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Hart, C. J.,
(after stating the facts). After the transcript was lodged in this court, Julia L. Sneed died intestate, and a motion was made by counsel for appellees to dismiss the appeal and to prevent a revival of case in the name of a special administrator appointed for that purpose. The ground of the motion was that Julia L. Sneed was a nonresident of the State, and that her heirs did not desire to prosecute the appeal. Her attorney objected to the dismissal of the case on the ground that he had, under contract with Julia L. Sneed, a one-half interest in the $1,000 legacy which had been transferred to Julia L. Sneed by Dr. A. L. Sneed, in the event of the reversal of the decree and- a finding by the court that she was entitled to the legacy. Under this state of facts, it was proper to make an order to revive the case in the name of a special administrator appointed for that purpose, and it was ordered that the case be revived in the name of H. J. Burney as such special administrator. In such case, where there is no general administrator, it is proper that revivor shall be in the name of a special administrator appointed by the court in which the action is pending. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833.
This brings us to discussion of the case on its merits. The Irav is that a wife who secures a judgment for alimony in a suit against her husband for a divorce is a creditor, and a conveyance made in fraud of her rights as such may be set aside or the property subjected to the lien of the judgment, provided that the rights of purchasers vdthout notice and for a valid consideration have not intervened. Masterson v. Ogden, 78 Wash. 644, 139 Pac. 654, Ann. Cas. 1914D, 885; Barber v. Barber, 21 How. (U. S.) 582; Fahey v. Fahey, 43 Col. 354, 96 Pac. 251, 127 Am. St. Hep. 118, 18 L. R. A. (N. S.) 1147; and Austin v. Austin, 143 Ark. 222, 220 S. W. 46.
In the case at bar the facts are that Elizabeth Sneed and Dr. A. L. Sneed were divorced in September, 1912, and she was awarded alimony in the sum of $40 per month and given the custody of their two minor children. Dr. Sneed paid the alimony until October, 1914. At that time he left the State, and has not paid any alimony since. Unpaid alimony in the sum of $4,800 had accumulated at the time he became entitled to the $1,000 legacy. According to the testimony of Julia L. Sneed, who was at that time his wife, he assigned this legacy of $1,000 to her and she paid him $1,000. It is true that she testified that this was not done foi the purpose of defeating claim of Elizabeth Sneed for alimony. The circumstances surrounding the transaction are against her claim. She knew that Dr. Sneed owed his former wife alimony in the sum of $4,800, and knew that he was insolvent, and had even placed his office fixtures and books in her name. At least, she is presumed to have known this, for the daughter of Dr. Sneed testified to these facts, and she did not attempt to deny them. • She contented herself with stating’ that the assignment was not made to her for the purpose of defeating the plaintiff’s claim for alimony. The undisputed testimony shows that the attorney for the •plaintiff, for several years, had been making every effort to collect the alimony and had been unable to do so-because he could not find any property in the name of Dr. A.- L. Sneed. If the assignment of the leg’acy was not made for the purpose of defeating the plaintiff in the collection of her claim for alimony, it had just as well not have been made. It is 'a significant fact that Julia L. Sneed claims to have paid-her husband $1,000 for the $1,000 leg’acy left him. No attempt is made to explain what was done with the $1,000 or for what purpose the assignment was made. Under these circumstances we are of the opinion" that the assignment was fraudulent and void as to the plaintiff as a creditor of Dr. A. L. Sneed.
An equitable garnishment was the proper remedy to impound the fund, pending a decision of the question to whom it belonged. Riggin v. Hilliard, 56 Ark. 476, 20 S. W. 42, 35 Am. St. 113.
It follows that the decree must be affirmed. | [
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McCulloch, O. J.
Appellant, Arkansas Construction Company, under contract with Special School District of Pine Bluff, constructed additions and improvements to two separate school buildings in the city of Pine Bluff, and the other appellant, the JEtna Casualty and Surety Company, became surety on the bond of the contractor. Appellee, a foreign corporation, doing business in Memphis, Tennessee, furnished the structural iron and steel building material used by the Arkansas Construction Company in the performance of the contract, and this is an action instituted by appellee to recover the amount of balance alleged to be due. The total bill of the material furnished by appellee was $1,428.08, and, after allowing certain credits, not now in dispute, appellee recovered below the sum of $607.69. The action was instituted and tried in the chancery court. Appellants filed an answer, and went to trial without objection to the cause having been instituted in the chancery court, but, several days after the cause had been submitted to the court and decree had been pronounced, but before entry of the decree, appellants filed a motion to transfer the cause to the law court, on the ground that the court of equity had no jurisdiction. This was overruled, and decree entered, and an appeal duly prosecuted.
It is first contended that the court should have sustained the motion to transfer, even though it was filed after the court had announced its decree. We cannot agree with counsel, for the motion came too late. It should have been presented before the submission of the case to the court, and especially before judgment had been pronounced. Of course, the court, even after pronouncing decree, could have set aside the same and granted the motion, if proper, but it was a matter of discretion with the court whether it would entertain the motion at that late date, hence we cannot say'there was any abuse of discretion, after permitting- the case to go to judgment. It is unnecessary to say whether or not the motion should have been granted if presented in apt time.
The only other question involved on the appeal relates to the amount of recovery. There is a dispute as to the terms of the contract between the parties and as to the prices to be paid for the material. Appellee contends that the aggregate contract price was $1,428.08, but appellants contend that the total price was $1,099.65, and admitted liability for a balance of $390. Appellants made a tender of that amount, which tender was refused. The inquiry therefore turned on questions of fact, and there was a conflict in the testimony. The testimony adduced by appellee was to the effect that the agent handling the matter for appellee, as salesman, entered into an agreement to furnish the material at reasonable prices, it being impossible to specify, in advance, the quantity of material and the prices. On the other hand, the contention of appellants was that appellee agreed to furnish the material “as low as anybody in Pine Bluff,” and not exceeding a bid which the construction company had already received from a dealer in Pine Bluff, who had offered to furnish the material at an aggregate price of $1,099.65.
The court found in favor of appellants, that the contract was that appellee was to furnish the material for prices not exceeding the bid therefor which the construction company* then had from the Pine Bluff Iron Works,
The court also found from the testimony that the bid of the Pine Bluff Iron Works “was incomplete, in that it did not include all of the iron and steel which was used in the buildings. ’ ’
It appears from the testimony also that, after the buildings were completed, or rather, after all the material had been furnished, appellee’s agent presented a bill, specifying all the items, with prices extended on the bill, to the manager of the construction company, and that the latter agreed to pay the bill, and placed his O. K. thereon. The manager testified on behalf of appellants, and ádmitted that he placed his 0. K. on the bill, stating that the prices were not marked thereon, and that he only approved the list of material furnished. There is a sharp conflict on this point between the agent of appellee and the manager of the construction company. But we are unable to say that the findings of the chancery court were against the preponderance of the evidence.
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Smith, J.
Drainage District No. 17 of Mississippi County was organized by special statute (Acts 1917, volume 1, page 486), and. embraced, a large part of both the Chickasawba and Osceola districts of that county. Pursuant to the authority conferred by this act, serial bonds running from the year 1919 to 1942, inclusive, were issued by the district, aggregating $1,682,500. The betterments to the real property in the district were assessed at $4,190,868.41, and taxes thereon were levied in twenty-four installments for the years 1919 to 1942, inclusive. The first four installments were fixed at 2.3 per cent, of the assessed betterments, and for the remaining nineteen years the annual installments were fixed at 3.6 per cent, of the benefits. These annual installments aggregated 81.2 per cent, of the benefits. The levy of the taxes against the benefits was sufficient to take care of the principal and interest of the bond issue, the interest amounting to $1,394,649.20.
This special act was amended at the extra session of the General Assembly of 1920 by act No. 305, approved February 23, 1920. The amendatory act enlarged the district and cured all defects in the proceedings leading up to the organization of the district, confirmed all judgments, assessments and contracts, and removed the limitation on the cost of the improvement, and made all betterments bear interest at the rate of six per cent., and provided that interest on the bonds should not be considered as a part of the cost of the improvement, and should be collected in addition to the benefits.
Pursuant to the authority conferred by the amendatory act, plans were prepared to afford drainage to what is known as the Big Lake area, and certain other changes in the plans were made and benefits were reassessed. Bonds dated August 2,1920, aggregating $2,300,000, were issued in addition to those previously issued. Taxes were levied on the changed and corrected benefits to take care of the principal and interest on both issues of bonds maturing after that date.
The taxes were then levied in twenty-two annual-installments for the years 1921 to 1942, both inclusive. The installments for the years 1921 and 1922 were fixed at 5 per cent.; for the years 1923 and 1924 at 6 per cent.; for the year 1925 at 6.6 per cent.; and for the years 1926 to 1942, both inclusive, at 7% per cent. The tax rate for 1921 was reduced from 5 to 4 per cent., and for the years 1923 and 1924 it was increased from 6 to 7 per cent.
The district filed a petition in the county court, praying an increase in the rate for the year 1925 to 7.7 per cent., and alleged that it was necessary to increase the tax rate because of a large delinquency of the lands in the district. At the time this petition was filed no default had occurred in the payment of principal or interest on either bond issue.
The appellant, Chicago Mill & Lumber Company, which owns a large body of land in the district, intervened, and was made a party defendant, and filed an answer denying the authority of the court to make an order increasing the tax rate previously fixed. At the hearing in the county court the order prayed was granted, and the intervener duly prosecuted an appeal to the circuit court. Upon the hearing of this appeal the order of the county court was affirmed, and this appeal is from that judgment.
Proof was ottered showing that the annual increase in delinquencies had in 1924 reached $71,738.69, the principal part of which was in the Big Lake area. It was shown that a total of 14,000 acres of land had been returned as delinquent, of which 8,000 acres had been sold to the district in proceedings to enforce payment of the drainage tax. The showing was made that the taxes for the year 1924 were on a 7 per cent, basis and produced revenues of $339,724.04, and it was further shown that, if the rate were increased to 7.7 per cent., as prayed, a total revenue of $363,990 would be produced if all taxes were paid, but it was estimated by the commissioners of the district that a delinquency total of 20 per cent, would likely occur. It was also shown that during the year 1925 bonds and interest thereon totaling $310,875 would mature, and, if the anticipated delinquencies occurred, there would be an excess of revenues over requirements of only $3,115.
The court made no finding of fact, for the reason stated that the facts were undisputed, 'but did make the following declaration of law: “Under the facts in this case, the drainage district is entitled to increase the tax rate as petitioned for herein. The county court had authority to order said increase under the acts of the General Assembly under which said district was created, and the order of the county court is affirmed. ’ ’
The appellant lumber company requested the following declarations of law, all of which were refused, to which ruling of the court exceptions were duly saved:
“No. 1. The drainage district has not shown that the original levy of taxes is insufficient to meet the costs of the improvement, and, until it does do so, the county court has no authority to increase the tax rate.
“No. 2. Under the law creating the district, each tract of land must bear its just proportion of the costs of making the improvements in said district; that the order of the county court made herein in which this appeal is taken is based upon an anticipated insufficiency of the revenue arising from the levying of taxes to meet the maturity of principal and interest of bonds, and that, if said order stood, it would result in the lands which have been paid upon each year bearing a greater burden than other lands in the district permitted to go delinquent.
“No. 3. Drainage district has not shown, under the proof herein, that it was entitled to the relief prayed for, and that the county court was without authority to make an order increasing the tax rate. ’ ’
We think the declarations of law requested by counsel for appellant are all answered adversely to its contention in the cases of Oliver v. Whitaker, 122 Ark. 291, 183 S. W. 201; Pfeiffer v. Bertig, 141 Ark. 531, 217 S. W. 791; Skillern v. White River Levee District, 139 Ark. 4, 212 S. W. 90; Massey v. Ark. & Mo. Highway District, 163 Ark. 63, 259 S. W. 387; Griffin v. Little Red River Levee District, 157 Ark. 590, 249 S. W. 16; and Faulkner Lake Drainage District v. Williams, 169 Ark. 592, 276 S. W. 604.
The effect of these cases, as applied to the facts of the instant case, is that the Legislature may provide that interest shall not be taken into account in determining whether the cost of a proposed improvement will exceed the betterments, and if it be true, as contended by counsel for appellant, that the original act did not so provide, the amendatory act very clearly did, and, as has been frequently decided, this is a matter wholly within the control of the General Assembly.
Upon the question of the power of the board of commissioners to increase the rate per centum of the betterments to be collected in any one year, it may be said that both acts confer power and impose the duty upon the commissioners to levy such rate as is deemed necessary to construct the improvement and pay for it, the only limitation in this respect being that not more than ten per cent, of the betterments shall be collected in any one year if any landowner objects thereto.
Under the act creating appellee district, as under the act construed in the case of North Arkansas Highway Improvement District No. 2 v. Rowland, 170 Ark. 1168, 282 S. W. 990, the commissioners are made the fiscal agents of the district. It is their duty to ascertain what the requirements of the district in the way of taxation are to meet the obligations of the district, and to call upon the county court to make the necessary levy, and the court might, by mandamus, háve been compelled to make the levy. The case last cited so expressly decided.
It was said in that case that:
“We do not mean to hold that, if it were shown in a proper proceeding that the commissioners of the district were levying taxes unnecessarily, the taxpayers would be without remedy to prevent this from being done.”
But we think no abuse of discretion was shown here. It was a proper matter for the exercise of the discretion vested in the commissioners to ascertain and declare the probable requirements of the district to meet its obligations as they matured. In view of the magnitude of this district and the large requirements to meet its obligations, the anticipated surplus of $3,115 cannot be regarded as excessive or unnecessary. It is true this estimated requirement is based upon anticipated delinquencies, but that estimate is based upon the actual delinquency for the previous year, and cannot therefore be said to be either speculative or unreasonable.
We conclude therefore that the court ibelow was wholly warranted in refusing appellant’s declaration of law that the district had not shown that the original levy of taxes was insufficient to meet the cost of the improvement.
The contention of appellant, expressed in its second request, that the levy of the proposed rate would result in requiring it and other landowners who had paid and who continued to pay their taxes to bear a greater proportionate burden than that imposed upon the lands which were allowed to go delinquent, is answered in the Rowland case, supra, and in that of Arkansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355. It was pointed out in those cases that the lien of the district continued until the taxes were paid or until the lands themselves were acquired by the district through sales for the nonpayment of the taxes, and that, when the delinquent taxes were paid, they became available and should be used in paying the obligations of the district, and further, that, if the lands were sold to the district and not redeemed, then the entire value of the lands to be realized by a sale thereof would be available for this purpose. So that, while a delay would be entailed in obtaining and applying revenues from the delinquent lands, these revenues would finally be obtained and applied, and thus no unequal burden would be imposed. Upon this feature of the question the case of Turley v. St. Francis Rd. Imp. Dist. No. 4, 171 Ark. 939, may be cited.
We think it sufficiently appears, from what has been said, that the district was entitled to the relief prayed, and that the county court had the authority to make the order increasing the tax rate, and the judgment of the circuit court to that effect is accordingly affirmed. | [
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McCulloch, C. J.
This is an appeal from a decree of the chancery court of Garland County, refusing to summarily award recovery from appellee and his sureties on a supersedeas bond on appeal to the Supreme Court.
Appellant and appellee were formerly husband and wife, and on August 30, 1923, in a suit for divorce in which appellant was the plaintiff, the court rendered a decree in favor of appellant for the dissolution of the bonds of marriage, and for recovery of continuing alimony in the sum of $25 per month and for accrued alimony in the total sum of $1,325. It is contended by appellant that appellee appealed from that decree, giving the supersedeas bond involved in the present proceeding, and that the appeal was subsequently dismissed by this court. This is disputed by appellee. The court ordered a sale of the property of appellee Green, and it was sold by the commissioner for the sum of $501. The court then made an order on the commissioner, after confirming the sale, to pay to appellant all the proceeds of the sale except the sum of $158.05, which sum the court ordered the commissioner to hold for further orders. Subsequently, on January 21, 1924, the court made another order directing the commissioner to pay over the balance of the proceeds of the sale to appellant, and that, “upon receipt of the same, the said cross-complainant discharge all judgments and allowances ag’ainst the plaintiff, Frank J. Green, in her favor on account of alimony or otherwise, and for all future allowances, the payment of said sum being a full and complete settlement between them.” Appellant prosecuted an appeal to this court, and the judgment was reversed on account of the error of the court below in discharging appellee Green from the balance of the judgment for alimony. Appellant then, after the mandate was filed, applied to the court for summary judgment against appellee and his sureties, which application the court denied.
The contention of appellant is, as before stated, that the supersedeas bond in question was executed on appellee’s appeal from the first decree. This contention is set forth in the abstract and brief filed on behalf of appellant, but there is no abstract of the proceedings before the court, and we are not advised as to the grounds upon which the court’s ruling was made. We are unable 'therefore to determine from appellant’s abstract whether or not the ruling of the court was correct.
For this reason the judgment must be affirmed, and it is so ordered. | [
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Hart, J.,
(after stating the facts). After the court had read its instructions to the jury, counsel for the defendants asked the court to give to the jury an oral instruction, which was copied by the court stenographer. A reversal of the judgment is now asked by the defendants on the ground that the court refused to give this instruction. Counsel- for the defendants failed to make the refusal of the court to give this instruction one of the grounds in their motion for a new trial. Therefore their objections to the action of the court in refusing to give the instruction must be treated as abandoned. Oliphant v. Hamm, 167 Ark. 167.
The next assignment of error is that the court erred in giving instruction No. 2, which reads as follows: “You are instructed that, if you find from the preponderance of the evidence that the plaintiff Holling'shead bought from the defendants a certain automobile, and, as a part and parcel of said trade, the defendants accepted, among other things, plaintiff’s old Dodge tonring car, for which defendants agreed to allow plaintiff the sum of $200 on another car if he should decide to purchase another new car, or, if the plaintiff did not buy another car and one of his employees did buy a new car from the defendants, then the defendants would pay plaintiff the sum of $200, and you further find that, after said trade was so made between the plaintiff and defendants, one of the plaintiff’s employees did purchase a new car from the defendants, you will find for the plaintiff. ’ ’
It is claimed by counsel for the defendants that this instruction was abstract, and therefore prejudicial to the rights of the defendants. We do not agree with counsel in this contention.
According to the evidence adduced by the plaintiff, he delivered an old Dodge touring car to the defendants upon their agreement to allow him $200 for the same if he would purchase a new car from them, or if one of his employees should buy a new car from the defendants. The evidence for the plaintiff shows that W. H. Chriswell, one of his employees, subsequently bought a car from the defendants and paid for the same.
It is also contended that, if the defendants had agreed that they would allow the plaintiff $200 for his old Dodge touring car in the event that one of his employees would purchase a new car from the defendants, such an agreement was a purely voluntary undertaking on their part, • and without any consideration to support it.
Page on Contracts defines a valid consideration to be some legal right acquired by the promisor in consideration of his promise, or forborne by the promisee in consideration of such promise. This definition was quoted and approved in Nothwang v. Harrison, 126 Ark. 548.
Now it will be readily agueed that, if the plaintiff had gone to the defendants and offered them his old Dodge touring car for $200 and they had accepted' his offer and the Dodge car had been delivered to them by the plaintiff, they would owe him $200. Again, all would agree that if the plaintiff had applied to the defendants to buy a new car and offered to turn in his old Dodge car at $200 and defendants had accepted his offer, this would constitute a valid and binding contract. We cannot see that the transaction could be any different because there was attached to it a condition that the defendants would give him $200 for his Dodge car if one of his employees should buy a new car from them. The delivery and acceptance of the Dodge touring car by the defendants was a sufficient consideration for their agreement to pay the plaintiff $200, and the agreement cannot in any wise be said to be changed into a contract without consideration to support it because there was attached to the agreement a further condition that one of the employees of the plaintiff should buy a new car from the defendants.
The evidence for the plaintiff shows that he delivered his old Dodge car to the defendants, and that they accepted it under the terms of the contract. The evidence for the plaintiff also shows that, at later date, one of his employees purchased a new car from the defendants and paid them for it. Under these facts it cannot be said that the instruction was not predicated upon facts proved in the case, or that the agreement proved by the evidence of the plaintiff was void because there was no consideration to support it.
It follows that the judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Smith, J.
Two sets of school directors assumed to act for Gosnell Special School District No. 6 of Mississippi County, and each set of directors employed teachers to teach the school of the district. These conflicting claims led to the case of Stafford v. Cooke, reported in 159 Ark., page 439, 252 S. W. 597.
C. S. Baggett and his wife had been employed by one set of directors to teach the school, but they were denied the right to do so by the other directors, who were installed as a result of the decision of this court in the case just referred to. Baggett and his wife brought suit •to recover damages for the breach of their contract, and from a judgment in their favor in this appeal.
A number of defenses were interposed by the school district, but we will discuss only one of them, as we find it decisive of the case.
It appears that, before the institution of the present suit, the'directors who prevailed in the litigation involving the title to the office brought suit in the chancery court against Baggett and his wife to enjoin them from teaching the school under the contract which forms the basis of the present suit. It was alleged in that suit that the plaintiffs were the directors of the school district, and, as such, were in charge of its affairs, and had employed teachers who were ready to begin the school, but that Baggett and his wife had unlawfully and wrongfully taken charge of the schoolhouse and were asserting the right to possession thereof for the purpose of teaching school. There was a prayer that Baggett and his wife be enjoined from interfering with the school.
An answer was filed by Baggett and his wife, in which all the allegations of the complaint were denied. It was there also denied that the plaintiffs were school directors, or had employed other teachers, or that the defendants there (the plaintiffs here) were unlawfully or wrongfully in possession of the school.
A temporary restraining order was granted in that case, which was later made permanent, wherein Baggett and his wife were enjoined from teaching the school or otherwise interfering with it. The decree of the chancery court granting this relief was offered in evidence.
Objection was made to the introduction of this decree in evidence upon the ground that it appeared to have been rendered by consent of the attorneys who then represented the directors who had employed Baggett and his wife, when such consent was not given. But the decree cannot be thus collaterally attacked. It must be taken at its face value and given such effect as it purports to have.
It is also insisted that the decree does not sustain the plea of res judicata, for the reason that the defendants in the injunction suit (the plaintiffs here) did not seek in that suit to recover compensation for the breach of their contract to teach the school, the contract here sued on, and the case of Gardner v. Goss, 147 Ark. 178, 227 S. W. 25, is cited in support of that contention.
We think the plea of res judicata is well taken, and that the case of Gardner v. Goss, supra, does not decide to the contrary. In that case the de facto directors had discharged Gardner, a teacher, and we held that the directors had the power and authority to do this, whether that authority had been properly exercised or not, and that, having discharged him, they were' entitled to an injunction against him to restrain him from interfering with the school. In a suit at law Gardner later recovered damages for the breach of the contract between himself as teacher and the district, which was affirmed on appeal to this court. Gardner v. North Little Rock Special School List., 161 Ark. 466.
We held on the first appeal in. the Gardner case, in which an injunction issued by the lower court was sustained, that the acts of school directors who held office by virtue of a fraudulent election are valid as to third parties, though -performed during the pendency of a contest which later resulted in their ouster, as they were de facto officers-, and that, even though the discharge of- a teacher was a breach of his contract! of employment, this did not justify the teacher in refusing to surrender possession of the property and affairs of the district to the directors, as the teacher’s remedy was in an action at law for the breach of the contract. The validity of Gardner’s contract was not an issue in that case. We assumed that it was valid, but held that the directors had the power to discharge him notwithstanding that fact.
Unlike the Gardner case, the issue in the chancery court, in which Baggett and his wife were defendants, was whether they had authority to teach the school. It was alleged that the Baggetts did not have this authority, and they answered that they did. Their defense would have been sustained, had it been shown that they had a valid contract, even though the contract had been made by de facto officers. The chancery court granted the relief prayed, which involved and necessarily implied the finding that the Baggetts had no contract to teach the school; There was no allegation -that Baggett and his wife had been discharged. On the contrary, injunctive relief was prayed and granted upon the theory that they had no contract authorizing them to teach, and, as we have said, a sufficient defense to this suit would have been that they had a contract giving them that right.
In the case of Taylor v. King, 135 Ark. 43, 204 S. W. 614, it was said that:
“The rule has been often announced in this court that 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 interposéd in the former suit” (citing cases).
The defense that appellees were not unlawfully and wrongfully teaching school wpuld have been sustained had the showing been made in the chancery court that they had a contract authorizing them to teach, and, as this defense could have been interposed there, it cannot be interposed here where the same issue is involved— that of the legality of appellee’s contract. ,
■It is unimportant that appellees did not ask the affirmative relief of damages for the breach of the contract in the chancery case. As the’ chancery court had assumed jurisdiction for one purpose, it might have granted appellees that relief had the testimony warranted it; but the chancery court decided, and adversely to appellees, under pleadings which raised that issue, that they had no lawful right to teach school, and that adjudication having been made, it follows that they cannot in another suit litigate that question again. In other words, they cannot recover damages if they had no contract, and the chancery court has adjudged that they did not have a contract.
At § 439 of the chapter on Judgments, in 15 R. C. L., page 964, it is said' that:
“If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a proper test to consider whether the same evidence would sustain both. If the same evidence would sustain both, the two actions are considered the same, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form. ’ ’
So here, appellees are not entitled to recover damages for a breach of a contract unless they had a valid contract, and, if they had such a contract, it should have been pleaded in the cause wherein injunctive relief was prayed and granted under the allegation that appellees were wrongfully in possession of the school.
It follows therefore that the plea of res judicata should have been sustained, and the judgment of the circuit court must therefore be reversed, and, as the case appears to have been fully developed, it will be dismissed. | [
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Kirby, J.,
(after stating the facts). The undisputed testimony shows that the shipment of bananas was properly loaded and in good condition when it left Mobile on the 13th of June; that it was re-iced afterwards only at Birmingham, Alabama, on the 14th of June. It was received by appellant from the connecting carrier at Hulbert, and left there on its train at 10 o’clock on the evening of the 16th; arrived in Little Rock on the morning of the 17th, and delivered to appellant’s unloading track on the morning of the 18th, notice of delivery having been received by it at 10 o’clock of that day. The bananas were then in a heated and damaged condition because of lack of refrigeration, due to the carrier’s failure to re-ice the car either at Hulbert or upon its arrival in Little Rock, the day before its delivery.
A prima facie presumption arises that the last carrier is the negligent one, in the absence of evidence locating the damage to goods in transit over several connecting lines. St. L. I. M. & S. R. Co. v. Coolidge, 73 Ark. 112; H. Rouw Co. v. St. Louis-San Francisco Ry. Co., ante, p. 881.
The evidence discloses here however that the court found that the damage resulted from failure to re-ice the car after it came into appellant’s possession, with the knowledge that there was no messenger in charge, and-the shipment was last iced at Birmingham, Alabama. Such failure constituted negligence maldng the carrier liable to the payment of any resulting damages, unless it was relieved of the duty to re-ice the car by the terms of the contract of shipment, the bill of lading.
It was known by the connecting carrier transporting the car from Birmingham that it had been re-iced there, according to the directions of messenger, who was not on the train thereafter, and it was not shown whether he left further directions' as to re-icing the car. Neither was it shown that the consignor or the consignee had any notice or information that the messenger was no longer on the train in charge of the shipment; that instructions could be had from them as to re-icing if the necessity therefor arose, in the absence of instructions from the messenger relating thereto.
We think that the tariff provides for this contingency, and authorizes the carrier to re-ice the shipment in the. usual and customary way under such condition, and make the proper charge therefor. Certainly the delivering carrier cannot relieve itself from liability to the payment of the damage arising from its failure to re-ice the car under the circumstances of this case.
It is equally as liable for damages resulting from its negligence for failure to do so as though no messenger had accompanied the car in the first instance, and especially since none of the carriers, after knowing that the messenger had abandoned the shipment, made any effort to procure instructions from the owner about re-icing it, notwithstanding that, in accordance with their ordinary procedure and the care required of them in transportation of freight, they would have been required to do so.
We find- no error in the record, and the judgment is affirmed.
Mehaeey, J., disqualified. | [
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Hart, C. J.,
(after stating the facts). A. E. Slaughter seeks to reverse the decree quieting the title in the Cornie Stave Company upon the ground that it conveyed the land in controversy to E. E. L. Combs; that, after Combs’ death, the tract was sold with other lands belonging to his estate at administrator’s sale; and that the defendant, Slaughter, acquired title by mesne conveyances from the purchaser at the administrator’s sale. It is claimed by counsel for the defendants that a deed from the plaintiff to E. E. L. Combs was executed prior to his death, and that the deed had been lost, and, for that reason, could not be produced at the trial.
It is the settled rule in this State that parol evidence to prove the contents of a lost deed should show that the deed was duly executed as required by law, and should show substantially all its contents by clear, convincing and satisfactory evidence. Hooper v. Chism, 13 Ark. 496; Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316; Kennedy v. Gilkey, 81 Ark. 147, 98 S. W. 969; Queen v. Queen, 116 Ark. 370, 172 S. W. 1018; Wasson v. Walker, 158 Ark. 4, 249 S. W. 29; and Langston v. Hughes, 170 Ark. 272, 280 S. W. 374.
An excellent statement of the rule was made by Chief Justice Marshall in Tayloe v. Riggs, 1 Pet. 591. It is as follows: “When a written contract is to be proved, not by itself but by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily, and, if that cannot be done, the party is in the condition of every other suitor in court- who makes a claim which he cannot support. When parties reduce their contract to writing, the obligations and rights of each are described and limited by the instrument itself. The safety which is expected from them would be much impaired if they could be 'established upon uncertain and vague impressions made by a conversation antecedent to the reduction of the agreement.” This rule was quoted with' approval in Hooper v. Chism, 13 Ark. 496, and has been followed by the court ever since.
It is evident that, if any loose requirement was sufficient to establish a lost instrument, the very object which the statute of frauds seeks to prevent would be encouraged. Tested by this rule, the contents of the deed claimed to have been lost was not established to the satisfaction of the chancellor, and it cannot be said that his finding of fact on this point is against the clear preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
It is true that Mrs. Combs says there was a deed on record from the plaintiff to her husband to the tract of land in controversy. Her husband owned a good many tracts of land, and she was obviously mistaken. If the deed was upon the records in the clerk’s office, it would have been a very easy matter to have introduced a certified copy of it in evidence. It is also true that the attorney who represented Mrs. Combs in the administrator’s sale testified that, according to his recollection, there was among’ the title papers exhibited to him at the time a deed from plaintiff to Combs. It is not to be expected that a busy lawyer could definitely and certainly recollect a matter which occurred so many years ag’O, and especially where numerous other tracts were offered at the same sale. The proof on the part of the plaintiff shows that a record was kept of the lands purchased and sold by the plaintiff, and that this record does not show any sale of this particular land. The record does show the date of its purchase by the plaintiff, as well as the person from whom it was purchased and the price paid for it. The president of the company testified that he did not sign a deed to any land between the date of the purchase by the plaintiff of the tract of land in controversy and the date of the death of R. E. L. Combs. Then, too, both of the vice presidents of the company say that there was no sale of any land belonging’ to the company during the years of 1907 and 1908.
Again, it is insisted by counsel for the defendants that Slaughter has acquired title by adverse possession. We cannot agree with counsel in this contention. The present suit was instituted on April 27, 1921. Slaughter paid the taxes on the land from the year 1915 to 1920, both inclusive. The lands were wild and unoccupied, and there were not seven years from the date of the first payment of taxes by Slaughter until the institution of the present suit.
In Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S. W. 606, the court said: “And we think it necessarily follows from that conclusion that there must be an unbroken possession for a period of seven years from the date of the first payment, and that the mere payment of taxes seven times is not of itself seven years’ possession, where the possession is broken by the commencement of an action within seven years after the date of the first payment. We are therefore of the opinion that the appellee failed to show title by limitation.”
To the same effect see Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S. W. 866; Fenton v. Collum, 104 Ark. 624, 150 S. W. 140; said Paragould Abst. & Real Est. Co. v. Coffman, 100 Ark. 582, 140 S. W. 730, L. R. A. 1915B 1006.
As we-have just seen, the plaintiff brought this suit within the period of time allowed by law, and he could not in any event be barred on account of laches until payment of taxes had been made for at least seven years by one making same under color of title. Fordyce v. Vickers, 99 Ark. 507, 138 S. W. 1010.
In the present case the plaintiff had the paper title to the land in controversy, and brought this suit to enforce its legal title. Mere submission to the injury for any time short of the period limited by statute' for the enforcement of the right of action cannot take away such right, although, under the name of laches, it may afford a ground for refusing relief under some peculiar circumstances. Davis v. Neal, 100 Ark. 399, 140 S. W. 278; Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338; and Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836.
In the case at bar the plaintiff did nothing either by silence or conduct to lead the defendant to -believe that it would not assert its title to the land and thereby suffer the defendant to enter into obligations or incur liabilities which he would not otherwise have done. In short, the plaintiff did nothing whereby the defendant was prejudiced and which might malee it inequitable to assert title, as was the case in Avera v. Banks, 168 Ark 718, 271 S. W. 970.
On the question of estoppel, argued by counsel for the defendants, but little need be said. The record title to the land in controversy is in the plaintiff. There is no fáct in the record tending to show that the defendants were in any manner deceived by any-act or conduct on the part of the plaintiff. No grounds of equitable estoppel are proved by the defendant.. See Watson v. Murray, 54 Ark. 499, 16 S. W. 292; Waits v. Moore, 89 Ark. 19, 115 S. W. 931; Brown v. Norvell, 96 Ark. 609, 132 S. W. 922; and Davis v. Neal, 100 Ark. 399, 140 S. W. 278.
It follows that the decree must be affirmed. | [
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Smith, J.
On July 5,1924, appellee left Harrisburg in his automobile for the purpose of driving to Forrest City. At Cherry Valley, a station on appellant’s railroad, he started to drive over the railroad crossing at that place. The railroad there runs north and south. There were three tracks, the center one being the main track; the others were sidetracks. Appellee was driving west as he started over the crossing across these tracks. There were numerous objects to obstruct his vision as he drove on to the railroad, among these being a cattle-pen, some sheds, a freight train on the west track, the engine to which was emitting steam, some piles of crossties, and, south of the cattle-pen, a sawmill, which was being operated, and a burning pile of sawdust. All these thing's were oel the east side of the railroad and on or near the railroad right-of-way. Appellee drove across the east sidetrack, and was about to drive on to the main track when a northbound passenger train struck his automobile and damaged it, and inflicted a rather severe personal injury to appellee himself.
This suit was brought to recover damages to compensate both the injury to the car and appellee’s per sonal injury. The jury returned a verdict in appellee’s favor for $1,455 for the personal injury, hut returned a verdict in favor of the railroad company for the automobile. The railroad company has appealed, and appellee has cross-appealed.
It was alleged — and there was testimony to support the finding — that the passenger train ran across this dangerous crossing at a high rate of speed, without blowing the whistle or ringing the bell. The complaint contained no allegation that there had been any failure to keep a proper lookout.
At the conclusion of the introduction of the testimony, the court and respective counsel retired to settle the instructions, and the court, of its own motion, prepared an instruction on the duty of the railroad company to keep a lookout. This instruction was objected to by the railroad company upon the ground that the failure to keep a lookout had not been alleged as an act of negligence. The court stated to counsel — the. jury being absent — that the testimony presented this issue and that the engineer’s testimony showed that he was not keeping a proper lookout. Counsel for the railroad company excepted to the ruling of the court in preparing an instruction on this issue, and then asked permission to recall the engineer for further examination on this subject.
This request was granted, and the engineer was examined in the presence of the jury on this issue. He testified that the automobile came on to the track from his side of the engine, which was the east side of the track; that he was looking up the track, and, when he first saw the automobile, which was moving slowly, it was only 150 feet away, and that he made an emergency application of the brakes, but, before the train could be stopped, the engine had struck the automobile. Appellee testified that, .just before he drove on the crossing, he stopped, and that he stopped again just before he drove on to the first or east sidetrack. The testimony of all the eye-witnesses was to the effect that appellee was driving very slowly.
We think, under the facts stated, the instruction on the duty to keep a lookout was not abstract. The jury might have found that, had a proper lookout been kept, the engineer would have seen the car at a much greater distance than 150 feet, and, had this been done, a warning whistle could have been blown in time for appellee to stop his slowly-moving automobile, even though the train itself could not have been stopped.
We think .the court was correct in the view that the testimony raised the issue of the failure to keep an effective lookout, and this testimony had been admitted without objection. No continuance was asked upon the ground of surprise; indeed, the witness whose duty it was to keep the lookout was present, and permission was given to recall him for further examination, and he was recalled and further examined on that subject..
We consider therefore that there was no error in the submission of that issue to the jury.
In support of his cross-appeal, appellee asserts that the court erred in giving certain instructions and refusing to give certain others; but the only error assigned by him in his motion for a new trial was that the verdict was contrary to the law and the evidence, and this assignment is not sufficient to present the question that the jury was not properly instructed.
No other questions are raised which require discussion, so the judgment must be affirmed, and it is so ordered. | [
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Mehaeey, J.
The Texas Company brought suit in the Ouachita Circuit Court against D. Y. Snow and others, to recover for a breach of a covenant of warranty in a warranty deed conveying 80 acres of land. The plaintiff alleged that, in February, 1923, it purchased from the defendants the north one-half of the northwest quarter of section 30, township 15 south, range 16 west, for the price of $10,000, which it paid the defendants. It is alleged that the defendants executed and delivered a warranty deed whereby they warranted the title to said property, and agreed to defend title against claims of all persons. Plaintiff alleged that, at the time of the delivery of the deed, the defendants were not the owners of the land, but that it was owned by others, who had since obtained judgment and decree for the recovery of said land. Plaintiff prayed judgment for the $10,000, with interest. It afterwards filed an amendment to its complaint, claiming the sum of $2,250, expended as attorney’s fees, and $250 as costs.
Defendants filed answer and cross-complaints and motion to transfer to equity. The cause was transferred to equity. The defendants, in their answer, admitted executing and delivering’ the deed described in plaintiff’s complaint, and admitted the judgment obtained for the recovery of the land after the execution of the deed, but they denied that plaintiff was entitled to recover the $10,000. They alleged that, prior to the negotiations referred to by the plaintiffs and defendant, suit had been filed in the Ouachita Chancery Court by Adam and Mary Ann Reaves, claiming that they were the owners of the land, and that the plaintiff in this suit was well aware, and had full knowledge of the claim of said Adam Reaves and wife, and agreed to purchase unconditionally and without a covenant of warranty, and subject to the pending litigation; that the plaintiff made an agreement to purchase the lease from the defendant unconditionally and without a covenant of warranty, subject to said pending litigation and subject to an exception or reservation of one-eighth of all oil, gas and other minerals in, under and upon said land, and, in addition, agreed to take charge of said litigation, as agent for said defendants and for itself, for the sum and price of $10,000; that these defendants agreed to accept that sum, and executed a deed of conveyance unconditionally, and without a covenant of warranty, excepting- and reserving one-eighth of oil, gas and minerals, and to turn over to plaintiff, as their agent, the control and management of said litigation. They alleged that the plaintiff took actual possession of the land on oral agreement, on or about the 15th day of December, 1922, erected tanks, structures, etc., on said land, and employed counsel to represent it and these defendants in said pending litigations, and that all this occurred more than a month before the deed was executed. They alleged that, in the sale of the lands, the same attorney represented both the defendant and the plaintiff, Gordon, in passing upon the sufficiency of the title, and that said attorney made a requirement that, in addition to the conveyance to be executed by Gordon, the executor, the same should be executed by all the heirs and legal representatives of the said George R. Ritchie; that the deed of conveyance was prepared by an attorney, and, by mutual mistake of all parties, a warranty deed in form was prepared and executed by the defendant, and that the covenant of warranty in the deed was without consideration, and void. They further stated that, as a part of the consideration, the Texas Company agreed to take charge, as agent of defendants and for itself, of the control and management of the litigation, and that defendants, in keeping with this agreement, turned over the control and management to plaintiff as their agent, and that plaintiff employed attorneys and immediately took charge and control of said litigation. Defendants further stated that, after the plaintiff took charge, Adam Reaves and his wife made an offer to release and relinquish all their rights, title, claim or interest to the plaintiff for $4,000; that plaintiff did not inform these defendants of the offer, and that said litigation could have been compromised and settled by the defendants had it not been for the grossly negligent conduct of plaintiff, and that, by reason of the fiduciary relations existing between the defendants and plaintiff, plaintiff was under legal obligations to report said offer to them, and that plaintiff was grossly negligent in refusing and failing to do so; that, if plaintiff had informed defendants, they would have accepted compromise of $4,000 and thereby saved the one-half royalty on gas, oil and minerals, and that this was worth $30,000, and asked judgment for $30,000 against the plaintiff.
