the senate, to the Arkansas State Highway Commission was contrary to Amendment 42, Ark. Const. (1874), which provides “that no two Commissioners shall be appointed from any single Congressional District.” Shortly after the appointment appellee sought a declaratory judgment that Patsy Thomas-son, an existing member of the Commission, and Raymond Pritchett were both residents of Pulaski County or the same Congressional District. The appellee later filed a motion for summary judgment together with a discovery deposition of Thomasson, a copy of her voter registration card from Cleveland County, an affidavit showing the exercise of her voting rights in that county, her appointment showing her address as Rison, Cleveland County, maps showing the existing Congressional Districts (6) when Amendment 42 became effective in 1952, and the present Congressional Districts (4) following the 1970 census. The appellee took a voluntary nonsuit as to Thomasson. The appellants resisted the motion for summary judgment alleging that factual matters remained in dispute and a hearing on the merits was necessary. Also, they sought dismissal of the action. The trial court granted appellee’s motion for summary judgment, holding that Pritchett and Thomasson were both residents of Pulaski County, which is located in the old (1951) Fifth Congressional District; therefore, Pritchett’s appointment is null and void inasmuch as it contravenes Amendment 42 which was enacted in 1952. The court considered the Congressional Districts, six in number in 1951, “frozen” by that amendment. Hence this appeal.
Appellants first contend the appellee lacked standing to bring this action as he has shown no injury in fact nor alleged grounds sufficient to show he is the proper party to bring this action. Appellee’s complaint states: “The Plaintiff claims standing to seek this declaration as a citizen and taxpayer of the state and as a resident of Northeast Arkansas who is now deprived of representation on the Arkansas State Highway Commission as a result of Governor White’s appointment of Raymond Pritchett to that body.” He further alleged that he was a resident of Independence County which placed him in the old (1951) Second Congressional District and that he (his Congressional District) is without representation. He did not allege nor does he contend that he is entitled as a matter of right or law to have a Commissioner from his Congressional District — he merely argues that he has standing as a citizen and taxpayer to object to the improper appointment of Pritchett. The trial court agreed stating that as a taxpayer, appellee had a right pursuant to Art. 16, § 13, Ark. Const. (1874), to challenge the appointment of Pritchett, who, as a Commissioner, would be responsible for spending tax dollars levied on the people of this state. Art. 16, § 13 provides:
Any citizen of any county, city, or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
In Green v. Jones, 164 Ark. 119, 261 S.W. 43 (1924), we held that under Art. 16, § 13, that each citizen and taxpayer has an interest, where his pecuniary or property rights are involved, in seeing that no administrative board shall discharge its duties in a manner violative of the statute creating it. We feel this reasoning is applicable here. It is clear that the State Highway Commission is entrusted with the authority and responsibility, among other things, of spending large sums of state funds. Therefore, the trial court correctly held that appellee has standing to challenge the appointment.
We next consider and agree with appellants’ contention that the trial court erred in holding that Amendment 42 requires selection of highway Commissioners on the basis of the 1951 Congressional Districts. The trial court’s interpretation of Amendment 42 would require a finding that it was intended to “freeze” the six 1951 Congressional Districts as the relevant boundaries for the selection of Highway Commissioners. Amendment 42 § 2 provides:
Within ten days after the convening of the General Assembly of the State of Arkansas in the year 1953, the Governor, by and with the advice and consent of the Senate, shall appoint five persons who are qualified electors of the State to constitute the State Highway Commission .... The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District.
The Highway Commission established by Amendment 42 is, in a large measure, patterned after the Game and Fish Commission which was established by Amendment 35. Both use Congressional Districts as a criterion in the selection of Commissioners. Congressional Districts are known to change with population fluctuation, and their use insures a periodically updated rough balance of population and geographical considerations. In construing a similar provision in Amendment 35, which is self-executing as is Amendment 42, we said in Drennen v. Bennett, Atty. General, 230 Ark. 330, 322 S.W.2d 585 (1959):
In the oral argument before this Court, appellant made the contention — not contained in the pleadings —that when Amendment No. 35 was adopted in 1944 it ‘froze’ the Congressional Districts insofar as the Amendment No. 35 was concerned. That is to say, appellant argued that the words, ‘Each Congressional District must be represented on the Commission’, meant that each Congressional District as Congressional Districts were constituted in 1945 must be represented on the Commission. We think such contention is unsound for at least two good reasons of statutory construction.
In the first place: constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that such operation was intended (16 C.J.S. 121). If the framers of Amendment No. 35 had intended to say what the appellants now claim, then the framers of the Amendment would have said, ‘Each Congres sional District as now constituted must be represented on the Commission’. The failure to place the italicized words in the Amendment shows the fallacy of the appellants’ argument.
Secondly: we know that when Amendment No. 85 was adopted, there had been, theretofore, a series of Acts changing the Congressional Districts in Arkansas; and if the framers of the Amendment had intended that the Congressional Districts could not be changed, insofar as Amendment No. 35 was concerned, they would have been obliged to say so. By the Act of January 3, 1853, Arkansas was divided into two Congressional Districts; by the Act of April 24, 1873, there were four Congressional Districts; by the Act of March 23,1883, there were five Congressional Districts; by the Act of April 9,1891, there were six Congressional Districts; and by the Act of May 23,1901, there were seven Congressional Districts. So, with a long history of changes in Congressional Districts, it was certainly clear that Congressional Districts would continue to be changed as population requirements rendered such changes necessary or advisable. So the Amendment No. 35 did not ‘freeze’ the Counties comprising the various Congressional Districts.
We feel this reasoning is controlling here and hold that Amendment 42, § 2, did not “freeze” the Congressional Districts as they existed in 1951, but rather it reflects a method and desire of the framers to insure equal representation of the Highway Commission from all parts of the state with an odd number (to avoid tie votes) constituting that membership. Historically, they were aware of the fluctuation in the number of Congressional Districts following each census or every ten years. If they had intended that the Congressional District boundaries be inflexible, even though they historically change, the drafters could have said so or used another method such as dividing the state into geographical areas, which would not be subject to changing boundaries. Arkansas presently has four Congressional Districts and five Highway Commissioners. As the legislature has recently recognized, it would be impossible to comply strictly with § 2 of Amendment 42 requiring that no two members be from the same district, inasmuch as two members of the Commission would certainly have to be residents of the same district. See Ark. Stat. Ann. § 76-201.1a (Repl. 1981) and the preamble of the Act. We take judicial notice of the fact that as the present Commission is constituted all four districts are represented regardless of whether Thomasson is considered to be from Pulaski or Cleveland County. The prohibition against two members serving from the same district cannot control here; that provision, of course, is not stricken and will be effective if Arkansas were to have five or more Congressional Districts.
Since one district of the present four Congressional Districts must always have two of the five members of the Commission, it is irrelevant whether Thomasson is or is not a qualified elector from Pulaski or Cleveland County. Therefore, the appointment of appellant Pritchett is permissible.
Reversed and dismissed.
Purtle, J., concurs.
Hays, J., dissents. | [
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By the Court,
Dickinson, J.
We have given the question the most deliberate investigation; and though, as a general rule, we are not disposed to interfere with the province of the jury, where there is contradictory evidence, yet, in the case before us, we are of opinion that the proof fails to establish the facts of insanity in regard to the slave, and therefore there is no liability resting upon the defendant. It is with, pain and sensibility, that the court feels itself constrained to remark, that whatever seeming wildness and aberration of mind might be perceived in the slave, it is but reasonable to suppose, was caused by grief, and the excessive cruelty, of her owner.
Judgment reversed, and a trial de novo awarded. | [
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By the Court,
Ringo, C. J.
The only question presented by the record and assignment of errors, for the decision of this Court, is, whether the judgment given upon the demurrer to the plea of the statute of limitations, was authorized by law 2 The solution of this question depends upon the construction to be given to the statute of limitations, Rev. St., chap. 91, the 6th sebtion of which, among other things, provides, that “ the following actions shall be commenced within three years after the passage of this act; or, when the cause of action shall not have accrued at the taking effect of this act, within three years after the cause of action shall accrue: First, all actions of debt, founded upon any contract, obligation, or liability, (not under seal), excepting such as are brought upon the judgment or decree of some court of record of the United States, of this, or some other Stale.” These provisions absolutely embrace causes of action of two distinct classes: First, ali actions of debt, founded upon any contract, obligation, or liability, not under seal, except such as are founded upon' the judgment or decree of some court of record in the United States, where the right of action had accrued prior to the taking effect of said statute, in which cases, the right to sue, at any time within three years next after the taking effect of said act, is expressly given; but the right to sue in such cases is, by the terms of the enactment, expressly limited to that period. Second, all actions of debt upon such contracts, obligations, or liabilities, not under seal, except judgments or decrees of courts of record, as aforesaid, where the right of action should accrue after the taking effect of said statute; in whi(ch class of cases, suit must be commenced within three years next after the cause of action accrues. Such we understand to be the express and positive injunctions of the statute, the effect of which, in respect to cases of the first class, is to exclude the plea, where the suit is brought within three years after the act went into operation, notwithstanding the right of action may have accrued more than three years before the institution of the suit. In the present case, a right of action accrued on the contract set forth in the declaration, on the 22d day of September, 1836; and, according to the law then in force, the party invested with such right was at liberty to commence an action at law thereupon, at any time within five years thereafter. Ark. Dig. 381. And therefore the right of action on said contract was not barred by either statute, when this suit was commenced. Consequently, the plea of the defendant, setting forth “ that the said cause of action has not accrued within three years next preceding the commencement of said action,” is wholly insufficient to bar the action; and the declaration being in every respect sufficient, and the action in the name of the plaintiff well conceived, the demurrer of the plaintiff to saifi plea of the defendant, ought to have been sustained, and the plea adjudged insufficient.
Judgment reversed, | [
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By the Court,
Ringo, C. J.
In respect to the discontinuance, it has been repeatedly decided by this court, that a discontinuance as to one defendant, who was du y served with process in time to bind him to appear and answer the action, or subject him to the legal consequences of a judgment by d ifault, upon his failure to do so, would operate as a discontinuance of the whole action; and such, we consider, would have been the legal effect, in this case, if the plaintiff in error had relied upon it, and done no act, subsequently, amounting to a waiver of this objection. This he did not do; but, after the discon, tinuance as to his co-defendant, came voluntarily into court, and entered his appearance to, and defended the action, by praying oyer of the writing sued on, and demurring to the declaration, as he had an unquestionable legal right to do, though he was under no legal obligation whatever, to appear, and no valid judgment could have been given against him, if he had made default. Under these circumstances, he must be regarded as having expressly waived on the record, all objections to the discontinuance, and assented to its proceeding against him alone; and therefore the case, as to him, must be' considered as though he had been separately sued, and had voluntarily appeared to the action, without process. Consequently, the court below did not err in proceeding in the cause against him, notwithstanding the discontinuance as to his co-defendant.
The judgment upon the demurrer was, in our opinion, manifestly wrong. The declaration set out, as the foundation of the action, a promissory note, in writing, bearing date on the 11th day of March, 1841. The note given on oyer bears no date whatever, and therefore docs not support the action, but shows a distinct cause of action, different from the one sued on; and, as the plaintiff was bound to show, on oyer, the instrument sued on, or one corresponding with the allegations in her declaration, and the variance between the two, that is, between the rate described in the declaration and that of which oyer was given, being speedily assigned as a ground of demurrer. The Jaw consideres the failure to do so as a fatal defect in the pleading; or, in other words, as a failure, on the part of the plaintiff, to show, legally, any cause of action whatever, against the defendant. And the objection, that it forms no part of the record, because it is not set out in the defendant’s pleading, is untenable; because, when the instrument, or a copy of it, is filed, on the granting of oyer, it becomes as much a part of the record as if copied into the pleading; and the party so fifing it loses his control over it, and can never afterwards take it from the files without the leave of the court.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The demurrer was correctly overruled ; for the defendants may have adopted the seal as the seal of both. If not, under our statute, the party could not deny it, except by plea, supported by affidavit.
The court, however, clearly erred in giving judgment upon the motion of the plaintiff below, for the amount of the bank notes, as specified in the covenant. Nor does it appear that the defendants waived their right to a jury to assess the damages. On the contrary, they specially except to the court so rendering judgment on the demurrer The action of covenant is for the recovery of damages, for a breach of contract; and the extent of such damages must depend upon the evidence introduced. Current bank notes are not money, and the plaintiff was only entitled to recover the value of the notes at the time they wbre to have been paid. And so this court decided in the case of Mitchell vs. Walker, and Payne and another vs. Rogers and another.
Judgment reversed. | [
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By the Court,
Lacy, JT.
Wheiher the bond produced supported the allegation or not, we do not deem it necessary to inquire.
The plaintiff below, in assigning his breaches, has taken upon himself to allege, that the defendant has collected the money sued for, and he, of course, is bound to prove the averment, as he made it, by his election, material. And that fact has been directly put in issue by the plea of Clemens, which it was error to strike out, as it was a good answer to the declaration.
The admission of the Auditor’s certificate of indebtedness is, certainly, not competent evidence to charge the defendant, or his securities. We have no statutory provision making the certificate evidence, and it is certainly no proof, according to the principles of the common law. It is not the best evidence the nature of the case admits of; which is a universal rule, without exception. Secondary evidence is never resorted to, unless the higher grade cannot be produced; and, even then, it cannot be introduced, unless a proper ground be laid for its admission, showing the destruction or loss of the best testimony. The evidence, to hare substantiated his indebtedness, should have been Taylor’s receipt, on the tax-book, or list transmitted to the Auditor, and for which he stands charged, after deducting the credits of delinquencies, lands stricken off to the territory, commissions, and the like. The instruction of the court was evidently wrong, in deciding that the truth of the breaches was admitted to be proven by the state of pleadings in the cause.
This is unquestionably true, according to the principles of the common law, but our statute has changed the rule upon the subject. Clemens’ plea, as before remarked, was improperly stricken out, which would have put in issue the truth of the breaches; and the plaintiff had no right to recover, unless he proved the collection,, as charged. The seventh section of the act (Rev. St., Chap. 112,) declares, that, where an action is prosecuted, upon a penal bond, for the non-performance of any covenant, the plaintiff shall assign breaches; and, if judgment is obtained upon the demurrer, by confession or default, the court shall thereupon make an order, that the truth of the breaches shall be inquired into, and the damages assessed at the same, or the next succeeding term. This section clearly shows that it was necessary to prove the breaches, as laid.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The decree in this case is evidently erroneous. Whatever parol agreement may have, existed between James and John Sorrell, in regard to the trust, is wholly nugatory as to Hutchinson, who sets up the statute of frauds in his defence. .If the defendant, by his answer, admits a parol agreement, and relies upon the statute, he is fully entitled to the benefit of it. iStory,s Eq. Pl. 590. Reeve vs. Teed, 15 Fes. 375. If a defendant denies an agreement, he need not insist upon the statute. The complainant, in such . case, must produce legal evidence of it. Corine vs. Graham, 2 Paige, 180. Ontario Bank vs. Root, 3 Paige, 481.
It was a good defence for Hutchinson, that he was an innocent-purchaser, for a valuable consideration, without notice. The bill , charges, that he purchased with notice, which the answer expressly contradicts. An innocent purchaser is always protected. Story’s Eq. Pl. 462. 1 Story’s Eq. 75. Whittick vs. Kane, 1 Paige, 202. Garland vs. Rives, 4 Rand. 283. It is clear that the decree was, therefore, erroneous as to Hutchinson.
The answer of James Sorrell admits the statement in the bill, but denies that he was to re-convey. It also admits the trust as charged, and states that ho is ready to account to John’s estate for one-half of the amount of the money for which he sold the land; and such should have been the decree. Hutchinson’s being an innocent purchaser does not discharge James from his liability for the one-half of the amount of the sale to Hutchinson, which he admits to be in his hands.
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By the Court,
Dickinson, J.
Under our statute, the production of the note is evidence of its execution, and the consideration for which it was given, and is full proof of these facts, unless questioned by pleas of nil debet, non est factum, non assumpsit, and the like, supported by affidavit. In this case, the • plea is unsupported by affidavit; consequently, the production of the note itself proves the indebtedness of the defendants, in the manner charged in the declaration.
Judgment affirmed. | [
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By the Court,
Ringo, C. J.
Several questions are presented by the record and assignment of errors; one of which is, that the Court erred in overruling the demurrer to evidence. The argument in support of this objection rests upon the assumption, that the publication charged in the declaration is not in itself libellous, and will not support an action at law, unless special damages be alleged and proved. And a great number of adjudged cases have been cited to show that the language contained in the publication, if uttered verbally, would not, in law, be deemed slanderous, or support an action; and we are urged to. disregard the well-known distinctions between libels and slander, and to hold,' that no action can be maintained for the publication of language which, if only verbally spoken-, would not support an action. We have carefully examined the cases cited, and, upon deliberate consideration, come to the conclusion, that the law, in this respect, is too well established to be now questioned or departed from1. The distinction has been uniformly maintained for ages, in the courts of England, and has been recognized in most, if not all, of the United States. And language, though not actionable, if merely spoken, has, in many cases? béíen adjudged libellous, when written and published.' And the rule appears to be well established, that anjr words, written and published, throwing contumely on the party, or prejudicing him in his employment, are actionable.
That the language used in the publication, upon which this action is founded, is such as to bring the individual, of whom it was published, into contempt, ridicule, and disgrace, and injure him in his employment or trad e,‘ there can, in our opinion, be no doubt. It is, therefore, within the rule above stated, and is actionable, without any allegation of special damages arising therefrom. The testimony proved the publication, by the order of Obaugh, as stated in the declaration, and that Finn was a plasterer by trade, doing business as such, in the city of Little Rock and county of Pulaski. The demurrer admitted the truth of these facts, and they were unquestionably sufficient in law to maintain "the action. And, therefore, there was no error in the judgment of the Court overruling said demurrer.
But it is insisted, that the Court erred in refusing to discharge the jury, on the motion of the plaintiff in error, upon his demurrer to the evidence being filed and received by the Court, and in retaining it until the demurrer was adjudicated and disposed of by the Court, and then suffering them to pass upon or try the issue joined, notwithstanding his interposition of the demurrer to the evidence.
The authorities cited in the briefs, clearly show, that the object and effect of a demurrer to evidence are, to take from the jury, and refer to the Court, the application of the law to the testimony; and, where the testimony is, upon such demurrer, adjudged insufficient in law to maintain the action, it is equally certain, that a final judgment must be pronounced thereilpon in favor of the defendant; and the like judgment must be given for the plaintiff, if the demurrer be overruled, in all cases where the subject-matter of the controversy is such as not to require the intervention of a jury, for the purpose of ascertaining or assessing unliquidated damages. These rules appear to be well settled, and are not questioned by either party in this case.
It is also admitted, that the usual course of proceeding, upon a demurrer to the evidence being filed, is either to take a verdict for the plaintiff, conditionally, and then discharge the jury; or, to discharge the jury before any verdict is rendered, and then dispose of the demurrer; and if, in the latter case, the demurrer should be decided in favor of the plaintiff, and the damages to which he is entitled be un-liquidated, a writ of inquiry is awarded, and another jury impanneled thereupon, to inquire of and assess them. And the latter course of proceeding] upon a reference to the books and cases cited in the ‘briefs, appears to be the most usual; but it is said that either would be regular; and cases are cited, by the defendant in error, to prove that, in some of the American States, a course of proceeding, different from either, has been indulged, and suqh departure therefrom held to be no error. Besides, he insists that it is a mere matter of practice, which’ may be modified or changed by the Circuit Court at will, and so be regulated according to its sense of propriety or convenience. This-argument is plausible; and we have experienced some difficulty in coming to a satisfactory conclusion upon the question. Our deliberations, however, have resulted in the opinion, that, notwithstanding it is in some respects a matter of practice, yet, it is a practice so interwoven with the law, that it can neither be disregarded nor changed at the discretion of the Court. Nor do we consider it any more a matter of mere practice than the filing of the demurrer itself; which the Court, under some circumstances, in the exercise of a sound legal discretion, may qertainly refuse to receive; yet, when the testimony is in every respect certain, or .in writing, the defendant would, as wc apprehend, have a legal right to demur, if he desired to withdraw it from the consideration of the jury. And, in such case, the Court, in, (tie exercise of any discretion with which it is vested, would not be justified in refusing to receive it, or compel the plaintiff to join therein.
It may be regarded as in many respects similar to the right of filing or amending the pleadings in a cause, the admission or rejection of which anciently depended upon the practice of the courts, and was regulated by nothing but their discretion. But many of the rules of practice, so established, have long since become incorporated with the common law, so as to constitute a part thereof — thus forming not merely rules of practice, but constituting principles of law, binding upon the courts as well as the parties, and establishing legal remedies, prescribing-their form and order, as well as the manner of conducting them. Take the order of pleading as an illustration; and inquire by what authority the courts, wherever the common law has been adopted, refuse to receive or regard pleas to the jurisdiction of the Court, or in abatement of the suit, after a plea in bar of the action has been filed. The answer, we apprehend, must be, that the law forbids such defence, after a defence has been interposed in bar of the action; yet, the order of pleading was originally .nothing but the practice adopted by the courts themselves, for convenience and the better administration of justice, which, in the course of time, became parcel of the common .law.' And, therefore, a party failing to observe the order so established, often loses the advantage of a defence, of which he could have availed himself, if he had interposed it at a proper time and in legal form; and so it has been uniformly ruled by this Court. And cases. may be found, where judgments have been set aside, because the established order of pleading had not been observed; the judgment having been given upon some defence, which, according to that order, had been waived, or superseded by the interposition of some defence posterior to it in the legal order of pleading. Yet, this could not be, if the order of pleading depended upon the simple discretion or mere practice of the Court, as contradistinguished from the rules of practice and order of proceeding prescribed by law. Such, also, is the character of the rule which prescribes the order of proceeding upon the filing of a demurrer to evidence; it is a rule of practice established by law, which the Court and parties arc bound to observe. In the present case, the rules of proceeding established in such case, have been entirely departed from, and a course of proceeding, wholly unauthorized by any rule or precedent, has been adopted, with the. sanction of the Circuit Court, without the assent of the plaintiff in error, and in derogation of his legal rights; and, therefore, there is error in the proceeding and judgment against him, of which he may well complain, although it is impossible* to know what would have been the result, if the proceeding had been conducted according to law. He had a legal right to require that it should be so conducted; or, in other words, he was entitled to a legal trial, which was refused him by the Court.
And, therefore, it is unnecessary to determine such other questions asare presented by the record and assignment of errors, as they will probably never arise upon another trial of the case.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The principle has already been decided by this court, in the case of Block vs. Walker, 2 Ark. 4, that, when an assignor assigns a note, all the legal interest vests in the as-signee, end that he alone is entitled to sue, unless the assignor s againi invested with the legal interest by a new assignment or otherwise. As long as the assignment remains upon the note, no proof is competent to show legal interest in another, because under our statute, it is vested in the assignee.
Judgment affirmed. | [
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By the Court,
Lacy, J.
We have looked into the declaration in . this case, and consider it good; the breaches are properly assigned; the sheriff is charged with collecting a certain amount of money, which he failed to pay over. The truth of this breach the plaintiff was bound to prove. It was not necessary to allege the collection of the money, and failure to pay it over. He was answerable, upon the reception of the tax book. That fixed the amount of his responsibility,' which he, in his defence, could lessen, by striking off the credits to which he might, by law, be entitled. In this case, however, by the breaches, the sheriff’s liability is made to depend exclusively upon the collection and failure to pay over. The transcript offered in evidence was, certainly, not sufficient to establish his indebtedness upon this charge. It certainly did not prove that the sheriff had made any collections, or had any moneys in his hands belonging to the county. It would have been proper evidence, if he had been simply charged, upon his reception of the tax book, with the failure to pay over the amount with which he stood charged, a proper ground being laid for the introduction of this secondary grade of evidence, by establishing the fact that the best evidence had been lost or destroyed. It is clear, that'the instructions given and refused are manifestly erroneous. * The court seems to have proceeded upon the mistaken opinion that, under the state of pleadings, the sheriff and his securities were liable upon the reception of the tax book. The defendants only asked the court to instruct the jury that, if he had collected any money, as sheriff, and had failed to pay it over, then he was answerable for that amount, ' and nothing more. This was only requiring the plaintiff to prove her cause of action, as laid, which she was unquestionably bound to do, before she could be ’ entitled to á recovery. The instructions given and those refused, were clearly wrong.
Judgment reversed. | [
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By the Court,
Lacy, J.