Plaintiff filed an answer to cross-complaint, denying the allegations of said cross-complaint. The appellees contend that there was a mutual mistake by reason of which a warranty deed was given, warranting against all claims, when all parties understood, at the time the agreement was made, that Adain Reaves and his wife were claiming that a deed they had previously executed was, in fact, a mortgage, and had already filed suit to redeem. About this fact there does not seem to be any conflict in the testimony. The deed was executed about the 3d day of February, 1923, and on the 1st day of December,' 1922, Adam Reaves and his wife had filed suit in the Ouachita Chancery Court, alleging that they were the owners of the land in controversy in this suit, and that the deed executed by them was, in fact, a mortgage, and praying for a decree authorizing them to redeem. The fact that the Reaves suit was filed, seeking to redeem this land, before negotiations began, or during the negotiations, between appellant and appellees, with reference to the sale of this land, and that all parties knew about it, seems to be undisputed. The negotiations between appellant and appellees began some time in December, after the Reaves suit was filed, and the Reaves suit was discussed, and it appears that Cordon stated in his testimony that Mr. Redditt, who represented the Texas Company, knew that the Reaves suit was filed, and that it was pending at the time the trade was closed. Cordon told him at the time that he did not suppose they could deliver the deed, because this suit had been filed, and stated in his testimony that Mr. Redditt asked him about the nature of the suit, and he outlined it to him, and that later Redditt came back, and they had several conversations, and, about the fourth talk that they had about the first of December, Mr. Redditt came with his final statement of what the Texas Company would do. He stated that they would buy the 80 acres with the suit pending, subject to the suit, and they would take care of the lawsuit themselves.
Mr. Redditt himself testified that he knew the Reaves case was pending before the deal was finally consummated, but he did not think that Reaves had a chance to win. He stated that he learned of the suit some time in December; that he already knew about it when he talked to Cordon. He also stated that Cordon told him that they were not -going to spend any money trying a lawsuit, and that Redditt told him that they would fight the lawsuit. It also appears from the testimonjr that a proposition to settle the Reaves matter was made to the Texas Company, and that it could have settled it for $1,000. It made a counter-proposition of $1,000, but these propositions were never communicated to the appellees, although the Texas Company claimed to be attending to the Reaves matter as agent for the appellees.
It would serve no useful purpose to set out the testimony in full or at length, for the undisputed testimony establishes the fact that the Texas Company had knowledge of the claim of Reaves, and that the suit was pending before the deal was closed. The representative of the Texas Company admits stating that they would attend to the lawsuit, or fight the lawsuit, but the testimony is conflicting as to whether they purchased the land subject to the lawsuit, the appellee contending’ that it was so understood, and Mr. Redditt denying that the Texas Company purchased it with that understanding. It is well settled by decisions of this court, as a general rule, that parol testimony is not admissible to vary or contradict the terms of a written contract or agreement, and this court has said, -with reference to the admissibility of parol testimony contradicting a deed:
“ ‘Whenever in a deed the consideration, or an admission of its receipt, is stated merely as a fact, that part of the deed is received as a receipt would be, and the statement is subject to be varied, modified and explained; but, if the stated consideration is in the nature of a contract, that is, if by it a right is vested, created or extinguished, the terms of the contract thereby evidenced may not be varied by parol proof, but the writing is its sole exponent.’ ”
“We find the rule and its exception very concisely and properly stated in the case of Hendrick v. Crowley, supra, as follows: ‘ There is no doubt 'but that parol evidence is admissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the written instrument. But this is not the rule, but an exception to the rule, that the legal effect of a written instrument cannot be varied or defeated in whole or in part by parol evidence. The exception can never he allowed to override the rule, for that would be to dispense with the rule entirely and preserve the exception. The exception always loses its governing force when it comes in conflict with the rule which it qualifies, and must yield to its higher claim. Hence the consideration cannot be contradicted or shown to be different from that expressed when thereby the legal operation of the instrument to pass the entire interest according to the purpose therein designated would be defeated.’ ” Wallace v. Meeks, 99 Ark. 350, 138 S. W. 638.
The above is a statement of the rule that is found in many decisions of this court, so that it would appear that parol evidence is not admissible to show that a warranty deed warranting against all claims was not intended to warrant against a specific claim; but the court in the case last mentioned also stated:
“No effort was made to prove a mutual mistake in conveying the timber tracts separately as would justify the court in decreeing reformation. Nor is there any proof of fraud in procuring separate deeds, instead of a single deed expressing the entire consideration. The proof merely shows that this was done for convenience, and not through any mistake. The proof does not bring the case within the principle announced by this court in Lawrence County Bank v. Arndt, 69 Ark. 410, 65 S. W. 1052, where relief was given in equity against a mistake of law on account of reliance by the parties on one side on the representation and superior knowledge of the other.party to the contract.”
In addition to the contention of appellees that the warranty deed was given by mistake, they also contend that appellant is estopped by its declaration and conduct. This court has defined estoppel as follows:
“Equitable estoppel (estoppel in pais) is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has, in good faith, relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either of property, of contract, or of remedy. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. ’ ’ Thompson v. Wilhite, 131 Ark. 77, 198 S. W. 271.
As we have said, the testimony conclusively was that the appellant knew of the Reaves claim and suit before it closed the deal with appellees. It not only knew about the suit, but, according to the undisputed testimony, agreed to attend to the suit itself, and the appellees told Mr. Redditt that they would not fight the lawsuit. The Texas Company knew that it could settle the Reaves claim for $4,000, but did not communicate this proposition to the appellees. Then again, the appellant purchased the Reaves interest without mentioning it to'any of the appellees.
The chancellor may have found that the conduct of the appellant estopped it from claiming any right because of the Reaves claim. It is true, as contended by appellant, that knowledge, or notice, however full, of an incumbrance, or of a paramount title, does not impair the right of recovery upon covenants of warranty. The covenants are taken for the protection and indemnity against known and unknown incumbrances or defects of title. The appellees, however, go further in this case, and not only contend that the appellant knew of the defect or incumbrance, but show such conduct on the part of the appellant as appears inconsistent with their claim for damages for breach of warranty because of the Reaves claim.
The testimony is conflicting, and we cannot say that the finding of the chancellor was against the preponderance of evidence, and the decree is therefore affirmed. | [
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Smith, J.
On February 18, 1915, by an order of the county court of Greene County, a small drainage district was established embracing lands on each side of what is known as Locust Creek ditch, including about ten sections of land. Huddleston, Fuhr & Futrell, attorneys, were appointed attorneys for the district. They prepared the papers necessary for the establishment of the district, and found there were three or four sections of land which were embraced in what was known as the St. Francis Drainage District of Greene and Clay counties, an improvement district created by a special act of the General Assembly, which act provided that no other improvement district should be created within its borders, and no further action was taken in the organization of the Locust Creek Drainage District.
In 1917, apparently for the purpose of curing this defect, the General Assembly passed act 357, creating a drainage district which embraced practically the same lands' as were included in the order of the county court, with an additional section of land. Under this act the viewers of the original district were named as the commissioners for the new one, and the act creating the St. Francis Drainage District was amended so that the lands of that district might also be included in another drainage -district. C. E. Waddell was appointed engineer for the new district, and the same firm of attorneys was named as attorneys for the new district.
A survey was made by Waddell, and a number of meetings were held by the commissioners, and the engi neer finally filed a report, in which lie stated that the cost of the project would be too great to impose on an area so small, and be recommended that the district be enlarged to include other lands which would, in his’’opinion, be benefited by the proposed improvement.
For the purpose, evidently, of carrying the recommendations of the engineer into effect, the General Assembly, at its 1919 session, passed act 39, enlarging the district by adding thirty-four sections of land. New commissioners were named in the act of 1919, and, after they had qualified and organized, they employed the firm of W. R. Heagler & Sons as engineers, and the same firm of attorneys was employed as attorneys for the district.
The new engineers made a survey and prepared plans for the proposed improvement, which were filed with the commissioners, and an assessment of benefits was made, based upon these plans.
At this juncture the General Assembly, on the 24th day of February, 1920, passed act 224, enlarging the district so that its area embraced 61,000 acres of land, and included practically all the territory in Greene County between Crowley’s Ridge and the St. Francis River. This act reappointed the three commissioners of the previous district, and added-two more. After the commissioners qualified, the same firm of engineers continued to do the engineering work, and the same firm of attorneys was re-employed to do the legal work.
In the district established under act 39, as amended by act 224, two plans for the reclamation of the lands in the district were submitted by the engineers. The engineers were admonished by the commissioners that previous plans had been found to be impractical, and they were enjoined to profit by the previous failures and to prepare the new plans with great care. A plan was finally adopted, and the commissioners proceeded to assess the betterments based upon the plan adopted, but, before the assessment was' completed, the General Assembly, on March 28, 1921, passed act 590, repealing the prior acts creating the district.
The estimated cost of the improvement under the plans finally approved was $1,181,082.60, and the number of acres of land in the district was 61,081.
The engineering problems were shown to be quite difficult, and involved taking care of the run of water from the hills on the one hand and the flood water of the St. Francis River on the other.
The act dissolving the district provided that all claims against the district should be presented to the commissioners of the district within a time limited, and that the commissioners should pass upon and approve such claims as were found to be proper, and the commissioners were required to file with the circuit clerk a certificate showing the demands which had been approved and allowed, and the amounts thereof.
Pursuant to the provisions of the dissolution act, the attorneys presented a bill for $3,000, this bill to include all work necessary to be done in winding up the affairs of the district. The claim was allowed by the commissioners in the sum of $2,750.
The engineers presented a bill for $16,245.59, against which there was a credit of $6,000, leaving the balance claimed of $10,245.59. The commissioners allowed the engineers the sum claimed. In addition, the commissioners approved claims for their own services. Having thus ascertained the amounts for which, in their opinion, the district was liable, the commissioners filed a complaint in the chancery court, in which it was prayed, pursuant to the provisions of the dissolution act, that the sum found by them to be due by the district be declared a lien on the lands of the district, and that an assessment be made against the lands to discharge this indebtedness.
Certain owners of lands in the district intervened in this proceeding, and challenged the allowances-made by the commissioners to the engineers and the attorneys and to the commissioners themselves as excessive. The chancery court heard testimony, and reduced the fee of the attorneys from the sum of $2,750 allowed by the commissioners to the snm of $1,500. The claim of the engineers, with the interest thereon, as allowed by the commissioners, was for $17,761.35, and the court found that this was excessive, and the claim was reduced to $13,685.48. The court found that the claims of the commissioners for their per diem were just and equitable, and the intervention as to those items was dismissed, and a decree was entered in favor of the engineers and the attorneys for the amounts stated, and they have appealed.
It thus appears that the question presented is one of fact — whether the chancery court allowed the engineers and attorneys a fair and reasonable compensation for their services.
The case presented is not unlike that of Gould v. Toland, 149 Ark. 476, 232 S. W. 434, and .the principles there announced are controlling here. In that case it was said that, “while much weight must lie given to settlements made by the board under the act (of dissolution), they cannot be regarded as final. The effect of the ascertainment and settlement-necessarily casts upon the landowners in the district the burden of showing that the allowances were inequitable and unjust.” That case is authority also for holding that the engineers and the attorneys must be compensated upon a qucmtum meruit basis.
The engineers presented an itemized statement of their account, which embraced' many items, all of which appear to have been allowed except an item which reads as follows: “Engineering services, rendered during period February, 1919, to August, 1921, as per detailed statement, page 12, $2,320.”
It appears from the brief of appellees that, when this item is excluded and the interest is calculated on the remaining items, the court allowed all other expenses and charges claimed by the engineers.
It will be remembered that the appellant engineers are not the only engineers who made surveys relating to the proposed project, and it appears also that the above item, covers services rendered to August, 1921, a period of time extending five months after the dissolution of the district.
The contract between the engineers and the district contained a clause in which it was provided that, if it appeared, after completed plans of the proposed improvement had been made, the project should be abandoned on account of the excessive cost, the engineer should be compensated by “the payment to him of the amount of money actually expended in making said survey, plans, estimates and costs, drawings, etc., plus ten per cent, of this amount.” It appears that the court, in fixing the sum to be allowed the engineers, took into account this provision of the contract, and allowed this additional ten per cent., but the property owners make no complaint of that action. We need not therefore determine whether this allowance should have been made in ascertaining the sum earned by the engineers in settling with them upon a quantum meruit basis in accordance with the rule announced in the case of Gould v. Toland, supra, but it is at least proper for us to consider this allowance in determining whether a fair and just settlement was made with the engineers.
This item of $2,320 is a comprehensive one, but, as we understand the testimony, numerous charges are included in the itemized statement filed by the engineers between February, 1919, and August, 1921, which would be covered by and included in the general designation of engineering services. We do not know whether this is a duplication or not. It may not be, at least not entirely so, but the court appears to have allowed the engineers all the charges which were itemized, and they were varied and extensive.
We do not review these items, as we think no useful purpose would be accomplished in doing so, but, after considering the testimony and assuming that the court below had in mind our decision in the case of Gould v. Toland, supra, that the burden was on the landowners of showing that allowances made by the commissioners were inequitable and unjust, we are unable to say that the conclusion reached by the court below is contrary to the preponderance of the evidence.
As to the attorneys’ fees, it may be said that, in determining their value, it is proper to take into account, not only the skill and learning of the attorneys, but also the net results achieved by them. Vaughan v. Woodruff-Prairie Road Imp. Dist. No. 6,158 Ark. 236, 250 S. W. 870. It is not questioned that the attorneys have served the district faithfully and well, but it stands as an undisputed fact that the project was terminated by the repealing act of the General Assembly, so that no actual benefits have been received by the landowners. The project did not proceed to the point where an assessment of betterments was approved, and no part of the plans were ever executed. This fact is not controlling in determining what the compensation of the attorneys should be, but it is one which cannot be ignored.
The attorneys attended numerous meetings of the board of commissioners, and no doubt were called upon for opinions on many subjects, but they appear to have actually drawn only one contract, the one being the contract between the district and the engineers. It appears that the attorneys successfully resisted an attempt to eliminate certain lands from the district, but the trial of that question in the court below where it originated was conclusive of the question, as no appeal was prosecuted.
It appears that a suit is necessary ag’ainst the landowners- of the district to enforce the lien which was decreed against the lands of the district to discharge, the allowances made pursuant to the act of dissolution, but it also appears that $500 of the $1,500 allowed was allowed for this purpose, and, as we understand it, a single proceeding for this purpose will suffice. It is not contemplated that annual suits will be brought, as occurs in going districts where there are annual delinquencies for the nonpayment of taxes.
It does appear that the fee allowed the attorneys here is a more modest one than has been allowed in other cases which have come before us for review, but each case must be considered on its own merits, and, after a careful consideration of all the testimony, weighed as we have weighed the testimony in regard to the engineers’ claim, we are unable to say that the finding of the court below is contrary to the preponderance of the evidence, and we must therefore affirm the decree fixing the fee of the attorneys as well as that of the engineers. It is so ordered. | [
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Hart, J.,
(after stating the facts). It is first insisted that the decree should be reversed because there is no proof that H. A. Orandell died intestate and that the persons named in the amended complaint are his sole heirs at law. It is true that the answer denies that the plaintiffs in the amended complaint are the heirs at law of H. A. Orandell, deceased, but the answer contains a caption in which the plaintiffs are named as heirs at law of H. A. Orandell, deceased. This answer was filed after the court had entered of record an order in which it had recited that the death of H. A. Orandell was proved and that the cause- was revived in the name of his heirs, who are specifically named in the order, and who are the identical persons named in the amended complaint and in the caption to the answer of the defendant, Mae Schweitzer.
In addition to this, the record shows that the defendants did not insist npon this point at the trial. The court was not asked to make any findings on this point, and no reference was made to it throughout the trial. The proof was directed to the ground upon which the defendant predicated her defense. Under these circumstances the defendant, Mae Schweitzer, will be deemed to have waived this point. Allen-West Commission Co. v. People’s Bank, 74 Ark. 41, 84 S. W. 1041. It will be noted that the case just cited was tried in the circuit court, and the case at bar was determined in the chancery court. We think, however, that the principle applied in the law case will apply here under the facts just stated.
Counsel for the defendants rely on the defense that the memorandum in writing relied upon by the plaintiff for recovery is too indefinite, under the rule laid doAyn in Richardson v. Stuberfield, 168 Ark. 713, 271 S. W. 345, where it was held that an agreement for the sale of land, which is required to be in writing by the statute of frauds, must be certain in itself or capable of being’ made certain by reference to something else. The memorandum in writing relied upon by the plaintiff is copied in our statement of facts and need not be repeated here.
Extrinsic evidence is admissible to explain the calls of a deed for the purpose of identifying the land described and thus give effect to the deed. It is true that, under our decisions, a deed must so describe land sought to be conveyed that it may be identified, yet it is considered that that is certain which can be made certain, and in construing a doubtful description in a deed the court will put itself in the position of the contracting parties as nearly as possible and interpret the language used in the light of the attendant circumstances. Scott v. Dunkel Box & Lbr. Co., 106 Ark. 83, 152 S. W. 1025; Snyder v. Bridewell, 167 Ark. 8, 267 S. W. 561.
The extrinsic proof in this case locates the land described in the written memorandum set out in our statement of facts as being an addition which Schweitzer had platted into lots and blocks and called “Schweitzer Addition to the Town of Harrison.” The addition, as laid into lots and blocks, ivas advertised in printed circulars to be sold as lots and blocks by L. H. Schweitzer. The memorandum in question was written upon one of these circulars and upon that part of it upon which Schweitzer had specifically described the lots and blocks in his platted addition. The circular contains an advertisement by Schweitzer in which it is referred to as being platted into lots and blocks. Under the rule announced in the cases cited, with the information contained in the written memorandum, in connection with the attendant circumstances, a surveyor could lo.cate the ' ground described in the memorandum. Hence the memorandum is a valid and binding one, and is not void under the statute of frauds above referred to.
It follows that the decree of the chancery court was correct, and should be affirmed. It is so ordered. | [
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Smith, J.
Appellee recovered a judgment against appellant as the maker of a note for $250, dated January 1, 1920. The note was payable to the order of T. W. Altman, a real estate agent, and by him indorsed to appellee. At the conclusion of all the testimony the court directed the jury to return a verdict in appellee’s favor, and we must therefore view the testimony in the light most favorable to appellant, and, when thus viewed, the testimony may be summarized as follows:
Appellant owned a small farm, which he authorized Altman to sell at a price which would net appellant $3,500 in cash, and Altman procured Moskopp and Haas as purchasers, but they were able to pay only a thousand dollars of the purchase money in cash. A sale to Moskopp and Haas was negotiated at the price of $4,000, of which $1,000 was to be paid in cash. One thousand and nine hundred dollars of the purchase money was evidenced by three notes, two for $633 each, and a third for $634. The balance of $1,100 consisted in the assumption of the payment of a mortgage for that amount outstanding against the land at the time of the sale. The purchase price of $4,000 which Moskopp and Haas agreed-to pay was $500 in excess of the price which appellant agreed to take, and this excess represented Altman’s commission in the sale.
Appellant was unwilling to accept Moskopp and Haas unconditionally as purchasers of the land, so far, at least, as the payment of the commission was concerned, and, in payment of the $500 commission, he executed two notes to Altman’s order, each for the sum of $250, the note here sued on being one of- them, and the first one to fall due. The understanding between appellant and Altman was that the first note for the commission was to be paid when the first purchase money note was paid, and the second note for commission was to be paid when the second purchase money note was paid. As evidencing this agreement, the note here sued on has written in its face this condition: “This note is payable when Moskopp and Haas pay their first land note in favor of J. S. Trimue” (appellant).
At the time of the negotiations for the sale of the land it was understood and agreed by all the parties, including Altman, that, upon the maturity of the outstanding mortgage against the land, Altman would aid' the purchasers, Moskopp and Haas, in procuring a new loan, and for a sum sufficient to pay the mortgage indebt- edness and to discharge another lien against the land for $275 and the interest thereon.
Altman negotiated a new loan in the sum of $1,500 for Moskopp and Haas, and out of the* net proceeds thereof paid the $1,100 mortgage and the accumulated interest and the $275 lien, which, with the interest thereon, amounted to $305'. The small balance remaining was credited equally on each of the three purchase money notes.
The loan company agreed to make this loan only upon the condition that it be given a first lien, and, to accomplish this purpose, it was required, not only that the two outstanding liens above referred to be canceled and satisfied, but also that appellant cancel his vendor’s lien to secure the unpaid purchase money due him, and this he did by indorsement of payment of the purchase money notes on the margin of the record where his deed to Moskopp and Haas was recorded. Thereafter appellant took from Moskopp and Haas a second mortgage on the land to secure the unpaid purchase money due him. Evidencing this indebtedness, three notes of Moskopp and Haas were taken, which gave a more extended time for payment than the original purchase money notes gave.
. Altman was aware of and was a party to all these arrangements; indeed, it was he who negotiated and consummated the new arrangements, and this was done pursuant to an understanding had at the time of the original sale of the land.
Moskopp and Haas were unable to make any additional pajments, either on the purchase money or on the mortgage which they had given to the loan company. Moskopp and Haas had both become insolvent. The court below found the fact so to be, and, if their insolvency is not shown by the undisputed .evidence, it may at least be said that the testimony was sufficient to support that finding. Moskopp testified that both he and Haas were insolvent, that Haas realized his inability to pay anything on the land, and he abandoned it. Moskopp further testified that he, too, was insolvent, and he was. shortly thereafter adjudged a bankrupt, and at the time he gave his testimony at the trial.below he had received his discharge in bankruptcy.
Haas abandoned the land, but joined with Moskopp in reconveying it to appellant in satisfaction of their notes for the purchase money, and-'a quitclaim deed was executed by them for that purpose, and appellant, with the knowledge and consent of Altman, accepted this deed in satisfaction of the debt due him from Moskopp and Haas, but he testified that this was done Only because he knew that Moskopp and Haas were insolvent, and that a suit against them could result in nothing more favorable than a decree foreclosing the mortgage under which the land could be sold, and that he accepted the quitclaim deed to accomplish the only purpose which a foreclosure, suit could accomplish and to avoid the expense of foreclosure. He thus recovered the land, but took it subject to the $1,500 mortgage which Moskopp and Haas had executed to the loan company.
The court below had the view that, when Moskopp and Haas' deeded the land back to appellant and he surrendered to them their notes, this was, in law, a payment, and made the note here sued on due and payable, and, upon this theory, directed the jury to return a verdict in appellee’s favor for the amount of the note, and this appeal is from the judgment pronounced on the verdict so returned.
There is no question in the case about appellee being the holder in good faith of a negotiable note, for value, before maturity. This is true for two reasons. First, according to the testimony on appellant’s behalf, appellee did not acquire the note until after its maturity; and, second, the note was not an unconditional promise to pay money, either on demand of at a fixed or determinable future time. Section 7767, C. & M. Digest.
The question therefore is whether there was such a payment of the purchase money notes as matured and made payable the notes given for the ’broker’s commission.
We think the court was in error in holding that the purchase money notes had been paid, under the circum-' stances herein recited, and, not having been paid, the ■ agent’s commission was never earned.
The doctrine announced in the ‘case of Boysen v. Frink, 80 Ark. 254, 96 S. W. 1056, applies here. In that case the broker had negotiated a sale of a tract of land, under a contract with the owner which provided that the broker should have a commission of seventy-five cents per acre on the land sold, one-half of which was to be paid when one-third of the purchase price had been paid, and the other half of the commission was to be paid when one-half of the purchase price of thé land had been paid the owner. The proposed purchaser was insolvent, and did not pay any of the purchase money notes. The agent recovered judgment for. the full amount of the commissions.
In reversing this judgment it was said that it was the duty of the broker to furnish a customer able and willing to comply with the proposed sale before he is entitled to commission, when the commission is conditioned on payment of the purchase price. In that case the owner accepted from the proposed purchaser a thousand dollars as reimbursement for losses and expenditures caused by the breach of contract, and there was testimony on the part of the owner that he made diligent, but unsuccessful, effort to collect the purchase money notes. It was said that, if the thousand dollars was accepted in good faith as a reimbursement of losses for- the proposed purchaser’s breach of contract, and-that the contract, to the extent of the agent’s interest, could not be enforced, the agent had no case against the owner. The court also said that, if the thousand dollars was not accepted in good faith as a settlement of an otherwise uncollectable debt, but was accepted as a deal more advantageous to the owner than the enforcement of a valid sale, the owner would have to pay the1 agent before casting up his profits on the venture.
The court said: “If the purchaser was insolvent, no harm could be worked to Prink (the agent) by surrendering worthless notes; nor could any harm be worked him if the purchaser was irresponsible and yet paid Boysen (the owner) something (less than one-third the purchase price) for return of the notes, because Prink could not recover any commission until payment of one-third of the purchase price was made, nor all of his commission until payment of one-half the purchase price was made.”
In this case,' as in that, the owner had protected himself against the demand of the agent for a commission by stipulating when the commission should be paid, and the condition was never met in either case. The proposed purchaser in each case was insolvent, and, because of insolvency, the owner there, as here, was unable to enforce the contract of sale.
It is true Moskopp and Haas paid appellant a thousand dollars in cash, and that this sum exceeded the agent’s commission; but it is also true'that this payment was not the one which determined when the broker’s commission should be paid. That was dependent..up on the payment of the first and .second purchase money notes, and the payment of these notes could not be enforced because of the insolvency of the makers, and it may therefore be said here, as was said in the Prink case, that no harm was done the broker by surrendering worthless notes.
If it be said that Moskopp and Haas made appellant a small payment on each of the three purchase money notes, it may be answered that the total sum credited on all three of these notes did not equal the first purchase money note, and it may be further said that the amount so paid was derived from the proceeds of the mortgage to the loan company,.and appellant, in retaking-the land, took it subject to this increased indebtedness.
We think the views here announced are not in con■flict with the opinion in t'he case of Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35. There a broker had negotiated a sale under which his commissions were payable when certain parts of the purchase money were paid, and it was held that the fact that the real estate broker was postponed in his right to recover his commission until the purchase money was paid did not relieve the vendor of liability to pay such commission if, notwithstanding the purchaser was financially responsible, ■ the vendor refused to collect the purchase money. But in that case the opinion recites the fact to be that the purchaser of the land was able to carry out the contract of purchase, and, this being true, the court held that it was the duty of the owner to sue the purchaser and compel payment, but that, having failed to discharge this duty, he must pay the broker his commission.
But just here is the distinction between that case, on the one hand, and the Frink case and the instant case, on the other. The purchasers here and in the Frink case were insolvent, and suit against them would have been fruitless, and the law does not require one to do a vain and useless thing. In the Pinkerton case the owner, by suing the proposed purchaser, could have enforced the contract or have collected damages for its breach, while here and in the Frink case suit against the proposed purchasers would have been unavailing, so far as collecting the purchase money is concerned.
The indorsement of satisfaction of the vendor’s lien in appellant’s favor on the margin of the record where his deed to Moskopp and Haas was recorded, was not a payment, and was not understood to be; indeed, the court did not so hold. The payment, in the opinion of the court below, consisted, not in the’satisfaction of the vendor’s lien, but in accepting a deed from Moskopp and Haas and the surrender to them of their purchase money notes; but, as we have shown, this was not a payment, because the notes were worthless, and the deed was accepted on that account, at least the jury might have found the fact so to be, and would have done so had they accepted appellant’s version of the transaction, and, for this reason, the court was in error in directing a verdict in appellee’s favor.
There are numerous cases in which it has been held-that, if the owner accepts a proposed purchaser and enters into a binding contract with him, the existent or subsequent insolvency of the purchaser does not deprive the broker of his commission; but the rule is otherwise where the owner stipulates that the commission shall be payable under certain conditions, and those conditions áre not complied with .through no fault of the owner. Harnwell v. Arnold, 128 Ark. 10; Moore v. Irwin, 89 Ark. 289; Coleman, v. Edgar Lumber Co., 155 Ark. 275.
The judgment of the court below must therefore be reversed, and the cause remanded for a new trial, and it is so ordered.■ | [
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Smith, J.
The Little Rock Branch of the Federal Reserve Bank of St. Louis, hereinafter referred to as the Reserve Bank, filed a complaint which contained the following* allegations: The Reserve Bank is a corporation created by an act of Congress approved December 23, 1913, popularly known as the Federal Reserve Act, and among* its functions is the collection of all items payable in its district when received from member banks and other Federal Reserve banks. The People’s Bank of Ozark, Arkansas, is a corporation created under the laws of Arkansas, and was engaged in the banking business at Ozark, Arkansas. Under the Federal Reserve Act all national banks are required to become member banks of the Federal Reserve system, and all State banks and trust companies which are eligible may become members, and all member banks are required to clear at pax items drawn on or payable at their respective banks. Nonmember banks voluntarily agreeing to do so are permitted to enter into an agreement with the Federal Reserve Bank to clear at par all items drawn on or payable at such noninember banks when sent direct to them.
The People’s Bank was not a member of the Federal Reserve System, but was a party to an arrangement existing 'between nonmember banks and the Federal Reserve Bank and branches, whereby the Federal Reserve Bank of St. Louis agreed that, through its Little Rock Branch, it would send through the United States mail direct to the People’s Bank and other nonmemiber banks, as the Federal Reserve Bank’s agent, for collection and remittance, all items drawn on or payable at such nonmember banks, and that remittances for collections could be made either by the shipment of money at the expense of the Federal Reserve Bank or by exchange acceptable to the Federal Reserve Bank. It was a part of the agreement on the part of the People’s Bank (and other nonmember banks) that it would, as agent of the Reserve Bank, present such items as were drawn on it to itself for collection,, and, if the drawer had sufficient funds on hand to entitle the payment of the draft, to pay it to itself as collection agent of the Reserve Bank, and immediately remit the funds so collected, and in the case of the People’s Bank the agreement was that the remittance should be made to the Little Rock Branch, either by shipment of money or by furnishing satisfactory exchange, and would cause to be protested and returned all items it was not willing to pay or could not collect.
The arrangement recited had been in operation for some time, when, on January 20, 1926, the Reserve Bank forwarded to the People’s Bank, indorsed ‘‘For collection and remittance,” its certain cash letter containing items aggregating $2,569.71. The People’s Bank collected $2,502.46 worth of these items, and, on January 21, 1926, forwarded to the Reserve Bank its draft drawn on the Bankers’ Trust Company of Little Rock for the amount collected. On January 21, 1926, the Reserve Bank forwarded to the People’s Bank, indorsed “For collection and remittance, ’ ’ a cash letter containing items aggregating $2,503.51, of which the People’s Bank collected $2,458.76, and, on January 22, 1926, forwarded to the Reserve Bank its draft for the amount of the collection on the Grand National Bank of St. Louis,- Missouri. In each case the uncollected items were also returned.
The Reserve Bank, upon receipt of the respective remittance drafts, duly presented the same to the Bankers’ Trust Company of Little Rock and the Grand National Bank of St. Louis for payment, and payment was refused and the drafts protested. In the meantime the People’s Bank had been closed by order of the State Banking Department and placed in its hands for liquidation.
At the time these items were collected by the People’s Bank, the drawers and makers thereof had on deposit with the People’s Bank funds sufficient to pay them, and the People’s Bank had sufficient funds in its vault and with solvent correspondents to have paid the items, although the account of the People’s Bank with the Grand National Bank was at the time overdrawn.
After the Bank Commissioner had reconciled the various correspondent bank balances as of the date of closing on January 22, 1926, the date on which the Commissioner took charge of the People’s Bank, it was found that the true amount of balances due from all banks amounted to $7,738.99, and that the cash in the vault of the People’s Bank amounted to $8,155.59. At no time between the collection of the items contained in the cash letters referred to and the time the liquidating agent took charge had the cash in the People’s Bank been less than $8,155.59, nor the balances with solvent correspondents been less than $7,738.99. The total assets of the People’s Bank at the date of closing amounted to $197,374.37. Its liabilities were not shown.
The Reserve Bank, acting on the request of and as the agfent for its immediate indorsers and the owners of the respective items, filed a claim with the Bank Commissioner, in the manner required by law, and' prayed, that the claim so filed be allowed as a preferred • claim. The claim was approved by the Bank Commissioner as a common claim, leaving the court to determine whether the claim is a preferential one.
It was stipulated that the facts as recited in the complaint were true, and, in addition, it was further stipulated that the items involved in the cash letters referred to in the complaint were items drawn on or payable at the People’s Bank, and were collected by charging the accounts of the makers, and that there were no bills of lading or similar instruments accompanying any of the items.
Upon the facts so stipulated to be true, it was prayed that the court decree that the claim of the Reserve Bank is entitled to a preference and the Bank Commissioner be directed to allow it as such. The court granted the relief prayed, and the Bank Commissioner has appealed.
It is first insisted that the Reserve Bank was without authority to sue, for the reason that a statute of this State requires that every action must be prosecuted in the name of the real party in interest (§ 1089', C. & M. Digest), except as provided in certain other sections which, it is insisted, do not apply. We think, however, that the Reserve Bank had the right to sue. The Reserve Bank had been constituted the agent of the owners, and was the legal holder of the various items, all of which had been accepted and an abortive attempt had been made to pay. The agency was not discharged until the purpose of the agency had been accomplished, which was to make the collections and to remit the proceeds.
•Section 1092, C. & M. Digest, provides that:
“An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or the State, or any officer thereof, or any person expressly authorized by the statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted. ’ ’
We think the relation of the Reserve Bank to the items sued on is such, under the facts stated, as to make the statute quoted applicable. The owners of the respec tive items cannot recover from the drawers direct, for the reason that the People’s 'Bank has collected the amounts thereof from the drawers and has charged to them their canceled checks, duly marked “Paid.” Loth v. Mothner, 53 Ark. 116, 13 S. W. 594. Nor can the owners of these claims, after their allowance by the Bank Commissioner, maintain suit thereon, for they have expressly authorized this suit to be filed by the Reserve Bank for their benefit.
In the case of Second National Bank of Baltimore v. Bank of Alma, 99 Ark. 386, 138 S. W. 472, the facts were that the Judge Machine Company deposited to its account with the Second National Bank of Baltimore a draft with bill of lading attached on the Alma Canning Company. The Baltimore bank sent the draft with the bill of lading attached to the Bank of Alma for collection, which last-named bank surrendered the bill of lading without collecting the draft. The Baltimore bank brought suit against the Bank of Alma for the face value of the draft, and, among other defenses, it was insisted that' the Baltimore bank had no capacity to sue. It was there said:
“It (the Baltimore bank) had the right to sue in its own name for any default of the defendant (the Bank of Alma) by reason of which any liability was incurred by it to the Judge Machine Company, and it also had the right to institute suit against the defendant for any loss which it caused by reason of a breach of duty committed by it in collecting the draft, because the title thereof had been actually transferred to it, although for collection, by the Judge Machine Company.”
Upon the question of the right to preference, respective counsel have filed elaborate briefs, which review many authorities. It may be said that these authorities are in hopeless conflict, and it is impossible to reconcile them. We do not review these cases because, in the case of Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673, we announced the principles which are controlling here. Two cases were involved in that appeal, but, as they pre sented tlie same legal questions, they were disposed of as a single case. It will suffice therefore to state the facts in a single one of them.
The First National Bank of Atchison, Kansas, sent drafts with bills of lading attached on Darragh Company of Little Rock to the State National Bank for collection. This bank, of which Darragh Company was a customer, presented the drafts on June 15, 1914, and they were paid by that company’s checks on the collecting bank, which charged the checks against the account of the payer, and sent its drafts on the National Bank of Commerce of St. Louis to cover the collection. Immediately upon receipt of the exchange the Kansas bank forwarded it to St. Louis for collection, but, before it reached there, the State National Bank had suspended business, and payment of the draft was refused by the St. Louis bank because of the failure of the drawer.
During the day, and before the close of business on June 15, 1914, the State National Bank had on hand over $32,000 in cash, and when it closed its doors it had $7,000 in cash, which went into the hands of the receiver who took charge of the assets of the bank. This sum was the lowest amount of cash the defunct bank had on hand at any time after the collection of the drafts. The chancery court held that the collection constituted a trust fund, and ordered it paid out of the cash going into the hands of the receiver, to the exclusion of the general creditors of the bank.
It was contended there, as it is here, that the transaction detailed created only the relation of debtor and creditor, and that the collection did not become a trust fund because the funds of the bank were not augmented. It was insisted that the Federal courts had so held, and that we should follow the decisions of the Federal courts so holding. These contentions were not sustained, and in the opinion holding to the contrary it was said that, while a general deposit of money in a bank passes the title immediately to the bank and establishes the relation of debtor and creditor between the bank and the depositor, yet, where a bank receives a draft for collection merely, it is the agent of the remitter, drawer or forwarding bank, and takes no title to the paper, or the proceeds when collected, but holds the same in trust for the purpose of remitting it.
It was there recited that the drafts were sent for collection only and with the expectation that the proceeds of the collection should be remitted immediately upon the receipt thereof by the collecting bank, and that there was nothing to indicate that the parties intended .that the drafts, or the proceeds, should not remain the property of the owner, and that, such being the case, the proceeds of the collection did not' become the property of the collecting bank nor establish the relation of debtor and creditor for the amount thereof between it and the drawer bank, but that the relation created was that of principal and agent, and that the agency could be discharged only by remitting to the principal the collection made, and that, the agent bank having failed before the payment of its check on- the presentation thereof in due course of business for payment, the drawer was entitled to the proceeds of the collected draft out of the defunct bank’s cash going into the hands of the receiver, in preference to the general creditors.
It will be remembered that it appears from the agreed statement of facts and the stipulation filed herein that the items were forwarded to the People’s Bank “for collection and remittance” of the proceeds collected; that the drawers of the items here involved had sufficient balances with the People’s Bank to authorize the items to be charged to the account of the respective drawers, and this was done, thus paying them, and that, at the time these charges were made, the People’s Bank had sufficient funds available to honor the drafts, and that sufficient of its funds went into the hands of the Bank Commissioner, as receiver, to pay them, and that at no time between the collection and the time the Bank Commissioner took charge of the People’s Bank were its funds less than the items involved.
The case of Federal Reserve Bank of St. Louis v. Millspaugh, 282 S. W. 706, arose out of an agreed statement of facts which does not differ in any material respect from the facts in the instant case, and the Supreme Court of Missouri held that the Reserve Bank was entitled to have its claim against the defunct hank paid as a preferential one, for the reason that the receiver took the funds of the defunct bank impressed with a trust. In so holding the court cited as authority therefor our case of Darragh v. Goodman, supra.
Other courts, in announcing the same conclusion under similar facts, which have cited the case of Darragh v. Goodman as authority for so holding, are: In Re Messenger v. Carroll Savings & Trust Co., 193 Iowa 608, 187 N. W. 545; Goodyear Tire & Rubber Co. v. Hanover State Bank, 109 Kans. 772, 204 Pac. 992; Kesl v. Hanover State Bank, 109 Kans. 776, 204.Pac. 994; Federal Reserve Bank of Richmond v. Peters, 139 Va. 45, 123 S. E. 379; Federal Reserve Bank of Richmond v. Bohanan, 141 Va. 285, 127 S. E. 161; Federal Reserve Bank of St. Louis v. Quigley (Mo. App.) 284 S. W. 164; Bank of Poplar Bluff v. Millspaugh (Mo. App.), 275 S. W. 579; Hawaiian Pineapple Co., Ltd., v. Brown, 69 Mont. 140, 220 Pac. 1114; In Re City Bank of Dowagiac, 186 Fed. 250 (S. D.).
It is insisted for the reversal of the decree of the court helow that it was an act of negligence on the part of the Reserve Bank to constitute as its agent for the collection of the items the People’s Bank, the hank upon which they were drawn, and that authority was only conferred to collect and remit for those items in money, and not in exchange.
In the Darragh case the remittance for the collection was made in exchange, and not in.cash, and on that feature of the case the court, after stating that it is uniformly held that an agent having for collection obligations due to his principal can receive only money in payment, unless otherwise directed, and that this principle applied to hanks holding drafts for collection, said:
“The payment by the drawee of the draft of the amount thereof by the delivery of its check therefor against his account in the collecting bank, and the charging of the amount against his account, constituted, to all intents and purposes, a payment in cash of the drafts, the check being merely the vehicle of transfer of the cash.”