This is an action of forcible entry and detainer, commenced before a Justice of the Peace. The proceedings have been exceedingly informal and irregular; those questions, however, we do not deem it necessary to examine or determine. The view we shall take, necessarily cuts them off.
We hold the act of the Legislature, giving to Justices of the Peace jurisdiction in cases of forcible entry and detainer, and regulating its proceedings, to be repugnant to the constitution of this State, and, therefore, of no effect. The grants of that instrument, distributing the judicial power of the State among the several tribunals of justice, gave the jurisdiction in such cases expressly to the Circuit Courts, and excluded it directly from Justices of the Peace.
The constitution declares, that two or more Justices of the Peace shall, individually or jointly, have exclusive jurisdiction in all matters of contract, except in actions of covenant, where the sum in contro-troversy does not exceed one hundred dollars. And, in no case, shall they have jurisdiction to try or determine any penal offence, except when sitting as examining courts, to commit, discharge, or hold to bail. The Circuit Courts are invested with original jurisdiction in all civil cases not cognizable before Justices of the Peace. These clauses are plain and obvious; and they certainly take from Justices of the Peace all original jurisdiction in all actions which are not matters of contract, where the sum in controversy does not exceed one hundred dollars; and, even in matters of contract, in actions of covenant. The object and design of the constitution were, evidently, to give jurisdiction in subject matters of contract, and not to extend that jurisdiction to any other class of cases.
In any other class of cases, the jurisdiction in such actions was expressly given to the Circuit Court. An action of forcible entry and detainer, in no sense of the term, can be said to be a matter of contract. The idea of a contract, so far from entering into, or forming any part of, the action, is expressly excluded by the form and substance of the action. The party's right to recover is based upon the ground of wrong and injury done or accompanied with violence or force. It is an unlawful seizure, on the part of’ the defendant, of the possession of the freehold, or a wrongful detention of that possession. In both cases, the defendant is guilty of violence and force, and, according to the principles of the common law, could be made answerable, as for a penal offence. These positions are incontrovertible; and, as the defendant in the action is not answerable in any contract, of course the Justice of the Peace had no jurisdiction.
Judgment affirmed. | [
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By the Court,
Ringo, C. J.
The return of the officer to the alias execution, shows conclusively, so far at least as it concerns himself or the parlies to the execution, that he had seized thereon certain slaves, the property of the defendant, Webb, which were not sold prior to the return day of said writ, by order of said plaintiff; and, as he has not shown any legal disposition of said property, nor its value, the law presumes it to be still in his custody, and of sufficient value to satisfy the execution; and, so long as the execution and levy thereon remain, and arc neither suspended nor set aside, nor otherwise legally suspended, stayed, or avoided, the judgment upon which the execution issued, must be considered as satisfied, and the plaintiff can only look to the officer and the property seized, to satisfy or pay him the money to which he is entitled, by virtue of the judgment, however irregularly the execution may have issued, provided it be not void; because neither the plaintiff nor the officer can avoid it for that cause; and the officer may well justify any act legally done by him by virtue of its authority; and therefore hi3 duty is the same, so long as (he process is not avoided by the defendant. Now, this alias execution cannot, in our opinion, be regarded as avoid process, and therefore the plaintiff’s right to have the property, taken by virtue of its authority, sold to satisfy it, cannot be questioned, if it is not concluded by some other fact appearing in the case. The property was not sold when, by law, the sheriff was bound to expose it to sale, because, as the sheriff stales in his return, the plaintiff ordered him not to sell it; but his order extended no further; and, therefore, as nothing appears to the contrary, we are bound to presume that the ■ property still remains in the custody of the sheriff, to satisfy the execution; and, as no conflicting claim to it is shown, we consider the law as holding it to satisfy this particular debt, and his legal right to have satisfaction thereof, from the sale of it, as complete, if the debt has not been otherwise satisfied to the plaintiff, nor the judgment legally discharged.
But it is urged, in opposition to the present application, that the entry of satisfaction on the margin of the record of the judgment, although not made in conformity with the statutory provisions on the subject, is, nevertheless, sufficient to justify the clerk in his refusal to issue'the execution on the demand of the petitioner, and must constitute a bar to his right to any execution in the case, until it is set aside by the Circuit Court: and it is said, also, that the Circuit Court overruled the motion of the petitioner to^ vacate the entry, or set it aside, upon a full hearing and consideration of the facts, and that his right to any execution is barred thereby, so long as that decision stands unre-versed, and that this Court has no power to annul the latter nor vacate the former upon this application. To the last proposition we readily accede; but it appears, from the transcript of the record exhibited with the petition, that the motion to vacate or set aside said entry on the margin of the record, purporting to be an entry of satisfaction of said judgment, has never been adjudicated by the Court, but remains upon the record, in nowise overruled or finally disposed of. And it has already been decided in this Court, upon the application of the petitioner for a mandamus to the Circuit Court, that the motion of the petitioner, in that Court, was not for a writ of execution of any character whatever, but simply for an order to the sheriff to sell the property levied on under said alias execution, on five days’ notice; and, although that motion was correctly overruled, the decision upon it surely cannot affect his right to a writ of execution to coerce a sale of the property seized to satisfy the execution, at the time, in the manner, and upon the notice required by law; for, although the property could not legally be sold by him, on five days’ notice, he could lawfully sell it on the first day of the succeeding or any subsequent term of the Circuit Court, upon twenty days’ previous notice thereof, legally given; and this the law binds him to do, if the execution be not otherwise satisfied, or he, in some other manner, legally discharged from the performance of such duty. And where an officer, whose duty it is to sell property seized to satisfy an execution, either omits, neglects, or refuses to make sale thereof, according to law, the rule is understood to be well, settled, that the creditor, whose debt or demand the property was seized to satisfy, may have a writ of venditioni exponas, to compel the officer to discharge his duty, and coerce him to sell the property, or forfeit issues to the amount of the demand. That such is the general rule upon the subject, and such the regular legal course and order of proceeding in such cases, we think there can be no question; nor do we consider the right of the petitioner to proceed in this manner, in the least affected by the entry on the margin of the record of the judgment, because it is not an entry of such a character as to have in itself anylegal operation whatever. It cannot be regarded as a matter of record, or parcel of the record of the Court in the case, because it appears affirmatively to have been made at a time long subsequent to the term in which the judgment was given, and, although made in open Court, is not entered with the proceedings of the Court at the term when it was entered, and therefore is destitute of the judicial sanction of the Court, and entirely divested of the sanctity and verily which the law, from considerations of public policy, attaches to judicial acts and judicial records. Nor can it be regarded as legal evidence of a satisfaction of the judgment; but it does not, in some respects most essential to its validity as the legal evidence of a satisfaction, as prescribed by the statute, conform to the provisions of the statute. Thus, it is especially variant from the statutory provisions on the subject, in not being sighed by the plaintiff in the judgment, nor by the person by whom the acknowledgment was made, nor attested by the Clerk, and it is therefore legally inoperative; at least it cannot, in itself, have the effect of discharging the judgment. Rev. St., Chap. 84, sec. 22, 24.
It is also urged against the present application, that the petitioner has another adequate legal remedy, by which he may obtain satisfaction of his denSand: that is, by proceeding on the delivery bond taken after the levy made upon the original execution; and therefore he is not entitled to the writ now applied for. Whether he has now any remedy upon that delivery bond, 6r not, is a question which we do not consider ourselves called upon to determine, because its decision, either way, could not, as we apprehend, in any manner affect his legal right to have the property, seized upon the alias execution, and remaining in the officer’s custody by virtue of the leyy made under it, sold to satisfy said execution, which, from the faejs shown, appears to remain unsatisfied; for the law surely would not, while this execution, and the judgment under it, are operative, compel him to relinquish and abandon his remedy, already so nearly prosecuted to a satisfaction, not only of the judgment, as it regards the defendant, but also of the execution and demand itself, to the plaintiff, by his actually receiving the amount thereof, and, at this stage of the proceeding, commence and prosecute a new action, for the purpose of accomplishing the same object.
The law, in our opinion, imposes no such hardship and injustice upon judgment creditors; but, in cases situated as this is, invests them with a legal right to complete the execution by coercing a sale of the property seized, and thereby obtaining a satisfaction of the execution, and, ultimately, payment of the demand. By this course of proceeding, a multiplicity of suits, which the law is said to abhor, is avoided, and the rights of each party preserved: besides, the law affords to defendants ample remedy and redress against any plaintiff who shall make, or attempt to make, any unlawful use of its process of execution.
We have, therefore, after a careful and attentive consideration of the whole subject, come to the conclusion that the petitioner has a legal right, under the circumstances of the case, as shown by his petition and-exhibits,'to a writ oí venditioni exponas, to coerce a sale of the property, seized as the property of the defendant, by virtue of his alias execution, which appears to remain in the custody of the sheriff of Chicot county, unsold, and that he has no other adequate legal remedy to enforce the sale, or obtain satisfaction of his said judgment,’ execution, and demand. And, although the propriety of resorting to this Court to compel the ministerial officers of courts of inferior jurisdiction to perform their duties, may well be questioned, yet, as this Court is expressly invested with jurisdiction over such cases, when they are1 properly presented, we do not consider ourselves at liberty to decline its exercise.
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Richard B. Adkisson, Chief Justice.
Appellant brought suit for medical malpractice against appellees, Dr. John Brunner and nurse Virginia Dwire, in connection with the death of Laura Lee Slayton. On appeal from an order of summary judgment in favor of appellees, we reverse and remand.
Slayton was first admitted to Ouachita Memorial Hospital in Hot Springs on August 7,1977, for delivery of a baby by Caesarean section. Complications developed which required further surgery. She was finally discharged on October 21, 1977, with a large abdominal wound in which marlex mesh was sewn to aid in healing. On April 14,1978, she underwent surgery to repair a ventral hernia and to remove the marlex mesh from her abdominal wall. Appellee Brunner performed the surgery and appellee Dwire administered the anesthesia. Almost immediately after the surgery was completed Slayton suffered a cardiac arrest, with resulting brain damage. She died on April 24, 1978.
Dr. John Brunner filed a motion for summary judgment alleging that he was not negligent in the care and treatment of Laura Lee Slayton, deceased. He attached several exhibits to his motion, including affidavits from Dr. Robert Hill and Dr. A. E. Pollard. Both concluded, based on the record, that Dr. Brunner was not guilty of any negligence.
Virginia Dwire, the nurse anesthetist, filed her motion for summary judgment attaching several exhibits to her motion including affidavits from Phyllis Braden, C.R.N.A., and Dr. A. E. Pollard. Both affidavits concluded that Virginia Dwire was not guilty of any negligence in her treatment of Laura Lee Slayton.
Appellant filed a response to appellees’ motion for summary judgment, attaching as an exhibit the affidavit of Dr. Robert King. Dr. King concluded in his affidavit that both Dr. Brunner and nurse Dwire were negligent in their care and treatment of Laura Lee Slayton and that this negligence was the proximate cause of her death.
Appellees argue Dr. King is incompetent to testify because his affidavit does not show that he is familiar with the standard of care of a surgeon or nurse anesthetist in Hot Springs or a similar locality on April 14,1978. This standard is commonly referred to as the same or similar locality rule and is set out in AMI 1501.
In his affidavit Dr. King stated that he is a licensed physician practicing in Lawton, Oklahoma; that he graduated from medical school in 1974; that in 1977 he completed his residency; and that he now specializes in the practice of anesthesiology in Lawton. His affidavit also states that he is aware of the degree of skill and learning ordinarily possessed by surgeons and nurse anesthetists in Hot Springs, Arkansas, in April, 1978.
Lawton, Oklahoma, has a population of 80,000; Hot Springs a population of about 25,000. The two hospitals in Lawton are accredited by the Joint Commission on Accreditation of Hospitals as is Ouachita Memorial Hospital. All three hospitals have board certified surgeons and nurse anesthetists. King stated that he has received patients on a referral basis from rural communities with populations of 5.000 or more and from cities of 150,000 and that he has consulted by phone with physicians practicing in cities of 5.000 to 400,000 in size.
We stated in Gambill v. Stroud, 258 Ark. 766, 551 S.W.2d 945 (1975) that an expert witness in a medical malpractice action does not need to be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert. In White v. Mitchell, 265 Ark. 787, 568 S.W.2d 216 (1978) an orthopedic surgeon, who practiced and taught in Phoenix, Arizona, but was a consultant at a hospital in a town with a population of 4,500 and received referral patients from rural communities, was allowed to testify as to the alleged negligence of a physician in Malvern, Arkansas. Accordingly, Dr. King is qualified to testify in this case.
Appellee Brunner argues that Dr. King, an anesthesiologist, is not qualified to testify as an expert in the specialty of surgery. However, both are medical school graduates licensed to practice in their respective states. Appellant does not allege that appellee was negligent in performing the actual surgical procedure used to repair the ventral hernia and remove the marlex mesh. Negligence is alleged in procedures performed or omitted before and after the actual surgery.
Appellees further argue that the trial court correctly granted summary judgment after finding that no issues of fact were raised because "the record did not disclose any evidence of negligence on the part of Mrs. Dwire or Dr. Brunner as the proximate cause of the death of Laura Lee Slayton.” ARCP Rule 56, Ark. Stat. Ann., Vol. 3A (Repl. 1979) provides for summary judgment if there is no genuine issue as to any material fact as shown by the pleadings and affidavits.
Although two doctors and one nurse who reviewed the record concluded in their affidavits that appellees were not negligent, the affidavit of Dr. King states that after reviewing the complaint, depositions, and records in this case, he found evidence that appellees were negligent. He specifically found evidence of negligence by the fact that appellees failed to make a complete preoperative evaluation of the patient before administering anesthesia and failed to adequately monitor Slayton prior to transferring her to the recovery room. He also found that appellees took improper steps to reverse the effects of the respiratory and cardiac arrest and that the nurse anesthetist failed to properly record the dosage of medication on the anesthesia record.
Based upon the same facts medical experts have arrived at opposite conclusions. Under such circumstances the entry of summary judgment under ARCP Rule 56 was error.
Reversed and remanded.
Holt, J., not participating. | [
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Richard B. Adkisson, Chief Justice.
After a trial by jury, appellants, Willie Earl Johnson and Murphy Carroll, were convicted of aggravated robbery and sentenced to 20 years in the Arkansas Department of Correction. On appeal, both appellants allege that the evidence is insufficient to support their convictions. We affirm.
The evidence, when viewed in the light most favorable to the State, reveals that Joel Sealey, a New Mexico rancher, and his family were spending the night at the Holiday Inn, North Little Rock. During the evening, before retiring for the night, Sealey opened the door of his room to let in cool air. At that time he noticed appellants standing suspiciously off to the side of his door. There was a space between the curtain and the wall through which appellants could have looked into the room. He then placed his loaded revolver on the bed. Later, he looked out the window several times and did not see anyone; so he cracked the door open and sat on the edge of the bed. After a few seconds he again saw appellants and noticed that one of them had a pistol at his side. He grabbed his revolver and jumped up to close the door. Before he could close the door appellant Carroll kicked the door open, stuck a pistol to his chest and said, “Get them up.” Appellant Johnson was in the room, standing behind Carroll. Sealey began shooting at appellants; both were wounded and quickly left the room. Sealey then called the lobby, stating that “somebody had tried to rob us or something.”
Appellants argue that there is insufficient evidence from which the jury could find that the purpose or intent of appellants was to commit a theft as required by our aggravated robbery statute, Ark. Stat. Ann. §§ 41-2102 — 41-2103 (Repl. 1977). There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).
The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Here, there is no evidence that appellants knew any women were in the room; therefore, the jury could have excluded intent to rape. The jury could also have concluded that if appellants had intended to murder Sealey they would not have paused to demand that he raise his hands.
Common knowledge and experience, when considered in the light of the facts of this case, could enable the jury to find that the only purpose appellants could have had in sticking a gun in Sealey’s chest and saying, “Get them up.” was to rob Sealey.
Affirmed. | [
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Per Curiam.
In Rector v. State, No. CR 82-36, the appellant’s brief was not filed when due. His attorney, Ron Heller, obtained two extensions of time and in each instance failed to file the brief. A third request for an extension was denied, for want of any showing of good cause.
Mr. Heller has now filed another motion, stating that he has not been properly diligent, admitting that the complete fault is his, and asking that the court allow the brief to be filed out of time. To deny this motion would as a practical matter establish ineffective assistance of counsel. In accordance with our practice in the corresponding situation when the record is not filed on time owing to the fault of counsel, see Per Curiam order of February 5, 1979, 265 Ark. 964, we shall in this case and similar later cases permit the brief to be filed, publish a per curiam order giving the name of the lawyer, and send a copy to the Committee on Professional Conduct, to be kept in its files for the Committee’s information if a complaint of any kind should later be filed against that lawyer. | [
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Per Curiam.
Appellant, Richard Powell, by his attorney, has filed for a rule on the clerk.
His attorney, Paul D. McNeil, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert H. Dudley, Justice.
Appellants were jointly charged and tried for aggravated robbery and theft of property at a Safeway store in Pine Bluff. While they were jointly charged, tried and convicted, the state’s cases against them are vastly different. We affirm the convictions of appellant Levester Williams, Jr., and reverse and dismiss the convictions of appellant Casell Pridgett.
The evidence established that two men, later positively identified as appellant Levester Williams, Jr., and a third person entered the store on August 25, 1979, around 10:50 p.m. and, after pushing their grocery cart to the checkout stand, at gunpoint forced the employees to open the safe. They then took money and fled from the store.
Just after 10:00 p.m., or approximately 45 minutes before the robbery, a witness saw a white Lincoln automobile headed west at 30th and Hazel Streets going toward the Safeway store which is located at 28th and Hazel Streets. The witness testified that the same car went by the intersection of 30th and Hazel Streets at least three times between 10:00 and 10:30 p.m. The car was driven by an unidentified black man. The witness testified that the car’s license plate number was DZE 050, but the witness was uncertain about the E. Appellant Casell Pridgett, a black male, owned a white Lincoln with the license plate number DZC 050. Five days after the robbery Casell Pridgett’s car was seen on a Piggly Wiggly grocery store parking lot in Stuttgart, which is approximately 40 miles from Pine Bluff. The Stuttgart police stopped the car and found appellant Pridgett, appellant Williams and the other subsequently identified robber in the car along with a fourth person. At trial, Pridgett took the stand and denied any part in the robbery and theft. The jury returned a guilty verdict and sentenced Pridgett to fifteen years in prison for the aggravated robbery conviction and seven-and-one-half years for the theft of property. We reverse and dismiss. Williams was sentenced to twenty years for the aggravated robbery charge and ten years for the theft of property. We affirm.
Pridgett contends that the evidence is insufficient to sustain the verdict against him. We agree. Viewing the evidence most favorably to the state we find no substantial evidence to support the jury verdict. Only two men entered the store and took part in the robbery. They were both identified and Pridgett was neither one of them. There was no proof that the robbers used an automobile in their arrival or their escape. The only evidence positively identifying Pridgett with the crime is his association with the participants at a time, five days, and a place, 40 miles, remote from the offense. This case is wholly different from those cases in which evidence to connect the accused with a crime is his proximity to the scene and timely association with a person involved in a manner suggestive of joint participation. E.g. Vaughn and Wilkins v. State, 252 Ark. 505, 479 S.W.2d 873 (1972), distinguished in Redman v. State, 265 Ark. 774, 784, 580 S.W.2d 945(1979).
The evidence is strong that Pridgett’s automobile was seen three times at 30th and Hazel Streets heading west toward the Safeway store at 28th and Hazel Streets at about the time of the robbery, but there is no proof that Pridgett was driving the car, that an automobile was used in the crimes, or that more than two persons participated in the robbery. The evidence, wholly circumstantial, falls short of establishing anything more than a suspicion of Pridgett’s guilt. The verdict is not supported by substantial evidence and the jury had to reach its conclusion by resorting to speculation or conjecture. When a verdict is based solely upon speculation or conjecture, we reverse. Abbott v. State, 256 Ark. 558, 508 S. W. 2d 733 (1974). Therefore we reverse the convictions and dismiss the charges against appellant Casell Pridgett.
Appellant Levester Williams, who was identified by eyewitnesses as one of the two robbers, contends that the trial court “erred in not excluding the identification testimony and evidence being tainted and again in so doing without an in-camera voir dire of identification witnesses.” There was no motion to suppress the identification evidence nor was there any objection to the identification testimony. The issue was never presented to the trial court, is raised for the first time on appeal, and is not properly before this court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Williams also contends that the evidence is insufficient to sustain the verdicts. There was substantial evidence against Williams since eyewitnesses positively identified him as one of the two armed robbers. The jury chose to believe the testimony was reliable. The assessment of the reliability of witnesses is the very task our system assumes juries can perform. We affirm the convictions of Levester Williams, Jr.
Affirmed as to Levester Williams, Jr.
Reversed and dismissed as to Casell Pridgett. | [
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Per Curiam.
Frank Brown, Jr., by his attorneys, has filed for a rule on the clerk.
His attorneys, Anthony W. Bartels and Jim R. Burton, have attached an affidavit admitting that the record was tendered late due to a mistake on their part.
We find that such an error, admittedly made by the attorneys for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Frank Holt, Justice.
This is an arbitration case. In May, 1980, the appellee contracted to purchase from appellant a quantity of yellow grain sorghum, which appellant expected to grow on his farm during the 1980 crop season. Upon failure to deliver the grain as agreed, the appellee initiated arbitration proceedings, pursuant to their contract, to determine its damages. The appellant responded by filing a petition in chancery court for a stay of arbitration. The appellee filed a counter complaint asking for a mandatory injunction requiring the appellant to submit to arbitration. The court, in dismissing the case, found it did not have jurisdiction to grant a stay, the appellant had an adequate remedy at law, if any, in federal court and denied appellee’s petition to require appellant to submit to arbitration. Hence come this appeal and cross-appeal in which both parties urge that the chancellor had jurisdiction to consider a stay of arbitration.
Appellant contends that our Uniform Arbitration Act, Ark. Stat. Ann. §§ 34-511 — 34-532 (Supp. 1981), gave the chancery court power to stay the arbitration proceedings. However, since that act, until amended in 1981, validates only arbitration agreements with respect to construction and manufacturing contracts, the arbitration contract here is unenforceable. Therefore, since the contract involves only intrastate commerce, the chancellor should enter a stay of the arbitration and leave the appellee to his remedy at law. On cross-appeal the appellee argues that even though our state Uniform Arbitration Act on the date of this contract did not include the subject matter here, the trial court did have jurisdiction, pursuant to the Federal Arbitration Act, 9 U.S.C.A. § 1, et seq., inasmuch as interstate commerce is involved in this transaction. Con sequently, the chancellor has the power to require submission of the controversy to arbitration.
The issue was submitted to the chancellor on a stipulated record which consisted of the pleadings, the written contract which provided for arbitration, and argument per letters to the chancellor. The appellee, whose principal place of business is in Dexter, Missouri, buys grain and sells feed in southern Missouri and northern Arkansas. It has manufacturing .facilities in Dexter, Missouri, and Pocahontas, Arkansas. The contract provided that the appellee would purchase 200,000 pounds of No. 2 yellow grain sorghum at a stipulated price from the appellant, a farmer living near Walnut Ridge, Arkansas. The grain was to be delivered to the appellee’s plant in Pocahontas. Pertinent clauses in the contract provide that:
Seller agrees that no deliveries on this contract will be adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, or is an article or commodity which may not, under provisions of Section 404 or 506 of the Act, be introduced into interstate commerce. . . .
Buyer and seller agree that all controversies between them under this contract be settled by arbitration in accordance with the rules and regulations in the Grain Trade Rules of the National Federal Grain and Feed Association.
Section 1 of the Federal Arbitration Act, supra, reads: “[C]ommerce, as herein defined, means commerce among the several States . . .” Section 2 of the Act reads:
A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
Arbitration is favored by a strong public policy and courts look with favor upon arbitration as an expeditious means of removing contentions from the area of litigation, which is less expensive to the parties and also eases congestion of court calendars. 6 C.J.S. Arbitration § 2. In Franks v. Battles, 147 Ark. 169, 227 S.W. 32 (1921), we said:
It has been said by this court, and by numerous others, that it is the policy of the law to encourage and uphold settlements of disputes in this manner.
Here, when we consider the undisputed facts that appellee’s activities involve transactions in Missouri and Arkansas, together with the recited provisions in the arbitration contract, it appears fair to say the parties’ transactions involved interstate commerce. Therefore, the Federal Arbitration Act is applicable.
We further observe that a state court, as here, has concurrent jurisdiction with the federal courts to enforce rights granted by a federal act unless prohibited from doing so. Duke v. Helena-Glendale Ferry Co., 203 Ark 865, 159 S.W.2d 74 (1942); Wright, Law Fed. Cts. 3d Ed., Ch. 8 (1979); 1 Moore’s Federal Practice § 0.6 [3], p. 237; Claflin v. Houseman, Assignee, 93 U.S. 130 (1876); Mondou v. New York, New Haven & Hartford Railroad Co., 223 U.S. 1 (1912); and McKnett v. St. Louis and S.F. Ry. Co., 292 U.S. 230 (1934).
Here, we find no provision in the Federal Arbitration Act which gives the federal courts exclusive jurisdiction over matters which come within its purview. It follows that the refusal of the chancellor to take jurisdiction of the subject matter was erroneous.
Reversed and remanded on direct and cross-appeal. | [
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Robert H. Dudley, Justice.
Appellee Eddie Lee Small was charged with committing rape upon Enis Robinson on August 11, 1980. The Arkansas Rape Shield Statute, Ark. Stat. Ann. §§ 41-1810.1 and 41-1810.2 (Repl. 1977) prohibits evidence of the victim’s prior sexual conduct unless, upon written motion and hearing, relevancy of the proffered evidence is established and its probative value outweighs its prejudicial effect. At the pretrial hearing appellee offered evidence of prior inconsistent extrajudicial statements about previous acts of consensual intercourse between the prosecutrix and the appellee. The trial court ruled the proof was relevant and its relative probative value outweighed its prejudicial nature. Pursuant to the statute the state takes this interlocutory appeal. We reverse on direct appeal.
At the pretrial hearing defense counsel stated positively that consent by the prosecutrix was not an issue; appellee denies the act occurred and contends the charges are false. We have consistently held that acts of prior consensual intercourse with the accused are admissible only to show that consent may have been given. Eskew & Bolton v. State, 273 Ark. 490, 621 S.W.2d 220 (1981); Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979). Here, consent is not at issue and the prior sexual conduct of the prosecutrix is not relevant to the principal issue. To permit evidence of inconsistent statements about prior sexual conduct, a collateral matter, would rob the statute of its efficacay and thwart the obvious intent of the General Assembly. Therefore, if the state does not raise the issue on direct examination, evidence of prior inconsistent extrajudicial statements regarding previous acts of consensual intercourse is not admissible and we reverse on that point.
Eddie Lee Small, as cross-appellant, argues that the trial court erred in suppressing evidence that the prosecutrix was a prostitute. The trial court correctly ruled that appellee would, under the rape shield statute, be permitted to develop proof of any bias and motive on the part of the prosecutrix. In conjunction with that holding, the trial court sustained an objection, based on hearsay, to testimony that the prosecutrix was a prostitute. None of the witnesses had firsthand knowledge that the prosecuting witness had been a prostitute within the last four years. A ruling on whether testimony is hearsay is not subject to an interlocutory appeal under the rape shield statute and accordingly, we do not consider the matter.
Reversed on direct appeal and the cross-appeal is dismissed. | [
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Richard B. Adkisson, Chief Justice.
A jury awarded appellants, Regana and Derrell Millsaps, $1,300 as damages arising out of an automobile collision in which appellee, Ramsey Rinehart, Jr., was found negligent. The Faulkner County Circuit Court denied appellant’s motion for a new trial, holding the jury verdict was supported by substantial evidence. On appeal, we affirm.
The accident occurred on August 9,1977, in Little Rock as Mr. Millsaps was taking Mrs. Millsaps to her first day of work at Timex Corporation. The Millsapses were stopped in a line of traffic; appellee made a right turn and struck the Millsaps vehicle a grazing blow. Later that day Mrs. Millsaps went to a doctor in Conway, complaining of pain in her back and right arm; she did not see this doctor again.
Several months later she saw two orthopedic surgeons because of pain in her shoulder, back, and neck. Both doctors encouraged Mrs. Millsaps to work and neither recommended surgery.
She first saw Dr. Dornenburg on October 4, 1977, who testified that he diagnosed her as having a possible fracture of her shoulder blade and recurring bicipital tendinitis. He also testified that he had treated Mrs. Millsaps in April, 1977, for pain in her shoulder and arm and an injury to her wrist which she had received while working for Baldwin Piano Company. She saw Dr. Dornenburg only this one time.
On October 28, 1977, she saw Dr. Lester, who testified that when he saw her she did not have bicipital tendinitis and that her shoulder X-ray was normal; however, he did find some degenerative changes and reversal of the curvature in her neck. He prescribed a mild tranquilizer, some pain medication, and certain exercises. Dr. Lester again treated Mrs. Millsaps on April 17,1981, and found her to have some continuing ligament problems in her neck and prescribed a muscle relaxant.
After hearing the above evidence as well as testimony from Mrs. Millsaps’s family and the Timex personnel director, the jury was instructed to consider the nature, extent, and duration of any injury; the pain, suffering, and mental anguish of appellant in the past and future; and the value of any salary lost. The jury then awarded Mrs. Millsaps no damages for anything except her medical expenses for which she received $1,000. Mr. Millsaps was awarded $300 for damage to his vehicle.
When a trial judge denies a motion for a new trial, the only issue on appeal is whether the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Here, although there was evidence which would have justified a larger award, there is substantial evidence to support the award that was given. Mrs. Millsaps’s actual medical expenses totaled $908.50. Much of the testimony concerning the duration and extent of Mrs. Millsaps’s injuries and her pain and suffering came from members of her family, whose credibility was for the jury to determine. Although Mrs. Millsaps did have a job at the time of the accident she had not actually started working. Both doctors who saw her in 1977 testified that she could work, but she did not go back to work until March 8, 1979. Under these circumstances the jury could have concluded that she had not lost any wages. When there has been more than a nominal award by the j ury, as here, a new trial should not be granted solely on the inadequacy of the verdict. McAdams v. Stephens, 240 Ark. 258, 399 S.W.2d 504 (1966).
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
The Employment Security Division denied unemployment benefits to petitioner, Leardis Smith, after finding that he was discharged for dishonesty. After a hearing on the issue the Appeals Tribunal reversed, based on an affidavit of a customer submitted by the employer and the testimony of petitioner and two character witnesses. The Board of Review then reversed the Appeals Tribunal and denied unemployment benefits, basing its decision on a review of the record and an additional affidavit submitted by the employer. The Court of Appeals affirmed. Smith v. Everett, Director of Labor, et al., 4 Ark. App. 197, 629 S.W.2d 309 (1982). We granted certiorari to review the legal basis of the Court of Appeals’ decision in affirming the Board of Review.
Petitioner first argues that the Board of Review's denial of benefits was not supported by substantial evidence because the only direct evidence proving that petitioner was dishonest was by affidavit. Petitioner relies on Woods v. Daniels, 269 Ark. 613, 599 S.W.2d 435 (Ark. App. 1980) which held that hearsay alone was not substantial evidence. However, the Woods decision is contrary to the decision of this Court in Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W.2d 826 (1958), where we held thatalthough the evidence consists of affidavits and certified copies of other decisions it was nevertheless competent and constituted substantial evidence to support the Board’s findings. To the same effect see Richardson v. Perales, 402 U.S. 389 (1971).
Petitioner next argues for reversal that he was denied due process of law because he did not have the opportunity to subpoena or to cross-examine adverse witnesses. Ark. Stat. Ann. § 81-1107 (d) (4) (Repl. 1976) sets out the manner in which proceedings before the Appeals Tribunal and Board of Review shall be conducted:
(4) Procedure. The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties. . ..
The United States Supreme Court, in interpreting the rights of an individual in adjudicatory administrative proceedings, has held that before state granted benefits (welfare) can be taken away the claimant must be given an opportunity to confront and cross-examine adverse witnesses at an evidentiary hearing. Goldberg v. Kelly, 397 U.S. 254 (1970). See also Hannah v. Larche, 363 U.S. 420 (1960) and Richardson v. Perales, supra.
Here, petitioner had no opportunity to subpoena and cross-examine adverse witnesses either at the hearing before the Appeals Tribunal or at the proceeding before the Board of Review. Although the notice informing him of the hearing date before the Appeals Tribunal stated that upon his request witnesses could be subpoenaed, at that time he did not know who the adverse witnesses would be. Petitioner did know who the adverse witnesses were by the time his case was reviewed by the Board of Review; however, he was informed by the Board that a second hearing would not be held and that only affidavits could be submitted.
It is clear that petitioner has not had an opportunity to subpoena and cross-examine witnesses as required by the above cited cases setting forth the minimum requirements for due process of law. Therefore, we reverse the Court of Appeals and remand to the Board of Review for a hearing consistent with this opinion pursuant to Ark. Stat. Ann. § 81-1107 (d) (7) (Repl. 1976).
Reversed and remanded.
Hickman, J., concurs. | [
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Robert H. Dudley, Justice.
Appellant Chester Earl Rhodes and Juanita Carr were charged with capital murder in the April 21,1980 robbery and murder of Roland Kelley in Fayetteville in violation of Ark. Stat. Ann. § 41-1501 (Repl. 1977). Juanita Carr pleaded guilty to first degree murder, received a twenty-five year sentence and testified against the appellant. The first trial ended in a mistrial but the second trial resulted in a conviction with imposition of the death penalty.
The evidence established that Carr, then a 17-year-old prostitute, went to Roland Kelley’s house in late afternoon and engaged in sexual relations. Kelley did not pay and she returned with appellant later that evening to collect from Kelley. Several witnesses saw a black couple walking toward the Kelley house and later saw a black couple leave by way of the back porch. Juanita Carr and appellant are both black. One witness, Beverly Kelley, positively identified appellant as the man she saw with Juanita Carr as the two of them walked toward, and later away from, the victim’s house. Shortly after the couple left the Kelley house, he was found beaten to death. The victim’s wallet and approximately $65 were missing. The wallet was later found in a lot where Juanita Carr stated she had thrown it. Juanita Carr testified that appellant had beaten the victim to death with a board which was found where she stated appellant had thrown it.
We reverse the conviction and remand the case for a new trial because of prejudicial error. That point and those which, though not error, are likely to confront the trial court upon retrial are discussed in this opinion.
Juanita Carr, the accomplice in the capital felony murder, was the direct evidentiary link between the appellant, the murder and the robbery. Her credibility was a key to the state’s case and it was crucial to the appellant’s case that he be allowed to conduct as full an impeachment of the witness’ credibility as the rules of evidence allow. The trial court granted the state’s threshold motion and ruled that the appellant could not cross-examine Juanita Carr about previous incidents of shoplifting. The court ruled the appellant could only inquire about felony convictions within the past ten years. The appellant’s attorney asserted his good faith basis for asking the question and made his proffer by stating “she has pursued ... we know she has pursued a course of conduct over six years involving . . . thefts and devious activities, and the jury in evaluating her credibility should be made aware that she is a devious type of person.” Appellant contends that the trial court erred in improperly limiting his cross-examination under Unif. Rules of Evid. 608 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979). Because of our prior case law we agree and reverse.
Rule 608 (b) provides that “[sjpecific instances of the conduct of a witness ... if probative of truthfulness or untruthfulness” may be inquired into on cross-examination in the discretion of the trial court. Here the instance of conduct sought to be inquired into was shoplifting. In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), we held that a cross-examiner, pursuant to 608 (b), may ask a witness about prior bad acts if that prior bad conduct has a bearing on the witness’ character for dishonesty. We stated that 608 (b) allowed cross-examination about prior bad acts involving theft:
For example, murder, manslaughter or assault do not per se relate to dishonesty. Burglary and breaking and entering would not be such misconduct unless the crime involved the element of theft. We believe that theft, as it is defined in the Arkansas Criminal Code, involves dishonesty.
Shoplifting is a form of theft and according to our language in Gustafson, supra, the cross-examination should have been allowed. Careful examination of the transcript reveals that appellant’s trial attorney relied upon our Gustafson ruling in the preparation of his case. Juanita Carr’s credibility was a key issue and under our prior ruling the jury should have heard cross-examination on this issue. Because we cannot state that the appellant did not suffer prejudice as a result of the ruling we must reverse.
We have devoted much of our time in conference to the interpretation of Rules 608 (b) and 609. These rules deal with attacking or supporting the credibility of a witness by questioning about specific instances of conduct. The rules bar evidence of specific instances of conduct of a witness for the purpose of attacking or supporting credibility with two exceptions:
(1) Specific instances are provable when they have resulted in criminal convictions and meet all of the requirements set out in Rule 609.
(2) Specific instances in which there has been no criminal conviction may be inquired into on cross-examination of the principal witness, or of a witness giving an opinion of a principal’s character for truthfulness, but the cross-examiner may not introduce extrinsic proof of the witness’ misbehavior if the witness denies the event. Rule 608 (b).
We are satisfied that our Gustafson, supra, interpretation of Rule 608 (b) is too broad and we prospectively modify our interpretation of the rule to limit the inquiry on cross-examination to specific instances of misconduct clearly probative of truthfulness or untruthfulness as distinguished from conduct probative of dishonesty. McCormick views misconduct, “such as false swearing, fraud and swindling” as relevant to truthfulness. McCormick, Evidence § 42 at 87 (1954). Weinstein states “Rule 608 (b)) authorizes inquiry into specific instances of misconduct on cross-examination but requires that they must be ‘clearly probative of truthfulness or untruthfulness,’” and gives the following illuminating footnote:
United States v. Fortes, 619 F.2d 108 (1st Cir. 1980) (no abuse of discretion in trial court finding that sale of cocaine was not probative of truthfulness or untruthfulness; court reserved decision on whether a drug transaction might ever be considered probative of a witness’ veracity; though questions which court disallowed about witness’ truthfulness in responding to investigators probing the incident surrounding his discharge as a police officer could well be probative of truthfulness and broad cross-examination of principal witness should be allowed when credibility of witness is central issue, no error where jury had been presented with much other evidence indicating witness’ unreliable character and questionable trustworthiness); United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) (defendant who is lawyer testifying in his own behalf may be cross-examined about suspension from bar pursuant to Rule 608); United States v. Cole, 617 F.2d 151 (5th Cir. 1980) (cross-examination proper concerning submission to former employer of a false excuse for being absent from work); United States v. Rabinowitz, 578 F.2d 910 (2nd Cir. 1978) (evidence of witness’ prior acts of sodomy on young children and consequent psychiatric treatment had too tenuous a bearing on credibility for court to find that trial judge had abused discretion in failing to admit; acts had no relevance to bias on the theory that witness needed to curry favor with DEA since more than five years had elapsed and no charges were pending); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978) (drug transactions do not relate to truthfulness, citing Treatise); United States v. Crippen, 570 F.2d 535 (5th Cir. 1978), cert. denied, 100 S. Ct. 837 (1980) (inquiry as to whether character witness knew that defendant’s firm, an auto-, mobile agency, had routinely turned back odometers; citing Treatise); United States v. Young, 567 F.2d 799, 803 (8th Cir. 1977), cert. denied, 434 U.S. 1079, 98 S. Ct. 1273, 55 L. Ed. 2d 786 (1978) (trial court properly refused to allow defendant to impeach prosecution witness by cross-examining her concerning her alleged offer to pay $10,000 to have her former husband killed; proposed question was not relevant to veracity and honesty and would have been highly prejudicial, citing Treatise); United States v. McClintic, 570 F.2d 685, 690-691 (8th Cir. 1978) (cross-examination about attempted swindle proper); Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975) (in suit to recover for injuries allegedly incurred while in railroad’s employ, court properly admitted employment application on which plaintiff falsely stated he had not received psychiatric treatment within past five years; evidence directly relevant to party’s capacity for truth-telling, citing Rule 608); United States v. Byrne, 422 F.Supp. 147, 166 (E.D. Pa. 1976), modified, 560 F.2d 601 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 890, 54 L. Ed. 2d 796 (1978) (court refused to allow cross-examination as to whether prosecution witness had issued some checks which bounced; court found the matter was not probative of truthfulness since checks often bounce where no criminal intent is involved).
Weinstein, Evidence § 608 [05] p. 608-32.
Weinstein also states at p. 608-34:
Since Rule 608 (b) is intended to be restrictive — and was amended to ensure that it would be restrictively interpreted by trial courts — the inquiry on cross-examination should be limited to these specific modes of conduct which are generally agreed to indicate a lack of truthfulness. The rule should not be broadened to allow questions about behavior which indicates “a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness.” Such an approach paves the way to an exception which will swallow the rule. It is but a small step from there to the hypothesis that all bad people are liars, an unverifiable conclusion which runs counter to the doctrine that everyone is innocent of the particular crime charged until proven guilty.
Thus, in the future with the same set of facts before us, we would hold as stated in United States v. Ortega, 561 F.2d 803 (9th Cir. 1977) that while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness, and cross-examination would not be allowed on specific acts of shoplifting for which there was no conviction.
The policy reasons for our prospective modification are threefold: (1) a defendant stands the possibility of conviction by reputation for unsavory but unrelated acts which have no real bearing on veracity, (2) a basic aim of Rules 608 and 609 is to offer inducements to a defendant to take the stand. Our Gustafson interpretation thwarts this objective, and (3) we desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence. No other jurisdiction has interpreted the Uniform Rules or Federal Rules to allow cross-examination on specific acts of shoplifting.
The prospective application of this rule is to commence with trials had on or after the date this opinion becomes final. However, the prospective ruling will not apply to this case because it is now the law of the case that the evidence is admissible.
Appellant contends that the state’s corroborating evidence, independent from that of accomplice Juanita Carr, is insufficient as a matter of law and therefore the case should be reversed and dismissed. Where the state relies on testimony from an accomplice to support a conviction, that testimony must be corroborated by other evidence which tends to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). It is unnecessary that the evidence be sufficient to sustain the conviction but the evidence must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). This court reviews the sufficiency of the evidence by the test of whether the verdict of guilt is supported by substantial evidence, which means whether the jury could have reached its verdict without resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Where circumstantial evidence is utilized, all facets of the evidence can be considered to constitute a chain sufficient to present a question for the resolution by the jury as to the adequacy of the corroboration. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, cert. den. 429 U.S. 846 (1976). The court does not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Cassell v. State, supra.
On appellate review of the sufficiency of the evidence, it is necessary to ascertain only that evidence favorable to the appellee and likewise permissible to consider the testimony that tends to support the verdict of guilt. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1970).
The evidence, when viewed in the light most favorable to appellee, constituted a chain sufficient to corroborate the accomplice’s testimony. Carol Fortner and Carl Matthew Jenkins testified that they met Juanita Carr and appellant at the time and place stated by Carr. Julia Kelley testified that she saw a black couple go in the back door of the victim’s house and come out running twenty minutes later. Beverly Kelley identified the appellant as the man who was with Juanita Carr going toward and away from the victim’s house. This amounts to substantial evidence to corroborate the testimony of accomplice Juanita Carr and we decline, as a matter of law, to reverse and dismiss on this point.
The same photographs are likely to be introduced at a new trial. We find no error in their admission for they depict the nature, extent and location of the wounds and are relevant to the issue of intent, state of mind and corroboration of the manner of beating. Linder v. State, 273 Ark. 470, 620 S.W.2d 944 (1981).
The Attorney General has filed a motion for an award of costs pursuant to Rule 9 (e) (1). Ark. Stat. Ann. Vol. 3A (Repl. 1979). Our rule authorizes reimbursement to an appellee but we order such allowances only where there has been a clear-cut and demonstrable failure by the appellant to properly abstract matters to a fair and full consideration of the issues raised on direct appeal. Arkota Industries, Inc. v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981).
There was such a clear failure in this case and the state is awarded attorney’s fees in the amount of $550 plus printing costs for the preparation of the supplemental abstract.
We do not address the other issues for a number of reasons. Some motions were not timely made, on other points an objection was not made, on other points there is no record because the argument is made here for the first time and some of the issues are moot because the case is remanded.
Reversed and remanded.
Hickman and Hays, JJ., dissent. | [
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Frank Holt, Justice.
The appellee sued the appellant for alienation of the affections of his former wife, Carolyn. The appellee and Carolyn had been married seventeen years and had three minor children. The appellant and Carolyn began a clandestine affair which lasted about two years when the appellee discovered Carolyn’s and appellant’s relationship. The appellee and Carolyn attempted a reconciliation and after about nine months, appellee secured a divorce. The court, sitting as a jury by agreement of the parties, awarded appellee $15,000 damages and dismissed appellant’s counterclaim for damages allegedly resulting from appellee’s threats and harassment. Appellant first contends for reversal that the trial court erred in not granting him a directed verdict inasmuch as the evidence failed to prove the alienation of affections.
In a suit for alienation of affections, the burden is on the plaintiff to show direct interference on the part of defendant and that not only was there infatuation of husband or wife for defendant but that the defendant, by wrongful act, was the cause of it; and the plaintiff must show a wrongful attempt on the part of the defendant to alienate the affections of plaintiff’s husband or wife, and also that such an attempt was successful and without the consent of the plaintiff. Hardy v. Raines, 228 Ark. 648, 310 S.W.2d 494 (1958); Hammond v. Peden, 224 Ark. 1053, 278 S.W.2d 96 (1955); Roach v. Scott, 157 Ark. 152, 247 S.W. 1037 (1923); and 41 Am. Jur. 2d Husband and Wife § 466. The gist of an action for alienation of affection is the loss of consortium which includes the spouse’s society, companionship, love, affection, and aid. Gibson v. Gibson, 244 Ark. 327, 424 S.W.2d 871 (1968).
Carolyn testified that appellant’s business was located in the same building where she was employed. Shortly after they became acquainted their affair began. The appellant gave her much attention, sent her flowers, bought her gifts consisting of several items of jewelry and clothing, took her to dinner at nice restaurants, and treated her “like a queen.” During this two year period, they had sexual relations about once a month and sometimes spent the night in motels. They talked of marriage. The appellant told Carolyn he loved her and wished they could get married. Appellant suggested a lawyer she could see for a divorce. She stated the gifts provided by the appellant diminished her love for her husband, the appellee. She believed she would have left him for the appellant had she known her children would be taken care of. In the back of her mind she expected a marrige out of the relationship with the appellant. She was in love with the appellant and would have married him. If it had not been for her relationship with the appellant, she and the appellee would still be married. Before meeting the appellant, she and the appellee had enjoyed a normal married relationship. When the appellee discovered her infidelity, there was a very brief separation after which she returned to their home for a period of approximately nine months. She reaffirmed her love for the appellee. There was no resumption of her affair with the appellant. She and the appellee attempted a reconciliation which included counseling. This was unsuccessful and appellee secured a divorce from her because he was unable to forget the trauma of the past events. Carolyn has since remarried someone else.
The appellee testified that during the period his wife was having an affair she was not affectionate towards him and there “wasn’t much of any” “sexual life” between them. During their attempted reconciliation they sought counseling. It did not help him since he was unable to forgive her. He secured a divorce.
The appellant denied he ever spoke in terms of endearment to Carolyn, that he ever talked of marriage or that he gave her any reason to feel that he wished a continuing relationship or anything more than a night in a motel room. The only gifts he had ever given her were those similar to ones he had given his secretary, other employees or friends. He never suggested she leave her husband.
Appellant argues that the attempted reconciliation of Carolyn and appellee, along with their testimony that during this time they still professed their love for one another indicates that, the wife’s affections were not alienated from her husband, but rather the husband’s affections were alienated as he was unable to cope with the emotional trauma created by the affair. In Gibson v. Gibson, supra, we said: “The law presumes that there is always a possibility of reconciliation of husband and wife and this the law encourages.” The evidence plainly shows the appellant, by his actions, sought to win the favor of Carolyn. He knew she was married to appellee and that they had children. Carolyn testified that during their meretricious affair her love for her husband, the appellee, diminished, she and appellant discussed marriage, he suggested a lawyer to her for a divorce, and she was in love with appellant and would have married him. Before meeting appellant, she had experienced a seventeen year normal marriage with appellee, they were the parents of three minor children, and she would still be married to the appellee except for her relationship with appellant. The findings of a trial court, sitting as a jury, shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52, ARCP Ark. Stat. Ann. Vol. 3A (Repl. 1979). Taylor v. Richardson Const. Co., 266 Ark. 447, 585 S.W.2d 934 (1979). Here, we certainly cannot say that the trial court’s findings were clearly erroneous.