Continuing the discussion of this feature of the case, it was said: “Certainly there is.no necessity for the drawee of the drafts to take its check to its bank, the collector, and present it and receive the money and hand it back to the bank in payment of the draft. ’ ’
It is stated in one of the briefs, and conceded to be true in the other, that the 1925 report of the Federal Reserve board’s statistical department shows that the Federal Reserve banks collect on an average each month approximately 65,000,000 items, amounting to $20,500,-000,000, in items drawn on or payable at 26,000 different banks and /trust companies. It is quite apparent therefore that, if all remittances were required in cash, the entire volume of the currency would not suffice, even though all 'of it were kept in transit.
It may be said that the rule announced by this court, that it was negligence for a bank receiving for collection a check or draft payable in another city or town, to send it for collection to the bank upon which it was drawn, has been changed under § 14 of act No. 496, Acts 1921, page 514. Farmers’ S Merchants’ Bank v. Bay, 170 Ark. 293, 280 S. W. 984.
This act was passed prior to the transaction out of which this litigation arose, but our holding would not be different if there were no such statute, if it be true that the relation between the Reserve Bank and the People’s Bank was that of principal and agent, and not that of debtor and creditor. The cases which have followed the Darragh case make no such distinction in determining whether there is a preference. The controlling question is not how the item was forwarded and presented, but whether the drawer had sufficient balance against which the items were charged, and whether the bank so charging them had sufficient funds which went into the hands of the receiver, upon its failure, to pay these and other similar items.
In the case of Federal Reserve Bank of St. Louis v. Millspaugh, to which we have already referred as being identical with the instant case, the court said: “When the relation existing between two banks, as in the case at bar, is that of principal and agent, the funds collected by the collecting bank for the forwarding bank become impressed with a trust in favor of the owner of the item collected. This is true, although the item collected be one drawn on the collecting bank, and it is collected by charging the item against the drawer’s account, or if it be an item payable at the collecting bank and it is collected by a check drawn on it. The trust in either case follows the funds into the hands of the receiver — in this instance the Finance Commissioner — although the collecting bank may fail before remitting the proceeds collected, provided the following conditions exist: (1) That the item was forwarded for collection and remittance of the collected proceeds; (2) that the drawer of the check had a sufficient balance with the collecting bank to authorize the charging of the item to his account; (3) that, at the time the charge was made, the collecting bank had sufficient funds available to honor the check; (4) that the bank which failed had, at the time the receiver took charge of same, sufficient funds on hand to pay the amount it had collected (citing authorities). ’ ’
It is stipulated that the conditions there recited exist in the instant case. If, when the items here involved had been accepted and charged to the respective drawers, the People’s Bank had shipped currency, instead of issuing exchange, but had closed its doors before the money was actually delivered to the Reserve Bank, the right of the latter to receive and appropriate the money would hardly be questioned, not alone because the delivery to the carrier was a delivery to the consignee, but for the reason also that the consigning bank had segregated so much of its assets to the discharge of its agency — had thus designated the sum remitted as a trust fund belonging to its principal. In the Millspaugh case, from which we have quoted, the court said:
“Further than this, the creation of the relation of principal and agent, under the original agreement, by the terms of which the proceeds of the funds collected were to be forwarded to the principal, in currency or acceptable exchange, did not change the relation to that of debtor and creditor by reason of an attempted remittance in uncollectable paper. The sending therefore of exchange drafts by the Bank of Oran on the First National Bank, as an attempted remittance for the collection made, was indicative of a purpose to segregate or set apart, out of the funds in the First National Bank, the amount represented in the drafts, under an assignment for the benefit of the Federal Reserve Bank, the respondent [citing cases].”
So here, the People’s Bank had, by accepting’ the items, assumed the trust relation of an agent, and was bound, as an incident to the agency, to remit either in cash or exchange the. sum collected. It would have been a serious breach of trust not to have remitted. The money was not remitted. It remained either in the vault of the bank or in the hands of its correspondents, and was taken over by the Bank Commissioner as receiver, as appears from the stipulation set out above.
The court below was therefore correct in holding that the claim of the Reserve Bank should be allowed as a preferential one, and that decree is affirmed. | [
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Humphreys, J.
This suit was commenced in the chancery court of Union County, Arkansas, by W. J. Pinson, one of the appellees, against Yetta C. Fox, one of the appellants, to foreclose two mortgages in the total sum of $50,000 and accumulated interest, upon the east 80 feet of lot 4, in block 17, in the city of El Dorado, known as the States Hotel property. It was alleged in the complaint that, on January 1, 1924, said appellant executed two mortgages to said appellee upon said property to secure the balance of the purchase money for same, amounting to $50,000, one for $20,000 to secure the payment of twenty-five promissory notes in the sum of $800 each, the first being due on the 1st day of January, 1929, and one on the first day of each month thereafter, bearing interest at the rate of 8 per cent, per annum, interest payable annually; and the other for $30,000, to secure the payment of sixty promissory notes in the sum of $500 each, falling due consecutively on the 1st day of each month thereafter, and each bearing interest from date until paid at the raté of 8 per cent, per annum; that said appellant had defaulted in the payment of interest in the sum of $1,600 on the first series of notes, and on the payment of four notes in the second series, with accumulated interest thereon, and that she had failed to pay the taxes on said property and insure the hotel.
Said appellant filed an answer, admitting the purchase of the property and execution of the first and second mortgages to secure the first and second series of notes, but denied that she had failed to keep up the payments or comply with the terms of the mortgages until a writ of garnishment was served upon her for a claim of $2,000, issued in a suit pending in the first division of the chancery court, wherein F. M. Dielman was plaintiff, and said appellee and J. T. Finn, an owner of an equitable 'interest in said property, were defendants, the suit being for an alleged balance due to Dielman as a real estate commission from them for selling said property to her. She interposed the further defenses that said appellee conveyed the property to her under a warranty that same was free from incumbrances, whereas appellee, as well as J. T. Finn, who owned an equitable interest therein, had executed separate mortgages upon said property to various parties, which were placed on record prior to said appellee’s deed to her, and prayed that said appellee be required to clear the property of all incumlbrances prior to said deed; and that there was no accelerating clause in the mortgages or notes which she executed to said appellee, and that he was not entitled to foreclose upon the unmatured indebtedness secured by said mortgages.
The Globe Petroleum Company and the First National Bank of El Dorado, two of the appellees herein, the First State Bank of Paris, Texas, one of the appellants herein, and a number of other parties, filed separate interventions, claiming interests in the property prior and paramount to W. J. Pinson or Yetta C. Fox, under mortgages antedating the deed from W. J. Pinson to Yetta C. Fox, and interests prior and paramount to W. J. Pinson as holders by assignment of certain of the series of notes executed by Yetta C. Fox to W. J. Pinson.
The intervention of the First National Bank of El Dorado was based upon the mortgage executed to it upon the east 75 feet of lot 4, block 17, in the town of El Dorado, by W. J. Pinson, on the 10th day of January, 1923, to secure the payment of a note in the sum of $20,000, in which it was alleged that there was a balance due upon said mortgage of $4,500.
The suit of F. M. Dielman for his commissions was consolidated with this suit and the interventions filed therein, and the consolidated cause proceeded to a hearing upon the pleadings and the oral and documentary testimony adduced by the several parties, resulting in a decree declaring that the mortgage executed by Pinson to the First National Bank of El Dorado was prior and paramount to all other claims against the entire property, and adjudging a foreclosure of the east 80 feet of said lot and block to satisfy the amount due upon said mortgage. The court then proceeded- to determine the priorities between the several claimants who had intervened, and ascertained the amount due each on their several claims just as if the “unmatured notes were due, and adjudged the amounts due the several claimants thus ascertained liens upon the proceeds to be derived from the sale of the property, after first paying the mortgage and interest due the First National Bank of El Dorado. The court also ascertained that F. M. Dielman was entitled to a balance of $650 upon his claim as commissions for making the sale, and rendered judgment in his favor against J. T. Finn, and ordered that same be paid out of the proceeds of the sale in the order of priorities theretofore determined. The court appointed a commissioner to make the sale and report his proceedings to thé court at its next regular term after the sale should be made.
An appeal from the decree has been duly prosecuted to this court by Yetta O. Fox, F. M. Dielman and the First State Bank of Paris, Texas.
The effect of the decree, as we interpret it, was to treat all notes and accounts as matured claims against the whole property, and to foreclose the liens and sell the property to create a fund out of which to pay the said claims in order of adjudged priorities.
It is conceded by all the parties that the mortgage in favor of the First National Bank of El Dorado is prior and paramount to all other claims against the east 75 feet of said lot in said block, but the appellants contend that the court erred in decreeing a foreclosure of the east 80 feet of said lot to satisfy the balance due upon said mortgage. Just how this error crept into the finding and decree of the court we are at a loss to understand, as, by reference to the mortgage, we find that it only covered the east 75 feet of said lot. The property was valuable, and the sale of the extra five feet in connection with the east 75 feet as a whole necessarily prejudiced the rights of Yetta C. Fox, who purchased the 80 feet of said lot upon which the hotel stood, as well as other subsequent lienholders.
Appellants’ next contention for a reversal of the decree is that the court erred in ordering a sale of the east 80 feet of said lot to create a fund to pay the lien of W. J. Pinson and his assignees, under both the first and second mortgages executed by Yetta C. Fox to him, They are correct in their contention for two reasons.
First, that W. J. Pinson was in no position to foreclose either of his mortgages before paying off and clearing the record of all incumbrances placed by him and J. T. Finn upon the east 80 feet of said lot. He and Finn owned the property jointly, subject to certain mortgages each had placed upon it, at the time.he conveyed it by warranty deed to Yetta C. Fox. He held the legal title, and conveyed it under a warranty that it was unincumbered.
Second, only a part of his debt was due, and, there being no accelerating clause in the notes or mortgages, he was powerless to enforce a lien against the property for his total indebtedness. The statutes of our State do not provide for a foreclosure of an entire mortgage indebtedness upon default in the payment of an installment thereof which has become due, nor the foreclosure of two mortgages upon the same property by the same mortgagee upon default in the payment of the due mortgage before the maturity of the other. In the first instance, the mortgagee can foreclose upon installments only which have matured, subject to the continuation of the lien upon the property to secure the unmatured installments; and, in the second instance, can only foreclose the mortgage which has matured and not the undue mortgage. If the law were otherwise, there would be no necessity for an accelerating clause in mortgages, and it is almost a universal custom in this State to embrace accelerating clauses in mortgages. Even the printed forms of mortgages contain such clauses. There is much authority in support of a contrary rule, and also in support of a rule allowing the situation in each case to be taken care of by provisions in the decree, but we think the rule announced is the most wholesome and the fairest to 'both mortgagor and mortgagee. Any other rule would create inequalities between owners of notes falling due at different times which are embraced in the same mortgage. This court stated, in the case of Land v. May, 73 Ark. 415, in dealing with a number of notes secured by mortgage, some of which were due and some not, that the mortgagee “was entitled to have foreclosure for such as were due.” This was tantamount to saying that he was not entitled to foreclose for such as were not due. The case was reversed, and remanded with permission to amend and ask for foreclosure of such as were due. In the instant case appellee should be granted such permission only in case he first does equity by pay ing the mortgage he executed to the First National Bank of El Dorado upon the east 75 feet of said lot prior to his sale of same to Tetta C. Fox, and clearing the record of other liens placed upon the property by J. T. Finn and himself.
Appellant also contends for a reversal of the judgment because a writ of garnishment was served upon her in the Dielman suit. Her position is not tenable in this respect. She should have filed an answer in the garnishment proceeding and tendered the money to the court, requesting that same be applied to the satisfaction of her notes before being paid over to either of the contestants.
It is unnecessary to consider the correctness of the priorities of the different claimants, as they were prematurely ascertained and declared by the court. There can be no ascertainment and declaration of priorities between claimants to' a fund unlawfully created.. A valid foreclosure decree must be obtained before there can be any basis for an ascertainment and declaration of priorities between the several lien claimants.
On account of the errors indicated the decree is reversed, and the cause is remanded for further proceedings not inconsistent with this decree. | [
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Smith, J.
Appellee, H. B. Bellmont, who is a geologist and petroleum engineer, made a survey and investigation of the southwest quarter of the southeast quarter section 34, township 15 south, range 15 west, • Ouachita County, Arkansas, which convinced him that the land was promising territory for oil exploration. He made inquiry about the land, and ascertained that it was involved in litigation and was in charge of a receiver, who had possession of the property under the directions of the court. The land was owned by J. M. Farris, who had give an oil léase to E. L. Miller as trustee, who had become involved in litigation, and there were debts and liens against the property amounting to about $20,000. Appellee entered into an agreement with Haines, the receiver, to pay the creditors and the court costs and thereby terminate the receivership, and, at the same time, entered into a contract with Miller whereby Miller was to convey or release to appellee his residuary interest in the property.
To carry out this arrangement it was necessary for appellee to interest some one able to command the necessary money, and, with this purpose in view, appellee went to Rock Island, Illinois, where he got in touch with appellants, with whom he had several conferences in regard to going into the adventure. Appellants had never been to this oil field, and knew nothing about the proposition except what they were told by appellee, and they asked time to investigate the proposition.
When this was done, it was decided not to attempt to acquire the lease by private sale, but to permit a sale by the receiver, which had been ordered by the court to be made, and the property was sold by the receiver on October 18,1924. J. D. Anderson, as attorney for appellee, became the purchaser at this sale for $22,000, it being agreed between Anderson and the receiver that appellee should have a reasonable time to execute the bond required by the order of sale.
On October 27 appellee, accompanied by appellants, Johnson and Flannigan, arrived in El Dorado, and they immediately went out to inspect the property. The pros pects were sufficiently alluring to enlist the interest of Johnson and Flannigan, and they discussed with appellee what the respective interests of the parties should be if they went into the adventure. Johnson and Flannigan represented not only themselves but Quinlan and Hawley, all of whom were to share equally in the adventure if they went into it at all.
On the day following the inspection of the property, Johnson and Flannigan went with appellee to the office of appellee’s attorney. This attorney was among the numerous witnesses in the case, and he testified that he drew up a contract which outlined the agreement appellee had made with Johnson and Flannigan. This agreement reads as follows:
‘ ‘ Memorandum Agreement
“It is hereby mutually agreed by and between H. B. Bellmont, party of the first part, and D. N. Johnson, W. H. Flannigan, Wm. J. Quinlan and J. H. Hawley, parties of the second part hereto, that the party of the first part did, on the 18th day of October, 1924, purchase all the property making up the estate in the case of E. L. Miller et al. against Geo. Barbare et al., pending in the Ouachita Chancery Court, Second Division, and that the parties of the second part have advanced the sum of five thousand and no/100 ($5,000) dollars on the purchase money, and have undertaken to pay the balance, making a total of twenty-two thousand and no/100 ($22,000) dollars.
* “That if, and when, the parties hereto shall have paid the entire purchase money of said property and the receiver thereof executed deed, the property .will be conveyed by the party of the first part hereto to the parties of the second part, to the extent of the four-fifths, one-fifth to be conveyed to each of the parties of the second part hereto.
“It is further contemplated that the parties hereto are now organizing themselves, together with others, into a corporation to be known as Smackover Petroleum Corporation, and, in the event the said company shall have been fully incorporated at or before the date of the execution of the deed or assignment from the receiver to the parties hereto, the said property shall be conveyed to the corporation. And that the party of the first part shall receive in payment of his one-fifth interest in said property, the capital stock of said corporation to the amount of twelve thousand and no/100 ($12,000) dollars, and that he, the said Bellmont, will make, execute and deliver unto the said parties of the second part, or to the corporation aforesaid, good and sufficient conveyance in and to said property.
“Witness our hands and seals on this the 28th day of October, 1924.
“H. B. Bellmont,
“Party of the first part.
“D. N. Johnson,
“W. H. Flannigan,
“Wm. J. Quinlan,
“ J. H. Hawley,
“Parties of the second part.”
At the time this contract was signed, none of the parties knew that the court had, on the 20th of October, set aside the receiver’s sale. When that fact was discovered, an attorney was employed to sustain the sale and to secure the confirmation thereof, if this could be done. The court’s order was not set aside, and there is some conflict in the testimony as to why this was not done. Appellants testified that the term of court had lapsed 'before the attorney was prepared to present their case to the court. Appellee testified that it was agreed to proceed under the written contract set out above and to buy the property at the second sale which had been ordered by the court.
After the conference between appellee and appellants at the attorney’s office, the receiver executed to appellee a certificate of purchase, and an escrow agreement was entered into between appellee and the receiver, setting forth the terms and conditions of the sale. By this escrow agreement, appellee deposited to the receiver’s credit with the Bank of' Commerce of El Dorado the sum of $5,000, and a note for the balance was executed to the receiver’s order, which was also placed in escrow. This note was signed at the time by appellee and Johnson and Flannigan, and it was agreed that Johnson and Flannigan should take a duplicate of the note to Illinois and have it executed by Quinlan and Hawley, and that the note so signed should be signed by all parties and substituted for the one placed in escrow.
When it was discovered that the first sale by the receiver had been set aside, the parties agreed that they would proceed under their original agreement to acquire the lease, and that, when acquired, it should be owned by all five of the contracting parties, 'each owning a one-fifth interest. This is the big question of fact in the case, but the court found the fact to be as stated, and we think the testimony supports that finding. The proposition of appealing from the order of the court setting aside the sale was discussed, but it was agreed that the matter could he closed more expeditiously by permitting a second sale to be made and by buying at that sale. Appellee had filed a motion to vacate the order setting aside the first sale, but, by agreement, the hearing of this motion was continued to November 29, 1924, the day upon which the second sale was to be made.
A second sale was ordered and was later made by the receiver on November 29,1924. Desiring to purchase the lease as cheaply as possible, it was agreed that the property should be bid in by Farris, and this was done, the purchase price being $23,000.
It was also agreed that appellee Bellmont should not attend the sale. He went to El Dorado to release the escrow agreement, in order that the $5,000 on deposit in escrow might be available to perfect the bid made by Farris. Johnson advanced $6,000 additional to indemnify the surety on the bond which the purchasers were required to execute pursuant to the order of sale, and, when this was done, Farris transferred his certificate of purchase to Johnson.
Up to this time the testimony is overwhelming that all parties interested regarded the second sale as having been made for the benefit of all of them ;but it is the insistence of appellants that appellee passed out of the transacti.on by reason of his failure to “kick-in,” as they expressed it, with his part of the money to pay for the lease and its development.
After the second sale, Johnson and his associates attempted to buy the interest of appellee, and offered him $3,000, which appellee declined. This discussion and offer took place in Rock Island, Illinois, on February 4,1925. When this offer was declined, Johnson stated to appellee that he (appellee) had no interest in the lease, whereupon appellee returned to El Dorado, and, on February 9, 1925, instituted this suit to recover and to have declared his interest in the property.
Money to pay for the lease and to develop it was obtained from George W. James, and, to secure him in his advances, the certificate of sale was assigned to him, and later a deed was made directly to him by the commissioner. At the time of the first sale to appellee a small well had been brought in. Appellants drilled two other wells, which were also small producers. .A fourth well was drilled to a greater depth, and the well thus brought in was of the capacity of 15,000 barrels of oil per day. •
James was repaid'his advances, and, on May 28, 1925, he reconveyed to appellants, who conveyed to the Smackover Petroleum Corporation. A conveyance was then executed by appellants and the Smackover Petroleum Corporation to the Phillips Petroleum Company for the consideration of $375,000, the vendors reserving all the oil which had been produced prior to the date of the conveyance.
Appellee’s right to recover is resisted upon several grounds: (a) That the contract of October'28, 1924, set out above, was executed under a mutual mistake of fact, in that appellee was not the owner of the property with reference to which the contract was made; (b) that there was no trust in favor of appellee; (c) that the parol agreement in regard to the second sale was within the statute of frauds, and was void because it was not in writing; and (d) that appellee was barred by laches.
. The court found in favor of appellee upon all these issues, and declared that all the persons' through whose hands the lease passed, as stated, took title thereto subject to an existing- trust in appellee’s favor, except the last purchaser and present owner, the Phillips Petroleum. Company. Upon this finding’, the court appointed a master to state an account of the profits and proceeds of the lease, and from the final decree confirming the master’s report is this appeal.
We think the written contract of October 28 was not void as having’ been executed under a mutual mistake of fact. It is true that, when its terms were agreed upon, the parties were under the misapprehension that Bellmont had the title to the lease, which could and would be perfected when the terms of the sale had been complied with; but it appears that, after it was known the sale had been set aside, the parties proceeded under the written contract as amended, the essence of which,, so far as appellee was concerned, was that he should have a fifth interest in the lease.
In support of the contention that there was no trust in appellee’s favor, it is insisted that appellee had nothing to convey, and that the lease was n-ot acquired under the agreement of October 28, and that the alleged subsequent agreement under which appellee says a trust in his favor arose was void because it was not in writing.
In reply to this contention, and to the contention that the parol agreement was within the statute of frauds, it is answered — and we think correctly so — that appellee made a very valuable contribution to the enterprise. It was through his investigation and survey -and the information obtained as a result thereof that appellants were put in touch with this very valuable property, which has proved so enormously profitable to them, and the agreement of October 28 evidences that fact. It is true, as pointed out by counsel for appellants, that this agreement was amended, but this amendment went to the manner of acquiring the lease and did not change the relative interests of the parties. It may be that this amended agreement cannot be enforced as an express trust because it was not evidenced by a writing, but this dhange in the written agreement was not intended to eliminate appellee as a party in interest or to diminish his interest, and Ms right to recover is not to be defeated because of the absence of a- writing evidencing the supplemental agreement and which prevents the finding that there was an express trust.
The contention that appellee is barred by laches is based upon the fact that he made' no contribution of money, while appellants used their credit to the extent of $56,000 in developing the lease, including the sum paid for it, and that, in addition, they gave the enterprise much of their time and attention, whereas appellee devoted neither time nor attention to the development of the lease. It is also insisted that, by Ms non-participation, appellee speculated, at the expense of appellants, on the outcome of the adventure.
In reply to this contention it is answered that the lease was at all times worth more than it cost, and before its development appellants were offered $60,000 for it. The development of the adjacent lands and the discovery of oil thereon proved the value of the lease and added to its value. Appellee testified that he had devoted several-months of his time to the discovery of this property, and had spent about $2,500, including the expenses of his various trips to Illinois, in his effort to enlist appellants, in the adventure. Appellants did develop the lease by drilling wells, but all the wells drilled were producers, and the money borrowed for this purpose was obtained on the security of the lease itself. The services rendered by appellants consisted in clearing the ground for the location of the wells and in arranging for the money to drill them. It does not appear that appellee was called upon to participate in this service or' that he declined to render any aid for which he was asked.
The master, in stating the account between the parties, made a finding on the credits to which appellants are entitled, and it is not insisted that the account was not correctly stated if appellee is entitled to recover the interest claimed by him. Nothing was allowed appellee for his own time or for the expenses which he said he had incurred. Appellee brought this suit immediately after being advised by appellants that he had forfeited his interest in the original agreement. We conclude therefore that the defense of laches is not sustained.
Respective counsel have filed briefs reviewing the decisions of this and other courts on trusts of various kinds. We do not review these decisions — not even those of our own court — as they are quite recent, and no useful purpose would be served by going into a subject which has 'been so thoroughly considered.
There is a contrariety of opinion among the members of the court, under the facts stated, as to the kind of trust created, but a majority are of the opinion that a constructive trust arose and that the decree of the lower, court should be affirmed on that theory.
In the case of Haskell v. Patterson, 165 Ark. 65, 262 S. W. 1002, rve quoted from 3 Pomeroy’s Equity Jurisprudence, § 1044, the following statement of the law: “Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient manner, where there is no intention of the parties to create such a relation, and, in most cases, contrary to the intention of the one holding the legal title, and where there is no express or implied, written or verbal declaration of the trust. They arise when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property t.lms obtained is held in hostility to his beneficial rights of ownership. As the trusts of this class are imposed by equity, contrary to the trustee’s intention and will, upon property in his hands, they are often termed trusts in invitum, and this phrase furnished a criterion, generally accurate and sufficient, for determining what trusts are truly ‘constructive.’ An exhaustive analysis would show, I think, that all instances of constructive trusts, properly so-called, may be referred to what equity denominates fraud, either actual or constructive, as an essential element, and as their final source. Even in that single class where equity proceeds upon the maxim that an intention to fulfill an obligation should be imputed, and assumes that the purchaser intended to act in pursuance of his fiduciary duty, the notion 'of fraud is not invoked, simply because it is not absolutely necessary under the circumstances; the existence of the trust in all cases of this class might be referred to constructive fraud. This notion of fraud enters into the conception in all its possible degrees. Certain species of the constructive trusts arise from actual fraud; many others spring from the violation of some positive fiduciary obligation; in all the remaining instances there is, latent perhaps, but none the less real, the necessary element of that unconscientious conduct which equity calls constructive fraud. Courts of equity, by thus extending the fundamental principle of trust — -that is, the principle of a division between the legal estate in one and the equitable estate in another — to all cases of actual or constructive fraud and breaches of good faith, are enabled to wield a remedial power of tremendous efficacy in protecting the rights of property; they can follow the real owner’s specific property, and preserve his .real ownership, although he has lost, or even never had, the legal title, and can thus give remedies far more complete than the compensatory damages obtainable in courts of law. The principle is one of universal application; it extends alike to real and to personal property, to things in action, and funds of money.” See also Bray v. Timms, 162 Ark. 247.
In the case of Strasner v. Carroll, 125 Ark. 34, 187 S. W. 1057, it was said: ‘It is true the general rule is that a mere verbal agreement by which one of the parties thereto promises to buy in, at a judicial sale, lands of the other and hold same for his benefit, does not create a resulting or implied trust, the agreement itself being within the statute of frauds. There are, however, several well recognized exceptions to the rule, and one of them is that, where the purchaser of lands in which the other is interested becomes such under such a. state of facts as would make it a fraud to permit him to hold on to his bargain. Trapnall v. Brown, 19 Ark. 39; McNeil v. Gates, 41 Ark. 264; LaCotts v. LaCotts, 109 Ark. 335. In the first two mentioned cases the principle is announced that it would be a fraud in a purchaser, who obtained property at a price greatly below its value by means of a verbal agreement, to keep the property in violation of the agreement. ’ ’
Appellee had an equity in the property when he made the agreement of October 28. He might have prosecuted his contract with the receiver and the residuary owner and have thus acquired the property. He might, by prosecuting an appeal from the order of October 20, have had that order set aside and the sale confirmed. But, whether 'this could have been done or not, he abandoned the pursuit of either course, pursuant to the amended agreement with appellants to let the property go to sale and buy it a second time. He refrained from bidding at the sale or from attempting to enlist any other person to do so.
Upon this point he testified .that he had arranged with one Landau of Chicago to furnish the money to acquire this lease. But he did not close the contract with Landau because Carl Sundeen, who had put him in touch with appellants, advised that appellants were ready to proceed, and he closed with appellants rather than Landau, because he thought Sundeen had earned and was entitled to the commission promised him. Sundeen corroborates appellee in this statement. Appellants were permitted to bid at the second sale in reliance. upon appellee’s investigation and discovery, and they did bid, and bought the property under an agreement which contemplated that the purchase should inure to the joint and equal benefit of all the parties.
We conclude therefore that a trust existed in appellee’s favor, and that the court below was correct in so holding.
Appellee has prosecuted a cross-appeal wherein he 'insists that his interest in the lease itself should be declared and accorded Mm. He testified that the lease was sold for a grossly inadequate price, although, the sale price was $375,000, and the proceeds of the sale of the oil before the sale of the lease brought the gross income of the property to $393,978.46, and there is testimony corroborating Mm in Ms estimate of the value of the lease.
The court found, however, that the lease sold for a fair price, and that the sale thereof should be confirmed, and we think this finding should be affirmed.
Appellee expressly states that he raises no question about his being charged with his part of the expenses of developing the lease, and the finding of the court below that he should be so charged is affirmed.
The report of the master found that the net value of appellee’s one-fifth interest was $67,386.94, and judgment was rendered in his favor for that amount.
The correctness of that finding is not questioned, if it be conceded that appellee is entitled to receive a fifth of the net profits. The court below found that he was so entitled, and, as we concur in that finding, the decree of the court below is affirmed.
McCulloch, C. J., and Hart, J., dissent. | [
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Hart, J.,
(after stating the facts). The judgment of the circuit court was correct, according to the principles of law decided in Brunson v. Board of Directors, 107 Ark. 24, 153 S. W. 828. In that case a landowner in a levee district made a payment of levee taxes under an illegal assessment, with knowledge of the fact, and it was held that the payment was voluntary and that the taxes could not be recovered. In that case, as here, if the landowner had refused payment of the improvement district taxes to the collector, the latter would have had no authority to sell the lands to enforce payment. Under the statute, the board of directors would be required to institute an action in the chancery court to collect the taxes. The landowner could make his defense in that suit, and thus would have had his day in court. White River Lumber Co. v. Elliott, 146 Ark. 551, 226 S. W. 164, and Paschal v. Munsey, 168 Ark. 58, 268 S. W. 849.
Under these decisions, the coercion which will render a paymént of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or property from which the latter has no reasonable means of immediate relief except by making payment.
But it is insisted by counsel for the plaintiff that the taxes alleged in the complaint takes the case at bar out of .the operation of the principle decided in these cases and brings it. within the rule announced in Dickinson v. Housley, 130 Ark. 260, 197 S.W.25. We do not think so. In that case the collector refused to accept any sum less than the full amount demanded, and had the power to have sold the lands of the taxpayer in payment of the illegal tax. This would have constituted a cloud upon the title, and it became necessary for the owner to pay the illegal demand in order to prevent the sale. No such power existed in the board in the case at bar. If the plaintiff' had refused to pay the taxes, the board of directors would have been compelled to institute proceedings against the landowner in the chancery court to collect the taxes, and the plaintiff could have presented the same matters as are set up in this case to defeat the collection of the taxes. In short, it could have defended a suit to collect the taxes upon the same ground that it bases its right to recover the taxes which it voluntarily paid.
It is true that the amended complaint sets up the fact that it did not definitely know how much of its land had been taken for the construction of the drainage ditches, levees and floodways until it had paid the taxes for the years 1918,1919 and 1920. But it could have required the levee districts to have set forth and shown how much land had been taken for the construction of the proposed improvements before they could have recovered the taxes. In other words, the burden of proof would have been upon the board of directors to have shown how much taxes were due before they could have recovered any amount. In ascertaining this fact, they would have had to eliminate the lands which they had taken in the construction of the improvements in the various ways set out above.
It is also insisted by counsel for the plaintiff that the court erred in refusing to transfer the- case to the chancery court, as requested by it after it had filed its amended complaint. In the first place, it may be said that the circuit court was the proper, forum in which to bring the action. Brunson v. Board of Directors, 107 Ark. 24, 153 S. W. 828. In the next place, if the case had been transferred to the chancery court the result must have necessarily been the same. It would have been the duty of the chancery court to have decided the principles of law as they were decided by the circuit court. Hence no prejudice whatever could have resulted to the plaintiff by the failure to transfer the case to equity.
It follows that the judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Humphreys, J.
Appellee, widow of R. G. McEuen, filed a petition in the probate court on April 13, 1925, praying for an order allowing her dower and homestead rights in all of the estate of her deceased husband. In aid of her petition she tendered into court a quitclaim deed, duly acknowledged and recorded, releasing and quitclaiming all her rights in the real estate under said will but not under the law; and also $112.50, with interest, which the executor of the will of her deceased husband had theretofore paid her.
Eugene Cypert, executor of the will, and Arch McEuen, Mattie McEuen Tigue, Charles McEuen and Eufus McEuen, heirs and legatees of R. G. McEuen, filed a response to said petition on May 2, 1925, alleging that appellee, with the full knowledge of her rights and for the purpose of making an election to take under said will, did on April 14, 1924, accept $25, and on June 5, 1924, accept $87.50 from said executor as part payment of her distributive share in said estate under the will.
On June 15, 1925, the cause was submitted to the. court upon' the pleadings and the documentary and oral testimony of the witnesses adduced by the respective parties, which resulted in a judgment denying the petition of appellee to take an interest in said estate under the law, and ordering the executor to proceed to distribute the estate under the will, from which judgment and order an appeal was duly prosecuted to the circuit court of said county.
The cause proceeded to a trial de novo in the circuit court on July 23,-1924, before the court, sitting as a jury, which resulted in granting the petition of appellee and an order directing the executor to pay the petitioner one-third of the personal property belonging to said estate, .and awarding to her dower and homestead rights in the southwest quarter of the southeast quarter of section 22, and the west half of the northwest quarter and the northeast quarter of section 27, township 7 north, range 8 west, containing sixty acres, more or less, from which judgment and order and award an appeal has been duly prosecuted to this court.
The record reflects, according to the undisputed facts, that Rufus G. McEuen and the appellee were, married in April, 1919, he being eighty and she sixty years of age; that, at the time, he had a home, some personal property and money, and was drawing a pension of $50 a month; that he executed his last will and testament on March 21,1923, in which he devised to his widow, the appellee herein, and to his only children, who are appellants herein, in equal parts, all of his personal property, and to said widow all his household goods, wearing apparel, and the use of said homestead during her natural life; that the will was drawn by Esq. Davenport, a justice of the peace, in the presence of R. G. McEuen, one of his brothers, the appellee and some of their neighbors ; and that the terms of the will were gone over in the presence of all of the parties, and that each of the devisees knew what he or she was to receive; that said testator died on March 28, 1924, and the will was.pro bated on April 12, 1924, at which time Eugene Cypert, one of the appellants herein, qualified as executor under the will; that, on the day of his qualification, he paid the appellee $25 as part payment of her distributive share under the terms of the will, and noted that fact on the check for said sum, which she indorsed and cashed; that, on the 5th day of June thereafter, he paid her $87.50, and received the following receipt:
“87.50 Searcy, Ark., June 5, 1924.
“Received of Eugene Cypert, executor of the estate of R. G. McEuen, the suni of eighty-seven and 50/100 dollars ($87.50), in part payment of my distributive share in said estate under the will of said R. G. McEuen, and in consideration of this sum as an advancement under said will, I hereby agree that I will abide by the terms of said will, and will accept one-seventh (1/7) of the proceeds of the personal property of said estate. M. F. McEuen. ”
That at the time she signed the 'receipt she knew that her husband had over $4,000 in the banks, and that he owed no debts; that, although nearly seventy years of age and hard of hearing, she could read and write and was reasonably intelligent; that, upon the death of her husband, she took charge of the household goods, the little personal property on the place, and rented out the homestead.
The record refiects a dispute in the testimony as to whether she knew her rights in the estate under the law when she accepted payments from the executor in lieu of dower.
Eugene Cypert testified that, although he did not go into details concerning the amount appellee would get if she renounced the will and took under the law, yet he informed her of her legal rights in the premises, and that she would get much more under the law than under the provisions made for her in the will.
R. C. and R. F. McEuen testified that they were present when Mr. Cypert explained her rights to her and heard her say to him that she would take under the will, as she was perfectly satisfied with it.
T. B. Ellis, a merchant in Searcy, who had known appellee and her husband for many years, testified that appellee told him that she had decided to accept the will and to settle the estate according to its terms.
Appellee denied the testimony of each of the witnesses aforesaid, and stated that she did not know that she had a right to renounce under the will and take under the law until a few days before she filed her petition in the probate court renouncing, her rights under the will and praying for her dower and homestead rights under the law.
Appellants contend for a reversal of the judgment upon the ground that, according to the undisputed evidence, appellee elected to take under the will, and is bound by the election; whereas appellee contends for an affirmance of the judgment upon the ground that she signed the receipt, in ignorance of her rights, and is not bound by same to an election under the will.
The receipt executed by appellee to the executor on June 5, 1924, 'a little over two months after her husband’s death, contains an express election to take under the will. The language used therein is unambiguous and commits- her unequivocally to an acceptance of a child’s part, or one-seventh of the personal estate, in full settlement of her distributive share therein. She does not dispute signing the receipt, but attempts to avoid its effect by saying she was iguorant of her rights under the law.
Ignorance of the law'' is not sufficient to relieve one from his obligations, but, in order to avoid them, he must also show that he did not have capacity to make them, or that they were made under duress, or that they were induced by some kind of deception or fraud practiced upon him. In other words, when one is put to an election, the election, when made, is as binding and effective as any other agreement made by him. This court laid down the following rule relative to elections of widows under wills in the case of Goodrum v. Goodrum, 56 Ark. 504 (quoting syllabus 1): “Acceptance by a widow of a bequest of money under her husband’s will, with knowledge that it was intended in lieu of dower, will be presumed to be an election to take under the will, notwithstanding she gave no receipt for the money and expressed no intention, in words or in writing, to make such an election. ’ ’
• It is true that, at the time appellee elected to take under the will, an inventory of the estate had not been filed by the executor, but she is charged with knowledge of the amount of money her husband had when he died, for she had possession of the deposit slips, and delivered them to the executor. She also had ample opportunity to inquire and obtain advice as to her rights under the law. There is not an intimation in the record that she was misled or deceived as to her rights, or that any undue influence was brought to bear upon her in order to induce her to abide by the will. She was a woman of reasonable intelligence, and voluntarily made an election to take under the will. Mr. Pomeroy says, in his work on Equity Jurisprudence, vol. 1, § 514, 4th edition, that ‘ ‘ an express election is made by a single unequivocal act of a party, accompanied by language showing his intention to elect,” and in § 516 of the sáme work says that one is bound by such an election.
In view of the fact that the undisputed evidence reflects that appellee estopped herself from claiming under the law, the judgment of the circuit court must be reversed, and the cause remanded with directions to the court to enter a judgment denying the petition of appellee, and directing the executor to administer the estate in accordance with the terms of the will.
The attention of the trial court is called, however, to the fact that the widow is entitled, under the circumstances of this case, to her statutory allowances of $450 out of the personal estate before same is divided among the devisees, notwithstanding the fact that she elected to take under the.will. There is no expression in the will indicating that it was the intention of the testator to deprive appellee of her statutory allowances under §§ 80 and 86 of Crawford & Moses’ Digest, by devising her a child’s part in lien of dower. Costen v. Fricke, 169 Ark. 572, 276 S. W. 579.
On account of the errors indicated the judgment is reversed, with directions to the trial court to enter a judgment dismissing the petition of appellee, and ordering the executor to administer the estate in accordance with the terms of the will, after paying appellee $450 in satisfaction of her statutory allowances. | [
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Humphreys,
J. The petitioner herein is the duly elected, qualified and acting sheriff of Phillips County, Arkansas, whose term of office will expire on December 31, 1926. On the 5th day of November, 1926, the grand .jury of said county returned an indictment against him, which, omitting caption and matters of form, is as. follows:
“The said J. D. Mays, in the county and State aforesaid, on the 1st day of February, A. D. 1926, then and there being the duly elected, qualified and acting sheriff of Phillips County, Arkansas, and then and there knowing and having knowledge that A. L. Keller, W. B. Chaney, Clay Pryor, Eugenia Miller, and divers other persons, were then and there guilty of the crime of setting up, keeping and exhibiting certain gambling devices, commonly called slot machines, which said machines were adapted, devised and designed for the purpose of playing a game of chance at which money and property might be won or lost, in said county and State, did unlawfully, knowingly and willfully fail, neglect and refuse to give notice that said persons were so setting up, keeping and exhibiting the gambling devices aforesaid in the manner and form aforesaid and for the purposes aforesaid, to some judge or justice of the peace of Phillips County, Arkansas, in accordance with the statutes and laws in such cases made and provided, and did unlawfully, knowingly ( and willfully fail, neglect and refuse to arrest said persons aforesaid, who were so setting up, keeping and exhibiting the gambling devices aforesaid, in the manner and form aforesaid, and to carry them before some magistrate or court having jurisdiction to examine into the matter, as provided by law.”
The respondent herein is the duly elected, qualified and acting judge of the First Judicial Circuit of the State, and was presiding over the circuit court in Phillips County at the time the indictment was returned against said petitioner.
On the 10th day of November, 1926, the petitioner herein applied to this court, b}^ petition, for a writ of prohibition to prevent the respondent herein from suspending him from office during the pendency of the indictment, or before the final trial thereon, upon the folloAving alleged grounds:
First, that the indictment failed to charge any offense.
Second, that there is no statute authorizing a suspension of petitioner from office before a trial, under the circumstances of this case.
Respondent filed his answer, .joining issue upon the alleged insufficiency of the indictment to charge a crime, and the alleged want of authority to suspend respondent from office during the pendency of the indictment and before the final trial upon the charge contained therein.
A determination of the issues joined involves:
First, a construction of § 2633 of Crawford & Moses’ Digest, under which petitioner claims the indictment was drawn; and
Second, whether § 10335 applies to the crime charged in the indictment.
.1. The respondent claims that the indictment was drawn under § 2642 of Crawford & Moses’ Digest, making it the duty of a sheriff to notify a judge^ or justice of the peace of the county, if it should come to his knowledge that any person is guilty of setting up gambling devices, etc., and a failure to do so is covered by § 10335 of .Crawford & Moses’ Digest, which provides for a suspension of a sheriff for such failure during the pendency of an indictment and before final trial. ' In arriving at this conclusion, the respondent contends that the last six lines of the indictment may and should be treated as surplusage. It is further claimed by the respondent that the language of the indictment is sufficient to charge a crime against petitioner under § 2633 of Crawford & Moses’ Digest. •
The petitioner claims that § 2642 of Crawford & Moses’ Digest was repealed by § 2633 of said Digest, and that the facts stated in the indictment are insufficient to charge a crime against him under the latter section.
It is unnecessary to decide whether the former section is repealed by the latter, as we agree with respondent that the facts alleged in the indictment constitute a crime under the latter section. The facts stated in the indictment are that the petitioner, being sheriff of said county, and knowing that certain persons (naming them) were guilty of the crime of exhibiting certain gambling devices (specifying them and the use for which designed), in said county and State, did unlawfully, knowingly and willfully fail, neglect and refuse to arrest said persons and take them before some magistrate or court having jurisdiction to examine into the matter, as provided by law, against the peace and dignity of the State of Arkansas.
It is contended by petitioner that it is not a crime, under § 2633 of Crawford & Moses ’ Digest, for a sheriff to fail to arrest a person who exhibits a gambling device, but that the only crime provided against a sheriff therein is a failure to arrest a person- engaged in running a gambling house. The section reads as follows:
“If any sheriff, or deputy sheriff, knows or is informed that a gambling’ house is being operated, or that any person or persons are engaged in the exhibiting of a gambling device or devices, within his county, it shall be his duty to forthwith proceed to the place where such gambling house is located and arrest the person or persons engaged in running or operating said gambling-house, 'and to carry such persons before some magistrate or court having' jurisdiction to examine into the matter, and, upon such sheriff, or deputy sheriff, failing to comply with the provisions of this section, he shall be deemed. guilty of a misdemeanor and shall be fined in any sum not less than one hundred dollars, and shall be discharged from office.”
If it had not been the intent of the Legislature to require a sheriff to arrest and take one before a magistrate or other court who was engaged in exhibiting a gambling- device or devices anywhere in the county, then the following language, “or that any person or persons are engaged in the exhibiting of a gambling device or devices,” used in the section, is meaningless. In construing statutes every word used therein should be given its ordinary meaning, if possible. This clause, containing a number of words, should not be stricken out of the section by construction, but should be left as a coherent part thereof, if possible. This can be done by attaching the meaning of “place” to the word “house” in the section. By attaching this meaning to the word “house” the section may be read as a harmonious whole, imposing the duty alike upon the sheriff to arrest and take one running- a gambling house and one exhibiting a gambling-device, anywhere in the county, before a magistrate or court for investigation. The obvious intent and purpose of the statute was to provide a remedy for immediately and effectually stopping- the operation of gambling houses and the exhibition of gambling devices anywhere in the county. It is suggested that another section of Crawford & Moses ’ Digest covers the exhibition of gambling devices, and for that reason the Legislature did not intend to impose the duty upon a sheriff to arrest parties exhibiting same; but this cannot be, for another section of the statute likewise covers the running of gambling houses. •
2. The reason advanced by petitioner to support his position that the respondent is without authority to suspend him from office before a trial upon the presentment or indictment is that § 2633 of Crawford & Moses ’ Digest, creating new and distinct crimes, is exclusive, having no relation whatever to the crimes enumerated in § 10335 of Crawford & Moses’ Digest, in which provision is made for the suspension of county officers during the pendency of indictments against them. Section 10335 of Crawford & Moses’ Digest is as follows:
“Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant. ’ ’
This statute is founded upon a sound public policy, and has no relation whatever to punishment for the crimes mentioned therein. In the enactment of the section the Legislature concluded that it would be unwise to allow county officers who had been indicted for delinquencies to continue in the performance of their duties before purging themselves of the charges preferred against them. The petitioner, however, contends that the delinquencies, or other acts of omission and commission enumerated in § 10335 of Crawford & Moses’ Digest, do not embrace the crimes created in § 2633 of Crawford & Moses’ Digest. The former section mentions nonfeasance in office. According to “Words and Phrases,” nonfeasance by an officer is an omission to do or perform something which he ought to do and perform. The gravamen of the offense charged in the indictment under § 2633 of Crawford & Moses’ Digest was an omission or failure on the part of petitioner to arrest certain persons exhibiting gambling devices in said county, which he was required to do by law.
The application for a writ of prohibition herein is therefore denied. | [
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Meiiaffy, J.
The appellant filed its complaint in the Pulaski Chancery Court, alleging that, on August 29, 1925, there was filed with the city council of the city of Little Bock a petition praying that certain property in the city of Little Bock, Arkansas, be organized and annexed to Street Improvement District No. 349 for the extension of the improvement of said district within the territory proposed to be annexed. That the city council, in compliance with the statute, passed a resolution and published notice of the date for hearing said petition, to determine whether the same contained signatures sufficient to constitute a majority of the assessed valuation within the proposed territory to be annexed. That the council refused to establish said annexation, and that a suit was filed by a property owner in the Pulaski Chancery Court seeking a review of the action of the defendants, and that the chancery court entered a decree for said plaintiff. The decree, among other things, ordered the city council to proceed with the organization of the district by adopting a resolution and passing the ordinance filed with the said city council, and to pass such' ordinances and to take such steps as are necessary to legally organize said territory. That an appeal was taken from the chancery court to this court, and that the decree was affirmed by this court on May 21, 1926.
That thereafter J. A. Brooks, J. B. Goodwin and J. S. Laird were appointed assessors, and took their oaths of office and qualified as assessors, and proceeded with the making of assessments of benefits. It is alleged that said assessment was duly made and lodged with the city clerk of the city of Little Bock, and remained for a period of ten days, in compliance with the statute. It is further alleged that, after the expiration of ten days, but during the period of time that the same was held by the city clerk, a number of protests were filed and appeals taken, and, upon a hearing by the city council, the council referred the protests and appeals to the finance committee with directions to hear said protest and report its action to the council. That the finance committee neglectfully and wantonly failed and refused to make disposition until threatened with citation; that members of said finance committee persuaded two of the board of assessors to resign, and that, when the finance committee reported on October 11, 1926, they reported that they found from the evidence that there was no proper and legal assessment made, and recommended that an assessment be made. It was further alleged that the action of the finance committee and city council nullified the assessment and prayed that the action of the city council be reviewed, that the assessments be confirmed, and a mandatory injunction be issued.
Other parties were made parties defendant on their motion. Defendants filed an answer, denying the allegations of the petition, except they admitted that the protests and appeals were referred to the finance committee, but denied that the members of the finance committee neglectfully and wantonly failed to make disposition of said appeals; denied that they persuaded members of the board of assessors to resign; admitted that they reported to the council that they found, from testimony adduced on numerous hearings, that the assessment was not proper and legal. They denied that the assessments were valid, and denied that they nullified the assessments. Defendants alleged in their answer that, within ten days after assessments were filed, a number of protests were lodged with the city clerk and notice given that appeals were being taken. These matters were then referred to the finance committee. Defendants further stated that plaintiff had a remedy at law, and that the chancery court was without jurisdiction.
The only issue necessary to be determined here is whether the chancery court erred in refusing to issue an order requiring the defendants to proceed with the pas sage of an ordinance levying assessments as made by tbe board of assessors. Tbe city clerk was called and introduced the ordinance, but about the validity of the ordinance there is no controversy. The assessment was introduced, together with the certificate from the three assessors ; also the notice of filing the assessment, and proof of publication. The city clerk testified that there were a number of protests filed against the assessment of benefits and that they were referred to the finance committee on August 9, 1926. The certificate of the assessors is dated July 23, 1926. The finance committee reported back on October 11,1926.
J. B. Goodwin, one of the assessors, testified that he had nothing to do with the assessment or with the making of the assessment; that Mr. Martin brought it to his house, and he signed it; that that was the only thing he had to do with it; that he never went over the district for the purpose of making the assessment, and that he would not know how to figure the benefits; that he met Mr. Brooks, another assessor, one time in Mr. Martin’s office, but that they had nothing to do about the assessment, and he did not remember meeting the other assessor. That the only thing he knew about the basis upon which the assessments were made was that Mr. Martin told him how the figures were got. The only thing he knew about it was what Mr. Martin told him. “I signed the assessment, but I was told that that was the way it was done, and I stated at the time that I was signing something I did not have anything to do with. ’ ’
J. S. Brooks, another assessor, testified that he did not attempt to act as assessor at airy time or at any place, and that he did not arrive at the amount of benefits, never made a figure of any kind in making the assessments. “I know nothing about the basis upon which the assessment was made. I signed because I just took Mr. Martin’s word. I did not know anything about the land values or anything like that. I signed the statement to the mayor and city council,-but I told Mr. Martin that I would sign it upon his word that everything was all right. I do not know who prepared the statement.”
J. S. Laird, the other assessor, testified that he did not meet with the other two assessors; never met with them and discussed the assessment; that he went over the property twice; that he was called once to meet with the other assessors, but it was impossible for him to meet them at the time; that the other two assessors had already signed the assessment roll before he did; that he made a comparative valuation on the assessment roll, with the location of the lots and their relationship to each other, to determine if it was a just and uniform assessment; that, in his opinion, it was just and uniform. That if it had not been he would not have signed it. That one of the assessors, Mr. Goodwin, tried to get him to resign.
It seems perfectly clear that at least two of the assessors had nothing to do with making the assessment. This court has several times held that a collateral attack cannot be made upon the assessment of benefits unless void on the face of the proceedings. But that is a very different matter from the district itself invoking the jurisdiction of the court to compel action on an assessment claimed to be void. Without deciding whether the chancery court would have jurisdiction to make the order prayed for, we think that, when the plaintiff seeks a mandatory injunction compelling the city council to act on an assessment, he would have to show that there was an assessment made, and it appears from the evidence in this case that the assessment was made by one assessor only, and not by three. It is unnecessary to decide in this case whether they would have to meet as a board and make the assessment, because we have here no assessment made at all except by one assessor. The statute requires the appointment of three electors of the city or town, and says they shall constitute a board of assessment of the benefits. It requires each of them to take the oath of office before entering upon the discharge of his duties, and then provides that they shall at once proceed to inscribe in a book tbe description of tbe property and shall assess the value to accrue to each of said lots, that is, the board of assessors shall assess the value, not one, but all of them. The law also provides for an appeal by a property owner and for a hearing on appeal by the council, and this law w;as followed by property owners and by the city council. By requiring three assessors, the law evidently intends that the assessment shall be made by the three. It contemplates the joint action on the part of the three assessors appointed, and all three assessors must take part in the assessment; and, while it might not réquire the unanimous agreement of the three, we think it would require joint action on the part of the three. Page & Jones , Taxation by Assessment, § 901; Cicero v. Andren, 224 Ill. 617, 79 N. E. 962; Larsen v. Chicago, 192 Ill. 298, 50 N. E. 179; Hinkle v. Mattoon, 170 Ill. 316, 48 N. E. 908.
In this case it appears from the evidence that there was not only no joint action but that two of the members of the board of assessors actually took no part at all and made no effort to assess, and the assessment made was therefore void.
The decree of the chancerv court is affirmed. | [
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McCulloch, C. J.
Appellants instituted this action against appellees in the chancery court of Union County, claiming title to a tract of oil land containing forty acres, and seeking to cancel, as clouds on their title, certain conveyances under which appellees assert title. The court sustained a demurrer to the complaint, and, upon refusal of appellants to plead further, there was a final decree dismissing the action.
It appears from the allegations of the complaint that Edmund Norris was the original owner, as patentee of the United States Government, and that he died in the year 1894, leaving surviving his wife, Silvia Norris, who inherited the land in the absence of other heirs; that Silvia Norris died in the year 1899, leaving surviving her five children, Riley Sanders, Neil Sanders, Mary Burns, Lou 'Cotton, and Mellie Miller, and her grandchild, Elisha Wilson, who were her heirs at law and inherited the land. Riley Sanders and Neil Sanders executed a deed of trust on March 7, 1903, to secure a debt owing to Young and Anderson, and the deed was foreclosed under power of sale by the trustee in 1907. N. C. Marsh and Aylmer Flenniken were the purchasers at the trustee’s sale, and received a deed. Subsequently Marsh conveyed his interest to Flenniken, and the latter conveyed to his wife, Mary Flenniken, one of the appellees. Mrs. Flenniken executed an oil lease on June 12, 1922, to Humble Oil & Refining Company, and another lease has been executed by Mrs. Flenniken to Tidal Osage Oil Company. Neil Sanders died in the year 1916, and left surviving his wife, Rena, who was plaintiff below and is one of the appellants here. All of the heirs mentioned above, together with Rena, the widow of Neil Sanders, joined in the complaint, and appealed.
It is alleged in the complaint that the wives of the two mortgagors, Riley Sanders and Neil Sanders, did not join in the execution of the deed of trust;' that the property was, at the time of the execution of the deed, the homestead of the mortgagors, and that the conveyance was absolutely void by reason of the failure of the wives to join therein. The prayer of the complaint is that the mortage and all subsequent conveyances be declared void as clouds on the title of appellants, and that the present occupants be held to be mortgagees in possession and required to account for the rents and profits.
The statute (Crawford & Moses’ Digest, § 5542) provides, in substance, that a conveyance by a married man of his homestead is void unless his wife joins therein, but there was a statute enacted by the General Assembly of 1923 (act No. 80) which rendered valid conveyances otlerwise void on account of failure to comply with the other statute. Effect must be given to this statute, and the deed executed by Riley Sanders and Neil Sanders is thereby rendered valid. Flanigan v. Beavers, ante p. 28. This disposes of the appeal of Riley Sanders and Rena, the widow of Neil Sanders, for the relief which they seek is dependent upon the invalidity of the deed of trust, which was rendered valid by the curative statute swgra.
It is also alleged in the complaint, in general terms, that the foreclosure of the deed of trust was not “in the manner and form required by law,” but that is a mere statement of a conclusion and does not disclose facts sufficient which would render the foreclosure void. However, the complaint shows on its face that the appellants other than Riley Sanders and Rena Sanders are the owners of an undivided four-sixths of the land as tenants in common with Riley and Neil Sanders, and that their interests are unaffected by the mortgage executed by the two last named. The other' appellants are entitled, according to the allegations of the complaint, to recover their several interests in the land.
It is contended by counsel for appellees that a demurrer was properly sustained on the ground that the complaint shows on its face that appellants were barred by the statute of limitations, and also that they are guilty of laches which bars recovery of the land. We do not think that the facts stated in the complaint show that the action was barred either by limitation or by laches, but those defenses must be presented by answer and not by demurrer to the complaint. It is alleged in the complaint that Edmund Norris occupied the land as his homestead up to the time of his death in 1894; that it was so occupied by Silvia Norris as her homestead from 1894 to 1899; that it was also occupied as a homestead by Eliza Sanders, wife of Seaborn Sanders (the latter being the son of Silvia), from 1894 to 1899, and that “since 1909 said property has been in the actual possession of no one except for one year a man by the name of Bilyeu, about the year 1909, made one crop, and never occupied said land any more.” It is further alleged that Eliza Sanders moved off the land in 1909, and died in 1920. It also appears from the complaint that Seaborn Sanders was the only child of Silvia, and died in the year 1892 and left his widow, Eliza, and his children, who are appellants in this case. Seaborn having died before the death of his mother, the title passed by inheritance to his children, and Ms wife, Eliza, acquired no interest in the property, for the reason that her husband, Seaborn, was never the owner. It nowhere appears in the complaint that there was any adverse occupancy of the land so as to bar the rights of appellants by limitation, nor are there any facts alleged upon which the doctrine of laches can be invoked. The deed of trust executed by Riley and Neil Sanders purported to convey the whole of the land — not merely undivided interests — and the subsequent deeds were to the same effect. According to these allegations, appellees had color of title to the whole of the tract, but it is not shown on the face of the complaint that appellees have occupied the place for any particular length of time or that they have ever paid the taxes on the land, or that there has been any such change in the relation of the parties as to call for an application of the doctrine of laches. The allegations of the complaint are not altogether definite, but this objection should have been taken advantage of by motion to make the complaint more definite and certain.
The decree is therefore affirmed as to the interests of Riley Sanders and Neil Sanders, conveyed under the deed of trust, but reversed as to the other appellants, Mary Burns, Mellie Miller, Lou Cotton and Elisha Wilson, with directions to overrule the demurrer to their complaint, so far as relates to their interest in the land inherited from their ancestor, Silvia Norris. It is so ordered. | [
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McCulloch, C. J.
Appellant, a foreign corporation doing business in Baltimore, Maryland, instituted this action in tbe circuit court of the Western District of Clay County against Samuel Frelich, doing business under the style of Western Veneer Products Company, to recover the sum of $2,362.87 alleged to be due for the price of a lot of glue sold and delivered by plaintiff to the defendant. At the commencement of this action an order of attachment was issued and levied on a lot of glue, alleged to be of. the value of $1,400, also machinery and equipment of a veneer plant situated at Knobel, Arkansas, in Clay County. Subsequently an amended complaint was filed, making G-. M. Walker, E. L. Walker, Mae Prelich and Mae Veneer Products Company parties defendant. It was alleged in the amended complaint that the attached property had been fraudulently delivered to Mrs. Mae Prelich, who was the wife of Samuel Prelich, or to Mae Veneer Products Company, for the purpose of cheating, hindering and delaying the creditors of Samuel Prelich, including appellant. Appellee, Mae Veneer Products Company, filed an answer and cross-complaint, as intervener, claiming title to all of the attached property by purchase from another corporation, known as the American Investment Corporation, which had purchased from still another corporation, doing business in St. Louis, known as the Western Veneer Products Company. This plea of Mae Veneer Products Company contained a full and complete denial of the charge of fraud in the acquisition of the property in controversy, and alleged that the property was purchased for a valuable consideration, which was paid, and without any notice of any fraud. There was also an allegation that the machinery and equipment in the plant were purchased by the intervener from Frank Sellmeyer, and that the latter.had a mortgage lien on the property— that the intervener was the owner, subject to the lien of Sellmeyer. Sellmeyer also filed an intervention, claiming that he had a mortgage lien on'the property, and prayed that the lien be enforced. It was also alleged, and the evidence tended to show, that the veneer plant at Knobel, including 'the equipment and machinery involved in the action, was destroyed by fire, and practically nothing of any value left, except a steam, boiler to the engine. There was, over objection of appellant, a trial of the two interventions together, which resulted in a verdict and judgment against' appellant and in favor of both of the interveners. Appellant filed a~motion for. a new trial, which was overruled, and then prosecuted this appeal.
The Western Veneer Products Company was a Missouri corporation, domiciled at St. Louis, and owned and operated a veneer plant there and at another place in the State of Missouri. Samuel Frelich, one of the defendants, was connected with that corporation, and was a stockholder and officer, and manager of the 'business. Defendants, Gr. M. Walker and E. L. Walker, were also' connected with that corporation. The Western Veneer Products Company was thrown into bankruptcy by the Walkers on account of a disagreement between the parties interested, but there was a settlement outside of the bankruptcy court, which ended the bankruptcy proceedings, and the corporation continued to do business under the management of Samuel Frelich. A bill of glue was purchased by that corporation from appellant, at a price aggregating the amount sued for in this action. The glue was shipped to St. Louis to the Western Veneer Products Company, and received there.
There is testimony to the effect that, after the bankruptcy proceedings, the business of the Western Veneer Products Company was conducted by Samuel Frelich for his own benefit, and that the corporate name was merely used as a trade name; that Frelich was the real party in interest, and was the real purchaser of the glue from appellant, but the great preponderance of the evidence, which comes very nearly, if not entirely, undisputed, is that the. business was carried on by the corporation, and that Frelich was merély the manager. That question, however, is unimportant, as will hereafter be seen in the discussion.
A portion of the glue sold by the appellant was shipped by the Western Veneer Products Company to the Mae Veneer Products Company at Knobel, Arkansas, and constitutes the property involved in this action, in addition to the machinery and equipment of the plant. The glue was sold by the Western Veneer Products Company to the American Investment Corporation, and by the latter to appellee, Mae Veneer Products Company. It appears also from the testimony that the American Investment Corporation was controlled by Samuel Frelich.
The veneer plant at Knobel was originally owned by Sellmeyer Brothers, merchants at Knobel, under the partnership style of Southern Novelty Company. The Sellmeyers held a mortgage on the property from the Western Veneer Products Company, and foreclosed it in the chancery court, and bought it for the amount of the decree. After the confirmation of the sale, the Sellmeyers sold the plant to Mrs. Mae Frelich, and executed a bill of sale expressly declaring a lien for the purchase price, and on the same day Mrs. Frelich executed to Frank Sellmeyer, who was acting for the part-' nership, a promissory note for the price, referring to the bill of sale and the lien. The bill of sale also contained a recital that any machinery or other equipment which might thereafter become attached to and become a part of the plant should be embraced in the lien for the purchase price.
The Mae Veneer Products Company was organized as a domestic corporation, and Mrs. Frelich became the principal stockholder, putting in the machinery and other property connected with it in payment for her stock in the corporation.
Testimony was adduced by appellant to the effect that, at the time the glue was shipped from St. Louis to Knobel, there was also included in the shipment a. lot of machinery of the value of about $2,000, which had been purchased from the Walkers. It was the contention of appellant that all of the attached property -was, in fact, owned -by Samuel Frelich, and that the claim of ownership by Mrs. Frelich and the Mae Veneer Products Company was fictitious — that the alleged sale was-fraudulent. On the other hand, the contention of the interveners was that.Mrs. Frelich was the purchaser of-the property for a valuable consideration, and without knowledge of any fraud on the part of Samuel Frelich or the Western Veneer Products Corporation. Appellant also contended) and attempted to show, that the sale of the plant by the Sellmeyer Brothers, though on its face made to Mrs. Prelich, was really a sale to the defendant, Samuel Prelich. All these issues were correctly submitted to the jury on instructions requested by each of the parties, and we are of the opinion that the evidence was legally sufficient to sustain a verdict in favor of the interveners.
There was very strong testimony, in the way of proof of family relationship and certain other suspicious circumstances, which tend to show that the purchase of the plant by Mrs. Prelich was colorable, but we cannot say that the testimony is not legally sufficient to support the finding of the jury that the purchase was in good faith and for a valuable consideration. Mrs. Prelich testified to that effect, and it appears the jury accepted her statement as true. We are not concerned with the question of preponderance of the evidence, for, under settled rulings of this court, it is our duty to leave the verdict of the jury undisturbed if there is substantial evidence to support it, even though it appears to us that the finding is against the preponderance of the evidence.
It is earnestly insisted by counsel for appellant that the verdict is without support, but, as before stated, we are unable to agree with them in this contention.
It is next contended that the court erred in consolidating the two interventions for trial together. In the first place, it may be said, in answer to this contention, that the two interventions were so closely related that they could be treated as a joint intervention, for one of the interveners, the Mae Veneer Products Company, .claims as the owner of the machinery and equipment, as well as the glue, and the intervener, Sellmeyer, claims as lienor. They could have filed a joint intervention, but the fact that they intervened separately does not affect their real status. Besides, the question of consolidation comes squarely within the statute providing for the consolidation of “causes of action of like nature or relative to the same question” pending in the same court. Crawford & Moses’ Digest, § 1081. There was therefore no error of the court in this reg’ard.
The next assignment of error relates to the ruling of the court in excluding offered testimony of witness Walker. It was the contention of appellant that part of the machinery in the plant at Knobel was shipped from St. Louis to Knobel, and appellant offered to show by witness Walker that this machinery was sold by the Walkers to Samuel Frelich. It developed in the examination of the witness that there was a written contract with reference to the sale, and the objection was made that the written contract itself was the best evidence of the transaction. It also appeared from the testimony of the witness that he bad the contract in his possession, and that it was in St. Louis, and he could not produce it at the trial. ’The court sustained the objection, and appellant saved an exception. The contention is that the written contract was the best evidence of. its terms but that it was competent to prove- by oral testimony the identification of the person to whom the sale and delivery were made. The answer to this contention is that we fail to see the materiality of the proof as to who the purchasers really were — whether it was Samuel Frelich or the Western Veneer Products Company, which was under his management. The real question in the case was whether or not the acquisition of the property by Mrs. Frelich or the Mae Veneer Products Company was in good faith and for a valuable consideration* or whether it was colorable for the purpose of defrauding’ the creditors, and that question was, as we have already said, submitted to the jury on appropriate instructions, and-we0 fail to see any prejudice in the rulings of the court, even if found to be incorrect.
There are two assignments of error with reference to refusal of the court to give instructions requested by appellant. One of the assignments relates to instruction No. 6, which reads as follows:
“Even though you should find for the intervener, F. J. Sellmeyer, yet your verdict will.be in favor of plaintiff as against F. J. Sellmeyer as to the glue attached, and as to the machinery shipped from St. Louis in 1923, if you find any machinery was so shipped.”
The first part of this instruction relating to glue is wholly abstract, because Sellmeyer made no claim to the glue. There was no such issue in the case, so far as he was concerned. The other portion of the instruction, which related to the machinery alleged to have been shipped from St. Louis, was incorrect, for it is to be remembered that there was joint claim by the two interveners — one claimed ownership and the other a lien on the property, and it would have been misleading to the jury to tell them to exclude the claim of the intervener Sellmeyer on that property. If the jury found, on the other instructions, that the property was purchased by Mae Veneer Products Company and that the purchase was free from fraud, then it was immaterial, so far as appellant was concerned, whether the recovery was in favor of one intervener or the other.
The other instruction covered by assignment is No. 7, which reads as follows:
“You are instructed that, regardless of any other verdict, your verdict will be for the plaintiff and against both the interveners as to the machinery shipped from St. Louis in March and April, 1923, if you find that any machinery was shipped during or about that time, and you will assess the value of said machinery at the time the bond was filed by interpleader, Mae Veneer Products Company. ”
This instruction was plainly erroneous, for it excluded the machinery alleged to have been shipped from St. Louis in March and April, 1923. This is so for the reason stated above in regard to the court’s ruling on instruction No. 6. In addition to what we have said in regard to those instructions, we are unable to discover the materiality of any testimony in regard to any of the machinery alleged to have( been shipped from St. Louis, for witness Sellmeyer testified that, after the fire, there was no property, constituting machinery and equipment, left there of any value, except the boiler. There was nothing to litigate about, except the boiler and the glue. However, even if there was other property there, we think there was no error in the court’s ruling.
This covers all the assignments, and our conclusion from the whole case is that there is no error in the proceedings, and the judgment must be affirmed. It is so ordered. | [
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McCulloch, C. J.
N. K. McCollum, a resident of Clay County, Arkansas, became a member and certificate bolder on August 2, 1915, of an insurance organization known as the National Council of the Knights and Ladies of Security, a foreign corporation domiciled at Topeka, Kansas. The policy, or benefit certificate, issued by said organization to McCollum in the sum of $2,000 was payable to his then wife, Mary McCollum, who is the appellee in this ease. McCollum and his wife, the appellee, were divorced in October, 1923, by decree of the chancery court in a suit instituted by her, and McCollum died April 28, 1924, without having changed the designation of beneficiary or attempted to do so. He was in good standing up to the 'time of his death, all of the premiums, assessments and dues having been paid in accordance with the contract. Some time after the issuance of the policy to McCollum, the Security Benefit Association, another insurance concern domiciled at Topeka, Kansas, took over or absorbed the National Council of the Knights and Ladies of Security and assumed all of its obligations to policyholders. The time when this was done is not shown definitely in the record.
Appellee made proof of death to the Security Benefit Association, and the latter concern expressly admitted liability for the amount of the benefit, but refused to pay it to appellee on the ground that all benefits under the policy were claimed by appellants, who were children of McCollum by a former marriage. Appellee instituted this action against the Security Benefit Association to recover the amount of the policy, and appellants intervened and claimed the amount involved, on the ground that, under a by-law of the association, appellee’s interest in the policy ceased upon a divorce from the assured, and that the benefit fell to appellants as the children and heirs. The Security Benefit Association paid the amount of the benefit into court, upon stipulation of all of the claimants that the funds should be held subject to final decision. , This eliminated the Security Benefit Association from the controversy, and the cause proceeded upon the issues between appellants and appellee. There was a trial before a jury, which resulted in a verdict in favor of appellee, and judgment was accordingly rendered in her favor for the recovery, of the sum involved.
Appellants base their claim upon certain by-laws of the two associations — one of the National Council of the Knights and Ladies of Security, and two others of the Security Benefit Association. The one relied on of the National Council of the Knights and Ladies of Security is § 1, art. 7, which reads as follows: "The beneficiaries shall be confined to the families, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member.” This provision, however, does not deprive appellee of the benefit on account of the divorce, for it relates only to the eligibility of beneficiaries at the time of the issuance of the policy. The prevailing doctrine on that subject is stated in 19 R. C. L., p. 1219, as follows:
‘ ‘ Ordinarily a designation valid in its inception continues to be so. Thus, if the by-laws of a benefit society provided that a beneficiary designated by a member and named in the certificate shall, in every instance, be one or more members of the family, or some one related to him by blood, or shall be dependent upon him, such provision must be construed as referring to the relationship at the date of the certificate, and Jhe designation of a beneficiary, valid in its inception, remains, although such relationship has ceased, by divorce, or otherwise, unless it is stipulated to the contrary in the contract of membership.”
The text is supported by the following authorities: Filly v. Illinois Life Ins. Co., 91 Kan. 220, 137 P. 793, L. R. A. 1915D, 130; White v. U. S. Brotherhood of American Yeomen, 124 Iowa 293, 99 N. W. 1071, 66 L. R. A. 164; Overheiser v. Mutual Life Ins. Co., 63 Ohio St. 77, 50 L. R. A. 553; Snyder v. Supreme Ruler T. N. C., 122 Tenn. 248, 45 L. R. A. (N. S.) 209; Wallace v. Mutual Benefit Life Ins. Co., 97 Minn. 27, 3 L. R. A. (N. S.) 478; Schmidt v. Hauer, 139 Iowa 531; 2 Joyce on Insurance, § 902. The doctrine has also been announced by this court that, where a beneficiary has an insurable interest under the laws and regulations of the insurance organization at the time of the issuance of the policy, the subsequent termination of that interest does not affect the right to receive the benefit, unless there is an express provision in the contract to that effect. Atkins v. Cotter, 145 Ark. 326. There was nothing of that kind in the contract with the organization which issued the certificate, therefore, under the'doctrine announced, appellee was not cut out of her right to recover the amount of the benefit because •of her divorce from her husband.
The two provisions in the by-laws of the Security Benefit Association relied on by appellants read as follows:
“Section 1. The payment of death benefits shall be confined to wife, husband, relative by blood, not further removed than first cousins, father-in-law, mother-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption or to a person or persons dependent upon the member; provided, that the member may, with the consent of the association, make an incorporated charitable institution his beneficiary. In case a husband or wife is designated as beneficiary and subsequent thereto becomes divorced from the member, such divorce shall render either of the parties ineligible as a beneficiary and shall annul the designation.”
‘ ‘ Section 81a. Who may be beneficiaries. The beneficiaries shall be confined to those named in article 7 of § 1 of the constitution. - In all cases the person intended as beneficiary shall be specifically named in the beneficiary certificate. No payment shall be made upon any beneficiary certificate to any person who does not bear the required, relationship at the time of the member ’s death. ’ ’
Under the facts shown in the record in this case, we do not think that the quoted provisions' in the by-laws of the Security Benefit Association have any effect upon the contract of insurance now involved. It is undisputed that the organization known as the National Council of the Knights and Ladies of Security has been “absorbed •and its obligations assumed by the Security Benefit Association. ’ ’ Such are among the undenied allegations of appellee’s complaint, and there is an express stipulation in the record to that effect. According to the facts thus shown in the record, there was an unconditional assumption by the Security Benefit Association of all the obligations of the National Council of the Knights and Ladies of Security, and this included an agreement to comply with the contract represented by the policy or' benefit certificate issued to McCollum and payable to appellee. The contract between the two associations is not shown in the record, further than the stipulation with regard to the assumption of obligations, but there is nothing which would, either in express terms or by necessary implication, confer upon the Security Benefit Association the right to change any of the original contracts which had been assumed, and this could not be done without the consent . of the policyholder. American Insurance Union v. Robinson, 170 Ark. 767, 281 S. W. 393. Therefore appellee, upon the undisputed facts in the record, is entitled to collect the amount of the benefit.
There are numerous assignments of error with respect to the rulings of the court in admitting and excluding testimony and also with reference to the court’s charge to the jury, but, as the material facts of the case are undisputed, it is unnecessary to discuss the other questions presented.
Judgment affirmed. | [
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Humphreys, J.
Appellants, private citizens of Woodruff County, instituted this suit against appellee in the circuit court of the Southern District of said county to oust him from the office of sheriff and collector, upon the alleged ground that he was not qualified to hold the office by reason of the fact that he was not a qualified elector at the time he was a candidate for the office, or at the time he received his commission; that he had failed to assess his taxes, both poll and personal, for the year 1923, and that he had failed to be assessed as delinquent, but that his name was added to the poll-tax payers’ list of Woodruff County by the tax collector. As an excuse for instituting the suit in their own names, they alleged that the prosecuting attorney of the district and the Attorney General of the State of Arkansas had refused to bring suit to test his right to hold the office, or to allow their names to be used for that purpose.
Appellee filed a demurrer to the complaint, alleging defect of parties plaintiff, and challenging the 'sufficiency of the complaint to state a cause of action, and also filed an answer denying the material allegations of the complaint. Appellants filed a motion, which was overruled by the court, to require appellee to elect whether he would stand upon his demurrer or upon his answer.
The cause was then submitted to the court upon the pleadings and the testimony adduced by the respective parties, with the result that the court found that appellee, at the time of his election and prior thereto, had legally assessed as required by law and was a qualified elector, and that the demurrer of appellee to the complaint was well taken, and should be sustained. A judgment was rendered in accordance with the findings, from. which is this appeal.
This action was brought under chapter 178 of Crawford & Moses ’ Digest, which provides against the usurpation of office. The statute does not confer authority upon private citizens to bring the suit. The only proper parties to the suit to oust one who has usurped a county office are the defeated candidate and the prosecuting attorney. The demurrer was properly sustained to the complaint on account of a defect of parties.
The judgment is affirmed. | [
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Mehaffy, J.
The appellee brought suit against the appellant in the circuit court of Miller County, alleging that, in 1924, on account of the caving of the banks of the Bed River, it became necessary for the levee district to build a new line of levee over and across plaintiff’s land and that the defendant built a new levee across plaintiff’s land, occupying about eight acres, and that appellant refused to pay appellee damages, and asked for judgment for the value of the land taken in the sum of $827. Defendant filed a motion to dismiss, alleging that the suit was not brought in the name of the real party in interest, and that J. R. Dale, husband of May B. Dale, was the owner of the land at the time of the taking. Defendant also filed an answer, denying that the land was the property of the plaintiff at the time the levee was built. It alleged that the property belonged to J. R. Dale, and that J. R. Dale was a member of the board of directors of the district, and, as such, he knew of and acquiesced in the taking of the land, and was estopped from claiming damages.
Appellant admitted taking about seven acres of land belonging to J. R. Dale, alleging that the land taken was only rough, hermuda land, fit only for pasture, and that the value for that purpose had been increased by the building of the levee, and claimed that it was entitled to offset any damages by the benefits that were special and peculiar to the remainder of the land owned by plaintiff, or by her husband, and alleged that such benefits to the land exceeded the damages to the land occupied by the new levee.
The testimony showed that J. R. Dale deeded to his wife, May B. Dale, about 3,000 acres of land, including that taken by the levee, the date of said deed being May 31, 1923, recorded January 15, 1925, consideration being $50,000. J. R. Dale testified, as the agent of appellee, that he was down at the river while the levee was being built; that the land had hermuda and bushes on it, that he had authorized it to be cleared, and he was to pay $20 an acre for clearing same; that he was a member of the levee board, and that one of the members, Judge Friedell, said that the land would never be paid for until they were forced to pay for same, advising him that he would have to bring suit; that he had been a member of the levee board since its organization, and knew that the levee was to be set back; did not know if he claimed that it was May B. Dale’s land before the suit was brought; did not know when the deed was recorded; there was never any special statement made to any member of the board before the deed was recorded; she had a deed to it, and he was her agent; did not remember when the deed was delivered. All of his acts since the deed was delivered and recorded have been as agent for May B. Dale, and they were prior to that time, as she had a mortgage on it all the time for $100,000.
An engineer testified that 7.2 acres were taken by the levee. Work was completed the latter part of May, 1924. It was also shown that Dr. Dale paid another witness $10 apiece for driving two pumps and $7.50 for repairing a flue on a house that was moved by the levee board.
Witness Dean testified that he was familiar with the value of the land in the neighborhood, and that the land through which the levee was built was worth between $75 and $100 per acre. Part of the land was grown up in bushes^ part had washed out, and there were ridges of sand and holes made hy previous overflows. He said he did not value the particular land taken at anything by itself, but, in connection with the other land, he would average it, and that he had offered Dr. Dale $50 per acre. It was also testified thai the loan value on the land would be 50 per cent, of $100 per acre, and that this land was covered with pecan sprouts, and fit only for pasture.
There was considerable testimony about the value of the land taken, and about the land being covered with bermuda grass and bushes. Testimony also tended to show that the land occupied by the levee could still be used for a pasture, and that the levee hoard, only took an easement, and that, if oil was found, it would belong to the owner.
Appellant offered to prove special benefits that would be received by plaintiff to the land, but was not permitted to make such proof. One witness testified that the land was rough land, covered with bushes, worth about $25 or $30 an acre; that it was worth nothing except for pasturage, and is worth more now than before the levee was built.
It is contended by appellant that appellee was not the owner of the land, and, for that reason, had no right to maintain this suit. We think the proof is ample to show that the appellee was the real party in interest and therefore had a right to maintain this suit.
It is also contended by the appellant that the measure of damages should be the difference in the value of the land of plaintiff before being occupied by the levee and the present value of such land, and contended that, because of the peculiar benefits accruing to plaintiff’s land, these benefits should have been taken into consideration in arriving at the damage sustained by plaintiff. It is contended that this is the correct rule, because appellant says that no benefits have been levied against the land in the district, but that all the lands in the district are placed on the taxbooks as they appear on the real estate books of the county, and that the amount of levee taxes is arrived at by multiplying such value by 6 per cent., and that therefore the levee taxes are collected on an acl valorem rather than a benefit basis, and that it is entirely different from the system of assessment ordinarily used in improvement districts. Appellant contends that, because of these things, no special benefits were taken into consideration in the levying of taxes for levee purposes.
If appellant was right in its contention that this was an ad valorem tax and that the benefits to the property were not taken in consideration, then it would be correct in its claim that the damages should be offset by the bene fits. We do not agree with counsel for appellant in this contention. The section of the act creating this district providing for assessments is an exact copy of the section of the act of 1905 creating a levee district, and the court, in construing that act, said: “Appellantmakes an attack upon the validity of the statute in so far as it attempts to authorize a tax on the railroad, on two grounds, viz: First, that it is an attempt to impose a tax regardless of any benefit derived from the improvement; and, second, that the method authorized by the statute of assessing railroad property is invalid. We will dispose of these two questions in order in which they are presented by appellant’s counsel. * * * The act provides that the board of directors shall annually assess and levy a tax not to exceed 4 per cent, on the real estate in the district, according to the valuation of lands on the taxbooks for State and county purposes, and upon railroad track of all railway companies as appraised by the State ¡Board of Railroad Commissioners. In other words, that the assessment shall be according to value as appraised for State and county taxation. This is the method of assessment for local improvements which was approved by this court in Ahern v. Board of Improvement, supra, and Porter v. Waterman, 77 Ark. 383. * * * The fact that the assessment is made upon the whole value of the property does not imply that it is not also according to the benefits' to accrue from the improvement, for it is not an arbitrary or unreasonable method of ascertaining the amount of the benefits to assume that they will accrue in proportion to the actual value of the whole property. The Legislature acted upon this assumption in providing that the assessments should be fixed according to value, and we cannot say it is arbitrary or unreasonable.” St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 562, 99 S. W. 843.