Appellant next contends that the trial court’s award of $15,000 is not supported by the evidence and therefore is excessive. We cannot agree. In Hammond v. Peden, supra, the jury returned a verdict in favor of appellee and awarded him $25,000 for damages as a result of appellant’s actions in alienating the affections of appellee’s wife. There we said that since “the evidence was sufficient to sustain a judgment in some amount in favor of appellee, we know of no established rule by which to weigh in dollars and cents the value to appellee of the loss of the companionship, love, and affection of his wife and children.’’See also Weber v. Weber, 113 Ark. 471, 169 S.W. 318 (1914); Alexander v. Johnson, 182 Ark. 270, 31 S.W.2d 304 (1930); and Hardy v. Raines, supra. Here, it appears that the acts of the appellant were instrumental in the destruction of a reasonably normal marriage of seventeen years and the parental relationship of three minor children. Therefore, we cannot say the evidence is legally insufficient to support the finding of damages by the trial court.
Affirmed. | [
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Per Curiam.
Petitioner Winston M. Holloway was convicted by a jury of two counts of rape, one count of robbery and three counts of employing a firearm in the commission of a felony. He was sentenced to life plus 116 years imprisonment in the Arkansas Department of Correction. We affirmed. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980). Petitioner has now filed a motion seeking permission to file an untimely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The motion is denied.
Rule 37.2 (c) provides in pertinent part:
A petition claiming relief under this rule must be filed . . . within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void.
A second year law student, who is part of the Kansas Defender Project at the University of Kansas School of Law, has attached an affidavit to the motion in which he states that the Rule 37 petition was not timely tendered because of his miscalculations. In effect, he asserts that he was acting as informal counsel to petitioner and that petitioner should not be deprived of an opportunity to present his grounds for relief under Rule 37 merely because his representation was inadequate. The law student’s advice may have been erroneous, but it does not amount to ineffective assistance of counsel within the purview of Rule 37. The student is not a licensed attorney. There is no evidence that petitioner retained the Kansas Defender Project as his counsel or that the defender project was appointed by a court to represent the petitioner. The petitioner cites no authority that the constitutional right to effective assistance of counsel attaches to postconviction proceedings. The law student’s miscalculation is therefore no different than if the miscalculation had been made by the petitioner acting pro se.
As provided in Rule 37.2 (c) supra, petitioner’s grounds for relief may be considered, however, even though the petition was not filed within three years if a ground for relief in the petition would render the judgment of conviction absolutely void. Petitioner asserts that (1) his right to due process of law was denied because he, received a more severe sentence on retrial and that his attorney was ineffective in not raising the issue on appeal; (2) his right to confront witnesses was denied when the testimony of Dr. Frueh from the petitioner’s first trial was introduced; and (3) his right to due process was denied by extensive pre-trial publicity. None of the allegations is sufficient to render the judgment of conviction void under Rule 37.2 (c). Moreover, with the exception of the claim of ineffective assistance of counsel, the grounds were ei ther raised on direct appeal or could ha ve been so raised. Rule 37 was not intended to permit the petitioner to again present questions raised on direct appeal or to permit questions which could have been raised on appeal to be presented for the first time. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980).
Judgments in criminal cases must have stability and finality. Questions exhausted according to the controlling rules of procedure cannot continue to be raised in proceeding after proceeding. Rose v. Lundy, _ U.S _, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Otherwise, judgments could never be carried into effect. See also, Hulsey v. State, supra.
Motions denied. | [
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Frank Holt, Justice.
Appellant brought this action for the collection of a third party’s debt which had been guaranteed by the appellees. In March, 1979, Ruth Millien purchased a used mobile home from the appellee and executed a conditional sales security agreement for the balance of the indebtedness. Thereupon, the appellee assigned with recourse its rights in the agreement to the appellant. In conjunction therewith, the appellee executed a guaranty agreement promising payment of any balance due in the event Millien defaulted. Millien became delinquent in her payments and filed for bankruptcy after the effective date of the 1978 Federal Bankruptcy Act. This default triggered an acceleration clause in the security agreement causing the balance of $3,273.61 to become due and payable. The bankruptcy court found the property to have a value of $2,000 and approved a payment plan for Millien as a bankrupt. The appellant then filed this action to enforce the guaranty agreement when the appellee refused to pay the balance due.
Appellee responded that the appellant was estopped to assert its rights pursuant to the appellee’s guaranty of the indebtedness, because appellant failed to participate or make any effort to preserve its interest at the bankruptcy hearing. All material facts were stipulated and no testimony was presented. Based upon the pleadings, the interrogatories, exhibits, and the stipulation, appellant moved for a summary judgment which the court denied. The court found that the appellant had complied with the provisions of appellee’s guaranty, and appellee had failed to honor it; even so, the trial court held that the Federal Bankruptcy Act is unconstitutional as applied here; that the act deprived the appellee of property without due process of the law and interfered with the contractual relationship of the parties. The court ordered that any losses suffered by the appellant and the appellee be borne equally.
We first consider appellant’s contention that the Federal Bankruptcy Act has not unconstitutionally interfered with the contractual relationship existing between appellant and appellee. In other words it is inapplicable. We agree. A guaranty is a collateral undertaking by one person to answer for the payment of a debt of another. Gulf Refining Co. v. Williams Roofing Co., 208 Ark. 362, 186 S.W.2d 790 (1945); 38 Am. Jur. 2d Guaranty § 2. A guarantor is one who makes a contract, distinct from the principal obligation, to be collaterally liable to the creditor if the principal fails to perform. Williston on Contracts 3rd, § 1211 (1967). The undertaking of the principal debtor is independent of the promise of the guarantor. Coombs v. Heers, 366 F. Supp. 851 (D.C. Nev. 1973). Upon default of the principal debtor and satisfaction of conditions precedent to liability, promise of guarantor becomes absolute. National Bank of Washington v. Equity Investors, 506 P.2d 20 (Wash. 1973); Ranier Nat. Bank v. Lewis, 635 P.2d 153 (Wash. App. 1981). For a guarantor to become liable under a guaranty of payment, there need only be a failure of the primary obligor to make payment. In re Waters, 8 B.R. 163 (1981).
Here, it is undisputed that the principal debtor, Mil-lien, defaulted owing a balance on her contract of $3,273.61; appellee is the guarantor of Millien’s loan as alleged by the appellant; and that all conditions precedent to appellee’s liability have been satisfied. 11 U.S.C.A. § 524 (e) (1978) provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” The committee commentary or notes with respect to this section state that the “discharge of the debtor does not affect co-debtors or guarantors.” In Johnston v. Missouri Pacific Railroad Co., Thompson, Trustee, 203 Ark. 1036, 160 S.W.2d 39 (1942), construing 11 U.S.C.A. § 34 (1898), which is the predecessor and similar to § 524 (e) supra, we reiterated: “The rights of the creditor against third partes liable jointly with the bankrupt or secondarily for him are not impaired by the bankrupt’s adjudication nor by the bankrupt’s discharge.” Here, the appellant is not seeking to collect from the principal debtor, Millien. Rather, appellant is proceeding against a separate entity, the appellee, as the guarantor of that indebtedness. The very purpose of a guaranty agreement is to provide an alternate source of payment in the event of default. In our view the Bankruptcy Act is plainly not applicable to the facts in this case.
We deem it unnecessary to reach or discuss appellant’s other contentions concerning the constitutionality of the Bankruptcy Act.
Reversed and remanded with directions to render a summary judgment as sought by the appellant.
Reversed and remanded. | [
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Darrell Hickman, Justice.
For almost five years, Sharp County, through its elected officials, has resisted paying a $15,000 claim by the Northeast Arkansas Planning and Consulting Company. In June of 1980, we upheld a jury verdict against the county for $15,000. Sharp County v. Northeast Planning & Consulting Company, 269 Ark. 336, 602 S.W. 629 (1980). But the county still refused to pay.
The trial court issued a writ of mandamus to the county judge, Frank Arnold, and six members of the quorum court to take the necessary steps to pay the judgment. They refused, were held in contempt of court and ordered jailed until they paid the claim. We find no reason to disturb the findings and order of the trial court.
All the excuses offered by the officials are meritless. The debt has been determined valid, and Sharp County has had its day in court. The burden was on the county to show payment of the obligation would have violated the tenth amendment to the Arkansas Constitution. City of Piggott v. Woodard, 261 Ark. 406, 549 S.W.2d 278 (1977). The county did not meet their burden because there was no showing that the county did not have funds to pay the claim in 1975, the year the debt was incurred.
There is sufficient money in the county treasury to pay it now. The fact that the county has appropriated 100% of that money for other debts is irrelevant. The officials knew of the debt in question and took no steps to appropriate money for payment of it. In fact, it seems they refused to do so and that is why the trial judge ordered them to. So we do not have a case of ordering county officials to do what they cannot legally do. If funds have to be diverted from present appropriations it will have to be done. Any problems created by that action will be the result of the officials’ refusal to fulfill their responsibility in the first place — that is paying this just debt of the county.
For the first time Sharp County argues the judgment entered cannot bear interest because of Ark. Const., art. 16, § 1. That issue was not raised in Sharp County v. Northeast Planning & Consulting Company, supra, and the law of that case applies. The issue cannot be raised now. now.
We granted a temporary stay of the trial court’s order pending review of this matter on what we deem to be a petition for a writ of certiorari. That stay is dissolved and the matter is remanded. The trial court is free to proceed with its previously entered order. | [
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George Rose Smith, Justice.
The appellant Williams was found guilty of murder in the first degree, having shot and killed Pravin Patel in the perpetration of robbery at the Ritz Motel in Little Rock on November 28, 1980. The jury, finding that Williams was an habitual criminal with four or more previous felony convictions, sentenced him to life imprisonment. The two principal arguments for reversal stem from the trial court’s having permitted the State, in its refutation of Williams’s alibi defense, to prove on rebuttal that Williams had held up another person in the same vicinity a short time before the robbery at the Ritz Motel.
Patel was shot at the motel at about 10:30 or 11:00 p.m. A witness for the State saw Williams running from the motel with a gun in one hand and the cash drawer in the other. The witness noted the license number and other identifying features of Williams’s get-away car. That information led the police to Williams. The witness recognized the car when the police took him to it and also identified Williams in a line-up and at the trial. The sufficiency of the evidence is not in question.
In support of an alibi defense both Williams and his wife testified that he came home at about eight o’clock on the evening of the murder and remained there during the night except for a quick trip to buy beer at about nine o’clock. At an omnibus hearing the prosecution had announced its intention to call John Martin as a witness, but the judge did not then rule on the admissibility of Martin’s testimony.
The State, after the defense had rested, was allowed to introduce Martin’s testimony in rebuttal. Martin testified that at about ten o’clock on the evening of the murder, as he was closing up his place of employment seven or eight blocks from the Ritz Motel, Williams held him up at gunpoint and demanded that Martin hand over the money in the safe. Martin convinced Williams that he did not have a key to the safe nor any money on his person. Williams then said he was a policeman, just checking Martin out, and left. Thus the Martin incident and the murder took place in the same vicinity and during the time when Williams and his wife testified he was at home.
The admissibility of Martin’s testimony is not open to serious question. It was clearly relevant to disprove the alibi. In Nash v. State, 120 Ark. 157, 179 S.W. 159 (1915), we upheld the admissibility of evidence, introduced as part of the State’s case in chief to refute an alibi, that the defendant had committed another robbery at about the same time and in the same vicinity as the robbery on trial. There the trial judge gave a limiting instruction, explaining the purpose for which the testimony was presented. There was no request for such an instruction in this case; so the court was not required to give one. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The admissibility of testimony about another crime, to rebut a defense of alibi, is uniformly recognized. Wharton’s Criminal Evidence, § 258 (13th ed., 1972); People v. Appleton, 1 Ill. App. 3d 9, 272 N.E.2d 397 (1971); Reed v. State, 481 S.W.2d 814 (Tex. Cr. App., 1972). Uniform Evidence Rule 404 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979), is to the same effect, because Martin’s testimony was relevant to disprove the alibi and was not offered merely to show Williams’s bad character.
It is argued that Martin should have been permitted to testify only that he saw Williams at the specified time and place, without saying that Williams confronted him with a gun. This argument is totally unrealistic. Had the testimony been so watered down, the jury would have received a false impression about the incident and might well have doubted whether Martin could identify a stranger whom he saw casually as he was closing up for the night. It was the very fact that Williams used a weapon in an attempt at robbery that would fix the incident in Martin’s memory and strongly support his identification of Williams. The probative value of that important fact heavily outweighed any prejudice to Williams from the proof that he had drawn a gun on Martin.
Second, in a related point it is argued that the prosecution should not have been allowed to ask Williams on cross-examination if he had not pulled a gun on Martin at about ten o’clock that evening. In view of the admissibility of Martin’s testimony, the question was within the broad latitude allowed on cross-examination to elicit facts contradicting Williams’s testimony on direct examination and therefore to attack his credibility. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964). Indeed, had the question not been asked, the jury might have thought that the prosecution had indicated some weakness in its position by failing to give Williams an opportunity to deny or explain the incident to be described by Martin on rebuttal.
Third, before the trial expert testimony was heard for a day and a half on the question whether a death-qualified jury is more likely to convict than one not so qualified. We agree with the trial judge’s conclusion that the expert testimony was not conclusive, and we adhere to our earlier position on this issue. Neal v. State, 270 Ark. 442, 447, 605 S.W.2d 421 (1980).
We find no reversible error in the points argued nor in the other rulings brought to our attention.
Affirmed.
Purtle, J., dissents. | [
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By the Court,
Dickinson, J.
From the innovation made by our statute upon the common law, in relation to the institution and prosecution of actions upon a joint or several note or obligation, we have had some difficulty in ascertaining the rules by which plaintiffs must be governed in like cases, and the effect of a discontinuance as to one or more of the defendants, after suit brought. By the Rev. St., sec. 64, p. 628, “ every person, who may have cause of action against several persons, and entitled, by law, to but one satisfaction therefor, may bring suit jointly against all, or as many of them as he may think proper;” and, by sec. 47, p. 646, if he thinks proper to bring suit against several, and some are served with process in time for trial at the return term, and others not served in time, the plaintiff may discontinue as to those upon whom the process lias not been served at all, and not served in time, and proceed against the others; or he may continue his suit generally, as to all, and take new process against those not served; but, at the next term, unless for good cause shown, he shall be bound to proceed against such of the defendants as have been served with process.” This latter provision' is made for the benefit of defendants whom the law will not permit to be harassed, from timé to time, without having any opportunity of making defence to the action, merely because the other defendants cannot be, or are not, brought into court. If, previous to the second term, the process has not been served upon the other defendants, the plaintiff must proceed with his action against such as are in court; but the discontinuance as to those not served with process, or not served in lime, will not exonerate the absent defendants from any liability in such suit, but they may be proceeded against at any future period, as if no prior suit had been brought against them. Sec. 48. And it is right and proper that it should be so; for the plaintiff, being entitled to but one satisfaction, may obtain it from those served with process, and therefore render a new suit unnecessary.
It makes no difference whether the suit is joint, or joint and several. He may elect to bring his action against all, any number, or but one, if he chooses. He must, however, be held to his election. If it is instituted against more than one, he treats it as a joint contract as to those sued, and a plea by one to the action of the writ, enures to the benefit of all the defendants. In the present case, the plaintiff having elected to bring her joint action against all of the obligors, the demand must be treated as such; and he cannot, after service of process upon all the defendants, be permitted, under our statute, to discontinue as to one, and take judgment by default against the others. Noke vs. Ingram, 1 Wilson, 89. Hartness vs. Thompson et al., 5 J. R. 160. 1 Ch. Pl. 546. Tidd, 632. Hall vs. Rochester et al., 3 Cow. 374. Day vs. Rice, 19 Wend. 643.
The plaintiff having elected to bring a joint action upon the bond, there cannot be a several judgment against any of the obligors, but it must be against all or for all. This is the general rule, though there are exceptions. The nature and extent of those exceptions are not involved in the present inquiry, as they arise alone upon plea, or upon some special statutory provision, and therefore will not be considered. U. S. vs. Leffler, 11 Pet. 96. We can see no good reason why a discontinuance or nolle prosequi may not be entered as well after a service of the writ as before. It would certainly subserve public convenience, and answer all the purposes of justice. From the best lights now before us — and we have given the subject the most patient investigation — we are reluctantly led to the conclusion, that the plaintiff had no alternative but to proceed to final judgment against all of the defendants she had elected to sue, and upon whom process had been served in time, or dismiss the suit, and re-commence a new action against such of the obligors as she may choose to charge: that the discontinuance as to Fletcher, operated as a discontinuance of the whole action; and that, consequently, the court erred in giving judgment against Frazier and Elliott.
We say we have come to this conclusion with reluctance. It is because we cannot discover that it answers any purposes of substantial justice. But, until the Legislature shall see fit to modify or change the law upon this subject, we are bound to sustain and enforce it.
Hempstead & Johnson presented a petition for re-consideration, which was refused; Judge Lacy remarking, that he did not concur in the opinion, and should take an opportunity, in some case hereafter, to declare the reasons of his dissent.
Judgment reversed. | [
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By the Court,
Dickinson, J.
It has been ruled, in this Court, that petition and summons will only lie for the direct payment of money. This is certainly not a note of that character.' The whole of the agreement must be taken and construed together, for it is one entire contract. It is simply an acknowledgment of a debt due, to be paid out of a particular fund, placed in the hands of the creditor for that purpose. The legal definition of a note is, “ the agreement for the direct payment of money.” “ The payment,” says Chitty on Bills, at page 152, “ must be absolute, and not contingent, either as to the amount, credit, fund, or person.” The principle here stated decides the point before this Court. The fund being contingent, out of which the debt was to be paid, the plaintiff had no right of recovery, unless he averred and showed that the fund had failed, or was inadequate to the payment. The demurrer to the declaration was, therefore, improperly overruled; and, for this reason, the judgment .must be reversed, with costs. | [
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By the Court,
Dickinson J.
This is an application to change and alter a record of the circuit court, by striking out, upon affidavit, the appearance of the defendants, and thereby, in effect, erasing the judgment of that court. We look upon the permitting of amendments, as a power which should be exercised with great caution and delicacy, after the case has been finally disposed of, and that court adjourned, lest in answering the substantial purposes of justice, it might lead to great mischief and injustice. It is not our intention to enter into a discussion of the doctrine of amendments; and indeed it is difficult to limit the discretion of the courts upon that subject within any certain or prescribed bounds. We certainly should not deem ourselves authorized to interfere with the record, in this instance, for in the entry preceding the judgment, it states affirmatively, “ on this day, came the parties, by their attornies, and the said defendants, as well as the said plaintiff, entered their waiver of all exception” to the judge then sitting in the case.
In matters of doubt, all presumptions are in favor of the court below. Besides, it appears by the showing of the plaintiffs in error, that, with a knowledge of the judgment against them, nearly one year elapsed before there was even a suggestion of error in the entry.
Judgment affirmed. | [
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Steele Hays, Justice.
This suit was brought by William Kelly, appellee, to rescind a contract to purchase appellants’ 80 acre farm in Sharp County. Shortly before trial the regular chancellor recused himself and the parties entered into a stipulation pursuant to Act 357 of 1981 agreeing that Chancellor Carl B. McSpadden would sit as temporary judge and would hear the case in Fulton County. Act 357 permits the parties in civil cases to stipulate to the appointment of a temporary judge who shall be compensated by the parties. Following trial the chancellor found appellants Worches failed to deliver possession on April 30, 1981, as agreed, and therefore Kelly was entitled to a rescission of the contract and the return of his earnest monty of $12,500.00.
Appellants argue four points for reversal: First, Act 357 of 1981 is unconstitutional, rendering the decree in this case void; second, the decree is also void because the trial was held outside the judicial boundaries of Sharp County; third, the chancellor erred in holding the Worches breached the contract of sale; and fourth, the chancellor erred in not finding the provision for possession on April 30 was waived. We affirm the chancellor.
The first two points were not raised at trial and consequently will not be considered on appeal. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Harris v. Byers, 212 Ark. 1026, 208 S.W.2d 991 (1948). Further, appellants were not required to enter into the stipulation for a special chancellor, or to agree to try the case outside the district in which the suit was pending, but having chosen to do so for reasons they found sufficient, they cannot now repudiate their agreement because the result was not to their liking.
The third argument is the chancellor erred in finding a breach of contract by the Worches. Under the written contract executed April 11, 1981, Kelly was required to deposit $500.00 as earnest money and was entitled to possession on April 30, 1981. The contract fixed the closing date as April 22, contingent upon Kelly’s obtaining a loan from Federal Land Bank. There was testimony that on the day before the agreed closing Kelly had a telephone conversation with the real estate broker handling the sale, Mr. Cruthis, who told Kelly the Federal Land Bank loan had not yet been approved and that the Worches were having difficulty moving out. He suggested Mr. Kelly put up an additional $12,000.00 toward the purchase price to expedite their moving. Mr. Kelly was anxious to get possession by April 30, and on April 22 he gave Mr. Cruthis $12,000.00 upon the assurance, according to Kelly, that possession would be surrendered by April 30.
On April 30 Kelly called Cruthis and learned the loan had still not come through and was told they could not close nor could he take possession. With that, Kelly informed Cruthis he was no longer interested in purchasing the property and demanded his money back. A few days later Kelly consulted a lawyer as to how to rescind the contract and recover the $12,500.00 he had deposited with Cruthis. Around May 12 Kelly’s lawyer called Cruthis and asked if clear title could be obtained that day. After checking with the title company Cruthis told him a title commitment could be issued that day.
The Worches contend there was no breach and the chancellor erred in finding that the $12,000.00 payment was made to insure possession by April 30, and also in finding there was a failure to deliver possession. These determinations were findings of fact properly within the province of the trial court and will not be set aside unless clearly erroneous. ARCP Rule 52. The evidence to support these findings is substantial. Mr. Kelly’s testimony that the additional $12,000.00 payment was made to insure possession by April 30 was corroborated at trial by other testimony and by circumstantial evidence. The evidence is uncontroverted that Mr. Cruthis knew possession was important to Mr. Kelly and that on April 30 Mr. Cruthis told Mr. Kelly he could not take possession because the loan had not yet been approved. The Worches argue they did not fail to deliver possession because Kelly did not demand possession directly from them but only through the broker. However, they had not vacated the property on April 30 and Mr. Worch said he left it up to Mr. Cruthis, who handled the negotiations between Mr. Kelly and the Worches. Mr. Cruthis testified the April 30 closing was not meant to be definite, but was merely a "target date, more or less.” But Mr. Cruthis prepared the contract and the provision for possession was clear and absolute. If it was meant to be conditioned on closing, it would have been easy to say so, but it did not and the chancellor found a material breach of contract by the Sellers. The chancellor also construed the circumstances surrounding the $12,000.00 advance as making the time of delivery "the essence” of the contract with respect to performance and we concur in that view.
Finally, appellants argue the telephone inquiry by Mr. Kelly’s lawyer about clear title waived the provision in the contract máking the time of delivery of possession essential. We disagree. We are not convinced that a single telephone call to ask if Sellers could furnish a clear title should be construed as a waiver in the face of Mr. Kelly’s unequivocal renunciation of the sale at the time of the Sellers’ breach, but whatever may be said of the argument, it was not raised by the pleadings as required by ARCP Rule 8 (c), nor presented to the trial court.
The decree of the chancellor is affirmed. | [
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Steele Hays, Justice.
Appellant was charged with 22 counts of theft of property and 22 counts of first degree forgery by information filed on October 3, 1980. She was convicted in a jury trial on September 28, 1981, and sentenced to 26 years in the Department of Correction.
Appellant argues two points for reversal, neither of which has merit and, therefore, we affirm the judgment. Appellant first contends that the trial court erred in permitting her to represent herself at trial. The only support for her argument is a notation dictated by the trial judge several days after the trial, stating appellant had appeared without counsel on the morning of trial and asked to proceed pro se. But the record itself demonstrates the appellant did not represent herself and was not without the benefit of counsel. The proceedings with respect to appointment of defense counsel were erratic from the outset. Initially, Mr. Robert Lamb was appointed and he secured appellant’s immediate release from custody on her own recognizance, conditioned on weekly deposits by the appellant to be applied to retained counsel. In November, appellant filed her first motion for a continuance and requested that other counsel be appointed. Her motion was granted and Mr. David Hodges was named to represent her. In February, Mr. Hodges was relieved and Mr. Lamb was substituted and on appellant’s motion trial was continued to the next term of court. In May, appellant again moved for a continuance of the trial then scheduled for June 1, this time on the basis of her daughter’s tonsilectomy which conflicted with the trial date. This motion was either denied or not acted upon and on May 29 appellant renewed her motion, stating that she did not wish to proceed with Mr. Lamb as counsel but intended to obtain other counsel, unnamed, who would be out of the state until after the June 1 trial date. On the morning of trial a hearing was conducted in chambers and the court granted yet a third continuance in order for appellant to hire other counsel, which she stated she had the resources to do. Appellant assured the court she was not seeking to delay the progress of the case and understood the case would be set for trial during the September term.
On September 28, 1981, the case was called for a jury trial and appellant appeared without having retained counsel. At that point the trial judge appointed Messrs. Steven G. Howard and Stanley Montgomery to assist appellant. While they were ostensibly appointed merely to assist in trial, it is clear that Mr. Howard, who seems to have been appellant’s lawyer in a similar case, immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.
Appellant’s defense was that she was an employee of the City of Diaz paid with CETA funds; that at times her CETA checks would not arrive and with the approval of the city clerk, Mrs. Jean Sullins, appellant would sign Mrs. Sullins’ name to checks from the city for the amount of her salary, refunding the amount to the city when her CETA checks arrived; that she was at times instructed to sign Jean Sullins’ name to checks, cash them and give the money to Mrs. Sullins, which she did. This explanation was directly disputed by Mrs. Sullins and our concern here is not with credibility but with the adequacy of appellant’s defense. The record satisfies us that she had sufficient opportunity to present her case, and we note an absence of any argument that she was deprived of an adequate defense. In sum, she argues that though she asked to be allowed to represent herself, the court erred in permitting her to do so, as the record fails to reflect a voluntary and intelligent waiver. It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel. Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970), and United States v. Dujanovic, 486 F.2d 182 (1973). But we are unwilling to sustain the argument where the appellant was not left to represent herself, but was capably represented throughout the trial. Nowhere in the record does it appear that she was called on to represent herself or left unrepresented at any stage of the proceedings, trial or pretrial. Thus, the only conceivable impediment to the appellant is the fact that trial counsel were appointed for her on the morning of trial. However, no argument is offered on that score and in view of the repeated opportunities given her to employ her own counsel, which she had the means and disposition to do, we find no prejudicial error mandating another trial. The circumstances of each case must be examined in their entirety in determining whether a defendant has been adequately represented and on that basis we can reject appellant’s argument. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Jackson v. State, supra; Johnson v. Zerbst, 304 U.S. 458 (1938).
Appellant’s second point is that she was unfairly prejudiced by the verdict forms used in her trial. We find no prejudice. Appellant was charged with 22 counts of theft of property, carrying a minimum sentence on each count of two years where the property exceeds $100.00 in value, and 22 counts of first degree forgery, which carries a minimum sentence of three years on each count. During trial, the State and the defense stipulated that instead of submitting the verdict forms to the jury on each of the 44 counts, only three verdict forms would be given the jury — one for felony theft of property, one for misdemeanor theft of property and one for first degree forgery, on the understanding that if the jury found appellant guilty of felony theft of property and first degree forgery she would enter a plea of guilty to one year on each remaining forgery charge, to be added to the sentence recommended by the jury. Further, if the jury found her guilty on the misdemeanor charge only, then she would be sentenced to one year on each of four misdemeanor thefts.
The jury found appellant guilty on all three verdict forms submitted to it and fixed her punishment at two years on felony theft, three years on first degree forgery, and one year on misdemeanor theft, a total of six years. Thus, on the stipulation she was sentenced to one year on each of the remaining 21 forgery counts, for a total of 26 years, leaving one forgery charge unaccounted for.
We find no merit to appellant’s argument that she was prejudiced by this stipulation, to which she and counsel agreed. The obvious fact is she benefited by it. By the stipulation the State agreed to a sentence of only one year on each remaining 21 forgery charges, which carried a minimum sentence of three years on each charge, thus benefiting appellant from that standpoint. Too, the stipulation must have included a dismissal of the 20 remaining charges of theft of property, giving her an additional advantage. Furthermore, if the jury convicted her only on misdemeanor theft it appears that under the stipulation she would have been sentenced only on the four misdemeanor charges, with all remaining forgery and felony theft charges dismissed. Clearly, the stipulation offered a more attractive option to appellant than that of submitting all 44 counts to the jury with instructions as to the minimum sentences of two and three years each and, hence, we find no prejudice in the stipulation.
Affirmed.
Adkissqn, C.J., and Purtle, J., dissent. | [
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Steele Hays, Justice.
Appellant Bessie Landis brought suit for personal injuries allegedly sustained on May 28, 1979, when a vehicle she was driving was struck by a truck driven by appellee Rodger Hastings, fifteen year old son of appellee Bobby Hastings. The jury returned a verdict for the defendants, notwithstanding Rodger Hastings’ admission the collision was his fault and testimony on behalf of Mrs. Landis that she sustained permanent injuries as a result of the collision. Her motion for new trial was denied and she has appealed.
Four points are argued: the j ury disregarded undisputed evidence in reaching a contrary result; the verdict was not supported by substantial evidence; the trial judge’s refusal to grant a new trial was an abuse of discretion and it was error to allow the jury to consider a verdict for the defendant. We find the arguments to be without merit and we affirm.
The Landis proof was that Mrs. Landis, driving a borrowed vehicle, entered a protected intersection in Judsonia and was struck on the right rear side by the Hastings truck. The impact spun her around and into a deep ditch, knocked off her shoes, and caused damage to her vehicle in excess of $1,200. Not thinking she was injured, she drove another vehicle to Little Rock to meet her niece at the airport but by the time she arrived she was in pain and unable to drive home.
The next day Mrs. Landis consulted Dr. Sidney Tate for pain and tenderness in her neck and shoulders. Dr. Tate found motion limitation and muscle spasms; he made a diagnosis of cervical sprain and possible ligament damage. He prescribed conservative treatment of rest, muscle relaxors and later ultra sound treatments, physical therapy and use of a cervical collar. Mrs. Landis was still under Dr. Tate’s care at trial two years after the accident, and he estimated pain in some degree would continue the remainder of her life. In addition to Dr. Tate, Mrs. Landis was treated by Dr. L. S. Tensuan during a visit to Pennsylvania and examined by Dr. William Steel. Her x-rays on May 29 and July 6, 1979, were read by Dr. Robert Elliott, a radiologist. Her medical bills, admitted without objection, totaled $973 as of the trial on May 12, 1981.
In defense, Rodger Hastings testified the collision was his fault. He estimated his speed at less than 10 miles per hour at impact. He said his truck moved only a few feet after striking Mrs. Landis’s vehicle and sustained no damage at all. He went directly to Mrs. Landis and found her on her seat behind the wheel putting on high heel slippers. She told him she was not hurt and she walked around while waiting on the police. Hastings heard Mrs. Landis tell the police and by-standers that she was not hurt in any way. He described Mrs. Landis as upset but said he observed nothing to cause him to believe she suffered any injury. He told of having seen Mrs. Landis dancing at the Electric Cowboy some months prior to the trial. A passenger in the Hastings truck corroborated testimony that Mrs. Landis did not appear to have suffered any injury and told several people she was not hurt. Both witnesses said the area Mrs. Landis described as a "deep ditch” was a depression of about three inches.
In acting on a motion for a new trial the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP Rule 59 (a). But on review the test depends on whether the motion was granted, in which case we will affirm absent a manifest or clear abuse of discretion (General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602, 1974), whereas if the motion is denied, as here, we look only to see if the verdict is supported by substantial evidence and, if so, we do not disturb the trial court’s action. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981); Brady v. City of Springdale, 246 Ark. 1103, 441 S.W.2d 81 (1969). The rule is founded on the superior position of the trial court to hear and weigh the evidence. Ferrell, supra-
Appellant submits that the trial judge was confused as to the test to be applied in passing on her motion, arguing that an abuse of discretion resulted. But while there may have been some initial uncertainty as to the proper test, it is clear the opposing arguments at a hearing on the motion put the issue in proper perspective and as a result the trial court advised counsel he would reread the cases and review his “detailed notes on the case.” We believe his decision in the end was in accordance with the preponderance of the evidence standard. From his comments he evidently believed the evidence was such the jury could have reasonably concluded that Mrs. Landis did not sustain injuries as a result of the collision.
Next, appellant cites us to the dicta of a number of cases stating that testimony which is not substantially contradicted by other testimony, and does not seem unreasonable or improbable, may not be arbitrarily or capriciously disregarded by the jury. General Motors Corp. v. Tate, supra; Missouri-Pacific Rd. Co. v. Ross, 194 Ark. 877, 109 S.W.2d 1246 (1937); St. Louis-San Francisco Ry. Co. v. Pace, 193 Ark. 484, 101 S.W.2d 447 (1937); St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W.2d 611 (1929). These cases have a common feature, in each a verdict for the plaintiff was reversed and dismissed because of a lack of evidence to sustain it. The cases present a somewhat different evidentiary problem from the case before us and it is in that context that the cited dicta must be examined. In the Ross and Pace cases, wrongful death claims were brought against railroad companies resulting in verdicts for the plaintiff where plaintiffs’ decedents were found on or near the railroad track with no eyewitness accounts of how the accidents occurred. The plaintiffs’ theories of recovery were founded essentially on conjecture whereas testimony from witnesses for the railroad was uncontradicted. In Williams the plaintiff was injured while a trespasser on railroad property, and the court noted an absence of any fact or circumstance in evidence substantially contradicting the testimony of the engineer that because of cars on a siding he could not see the plaintiff until nearly upon her. Thus, it was said in rationalizing a basis for reversal that testimony of witnesses, if plausible, may not be arbitrarily disregarded. Of Tate it can be said that here, too, the court found an absence of substantial evidence of negligence in support of the jury’s verdict. The difference is to be found we think in the fact that in the cited cases the juries’ disregard of evidence was arbitrary, whereas here there was a genuine dispute.
Turning to the issue of substantial evidence, it should be noted the testimony of Mrs. Landis that her injuries were caused by the collision is, of course, controverted as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). And while her claim was generally supported by the testimony of the medical witnesses we do not find their testimony to have been so certain that the jury was required to attribute her complaints to the accident. From their testimony it is clear that Mrs. Landis demonstrated evidence of traumatic injury, but whether caused by the episode on May 28, 1979, they were not able to say. Dr. Elliott admitted the trauma could have been years earlier and acknowledged he could not say the conditions he observed were caused by the accident.
It is undisputed Mrs. Landis, who is 63, had had a previous injury and chronic, long-standing degenerative disc disease with spurring and lipping of the cervical vertebrae, a condition sufficiently severe of itself to cause periodic pain. The jury may have decided her complaints were attributable to pre-existing conditions rather than to the accident. There was testimony that she stated repeatedly she was not hurt and made no complaint during the 30 minutes or so she remained at the scene. Too, the jury may have been influenced by contradictions in her testimony and the opposing evidence: Mrs. Landis denied having danced at the Electric Cowboy in contrast to Rodger Hastings’s testimony he had seen her there dancing; she said her vehicle ended up in a “deep ditch,” in contrast to testimony the yards and roadway were level at the scene except for a swale no deeper than three inches and, finally, her denial that she was having pain or taking medication or tranquilizers prior to the accident was in direct conflict with the medical records of an earlier physician. Under the evidence the jury could have found for the defendant.
Appellant’s remaining argument is the court should not have submitted a verdict form for the defendant to the jury, because it was admitted by Rodger Hastings that the collision was his fault. But that would have been tantamount to a directed verdict for the plaintiff and for reasons already discussed we think whether Mrs. Landis sustained an injury as a result of the collision was a disputed issue and properly submitted to the jury.
The order denying the motion for a new trial is, accordingly, affirmed. | [
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Frank Holt, Justice.
The Arkansas Social Services petitioned the probate court for an appointment as guardian with the power to consent to the adoption of appellee Michael Bevill’s two minor children, Carri LeeAnn and Teresa Michelle, 7 and 9 respectively. Their mother is deceased. These two children have been in the custody of the Arkansas Social Services from December, 1978, until the time of the hearing in their action in August, 1981. The court struck the responsive pleadings filed on behalf of appellee Michael Bevill and appellee Mary Edith Bevill, the paternal grandmother, insofar as such pleadings related to custody, habeas corpus, and Mary Edith Bevill’s prayer that she be granted guardianship. However, the court granted her prayer to intervene. The petition of Arkansas Social Services to be appointed guardian with consent to adoption was denied as the court found the petitioner failed to meet its burden by clear and convincing evidence.
The appellant first contends that the probate court erred in disregarding the best interests of the children. Upon hearing all the testimony, the court stated:
There’s been some allusions to the fact that — or arguments to the effect that the court in making a decision ought to consider the best interests of the child and that is as opposed to being with the natural parents as opposed to being in an adoptive home. That’s a laudable purpose, but that’s really not the issue in this case, the best interests of the children, but it always has to be in the back of the court’s mind.
We feel the court properly followed the statutory framework set forth in Ark. Stat. Ann. § 56-128 (Supp. 1981), which provides “that before entering a guardianship order the court shall find from the evidence that .... the surviving parent----is unfit to have the child for any of the following ¿reasons----” It appears that the legislature intended that the court first make the determination that the parent is fit or unfit. If found unfit, then the court addresses the issue of the best interests of the child.
Appellant next contends that the court erred in permitting the intervention of Mary Bevill and considering her testimony which was not relevant or material to the petition before it. We cannot agree. It is true that Mrs. Bevill, the paternal grandmother, had no court ordered visitation rights nor was she acting in loco parentis. However, she had previously assisted her son in caring for the children in her home for about a year and a half based on a custody award of the juvenile court. She was planning to help him in the future should Michael gain custody of the two children. It appears she has demonstrated a sufficient interest in the children to entitle her to intervene and testify. Suffice it to say that appellant has not demonstrated any prejudice by the intervention which was limited to the testimony of Mrs. Bevill.
Appellant finally asserts that the court erred in finding that the Social Services’ proof falls short of establishing by clear and convincing evidence that appellee Michael Bevill is an unfit parent. We must agree. Appellant urges three grounds for the termination of his parental rights: § 56-128 (D), abandonment; § 56-128 (F) 3, neglect; and § 56-128 (H), lack of regular visits with the children or contact with the physical or legal custodian of the children.
The evidence shows that Michael Bevill, prior to the guardianship proceeding, made no efforts to gain custody of the children who had been in the Social Services’ custody since 1978 or approximately three years; that twice since 1978 he voluntarily committed himself to a mental institution for approximately six weeks total; for over two years after the children were placed in foster care, he never inquired of the Social Services’ worker about seeing the children nor called about their welfare, sent them Christmas cards or presents; he did not provide a social worker with an address, which was requested, so he could benefit from their rehabilitation efforts; he told the social worker to contact him through his mother, who testified she didn’t tell Social Services where he was because she didn’t know; he has lived alone and provided no monetary support for these two children for over three years, although he had been employed at different times in Arkansas, Missouri and Texas and earning over $200 a week during part of this time; he was unemployed for approximately a third of the time since 1977; he has three children by a former marriage, which resulted in divorce, and these children live with his parents because he couldn’t take care of them; he has been arrested for public drunkenness six or seven times in the past ten years; the only support he ever provided his other three children was to occasionally send his parents $25 or $30 a week; he presently has no j ob and has never had any savings; and if he regains care and custody of these two children, he would leave them with his parents until he gets a job and buys a home. The guardian ad litem recommended that the Social Services’ petition be granted.
Michael Bevill asserts he contacted Social Services about a month prior to this action concerning custody of his children. According to him the Social Services didn’t contact him about providing support and he didn’t know where the children were and was not allowed visits. However, he admitted he saw the children three or four times a year and that he had not provided any financial support since 1977, when he and his children’s mother were divorced. As indicated, their mother died in 1978.
Even though someone else, such as the grandparents or the Social Services, as here, has custody of a child, that does not relieve the father of the obligation to support the child; he must furnish support and this duty is a personal one which cannot be excused on the basis of the conduct of someone else unless that conduct prevents him from performing his parental duty; and this duty to support is paramount even though not ordered to do so by the court. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Here, we think the evidence is clear and convincing that the appellee Michael Bevill has demonstrated such an irresponsible attitude toward his children without any justifiable cause that appellant’s petition for guardianship with the right to consent to adoption should be granted.
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George Rose Smith, Justice.
This action for libel was brought by the four appellants — a former police chief and three former part-time police officers of the city of Shannon Hills. All four of the plaintiffs had left the city’s employment by January 1, 1981. The six defendants — the mayor and five of the six members of the city council — are essentially the incoming city administration that took office on that date. At the close of the plaintiffs ’ case the trial j udge directed a verdict for the defendants on the ground that they were immune from liability. The judgment recites that the court found no substantial evidence to support the plaintiffs’ allegations.
The assertion of libel is based upon a letter sent by the six defendants to the prosecuting attorney on February 20, 1981. We quote the body of the letter:
We, the undersigned city council members of Shannon Hills, Saline County, Arkansas, respectfully request you order a state police investigation of the following conditions at Shannon Hills, Arkansas:
1. Missing public records, specifically police records, have been removed from the files. Records which former Police Chief Willie Gerald Baker had previously shown to present council members and Mayor Max Foster, are no longer in the file. They were removed before the present administration assumed office on January 1, 1981.
2. Attorney John Hall of Little Rock, alleges that over 100 guns and other weapons were confiscated by the former police department. If these allegations are correct, all of these weapons are missing.
3. Numerous and sundry reports of confiscation of illegal drugs and drug paraphernalia by the late police department have been authenticated, specifically noted in the city court records. No record of disposition of those drugs and paraphernalia is on hand. Former Police Chief Baker has alleged that the drugs were “flushed down the toilet,” however, other knowledgeable individuals have indicated that such was not the case. Under either condition, the drugs and paraphernalia were not disposed of as prescribed by state law.
4. Many “hard copy” of tickets are on hand in the file, and in some cases both copies of the ticket were on hand. Since the “hard copy” should be given to the offender, the presence of this copy in the file could well indicate mishandling of bond and fine monies.
5. Missing police equipment is obvious. Vouchers for purchase of equipment are on hand, but the equipment is missing.
6. Informal contact with two former members of the police department revealed a willingness on their part to turn state’s evidence and/or cooperate with state police officials to resolve the problems.
In view of item 6, expedient action to conduct a thorough investigation of these allegations is essential to the health and welfare of all the citizens of Shannon Hills, especially the aforementioned members of the police force.
The letter is signed by Max Foster as mayor and by the others as aldermen.
Gerald Baker was police chief from August 1979 until January 1, 1981. The other three plaintiffs each worked for from five to fourteen months as part-time policemen. No one testified about the size of the police force; so it is impossible to determine how many other policemen were formerly employed in the department. Each of the four plaintiffs testified that he himself had not been guilty of any wrongdoing. They did not deny that some records and equipment might be missing. Baker said that he had flushed cocaine down the commode, but he had made a record of it in a folder that was in the files when he last saw it. The plaintiffs said that only a few guns had been confiscated, not as many as ten.
We hold that in the circumstances the letter was conditionally privileged. It was sent by public officers to another public officer, the prosecuting attorney, and pertained to public property and to the conduct of former public employees. In McClain v. Anderson, 246 Ark. 638, 439 S.W.2d 296 (1969), we held that school board members were conditionally privileged in discussing the conduct of a school teacher, at a meeting at which her discharge was being considered. In Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958), we held that a witness to a city policeman’s asserted misconduct was conditionally privileged in testifying about the matter during the city police committee’s investigation and at a public city council hearing. We noted in Thiel that “the committee and the council were discharging a public duty in inquiring into Rogers’ fitness to act as a policeman, and in the public interest it was desirable that they have as much information as possible about the incident.”
In the present case the mayor and aldermen were discharging a public duty in asking the prosecuting attorney to initiate an investigation of former public employees’ possible mishandling of public records, public property, and public funds. We do not see that it makes any difference that the letter was taken around by one alderman for the others’ signatures instead of being signed at a council meeting. In either situation the defendants were acting in the public interest.
Both McClain and Thiel state that a conditional privilege is lost if a defamatory statement is made by one who knows it to be untrue or who is motivated by malice rather than by the public interest that created the privilege. Here neither basis for the loss of the privilege was established by the plaintiffs’ proof. Hardly any statement in the letter is actually shown to have been untrue. Each plaintiff testified primarily about his own conduct, not that of others. Records and equipment were in fact missing. Drugs and drug paraphernalia had in fact been destroyed. Hard copies of tickets were in fact on hand. It is not shown whether Hall did or did not make the statement about 100 guns. Moreover, even if falsity could arguably be said to have been established, there is no showing that the six defendants knew any of the statements to be untrue.
Nor is it shown that the sending of the letter was actuated by malice. Except for the reference to Baker, which was true, the letter did not name anyone. If the mayor and aldermen believed, as they apparently did, that an investigation was appropriate, their communication to the prose cuting attorney could not have served its purpose without some description of the areas to be inquired into. We find no substantial evidence that would have justified the jury in concluding that the six defendants were motivated by actual malice in sending the letter.
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Richard B. Adkisson, Chief Justice.
Following a trial by jury appellant, Danny Sanders, was sentenced as a habitual offender to 20 years on each of two counts of aggravated robbery and to 60 years for rape. On appeal, we affirm.
On July 5,1981, a husband and wife were camped at the Oil Trough Ferry near Batesville. About 2:00 a.m. they were awakened by a man in their tent who told them that he had a .38 pistol and that he wanted their money. The husband immediately turned on a spotlight, at which time they realized there were four men in the tent, two armed with guns and two with knives. Later a fifth accomplice came into the tent. The robbers took the $11.00 that the couple had; the husband was then forced to accompany three of the men to the tent-trailer of people camped nearby. Meanwhile, appellant and another man stayed in the tent and raped the wife.
Several weeks later a deputy sheriff showed the victims photographs of four suspects. The wife picked out appellant as being one of her assailants. The husband picked appellant as a look alike but was unable to make a positive identification. At trial appellant was positively identified by each victim.
Appellant first argues that the victims’ in-court identification of appellant should have been excluded because it was unreliable. Appellant alleges that the following factors point to unreliability: The wife, in a handwritten statement to the police, stated that her assailants referred to each other as Ricky and Bobby; appellant’s name is Danny. The wife at one time testified that appellant’s face was clean shaven; yet there was some evidence that appellant had a mustache and goatee at the time of the rape. The wife stated she did not remember any distinguishing characteristics about appellant; yet he had numerous tattoos on his arms and was small (5T" and 115 pounds). The husband positively identified appellant at trial; yet before trial was unable to make a positive identification from a photograph.
It is not argued that the procedures leading to the identification were constitutionally infirm; therefore, the reliability of eyewitness identification is a question for the jury. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976). Although the wife could recall very few of appellant’s physical characteristics in describing him to the police, her identification of appellant both in court and by picture was always positive and unwavering. There was testimony that the spotlight in the tent was on during the rape, and the wife testified that she looked directly at appellant. The credibility of the witnesses and the weight to be given to their testimony was a question for the jury.
Appellant argues that the trial court erred in allowing the State to introduce a photograph depicting appellant as clean shaven on the date of his arrest. The appellant called several witnesses, most of them family members, who testified that the appellant had facial hair on the date of the offenses, but had shaved it after he was arrested. The photograph was relevant to the testimony of those witnesses who stated that the appellant shaved his face only after he was incarcerated because the photograph shows him clean shaven on the date of his arrest. A juror could draw an inference of either dishonesty or faulty perception based on this evidence.
Appellant argues that the trial court erred in refusing to order that appellant be allowed to take the depositions of two out-of-state persons who were called as witnesses at the trial by the prosecution. Appellant alleged that the witnesses refused to speak with defense counsel; therefore, he could not adequately prepare for trial. However, appellant has failed to show how he was prejudiced by his not being allowed to take their depositions before trial. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). Both witnesses testifiedat trial and defense counsel had an opportunity to cross-examine them. There is nothing to indicate that appellant was not furnished with the witnesses’ statements after direct examination as required by Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). Appellant cites A. R. Cr. P. Rule 17.4 (Repl. 1977) and Ark. Stat. Ann. § 43-2011 and § 43-2011.1 (Supp. 1981), to support his argument but neither the statutes nor the rule provides for the taking of a deposition under the circumstances present in this case. In light of the above considerations, we cannot say that the trial court abused its discretion in refusing to order the depositions.