It follows, from the rule announced in the above case, that the land in appellant district is, in fact, assessed according to its benefits. It must be assessed annually, and, although it is provided that the annual tax must- be levied on the valuation of the lands as they appear on the assessment books of the county, still, as held by this court in the case above cited, this is an assessment on a benefit basis. This being true, appellee will have to pay annually for all the benefits received by the construction and maintenance of the levee, and it would therefore have been improper to deduct the benefits from the amount of damages to plaintiff’s land in this case. Her land is benefited by the levee, but she pays these benefits in annual installments, so that there would be no reason or justice in offsetting the damages with benefits accruing to the land. She must pay the assessments for the benefits received like any other landowner, and, if the district took or damaged her land, it necessarily follows that it would have to pay whatever amount she was damaged by reason of the taking.
Appellant’s counsel calls attention to a number of cases where land is taken for public use and the damages caused thereby are offset by the benefits to the land, but these are cases where the landowner was not paying for the benefits. Of course, where land is taken and the taking benefits the other lands of the party, whatever benefits accrue to the landowner are deducted from the amount of damages caused by the taking, but these cases have no application where the landowner pays for the benefits, as in this case. There was ample evidence to sustain the verdict, and the case is therefore affirmed. | [
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Wood, J.
The original complaint and amendment thereto show that this is an action by the plaintiff against the defendant on a contract and note evidencing the purchase by the defendant from the plaintiff of “one carbide generator and attachments, including fixtures, burners, globes, stovepipes, fittings, and other supplies.” The purchase price of the articles listed was $259.75, evi denced by a note and contract' executed for that amount. The contract was evidenced by an order of the defendant, the purchaser, who lived at Rosston, Arkansas, to the plaintiff, the seller, at New York, New. York, which was accepted at New York May 5, 1919. On August 8, 1919, the defendant executed a note in the sum of $259.75, on which there was a payment of $50 on October 13, 1920, and a renewal note taken May 16,1922. This latter note was the one upon which the original complaint was based, and the complaint was amended, setting up the contract and the renewal note, and praying judgment in the sum of $233.80.
The answer admitted the execution of the note, and alleged that it was invalid because given for a patented article; that the note is not on a printed form, and does not show upon its face that it was executed in consideration of a patented machine, in compliance with § 7956, C. & M. Digest. The answer also alleged that the carbide generator was guaranteed by the plaintiff, and that same proved to be worthless within a short time after it was purchased. By an amendment to his answer the defendant, on July 14, 1925, pleaded that the action was barred by the statute of limitations.
The plaintiff introduced the note and contract upon which the action was bottomed, and testified that the amount was due as alleged in the complaint. The testimony for the plaintiff tended to show that the parts of the carbide generator were patented at one time, but that none of the articles sold were completely covered by patent. The parts of the machine were patented by different people and patents. Witness could not say what articles were patented, or give the number of the patents. As late as August 1, 1922, the appellee promised to pay the balance due', and made no complaint at that time of the generator which had been installed, and was in use and in good condition.
There was a statement in the record to the effect that the generator was installed July 8, 1919, and that the same was complete and satisfactory. The plaintiff was a New Jersey corporation, having its principal place of business in New York City. It only transacted interstate business in Arkansas. All orders received were accepted outside of the State and the goods were shipped from New York to Arkansas. There was-testimony on behalf of the defendant tending to prove that the generator was operated satisfactorily from July 9,1919, until February, 1920; that it gave satisfaction for seven months. The defendant moved and had it installed a second time, after which it was operated for about three months. The defendant discovered that it was rusty about a month after he moved it. Over the objection of plaintiff, the defendant testified that it states on the generator “fully protected by patent throughout the principal countries of the world. ’ ’ The defendant signed the renewal note May 16, 1922, and paid the plaintiff $50 on the original note and contract.
The plaintiff prayed the court to instruct the jury as follows:
“No. 1. You are instructed to find for the plaintiff.
“No. 2. If you find from the evidence in this case that defendant, more than a year after he received the articles set out in the contract, made payment thereon, and executed a renewal note for the balance due, you are instructed that this was a complete acceptance on the part of the defendant, and that he waived any breach of warranty on the part of the plaintiff, and you will find for the plaintiff.”
The court refused the above prayers for instructions, to which ruling the plaintiff duly excepted.
The court, on its own motion, gave the following instruction:
“Gentlemen of the jury: If you find from a preponderance of the evidence in this case that the note that has been introduced in evidence, under which this suit was brought, was executed in consideration of a patented article, and that said note does not show upon its face that it was executed in consideration of a patented article, machine or implement, then your verdict will be for the defendant.”
The plaintiff duly excepted to the ruling of the court in the giving of the above instruction on its own motion. The jury returned a verdict in favor of the defendant. The plaintiff moved for judgment notwithstanding the verdict, which motion the court overruled. Judgment was entered in favor of the defendant, from which is this appeal.
Although the note in controversy was void because not executed in compliance with § 7956 of C. & M. Digest, nevertheless the court erred in instructing the jury, on its own motion, that, if the note was not executed, in compliance with the statute, the verdict should be in favor of the defendant. This was, in effect, a peremptory instruction to return a verdict in favor of the defendant if the jury found that the note on its face failed to show that it was executed for a patented article, and, if they so found, had the effect of taking away from the jury the further issue as to whether or not the defendant was indebted to the plaintiff on the contract.
In the recent case of J. B. Colt Company v. Mitchem, ante, p. 55, after reviewing former decisions of this court reiterating the doctrine therein announced, we said: “This court is committed to the doctrine that the main purpose of the act was to enable the maker of a negotiable instrument, given for patent rights or patented articles, to make the same defense thereto, ag-ainst any holder thereof, that could be made against the original holder or party to whom it was given. [Citing cases]. Hence it is held in these cases that the failure to comply with the statute does not affect the validity of the sale, but renders only the note absolutely void. It has been held further that, though the note may be void, the vendor may recover whatever may be due him on the contract of'sale from the vendee.”
In the case of Brenard Manufacturing Co. v. McRee’s Model Pharmacy, 171 Ark. 978, we held that the court erred in giving an instruction similar to the one in the case-at bar. In that ease, as in this, the suit was originally brought on the note, but the complaint was subsequently amended, in which amendment a recovery was sought alone upon the contract, and we said: “While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of the defendant’s answering the complaint and defending the action entered its appearance.”
Therefore it follows in the case at bar that, although the note which was the foundation of the original complaint was void, nevertheless the amendment to the complaint and the answer thereto should be treated as raising the issue as to whether or not the appellee was indebted to the appellant on the contract. While we find no error in the ruling’s of the trial court in submitting to the jury the separate issue as to whether or not the appellee was indebted to the appellant on the contract of sale, nevertheless it is impossible to determine, under the erroneous instructions of the court, whether the jury’s verdict was bottomed on the issue of whether 'or not the note was void or whether or not the appellee was indebted to the appellant under the contract.' The court should have instructed the jury that, if they found that the note was void because it failed to comply with § 7956, supra, then their verdict should be in favor of the appellee, unless they found that the appellee was indebted to the appellant on the contract, in which event their verdict should be in favor of the appellant.
We find no other error in the rulings of the trial court, hut, for the error in giving the above instruction on the court’s own motion, the judgment is reversed, and the cause remanded for a new trial. | [
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Mehaeey, J.
The appellees filed suit in the Jefferson County Circuit Court, alleging, among other things, that, on the 5th day of .December, 1924, defendant executed and delivered to the plaintiff, Herbert S. Spharler, its policy of insurance for the sum of $2,100, wherein it agreed to insure the plaintiff for the space of one year from date, against loss or damage by fire, to the personal property located in building known as 2402 West 13th Avenue, Pine Bluff, Arkansas; $1,200 was on the general stock of merchandise, $800 on the store and office fur niture and fixtures, etc., and $100 on household goods. That the plaintiff paid the defendant a premium of $57.96; that the policy was a regular standard form. That, on December 26, 1924, the property was destroyed by fire; that plaintiff complied with the terms of the policy with reference to notice and proof of loss; that plaintiff, after the fire, had assigned his interest to H. H. Ferguson, trustee.
The answer admits the issuance of the policy; that it was a regular standard form; denies that the property was totally destroyed, and denies that plaintiff complied with the terms of the policy with reference to the notice or proof of loss. Defendant pleads especially the record warranty clause, and states that the plaintiff had not complied with the clauses mentioned in its answer.
The appellant, in its brief, says:
“We will discuss the issues raised on this appeal under the following heads:
“1. Was the. assured required to comply with the record warranty clause in the policy?
“2. Was there a waiver of the sale and unconditional ownership clause in the policy?”
No other questions are argued in appellant’s brief, except the appellant complains of instruction No. 3, requested by plaintiff and given by the court.
In determining the question as to whether the assured complied with the record warranty clause in the policy, it is important to keep in mind that a strict compliance is not required, but the statute itself provides that proof of a substantial compliance with the terms and conditions shall be deemed sufficient and entitle the plaintiff to recover in any such action.
The undisputed proof in the case shows that Mr. Tracy Mills, who had been in the insurance business for twenty-five years, went to plaintiff’s place of business for the purpose of getting plaintiff to take insurance. Mr. Mills went back a second time and looked around, went into the feed-room, looked the stock over, asked and was told what it averaged. Plaintiff said: “After looking the stock over and talking with me, he said $2,100 would be all he could write, and I told him the place would run much more than that.” Mr. Mills, the experienced insurance agent, had made two trips to the place of business, had looked over the property to be insured, himself, and of course looked over it for the purpose of determining its value and how much insurance he could write, and then concluded, not from any representations made by the plaintiff, but from the examination of the stock himself, that he would insure it for $2,100. The proof also shows that the National Credit File was made of some kind of heavy iron, lined with asbestos, guaranteed to keep any set of books. It was purchased by the plaintiff with the understanding and belief that it was fireproof. While Mr. Mills, the insurance agent, says in his testimony that it was not, he also says that it might be called a fireproof safe, just as some light safe might be called fireproof. The testimony shows that plaintiff’s safe or file was made of heavy iron and lined with asbestos. Fireproof does not mean that the safe would resist heat of any particular duration, but it means, at best, that it is constructed of fireproof materials, such as iron, lined with asbestos, as in this case. The insurance agent who sought and obtained the contract of insurance, as we have already said, inspected the goods to be insured on two different occasions. He was in the business, and had been for twenty-five years. The assured, of course, knew nothing about insurance. He made an honest effort to comply with the terms of the policy. He used a safe or file made of iron and lined with asbestos. He thought it was fireproof, and any ordinary person would have believed that it was a fireproof safe in the meaning of the policy. The testimony in this case shows that there was a substantial compliance with this provision of the policy. A substantial compliance is all that would be required, even without our statute, but the statute expressly provides that a substantial compliance only-.is necessary. Crawford & Moses’ Digest, § 6148.
Not only that, but.the insurance agent inspected the stock and everything he insured, and he evidently knew what sort of safe he had. Plaintiff testified that he kept a merchandise account, a list of his cash sales, and kept them in the National Credit Pile. He also testified that he kept his charge tickets in the same file; that this file is so constructed that you can keep a general set of books in it, and it is sold generally for that purpose.
Keeping the books in a fireproof safe or some secure place does not necessarily mean a place absolutely secure against fire, and, where the assured selects a place to keep his books and acts in good faith, and with such care as prudent men would exercise under like circumstances, this clause in the policy is not violated. A fireproof safe is one which is within the fair meaning of this clause if it is such as is commonly used, and such as, in the judgment of prudent men in the locality of the property insured, is sufficient, as it cannot be intended that an absolutely perfect safe shall be kept. In this case there was a substantial compliance with the record warranty clause, and, in addition to this, the insurance company’s agent was present on two occasions and examined the property, and fixed the value of the property himself, and the policy was afterwards written and delivered to the assured. The assured never saw the policy, he states, until after he had signed the papers..
The appellant contends, in the second place, that there was no waiver of the sole and unconditional ownership clause in the policy. This court has several times held that this, provision in the policy is valid, but, like the record warranty clause, a strict compliance is not required, only a substantial compliance.
“The just and reasonable purpose in requiring the insured to have the unconditional and sole ownership of the property insured is to give protection only to those upon whom the loss insured against would inevitably fall but for the insurance, and to avoid taking risks for those whose lack of interest or whose contingent interest in the property insured might tend to encourage care lessness or wrongdoing in the nse or preservation of the property. By fair construction and intendment the ‘unconditional and sole ownership’ of property for the purposes of insurance is in those upon whom the loss insured against would certainly fall, not as a matter of mere contract obligation, but as the result of real bona fide rights in the property insured. ’ ’ 14 Ruling Case Law, p. 1052.
This court has held that, in case of conditional sale of personal property in which the title is reserved in the vendor until the purchase price has been fully paid, the vendee is not considered the sole and unconditional owner, although he would be liable for the price in the event of the loss of the property. Some authorities hold that the vendee in possession is the sole and unconditional owner in the sense of the provision in the policy, since, if destroyed by fire, the loss would fall on the vendee and not on the vendor, but, even taking the view that the vendor is the owner, and that the vendee is not the sole and unconditional owner, still we think the provision in the policy in this case was substantially complied with. When the insurance company, in response to plaintiff’s motion to make its answer in this particular more specific, filed an amendment to its answer, it stated, “the plaintiff was not the sole and unconditional owner of the following property, included in his proof of loss, to wit: National Cash Register, National Credit File, Stimson Scales, Toledo Scale's, 'bedstead and springs, 4 chairs, window curtains and shades, mattress and bed.” Now, except those items, there is no contention that the plaintiff was not the sole and unconditional owner, and the undisputed proof shows that he was the sole and unconditional owner of most of the articles mentioned in defendant’s amendment to its answer. The plaintiff, when the insurance contract was made, did not know that he was not the sole and unconditional owner of the others. The agent of the furniture company testified that the furniture company had a contract-retaining title, but that there was only a balance of $20.85 due. The plaintiff knew he owed the furniture company something, but did not understand' that the company retained title. There seems to be no question about the title to any other property, except the cash register. There was no controversy about the value of the property. The value of the property is shown by the proof at something over $3,000, and we think it would be unreasonable to hold that, when an insurance company writes a policy insuring a stock of merchándise and fixtures, the policy would be void because there might be one or two articles in the store which the assured had bought on conditional sale, the vendor retaining title, and especially in view of the fact that the assured did not know that the seller retained title. The insurance agent inspected all the stock and had an opportunity to know about it.
The object of the stipulation in the policy with reference to sole and unconditional ownership is to protect the company against taking risks on property for an amount disproportionate to the value of the interest of - the insured.
Since, under the statute, strict compliance is not required, the unintentional error as to a very small portion of the property, as we have said, does not make the policy void. In this case there is no charge or evidence of any fraud or intention to deceive, but the only thing complained of, under this clause of the policy, is that there were one or two articles in.the store to which the seller had retained title, and even this, it seems, was not known to the plaintiff.
The only other contention of appellant is that plaintiff’s instruction No. 3, given by the court, was erroneous. Since'we have held that there was a substantial compliance with the provision of the policy with reference to the sole and unconditional ownership clause of the policy, and the undisputed proof showing that the plaintiff is entitled to recover, the giving of an erroneous instruction by the court on the question of unconditional ownership was not prejudicial error. ' It therefore follows that the case must be affirmed. | [
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McCulloch, C. J.
This litigation involves a controversy between appellants McGill and Todd on the one side and appellees Miller and Autry on the other side, concerning the right to use an alley between the several properties occupied by the parties in the city of Little Rock.
Appellee Miller is the owner of lot 3, block 2, of Marshall & Wolfe’s Addition to the city of Little Rock, and appellants McGill and Todd and appellee Autry are the respective owners of portions of lots 4, 5 and 6 of block 2, in Marshall & Wolfe’s Addition. The addition referred to was platted and filed prior to the year 1905 by the then owners, and a man named Booher was the owner of lots 4, 5 and 6, which now comprise the property of McGill, Todd and Autry. Each of these lots are 50x150 feet, and extend east and west, fronting on Wolfe Street. Lot 6 extends full length on Ninth Street on the south, and Booher divided all three of these lots so that the residences established thereon would front on Ninth-Street instead of Wolfe.
On March 10,1906, Booher conveyed to "W. S. McCain 54 feet off the west end of lots 4, 5 and 6. He had, prior to that time, conveyed to other parties the other two portions of the lots, namely 48 feet off the east end, which is now the property of Autry, and 48 feet between the two above-mentioned lots, which is now the property of Todd. Booher’s deed to McCain contained a stipulation that the conveyance was made “subject to an easement or right-of-way along the north side of lot 4, which easement or right-of-way is hereby reserved for the use of the owners of the remainder of said lot 4, said easement to be ten feet wide.” There was no such reservation, however, in the deeds previously executed to other parties covering the other two lots. McCain subsequently reconveyed the property to Booher, but his deed did not carry the stipulation contained in the deed from Booher to him, and Booher subsequently conveyed the property to another party without such reservation, and McGill, in the year 1910, became the owner through mesne conveyances.
Lot 3, in block 2, owned by Miller, has never been subdivided; that lot runs east and west, and Miller’s residence fronts on Wolfe Street. Booher built the residence now owned by McGill, and other parties built the residences on the lots now owned, respectively, by Todd and Autry. Todd purchased his property in 1913, and Autry purchased his a few years later. There is an open space of ten feet on the south end of lot 4, along the line of the McGill property and the Todd property, and this has been used as an alley, affording an entrance to each of these properties from Wolfe Street. Todd and Autry have no other means of entering their respective properties from the north or west side. Miller also has been using the open way as an entrance to his property. His use, however, was more limited, as the driveway into his property turns north across his property line a short distance from the mouth of the alley. Several years ago Miller built a stone wall about three feet high near the south line of his property and the north line of the alley, running from the line of the Autry property west to within a short distance of the mouth of the alley — to the point where he turns from the alley into his own property. It was developed by proof in this litigation that the stone wall built by Miller is not precisely on the line, and extends a short space over into the alley near the west end.
It appears from the testimony in this case that, when the residences were established on the properties now owned by McGill and Todd, the fences and barn were built on the line of this open way or alley so as to leave a space of ten feet along that way. The barn and the fences were destroyed many years ago, and the fences were rebuilt on the line, so as to leave an open way between the fences on the back end of the property occupied by McGill and Todd and the line of Miller’s property across- the alley. McGill has, within the last few years, built a garage fronting on-Wolfe Street at' the corner of the alley. Todd has a barn or garage on the rear end of his property, about four feet from the line of the alley. Mr. Autry’s garage is situated on his property fronting the east end of the alley.
Shortly before the commencement of this action McGill attempted to place a fence across the mouth of the alley, and Todd also attempted to build a fence across his line. These fences shut^up the -alley completely and prevented its use by any -one, and the present action was instituted in the chancery court of Pulaski County by Miller and Autry against McGill and Todd to prevent them from obstructing the alley. A temporary injunction was granted at the commencement of the action, requiring appellants to refrain from obstructing the -alley during the pendency of the suit, and, on final hearing of the cause, the injunction was made perpetual. The court also in its decree required Miller to move back the west end of the wall constructed by him so that the samé would be on a continuous straight line, beginning at the east end at the line of -the Autry property. McGill and Todd prosecuted appeals, and Miller cross-appealed.
It is the contention of appellees that the way in controversy was left open and marked by the establishment of fences and buildings as an alley-way for the use of other owners of the property in the block and has been so used for a period of nineteen years, up to the commencement of this action, so that an easement has been acquired by limitation. Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153.
It is the contention of appellant McGill that the use of the way was merely permissive and never ripened into an adverse right, and that he has the privilege of withdrawing the permission and obstructing the alley at any time it suits his convenience. He admits the attempt to close the alley, but seeks to justify it by the claim that no one ever acquired the right to use the alley so as to prevent him from closing it. It is difficult to ascertain from the abstract and brief just what Todd’s justification is for closing the alley. His own testimony tends strongly to show that it was left open nineteen years before this litigation arose, for the use of the owners of other property in the block. We are giving no force to the reservation in the deed from Booher to McCain, for the property now owned by Todd and Autry, respectively, was conveyed away by Booher long before execution of the deed to McCain. McGill and IW ■tors took the title free of any reservation. ' A5 §^aIL' Todd nor Autry can base any rights ■' ne™er tion for the simple reason that G~ reserva" purchased by them or their prr ’ proper y was not right to rely upon the re*'- “ fatle *6 must turn entirely uv' ,rrva 10^ 0 ea e^‘ e case n«o nf flip aiw the proof concerning unrestricted other owm ' 17 ÍOr.a sxiffieient iength of time to give the and ^ -J-drs right to use the alley as an easement, we are of the opinion that the finding of the chancellor upon that issue is sustained 'by the preponderance §f the testimony. The testimony of both Todd and Miller shows that the way had been kept open and used for about nineteen years prior to the commencement of this suit. The line of the alley was marked by the fences and a barn along tbe south line, which constituted an invitation to the public to use it as an alley. It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Scott v. Dishough, supra; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995.
It is true that the testimony of McGill establishes the fact that, after he became the owner of the property in 1910, the alley was frequently used, but that there was an embankment at the mouth of the alley, so that it was difficult to use it; and he also testified that one of his neighbors asked permission to dig down the alley and use it for'the purpose of hauling manure. He stated that he agreed for his neighbor'to use the alley, but his own testimony shows that the alley was open and plainly marked prior to that time, and was occasionally used. His testimony is not sufficient to show that, prior to that time, during the years that the alley had been open, the use of it had been merely permissive, nor that those who used the alley after he acquired the property did so merely by permission.
We give full recognition to the principle of law established by the numerous decisions cited in the brief of appellants, to the effect that a permissive use cannot ripen into a legal right merely by lapse of time, but we think that the evidence is sufficient to show that this use was made of the alley as a matter of right and in hostility to the right of the original owner to .close the strip and prevent its use. The open way was for the especial benefit of the owners of adjoining property, and is the only convenient access that they have to their properties, and this confers upon them such special right as enables them to maintain a suit to prevent an obstruction. We think that the chancellor was correct in holding* that there was an easement for nse of the alley, and that neither McGill nor Todd had the legal right to close it.
The court was also correct in requiring* Miller to move his wall back so as not to obstruct the alley. He had no right to build the wall there, and it does not lie in his mouth to say that it is inconvenient and expensive for him to remove it.
We think that the decree was correct in its entirety, and it is affirmed. | [
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Humphreys, J.
This suit was instituted by appellee against W. E. Hall and H. P. Gann, who composed the partnership of Hall & Gann, in the second division of the circuit court of Union County, for a balance of $7,257.90 due it upon open account; and they sued out an attachment upon the ground of the nonresidence of W. E. Hall, which was directed by the clerk of said county to the sheriff of Clark County, and levied upon a rotary drilling rig and equipment complete, as property belonging to the said partnership of Hall & Gann.
The appellant and Dr. E. A. Sarter filed an interplea in the attachment proceeding, claiming title to said drilling rig and equipment. Dr. E. A. Sarter claimed an undivided one-sixth and appellant an undivided five-sixths interest in the property levied upon, and they executed a retaining bond in the sum of $5,000 in statutory form, conditioned for the return of the property to the sheriff in the event it should be found to be the property of Hall & Gann.
W. E. Hall filed an answer, denying the indebtedness and all other material allegations in the complaint.
Appellee filed an answer to the interplea, denying that Dr. E. A. .Sarter and appellant owned the property and that same was wrongfully levied upon and seized as the property of Hall & Gann, and prayed for a dismissal of the interplea, and for general relief.
When the case was called for trial a judgment was rendered by default against H. P. Gann for $7,257.90, and against W. E. Hall for the same amount, by consent. No appeal has been prosecuted to this court from said judgments. The issue of the ownership of the property levied upon was then submitted to the trial judge, sitting as a jury, which resulted in the finding that appellant was estopped from claiming any interest in the drilling rig and equipment as against appellee, as a creditor of the partnership of Hall & Gann. A decree was rendered, in accordance with this finding, dismissing the interplea and sustaining the attachment as to an undivided five-sixths interest in said rig and equipment, and ordering it sold as the property of Hall & Gann. A decree was rendered, in accordance with this finding, dismissing the interplea and sustaining the attachment as to an undivided five-sixths interest in said rig and equipment, and ordering it sold as the property of Hall & Gann to satisfy the judgment rendered upon the open account, from which is this appeal.
■ Appellant contends for a reversal of the judgment upon the issue of ownership for the alleged reasons:
First, that it did not estop itself from claiming an undivided five-sixths interest in the drilling rig and equipment toy representation of its president and manager that said property was owned toy Hall & Gann.
Second, that the undisputed testimony shows that said property belonged to it at the time same was seized under the attachment.
(1). As we understand the record in this case, the finding of fact was made and the judgment was rendered by the court upon the theory that appellant estopped itself to claim an undivided five-sixths interest in said property through the representation made by W. E. Hall, its president and manager, to appellee, that Hall & Gann owned the rig and equipment, as a basis for obtaining a line of credit for said partnership. The undisputed evidence does show that W. E. Hall made such representation to appellee, but this representation cannot be construed into an agreement not to afterwards sell the rig and equipment. • The fact, if true, that Hall & Gann had purchased the rig and equipment from appellant on credit, and owed the entire purchase money for same, did not necessarily imply that the representation was false, for it seems that no lien was retained for the purchase money, and that, at the time the representation was made, Flail & Gann actually owned the rig and equipment, free from incumbrances. Under this interpretation of the testimony, it cannot be said that appellant estopped itself from claiming title to the rig and equipment by subsequent purchase, if such purchase was in fact made, on account of representations made by its president and manager, W. E. Hall, to appellee in order to obtain a line of credit for said partnership.
(2). We cannot agree with learned counsel for appellant that the undisputed testimony in the record reflects that the resale of the rig and equipment to it by Hall & Gann was a complete sale, or a bona fide sale. Courts and .juries are not compelled to blindly accept the statements of witnesses. In arriving at conclusions they are allowed to weigh the testimony and test the credibility of witnesses, under well defined rules, in the light of all the facts and circumstances in a particular case. Although W. E. Hall testified positively that appellant sold the rig and equipment to Hall & Gann, and that Hall & Gann, being unable to pay for same, turned it back to appellant for the purchase money, yet there are circumstances in the case tending to show that appellant never owned the rig at any time; that, when the rig was first purchased from the Latex Iron Works of Arkansas, a note for $5,000, payable to W. E. Hall, and Hall’s individual notes for $1,000, were given as payment for the rig; that the series of transactions whereby the Louisiana Petroleum Corporation attempts to trace its claim of title to the rig and equipment were individual transactions of W. E. Hall and not transactions for the several corporations in which he owned a majority of the stock, and which he controlled and dominated. In view of the fact that the testimony in the record presents a disputed question of fact as to the ownership of the property, and in view of the further fact that the trial court, sitting as a jury, did not determine this issue, but bottomed the judgment, on the question of estoppel, the judgment must be reversed, and the cause remanded for a finding as to whether there was a complete resale of the property to appellant by Hall & Gann, and, if so, whether it was a bona fide sale.
The judgment is accordingly reversed, and the cause is remanded for a new trial. | [
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Mehaeey, J.
The facts, as they appear from the pleadings, are substantially as follows: The appellant, the plaintiff below, filed suit in the Pulaski Circuit Court against the defendant; the defendant filed answer, and depositions were taken by both parties. The attorney for defendant and a member of the firm of the attorneys for the plaintiff agreed that the case should be continued from time to time, and that the case would be set down subject to the convenience and approval of the attorney for the defendant. The attorney for defendant was absent from Little Bock from December 15 until after the 8th of January, except one day. Attorney for defendant received no notice of the setting of the case. The attorney for the plaintiff who had been handling the case, and the one with whom the agreement was made, was absent from the city the latter part of the year, and another member of the firm took charge of the case. It does not appear that this attorney had any knowledge of the agreement. The case had been set by the court for the 8th of January. Judgment by default was taken on said day. Attorney knew nothing of the judgment having been taken until some time in May, after the term of court at which the judgment was taken had adjourned. On June 1, defendant filed its petition to vacate and set aside the .judgment, and on June 4 plaintiff filed his response. Defendant’s petition states the facts, and that it had a good defense.
There does not seem to be any controversy about the facts, but, as stated in appellant’s brief, the appeal is here on the simple proposition that the trial court had no right to set aside the judgment after the term. It does not appear that attorney for defendant was guilty of any negligence, and the fact that the judgment by default was taken by a member of the firm other than the one with whom the agreement was had is immaterial.
This court has held that, where the sickness of the wife of an attorney is the cause of his failure to appear at court and give his attention to the case, this is not such neglect as should operate to the prejudice of his client. It was stated that the sickness of the attorney’s wife was an unavoidable casualty excusing his nonattendance at the court. Learning v. McMillan. 59 Ark. 162, 26 S. W. 820.
In a recent case, where a defendant relied on conversations and statements of attorney for plaintiff, this court said: “There was such a misunderstanding as constituted unavoidable casualty or misfortune which prevented, the defendant from appearing and defending. There is no room to suspect — and the lower court did not find — that plaintiff’s attorney had intentionally misled the defendant, but the defendant and her husband, who was her representative in the matter, did testify that they were misled, and, because of that fact, had not arranged with the attorney they intended to employ to file an answer presenting a defense which, if true, would defeat a recovery, and had not furnished the attorney the information needed to prepare the answer.” McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368.
We think that, while the attorney who took the default judgment knew nothing of the agreement, yet that the attorney for the defendant was misled, and the judgment of the circuit court is affirmed. | [
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Smith, J.
Appellant and appellee were married in 1917 and lived together until October, 1923, at which time they separated. Appellant brought suit for divorce, alleging cruel and inhuman treatment on the part of appellee, her husband. At the trial of this suit in March, 1924, the court denied appellant’s prayer for divorce, and dismissed her complaint.
In October, 1924, appellant employed a different attorney and brought a second suit for divorce, alleging, in substance, the same grounds recited in the first complaint; but this suit appears to have been dismissed.
In May, 1925, appellant employed her present attorney and brought this, her third, suit for divorce, in which she alleged that appellee had deserted her. Appellee filed an answer and cross-complaint, in which he denied that he had deserted appellant, but alleged the fact to be that she had deserted him and had continued her desertion for the period of more than one year, and had annoyed him with frivolous suits for divorce, and he pleaded the decree in the first suit as a bar to the present cause of action.
At the trial from which the present appeal comes the prayer of appellant for a divorce was refused and that of appellee granted. At this trial numerous witnesses were examined, but we think no useful purpose would be served in setting out this testimony in detail.
We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she .alleges a different cause for divorce, one which could not have existed when she filed her first suit — that of desertion — as the parties had not been separated a year when the first suit was commenced. I Nelson on Divorce and Separation, § 555.
It is true, as is insisted by. counsel for appellee, that appellant left appellee without sufficient cause, and the parties have since been separated for more than a year. The decree in the first cause, wherein cruel treatment is alleged, is. not, as we have said, a bar to the present suit, wherein desertion is alleged as the ground for divorce; but the first decree is conclusive of the fact that appellant was not driven from her home by appellee’s cruel treatment. The court was correct therefore in holding that it was appellant who had deserted appellee, and not he who had deserted her.
It is true also that the parties have since been separated for more than a year. This makes a prima facie case of desertion, inasmuch as appellant had left appellee without justification for so doing, but we think it very clearly appears that, before the desertion had continued for a year — and thereby become a statutory cause for divorce — appellant attempted, in good faith, to effect a reconciliation with appellee. She expressed her willingness and desire to return to appellee and to live with him, and he has shown no cause for refusing to permit her to return, except that she left him and instituted a suit for divorce without having legal right to that relief.
If one spouse leaves another without cause and absents himself or herself from the innocent spouse for the period of a year, a completed cause for a divorce arises, and, when the cause of action has been thus perfected, the offending spouse cannot, by offering, in good faith, to return to the conjugal relation, destroy. the right of action which the other has to sue for a divorce. Desertion, like any other cause for divorce, may be condoned, but the right of condonation lies with the innocent spouse, and not with the guilty one.
In the chapter on Divorce and Separation in 9 R. C. L., § 148, it is said: “If a statute declares that divorce may be granted for desertion for a time specified, there seems to be no dissent from the proposition that desertion continued for such period creates a perfect right to a divorce which it is beyond the power of the party in the wrong to destroy without the consent of the other. Hence an offer to discontinue the desertion and return to and live with the deserted spouse, though made in good faith and before the institution of any suit for divorce, cannot, unless accepted, constitute any defense to such suit.” The cases cited in the note to the case of Allen v. Allen, 73 Conn. 54, 46 A. 242, 84 A. S. R. 135, sustain the text quoted.
But, before the desertion had continued for a year — ■ and therefore before appellee’s cause of action had matured — appellant offered more than once, and, we think, in good faith, to return to and live with appellee, and when she did this the desertion on her part ceased.
We conclude therefore that the court was in error in holding that appellant had deserted appellee.
In the case of Griffin v. Griffin, 166 Ark. 85, 265 S. W. 352, we said that “the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke. In such cases the parties must, by mutual concessions, make the yoke lighter. ’ ’
Appellant, by her recantation and offer to return to appellee, terminated the desertion, and she did so before her desertion matured as a cause for divorce in appel lee’s favor, and it was error therefore to grant him a divorce.
. We have concluded that the decree granting appellee a divorce should be set aside, and it is so ordered, and the cause will be dismissed. | [
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Hart, J.,
(after stating tbe facts). It is tbe contention of counsel for appellants, West and Roughley, that W. H. Meillmier had no interest in the fund involved in this lawsuit; that Philbeck is entitled to one-half of it, and that the balance should be distributed equally between W. E. West, Abe Roughley and the widow and heirs of John W. White, deceased, as the distributees of his estate.
The undisputed facts show that these parties originally advanced to the Roughley Coal Company the amount of its income tax, which is the basis of the refund to that corporation by the United States of the $1,773.01 involved in this case. In this contention we think counsel are correct.
Counsel for appellee, Meillmier, bases his right to a distributive share of the funds under his contract whereby he acquired the one-third interest of Abe Roughley in the Roughley Coal Company.
The record shows that Roughley sold his stock to West, and West at once transferred the same to Meillmier. The bill of sale provides that it ‘ ‘ shall include all debts, demands or other credits due the said Roughley •Coal Company, whether liquidated or otherwise, and it is understood the purchaser shall assume all debts and other demands against said Roughley Coal Company.”
Counsel for appellee seeks to uphold the decree upon the principles of law decided in Delano v. Butler, 118 U. S. 634, and Bidwell v. P. O. & E. L. Pass. Ry. Co. 114 Pa. 535, 6 A. 729.
In the case first cited, a national bank became insolvent, and the Comptroller of the Currency authorized an increase of the capital stock of the bank in order to enable it to resume business. The stockholders voluntarily paid an assessment for this purpose. The capital stock was increased to an amount equal to' the aggregate sum of the voluntary assessments, and the money so obtained was used by the bauk in the regular course of business. Under these facts the court held that the assessment was a voluntary one, made by the stockholders themselves under authority of law, to increase the capital stock to enable the bank to resume business, and therefore was not a loan of money to the bank.
In the second case cited, the affairs of the corporation were in bad condition. A large part of the track of the company needed repairing, and new station houses were needed. New equipments of cars and horses were also needed. The treasury was empty. To meet the emergency the three persons who owned all the corporate stock voluntarily assessed their stock and applied the money thus raised to the improvement and repairing of the company’s property. This resulted in the enhancement of the value of the corporate property and in the betterment of their stock. It was held that, as a matter of fact, the transaction amounted to a voluntary assessment of their stock, and was not a loan of money by the stockholders to the corporation.
The facts are materially different in the case at bar. The transaction did not result in the increase in value of the property of the corporation or in the betterment of its stock. No new assets accrued to the corporation. The money advanced was not placed in the general assets of the corporation and used by it in due course of business. The money was paid in by the stockholders for a specific purpose, and used for that purpose alone. While the proof is not definite and specific, it is fairly inferable, from the agreed statement of facts, that the three stockholders intended to advance what money was actually needed to pay the income tax of the corporation for the year 1917. They evidently thought that the amount demanded was the amount due the United States. They only intended to advance the amount due to the United States, and there is nothing to show that it was intended that any excess payment should be returned to the cor poration and constitute a part of its assets. Rather, the equity of the case is that, if the amount advanced by the stockholders was in excess of the income tax due by the "corporation for the year 1917, the payment of the excess was made either under a sort of compulsion or under mistake of fact. The excess should be returned ratably to the persons who contributed it, and not to the corporation for whose benefit it was paid.
In this connection, it may be stated that neither of the parties to this suit knew of the excess payment of taxes at the time West sold to Meillmier. The equity of the case upon the merits is with the persons who advanced the money with which to pay the income tax of the corporation for the year 1917, and we hold that they are entitled to the excess thereof in equal shares as a loan of money to the corporation.
If it be conceded that the $1,773.01 returned by the United States to the Roughley Coal Company is a debt or demand due said corporation and that Meillmier acquired an undivided one-third interest therein under the terms of the bill of sale, this does not help his case any. The bill of sale likewise makes him liable for all debts and other demands against the Roughley Coal Company. Now the undisputed facts show that the income tax of the Roughley Coal Company was not paid out of its assets, but was paid hy West, White and Roughley out of their individual funds. They each owned one-third of the stock of the corporation, and contributed an equal amount in the payment of the income tax of the corporation. The amount of money so advanced by them was never repaid by the corporation. Hence it is a debt due them by the corporation. The corporation has dissolved and has no other distributive assets than the amount refunded to it by the United States. This fund constitutes its sole assets for the payment of its debts. No other debts are shown to have been owed by the corporation. Hence this sum of money should have been distributed to West, Roughley, and the widow and heirs of the estate of John W. White, deceased, in equal proportion, after deducting the amount which should have been allowed and paid to John Philbeck for recovering the same.
This brings us to a consideration of the proper amount to be allowed Philbeck for his legal services in recovering the fund in question. West and Itoughley made a contract with him whereby he was to receive as a contingent fee fifty per cent, of the amount recovered. They had no authority from the corporation or from the remaining stockholder to make such a contract. Hence White could not be bound by the contract, and his proportionate part of the fund could only be charged with a reasonable attorney’s fee.
There is no testimony in the record to show what would be a reasonable fee. West and Itoughley were entitled to two-thirds of the amount recovered, and the fact that they made a contract with Philbeck to give him fifty per cent, of the amount recovered indicates that they thought this to be a reasonable fee. Then, too, the fact that the corporation had been dissolved, the uncertainty of the recovery, the complex nature of the claim, and the fact that the attorney’s services might be extended over a long period of time, are all elements to be considered in determining whether or not the contract fee of fifty per-cent, of the amount recovered was reasonable. The corporation had its domicile at a great distance from Washington, and the fund was recovered by the exertions of Philbeck. In the absence of any direct and positive evidence as to whether the fee was reasonable, considering the amount involved, the nature, character and extent of the services required, we are of the opinion that a contingent fee of fifty per cent, of the amount to be recovered was not unreasonable, and that such fee should be a charge against the whole fund. It follows that the court erred in the rendition of its decree as set forth in our statement of facts.-
Finally, it is insisted that the decree must be affirmed because the record does not contain all the evidence. In making this contention, counsel for appellees rely upon the principles of law in Weaver-Dowdy Co. v. Brewer, 129 Ark. 193, 195 S. W. 367, to the effect that, where there is a conflict between the recitals of the decree and the bill of exceptions, the record entry must prevail. The decree, after reciting the appearance of all the parties, contains the following:
“And all the parties announcing ready for trial, the trial proceeds upon the pleadings filed' by the parties, exhibits, oral testimony introduced and the agreements of the parties.” The bill of exceptions at the commencement contains the following:
“Thereupon the pleadings in the case, the complaint of plaintiff, the answer of defendant, and interplea of the intervener, were by the respective parties presented to the court, and the cause was submitted to the court on an agreed statement of facts,-as follows.”
At the conclusion of the 'bill of exceptions there is an agreement between the attorneys of the respective parties that it is a true and correct statement of the facts as agreed to in the trial of the case. In the first place, it may be said that, when the recitals of the decree and of the bill of exceptions copied above are considered together, there is no inconsistency between them. Inferentially, at least, it should be considered that the agreed statement of facts is the oral testimony referred to in the decree. This is especially true when we consider that the chancellor filed a written opinion in which the facts are set out substantially as stated in the agreed statement of facts. Then, too, the facts agreed to are' undisputed, and no amount of oral testimony could overturn facts which are undisputed and which the parties, by their agreement, have alleged to be true and to be the facts in the case. Then, too, the facts agreed to settle all the issues raised by the pleadings.