Appellant argues that the trial court erred in limiting his attorney’s fee to the statutory amount of $350.00 as set out in Ark. Stat. Ann. § 43-2419 (Repl. 1977). We disagree. The attorney submitted a bill of $4,625.00 to the county for services rendered pursuant to his appointment in this case. The trial court ruled that the charges were reasonable but correctly refused to order payment in full, citing precedent of this court and the statutory limit of $350. State v. Ruiz & Van Denton, 269 Ark. 331, 602 S.W.2d 625 (1980).
Appellant now argues on appeal that Ark. Stat. Ann. § 43-2419 (Repl. 1977) violates various other provisions of the state and federal constitutions. However, these objections'to the statute were not raised in the trial court and this court will not consider arguments raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Affirmed.
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By the Court,
Dickinson, J.
The transcript in this case shows a degree of irregularity in the proceedings of the Court below, which we deem it proper to notice, as well because it is not only calculated to do injustice to the inferior tribunal, but greatly increase the labor of this Court, in arriving at the question in issue between the parties. The declaration was filed, and the affidavit bears date, the 19th of September, 1840, while the order to hold to bail, and the writ of capias, are dated the day preceding. The writ neither states the amount of debt claimed, nor has it any official seal; and the affidavit claims a subsisting and unsatisfied debt of $1000. The order to hold to bail is for $520 61. The writ was not delivered to the sheriff until the 13th of November, (a period of nearly two months), and then returned by him as coming to hand “ too laic to be executed.” It ap pears by the transcript, that the summons not being executed, on motion. of the plaintiff,, an alias summons was ordered. On the 23d of November, 1840, a second capias was issued, upon which the sheriff returned that he had executed it by “ arresting the body of Ferdinand C. Fulcher, and taking bail bond of him for his appearance at court.” The appellant then moved to set aside this return, upon the ground that the sheriff did not read the writ to him, nor deliver, him a copy thereof, as by the statute (p. 621, sec. 15,) he was bound to do. This-motion was overruled by the Court; and, there being no further de-fence, judgment was entered against him, by default. The transcript states, that leave was given the sheriff/to amend his return. We are to presume that it comes to this Court as amended; and there is no objection raised to the correctness of the record. The return is, in our opinion, defective and insufficient, and does- not conform to the statute, which expressly requires the sheriff to read the capias, or deliver a copy to the defendant. The Circuit Court unquestionably erred in not setting aside the return, upon the motion of the appellant, and in giving judgment against him by default.,
Judgment reversed. | [
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By the Court,
Lacy$ J.
The.statute regulating the proceedings, enacts, that “any person being the legal owner or holder of any bond, bill, or note, for the payment of money or property, may sue thereon, in any circuit court having jurisdiction thereof, by petition in debt.” Rev. St., •p. 152. It is clear that the object of the act is to give to the party, by petition and' summons, a summary mode of recovery in debt. Indeed, the proceeding under the statute is a new and more simple manner of suing in that form of action, and will only lie in such cases where, by the common law, debt could be maintained: it is by petition, and not by declaration. The party is required to show that he is the legal holder of the bill, bond, or note; and in this it resembles debt; for, in that case, the plaintiff must show that the legal interest is in him, and the instrument declared on must be substantially set out. By petition and summons, a copy of the instrument is required to be inserted. The breaches, in both cases, are precisely similar, in averring that the debt remains unpaid for which the plaintiff demands judgment, and damages for detention. The form prescribed constantly speaks of the debt, and keeps up that idea throughout; thus showing, conclusively, that the suit contemplated by the Legislature, had reference alone to such cases for which debt would lie at common law. It gives a new remedy, which is cumulative of a pre-existing right, and restricts the form of action to the particular class of cases by which that right could be asserted. Upon a note executed alone for property, or an agreement for unliquidated damages, debt will not lie, neither will a suit by petition and summons. The party, in both cases, could not make the necessary averments, or assign proper breaches: he could not allege that the debt was unpaid, or that he demanded judgment for the same, and damages for its detention. The term “ debt” has a legal definite signification, and means a sum certain, or that which may be reduced to a certainty. When the intervention of a jury is required to assess unliquidated damages, debt will not lie. In such cases, neither can petition and summons be brought, because there would be no certainty in the debt demanded.
Upon a statute similar to our own, the Supreme Court of Kentucky, in the case of Janny vs. Henry, 2 Mon. 95, held that petition and summons can only be maintained, for the direct payment of money, by evidence in writing. The suit must be prosecuted to final judgment and execution, in the same manner as if commenced in, the ordinary-form. The statute makes no provision for taking and executing judgment for property. This principle proves that, in the case now before the Court, the party has mistaken his form of action. An agreement to pay so much money, in Arkansas paper, or bank notes, is certainly not a direct contract to pay that amount in lawful currency. The party suing is only entitled to recover the value of the paper or bank notes at the time the same became due, and that value can only be ascertained by witnesses to establish the fact; and, upon proof thus given, the amount of the verdict should be entered up, fixing the sum at the intrinsic and real value of the paper in lawful money.
Judgment reversed. | [
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Held, that, according to the act of the General Assembly regulating the practice of the Circuit Courts in cases in Chancery, a party is not entitled to an appeal, unless upon a final decision, order, or decree.
And that, where the drecree affirms that the conveyance of certain slaves is a mortgage, and that the complainant has a right to redeem under it, and directs the Master in Chancery to take an account, and make report to the next term of the Court; these facts clearly show that the decree is merely interlocutory, and not final or conclusive between the parties; and fhc appeal will be dismissed for want of jurisdiction. | [
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Held, that when there are several defendants, one of whom is not served with process, nor appears, and judgment taken by default, against all, it is erroneous as to all. | [
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By the Court,
Dickinson, J.
Writs of prohibition were granted in England, both in the common pleas and king’s bench. Burke's case, Vaugh. 157, 209; Langdale's case, 12 Co. 58, 109. It lay where an inferior court was proceeding without jurisdiction. Pringe vs. Child, Moore 780; Martin vs. Archbishop of Canterbury, And. 258; or where the jurisdiction belonged', properly, to another court; Edwards' case, 13 Co. 9; Case of Prohibition, 12 Co. 76; or when the inferior court transcended its jurisdiction, by holding plea for too large an amount; Coats vs. Suckerman, 1 Ro. 252; or where a plaintiff had • one demand, and split it into several actions, so as to give an inferior court jurisdiction; Catchmade’s case, 6 Mod. 91. So, where the judges proceeded in cases, where they were prohibited by act of parliament. Porter vs. Rochester, 13 Co. 4. The writ would not liftjo court having cognizance of the cause, or jurisdiction of the subject, on a suggestion of erroneous proceeding. March. 92, Pl. 152. The remedy, in such cases, was by appeal. Smith vs. Mayor of London, 6 Mod. 78; Guillan vs. Gill, 1 Lev. 164. The rule was, at common law, that no prohibition lay to an inferior court, in á cause arising out of their jurisdiction,-until that matter had been pleaded in the inferior court, and the plea refused. Cook vs. Liceuse, I Lord Raym. 346; Wayman vs. Smith, 1 Sid. 464; 1 Mod. 64, S. C.; 1 Mod. 81; Marriott vs. Shaw, Com. 278; Mendyke vs. Stint, 2 Mod. 272. It must appear, in the suggestion, that the plea was verified, and ten- dercd in person, during the sitting of the inferior court. Sparks vs. Wood, 6 Mod. 146; Clerk vs. Andrews, 1 Show. 12. And there is no precedent of a prohibition, quia timet. The writ was obtained on a suggestion, without which no prohibition lies to an inferior court. Bishop vs. Corbet, 1 Lev. 253; Plaxton vs. Honore, 12 Mod. 435.
The suggestion stated the nature of the case, the proceedings in the court below, and concluded with a prayer ibr prohibition. If the motion was founded on matter of suggestion only, an affidavit of the truth of the matter suggested, was necessary; 10 Mod. 387; Burdett vs. Newell, 2 Ld. Raym. 1211; Salk. 549; but it was otherwise, where the truth of the suggestion appeared on the face of the proceedings below, though after judgment. Godfrey vs. Liewellin, Salk. 549; Selby vs. York, C. T. Hard. 392. Upon the suggestion being filed, the court granted a rule to show cause why the writ should not issue, which was afterwards made absolute, or discharged, according to the circumstances of the case. If it was a nice or doubtful case, the court made the rule absolute, and directed the party applying to declare, which he did, by serving the other side with the rule, without taking out a writ, itnd then delivering his declaration. If the defendant then submitted, he might refuse the declaration, and the court would then, on ¿is' application, stay the proceedings, without costs, because he acknowledged that the rule ought to go, and declined relying on the proceedings below; 1 Saund. 136, n. 1; Bull. N. P. 218; Gegge, vs. Jones, 2 Str. 1149; or the defendant might insist upon a declaration. Bu t if the court was of opinion against a prohibition, the party applying had nS right to declare. Rex vs. Bishop of Ely, 1 W. Black. 81; S. C. 1 Burr. 198.
The inferior court was bound to desist immediately, on the application for a prohibition, and the court above look notice of their practice to do so; and would take care there should be no further proceedings, by attaching the judge of the inferior court, for his contempt in going on. 1 Saund. 136, n. 2. By the declaration, the party who applied for the prohibition, suing qui lam, complained of the party proceeding against him in the inferior court, of a plea, wherefore he prosecuted a plea in the court below, &c., after a prohibition to the contrary thereof, directed and delivered to him, for this, to wit: that whereas, &c., setting forth all the facts, the objection to the jurisdiction made in the court belov», and the refusal'of the court to admit the plea and allegation, concluding that the defendant is endeavoring and' contriving to obtain, or has judgment and condemnation, though the writ of prohibition had been directed delivered to him on, &c.,to the contrary, in contempt of the State, and to the damage of the plaintiff, &c., concluding with the common ad damnum. Crouch vs. Collins, 1 Saund. 136; Lilly's Entries, 316, 328.
This declaration commenced an action, which was, in notion of law,, founded upon attachment against the defendant, for a contempt, in proceeding after a writ of prohibition had been' served upon him. But it was a mere fiction, used for the purpose of trying, with greater certainty, whether the inferior court ought to proceed further in the suit. The defendant was not, in fact, served with any writ of prohibition, and, therefore, had not, in truth, incurred any contempt for a disobedience of it, but this matter was alleged for form’s sake, to entitle the plaintiff to demand damages of the defendant, and thereby to give the action the requisites of a suit. Notice was necessary to be given to the defendant, before his appearance. State vs. Allen, 2 Iredett. 183. He then either demurred or pleaded to the declaration, but, in either event, he traversed the proceeding, after prohibition servefjl, and the contempt, and commenced his plea or demurrer to the material points, in order to have a consultation in this behalf, and prayed judgment and a writ of consultation. 1 Saund. 136.
Whether the defendant pleaded or demurred, no verdict was taken on the traverse, as to the further proceeding and the contempt. ' It was immaterial, like the finding as to the vi et armis, in trespass. Stratford vs. Neale, 1 Str. 482; S. C. 8 Mod. 1. If there was a verdict for the plaintiff, and if, upon demurrer, the court were of opinion that there was not sufficient ground for a prohibition, judgment, was given for the plaintiff, and both the defendant and the inferior court were prohibited from going any further. It was then, and not till then, that the writ of prohibition actually issued. 1 Saund. 136. The writ was directed to both the court and the party, and commanded the one not to hold, and the other not to follow the plea. 1 N. Hill, 200.
If, on the other hand, the verdict was for the defendant, or the court, upon demurrer, was of opinion that there was no ground for a prohibition, then a writ of consultation was awarded; and where this writ was awarded on the merits, there could never be another prohibition upon the same suggestion. This writ was called the writ of consultation, because, upon consultation had, the judges found the prohibition to be ill founded, and therefore, by this writ, they returned the cause to its original jurisdiction, to be there determined, and com.manded the inferior court to proceed and determine it, the prohibition to the contrary notwithstanding. 1 Saund. 136, n. 5; Lilly's Entries, 562; 1 Keb. 286; 8 Mod. 3; 2 Keb. 404, pl. 17. If the declaration varied from the suggestion, it was bad. Harrows' Case, 7 Mod. 114; Gomersall vs. Bishopp, 1 Lecon, 128. Both parlies in prohibition being actors, there might be traverse upon traverse. Fort. 350. No traverse, however, could be taken on ah allegation that the court below refused the plea. Moore, 425; Stratford vs. Neale, Str. 483.
If there was no plea or demurrer in due time, judgment went by nihil dicit. Turner vs. Rainier, 12 Mod. 447.
Such we have ascertained, after considerable research, to have been the common law doctrine and mode of proceeding. And as we have no statute upon the subject, the common law, with all its incidents, is, of course, as far as applicable, in force here, and it only becomes necessary so to mould the remedy, as to render it available under our system of jurisprudence, preserving, as far as practicable, all its common law attributes.
We understand, then, that a party wishing to avail himself of this writ, in our courts, must, if the facts are not presented by the record of the inferior court, make the proper suggestion to the inferior tribunal, setting forth all the material facts upon which he relies, with the proper allegations, and if the facts do,not appear on the record, verily the truth of them by affidavit. Upon the presentation of the suggestion, a rule should be entered upon the opposite party, requiring'him to show cause, upon a given day, in’ court, why thg writ should not issue; which rule, when so entered’ and served upon the inferior court and the party, shall stay all further proceedings in the case; and the court will then, in their discretion, make it absolute, or discharge it, and, if the former, direct the party to declare, without issuing the writ. If the defendant, upon the suggestion being presented, admits the facts, the rule will go, and the writ issue. But if he insists upon a declaration, the case then takes its ordinary course, and must be decided upon demurrer, or plea to the merits, and the writ be granted, or the cause remanded to its original jurisdiction, to be there proceeded in and determined.
As it is a qui tam action, under our statute a bond for costs must be filed, before or upon the filing of the declaration, which is the commencement of the action,
In the case now before us, and in which the party asks a writ of certiorari to bring up the proceedings of the circuit court, it is evident there has been a total disregard of all the principles which govern the mode of proceeding upon prohibition, and that until there has been a final disposition of it by the circuit court, the appellate jurisdiction'of this court does not attach. Upon final judgment, a writ of error will lie, as in ordinary cases.
The application for the writ of certiorari must, therefore, be refused.' | [
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By the Court,
Dickinson, J.
The objections taken to the issuing the writ to a county different from the one in which the suit was brought, and the rate of interest, have both been expressly ruled, by this court, against the plaintiffs in error. The question, as to the right to sue on a writing obligatory, cannot properly come before the court, in this case, as decided in the case of McFarland and others vs. The Bank of the State of Arkansas, at the last January term of this court. The party having failed to raise it by a proper plea, and there being one state of case, in which the bank has unquestionable authority to take writings obligatory, and as the inference is in favor of the court below, the judgment must be affirmed. | [
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By the Court,
Dickinson, J.
The record in this case states that the proceedings were had before a particular judge, by name, and it is contended that this court is bound to know that he was not commissioned for the circuit in which he presided, and, therefore, his acts were coram nonjudice, and utterly void. This case is peculiarly situated, and bears but little analogy to any one that has been previously decided by the Supreme Court of the United States, or any of the several courts of the Union. It must, therefore, be investigated and determined upon its own particular state of facts. The officer who presided, was acting in obedience to the authority of the Legislature, which this court has declared to be invalid, not because the General Assembly had not ample and plenary power over the subject upon which they legislated, but because in attempting to prescribe an interchange of circuits, they exceeded that power, in making the rule permanent and not temporary. The circuit court, in this instance, is a constitutional court, and always in esse. The judge who presided, was ineligible to the exercise of the office, for the time being. The inquiry now is, were his acts nullities, and absolutely void, as to third persons and the public, on this account, and that, too, in a case where the parties voluntarily submitted to his jurisdiction, never attempting to question his power? Do his acts bind until his power is vacated by a regular judicial process and trial? or is it lawful for each citizen, individually, or,the community, in its aggregate capacity, to resist and annul his authority? To whom belongs the power of rightly investigating, and finally settling, the constitutionality or unconstitutionality of an act of the Legislature? to the people or the judiciary ? The inquiry solves the question. If to the people this power appertains, then the authority of the government, while its acts are in the progress of execution, is subject to the dominion of arms, and not to the rules of law. This view of the case is strengthened by the consideration that should the Legislature proceed to elect a person to fill the office of judge, who, by the constitution, was disqualified to hold it, and should the Governor commission him under this illegal election, and he take possession of the office and administer justice, and afterwards his commission should be vacated, would his acts in the mean time not bind third parties and the public? They unquestionably would. Now, in the case supposed, the officer would be unconstitutionally elected and commissioned, but how could that affect his acts and proceedings, until his authority and commission were regularly and properly abrogated? His acts for the time being must be binding, because he was inducted into the office under the appearance of right, and by authority of law, and an executive commission. And each department of government is bound to show that kind of deference and respect to the acts of the others that are clothed with regular authority, although it may turn out, upon future inquiry, that authority was improperly and unconstitutionally exercised. The case at bar stands upon a like principle and parity of reason. And if the acts of the officer in the case put, would be good against third persons or the public, the proceedings of the judge, in the present instance, cannot be absolute nullities. If this is true as a general proposition, it must be especially so when applied to the peculiar facts of this case. Here the suitors submitted themselves to the jurisdiction of the judge, and never caused any statement to be made, by which it expressly appears that the interchange of riding took place under the regulations attempted to be prescribed by the Legislature; nor was his authority in any manner impeached or called in question. If any hardship or injustice were about to be perpetrated, it was not only competent, but perfectly lawful, upon such suggestions, for the party to have proceeded in a proper manner to have caused his legislative authority to have been set aside. It is too late now to take advantage of this defect or omission; for if such indulgence was allowable, the constitution and the laws, instead of providing a shield for the protection of private right, might be converted into a weapon of offence against the peaceful and successful operations of the government. Such a state of things would never be permitted or allowed by a court of justice, entertaining proper respect for the other two departments of the government; especially by the judiciary department, of which this court is the last arbiter and expounder of the constitution and laws themselves, under which life, liberty, and property, are preserved, not only to be protected, but rendered inviolably secure.
Judgment affirmed. | [
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By the Court,
Ringo, C. J.
Several questions are presented by the record and assignment of errors; the most important of which, as we conceive, arises out of the adjudication upon the demurrers of the plaintiff to the pleading of the defendants below, which, according to the well settled rales of law, imposes upon us the necessity of considering not only the validity of the pleas, but also the sufficiency of the declaration, and pronouncing judgment against the party whose pleading exhibits the first fatal defect. We shall, therefore, in the first place, confine our inquiries to the first count in the declaration; because, if that shows no cause of action, it is useless to inquire whether the pleading in response to it be good or bad, as the legal result would, in either event, be the same.
The count of the declaration is, in form, sufficient, but it presents, broadly, this question: What is the legal consequence of the holder of a bill of exchange endoEsing it to the acceptor, where there are several parties to the bill? In the present case, the bill of exchange mentioned in the first count, is stated to have been drawn by Woodruff, in favor of Crutchfield, and accepted by him, and then to have been .endorsed by the payee to the acceptor, and by him to the Bank. Under these circumstances, the rights of the Bank in respect to the bill and the transaction, whatever they may be, are such only as she acquired under, and by virtue of, the endorsement of the bill to her by the acceptor, who is, by this suit, sought to be charged, not as an endorser, but as the acceptor of the bill. Now, it is understood to be well settled, that the law regards the acceptor of a bill of exchange as the principal debtor, and not only primarily liable to the holder, but also ultimately responsible to every other party to the bill, by whom it may have been bona fide taken up or paid, unless his acceptance was made for the accommodation of either the payee or drawee, and that fact be made distinctly to appear. In the case before us, such is not shown to be the fact, and the law does not presume it. What, then, was the legal obligation of the parties to the bill, respectively, after it was endorsed by the payee to the acceptor, while it remained in the hands of the latter? Could any action be maintained upon the bill, either by or against any party to it? In our opinion, the answer must be in the negative. And, if this be true, is it not a necessary consequence, that every party to the bill was thereby discharged from all legal liability upon it? Such, we think, is the legal conclusion upon the facts, as stated in the first count of the declaration. And, if these positions bo true, as we consider them to be, the instrument, when the acceptor became the proprietor and legal holder thereof, was divested of all obligation, and the parties to it were, of course, discharged from all responsibility thereon. And we consider it equally clear, that the simple endorsement of the bill, by Beebe, could not revive its obligation, or in any manner bind the other parties to the transaction, notwithstanding he might thereby charge himself, as we have no doubt he did, though not as the acceptor of the bill, because, as before shown, its legal obligation was previously extinguished, and it had ceased to be a negotiable security. The Bank, therefore, if she sought to charge the parties to the bill, as the acceptor, drawer, and endorser theréof, as she has attempted to do, should have shown at least their assent to the transfer thereof to her by Beebe, so as to avoid the legal presumption that it had been paid, taken up, and extinguished by the acceptor, which, as we conceive, necessarily results from the union, in him, of both the legal title and possession of the instrument. This she has not attempted to do, as there is nothing in the record to warrant the conclusion that such was the fact. The legal presumption, therefore, that the bill had been bona fide satisfied and extinguished by the acceptor, previous to his endorsement thereof to the Bank, must be indulged; and, upon this ground, the first count in the declaration is fatally defective, the allegations therein showing no legal cause of action whatever, against either of the defendants below. In this opinion, we are fully sustained, as we conceive, by the judgment of the court of appeals of Kentucky,, in the case of Long & Robertson vs. The Bank of Cynthiana, reported in Littell, 290, which is the only adjudication expressly in point, of which we have any knowledge. We have carefully considered all of the cases cited by the appellee, but none of them, in our opinion, warrants the conclusion sought to be deduced from them. The facts in them were essentially different from those appearing in this case, and they establish no principle adverse to the one above stated. The-controverted question, in the cases cited, was, whether a negotiable-note or bill of exchange, after it had-been paid to the holder, and taken up by some party to it other than the principal debtor, was negotiable; and in such case, they have been held to bé negotiable, notwithstanding the payment. Such is the case where the transfer will not subject any parly thereto, whose liability thereon was discharged by the payment, to an action at the suit of the endorsee or holder. But when the effect of the transfer would be to subject any party to the instrument, whose liability was extinguished by the payment, to a suit by, or in the name of, the assignee, endorsee, or holder, they have uniformly been considered and held to be not negotiable.. In our opinion, therefore, the demurrer to the pleas, to the first count of the declaration ought to have been overruled, and that count of the declaration adjudged insufficient,in law, to support the action; and the court, in sustaining the demurrer to said pleas, in our judgment, unquestionably err fed.
The only remaining question which we deem it proper to notice, is as to what is the legal effect of the nolle prosequi, or discontinuance of the cause, by the'plaintiff below, as to two of the defendants, Wood-ruff and Crutchfield, upon the case as to their co-defendant, Beebe. This court has decided at the present term, that where a plaintiff enters a nolle prosequi or discontinuance as to a part of the defendants, upon whom process has been duly served, and who are then bound to appear in the case, whether the action be founded upon a joint or joint and several contract, it is, in law, a discontinuance of the action as to all of the defendants, and the case is thereby out of court. And that such is the general rule on the subject, we think there can be no doubt; but, on the part of the appellant, it is urged, that this case forms an exception to the general rule, and some cases are cited in the brief as establishing this proposition.
The first that we shall notice is the case of Fuller vs. Van Schaick et al., 18 Wend. 547, which was a joint action against the maker and endorsers of a promissory note, in which the plaintiff discontinued as to the endorsers, and took a verdict against the maker alone, which the Supreme Court of New-York refused to set aside. In deciding this case, that court expressly admits the general rule to be, as we have stated, but deny its applicability to the case, on the ground, as we understand it, that thq statute of that state, allowing the plaintiffs to include all the parties to a bill or note in one action, does not turn distinct liabilities into a joint contract, but only gives a joint action to enforce the several liabilities of the different parties. But this decision, as we apprehend, was influenced more by the statutory provisions contained in the statutes of 1832 and 1835, cited by the court, a portion of one of which, as quoted in the opinion, declares, that judgment may be rendered for the plaintiff against some one or more of the defendants, and also in favor of some one or more of the defendants, against the plaintiff, than by any other consideration. Besides, the opinion states, expressly, that the 2d section of the act of 1835, carries this severance of the action still further. And in the case of The Bank of Tennessee vs. Field et al., 19 Wend. 643, the same statutes of 1832 and 1835, are again cited by the court, and the judgment is, we think, evidently based upon their provisions. There are no such statutory provisions in force here, Consequently, these adjudications are not applicable to the present case, and can have no influence upon it.
In the cases of Minor et al. vs. The Mechanics' Bank of Alexandria, 1 Pet. 46, and The United States vs. Lafler, 11 Pet. 86, the Supreme Court of the United States appears to have proceeded upon the ground that, inasmuch as the cause of action was several as well as joint, and the defendants had severed in their pleading, a nolle prose-qui as to such of the defendants as had severed in their defence, could be entered, and, in such case, would not operate as a discontinuance of the action as to the other defendants, as to whom, notwithstanding the nolle prosequi, the plaintiff might proceed to judgment; and the judgment would not, for that cause, be reversed; at least it would not, when, as in these cases, no objection was made to the nolle prosequi, or subsequent proceedings, at the time, or in the inferior court.
This we understand to be the extent of the rule established; and, although it may be extended beyond the limit prescribed to it by the common law,' as it is understood in England and many of the State courts, still, it is not sufficiently enlarged to embrace the case before us; for, notwithstanding the cause of action is, in this case, only several, and the liabilities of the parties distinct and entirely independent, the action against them is joint; and, as the defendants all joined in one defence, the case is, on this account, clearly not within the extension of the rule, as established by the Supreme Court, but falls expressly within the operation of the principle asserted by this court; which is, that, in all actions of contract, notwithstanding the contract is several as well as joint, and the plaintiff may sue each separately, or all, or as many of the parties to the contract jointly, as he may think proper, when he has made his election by instituting a joint action against all or any number of the parties, he must be held to his election, and prosecute and conduct the suit as he would be bound to do if the contract was merely joint. The law making all contracts several as well as joint, and giving the plaintiff this election in the first instance, is not more liberal than just, and was made exclusively for his benefit; but it is equally regardful of the rights of defendants, and, for their benefit, it binds him to abide his election, when once made, until the suit is determined, except in cases where the process is not served, or not served in time to bind the defendant to appear at the term to which it is returnable; in which case, the plaintiff, by virtue of the statute, may discontinue as to those not served or not served in time, and proceed against those who are bound to appear; or, he may continue the suit until the next term of the court, and take new process against those not served; but, at the second term, the suit shall proceed against all the defendants who may have been served with process in due time. Rev. St. Ark. 626, sec. 45, 46, 47. We are, therefore, clearly of the opinion, that neither the common law nor statute authorized the plaintiff to proceed, in this case, against Beebe,, after it was discontinued as to Woodruff and Crutchfield, without his consent, the suit thereupon, by the mere operation of law, being immediately out of court, and discontinued as to all of the defendants.
Judgment reversed.
Upon the question of discontinvance, in this case, Lacy, J., did not assent to the opinion, as he subsequently declared. | [
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By the Court,
Lacy, J.
The recognizance is taken in compliance with the statute, and the declaration properly negatives its condition. The inquiry now is, what is the obligation of the parties entering into such recognizance?
The meaning and objects of the act, as well as its express words, are clear and explicit. Whenever a party has obtained a judgment in the Circuit Court, his adversary is entitled, as a matter of right, to a writ of errror; but he will not be permitted to stay the execution, unless, in accordance with the provisions of the statute, he secures the payment of such judgment by entering into a recognizance, “ conditioned that the plaintiff in error will prosecute such writ with effect, and pay the money adjudged against him by the Supreme Court, or otherwise abide its judgment.” These are its express words. That the recognizance is to secure the debt, damages, and costs, that have been recovered by the judgment complained of, both in the Circuit and Supreme Courts, cannot be doubted. Its language could not be more explicit; for, if it does not mean that he is bound to pay the debt, damages, and costs, in both courts, then we are at a loss to conceive the object and intention of the act. Again, it is declared that the condition of the recognizance is, that the plaintiff in error shall prosecute his writ with effect. What is the meaning of the term “prosecute his writ with effect?”
It certainly denotes and expresses, that he will succeed in the action, and that, if he does not, they will pay the money for his failure. The latter clause of the sentence binds them to pay the money that may be adjudged against him in the Supreme Court, or otherwise abide its decision. If there could be any doubt before, as to what is the true meaning of the terms, then these latter expressions wholly free the subject from all doubt and uncertainty.
The defendants in error expressly stipulate to pay the money 'that the Supreme Court may adjudge against the principal in the recognizance, or that he shall abide its judgment. Now, it is the same thing whether this Court adjudges the money against him directly, or orders the Circuit Court to adjudge it- Besides,, he is bound to- abide its judgmfent, and of course the legal consequences that follow the judgment. Whether the Supreme Court enters the judgment itself, or directs its judgment to be entered up by the Circuit Court, is a matter of no moment.
■Judgment reversed. | [
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By the Court,
Dicninson, J.
We have not considered the instructions of the Court upon the trial, because the .transcript (and its truth is not controverted,) shows nothing lo try. Although leave was ' granted to interplead, it never was done. This proceeding by way of interpleader partakes of an equitable character. Its object is to save unnecessary litigation, because the title' can be tried and determined with the same facility as if a new action was instituted. But such interpleader must be in writing, and embody sufficient matter to make up an issue upon, if necessary, and support a verdict and judgment. This' was not done. There was ,no action in Court. Judgment reversed, and the case remanded, with instructions to permit the interpleader to be filed, if leave be asked to do so; otherwise, that the case be dismissed. | [
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Held, that if, in replevin, there is judgment for the defendant, de retorno habendo, and an order for a writ of enquiry to assess damages, there is no final judgment from which an appeal lies to this court. | [
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Robert H. Dudley, Justice.
Appellant Alvin Lovelace was charged with the June 25,1981 aggravated robbery of the 7-11 convenience store at 1803 Broadway in Little Rock. A jury convicted appellant of aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Supp. 1981) and he was sentenced to life imprisonment under the habitual criminal statute, Ark. Stat. Ann. § 41-1001 (Supp. 1981). Jurisdiction is in this Court pursuant to Rule 29 (1) (b). Appellant contends that the trial court erred in refusing to instruct the jury as to the lesser included offense of robbery. We affirm the trial court.
The evidence establishes that Lewis Parker was working the night shift at the 7-11 store when the robbery occurred. A man, later identified as appellant, came into the store shortly after 2:00 a.m. and asked to buy a pack of cigarettes. Parker bent down and reached under the counter to get the cigarettes. When he straightened up the man pulled a gun and said he wanted the money. Parker opened the cash register and then gave appellant the drawer containing the money. In the drawer there was a cluster of bills attached to a transmitting device. When the cluster of bills was removed the transmitting device activated a hidden camera. After appellant collected the money he told Parker not to make a move or he would kill him. Appellant repeated the threat as he left. Photographs taken by the hidden camera reproduce part of the scene during the aggravated robbery. One of the photographs is of the robber holding a small revolver. The trial court gave an instruction on aggravated robbery but refused to instruct on the lesser included offense of robbery. Appellant appeals from that ruling.
Aggravated robbery is set out in § 41-2102 as follows:
Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 of Act 280 of 1975 (Ark. Stat. Ann. § 41-2103) and he: (a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
* # #
And robbery is set out in § 41-2103 (Repl. 1977) as follows:
Robbery; — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
# # #
Robbery is a lesser included offense of aggravated robbery. Hill, et al v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). In Hill, we noted:
If there is any evidence to support the giving of the instruction on the lesser included offense, it must be given. Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). But, if there is no rational basis for acquitting appellants of aggravated robbery and convicting them of the lesser offense of robbery, the lesser instruction need not be given. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977); Hamilton v. State, supra.
The trial judge stated in Hill that he gave only the aggravated robbery instruction because there was no question that a deadly weapon was used. A similar situation exists here because all the testimony was that a gun was used and, uncontrovertibly there was no testimony indicating that a gun was not used. A photograph clearly reflects the use of a small pistol by the robber. Thus, there was no rational basis for acquitting appellant of aggravated robbery and convicting him of robbery. The appellant was guilty of aggravated robbery or nothing at all. Therefore, it was not error to refuse to instruct on the lesser included offense.
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Darrell Hickman, Justice.
This is a products liability case. In 1978, Artie Little, age 82, was walking by the roadside in Strong, Arkansas, when she was hit with a rim that came off the wheel of a passing truck. She filed suit for damages against the owner of the truck and trailer, Harvey Shelton, the owner of a service station who fixed a flat on the wheel of the trailer that day, Jackson Smith, and Firestone, the manufacturer of the rim. At trial, the jury exonerated both the owner of the truck and the service station owner, and awarded Artie Little $150,000 compensatory damages, and $200,000 punitive damages against Firestone.
The judgment has to be reversed because Firestone asked the day before trial whether the plaintiff and the two other defendants, Shelton and Smith, had entered into a “Mary Carter Agreement.” A Mary Carter agreement is one in which a plaintiff secretly agrees with a defendant that if the plaintiff recovers from another defendant, the agreeing defendant’s liability will be reduced. Those agreements were so named when one arose in Florida in Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla. App. 2d 1967). Firestone’s counsel asked before trial if any agreements had been made whereby Shelton’s or Smith’s liability would be reduced if Artie Little recovered against Firestone. Smith’s and Shelton’s attorneys objected and the trial court did not order the disclosure of any such agreement. On appeal, the appellee argues that Firestone knew or suspected such an agreement existed several months before trial and should have attempted to discover that information far in advance of the day before trial. We do not find Firestone waived their right to object.
There seems to be little doubt of the existence of some sort of agreement and we hold that the trial court was wrong in not requiring the agreement to be disclosed. Furthermore, we join those states that hold such an agreement is not only discoverable but also may be admitted into evidence.
The state courts that have considered this question are split to some degree on whether such an agreement is unethical or against public policy. See Lum v. Stinnett, 488 P.2d 347 (Nev. 1971), and Lubbock Manufacturing Co. v. Perez, 591 S.W.2d 907 (Tex. Civ. App. 1979). But we have no hesitation in joining those that require a full disclosure in cases such as this. General Motors Corp. v. Lahocki, 410 A.2d 1039 (Md. App. 1980); Gatto v. Walgreen Drug Co., 337 N.E.2d 23 (Ill. 1975); Ward v. Ochoa, 284 So.2d 385 (Fla. 1973); Pellett v. Sonotone Corp., 160 P.2d 783 (1945); See 65 ALR3d 602. The testimony of Shelton and Smith was critical to Artie Little’s case against Firestone. And, as it turns out, their testimony was no doubt a strong factor in the jury’s determination that Firestone’s RH5° rim was the sole cause of the accident and the complete exoneration of Shelton and Smith. It is readily apparent why the jury should know of any deals these parties made. As the Florida court said in the case of Ward v. Ochoa, supra:
Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant’s conduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret ‘Mary Carter Agreement.’
The search for the truth, in order to give justice to the litigants, is the primary duty of the courts. Secret agreements between plaintiffs and one or more of several multiple defendants can tend to mislead judges and juries, and border on collusion.
Firestone’s most ardent argument is that the case should be dismissed because it is impossible that the wheel in evidence is the accident wheel. The entire lawsuit focuses on the RH5° rim base which Firestone had manufactured from 1946 to 1973. It is not disputed that almost twenty-five million such rims were manufactured. The rim base consists of two parts, an outer ring, which is the part that supposedly flew off and struck Artie Little, and the base itself, which is the widest part of the rim and on which a disc is either bolted or welded. The disc is the part that contains the bolt holes. Besides the bolt holes, the disc has several large hand holes.
Firestone’s argument that the wheel in question could not have caused the accident is premised on the testimony of the truck driver, Shelton, and Smith, the wheel introduced into evidence, testimony of certain Firestone employees, and other exhibits. The testimony was: The owner, Shelton, said he bought the trailer in question in 1968 and had never changed the wheels. The previous owner testified there had never been a multi-piece wheel on the trailer. (That would exclude the wheel in question.) Baker, the driver, said the day before the accident he noticed the left front outside wheel on the tandem trailer was flat. The next morning Jackson Smith fixed the flat with Baker’s help. Baker left Smith’s station and drove about four blocks when he saw Artie Little walking along and then saw her disappear. He stopped his truck and ran to her assistance. He found that the tire that had been fixed had exploded and Artie Little was thrown into a ditch. Apparently the rim had come off and struck her. The base and tire were still on the truck, but the tire was in shreds. What happened next to the outer rim and wheel is somewhat in dispute.
Smith said the ring and rim were brought to his station where he kept them inside the building on a junk pile until someone picked them up. The truck owner, Shelton, said he picked them up at the accident scene, took them home and cut out the “eye” of the disc so it could not be used by anyone else. The “eye” is merely the center of the disc where the bolt holes are located. Baker, the driver, said he also went to Shelton’s. Shelton said he had both the remaining disc and the ring which were picked up at his place by one of the lawyers. The “eye” he cut out was never produced. It was this wheel assembly that was introduced by Artie Little as the Firestone product that caused the accident. Shelton testified that he was convinced that the wheel assembly in evidence was the one that came off the truck; Baker testified that the wheel in evidence was exactly like the accident wheel.
Firestone produced evidence that the wheel in evidence had only five “hand holes” and they never produced a “five hand” hole assembly that only had six bolt holes — it either had eight or ten bolt holes. A technical adviser for Firestone examined the trailer and testified that the axle on Shelton’s trailer could only take a six bolt wheel. Furthermore, when the assembly was shown to Jackson Smith at trial, he said that the assembly could not have been the one he put on that day because the outer ring would easily slip off the base and it would not hold as an RH5° should. He said, however, that he was not mistaken that the wheel he put on the truck that day was an RH5°; he had handled thousands of them. Furthermore, he said he knew they were dangerous and had cautioned his customers that used them.
Mr. Roger B. McCarthy, an engineer from California employed by Failure Analysis Associates, said he tried to duplicate the rim assembly in evidence. He said such an assembly would not hold sufficient pressure to be driven (which would be 85 to 90 pounds), and would come apart at about 45 pounds pressure. He said he filled the tire three times with water and it came apart each time at about 45 pounds.
Firestone’s argument, of course, is one that should be made to the jury. We cannot find that it was physically impossible that the wheel actually introduced was not the accident wheel. General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974), is cited by the appellant as controlling on the issue of the weight to be given the defendant’s evidence of the physical impossibility of the accident occurring in the way the plaintiff claims. We held in General Motors that such evidence may not be arbitrarily and capriciously disregarded by the trier of fact. In this case the defendant’s facts were disputed. The appellee produced witnesses that said the wheel in evidence was the accident wheel. While Firestone raised serious questions about the authenticity of this rim, it was for the jury to decide which witnesses to believe. Circle Realty Co. v. Gottlieb, 267 Ark. 160, 589 S.W.2d 574 (1979). Actually we cannot say it was essential in this particular case that Artie Little produce the accident wheel.
There is no doubt Firestone was harmed by the admission of certain documentary evidence, and its admissibility was the subject of most of the other objections raised by Firestone. One of the most damaging documents was a letter written in 1969 to an attorney involved in litigation over a multi-piece wheel. It was written by Paul Hykes, an engineer who worked for the Budd Company, which bought the Firestone RH5° rims and used them in the manufacture of wheels. The letter said, in part:
I am convinced that the RH5° Rim, aside from the safety aspect, has more than its share of field failures.
The RH5° Rim is a clever design, two continuous rings vs. one split ring on other two piece demountable side ring rim and designs or one split lock ring on the three piece versions. This permits lighter weight, lower cost. The material used is comparable to that used in other designs of rims. Its faults are:
1. It is more subject to dangerous wear than many other designs.
2. The only time that this dangerous wear can be detected is when the rim is dismantled.
3. It can be put together improperly and subsequently blow-apart when new.
4. It is easier to put it together improperly when it is badly worn.
5. It is more difficult to detect improper assembly on the RH5° than it is on competing rims.
From the foregoing, you can readily understand why I ask the question, ‘Why has this Rim not been removed from the market?’
The letter was accepted into evidence as notice to Firestone in 1969 that its rim was deficient in several respects. Firestone argued that it was hearsay, irrelevant and not authenticated. After the trial, Firestone took Hykes’ deposition and apparently he significantly qualified the statements in the letter. The letter was admitted to prove notice to Firestone, not to prove the truth of the assertions in the letter and, therefore, was admissible under Ark. Stat. Ann. § 28-Í001, Rule 801 (Repl. 1979). We cannot say the trial court abused its discretion in allowing the letter; on retrial Firestone should be permitted to introduce Hykes’ deposition taken after the trial.
Another objection concerning the same letter arose because W. H. Sanders, a lawyer for Firestone, wrote to other counsel for Firestone, and attached the Hykes letter. Sanders’ letter was admitted into evidence; it said:
Dear Jim:
With an appalled silence I hand you herewith the report from the former Executive Engineer of the Budd Company.
I am at a loss to know why Budd personnel, or former personnel, are so critical of a product that Budd sold.
I would be most interested to know where Budd stands on this matter and whether it endorses the position taken by Morrison and Hykes.
I still can’t bring myself to believe, or really give any credence to these criticisms of this rim. If these men are right, then the rim should not be sold, but it is sold, it is apparently providing good service, and from what Mr. McCusick had to say, I gather that these men could not come up with a safer type of rim to use.
The letter made its way to the Budd Company and Budd surrendered it in a lawsuit in answer to a discovery motion. Firestone argues the letter was inadmissible under Ark. Stat. Ann. § 28-1001, Rule 502, which provides a privilege for confidential attorney/client communications. We deem the privilege waived. Firestone should have never allowed the letter into the hands of Budd; by doing so Firestone has waived any right to claim the privilege. Ark. Stat. Ann. § 28-1001, Rule 510.
On rehearing, the appellant argues that a letter written by Mr. Lynn L. Bradford in October, 1979, Acting Director of the Office of Defects Investigation Enforcement of the National Highway Traffic Safety Administration, was not admissible as notice to Firestone because it was written after the accident in question. In our first opinion issued in this case we held that we could not say the trial court was wrong in finding that the letter was admissible. The arguments made by Firestone on appeal were that the letter was hearsay and Mr. Bradford did not have the legal authority to demand a recall. On rehearing, Firestone argues that the letter could not be notice because it was mailed after the accident in question. We reconsider this issue only because the matter will arise again on retrial and we should dispose of it. The letter was written after the accident in question and on the face of it we cannot say the letter referred to accidents or incidents which occurred before the accident in question, although it is very likely that is the case. On a retrial the letter should not be admitted because any probative value is outweighed by possible prejudice.
Firestone suggests throughout its brief that complaints made to Firestone are not evidence that there was a defect in the design of the wheel or that Firestone was under any duty to take any action. Subject to the trial court’s discretion, evidence of the complaints is admissible as notice and is not hearsay. See McCORMICK’S EVIDENCE § 249 (1972 ed.). Moreover, it was up to the trial judge to decide whether these documents were relevant. See Ark. Stat. Ann. § 28-1001, Rule 104. And, it is within the province of the j ury to decide if the evidence actually amounted to notice to Firestone.
Firestone argues that many other evidentiary decisions made by the trial judge were in error. Evidence of the National Highway Transportation Safety Association’s investigation of the RH5° wheel, evidence that the Utah Industrial Commission issued a tentative order banning the RH5° wheel in Utah, and nine memorandums, most of them interoffice between Firestone employees which discuss problems with the RH5° wheel, were admitted into evidence over the objection of Firestone. All posed questions of notice and relevancy and were subject to the trial judge’s discretion. The evidence of 145 prior accidents involving the RH5° wheel admitted was also relevant to the question of notice. Arkansas Power & Light v. Johnson, 260 Ark. 237, 538 S.W.2d 54 (1976); McCORMICK’S EVIDENCE § 200 (1972 ed.).
Firestone argues that proffered testimony of Roger McCarthy regarding the accident rate associated with the RH5° wheel as compared to other sorts of accidents, as well as other proffered testimony, should have been admitted. McCarthy was allowed to testify extensively. The admission and exclusion of expert testimony is a matter which lies within the sound discretion of the trial judge, and we find no reversible error. White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978); Phillips Construction Co. v. Williams, 254 Ark. 824, 496 S.W.2d 417 (1973).
The trial judge, in all of these evidentiary matters, must be afforded broad latitude. He, alone, has heard and seen all the evidence and he, alone, is in the best position to decide what evidence would aid the jury and what would only confuse the issues. And, unless we can say he was clearly wrong, we will not substitute our judgment for his. Ark. Stat. Ann. § 28-1001, Rule 104; See Arkansas State Highway Commission v. N.W.A. Realty Corp., 262 Ark. 440, 557 S.W.2d 620 (1977) and 3 WEINSTEIN’S EVIDENCE par. 702[2] (1981).
It is unlikely that the remarks made by Artie Little’s counsel regarding a former employee of Firestone’s who was terminated after giving a deposition will occur on retrial. These and other remarks of counsel which were objected to are unlikely to occur during a retrial.
Firestone was precluded from admitting evidence of their long-term support of an Occupational Safety and Health Administration regulation that required employers to train their employees in the proper servicing of multipiece wheels. There was evidence that in 1976 Firestone considered placing warning labels on the rim, but employees could not agree on what the warning should say. An expert on communications advised that a warning might cause more harm than good and the idea was dropped. Instead, Firestone launched a program to educate users how to properly service the rim. We think that the evidence should have been admitted to rebut Artie Little’s allegations that Firestone’s conduct was willful and wanton and for that purpose alone. See Johnson v. Niagara Machine and Tool Works, 666 F.2d 1223 (8th Cir. 1981).
On rehearing, Firestone argues that the jury’s answer to one interrogatory, that Firestone did not supply the wheel in a defective condition which rendered it unreasonably dangerous, precludes that issue from being relitigated. This case was submitted on alternative theories of liability and AMI Instruction 1012 was given to the jury. The alternative theories were strict liability and negligence. The jury was asked to answer two interrogatories regarding Firestone’s fault. The jury was asked:
Do you find from a preponderance of the evidence that Firestone Tire and Rubber Company manufactured a RH5° wheel assembly which was supplied in a defective condition which rendered it unreasonably dangerous, and that its defective condition was a proximate cause of the occurrence?
The jury answered no. The jury was also asked:
Do you find from a preponderance of the evidence that Firestone Tire and Rubber Company was guilty of negligence which was a proximate cause of the occurrence?
The jury’s answer was yes, one hundred percent. Firestone’s argument is that the jury, in effect, returned separate verdicts, and the jury’s answer of “no” to the first interrogatory precludes a retrial on the issue of strict liability for a manufacturing defect because it is res judicata. Firestone cites Womack v. Brickell, 232 Ark. 385, 337 S. W.2d 655 (1960) as authority for its position. We disagree that the issue of strict liability is res judicata. We do not find that the interrogatories in this case amounted to separate verdicts. The appellee could not have appealed from the finding by the j ury that Firestone was not liable under the strict liability theory. In the Womack case, either party could have appealed from the jury’s finding. In a law case the verdict is an entirety which cannot be divided. Wilson v. Davis, 230 Ark. 1013, 328 S.W.2d 249 (1959).
There was substantial evidence in the record to support the jury’s finding of negligence on the part of Firestone. The jury could have decided that Firestone was negligent in ignoring the notice it had received regarding the problems with the RH5° or in failing to warn of the dangerous propensities of the RH5° wheel. Since there was substantial evidence to support one of the several theories of liability, the appellee is not precluded from presenting its case on either or both theories on a retrial.
We have reviewed the record and find no other reversible errors.
Reversed and remanded.
Purtle, J., dissents.
Firestone concedes the wheel introduced was manufactured by Firestone. The outer ring was manufactured in 1960, the inner ring in 1971.
Firestone sought to introduce the final order of the Commission which did not ban the wheel. The order was not on Firestone’s pretrial list and the judge excluded it. No doubt it should be admitted on a retrial, if properly presented, to rebut the claim for punitive damages. | [
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Richard B. Adkisson, Chief Justice.
Following a trial by jury, appellant, Billy Wood, was convicted of rape and sentenced to 20 years in the Arkansas Department of Correction. On appeal, we affirm.
The victim was hitchhiking from Clarksville to her home near Salus when she was picked up by appellant and his nephew. Instead of taking her home, appellant turned off the highway on to a dirt road and stopped. Appellant told his nephew to get out and go behind the car. He threatened the victim with a knife, made her get out of the car, and raped her. He then instructed his nephew to return to the car and both men drove away, leaving the victim partially dressed on the road. She walked about four miles before neighbors gave her a ride home, and one of them testified that she appeared nervous and upset.
Upon arriving home she told her husband that she had been raped. They agreed not to report the incident to the police because they were new to the community and were afraid the police would not believe them. Over two years later the husband threatened to kill appellant after learning that he was the rapist. During the investigation of the husband’s threat on appellant’s life, the victim reported the rape. The police then questioned appellant who, at first, denied any knowledge of the rape; later, at trial, his defense was that of consent.