It follows that the decree will be- reversed, and the cause will be remanded with directions to the chancellor to enter a decree in accordance with this opinion. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Clark County for the crime of making mash for the distillation of intoxicating liquor, and was adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.
Appellant assigns two alleged errors as grounds for a reversal of the judgment, the first being that the evidence is not sufficient to support the verdict, and the second, that the trial court made an improper remark in the presence and hearing of the jurors which prejudiced his rights.
(1). The testimony introduced by the State was to the effect that the sheriff of the county and two other officers discovered a still a mile and a-half or two miles east of appellant’s home about a week before he was arrested. During the interim the still was moved to a point about three-quarters of a mile west of appellant’s home. After .the removal of the still, the officers discovered. two barrels containing mash near it, and a pot about twenty-five yards from the barrels. Early the next morning they returned to the scene and concealed themselves behind some bushes. In the neighborhood of 8 o’clock a. m., the sheriff and one of the officers, W. D. Cook, observed appellant carrying water from a nearby branch to the barrels, and, from his swinging movement, thought that he was stirring the mash in the barrels. Their view was obstructed to some extent by intervening-bushes. The other officer, EL L. Bachelor, was about ten or fifteen feet from his brother officers, and had a better view than they had. He testified that appellant passed within ten or fifteen steps of him, with a bucket on his arm; that he made two trips to the branch for water, which he poured in the barrels, then stirred the mash in the barrels with a stick; that he observed appellant closely, taking particular notice of his very unusual mustache, and noticed, particularly, that appellant was the man who carried the water and stirred the mash. The officers went back to the still the following morning, and found that the mash had been run off, and that the worm had been attached to the pot, which was hot, having been fired up. They also found some whiskey in a tin can. After pouring out the mash and whiskey and destroying the still, they repaired to a point near appellant’s home, and again concealed themselves. A short time after sunup, appellant approached the house, in a drunken condition, and was arrested by the officers. His clothing was wet up to his waist. His excuse for being away from home so early was that he had been out hunting for a neighbor’s cow.
The testimony recited above is ample to support the verdict. Appellant was positively identified as the man who was mixing the mash, and the circumstances warranted the inference that he was guilty of making mash fit for the distillation of intoxicating liquor.
(2). On the call of the case for trial, several of appellant’s witnesses failed to answer to their names, whereupon the court said, “This is .a case in which it looks like' we are not g'oing to. get the witnesses here for the defendant.” The remark was made in the presence of all of the jurors on the regular panel, and was objected to and excepted to at the time by appellant. The court told the. .jury that he did not intend .to reflect upon appellant, and. for them to disregard the remark entirely in their consideration of the case. ■■
We do not see how the remark could have prejudiced the rights of appellant, but, if it tended to do so, the immediate admonition of the' court necessarily removed any resultant prejudice.
No error appearing, the judgment is affirmed. | [
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Wood, J.
This is an action by the administrator of the estate of F. S. Bratcher, deceased, against the Actus Coal Company, to recover damages for the benefit of the estafe and next of kin of F. O. Bratcher. For his cause of action the plaintiff alleged that the defendant is an Arkansas corporation engaged in the mining of coal; that Bratcher was an employee of the defendant; that, acting under the orders and directions of its agents and servants, Bratcher was driving a mule pulling coal from the rooms in the mine out to the parting, where the cars were picked up and carried to the top of the mine by electric power; “that the defendant, its agents and servants in authority, negligently and carelessly failed to furnish Bratcher a reasonably safe place in which to work, in that it negligently and carelessly failed to furnish and keep in repair a suitable and proper transformer to reduce the current of electricity to proper voltage on light wire and to keep a switch at or near said parting in a known and convenient place, so that' electric power could be turned off; that the defendant negligently and carelessly failed to keep said wire on said parting, which wire furnished electricity for said light on said parting, properly insulated and the current properly reduced; that, on the second day of December, 1924, without fault or carelessness on the part of Bratcher, he, while in the discharge of his duty, came in contact with a live wire on said parting, which wire was made alive by reason of insufficient insulation, and which wire carried a very heavy and excessive and unnecessary voltage of electricity, transferring same to the body of Bratcher, seriously and painfully torturing and burning him, from which effect he died, to plaintiff’s damage .for the benefit of the estate in the sum of $25,000, and to plaintiff’s damage for the benefit of Bratcher’s wife and minor child in the sum of $34,500. Plaintiff therefore prayed judgment in the aggregate sum of $59,500.
The plaintiff alleged that Bratcher died intestate, leaving a widow and minor son, and that plaintiff was the duly appointed administrator of Bratcher’s estate.
In the answer of the defendant all the material allegations of the complaint are denied, and, for affirmative defenses, the defendant sets up that Bratcher had assumed the risk and was guilty of contributory negligence. The answer admits that the defendant is a corporation and that plaintiff was the duly appointed and acting administrator of the estate of Bratcher, deceased.
The undisputed testimony shows that Bratcher was killed while working in a coal mine operated, by the defendant on December 2, 1924. He was killed by coming in contact with a live electrinlight wire which carried two hundred and fifty volts of electricity.
John Elliott, one of the witnesses for the plaintiff, testified in substance that he assisted in putting up the wire, which was new when installed, and which had been in use three months at the time of Bratcher’s injury. At the time it was installed it was properly insulated. He had not recently inspected it. He did not see Bratcher until he was dead. He had to go 600 feet from the place where Bratcher was killed to turn off the current. • The current could have been turned off instantly if a switch had been at the No. 3 parting, the accident occurring on the main slope. Bratcher must have had his fingers a-hold of the light socket, as the globe was broken in some manner. There was no switch on the main wire, where the light wire turned off from it. Bratcher was lying on the track, both hands and the light bulb under him. The light bulb was in the socket that morning, but was burned out.
Gene Newman was with Bratcher when witness took Bratcher loose from the wire. The wire came from the main wire around Bratcher’s back and under him. Witness was about five minutes getting to him after he received information that he was injured. Bratcher was about five or six feet high. He might have touched the wire. It was away from the track he had crossed to pull the coal from the parting. Bratcher and Gene Newman worked together. Bratcher had to pull past the place to get to the parting, but did not have to go under it. Bratcher was supposed to be at the parting at 7:30 a. m., and he was killed at 2 p. m., after he had made more than a dozen trips back and forth from the parting. The mules turned in about five feet of the light or near, at times. On other occasions they turned about ten feet away. In the morning Bratcher would have to go under the light with the mules. Witness did not know how the wire happened to be down. The globe was in the socket that morning. Witness found the socket with the outside gone and the inside intact.
Gene Newman was the only eye witness to the injury. He testified that Bratcher hollered out, .saying, “Knock me loose.” Witness looked, and.Bratcher’s hands were up a-hold of the wire two feet from the light globe. Witness knocked the wire down, and Bratcher fell with both hands under him, across the track, with the wire wrapped around his body. The closest switch was 200 feet. away. Elliott turned off the current from five' to eight minutes after Bratcher was struck. Miners had to pass under this light and wire in a stooped position.
Sam Settles testified that he was an electrician. A wire properly insulated, according to his testimony, carrying 250 volts, would not electrocute a person coming in contact with it. If Bratcher came in contact with the wire and was electrocuted, the insulation was not proper. The power could be cut off instantly with a switch. If Bratcher was electrocuted, he stuck to the wire because the insulation was not proper. Two hundred and fifty volts passing over a properly insulated wire would not electrocute a person and would not fasten a person taking hold of a light bulb. Witness could not crush with his fingers a bulb of the kind exhibited if it were properly screwed into the socket. If a party broke the globe and got his hands against the small wires, he could not get loose. One hundred and ten volts might kill — had been known to kill.
Roberts testified .that it was customary for the miners to work along under the light. They were right there together any time the empties were on the track. The drivers, in order to get loads out, had to go right under the wire. The workers went back under the wire to get water to drink. They could stoop around the other way and not go under the wire, but it was the usual thing for them to go under the wire. The company had not given Bratcher any orders not to pass under the wire. They had given no instructions that there was any danger lurking around the wire or light bulbs. The ground under the lamp was damp. The light globe had been out a week. Witness saw nothing in Bratcher’s hand. If witness had not known the wire to be there, he would not have seen it in passing under it.
One of the witnesses testified that the men working in the mine turned off from the main entry a short distance from the light. They passed on into the entry under the wife across the parting, the only way they could go. There was testimony tending to show that the light was put where it was for the engine at the hoist and for the convenience of the drivers.
One of the witnesses for the defendant testified that he saw the burns on Bratcher’s hands, and it looked as *if he had caught hold of something. The globe was broken off in the socket at the time the witness saw Bratcher. There were four or five cuts on Bratcher’s hand. Little jagged edges of glass remained in the socket, and witness thought the glass made the cuts. .The wire carrying the light jet had burned out. The little wires would, be charged with electricity. Both of Bratcher’s fingers, his • thumbs, and a spot about his navel, were burned when witness knocked the wire down. Bratcher had hold of it with both fingers. There was a drop about six inches from the wire, the light -bulb being four feet and eight inches from the ground. Witness never saw the wires in contact with Bratcher or in his bands. If one came in contact with the little wires in the socket he would' be shocked.
The mine foreman of the defendant testified to the effect that he saw Bratcher immediately after he was killed. Witness was not' an electrician, but had worked all over the country where they had electricity. Bratcher was lying on his back, dead, when witness saw him. The light bulb hung down six or seven inches below the timber. The wire had ¡been up about three months. Witness saw it every day, and had instructed one of the workmen to put it there. There are wires in the mine which had been there four years, and the insulation was still good. The globe was in the socket about 11 a. m., and the accident occurred between one and two p. m. When they got the wire down, .the globe was gone. Witness saw the burns on Bratcher’s fingers and body. Witness knew positively that the wires were properly insulated and dry. The only way Bratcher could have been killed was that he took hold of the globe, trying to screw it in the socket, and caught hold of the wire, broke the glass, burned and cut himself. He was standing on props, and got off and swung this way, throwing the wire under there, and fell on the wire. It made a short circuit with Ms body, and killed Mm. That is all witness could see that would have killed him. The driver’s duty is to pull coal, and not to handle wires or lights. The wire was safe, dry, properly insulated, and, if Bratcher had attended to his own business, he would not have been hurt.
The plaintiff asked witness Sam Settles, an electrician, the following, question: “Is it necessary, for ordinary lighting purposes, .to have a lamp with more than 110 voltage?” The defendant objected to the question, and the court sustained the objection.
Among other instructions, the plaintiff asked the court to instruct the jury as. follows:
“No. 2. You are instructed that, if you find from the' evidence in this case that defendant had notice of the defective condition of the light bulb and wire in question and failed to use reasonable and ordinary care to repair same, and the deceased came in contact with same and was electrocuted, and plaintiff suffered damages thereby, then your verdict shall be for the plaintiff.”
“No. 6. The court gives you in charge § 7145, Crawford & Moses’ Digest of the Laws of the State of Arkansas, and § 7146, Crawford & Moses’ Digest of the Statutes of Arkansas. ’ ’
In instructions Nos. 8 and 9, granted at the- request of the defendant, the court told the jury, in effect, that if Bratcher, while working in the mine as driver for the defendant, for some unknown reason took hold of the incandescent light globe which was not burning, and that the lighting of said mine or the handling of said globe was not in the line of his employment, and that in so doing Bratcher acted without direction from the officers or agents of the defendant, then Bratcher assumed the risk of handling such light globe, and, if such act caused his death, he could not recover, and the verdict of the jury should be in favor of the defendant.
The appellee’s prayers for instructions numbered 13 and 14 are as follows:
“No. 13. The court instructs the jury that, if you find from the evidence that the death of the deceased was due to one of two causes, one of which could involve negligence on the part of defendant, the other only an incident for which the defendant is not liable, then, under the law, it would be your duty to adopt the theory which would relieve the defendant from any charge of negligence, and therefore it would be your duty to return a verdict for the defendant.
“No. 14. You are instructed that the defendant company cannot be held liable for the result of any act or omission the results of which could not have been reasonably foreseen or anticipated. And in this case, if you find that the deceased came to his death in such a manner as could not have been reasonably anticipated or foreseen by the defendant company, you will find for the defendant.”
The jury returned a verdict in favor of the defendant. Judgment was rendered in defendant’s favor, from which the plaintiff duly prosecutes this appeal.
1. The issues of negligence, contributory negligence and assumption of risk were, under the evidence, issues of fact for the jury. There was testimony to warrant the jury in finding that the appellee had exercised ordinary care to furnish Bratcher a safe place to work. The testimony does riot tend to prove that the particular place where Bratcher was required to “pull” the cars was at all unsafe. Bratcher had gone from the place where he was required to do his work, and could do the same in safety, to the place where there was an electric light globe and wire. It was not his duty to fix the electric light and wires. That was the duty of the electrician. The testimony tended to prove that the workers in the mine, including the drivers of the mules pulling the cars, had carbide lamps on their caps to give them light. The testimony tends to prove that Bratcher was killed by attempting to fix the electric light globe. He had departed from his regular work and his duty to do this. There was testimony to warrant the jury in finding that the electric light wire was properly insulated, and that Bratcher came in contact with the little wires in the socket holding the electric light bulb or globe, when he broke the same in attempting to screw it up or to fix it in some manner, and that his fingers were caughtthat this caused his electrocution. The voltage was sufficient to kill him, as the proof tends to show. The jury might have found that the wire outside of the socket was properly insulated, or they might have found that the wire was not properly insulated. This testimony made it a question of fact as to whether the appellee was negligent in not properly insulating the electric wires, but the verdict of the jury on this issue of fact is conclusive here in favor of the appellee.
2. The court did not err in refusing appellant’s prayer for instruction No. 2. The instruction ignored the affirmative defenses of assumption of risk and contributory negligence, and authorized the jury to find for the plaintiff if they found that the appellee was negligent.
There was no error in refusing appellant’s prayer for instruction No. 6. This instruction does not set out the sections of the statute mentioned in it and does not request an explanation of these statutes making the same applicable to the facts adduced in evidence. This court has held that it is error for the trial court to give statutes without an explanation thereof in connection with the facts, where an explanation was necessary. ,An explanation would have been necessary here. Kansas City, etc., Ry. Co. v. Becker, 63 Ark. 477, 39 S. W. 358.
The court did not err in granting appellee’s prayer fon instructions Nos. 8 and 9. These instructions, in effect, told the jury that Bratcher assumed the risk if he departed from his line of duty in order to fix the electric light globe or wire, and correctly declared the law applicable to the facts which the testimony tended to prove.
"We have not set out and do not comment upon prayers for.instructions numbered 10 and 12, of which the appellant complains in his brief, for the reason that the granting of these prayers is not made a ground of the motion for a new trial.-
Instruction No. 13 was in substantial compliance with the*law as announced by this court in Fort Smith Light & Traction Co. v. Cooper, 170 Ark. 286, 280 S. W. 990, and Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161, 150 S. W. 572. No specific objection was made to the instruction, and it was not inherently erroneous.
Appellee’s'prayer for instruction No. 14 declared the law applicable to the facts in substantial conformity with the rule announced by this court in Pekin Stave Co. v. Ramey, 108 Ark. 488, 158 S. W. 156. The instruction was, in effect, the same as instruction No. 4, which was refused by the trial court in that case and which was by this court, on appeal, approved as a correct declaration of law. Only a general objection was made to the instruction.
3. The court did not err in refusing to'permit the witness Sam 0. Settles to testify that the amount of electricity carried and conducted to the light bulb was excessive and dang'erous. This assignment of error in the motion for a new trial is not in conformity to the record as to the question which was asked the witness in his examination. The question was, “Is it necessary, for ordinary lighting purposes, to have a lamp with more than 110 voltage ? ’ ’ That issue was not presented by the pleadings and was not involved.
The issues were correctly submitted to the jury under the instructions of the court, and there was testimony to support the verdict. We find no error in the record, and the judgment is therefore affirmed. | [
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Humphreys, J.
This is an appeal from a decree rendered on May 5, .1925, in the first division of the chancery court of Union County, annulling an amended and supplemental decree made and entered on January 27, 1925, in a suit wherein J. W. Raiford et al. were plaintiffs and Ben R. McClanahan et al. were defendants. Both appellants and appellees herein were parties to that suit, which was a partition suit of certain lands in said county. The original decree in that suit was rendered on the 30th day of June, 1924. It was adjudged in the original decree that appellees.herein,-Mrs. Lizzie Wood and Mrs. Fannie McMullen, owned an undivided one- . sixth interest each, and appellants herein, who were children of their deceased sister, an undivided one-thirtieth interest each in the lands involved in the suit. The term of court at which the original decree was rendered adjourned until court in course on the first Monday in September, 1924. On the 27th day of January, 1925, at a subsequent term of court, the amended and supplemental decree was rendered, on the motion of the attorneys who represented appellants and appellees herein in the original partition suit, so as to change their several adjudged interests in said lands to equal shares therein, conformable to the said attorneys’ construction of a written instrument of date May 3,' 1923, evidencing a purported family settlement between appellants and appellees on the one side, and R. II. Ingram and Mattie J. Ingram on the other.
It will be observed that the effect of the amended and supplemental decree was to materially reduce the interests of appellees herein, Mrs. Lizzie Wood and Mrs. Fannie McMullen, adjudged to them in the original decree. On account of this reduction, they attacked the validity of the supplemental decree 'aforesaid, by motion, at a subsequent term of the court, upon the ground that the court was without authority in law to change or modify the original decree after the expiration of the term at which same was rendered.
The following recitals appear in the decree of May 5, 1925, from which this appeal was taken:
“Said matter is presented to the court upon the verified petition of Mrs. Lizzie Wood and Mrs. Fannie McMullen aforesaid, and upon the response filed thereto by Polk Ingram, Pauline Ingram Ward, formerly Pauline Ingram, Emma Ingram Quires, formerly Emma Ingram, Ruby Ingram McMullen and Charles (Charlie) Ingram, feme sole, aforesaid, and upon all of the original pleadings, depositions and records heretofore filed or entered in this cause, said depositions, pleadings and records being more fully set out in the original decree entered in this cause, and submitted also upon the original decree in September, 1924, and upon the motion to correct and modify the original decree which was filed on January 21, 1925, and upon the supplemental decree entered in said cause on January 27, 1925, and upon the oral testimony of Mrs. Fannie McMullen, Mrs. Lizzie Wood, Arthur McMullen, and Neill C. Marsh.”
Appellants herein contend for a reversal of the decree of date May 5, 1925, because they say the ascertainment of the several interests of the parties in the lands was not an issue in the suit at the time the original decree, of date June 30, 1924, was rendered. The supplemental decree of date January 27, 1925, reflects by recitals therein that the rights and interests of all the parties to the suit, including the rights and interests of appellants and appellees herein, were ascertained and determined, but, in ascertaining and determining same, the court made a mistake as to the correct interest to which each was entitled. According to the recitals of the decree of date May 5, 1925, quoted above, the original pleadings in the partition suit and the testimony therein were before the court, which formed a basis for the finding in said decree that the several interests of all the parties in the lands involved were correctly ascer tained and determined in the original decree of date June 30, 1924.
We have searched the transcript for the pleadings and testimon3r upon which the original decree was based, but are unable to find that same were incorporated therein. The transcript contains the proceedings beginning with and including the supplemental decree rendered on January 27,. 1925. The omission from the transcript of the original pleadings and testimony makes it impossible for us to determine what the issues were in the original suit, except as reflected by the recitals in the supplemental decree of date January 27, 1925, and the decree of date May 5, 1925. These recitals, as stated above, show that the original suit was one in partition, and that the interests of all the parties -to the lands involved were ascertained and determined. It is the statutory duty of courts in partition suits, to ascertain and determine the interests of all parties in the lands and tenements sought to be divided and to decree a partition in accordance with the rights of each thus ascertained. Section 8100, C. & M. Digest.
It follows from what has been said that the original decree, which fixed the interests of the several parties in the lands involved, became final and binding upon appellants and appellees herein with the lapse of the term of court on the first Monday in September, 1924. The only method by which the decree could have been modified or set aside, after the lapse of the term at which same was rendered, except for fraud in the procurement of same, is the method provided in § 6290 of Crawford & Moses’ Digest. The motion filed to modify the decree did not embrace any of the grounds contained in said section for modifying and vacating judgments. The supplemental decree therefore of date January 27, 1925, changing the several interests of appellants and appellees in said lands as ascertained and determined in the original decree of date June 30, 1924, was rendered without authority in law, and void. Brady v. Hamlett, 33 Ark. 105; Kersh v. Lincoln County, 36 Ark. 589; Robinson v. Citizens’ Bank, 135 Ark. 308, 204 S. W. 615.
The supplemental decree, of date January 27, 1925, was void, so it was within the continuing and inherent power of the court, after the lapse of the term at which rendered, to set it aside as a nullity. A court has the right to say at any time that a void decree is no decree at all. Bobo v. State, 40 Ark. 224; Jackson v. Becktold Printing & Book Manufacturing Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 415; State v. West, 160 Ark. 413, 254 S. W. 828.
No error appearing, the decree is affirmed. | [
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McCulloch, C. J.
Appellants, as commissioners of the Tucker Lake Levee & Drainage District, instituted against appellee this action in the chancery court of Jefferson County to restrain appellee from interfering with the construction of the improvement by the contractor or subcontractor.
Appellee owned a small tract of land in line with the right-of-way, and, when the subcontractors appeared, in the early part of November, 1925,to begin work with the dredging machine, appellee prevented them from coming on the land. He had planted a crop of cotton, which had matured, on the tract included in the condemned right-of-way, and he insisted that no work be done interfering with the gathering of his crop. Appellants then instituted this action to prevent the interference, the cause was heard by the chancery court on November 23, 1925, and a decree was entered by the court restraining appellee from interfering with the work, but in favor of appellee for recovery of the sum of $100 as damages for the destruction of the crop grown on the right-of-way.
It appears that, in the organization of the district and in the formation of the plans for the improvement, there was an assessment of benefits and damages filed in accordance with the statute (Acts 1919, page 829). Appellee had no actual notice of the statutory condemnation, but was bound by it. Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334. However, the condemnation was complete December, 1923, and nothing was done toward the construction of the improvement until November, 1925, when the subcontractors appeared on appellee’s land to begin work, and appellee insisted that his crop be not taken or damaged without compensation, for the reason that he had been permitted to plant the crop without actual notice that the ditch would be dug along the right-of-way before he had gathered the crop. The chancery court based its decision in favor of appellee on the ground that appellants, before obtaining relief, should be required to do equity by paying for the damage done under the circumstances. Apparently the court applied the familiar maxim that he who seeks equity must do equity. Our conclusion is that this was a misapplication of the equity doctrine, for the condemnation was complete, and appellee continued at his peril to occupy and cultivate the right-of-way. All of his damage for taking the right-of-way was conclusively presumed to have been included in the award made by the assessors, there having been no objection made to the award in apt time. Appellee’s continued possession of the property was, at most, permissive, and he can claim no damages by reason of the indulgence. The decree is erroneous, and is therefore reversed, with instructions to enter a decree in favor of appellants in accordance with this opinion. | [
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Wood, J.
On May 19, 1922, Ida Bell, a widow, executed a lease to'Eli D. Bernstein, by which, for a valuable consideration, the lessor leased to the lessee a parcel or lot of land in the town of Norphlet, Union County, Arkansas. The land described in the lease did not properly describe the lands which were intended by the parties to be leased. This lease, with the imperfect description of the land, was recorded on May 25, 1922. On March 20, 1924, a lease was executed by Ida Bell to Eli D. Bernstein, which was dated as of May 19, 1922. This latter lease described the land as follows: “Beginning at the northwest corner of the northeast quarter of the southwest quarter of section 21, township 16 south, range 15 west, and running thence east 395 feet for beginning point; thence east 155 feet; thence south 510 feet to the north line of the Missouri Pacific right-of-way; thence north 49 degrees west along said right-of-way line 285 feet; thence north 300 feet to place of beginning, and containing two acres, more or less.”
The lease contains this recital: “This lease is made to correct and supersede, in all things pertaining thereto, a certain oil and gas lease executed May 19, 1922, and recorded in book 133, p. 180, of the records of Union County, Arkansas. ’ ’ The lease further recited that it was executed “for the sole and only purpose of mining and operating for oil and gas, laying of pipe lines, building of tanks, towers, stations and structures thereon to produce, save, and take care of said products, and all that certain tract of land situated in the county of Union,” etc., describing the same as above. The last lease was recorded April 16, 1924.
In March, 1924, Ida Bell, by warranty deed, conveyed to Lee Morgan the above lands for the consideration of $450, which deed was duly filed for record on the 29th of March, ,1924. The land was not correctly described in that deed, but the description was corrected in a later deed executed April 8, 1924, and filed for record on that day. Morgan went into possession of the land and improved the same. On May 22, 1924, Bernstein sold his lease to Mike Koury and his successors and assigns. Koury took possession of the property and drilled a well thereon which produced oil and gas.
This action was instituted by Lee Morgan on May 1, 1924, against Mike Koury, trustee, and others, named as defendants. He alleged, among other things, that the defendants recently, at times unknown to the plaintiff, had been sinking an oil well within 150 feet of plaintiff’s premises, and “had wrongfully, willfully and with conscious disregard of the rights of plaintiff in said premises,” done certain acts, consisting of the building of tanks on the premises and the driving of heavy wagons across same, the breaking of the gas supply to his prem ises, tlie using of an unsafe engine and boiler; that the boiler • exploded, and a portion thereof was blown with great violence through the plaintiff’s rooming-house and close to persons occupying the same, endangering their lives, putting them in great fear and alarm, all to the plaintiff’s damage in the sum of $10,000. Plaintiff prayed a temporary restraining order to prevent the defendants from continuing their trespasses upon his property, and, upon a final hearing, for a permanent injunction, and for .judgment in the sum of $10,000.
The defendants answered, denying specifically the allegations of the complaint as to trespass and negligence, and set up that they were operating as successors and assignees of Mi D. Bernstein under the lease from Ida Bell to Bernstein, executed on May 19, 1922. They further set up that, when the plaintiff obtained his deed to the tract of land in controversy, on which he made his improvements, he was well aware of the lease mentioned from Ida Bell to Eli D. Bernstein, and that plaintiff took title and possession subject to such lease and well knowing at the time of the rights of Bernstein and his successors and assigns under the lease. They further alleged that they entered and took possession of the premises and carried on their drilling operations without objection from the plaintiff.
On the trial of the issues thus raised and the muniments of title of the respective parties as above set forth, the chancery court found that the plaintiff was the owner of the property in controversy and was in possession thereof long prior to the commencement of this action, using the same as a residence for his family and a rooming-house, prior to any oil development in the town of Norphlet, and that the defendants had actual notice of plaintiff’s occupancy of the premises and of his improvements and of his ownership before they began their drilling operations. 'The court further found that the plaintiff was not entitled to the injunction prayed, and denied his prayer for the relief sought in that particular, but found that he was entitled to recover for damages for the injury sustained by him, and referred this matter of damages to a special master, to take proof and ascertain the amount of such damages and report to the court. The master beard the testimony adduced by the respective parties on the issue as to the amount of the damages, and made his report to the effect that the plaintiff had been damaged by the defendants in the total sum of $6,025, enumerating various items of damage and the amounts thereof, which, in the aggregate, constituted the above sum. Exceptions were filed to this report, and the court sustained these exceptions and found that the “measure of damages in the case is the difference in the reasonable cash market value of this property just before the alleged trespass and injury complained of and the reasonable cash market value of same after such alleged trespass and injury complained of,” and again referred to the master to take further testimony, if necessary, and to state the amount of the damages according to the measure of such damages as declared by the court. The master filed another report in which he itemized the plaintiff’s damages as follows: The lot in question was worth, prior to the explosion and injury, the sum of $800; the buildings were worth, prior to the injury, the sum of $2,000; the plaintiff was earning with said property, on an average, every month $600; the plaintiff was entitled to one month’s earnings of the tent house on account of damages in the sum of $250; that he had sustained damage by reason of the destruction of gas connections in the sum of $25, making a total sum of $3,675. The plaintiff was charged with the value of the lot immediately after the injury in the sum of $100, and of the value of the lumber in the sum of $200. The master therefore reported that the plaintiff was entitled to the sum of $3,375. The master further reported that the lot in question was practically worthless for any purpose as long as the operations of the defendants continued. Both the plaintiff and the defendants filed exceptions to the last report of the master. The cause was finally heard by the court on the entire record and all the testimony taken in the cause both before the master and before the court. The court sustained the exceptions of both the plaintiff and the defendants to the report of the master and found that the plaintiff was entitled to recover damages of the defendants in the sum of $3,375. A decree was entered in favor of the appellee for that sum. Both parties excepted to the decree, and have duly prosecuted their appeal.
1. It will be observed that the description of the land on which the appellants were operating was not cor-' rected and perfected until the 20th of March, 1924, and this corrected lease was not placed of record until the 16th of April, 1924. In the meantime the appellee had acquired title to the land. He had been in possession of it for over a year, and had obtained a deed correctly describing it on April 8,1924, which was duly recorded on that day. Só, the undisputed record evidence shows that, at the time the appellee took possession of the land and at the time he perfected his deed and had the same recorded, he had • no constructive notice of the . rights of the appellants under their lease. But Ida Bell, the common source under which the appellants and the appellee claimed, testified that she told appellee, Morgan, at the time she leased to him, that the mineral rights and oils were sold. Says she: “I told all of them, and they all built close to the-line on that account.” That was when she leased him the land in 1923. Also, when she sold him the land, she told him that the mineral rights were sold on it. The lease was sold on the land. Witness told the scrivener to write it in the deed, and he replied, “It won’t make any difference.” She further testified that she told the appellee “if he didn’t want to take the land with the lease on it he didn’t have to.”
The appellee testified that Mrs. Bell mentioned to him once or twice that Bernstein had an oil and gas lease on his property. Witness further testified that he never heard of an oil and gas lease being on the property until Bernstein told him of it'on March 29, 1924.
P. F. Harold, the notary public who took Mrs. Bell’s acknowledgment to the deeds, testified that he heard Mrs. Bell make the statement to appellee, when both deeds were executed, that Eli D. Bernstein had an oil and gas lease on the land; that this was the same land she sold to appellee.
A preponderance of the evidence therefore shows that, at the time the appellee acquired his title to the land in controversy, he had actual notice of the appellant’s rights under the oil and gas lease. The appellants had a right, under their lease, to mine and operate for oil and gas, to lay pipe lines and build tanks, towers, stations and structures on the land for the purpose of producing, saving and taking care of oil and gas products. The appellee, according to the preponderance of the evidence, was not holding the lands without notice of 'the above rights of the appellants under their oil and gas lease. The appellee therefore had notice that appellants had the right to enter upon the lands in controversy to mine for oil and gas and to do whatever was necessary, as prescribed in their .lease, for the production, conservation and sale of those products. In doing so the appellants were not trespassers. As their rights were prior in time to the rights of the appellee under his deeds, wherever the rig’hts of the appellants were in conflict with the rig’hts of the appellee, appellants’ superior rights must prevail. The appellants therefore are not liable to the appellee in the operation of their oil and gas lease unless, in operating under the terms of their lease, they have negligently injured him. As said in Grimes v. Drilling Co., 216 S. W. 202, 204, “as appellant purchased the premises burdened with the terms of the lease, he is in no position to complain of conditions produced by appellees such as are usual and customary during the drilling of an oil well.” And, as is said in Coffindaffer v. Hope Natural Gas Co., 74 W. Va. 107, 81 S. E. 966, 967, “the principle is well established that injury necessarily inflicted in the exercise of a lawful right does not constitute liability. The injury hiust be the direct result of the commission of a wrong. If defendant did no wrong, it is not liable, notwithstanding the injury.” See also Thompson on Real Property, vol. 6, p. 282.
2. In the view we have of this record, we deem it unnecessary to set forth and discuss the testimony upon the issue of damag’es. We are convinced that the cause has been tried upon an entirely erroneous theory. For it appears, from the trial court’s decree settling the rights of the parties and referring the cause to a master for the ascertainment of damages, the court proceeded upon the theory that the rights of the appellee to the lands were prior and superior to the rights of the appellants because of the fact, as found by the court, that the appellee had recorded his conveyance prior to the recording of the perfected lease to the appellants; that the possession of the appellee under his prior recorded deeds gave him superior rights in the premises to the appellants. But, as we have seen, the law is to the contrary wherever the rights of the appellants and those of the appellee do not coexist but are in conflict with each other. It will be observed that the court found as follows: “That the plaintiff is entitled to recover damages from the defendants for the injuries sustained by the plaintiff to his property, and the question of the amount of such damages is referred to a special master for ascertainment, and Mr. John Harris is appointed as such special master, with instructions to ascertain such damages from the testimony already táken before the court and that to be taken by him. ’ ’ The master took testimony and made his report, bottomed upon the instructions of the court. This report upon the exceptions of the appellants thereto was disapproved and the cause was resubmitted to the master, and the court in its order found as follows: “The court further finds that the measure of damages in this cause is the difference in the reasonable cash market value of this property just before the alleged trespass and injury complained of and the reasonable cash market value of same immediately after such alleged trespass and injury complained of.” The master was directed to consider the whole of the testimony already taken in determining the amount of such damage, and, if necessary, to take further testimony. The master then made his report based upon the court’s additional instructions, to which exceptions were filed by both the appellants and.the appellee. These exceptions were all sustained, and the court again disapproved the report of the master and entered a decree for the appellee in the sum of $3,375.
There is some testimony in the record tending to prove that the appellants had negligently damaged the appellee’s property, but there is nothing in the decree to indicate that the damages were awarded the appellee upon this theory. In the absence of a finding by the trial court upon the correct theory of the law that the appellants were only liable in damages to the appellee for negligence in the operation of their lease, we deem it unnecessary, indeed improper, to set out.and discuss the testimony in this record ¡bearing upon the issue of damages. The trial court ruled correctly, under the undisputed testimony, in refusing to grant appellee’s prayer for injunction, but erred in declaring that the measure of the appellee’s damages is the difference in the reasonable cash market value of this property just before the alleged trespass and its cash market value after the alleged trespass and injury complained of, and in directing the master to ascertain the. amount of the damages from the proof in the record and such further testimony as he might consider necessary. . •
Now, the operation of appellants’ lease, even in the most prudent and careful manner, would necessarily diminish the cash market value of the property for residence purposes and many other uses to which the surface might be devoted. But certainly the appellants, in exercising their rights under their lease in a prudent and careful manner, would not be liable to appellee because such drilling operations diminished the cash value of the property for other purposes. In 6 Thompson on Real Property, p. 282, § 5136, the author has an interesting discussion on the subject of “Incidental Rights of Separate Own ers of Surface and. Minerals,” in the course of which, among other things, he says: “As against the surface owner, the owner of the minerals has a right, without any express words of grant for that purpose, to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his well or wells as may be necessary to operate his estate and to remove the product thereof. This is a right to be exercised with due regard to the rights of the owner of the surface, but, subject to this limitation, it is a right growing out of the contract of sale, the position of the stratum sold, and the impossibility of reaching it in any other manner. * * * It is a well settled principle that injury necessarily inflicted in the exercise of a lawful right does not create a liability. The injury must be the direct result of the commission of a wrong.” Although the court, in its final decree, rejected the report of the master predicated upon the testimony and the declaration of law of the court as to the measure of damages, nevertheless the testimony was taken and the cause heard by the master and by the court upon the testimony and erroneous declaration of law which the court announced to guide the master in the matter of taking proof and formulating his report. The parties are entitled to a decision of the chancellor upon the issues joined and proof taken on a correct theory of the law. See Greenlee v. Roland, 85 Ark. 101, 107 S. W. 193; Reeder v. Epps, 112 Ark. 562, 166 S. W. 747. Therefore, since the cause was heard and determined upon an erroneous theory of the law, the judgment must be reversed, and the cause will be remanded with directions to the trial court to hear the cause upon the competent and relevant testimony already in the record, and, if the parties so elect, to take further proof and to develop the cause according to the principles of law herein announced. It is so ordered. | [
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Humphreys, J.
Appellant instituted suit in the circuit court of Faulkner County against appellee to recover $381.61 upon a conditional sales contract for a Delco light plant, and $117.84 upon a similar sales contract for a pumping plant, alleged to have been executed by appellee to W. P. Galloway Company, Little Rock, Arkansas, in payment of the balance of the purchase money for said plants, and assigned to it (appellant) in due course, before maturity and for value, by the said W. P. Galloway Company. The substance of the title-retaining notes or conditional sales contracts was set out and incorporated in the complaint, and copies thereof viere attached as exhibits to the complaint; In order to impress a lien upon the property, a summons and writ were issued upon the complaint, directing the sheriff of said county to take the property into his possession and hold same subject to the order of court. The summons and writ were properly served, and the property was left by the sheriff with, appellee.
Appellee interposed the defense that the title-retaining notes or conditional sales contracts were not negotiable instruments purchased by appellant in due course before maturity for value, that the light plant and pump did not operate satisfactorily, and that, in reality, there-was no complete sale, because, at the time the machinery was left at his home, the salesman who'was representing "W. P. Galloway Company, and who delivered the outfits, signed an agreement, written on the stationery of W. P. Galloway Company, to the effect that, in the event that' appellee should become dissatisfied with the outfits, or if he should not be in shape to meet the payments, the outfits would be removed from his premises without • charge or cost to him, and that, in pursuance of this agreement, he notified the appellant, as well as W. P. Galloway Company, tliat the outfits were not satisfactory, and that the same should he removed.
The cause was submitted upon the pleadings and testimony, at the conclusion of which both appellant and appellee asked peremptory instructions, whereupon the court withdrew the case from the jury and réndered judgment in favor of appellee, from which appellant has duly prosecuted an appeal to this court.
Appellant introduced in evidence the original orders signed by appellee for the lighting and pumping plants which were accepted by W. P. Galloway Company several days before the title-retaining notes or conditional sales contracts sued upon were signed. It also introduced a statement, signed by appellee, relative to his financial condition, which was made at the time the orders were signed. It also introduced the title-retaining notes or conditional sales contracts made the basis of the suit. It also introduced its assistant secretary and sales manager as witnesses, who testified, in substance, that it purchased the two title-retaining notes or conditional sales contracts from W. P. Galloway Company before maturity, paying $315 in cash for the one covering the Delco light plant and $97 in cash for the one covering the pumping plant; that, in the acceptance of said instruments, the only information appellant had concerning them was the provisions contained in the instruments themselves, the contents of the two orders for said plants, and the financial statement submitted by appellee to W. P. Galloway Company when he signed the orders.
It also introduced John V. Tedford as a witness, who testified, in substance, that he was the secretary of W. P. Galloway Company; that the orders, notes or contracts presented to him were the ones W. P. Galloway Company assigned to appellant before maturity for a valuable consideration; that E. H. Puryear was the salesman for W. P. Galloway Company, and that the only authority he had was to solicit orders for the Delco light products on the company’s regular order blanks; that he had no authority to make any agreements not embraced in the order blanks; that, when he went out to collect from appellee, he claimed to have a contract written on the company’s letterhead and signed by Mr. Puryear, to the effect that he might return the plants if they did not give satisfaction, or in case he was not able to pay for them; that he refused to show the contract to him; that appellee said in the course of conversation that the lighting plant was working fine, but that the pump was not working right.
Appellee testified in his own behalf,- in substance, to the effect that both plants were left with him by Emmett H. Puryear, as the representative of W. P. Galloway Company, for purposes of demonstration only, under a written agreement that they should be removed without expense to him in case he should become dissatisfied with them, or was unable to meet the payments; that the instruments sued upon were represented to him by said agent as receipts to show the company where the plants had been left; that they were long, and that he signed them without reading them, relying upon the statement of the agent as to their contents; that the written contract to remove the plants if he became dissatisfied with them was written upon a letterhead of the W. P. Galloway Company; that he never paid anything on the plants, although the instruments recite that he did; that the plant did not prove satisfactory; that the lighting plant would not carry the light the agent said it would, and that the pump would not work at all; that he notified the company to come and get the plants.
Appellant first- contends for a reversal of the judgment because the undisputed evidence shows that it was an innocent purchaser for value before maturity of negotiable. instruments .madje the basis of the suit. In-support of its contention-íthat the instruments sued upon .were, negotiable,-appellant cites §.7767 of ..Crawford & Moses’ Digest, defining negotiable paper. The.yfifth requisite- of a negotiable instrument under that section is , that it must be payable- to, order or. bearer. The instru ments sued upon are lacking in that essential, and are not negotiable instruments. Since the instruments were not negotiable, but assignable only, appellant took them subject to all defects or infirmities available to the maker as a defense against the payee therein.