Appellant argues that the trial court erred in refusing to give the following instruction:
You are instructed that if you find from the evidence that Deborah Kersen failed to make complaint immediately after the alleged commission of the offense, you may consider this in determining whether she gave her consent or not.
Appellant relies on Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909), where we held that it was error to refuse to give this evidentiary instruction. However, as explained in AMCI 200, Comment, most evidentiary instructions of this nature are no longer appropriate because under our Uniform Rules of Evidence the weight to be given the evidence is a matter for counsel to argue and for the jury to decide, once the trial court has determined that such evidence is admissible. See also Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982). Here, the jury was properly instructed on the applicable law of rape by the giving of AMCI 1803.
Appellant argues that the trial court erred in repeating, at the jury’s request, the definition of “forcible compulsion” without repeating all the other instructions. The jury had returned to the courtroom, unable to reach a verdict, when the following exchange took place:
A JUROR:
And, we’d like the definition of what the law says what rape is.
THE COURT:
The definition of rape?
THE JUROR:
Forcible rape.
THE COURT:
All right. The definition that I gave you with reference to rape — and you want the forcible compulsion part of it, I take it. Is this right? You want the definition of what forcible compulsion is?
THE FOREMAN:
Yes.
The judge then read them the AMCI definition of “forcible compulsion” but did not reread any of the other instructions or give the jury a cautionary instruction.
It is within the province of the presiding judge to recall the jury and given them further instructions when, in the exercise of a proper discretion, it is necessary to do so in the furtherance of justice. Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). It is not always necessary in such cases that he should repeat the whole charge. Harrison v. State, supra.
We have held that instructions must be taken as an entirety and one instruction should not be emphasized more than any other. St. Louis, Iron Mountain and Southern Railway Company v. Reed, 88 Ark. 458, 115 S.W. 150 (1908). It is only when the j ury fails to understand a certain one, and does understand the others, that one should be read over to them without reading the others. St. Louis, Iron Mountain and Southern Railway Company v. Reed, supra. Here, the rereading of the definition of “forcible compulsion” did not unduly emphasize one instruction at the expense of the others, and it is clear from the record that the jury wanted that particular instruction repeated.
Appellant also argues that the trial court should have cautioned the jury that the instruction on "forcible compulsion” was only part of the case; however, appellant did not request such a cautionary instruction at that time. Under these circumstances, it was not error for the trial court to reread the portion of the instructions specifically requested by the jury without giving a cautionary instruction.
Appellant argues that the trial court erred in refusing to order the prosecutor to provide appellant with the victim’s statement prior to trial. Appellant made a motion for disclosure of the statement but the record does not reflect whether appellant’s motion was ever brought to the attention of the trial court, nor is there any indication that the court ever ruled on it. It is incumbent upon the moving party to obtain a ruling on an issue or motion in order to preserve it for appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
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John I. Purtle, Justice.
The appellee instituted suit in the Jefferson County Circuit Court in which he sought to be declared the owner of 1500 shares of common stock of The Hip Boot Gang, Inc. The appellant answered and counterclaimed alleging that Warriner was not the owner of the 1500 shares and denied he had any interest in The Hip Boot Gang, Inc. The trial court ruled in favor of the appellee.
The appellant argues two points on appeal. First, that the court erred in ruling that the judgment in a former suit did not affect the legal title of the common stock of said corporation. Second, appellant argues that the court erred in finding that appellee was the record owner of 1500 shares of common stock of appellant.
The facts indicate that The Hip Boot Gang, Inc. was formed by Kent Rinehart, Richard W. Warriner, Jr. and Nelson Langston, Jr., each taking 1500 shares of stock in The Hip Boot Gang, Inc. Subsequently, Warriner agreed to sell Rinehart his stock in the corporation. They entered into a memorandum of agreement whereby Warriner would sell his stock to Rinehart. Five hundred dollars was paid before the agreement was drawn up and subsequently another $500.00 was paid by Rinehart on the installment note. The agreement provided that the seller would retain title of the stock of the corporation until it was paid for in full and allowed the purchaser to vote the stock in corporate matters.
Apparently Rinehart fell behind in his payments and Warriner filed suit No. 79-648-1 to collect on the promissory note which had been given as part of the consideration for the purchase of the stock. Rinehart counterclaimed arguing the note was usurious. He prayed that the debt be cancelled. The trial court agreed and held the transaction usurious and cancelled the indebtedness. No appeal was taken from the judgment between Rinehart and Warriner.
Appellant first argues that the trial court erred in failing to hold that the prior decision in case No. 79-648-1 affected legal title to the stock here in question. In Crump v. Loggains, 212 Ark. 394, 205 S.W.2d 846 (1947), we held:
The judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.
Likewise, failure of a party to ask for certain relief in the lower court precludes a subsequent demand for such relief absent a timely appeal or retrial of the original case. No appeal was instituted from the prior decision and it cannot now be appealed to this court. The note and indebtedness were cancelled. That was the relief sought and that was the relief granted. The first decision simply did not relieve title to the stock. However, the agreement between the purchaser and seller of the stock specifically mentioned that title to the stock remained in the seller until it was paid for.
Appellants point out that most all of the contracts we have cancelled for usury were situations wherein the purchaser was in possession of the property. However, in the present situation the buyer was not in possession of the property. The cancellation of the debt in the first trial was what it purported to be, a cancellation of the debt. Perhaps title would have been conveyed had demand for such relief been requested of the trial court. Since this matter could have been raised in the first trial between the two stock holders it cannot be raised in the present action. The appellee is still the owner of the 1500 shares of stock. We have held many times that questions within an issue which were settled, or could have been settled, wer eres judicata. See Ozan Lumber Company v. Tidwell, 213 Ark. 751, 212 S.W.2d 349 (1948).
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Frank Holt, Justice.
The appellant filed suit December 28, 1979, against the appellees seeking a judgment on appellees’ promissory note in the amount of $18,760.23 and to foreclose a mortgage of even date to secure the note. The appellees raised the defenses of lack of capacity to sue, laches, estoppel, statute of limitations, usury, and failure of consideration. The chancellor found for the appellant on all issues except that the five year statute of limitations barred its suit. Ark. Stat. Ann. § 37-209 (Repl. 1962). Hence this appeal and cross-appeal.
Appellant first contends that the chancellor erred in finding that the promissory note provided for payment of interest annually with the first installment being due and payable January 1, 1974. The note provides in pertinent part:
FOR VALUE RECEIVED, We, the undersigned, or either of us promise to pay to the Delta Oil Company the sum of Eighteen Thousand Seven Hundred Sixty and 23/100 Dollars ($18,760.23) with interest from date at the rate of Eight per cent (8%) per annum due and payable as follows:
Due and payable in Five (5) Annual installments of $2500.00 (principal and interest) with the first installment commencing on January 1,1975, with the outstanding balance of principal and:interest being due and payable on January 1, 1980.
It is specifically understood and agreed that if installments of interest or the principal payment due hereunder is not paid on the due date as set forth herein, that such delinquent installment shall bear interest at the rate of Ten Percent (10%) from the due date until payment is made.
It is expressly agreed that in the event that default is made in the payment of any of said Note of Interest after its maturity that the holder of said Note may, at his option, declare all the remaining Note and Interest also due and payable.
The mortgage provides for the same payment schedule.
The chancellor found that the note was ambiguous with respect to the terms of payment and, after hearing testimony from the parties, also found that the appellant had exercised its option in February, 1974, to accelerate the entire indebtedness because of nonpayment of the annual interest due and payable on that date. The court specifically found "that the tenor of the note provides for annual interest payments of 8% of the principal balance due after annual maturity.” Consequently, since more than five years had elapsed before appellant instituted this action in December, 1979, it was barred by the statute of limitations.
Appellees adduced proof that the appellant, through its president, orally demanded payment of $1,500 accrued interest on February 5, 1974, and when they advised this official they could not pay the accrued interest or anything on the principal, he stated that he would foreclose on the whole note. The next day the appellees wrote a letter to the appellant, which was introduced into evidence, reiterating their inability to pay the note and accrued interest and that appellant would have to foreclose on the mortgage. They stated that they could not and would not make any payments on the note nor any of the accrued interest. They requested that appellant commence the threatened foreclosure so that “we may proceed in bankruptcy as soon as possible.” The next day they consulted with an attorney about bankruptcy proceedings. Appellant denied that he had made the oral demand for payment, that he had threatened to file a foreclosure action, and, although he had occasionally discussed with them his need for payment and their inability to pay on the note, he took no formal action to accelerate the payment of the indebtedness until he filed this action in December, 1979.
Be that as it may, we are of the view that the note is not ambiguous with respect to the payment schedule. It specifically states that the principal and interest are due and payable in five annual installments beginning January 1, 1975, and that on January 1, 1980, (a sixth payment) the balance of the principal and interest would be due and payable. This is commonly known as a balloon note. The note provided that the appellant, at its option, had the right to accelerate payments of principal and interest only upon default of interest following its maturity. It is true that the interest accrued annually. However, the first payment of interest did not mature until January 1, 1975. Therefore, by the written terms of the payment schedule, the first interest payment was not in default until then. Consequently, appellant’s action in December, 1979, was not barred by the statute of limitations. We further observe that notification by the debtors that they did not intend to pay the note did not automatically activate the acceleration clause since this provision is for the option and benefit of the creditor. Willett v. Kelley, 203 Ark. 350, 157 S.W.2d 34 (1941); and Hodges v. Taft, 194 Ark. 259, 105 S.W.2d 605 (1937).
We deem it unnecessary to discuss appellant’s other contentions for reversal.
On cross-appeal appellees assert the trial court erred in finding Delta Oil had the legal capacity to sue as it was without legal corporate existence, had terminated and changed its authorized business address and failed to continuously maintain a registered office. They further contend that pursuant to Ark. Stat. Ann. § 64-117 F (Repl. 1980), the certificate from the Secretary of State stating that the appellant was a corporation in good standing at all times pertinent to this action was insufficient to prove the corporation’s legal existence. We disagree. The Secretary of State’s certificate makes a prima facie case as to the proof of its corporate existence. § 64-503 B. The validity of this certificate was uncontroverted except for appellant’s failure to file a change of address as to its registered office or agent. It appears that the requirement that a corporation maintain a registered office and agent with proper address is to make it amenable to service of process or notice of other proceedings. § 64-115. Here, the appellees have not demonstrated that they were prej udiced in any manner by the change of address of appellant’s registered office and agent from one county in this state to another.
Appellees further assert the note was usurious. They claim the entire indebtedness, with interest, represented by the 1973 note was $16,438.55, not $18,760.23, the difference representing a usurious interest rate. Appellant’s witness testified that on February 6, 1970, the Catalanis owed the appellant $10,856.75. This was evidenced by a promissory note. There was an additional $5,982.03 in bad checks from appellees that was not included in the 1970 note as well as $1,921.00 that appellant had paid Murphy Oil on behalf of appellees’ excess over their credit limit. The 1973 note merely combined all the indebtedness into one note. Here the chancellor found there was no evidence of usury and we cannot say his finding is clearly erroneous.
Appellees’ final contention is that the appellant was guilty of laches. They assert their business records were only kept for five years and that the appellant unnecessarily delayed in bringing this action. A sufficient answer to this argument is that the appellant brought the action within the permissible time frame of appellees’ note.
On direct appeal the decree is reversed and the cause remanded for proceedings consistent with this opinion. Affirmed on cross-appeal. | [
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Frank Holt, Justice.
On February 27, 1981, appellant was arrested upon the filing of two petitions for the revocation of his suspended sentences. On March 11, 1981, while still incarcerated, the appellant filed a petition for a mental examination at the local mental health center. On March 31, 1981, the court determined and ordered that appellant be transferred from the county jail to this facility, which found him incapable to stand trial and recommended that he be committed to the state hospital in Little Rock at the earliest possible time. On April 14, 1981, the trial court ordered that the appellant be committed to the state hospital for treatment until he was fit to proceed with the revocation hearing. On June 2,1981, a letter from the state hospital was filed with the court advising that the appellant was competent to stand trial. On June 11,1981, he was returned to the jurisdiction of the trial court where he remained incarcerated until his revocation hearing on July 20, 1981. At the hearing the appellant filed a motion to dismiss the revocation petitions, because they were not heard within 60 days as required by Ark. Stat. Ann. § 41-1209 (2) (Repl. 1977). The court postponed the hearing until August 25, 1981, because the appellant had not been properly served with the petitions. However, upon the state refiling the petitions and complying with the requirements of personal service, a hearing was conducted on July 22, 1981. Thereupon, the court revoked appellant’s suspended sentences. Hence this appeal.
The appellant asserts that the trial court erred in dismissing his motion to dismiss the revocation petitions because, excluding the period of delay caused by his mental examinations, they were not heard within 60 days. Section 41-1209 (2) provides in pertinent part:
A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted... within a reasonable period of time, not to exceed sixty days, after the defendant’s arrest....
In Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), we said that the 60 day limitation, although not jurisdictional, “represents the period beyond which the hearing cannot be delayed if the defendant objects.” Here, the defendant objected to the hearing. We have held that the 60 day limitation begins to run from the date of a defendant’s arrest for the alleged violation of the terms of his suspended sentence. Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977); Blake v. State, 262 Ark. 301, 556 S.W.2d 427 (1977); Lincoln v. State, 262 Ark. 511, 558 S.W.2d 146 (1977); and Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).
Neither party disputes that the period the appellant underwent mental examinations and evaluation is excluded. However, the question arises whether the 60 day period should be tolled when the defendant petitioned for a mental examination on March 11, 1981, or was not tolled until March 31,1981, when a determination was made by the court on the petitions’ merits and the examination was ordered. Also, the question is posed whether the excludable period should end when the appellant was pronounced fit to stand trial and the state was so notified on June 2,1981, or when he was returned to the jurisdiction of the court on June 11, 1981.
We find no authority nor is any cited to us which is controlling when, as here, there is an excludable period of time to the 60 day limitation resulting from a mental examination. It appears that the underlying purposes of the 60 day limitation and the speedy trial rules, A. R. Cr. P. Rule 28, are somewhat similar. We have said that the underlying purpose of the 60 day limitation “is to assure the defendant is not detained in jail for an unreasonable time awaiting his revocation hearing . ” Boone v. State, supra. Here, the appellant was incarcerated from the time of arrest until his revocation hearing. We think it fair to look to the provisions contained in Rule 28 for guidance in computing excludable periods. Rule 28.3 (a) provides that the period of delay resulting from an examination and hearing on the competency of a defendant to stand trial, as well as the period of time he is incompetent to stand trial, is excluded. Here, as indicated, that period of time is unquestioned. Additionally, Rule 28.3 (c) provides that a period of delay is excludable when a continuance is granted at a defendant’s request and the period of delay shall be or run from the day the continuance is granted. It is unquestioned that the 60 day period began to run upon appellant’s arrest February 27, 1981. Applying by analogy the recited speedy trial Rule 28 and the rationale in Boone v. State, supra, to the facts here, we hold that the excluded period began to run on March 31, 1981, when the court found that the appellant should undergo psychiatric evaluation and granted his petition. The period from February 27, the date of arrest, to March 31, is computed as being 32 days. See A. R. Cr. P. Rule 1.4. We need not determine if the excludable period ended June 2 or June 11 since by either computation there was ample time within the 60 days to conduct a revocation hearing. From June 2 to July 20 is 47 days or a total of 79 days (32 + 47) and from June 11 to July 20 is 38 days or a total of 70 days (32 + 38). Thus the appellant, who was incarcerated from the date of his arrest, did not receive a hearing within the required 60 days.
Since we find merit in this contention, we need not address appellant’s other points relied upon for reversal.
Reversed and dismissed. | [
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George Rose Smith, Justice.
At about three o’clock on the morning of January 19,1981, the appellants Carroll and Cox, truck drivers, drove a large tractor-trailer rig onto the scales of a state weigh-station near Hope. On that particular night shift the station was being manned by Charles Caldwell, a state employee with five years’ experience at his job. Caldwell’s examination of the bill of lading and other documents submitted to him by Carroll disclosed various discrepancies and omissions that led within an hour or so to an inspection of the contents of the trailer by three administrative officers. The trailer was found to contain not less than 248 large bales of marihuana, having a street value of well over a million dollars. This appeal results from a jury trial at which both defendants were found guilty of possession of marihuana with intent to deliver. Carroll was sentenced to ten years’ imprisonment; each defendant was fined the maximum of $10,000. The Court of Appeals certified the case to us as presenting an issue of statutory construction. Rule 29 (1) (c).
The three points for reversal question the validity of the inspection of the trailer, the extent to which the prosecution was permitted to cross-examine Carroll at a suppression hearing, and the trial court’s ruling that a proffered defense witness was not qualified to testify as a handwriting expert.
First, the validity of the inspection. The Motor Carrier Act of 1955, Act 597, provides that common and contract carriers by motor vehicle, both interstate and intrastate, must be licensed by the Arkansas Transportation Commission. Ark. Stat. Ann. §§ 73-1754 etseq. (Repl. 1979). The Act imposes the duty of policing compliance with the statute upon enforcement officers, who have the authority to make arrests. § 73-1760 (c). This language of the statute provides specifically for the inspection of the contents of vehicles reasonably believed by the enforcement officers to be operating in violation of the Act:
Such enforcement officers upon reasonable belief that any motor vehicle is being operated in violation of any provisions of this Act, shall be authorized to require the driver thereof to stop and exhibit the registration certificate issued for such vehicle, to submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle and to permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation. [§ 73-1760 (c).]
The proof shows overwhelmingly that the enforcement officers had grounds for a “reasonable belief” that the appellants’ rig was being operated in violation of the act. At the weigh-station Carroll submitted as his authority for driving the rig a lease from Maislin Transport of Delaware, but the lease was for a Kenworth tractor instead of the White tractor the defendants were driving. Their log books were not current, for which Carroll was placed under arrest. (The other appellant, Cox, fled soon after the vehicle was stopped and was later picked up by the police at a motel in Hope.) The bill of lading produced by Carroll was handwritten instead of the usual typing, indicated that the shipment originated in Michigan (Carroll testified at the suppression hearing that he picked up the load in . Houston) but gave only a street address for the consignee, with no city being named, did not describe the commodity being carried except as “50 pieces 12x100,” and contained other defects that led Caldwell to radio for assistance from another state employee, Richard Birtcher, who arrived within ten minutes. He in turn called in a third enforcement officer, George Hamilton, who was patrolling in the vicinity. Birtcher believed, we think correctly, that he had the authority under the statute to inspect the contents of the trailer. Carroll professed not to know what was in the trailer and did not have a key to the lock on its doors; so the officers cut the lock and discovered the marihuana. We find no basis for questioning the validity of a routine inspection that turned up an unsuspected but huge quantity of drugs.
Defense counsel make no attack upon the inspection as such, but they elect instead to treat the examination of the trailer as a “search” for which a search warrant is required. No authority is cited for the implication that officers must obtain a search warrant for a routine inspection of a vehicle which they reasonably believe to be operated in violation of the Motor Carrier Act. That act is not essentially a criminal law. Its violations are punishable either by civil penalties or by fines for misdemeanors only. § 73-1775. Officer Birtcher testified: “The attorney keeps referring to a search. I never one time stated to this driver that I was going to search his truck; I was merely making a regular, routine transportation inspection of the vehicle.”
Even if a search had been involved, two of the three officers testified that Carroll gave permission for the inspection and said he did not care if they cut the lock (his testimony being that he did not know what the contents were). The third officer, Birtcher, was in the scale-house office when the permission was given, but he explained: “I don’t recall it. I was in the same area. I was either in the kitchen getting a cup of coffee, at the scales, or on the phone or something.” The proof is convincingly clear that Carroll consented to the inspection, or to the search if it be so regarded. Finally, Carroll was not placed under arrest for having a spurious bill of lading (which he admits he had) until the inspection had revealed the contents of the trailer. Thus the inspection accomplished its proper administrative purpose. That a criminal prosecution resulted does not vitiate the procedure or invalidate the statute.
Second, Uniform Evidence Rule 104 provides that an accused, by testifying about a preliminary matter, does not subject himself to cross-examination as to other issues in the case. At the hearing on a motion to suppress evidence about the discovery of the marihuana, Carroll testified on direct examination that he did not know the trailer contained any marihuana and thought it contained a load of plastic (even though he had picked up the locked trailer in Houston rather than in Michigan, as the spurious bill of lading recited). On cross-examination the prosecutor questioned Carroll about his knowledge of governing regulations and similar matters going to his awareness and credibility. Defense counsel objected to question after question, as not being pertinent to the motion to suppress. The credibility of the witness, however, was pertinent. Moreover, neither in the brief nor in the oral argument before this court have counsel pinpointed even one solitary fact that was improperly brought out by the cross-examination. In view of the total want of any showing of prejudice, the argument that the cross-examination so tainted the case that it should be reversed and dismissed does not warrant serious discussion.
Third, the trial judge ruled that a proffered defense witness, John Scott, was not qualified as a handwriting expert (to testify, according to a proffer of proof made after the jury had begun its deliberations, that neither defendant had filled in the spurious bill of lading). We have often held that the determination of an expert witness’s qualifications lies largely within the discretion of the trial court and have sustained the trial judge’s rejection of a proffered expert who “was unable to cite any training or experience that clearly qualified him as an expert with respect to the question at issue.” United States Fidelity & Guaranty Co. v. Smith, 252 Ark. 556, 480 S.W.2d 129 (1972). The same reasoning is applicable here.
Scott, a resident of Cherokee Village, said he had lived in Arkansas for eleven years. Asked about his occupation, he answered: “I am a certified graphoanalyst, which in common terms is a handwriting expert.” He had taken a correspondence course from the International Graphoanalysis Society of Chicago, which had certified him. His training consisted of studying the various mechanics of handwriting, the slant, unusual markings in the strokes, pressure brought to bear on the paper, and other basics that make up handwriting. In his twelve years of alleged experience “in questioned document work” he had testified as an expert only once, in Clinton, Iowa, and had “worked with” law enforcement officers in two Arkansas counties, but the cases did not come to trial. He had written “daily columns for our weekly newspaper” and had taught short courses on graphoanalysis. He was not a member of the Academy of Forensic Science.
The term “graphoanalysis” was apparently coined by the international society, because it is not to be found in Webster’s Second or Third New International Dictionaries, the Random House Dictionary, the American Heritage Dictionary, Webster’s New World Dictionary, or West’s Words & Phrases. Scott indicated that graphoanalysis is an aspect of graphology, the original form of handwriting analysis, “which borders on the occult,” but “graphoanalysis is much more scientific.” He never did say, however, just what graphoanalysis is. Graphology, which is the study of handwriting as it reveals character and personality traits, is examined at length in the article on handwriting in the Encyclopaedia Britannica (1965). According to that article, graphology is based on the study of the mechanics of handwriting (which Scott studied in his correspondence course). It is intended primarily to relate handwriting to personality traits, but some of its advocates have also used it to predict and diagnose liver and heart disease, cancer, accident proneness, numerous psychiatric categories, and tuberculosis. The article concludes: “The question of the ultimate scientific value of graphology is unanswered.” The Britannica also mentions graphology under Fortunetelling.
Our point is simply that there is nothing in the article on graphology and very little in Scott’s discussion of graphoanalysis to indicate that either has any connection with comparing handwritings to determine authenticity. Scott did testify that he had read books on forensic document work, but his practical training and experience in that field have not, as we said in U. S. F. & G., supra, “clearly qualified him as an expert” to testify about the authenticity of a questioned document.
Apart from Scott’s lack of qualifications to give expert testimony, the question whether either Carroll or Cox filled in the bill of lading is not of any real importance in the case. Neither is charged with forgery. Carroll freely admitted that the bill of lading was spurious, a fact not open to the slightest doubt. Who made it out is not a critical issue. Thus the third point for reversal is primarily of academic interest only.
. The case for the jury was simple. A routine administrative inspection of the defendants’ cargo revealed it to include a huge quantity of marihuana, a contraband drug, concealed by surrounding cartons of plastic. Carroll insisted all along that he knew nothing about the million-dollar cargo that had been entrusted to him in Houston by a Mr. Rivera, otherwise unidentified. The defendants put the State to its burden of proving guilt, as they were at liberty to do. After a fair trial the jury resolved the only real issue of fact, whether the defendants knowingly possessed the marihuana. The sufficiency of the evidence to support the verdict is not questioned.
Affirmed.
Purtle, J., dissents. | [
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