Appellant next contends for a reversal of the judgment because E. H. Puryear had no authority to enter into a written contract to the effect that the plants would be removed without expense to appellee in case they did not prove satisfactory. This contention is based upon the evidence of John V. Tedford, who testified that the authority of E. H. Puryear was restricted and limited to soliciting orders upon blanks of the company, subject to the approval of said company. Of course, if this was the extent of his actual or apparent authority, his subsequent written agreement would not be binding upon the company. The testimony introduced by appellee, however, tended to show that, in addition to soliciting the order, E. H. Puryear delivered and installed the plants and received the title-retaining notes or conditional' sales contracts. It also appears that the agreement to take the plants back, if not satisfactory to appellee, was written upon a letterhead of W. P. Galloway Company.
These facts and circumstances are sufficient to sustain the verdict and consequent judgment fixing liability upon appellant, under the doctrine of apparent authority. Both parties asked for an instructed verdict, whereupon the court took the case from the jury and rendered a judgment in favor of appellee. The judgment is therefore the same as the verdict of a jury, and must stand on appeal, if supported by substantial evidence under any view of the law. The law of apparent authority is as follows:
“Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably' prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.” 2 C. J. 573.
Where an agent, as in the instant case, took the order for pumping and lighting plants, delivered and supervised the installation of same, and took notes or contracts for the ■ purchase therefor, a reasonably prudent purchaser, in the exercise of diligence and discretion, would naturally suppose that the agent had authority to agree to take the plants back if they did not prove satisfactory.
No error appearing, the judgment is affirmed. | [
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"Wood, J.
The Arkansas Brick & Tile Company instituted this action in the municipal court of Helena, Arkansas, against Gr. W. Crabtree to recover the sum of $108.48 on an alleged check given by the defendant to the plaintiff. Judgment was obtained for the above amount in the municipal court. The defendant prayed and was granted an appeal to the circuit court. An order was entered in the circuit court reciting that the cause had been appealed from the municipal court of the city of Helena, Arkansas. The plaintiff moved to dismiss the appeal on the ground that the transcript “sent up from the municipal court does not show that an affidavit for an appeal was filed in the said court, as required by the first paragraph of § 6513 of Crawford & Moses’ Digest.”
The circuit court overruled the motion to dismiss, and the plaintiff duly excepted to the court’s ruling. The cause thereupon proceeded to a hearing, and judgment was rendered in favor of the defendant, from which the plaintiff duly prosecutes this appeal.
The law requires an affidavit for an appeal from a .justice court to the circuit court as a prerequisite to the circuit court’s jurisdiction to entertain an appeal, and, unless waived, is ground for dismissal. Section 6513, C. & M. Digest; Merrill v. Manees, 19 Ark. 647; Billingsley v. Adams, 102 Ark. 511. The appellant in limine objected to tbe jurisdiction of the circuit court, and therefore did not waive the affidavit for appeal. See Elder v. Crabtree, 59 Ark. 177; Lochridge Dry Goods Co. v. Daniels, 115 Ark. 423-429. This is likewise the law as to appeals from municipal courts. Act 87 of the Acts of 1915, § 9, p. 342-347.
We find no affidavit for appeal in this record. This is not a case where a defective affidavit was filed, but where there is no affidavit at all. The judgment is therefore reversed, and the cause is remanded, with directions to the trial court to require the municipal court to amend the transcript so as to show that an affidavit for appeal was made, if it can be done consistently with the truth, and that the cause be tried de novo. But, upon failure of the appellee to thus perfect his transcript, the same shall be dismissed by the trial court. See Merrill v. Manees, supra, at page 649. | [
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Hart, J.,
(after stating the facts). Section 8, article 12, of our Constitution provides that no private corporation shall issue stock or bonds except for money or property actually received, or labor done. It is con ceded that, in the construction of this clause of our Constitution, this court has held that a note given for the purchase price of corporate stock is neither money nor property actually received, within the meaning of the Constitution, and the note itself is void. Bank of Commerce v. Goolsby, 129 Ark. 116, 196 S. W. 803.
In that case the court said: “When notes are taken in exchange for stock, it is a palpable violation of the constitutional provision, because notes are merely evidences of indebtedness, and such a transaction shows upon its face that the stock has not been paid for. The .design of the framers of the Constitution was that stock should not be issued and sold except for its value in money or property actually received, or labor done. A note is not property, in the sense of the Constitution, because it only indicates that the stock has not, in fact, been paid for, and, where the notes are worthless, the stock has been exchanged* for nothing. Notes are not money and not bankable paper, but mere dioses in action, and it in no sense meets the requirements of the above provision of the Constitution to accept a note in exchange for stock.”
The language here used is too plain to be .misunderstood, and this is conceded by counsel for the plaintiff. He earnestly insists, however, that the substance of this transaction is that Measel first borrowed some money from the bank and subsequent^ used it in the purchase of its capital stock. This contention, however, is contrary to the evidence. Both Measel and Franklin, who was cashier of the bank at the time, testified that the gist óf the transaction was that Measel executed his note to the bank for shares of its capital stock. The purpose of the constitutional provision was to protect creditors of the corporation, as well as stockholders who had purchased stock in the corporation and had actually paid money or property therefor. The words, “actually received,” mean the receipt of something tangible and which could be used in the payment of the debts of the corporation. If the bank could lend money and the same money could be immediately used in payment of the stock of the bank, it is plain that the clause of the Constitution under consideration would serve no useful purpose. The substance, and not the form, of the transaction should be looked to. A preponderance of the evidence shows that the defendant never borrowed a dollar from the bank. The original note simply represents the amount of money which he agreed to pay the bank for stock which it had issued to him. To call it by another name could not in the least change the real character of the transaction. If the corporation could not take the note of a subscriber in payment of its own capital stock, it is plain that it could not lend money to a subscriber to its own capital stock in payment of it. This would be a palpable evasion of the Constitution. There is no more a payment of money where the corporation lends the money to the subscriber and then receives it back in payment of the stock than where it receives a note originally in payment of a stock subscription. Watts v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886.
Again, it is insisted that the note sued on, being a renewal of the original note, takes the case out of the inhibition of the Constitution. We cannot agree with this contention. The same defense which the maker of the note might have made to an action by the holder of the note originally given by him may be made by him in this action on the note given in renewal of the original note. Both notes were given for the same illegal consideration. The renewal note is not a payment of the original note, but is merely an extension of the time of payment of such prior note¡ In Hollan v. American Bank of Commerce & Trust Co., 159 Ark. 141, 252 S. W. 359, it was held that a contract is itself usurious which is issued in renewal of the usurious contract. Again, in City National Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648, it was held that contracts made in violation of law are not rendered valid by renewal or by subsequent promises to pay them. If the law were otherwise, the constitutional provision under consideration would have no practical use. A subscriber of capital stock of a corporation might execute a short-term note in payment of it, and, by executing a renewal contract when the original note became due, could validate the contract which had been declared illegal and void by the Constitution itself.
Finally, it is insisted that the court erred in taxing the cost in the case. The chancellor taxed two-thirds of the cost to the plaintiff and one-third to the defendant. It is well settled that the taxation of the costs is within the discretion of the chancellor. Mt. Nebo Anthracite Coal Co. v. Martin, 86 Ark. 608, 112 S. W. 882, and Hayes v. Bankers’ & Planters’ Life Assn. of Ft. Smith, 164 Ark. 202, 261 43. W. 296. In the case at bar, the principal sued on was $900, and the amount received by the plaintiff was only $78.38. It is evident that the plaintiff has no cause of complaint as to the taxation of costs.
The result of our views is that the decree of the chancery court was correct, and it will therefore be affirmed. | [
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Wood, J.
The appellee instituted this action against the appellant for damages for personal injuries. The facts, stated most strongly in appellee’s favor, are substantially as follows: Appellee was an employee of the appellant in its shops at Chaffee, Missouri, on February 11, 1925. He had been working inside the shops or roundhouse about four or -five days before his injury. Appellee was working under Fred Williams, a mechanic, as his helper. The locomotive on which he was working at the time of his injury had been in the roundhouse sev eral days for repairs. These repairs consisted of work on the engine, and also repairs on the tank. To make the repairs on the tank it was necessary to nnconple it from the engine and move it away from same. Williams was testing the superheater of the engine, and, not getting the expected pressure, he sent the appellee into the cab to see if the throttle was open. There are three routes one may take from the front end of a locomotive to the cab: one along the running-board to the engineer’s front window, one along the running-board to the fireman’s window, and the third along the ground to the rear of the engine and thence into the cab. If the engine and tank are coupled together, one entering the cab uses the steps on the tank. If the tank is separated from the engine, as it was in this case, one has to climb into the cab by means of iron hand-hold and rods that extend down the side of the cab. The appellee was on the running-board that runs along the side of the boiler. He went to the door or window of the cab on the right side of the engine, and it was locked from the inside. He then descended from the engine to the ground, and .went back to the cab and caught hold of the iron rods that extended down the side of the cab and pulled himself up into the cab. The appellee had been on engines before that time, two or three times, but had never been on an engine from which the tender was disconnected. They had been working on the engine about thirty minutes at the time of the injury. The appellee had performed this work that he was called upon to do once or twice before, and in the same manner that he performed it at the time he was injured. In order to test the superheater, the throttle to the engine must be opened. The throttle is located in the cab of the engine, along*side the engineer’s seat. It is an appliance which the engineer uses to apply the steam when he is operating the engine. The engineer works it with his left hand while seated in his seat. It is easily operated. The throttle was about as high from the lower deck of the cab as a man’s head. There is a piece of steel, called an apron, attached to the engine by hinges, which covers the space between the engine and the tank when the engine and tank are coupled together. When the tank is separated from the engine, the apron drops down in a vertical position. When the tank and engine are coupled together, lthe loose side of the apron rests on the floor of the tank, which allows it to move when the engine and tank are in motion. When it is necessary to couple the tank to the engine, the apron must be elevated so as to allow the floor of the tank to run under it. The apron makes the floor between the engine and tank continuous when they are connected. The usual and proper method of elevating the apron so that the tank may run under it when coupled to the engine was to support the apron with a square oak stick about 22 ■inches long, having a blunt end and a sharpened end, the blunt end resting on an iron projecting from the engine and the sharpened end fitting into one of the indentations on the under side of the apron. The apron, at the time of the injury, was elevated by this prop in the usual and proper manner. The space between the inner edge of the apron and the fire-box of the engine was twenty-four inches' in width. When the appellee reached the cab on the engineer’s side he found the throttle standing nearly open and extending back over the engineer’s seat. The appellee reached up and took hold of the throttle to see if it was entirely open, and, in doing so, placed himself in a pulling position, putting his left foot back on the apron and his right foot up on a step’ leading to the engineer’s seat. The apron gave way, and precipitated the appellee into the pit, causing the injuries of which he here complains. The mechanic, Fred Williams, under whom the appellee was working, had been upon the cafe a few minutes before the injury, and had pulled open the throttle himself. He went upon the cab from the same point the appellee went upon it. He noticed that the apron had been propped up for thirty minutes or an hour. He didn’t notice when it was first propped up. The apron had been propped up for the purpose of connecting the coal tender. To raise the apron required only about a min ute. It is done merely by raising the apron with the left hand and placing the stick under it, as above indicated. When appellee came from the front of the engine to the cab, he was facing the tender or tank, some thirty or forty feet away from the engine. No one was then on the tender or tank, and it was not being brought up to the engine. Appellee did not climb into the engineer’s seat before he moved the throttle. In moving the throttle it was not necessary for the appellee to place either foot on the apron.
The appellee alleged that it was his custom, in the performance of his duty, and a necessary part of his duty, to step back with one foot on the apron which connected the cab or engine with the tender or tank attached to the cab or engine; that, at this particular time, he adopted the usual and customary course in performing his duty; that another one of appellant’s employees had disconnected the tender or tank from the cab or engine, and such employee, in the usual course of his employment, had placed a stick under the apron which is used to connect the engine and tender, and left the apron temporarily propped in a horizontal position, easily thrown down; that the act of raising said apron and propping it took only a very few seconds of time; that the fellow employee propped up the apron, and negligently and carelessly left it so propped for a long and unnecessary period of time; that the appellee did not know that the apron was temporarily propped, and believed that it was in its usual safe condition; that, in performing his duty as an employee of the appellant, in closing the throttle he braced himself and placed his left foot on said apron, and, in doing so, the apron fell, precipitating the appellee into the pit, four or five feet deep. At the time of his injury appellee was 29 years old.
The appellant, in its answer, denied specifically the above allegations of negligence, and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee, and also set up that the appellee had voluntarily executed to the appellant a release of all liability, if any, for the injury which he had sustained. In the view we have taken it becomes unnecessary to set forth this alleged release and the testimony concerning its execution. It also becomes unnecessary, in view of the conclusion reached by us, to set out the allegations of the pleadings and the testimony concerning the nature of the appellee’s injuries and the prayers for instructions granted and refused on the issue of the release. At the conclusion of the testimony the appellant moved the court to direct the jury to return a verdict in its favor, which instruction the court refused, to which ruling the appellant duly excepted. From our conclusion on the undisputed facts of the case, it becomes unnecessary to set out the prayers for instructions granted and refused on the issues of negligence, contributory negligence, and assumed risk.
The jury returned a verdict in favor of the appellee in the sum of $2,500. Judgment was rendered in his favor for that sum, from which is this appeal.
1. The court erred in refusing appellant’s prayer for an instruction directing the jury to return a verdict in its favor. The undisputed testimony proves that the appellant was not negligent in having the apron to the engine propped up in the manner disclosed by such testimony. It is shown by the uncontroverted testimony that, when the engine and tender have been uncoupled and separated and it becomes necessary to again couple them, the apron attached to the engine must he elevated and propped up so as to allow the tender or tank to slip under the same and couple to the engine. The apron, at the time of the appellee’s injury, was elevated in order to enable the tender to be coupled thereto, and it was .propped up and supported by a stick in the usual and proper manner. There was therefore no negligence on the part of the appellant in the method used by it in raising the supporting apron. The method used was the proper and usual one. Indeed, the appellee does not allege that the method used by the appellant in elevating and supporting the apron was negligent. The only neg ligence alleged is that the employee of the appellant left the apron propped up for a long and unnecessary period of time. But this was not negligence on the part of the appellant, for the reason that the appellant owed appellee no duty to leave the apron down or in its vertical position while the engine and tank were uncoupled. While the undisputed testimony shows that it was only necessary to elevate the apron in order to allow the tank to slip under the same to make the coupling, and that this could be done in a minute of time, nevertheless it was not negligence on the part of the appellant to elevate the apron as soon as the engine and tank were uncoupled and to prop the same in the usual and proper manner and to leave the same in that position in order that the tank and engine might be recoupled when it became necessary. The leaving of the apron elevated in this manner, while the engine and tank were undergoing repairs, was not an act of negligence on the part of the appellant. It was the duty of the appellant to exercise ordinary care to furnish the appellee a safe place to work. The leaving of ' the apron elevated in the manner indicated did not render the appellee’s place of work, in opening the throttle for the purpose of testing the superheater, unsafe. The apron was designed as a walkway and covering for the coupling or space over the coupling between the tank and the engine. It was not designed as a place whereon the appellee and the mechanic working about the engine were to stand or walk. There is no testimony in the record tending to prove that this apron had ever been used, with the knowledge of appellant, by any of the employees of the appellant as a place on which to stand or to place their feet when it became necessary to open.the throttle or to do any repair work about the engine. The undisputed evidence shows that it was unnecessary for the appellee to place his foot upon the apron while he was opening or attempting to open the throttle. The place for him to stand or for him to occupy while opening the throttle, which was furnished by the appellant for that purpose, was perfectly safe. The appellee’s own testi mony shows that the space between the fire-box and the point where the apron was connected with the cab was about two feet, and his own testimony, and the other undisputed testimony in the record, shows that, in opening or operating the throttle, it was wholly unnecessary for the appellee to place his foot and rest his weight upon the apron. The apron was not elevated and left in the position for that purpose, and the place for appellee to do his work in the proper manner was perfectly safe. If the appellee, in the exercise of ordinary care for his own protection in the performance of his duty, had occupied the place and used the instrumentalities the master had furnished in the manner they were intended to be used, he could not have been injured. The burden was upon the appellee to show that the appellant was guilty of actionable negligence. This he has wholly failed to do.
The case is ruled by the doctrine announced by the Supreme Court of Missouri in Manche v. St. Louis Basket & Box Co., 262 S. W. 1021, as follows: “It is sufficient that defendant was guilty of no actionable negligence, because plaintiff made use of the platform for a purpose for which it was not furnished or intended by defendant and for a purpose not shown to have been customarily made of it with knowledge on the part of defendant.” See also Grattis v. K. C. P. & G. Ry. Co., 153 Mo. 380, 55 S. W. 108, where it is said: “The. master cannot be adjudged guilty of a failure of duty where he furnishes a servant machinery and appliances which are reasonably safe when used in the manner they -are intended to be used, but which may become dangerous if their use is perverted by the servant.” See also Royal v. White Oil Corporation, 160 Ark. 467, 254 S. W. 819.
The undisputed testimony, as we view this record, shows that there was no actionable negligence on the part of the appellant, because, as we have stated, the appellant owed the appellee no duty to keep the apron in a vertical position while the engine and tender were separated, and owed the appellee no duty not to elevate such, apron and to keep it propped in the usual and proper manner for the recoupling of the engine and tender after same had been separated. Appellee’s own testimony and the other undisputed testimony in this record proves conclusively that the proximate cause of appellee’s injury was his own negligence in placing his foot and resting his weight upon the apron when the cars were uncoupled.
2. But if we be mistaken, and if it could be said that there is testimony to justify the inference that appellant was guilty of negligence in not leaving the apron down, in a vertical position, until such time as was necessary to elevate and prop the same for the purpose of immediate recoupling of the tender and engine, nevertheless the appellee, in such case, is not entitled to recover,because the undisputed evidence shows that he was guilty of contributory negligence. As the injury occurred in Missouri, the law of that State governs as to the negligence of the master and the contributory negligence of the servant. St. Louis-San Francisco Ry. Co. v. Bates, 163 Ark. 335, 258 S. W. 992.
In Mathis v. Stockyards Co., 185 Mo. 434, 447, it is said: “But, if the appliance is obviously so dangerous that it cannot 'be safely used even with care or caution, or, as it is sometimes said, if the danger of using it is patent or such as to threaten immediate injury, then the servant is guilty of contributory negligence if he uses it, and the master is not liable, notwithstanding his prior failure of duty. Mere knowledge of the danger in working with the defective instrumentality will not defeat the action unless the danger was so glaring as to threaten immediate injury.”
Now, the undisputed testimony shows that the. mechanic and his helper, the appellee, had been working about the engine for thirty minutes. The apron had been elevated and propped up between a half hour and an hour in the manner indicated by the testimony and the photographs adduced in evidence. While the appellee testified that the position of the apron was the same, as near as he could tell, as when he operated it before, nevertheless the undisputed testimony shows that the tank was disconnected from the engine, and the appellee knew this fact. In the exercise of ordinary care for his own protection in the performance of his duties about the engine, he was bound to know that the apron was not supported by the tank which made it secure as a floor on which to walk, but'that it was only supported by a stick in the center of the apron. The apron was six feet long and two feet wide. The supporting stick was blunt at one end and sharpened at the other, and was loose at both ends, resting temporarily on the iron of the engine at the blunt end and supporting the apron at the sharpened end. The danger or risk of stepping with one foot and resting ■one’s weight, wholly or partially, upon the apron, thus so insecurely supported, was so obvious and' imminent that any prudent employee, in the exercise of ordinary care for his own protection in the performance of his duties, was bound in law to have known and appreciated it. The risk was so glaring that no prudent man would be willing to subject himself to the hazard of doing the work in the manner it was being done by the appellee. See St. L. I. M. & S. Ry. Co. v. Holman, 90 Ark. 555-567.-Such being the fact, under the law of Missouri, as above mentioned, he was .guilty of contributory negligence which bars his recovery.
After carefully considering -the testimony in this record, it occurs to us that the above are the conclusions, and the only conclusions, from the testimony to which all reasonable minds must come. Therefore it is our duty to declare as a matter of law that the appellant is not liable. The judgment is therefore reversed, and, inasmuch as it appears that the cause ha-s been fully developed, the same will be dismissed. It is so ordered. | [
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Hart, J.,
(after stating the facts). Regardless of whether the American' Insurance Union owed O. G. Wilson $1,000, the face of his benefit certificate in the Home Protective Association, or whether it only owed him $363.35, as claimed by the defendant under the rule announced in Knight v. American Insurance Union, ante, p. 303, the judgment in the case at bar was wrong, because the defendant tendered the plaintiff the sum of $363.35 in full payment of the amount due under the benefit certificate and the plaintiff accepted the cheek and cashed it with full knowledge of the condition attached to it. The law is well settled in this State that, where a debtor sends a check to his creditor to apply upon a disputed claim, bearing on its face a statement that it is a payment in full, the reception and collection of the check, by the creditor renders it an accord and satisfaction of the debt. Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394, 27 L. R. A. N. S. 439, and Cunningham Co. v. Rauch-Darragh Grain Co., 98 Ark. 269, 135 S. W. 831.
In these cases, as in the case at bar, it was urged by counsel for the plaintiffs that, inasmuch as the plaintiffs immediately wrote to the defendant that the check was accepted only in part payment of the debt, this was conclusive evidence that the. plaintiffs did not agree to the accord and satisfaction of the demand.
In the first case cited, in answer to this contention, the court said: “But, if the offer of payment was made upon condition and the plaintiffs so understood it, there was but one of two course open to them, either to decline the offer and return the check, or to accept it with the condition attached. The moment the plaintiffs indorsed the check and collected it, knowing that it was offered only-up on a condition, they thereby agreed to the condition, and were estopped from denying such agreement. It was then that the minds of the parties met, and the contract of accord and satisfaction was complete in law.”
Again, in the second case cited, it was held that, where a'debtor sends a check to his creditor, bearing upon its face a statement that it is a payment in full, the reception and collection of the check by the creditor renders it an accord and satisfaction of the debt; and it is immaterial that the creditor wrote the debtor stating that the check was not accepted as a settlement, where no offer was made to return the check if desired by the debtor.
The reason is that the plaintiff could only accept the money upon the terms offered, which was in full settlement of his demand. He could not accept the benefit and refuse the condition. If the plaintiff was not satisfied with the sum paid him, good faith required him to refuse to accept the money, to return it to the defendant, and to bring suit for the amount he claimed to be due him. By accepting the smaller sum, which was tendered upon condition that he receive it in full payment of his demand, the plaintiff is estopped from denying the agreement.
The plaintiff in the case at bar was fully informed in the letter which accompanied the check of the condition imposed upon him and the grounds upon which the defendant imposed it. This is not a case of a liquidated claim which cannot be discharged by payment of less than it face value. The term ‘ ‘ liquidated, ” when used in connection with the subject of accord and satisfaction, has reference to a claim which a debtor does not dispute. Schnell v. Perlman, 238 N. Y. 362, 144 N. E. 641, 34 A. L. R. 1023; and Chicago, Milwaukee, etc. Rd. Co. v. Clark, 178 U. S. 353, 20 S. Ct. 924.
Later cases from this court recognizing the rule are Pekin Cooperage Co. v. Gibbs, 114 Ark. 558, 170 S. W. 574, and Collier Commission Co. v. Wright, 165 Ark. 338, 264 S. W. 942, and cases cited.
The plaintiff, having accepted the check and cashed it, must be deemed also to have accepted the condition attached to it, which was that it was in full settlement of the amount due by the defendant to the plaintiff under the benefit certificate. The undisputed evidence shows that there was a tona fide dispute as to the amount due under the benefit certificate, and the payment of a smaller sum in satisfaction of the entire claim was a sufficient consideration for the release of the balance of the amount claimed.
The result of our views is that the judgment must be reversed, and, inasmuch as the plaintiff has cashed the check and used the proceeds, his cause of action will be dismissed here. It is so ordered. | [
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Smith, J.
Appellant alleged and offered testimony tending to show that, on October '26, 1923, while immediately engaged in the discharge of his duties as an employee of the Gulf Refining Company of Louisiana, hereinafter referred to as the company, he was being driven in an automobile belonging to the company by another employee of the company, who negligently drove the automobile across the tracks of the Missouri Pacific Railroad in front of an approaching train, which struck the automobile and very seriously injured appellant. He brought this suit to recover damages to compensate, in part, this injury.
In its answer the company denied liability, and, by way of affirmative defense, alleged that appellant had first sued the railroad company, and had settled that suit by accepting $1,500 from the railroad company, and, as an evidence thereof, had executed the following release:
“In full release, discharge and satisfaction for all damages and personal injuries (including both known and unknown injuries and future developments thereof), growing out of or in any way resulting from the following described accident, to-wit: Account of automobile being struck at Norphlet, Arkansas, October 26, 1923, in which P. M. Coleman was riding, while a traveler, by passenger train 824, engine 2315.
“It is also hereby stipulated and agreed by the plaintiff, P. M. Coleman, and his attorneys, Patterson & Rector, that the above entitled case now pending in the Union County Circuit Court, Arkansas, be dismissed with prejudice on the payment of costs by the defendant, the Missouri Pacific Railway Company. The within settlement also includes every claim of every class or character, past, present and future, arising from or growing out of the above mentioned accident; consideration $1,500.
“Received of Missouri Pacific Railroad Company one thousand five hundred no-100 dollars in full payment for the above account, and in full release, discharge and satisfaction as written and [or printed above], which release I have read (or had read to me), the terms of which I understand and to which I agree.
“In testimony whereof I have hereunto set my hand this 22d day of July., 1924. ’ ’..
After appellant’s injury he was confined in a hospital for some weeks, and his bill there, including the services of the surgeons who attended him, amounted to over a thousand dollars. This bill was paid by the company.
Appellant testified that one King, who was the claim agent of the company, advised him’to consult the law firm of Patterson & Rector in regard to bringing suit agajnst the railroad company, and, upon the advice of King, he retained these attorneys to represent him.
At that time Patterson & Rector were the regularly retained attorneys of the Gulf Company, a fact then unknown to appellant. A written contract of employ ment was executed between appellant and his attorneys, ánd inserted therein was the following* clause:
“We further authorize you to pay to the Gulf Refining* Company of Louisiana, out of any funds recovered from the above named defendant, an amount, sufficient to reimburse said Gulf Refining* Company of Louisiana, for doctors’, hospital and dentists’ bills and other expenses incurred by us as a result of said injuries and paid by the said Gulf Refining Company of Louisiana. ’ ’
Appellant testified that he did not authorize this to he done, but, as he had been advised by his attorneys that the Gulf company w;as not liable to him for his hospital bill, he made no objection to this clause, and signed the contract with knowledge that it had been inserted in his contract with the attorneys. It appears that, after receiving the sum of $1,500 from the railroad company, and after paying his* attorneys the fee agreed upon, the claim of the company against appellant for hospital fees was settled for the sum of $575, which was paid the company out of the proceeds of the settlement with the railroad.
Appellant detailed, as a vdtness- in the trial below, the manner in which he was injured, and it is not questioned that his testimony made a case for the jury as to the liability of the Gulf company, except for the release to the railroad company. He further testified that he had been led to believe by his attorneys that the defendant Gulf company was not responsible for his hospital fees, and the attorneys did not at any time tell him that he had a cause of action against that company.
Pursuant to their contract, the attorneys representing appellant brought suit against the railroad company, and this suit was later compromised by the payment of the sum of $1,500. Appellant admitted signing the release set out above, and also admitted that, when it was executed, he had learned that his attorneys were also the attorneys for the Gulf company. He admitted that he knew the purpose and effect of the release executed to the railroad company was to acquit the railroad company of any further liability to him on account of his injury, but he offered to testify that, in executing this release, it was not his intention or purpose to extinguish his claim against the Gulf company, as he did not feel that the sum paid him by the railroad company fully compensated him for his injury. An objection to his testimony was sustained, and this ruling is assigned as error.
Appellant admits that, if the railroad company and the Gulf company had been joint tort-fea,sors in injuring him, the release would bar this action; but he insists that, as there was no purpose on the part of either to injure him, their liability to him .is several, and not joint, although he had the right to sue them together, and that the court should therefore have permitted him to show that he had not received full and complete compensation for his injury and he should have been allowed to proceed with his áction against the Gulf company to obtain full and adequate redress.
It was the view of the court below that the release' barred the present action, and, upon that theory, a verdiet was directed in favor of the Gulf company at the conclusion of the introduction of the testimony in appellant’s behalf.
We concur in the view of the court below. Where one is injured by the concurring negligence of two or more persons, he may sue them all jointly, or he may sue any one alone, but he can have only one satisfaction for his injury.
In the case of Spears & Purifoy v. McKinnon, 168 Ark. 357, the plaintiff was injured through the joint negligence of two surgeons, and he recovered a judgment for damages. The verdict in the case was for the total sum of $7,000, but it was recited in this verdict that one-half thereof, or $3,500, should be recovered against each of the defendants. In modifying the judgment pronounced thereon so that the total sum recovered should be limited to $3,500, we said that the defendants were joint tortfeasors and liable as such, if at all, but, as there was only one tort and one damage, there conld be only one recovery, and, as the jury had fixed the liability of each tort-feasor at $3,500, there could be no greater recovery against either of them, or both of them, than that sum. The theory of the case was that one could have only a single compensation for his injury.
In the case of St. Louis Southwestern Ry. Co. and St. Louis, Iron Mountain & Southern Ry. Co. v. Kendall, 114 Ark. 224, the plaintiff was injured through the concurring negligence of the employees of both railroads, and both were sued in a single action. It was there said: “■Both of the railroad ..companies were negligent, and, but for the negligence of each, the collision would not have occurred, and the concurring negligence of both produced the injury for which both are liable. Cyc. lays down the following general rule: * * Where an injury is sustained by reason of the joint or concurrent negligence of two railroad companies, * * * plaintiff may sue both jointly, and it is not necessary that there should be a breach of a.joint duty or any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of the defendants owed the plaintiff a higher degree of care than the other.’ 33 Cyc. 726.”
Appellant’s argument is that the Gulf company and the railroad company were not joint tort-feasors, for the reason that they were not acting pursuant to a common wrongful purpose, but that, on the contrary, neither intended to injure him, and' he would not have been injured but for the concurring negligence of the two companies. The driver of the automobile in which appellant was riding negligently drove upon the track of the railroad, and the employees of the railroad in charge of the engine failed to maintain a lookout. Appellant insists therefore that, not having obtained a full satisfaction from the railroad company, he may require the Gulf company to complete his compensation.
The fallacy of this argument is that appellant received only one injury, and is entitled to but one compensation. He might have obtained this by suing either or both of the tort-feasors, but, when he accepts what is intended as full satisfaction of the liability of one, the other is released, the applicable legal principle being that one is entitled to only a single satisfaction.
In 38 Cyc., pages 490 and 491, chapter “Torts,” upon the subject of “Electing the Wrongdoer” (to sue), under the subhead of “Joint and Several Liability,” it is said: “Separate actions may be brought either simultaneously or successively, judgment may be recovered in each, and plaintiff may elect which judgment he will enforce. But the satisfaction'of one of the judgments will operate as a satisfaction of all.”
In the case of State of Maryland, to the use of Cox, v. Maryland Electric Railway Co., 126 Md. 300, 95 A. 43, L. R. A. 1917A, page 270, a syllabus reads as follows: “ A settlement of an action against one person for an injury causing death will bar an action against another for the same death, although the defendants in the respective actions were not joint tort-feasors.”
To this case there is an extensive annotator’s note on the “release of one of two or more persons severally, but not jointly, liable for a tort, as affecting liability of others,” and upon this subject the annotator says: “The majority of the cases warrants the following conclusion: A release to one liable with another or others for the same injury releases the other or others where each of the tort-feasors is liable for the entire damages suffered by the injured party; it is immaterial whether they are jointly liable. But, where a person liable with others for an injury is liable only for the part contributed by him, a release to him does not release’the others. The distinction is 'between a divisible and an indivisible cause of action. In the latter case, i. e., where a person liable with others for an injury is liable only for the part contributed by him, it may be shown, as a matter of fact, that the release to the first of the tort-feasors was given upon a consideration which was intended to compensate the injured party for the entire injury; upon such a showing- the release does operate as a release of the others, since the injured party has been compensated for the entire injury, and it is the theory of the law to allow • only one recovery for the same injury.”
In the case of McCoy v. L. & N. R. Co. 146 Ala. 333, 40 So. 160, the plaintiff’s intestate was killed in a collision between a railroad locomotive and a streetcar. Plaintiff sued the streetcar company and recovered judgment for $1,500, which was paid, and she thereafter brought suit against the railroad company. In holding that the satisfaction of the judgment against the streetcar company was a bar to the suit against the railroad company, the Supreme Court of Alabama said: “Reading the complaint and the plea together, it clearly appears that, whether there was -the ligament of common purpose binding the acts of the two companies together or not, their acts of negligence united in causing- the single injury to the plaintiff. A rational rule deduced from the authorities supra would seem to be that, ‘where one has received an injury at the hands of two or more persons acting in concert, or acting- independently of each other, if their acts unite in causing’ a single injury, all of the wrongdoers are liable for damages occasioned by the injury. It is also manifest that this single injury, in itself or of itself indivisible, constitutes an indivisible cause of action. This is true, notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment, without satisfaction, could not be set up in defense of either tort-feasor. So, in the case at bar, two companies were tort-feasors, and, whether jointly liable or not, the plaintiff had a cause of action against them separately; but she had only one cause of action, and it was an indivisible one. Upon this cause of action she could have maintained a suit against each of the tort-feasors simultaneously, and the mere pendency of suit, or judgment against one without satisfaction, w'ould have been no answer to the other. But, when she successfully prosecuted her single cause of action against one of the tort-feasors and received satisfaction in full of the judgment, that was satisfaction for the entire injury for the single cause of action, and, after satisfaction, although it moved from only one of the tortfeasors, no foundation remained for a suit against any one. Her cause of action was extinguished. Furthermore, the presumption would be that, in the suit in which the judgment was obtained and satisfaction accepted, full damages were accorded. ’ ’
It was there further said: “In the case of Cleveland v. City of Bangor, 87 Me. 259, 32 Atl. 892, 47 Am. St. Rep. 326, with respect of satisfaction by a tort-feasor not jointly liable with another, it was said: ‘But, with regard to the point under consideration, no sound reason has been given, and it is believed none can be assigned, for such a distinction between the case of wrongdoers who are jointly and severally liable and of those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, and full satisfaction from one will operate as a discharge of the other.’ Brown v. Cambridge, 3 Allen 474; Abb v. N. P. R. Co. (Wash.) 68 Pac. 954, 58 L. R. A. 293, 92 Am. St. Re. 864. In Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. ed. 129, Justice Miller, for the court, said: ‘But, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover ag’ain for the same damages.’ ”
We have quoted extensively from this case because the reasoning thereof is directly applicable here.
Upon the question _that the court should have admitted testimony tending to show that the release had been obtained by fraud, in that appellant had not been advised by his attorneys, who were also the attorneys for the Gulf company, that he had* a cause of action against the Gulf company, and had not been advised by them that a settlement in favor of one would release the other, and that he did not intend the release to the railroad company to operate to release the Gulf company, it suffices to say that, if this testimony were competent, it would profit appellant nothing. This is true because he does not question the binding effect of the release so far as the railroad company was concerned. He knew, when he executed this release, that his attorneys also represented the Gulf company. He knew this release was executed for the purpose of discharging the railroad company from any and all liability to him, and that such was its effect. There is no contention that this writing was in the nature of a covenant not to sue, which we have held does not amount to a release. Hadley v. Bryan, 70 Ark. 197, 66 S. W. 921; Pettigrew Machine Co. v. Harmon, 45 Ark. 290; Dardanelle & R. R. R. Co. v. Brigham, 98 Ark. 169, 135 S. W. 869; Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257.
Appellant had sued the railroad company, and, in this action, he had the right to demand full satisfaction for his injury. He accepted a sum which, he admits, was paid him in full satisfaction of his demand against the railroad company, and this demand is the identical one which he here seeks to enforce. There is no contention that any fraud was practiced upon him by the railroad company, and he will not therefore be heard to say that there was a mental reservation on his part that the release should not have the effect which the law imputes to it. Kansas City Sou. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123.
• It follows therefore that the court was correct in holding that the release to the railroad company barred this suit and in directing a verdict in appellee’s favor •upon that theory, and that judgment will therefore be affirmed. | [
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McCulloch, C. J.
Appellees are directors of the special school district designated as Higginson Special ■School District of .White County, Arkansas, which was created by act No. 88 of the legislative session of the year 1907. Appellants are owners of property in the district and patrons of the school, one of them being a director. Appellees, as directors of the district, are about to issue and sell negotiable 'bonds in the sum of $20,000, and this is an action instituted by appellants to restrain the issuance of the bonds. A temporary injunction was issued at the commencement of this action, but, on final hearing, the complaint of' appellants was dismissed for want of equity.
It appears from the pleadings and from the proof in the case, which was brought into the record partly by stipulation, that there are outstanding bonds of the district in the sum of $15,000, issued in the year 1917 for the purpose of erecting a school building, and there is also the sum of $900 unpaid interest on those bonds. It is conceded that the new issue of bonds is to be for the purpose of refunding the former issue, and it is alleged in the complaint of appellants that the remainder of the sum to be raised by the new bond issue is to be used as a maintenance fund for the operation of the schools in the district. There is a denial in the answer that any of the fund is to be used for the purpose of operating schools, and an allegation that the excess fund is to be used for the purpose of repairing the buildings. There are no specifications in detail as to what the repairs consist of or to what extent the buildings are out of repair.
There was an attack on the regularity of the proceedings looking to the issuance of the bonds, it being alleged that the resolution of the 'board of directors authorizing the bonds was not adopted at a regular meeting of the board, or at any special meeting of which the directors were notified. These questions were tried out on conflicting testimony, and it is unnecessary to discuss them — in fact, this attack seems to be abandoned here, and it is practically conceded that the only point sought to be raised here is that the bond issue is for an excessive amount and cannot be allowed over and above the amount necessary to retire the old bonds and interest.
We are of the opinion that this attack of appellants is well founded, and that there is no authority under the law to effect a bond issue in a greater amount than that stated above. The statute, which both parties concede is the governing one, is act 252 of the Acts of 1925, page 742, and reads in part as follows':
“The board of directors of any special, rural special or consolidated school district in the State of Arkansas shall have the power, and they are hereby authorized, to borrow money for the purpose of purchasing a school site or sites and building, erecting, constructing, repairing and equipping a school building, and for other necessary purposes, including the issuance and sale of bonds for the purpose of extending the maturity of any indebtedness evidenced by outstanding bonds and interest coupons, and funding such outstanding bonds and interest coupons * * V’
Counsel for appellees endeavor to sustain the bond issue under the authority conferred in the statute, for “repairing” school buildings, but our conclusion is that, under proper interpretation of this word, as used in the statute, and under the facts of this case, there is no justification for issuing bonds for that purpose. We interpret the word “repairing” not to include ordinary repairs, which merely constitute maintenance, but it refers to substantial and extraordinary repáirs arising from some emergency, such as damage by fire or storm. It does not include necessary repairs on account of ordinary depreciation. Counsel for appellees also rely on the use, in the statute, of the words “and for other necessary purposes,” and they contend that these words should not be construed to relate to things of a like kind as those enumerated in the preceding words of the statute, for the reason that the preceding enumerated words embrace all the things capable of being- classed as of that kind, and that the words “other necessary purposes” should be construed to relate to things of a different kind than those enumerated. Mason v. Inter-City Terminal Railway Co., 158 Ark. 542, 251 S. W. 10.
We cannot say, however, as a matter of law, that the enumeration embraces all the things of their kinds, therefore the doctrine of ejusdem generis applies. We construe the words “for other necessary purposes” to relate solely to things of like kind as those embraced in the preceding- enumeration.
The decree of the chancery court is therefore reversed, with directions to enter a decree restraining appellees from issuing bonds in excess of tbe amount necessary to refund tbe old bonds and unpaid interest, which will include, of course, necessary expense of issuance of the bonds. It is so ordered. | [
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Humphreys, J.
Appellee brought this suit in the circuit court of Phillips County against appellant to recover damages in the sum of $110 for killing his pointer dog, in the operation of a passenger train, through the alleged negligence of appellant’s employees in failing to give proper warning of the approach of the train and to stop the train when the peril of the dog was discovered.
Appellant filed an answer, admitting the killing of the dog, but denying the allegations of negligence by its employees, and interposing the defense that the dog came on the track in front of the moving train at such time and place that it was impossible to avoid striking him.
The cause was submitted to the court, sitting as a jury, on April 13, 1924, upon the testimony adduced by the respective parties, resulting in a judgment for $60 against appellant.
On May 1, 1924, appellant filed a motion for a new trial upon the grounds that the verdict and finding of the court were contrary to the law and the evidence, and that the court erred in finding and holding that it was the duty of the engineer to give an alarm that would warn the dog of the approach of the train. The abstract does not reflect that this motion was acted upon. On May 2, 1924, the court made the following order: “Now on this day the judgment in this cause heretofore rendered by the court is set aside on the court’s own motion and a new trial ordered.”
Four witnesses were introduced on the first trial, two by appellee and two by appellant.
Appellee testified, in substance, that he saw the train when it ran over the dog; that the train was fifty or seventy-five yards from the dog when he first saw it, and the dog was in the middle of the track; that the whistle was not blown or the bell rung; that the train was traveling fifteen or twenty miles an hour. Witness admitted that he stated to the claim agent that it was doubtful whether the train could have been stopped so as to prevent the killing of the dog;
C. E. McCabe testified, in substance, that he saw the train at the time it killed the dog; that the dog was in the middle of the track, abont sixty yards from the train, when he first noticed it; that the bell was not rung nor the whistle blown; that the train was running probably twenty miles an hour. Witness admitted that he made a statement to the claim agent of the company to the effect that, if the dog had just got on the track when he first saw it, the train could not have stopped in time to prevent striking the dog.
J. M. Smith testified, in substance, that he was the engineer in charge of the locomotive that killed the dog; that the first time he saw the dog it came out of a ditch which had been leveed, on the left side of the track; that the Johnson grass was so high that it prevented him from seeing the dog until it got in the middle of the track, fifty to seventy-five feet in front of the locomotive; that he was in his proper place, and immediately shut off the steam and applied the brakes; that the train was running thirty 'miles an hour, down grade, and that it would have taken a minute to shut off the steam and apply the brakes so as to become effective; that he did all that could have been done to stop the train and prevent striking the dog; that the bell was ringing, but that he did not have time to blow the whistle before the dog was struck; that it was impossible to stop the train under 600 or 800 feet.
Charlie Begley testified, in substance, that he was the fireman on the train that killed the dog; that he first saw the dog when the train was in the act of running over him; that he had been putting in a fire, and when he got on the box-seat the dog was twenty or twenty-five feet in front of the engine.
At the conclusion of the testimony the court and the attorney for appellant had the following conversation:
“Court: I will concede the engineer could not have-stopped the train before he got to the dog. Now, if there is any other feature you might wish to discuss — •
“Mr. Daggett: That is the way I see it: if he couldn’t have avoided striking the dog — he had only a second to do it — if the dog was anywhere within 44 feet of that train he had only a second—
“Court: How far did it run in a second?
“Mr. Daggett: Forty-four feet. It would run 2,640 feet in a minute, at 30 miles'per hour; that is 44 feet per second — a second is just a space of time that nobody can do anything in.
“'Court: The court finds that there should have been some warning given by the engineer of the approach of the train that could have been heard by the dog; after he discovered the peril of the dog, it was his duty to give some warning that could be heard by the animal, and, for his failure to give this warning, judgment is rendered on that ground.
“Mr. Daggett: We except, of course.”
On November 12, 1925, the cause was again submitted for trial to the court, sitting as a jury, on the same testimony introduced upon the former trial, which resulted in a judgment in favor of appellee for $60, from which is this appeal.
At the conclusion of the testimony on the second trial there was no repetition of the conversation which occurred between the court and counsel on the first trial.
Appellant contends for a reversal of the judgment .upon two alleged grounds:
First, that the evidence is insufficient to support the verdict;
Second, that the court was without authority to render the verdict and judgment in the second trial upon testimony which he, in effect, declared insufficient on the first trial to support a verdict and judgment.
(1). The evidence is conflicting as to the distance between the train and dog when the dog ran upon the track. The testimony introduced by appellee was to the effect that the intervening distance was from sixty to seventy-five yards, whereas the testimony of the witnesses introduced by appellant was to the effect that the intervening distance was from twenty to sixty feet. ’ If the jury believed the engineer discovered the dog in the middle of the track when seventy-five yards from him, they may reasonably have drawn the inference that he should have rung the bell and blown the whistle in an effort to scare the dog off the track. The killing of the dog raised a presumption that it was negligently done, and it cannot be said that the presumption of negligence was removed by undisputed proof to the effect that the dog was unavoidably killed. There is sufficient evidence in the record to support the verdict and judgment.
(2). The argument of learned counsel that the act of setting aside the verdict and judgment on the first trial and granting a rehearing was tantamount to ruling that the evidence was insufficient to support the verdict, and that the court was bound on the second trial by the first finding, is not sound, for two reasons; the first being that the court set aside the first verdict and judgment on-his own motion, without disclosing his reason for doing so, and the second being that the order setting aside the first verdict and judgment and granting a new trial was an interlocutory order which the court had a right to set aside at any time if he concluded he had made a mistake. Of course it would not do to say that a court must adhere to every ruling or interlocutory order made by him during the first trial of a cause, much less to say that he must adhere to rulings and interlocutory orders on the second trial of a cause which he made on the first trial. Such a rule would prevent a court from correcting errors which he had made, or from changing his mind relative to his acts or declarations occurring in the course of a trial. It will be observed in the instant case that appellee did not treat the order setting aside the first judgment as final and appeal from it. The order remained in the case as an interlocutory order. The facts announced in this case do not bring it within the rule • announced in Twist v. Mullinix, 126 Ark. 427, to the effect that, “if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact, he must set aside such verdict.” The rule is applicable only to final rulings and orders relative to verdicts and judgments. The trial court’s expressions and acts must be consistent in passing upon the sufficiency of the evidence to sustain a verdict and judgment in making-final and appealable orders.
No error appearing, the judgment is affirmed. | [
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Wood, J.
Margaret Ritchie became a member of the Mutual Relief Union of Fort Smith, Arkansas, in September, 1916. As such member she received a certificate insuring her life in the maximum sum of $1,000, in favor of G-. B. Benson. The Relief Union was afterward merged with the Home Protective Association, and the latter association was merged with the American Insurance Union under a contract which required the holders of certificates to pay all premiums and chapter dues on or before the 20th day of each month, without notice. The payments were to be made to the cashier of the Union. The failure to pay caused the policy to lapse, and no cashier or other officer could waive the obligation to pay. The member whose certificate or policy had lapsed could be reinstated at any time within six months by making application on a printed form, attested by the cashier and forwarded to the home office, and by depositing with the cashier the unpaid premium and dues and reinstatement fee of ten cents. The reinstatement had to be approved by the medical director. There was a provision that the receipt by the cashier of the premiums or chapter dues or reinstatement fee would not have the effect of reinstating a lapsed member until his application was approved by a medical director. No provision of the contract could be waived by any of .the officers. There was a provision in the contract to the effect that the Union would not he liable to a beneficiary for more than the proceeds of one assessment of the roll to which said deceased member belonged, unless, at the expiration of the maximum period allowed to the members of said roll, said member elected to pay to the Union the regular rate for carrying said member for the full amount of the certificate. Mrs. Ritchie paid her dues until September, 1923, which was the maximum period for increase in her payments, and, under the contract, she had the right at that time to elect to pay an increased premium of $4.70 per month, which would entitle her beneficiary, at her death, to the full amount of her certificate. Mrs. Ritchie died April 2, 1924. This action was instituted by Gr. B. Benson, beneficiary in the certificate, against the American Insurance Union. He alleged that the defendant was liable for the full amount of the certificate, under the contract of merger by which it took over the certificate of Mrs. Ritchie. In its answer the Insurance Union denied that it was liable under the contract for any amount, but, under no- circumstances, for more than the proceeds of one assessment of the members of the roll to which Mrs. Ritchie belonged.
Benson testified, and introduced the certificate issued to Mrs. Ritchie. Mrs. Ritchie died April 2, 1924. The policy was in force at the time of her dea,th. The secretary of the defendant notified witness when the assessments were due, and they were always paid. The assessment for October, 1923, was paid. $1.43 was the amount to be paid on the policy every month. The witness introduced cards from the defendant which showed that $1.43 was received for September, 1923, and $1.43 over, which was held as a credit to her account “pending choice of options upon reaching the maximum rate in September, 1923.”
On April 24, 1923, the defendant wrote Mrs. Ritchie that her next premium would not be due until October 1, 1923, and that it was returning money order for $1.43. On January 11, 1924, the defendant wrote her that she had several options, designating them, under her contract with the defendant, one of which was a whole life level rate policy, on which the premium at her age would be $4.70, payable monthly, and the first would be due October 1. The letter concluded by stating: “When you make choice of -a policy on which you wish to continue your insurance and pay the stipulated premium thereon and chapter dues, your protection will be worth every dollar agreed upon, and your membership and insurance will be on an equality with all other members of the American Insurance Union.” When witness received this letter, he sent them, on January 16, 1924, $4.80. They held this cheek from that date until April 18, 1924. On March 31, 1924, the defendant wrote Mrs. Ritchie, in which letter she was notified that it would require $30.90 to cover her premiums through the month of April on the standard step rate, and $7.06 to cover her premiums on the maximum rate. In this letter the defendant asked her to advise regarding the option, and send remittance at the earliest possible moment. Two days thereafter witness sent defendant a check for $30.90, the amount defendant asked the assured to send.
On cross-examination the witness identified a letter written to the assured on February 18, 1924, stating “if it is your desire to have this policy placed in good stand ing on our records, it will be necessary to give this matter your prompt attention.” The witness further stated, in answer to questions, that he had $1.43 in the hands of the defendant; that he sent them $4.80 on January, and $30.90 the day after Mrs. Ritchie was buried. On redirect examination witness stated that the defendant kept his money ninety days' before returning it; that the assured did not receive the pption for the new policy until in January, and later she received a letter stating she owed $30.90, and witness sent that; that he always sent what they requested. The defendant never- wrote anything about reinstatement; after the defendant wrote that the assured was paid up to October 1, and said at the proper time it would give the option to take the policy and would send the papers on October 1, and did not do it, witness wrote defendant two letters about it. On April 18, 1924, the defendant wrote the assured the following letter: “As your application for reinstatement has been rejected by our medical director, we are returning herewith two checks, one under date of January 17 for $4.80, the other dated April 4, for $30.90. These remittances have been held in our pending file awaiting the consideration of the application for reinstatement.” Witness further testified that he notified defendant by letter of the death of Mrs. Ritchie the next day after she was buried, and requested it to send him blanks on which to make proof. Witness’ letter was properly stamped and mailed; witness did not receive any response.
The court refused to permit the defendant to introduce its constitution and by-laws in evidence, to which ruling the defendant duly excepted. The secretary of the defendant testified, among other things, that no proofs of death were made out and filed by the beneficiary. He stated that checks, aggregating $35.70 were mailed to the defendant April 4, 1924, two days after the member’s death, which were returned with the statement that the application'for reinstatement had been rejected by the medical director. The witness testified in September, 1923, Margaret Ritchie reached the maximum assessment, and the level premium basis being $1.43 would purchase $200.84 had she been in good standing when she died. She had failed to make a choice of options in September, 1923, and automatically went upon the level premium basis. »
The cashier of the defendant testified to the same effect. She failed to pay anything after September, 1923, was suspended for nonpayment October 20, 1923,' was never reinstated, and was not a member at the time of her death. Attached to the deposition of the secretary of the defendant and made exhibits thereto were the contracts of merger between the defendant and the Protective Association of Springdale, Arkansas, and also the rider and contract between defendant and Mrs. Ritchie. Under this rider and contract the certificate holders agreed to make their payments, comply with the constitution and by-laws of the defendant, and the defendant agreed to assume the liability under the certificate. Among the exhibits is an application for reinstatement showing that Mrs. Ritchie’s certificate lapsed in the month of October, 1923, and answering all the questions therein in favor of reinstatement, showing that she was in good health, etc., at the time of the application. The application for reinstatement is dated January 17, 1924, signed by Margaret Ritchie, and gives her address as Hampton, Arkansas. At the close of the application for reinstatement is the following certificate: “This is to certify that the above signature was written by the applicant in my presence and that he has deposited with me unpaid premiums and dues, including a reinstatement fee of ten cents, amounting in all to $37.75. I do recommend this applicant for reinstatement.” Signed C. L. Jordan, cashier.
The court instructed the jury, in effect, that, if they believed from the testimony that the policy of Mrs. Ritchie lapsed for the nonpayment of dues October 20, 1923, nevertheless if the defendant, by the acts and conduct of its officers, led Mrs. Ritchie to believe that the policy had not lapsed or forfeited, and that she, acting upon such belief, incurred expenses or trouble on account of the nonpayment of premiums or assessments, then the defendant waived its right to claim a forfeiture in this action; and if the jury so found, their verdict should be in favor of the plaintiff in th'e sum of $1,000. The defendant asked the court, in its prayer for instruction No. 1, to instruct the jury to direct a verdict in its favor, and its prayer for instruction No. 2 told the jury that, if they found that Mrs. Ritchie was suspended for nonpayment of dues on October 20, 1923, and failed to comply with the laws and requirements of the defendant before her death on April 3, 1924, their verdict should be for the defendant. The court modified the defendant’s prayer for instruction No. 2 by adding thereto the following: “provided you further find that the said forfeiture was not waived by the defendant,” and granted the prayer as modified. The court refused appellant’s prayer for a directed verdict. The appellant duly excepted to the rulings of .the court in the giving and refusing prayers for instruction. The jury returned a verdict in favor of the plaintiff in the sum of $1,000, with interest at the rate of six per cent, from June 2, 1924. Judgment was entered in favor of the plaintiff for that sum, from which judgment the defendant duly prosecutes this appeal.
1. Learned counsel for the appellant contends that the court erred in excluding the constitution and by-laws of the appellant from the jury. 'Counsel are correct in this contention. In the merger contract between the appellant and the Home Protective Association, entered into on November 1,1918, by which the appellant assumed liability to the certificate holders of the Home Protective Association, among whom was Mrs. Ritchie, was the following provision: “It is hereby understood and agreed that the members hereby consolidated shall be subject to the constitution and laws of the American Insurance Union now in force, or that may hereafter be in force, except as herein otherwise provided.”
It is alleged in the answer of the appellant that “a rider and contract of consolidation between the Home Protective Association and the appellant was sent to Mrs. Ritchie and duly signed by her, and afterwards sent to the appellant; that, in this receipt, Mrs. Ritchie agrees that the rider and contract shall be attached to and form a part of her certificate and contract of insurance of the appellant “under the terms and conditions set forth in said rider and contract.” While the appellant does not prove the above allegation of its answer, the appellee is not in an attitude to deny that Mrs. Ritchie received and signed the receipt containing the rider and contract of consolidation between the appellant and the Home Protective Association and that such contract was a part of her certificate and contract of insurance with the appellant.
The testimony of the appellee proves conclusively that the rider and contract were received by Mrs. Ritchie and agreed to by her, because she continued, after the merger agreement, as the appellee asserts and as the testimony and correspondence between Mrs. Ritchie and appellant shows, to pay her premiums to the appellant and to thus acknowledge that her contract of insurance was with the appellant. The appellee bottoms his action against the appellant on the ground that, under the merger contract, the appellant had assumed the liability on her policy of insurance. The cause, in this particular, is ruled by the recent case of Knight v. American Insurance Union, ante, p. 303, where we said: ‘ ‘ The conclusion is irresistible that the assured member did receive the rider, for he continued, after the merger contract until his death, to pay the assessments to the appellee. The undisputed testimony therefore justified the trial court in finding that Horace Knight, the assured member, received a copy of the consolidation contract and accepted its provisions. The appellant predicated his cause of action upon such contract, and, having accepted the same, he is bound by its terms.”
This court is committed to the doctrine that the constitution and laws of a fraternal benefit society are a part of the contract of insurance and that the members or certificate holders of such society have notice of and are bound by the provisions of the same. See § 6076, C. & M. Digest; Sov. Camp W. O. W. v. Barnes, 154 Ark. 486, 246 S. W. 55; Sov. Camp. W. O. W. v. Newman, 142 Ark. 132, 219 S. W. 759, 14 A. L. B. 903, and other cases cited in appellant’s brief. To eliminate the error we have stated the contract of insurance upon which the appellee based his right of action as though it were a contráct of insurance with the appellant, embracing the provisions of the latter’s constitution and by-laws, and, in our consideration of the case, have given the appellant the benefit of these provisions. The question then is, was appellee entitled to recover when the contract is so'treated?
2. This brings us to a consideration of appellant’s second contention, “that the certificate had lapsed and all rights thereunder forfeited.” The issue as to whether or not the policy was forfeited because of nonpayment of premiums or dues was submitted to the jury under correct instructions. The material testimony bearing on this issue is set out above. Giving this testimony its strongest probative force in favor of the appellee, it was certainly sufficient to warrant the court in refusing to declare as a matter of law that the policy was forfeited, and was sufficient to warrant the finding by the jury that the policy was not forfeited, and to sustain the verdict in favor of the appellee. The testimony of appellant’s secretary and also of its cashier was to the effect that Mrs. Bitchie defaulted in the payment of her installment dues for the month of October, 1923, in the sum of $1.43, and she was suspended because of such failure on October 20, 1923; that she was never reinstated under the constitution and by-laws of the company and that, if she had been in good standing at the time of her death, the value of her certificate would have been $200.84, under the constitution and laws of the appellant and the rider and merger contract by which she was bound.' The jury might have found that all these contentions were effectually refuted, not only by the testimony of the appellee but likewise by the certificate of appellant’s cashier, C. L. Jordan, which was made an exhibit to appellant’s depositions, introduced in evidence, referred to in appellant’s abstract and found in the record at pages 103 and 104. This document was designated “Application for Reinstatement” of a policy which, it states, lapsed in the month of October, 1923. It is dated January 17, 1924, and is signed by Margaret Ritchie and certified to by appellant’s cashier as follows: “This is to certify that the above signature- was written by the applicant in my presence, and that she has deposited with me unpaid premiums and dues, including a reinstatement fee of ten cents, amounting in all to $37.75. I do recommend this applicant for reinstatement.” There is no testimony in the record to the effect that this amount of money was ever returned to Mrs. Ritchie. If the above certificate stated the truth, then Mrs. Ritchie, at the time of her death, had in the hands of the appellant more than enough money to pay the premiums due on a whole life level-rate policy from October to April, inclusive. Having this money in its hands from January 17, 1924, until after April 2, 1924, when Mrs. Ritchie died, a period of nearly three months, without returning the money and notifying Mrs. Ritchie that the appellant would not reinstate her policy, but would insist on a forfeiture thereof, appellant, by such conduct, must be held to have waived the forfeiture, and is estopped from claiming non-liability on the policy.
There were conflicts in the testimony, which it was the province of the jury alone to reconcile. The undisputed testimony shows that, when the appellant declared the forfeiture of the policy, October 20/1923, it had in its hands sufficient money to pay the premiums due at that time, and its own correspondence tends strongly to prove. that it did not intend to insist upon a forfeiture of the' policy, but, on the contrary, was urging Mrs. Ritchie to exercise her option as to which form of insurance she would finally accept. This was the situation at the time of her death. Appellee’s testimony tends to prove that he complied with every request of the appellant to remit premiums, sending in the entire amount that appellant advised him was due, and that Mrs. Ritchie had paid, and was willing to pay at any time, a sufficient amount to prevent a forfeiture of the policy, if appellant had indicated that such was its intention. Appellant delayed making known its purpose to insist upon a forfeiture of the policy until after the death of the assured. Under the facts as the jury might have found them from the testimony in this record, the appellant must be held.to have waived the forfeiture. The facts bring the case within the general doctrine announced in many of our cases as follows: “Forfeitures are not favored in law, and courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conform-ity on his part, will estop, and ought to estop, the company from insisting, on a forfeiture, though it might be claimed under the express letter of the contract. * * * As is said in 14 R. C. L. 1181, § 357, ‘waiver of a forfeiture, though in the nature of an estoppel, may be created by acts, conduct, or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture’.” American Life Assn. v. Vaden, 164 Ark. 75, at page 88, and cases there cited.
There is no reversible error in the record, and the judgment must therefore be affirmed. | [
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Humphreys, J.
Appellee, Oliver Galbraith, father of appellee, Fred Galbraith, instituted suit in his own right, and as next friend for his said minor son, against appellant, in the circuit court of Jefferson County, to recover damages for injuries inflicted upon luis son through'the alleged negligence of appellant in running over him with an automobile, at the intersection of Fifth Avenue and Main Street, in Pine Bluff, while engaged in painting a “No Left Turn” sign on the surface of the street, as an employee of the city.
Appellant filed an answer, denying the allegations of the complaint and, by way of affirmative defense, pleading contributory negligence on the part of appellee’s son.
The cause was submitted upon the pleadings, the testimony adduced by the respective parties and the instructions of the court, which resulted in verdicts and consequent judgments in favor of Oliver Galbraith for $3,500 and Oliver Galbraith, as nest friend for Fred Galbraith, for $14,000, from which is this appeal.
. The substance of the evidence, reflected by the undisputed testimony, is about as follows: The injury occurred between 8 and 9 o’clock p. m. on September 16, 1924, at the intersection of Fifth Avenue and Main Street, in said city. Fifth Avenue runs north and south and Main Street east and west. The street car company operates a double track along Main Street. At this particular point Main Street is 55 feet wide, and the distance from the west car rail of the west car track to the curb line on the west side of Main Street is 20 feet. It maintains a safety zone on the north side of the intersection and on the west side of the double tracks for passengers to get off and on the street cars running south on Main Street. Traffic going south on Main Street was required to keep on the west side, and traffic north to keep on the east side of the center of Main Street. The street intersection is in the business part of the city, where the traffic is heavy, the Hotel Pines being on the northwest corner of the intersection, McEwen’s Dry Goods Store on the southwest corner, Franey Brothers’ Store on the southeast corner, and the T. M. C. A. building on the northeast corner. The intersection of the streets at this point was perhaps the best lighted intersection of streets in the city.
Fred Galbraith was an intelligent yonng man, having graduated from the high school when he was sixteen years of age. He was eighteen years of age at the time of the injury, and had been working in the city engineer’s office for over a year, as inspector of streets and sewers. He was familiar with the streets and conditions of traffic in all parts of the city. He and two assistants had been directed to repaint the traffic signs on the surface of the streets, and were permitted to select their own time for doing the work. Fred Galbraith was told by the city engineer, on the afternoon of the night that the injury occurred, to go that night and paint the “No Left Turn” sign at the intersection of Fifth Avenue and Main Street. On the' occasion of the injury, Fred Galbraith was dressed in khaki pants and light brown shirt, and was working about five or six feet west of the west car rail on the west car track, leaving a space of about fifteen feet between the west curb line of Main Street and himself, for automobiles to travel going south on said street. At the time he was struck by appellant he was facing south, in a stooping or kneeling posture, down on the street, painting on the surface thereof, in large letters, “No Left Turn”, and was devoting strict attention to the performance of his duties, not moving around or about on the street, and had been in the same position for fifteen or twenty minutes. While thus engaged, an automobile, owned and operated by appellant, traveling south on Main 'Street, struck him in the rear and knocked him over on the pavement. His foot was caught in the axle of the car, and he was dragged a distance of 68 feet before appellant brought his car to a stop and Galbraith was extricated. He did not know that he had run over Galbraith until' Galbraith’s co-worker jumped on the running-board of the car and told him what had happened. Galbraith did not see appellant’s car before it struck him. Appellant was not looking in the direction of Galbraith at the time he ran over him, his attention having been attracted to some girls across the street, who had called to him. At the time of the injury Galbraith was hot working under the protection of lanterns or other guards. There is nothing in the record, however, to show that it was customary, when this character of work was being done at night, to put out lanterns or other signs.
Fred Galbraith was immediately removed to a hospital and examined by a physician. It was'found that the skin had been peeled almost entirely off his back, a hole punched in his side, and that he had sustained minor cuts and bruises practically over his entire body. He recovered from these injuries, but suffered intense and excruciating pain from them for a period of- about six weeks. In addition to these temporary injuries, he received a permanent injury to his left arm, from which he was still suffering at the time of the trial. A hole was punched in his left elbow which required two operations by home surgeons, and later a major operation by Dr. Willis C. Campbell, of Memphis, an eminent bone specialist. He remained in Dr. Campbell’s clinic- from December 27, 1924, until March 1, 1925, under the care of Dr. Campbell and his assistants. The operation performed by Dr. Campbell consisted in the removal of an extensive area of diseased bone.' The wound had not healed at the time of the trial. Dr. Campbell and other physicians testified that the injury was a permanent one, rendering his left arm twenty-five per cent, deficient. At the time of the trial his father had expended about $3,200 for hospital, nursing and medical services, and was then bearing the expense of having the wound dressed'daily.
The only disputed questions of fact arising out of the testimony consisted in a contrariety of opinions as to whether it was better to paint the traffic signs in the daytime or at night, and whether the work could have been performed in such a manner as to allow" or permit Fred Galbraith to have kept a lookout for automobiles and in that way avoid the injury. Bearing upon that point, .Tim Whittle testified that a man painting letters already outlined could stand on any side of them and do the work, which would enable him to keep a lookout while repainting them, whereas appellee, Fred Galbraith, testified that he kept no lookout whatever while painting the sign, because he could not and paint the sign.
Appellant contends for a reversal of the judgment upon three alleged grounds:
First: In giving instruction number 3 on behalf of appellees, over the objection and exception of appellant.
Second: In refusing to give instructions numbers 5 and 9, requested by appellant, over his objection and exception.
Third: Because the verdict was excessive..
The general law applicable to cases of this character is well stated.in the case of Burger v. Taxicab Co., 66 Wash. 676, 120 Pac. 519, as follows:
‘ ‘ The true rule as to the reciprocal rights and duties of persons driving vehicles and laborers on the highway is as follows: ‘Persons riding or driving are bound.to exercise reasonable care to see and avoid injuring persons who are at work in the streets, as well as pedestrians. And the laborer is not bound to neglect his occupation in order to avoid injury from the want of ordinary care on the part of drivers of vehicles. But he cannot recover if actually guilty of contributory negligence.’ ”
The same doctrine was announced in a Michigan case, styled O’Donnell v. Lange, 162 Mich. 654, 127 N. W. 691 (quoting from the syllabus) : “One employed as a street cleaner must, while at work, use ordinary care to avoid injury from passing vehicles, but he need not neglect his work to escape collision with those not using reasonable care.”
With this rule in mind, we will proceed to a consideration of the alleged errors of the trial court in giving instruction number 3, requested by appellees, and in refusing to give instructions numbers 5 and 9, requested by appellant.
1. Instruction number 3, given by the court over appellant’s objection, is as follows:
“If you believe from a preponderance of the evidence in this case that the plaintiff, at the time of the injury, was an employee of the city of Pine Bluff and, under the directions of the city engineer, was engaged in painting a ‘No Left Turn’ sign upon the street, and that the nature of his work precluded him from keeping a constant lookout for approaching automobiles; that, at the time he was. struck and just before such time, he was not moving about or around upon the streets, and that he was so engaged in his duties as not to see the approach of the automobile which struck him, then the court tells you that he was not guilty of contributory negligence.”
Appellant assails the instruction upon the alleged ground that it, in effect, relieved appellee entirely of the duty of keeping any lookout whatever, or taking any precaution for his own safety, regardless of whether he might have done so in the proper performance of his duties in the exercise of ordinary care for his own safety. Or, expressing it differently, that the instruction eliminated the defense of contributory negligence entirely from the case. We do not think the instruction susceptible of the construction placed upon it by appellant. It is apparent that the trial court did not intend to exclude appellant’s defense of contributory negligence, else he would not have given instruction number 1, which is as follows:
“If you believe from a preponderance of the’evidence in this case that, at the time he was injured, the plaintiff, Fred Galbraith, was engaged in performing his duties as an employee of the city of Pine Bluff in painting a ‘No Left Turn’ sign at the intersection of Main Street and Fifth Avenue, and that, while so doing, he was devoting strict attention to his duties and was.in the exercise of that degree of care reasonably consistent with the practical performance of his work, and that, while so engaged, an automobile driven by the defendant, traveling south on Main Street, approached the intersection of Fifth Avenue and Main Street, and that the defendant negligently failed to keep such a lookout for plaintiff or others who might be lawfully upon said street as a reasonably prudent person, in the exercise of ordinary care under the same or similar circumstances, would have done, and that, by reason thereof, Fred Galbraith was struck by said automobile, thereby causing the injuries of which he complains, then you are instructed that your verdict should be for the plaintiff; provided, that you further find that' the plaintiff himself was not guilty of contributory negligence as defined in these instructions.”
Certainly, if it had been the intention of the court to exclude contributory negligence on the part of appellee, Fred Galbraith, as an affirmative defense in the case, he would not have given instruction number 4, requested by appellant, which is as follows:
“Before you can find for the plaintiff, Fred Galbraith, you must find that he himself was free from any negligence that contributed to his injuries.”
We think instruction number 3, correctly interpreted, meant that Fred Galbraith was not required to spend all of his time in keeping a lookout for approaching automobiles, and that it would not be negligence as a matter of law on his part to fail to look and listen for approaching vehicles while he had his mind and eyes on his work. Under this interpretation, the instruction correctly stated the law, for a workman in a street could not possibly keep a constant lookout for approaching vehicles and perform duties which required him to think and see. Reagan v. Los Angeles Ice & Cold Storage Co., 46 Cal. App. 513. We think, when instruction number 3 is read, as it should he, in connection with instruction number 1, given by the court at appellees’ request, they cover the whole law declared in the cases above referred to.
2. Appellant is in no position to complain at the court’s refusal to give his requested instruction numbers 5 and 9, after having prevailed upon the court to give instruction number 4. Both 5 and 9, in effect, preclude a recovery by appellees if Fred Galbraith failed to exercise such care for his safety as an ordinarily careful and prudent man would have done under the same or similar circumstances. Instruction number 4, set out above, was broader and more favorable to appellant than either one or both instructions numbers 5 and 9, It prevented the recovery by appellees if Fred Galbraith, by commission or omission, contributed to his injury by the slightest negligence, whereas the law renders him responsible only for the failure to exercise such care as a reasonably or ordinarily prudent person would or should exercise under the same or similar' circumstances. In other words, the instruction holds him to the very highest degree of care, when the law .requires him only to exercise ordinary care.
3. Eelative to the claim that the verdict is excessive, it is only necessary -to call attention to the fact that the father, Oliver Galbraith, showed that he had expended on his son almost as much as the amount awarded him, and that he ■ will have to expend other amounts before the wound heals. This verdict in his favor, as we understand the record, does not take into account any amount for the loss of the services of his son.
When the extent and nature of the injury is considered in connection with the excruciating pain suffered by Fred Galbraith, as a result of the injury, it cannot be said that $14,000 was an excessive allowance to him.
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Humphreys, J.
This is an appeal from a decree of the chancery court of Pope County enjoining appellants from building and operating a filling station and public garage on a strip of land 85 east and west by 246 feet north and south, fronting on the Little. Bock & Port Smith highway, in the residence section of the town of Atkins. The lot in question adjoins appellee’s home on the east and Mrs. T. J. Bobinson’s home on the west. The plan was to erect the station and garage nearer the north line of the highway than the other residences situated on the north side, and, when erected, would he located within 100 or 125 feet of appellee’s house. Hundreds of automobiles and trucks passed alongthe highway daily, and, in the tourist season of the year, passed both day and night. The homes of appellee and his neighbors were built in this locality with a view to getting out of the business district of the town. It was distinctively a residence section, located some five or six blocks away from the business district. Appellant, J. W. Huddles-ton, owned and operated a filling station in the business district of the town, and, in partnership with E. W. Lawson, purchased the strip of land in question upon which to build a filling station, garage and residence, to be occupied by appellant, E. W. Lawson, who was to operate said station. The strip of land in question was purchased after appellee and his neighbors had built their homes in that locality.
It was alleged in the complaint that the operation of a filling station and public garage would become a nuisance by creating* such noise, through the honking of horns, racing, and testing' of motors, thereby destroying the peace, quiet and comfort of appellee’s home.
Appellants filed an answer, admitting that they intended to construct a filling station and garage upon the strip of land in question, but denying that the operation thereof would constitute a nuisance.
The testimony introduced was directed to the sole issue presented by the pleadings, of whether the operation of a filling station and garage in that particular locality would constitute a nuisance that would result in irreparable damage to appellee. The trial court found that it would, and permanently enjoined the construction thereof, so the correctness of the finding and decree is before us for trial de novo.
The construction and operation of a filling station and public garage is a lawful business and not a nuisance per se, but one cannot prosecute a lawful business in the neighborhood of a dwelling-house if the noise therefrom would render the enjoyment of it materially uncomfortable. In Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S. W. 370, this court quoted with approval from Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654, the following paragraph:
“The law, then, must be regarded as settled that, when the prosecution of a business, of itself lawful, in a neighborhood of a dwelling house, renders the enjoyment of it materially uncomfortable, by the smoke and cinders and noise, or offensive odors, produced by such business, although not in any degree injurious to health, the carrying on such business there is a nuisance. Durfey v. Thalheimer, 85 Ark. 544, 109 S. W. 519; Terrell v. Wright, 87 Ark. 213, 112 S. W. 211, 19 L. R. A. N. S. 174.”
The record reflects that appellee purchased a lot and built a home five or six blocks from the business section of Atkins, for the purpose of living in a quiet neighborhood, on account of the nervous condition of his wife and extreme old age of his mother, who was eighty-four years old, before appellants bought the adjoining lot upon which to build the proposed filling station and public garage; that the locality chosen by him was and still is a distinctively residential district.
A decided preponderance of the testimony adduced in the case was to the effect that the operation of a filling-station and public garage upon the lot purchased by appellants for that purpose would produce a disturbing-noise in the neighborhood, and particularly interrupt the peace and quietude of appellee’s home. The witnesses testified that ac great many people on the much-traveled highway would stop and honk their horns for gas and create much noise in stopping and starting their automobiles, testing their motors, etc. It strikes us that the creation of incessant noises of this character, in a strictly residential section, would constitute an intolerable nuisance in the neighborhood.
No attempt was made by appellants to show any public necessity for establishing a filling station and public garage at this particular point. Appellant Huddleston owned 'and was operating- a filling station within five or six blocks of this neighborhood.
After a careful consideration of the evidence, we are unable to say that the finding of the court was contrary to a clear preponderance of the testimony.
No error appearing, the decree is affirmed. | [
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Smith, J.
In February, 1923, appellant, Frazer, and his wife purchased from appellee certain household appliances, including’ a gas plant and accessories. These articles were bought on open account, and title was reserved by appellee until the purchase money was paid. The gas plant and accessories were installed in the suburban home of appellants, near the town of Levy, Arkansas. The sale was evidenced by a written contract, which contained the following guaranty: ‘‘Guaranty — All apparatus listed above is guaranteed to be free from defects in workmanship and material for a period of one year, and any parts proving defective within this period will be replaced without charge. On apparatus having guaranty card attached, the card must be properly filled out on date of installation and returned to ns or to the manufacturer.”
Frazer was slow in making payments, and was asked for a note, which appellee thought it could use by discounting it at the bank, and a note was given, which evidenced the balance then due. There was correspondence between the parties in regard to the payment of the note. Appellee had notified the attorneys for appellants in writing that it desired the originals of certain specified letters for the benefit of the record. These letters were not produced by appellants, and the court permitted appellee to introduce copies thereof. When appellants put on their case, they offered to introduce copies of certain letters, which were excluded when objection to their introduction was made. No notice, however, had been given to appellee to produce the originals of the letters copies of which appellants sought to introduce. These rulings are assigned as error.
In the case of Hartford Fire Ins. Co. v. Enoch, 72 Ark. 47, 77 S. W. 899, a syllabus reads as follows: “A copy of a writing is inadmissible in evidence until it has been shown that the original is lost or destroyed, or that it is in the possession of the opposite party, who has failed to produce it as evidence, after being notified to do so. ’ ’ There was therefore no error in the ruling made.
At the conclusion of all the testimony, the court instructed the jury as follows: “Gentlemen of the jury, in this case, as the court sees it, there is nothing for the jury to decide. The proof shows that this gas plant was sold, together with other articles, all of which amount had been put in a note for $1,200; the proof shows further, without contradiction, and it is admitted, that that note, or account, either, was paid down below the cost of the gas plant, and when any amount was paid on the purchase price of the gas plant it was a ratification of the gas plant. Now, the defendant' claims that the gas plant did not perform the service it was intended for, but the law required him, when he found that out, to act by complaining, so, if he paid with knowledge of its condition, then the law imposed on him absolute ratification under his contract. That is one reason. Another reason is, the property has been sold, for a consideration, to a purchaser, and for that reason the plaintiff cannot get its property. -So you will return a verdict for the plaintiff by direction of the court.”
Thereupon the jury, under the above direction of the court, rendered a verdict in favor of the plaintiff for the sum of $750, and judgment was rendered accordingly, and the defendants have appealed.
Appellee had sold appellants other goods, which, upon complaint concerning their quality, had been taken back, and these goods are not involved in this litigation.
There was testimony, which does not appear to be denied, that certain payments were made, which were credited on the note, and, in response to appellee’s demand that the balance be paid, appellants offered to pay the note if no interest was charged thereon, this contention being based on the theory that the account itself bore no interest, and that the note had been given merely to accommodate appellee in raising money by using the note. Of course the account, as well as the note, after maturity, would bear interest.
It appears that, without appellee’s knowledge or consent, appellants sold the house in which the plant had been installed, but appellants say this is unimportant, for the reason that, having reserved title to the heating plant, appellee had the right to retake it, and should do so, inasmuch as appellants contend it did not meet the specifications of the guaranty under which it was sold concerning its heating qualities. It will be observed, however, that the guaranty was in writing, and contained no reference to the heating qualities of the plant.
Appellants did not return the property, or offer to do so, nor did they wait until they were sued and plead partial failure of consideration. On the contrary, they sold the plant, and have the proceeds.
We think therefore that the court was correct in holding, as a matter of law, that appellants had ratified the contract of sale, even though there had been a breach of the guaranty, by selling the plant. It is true, appellee,' under its reservation of title, might have retaken the property, but it was not required to do so. It has elected to treat the title as having passed to appellant’s vendees, and, under this election, it had the right to sue for the balance of unpaid purchase money.
The judgment of the court below is correct, and is therefore affirmed. | [
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Smith, J.
Appellant was convicted under an indictment charging’ him with the crime of grand larceny, alleged to have been committed by stealing a sewing-machine, the property of Eose Tucker. For the reversal of the judgment appellant insists that the verdict of the jury was contrary to the law and the evidence, and that the court erred in excluding certain testimony offered in his 'behalf.
We think the testimony is sufficient to sustain the verdict, and no error was assigned in giving and in refusing to give instructions. • • .
A brief summary of the testimony follows: Nate Tucker, a colored man, was confined in jail on a charge of possessing and transporting intoxicating liquor. .He testified that appellant, who is a practicing attorney, came to the jail to see a client, and, while thefe, solicited witness’ case, and procured from witness a noté for $100 as an attorney’s fee. Appellant ascertained where Tucker lived, and went out to Tucker’s home, where he met Rose Tucker, the wife of the prisoner. Appellant discussed with Rose Tucker the question of his fee, and brought her to his office, where the discussion was continued. A few days later appellant went to the home of Rose Tucker, and, finding her absent, took from her house a talking machine and a sewing machine. This was done without the knowledge or consent of either Rose Tucker or her husband. The property was shown to be of a greater value than $10, and appellant was found guilty of grand larceny and sentenced to a term in the penitentiary.
Appellant admitted taking the sewing machine and talking machine in the absence of Rose Tucker, but he testified that he did so pursuant to an agreement with her that he should take them and allow a credit therefor of $50 on the fee.
J. E. Bradley was called as a witness for appellant, and was interrogated concerning a conversation between appellant and Rose Tucker in appellant’s office. Rose Tucker was called in for identification by the witness, and, when she appeared, he was examined as follows:
“Q. Is that she! A. I think so. She is not dressed the same. Q. T)o you state that she is the same woman? A. To the best of my knowledge, yes sir. Q. You may state whether or not she came in the room and made this statement, or this in substance, to Mr. Potts: ‘We can’t get the money; you go out and get those machines and I will pay the balance of the money today, this evening or tomorrow evening,’ and if Mr. Potts, in reply to what she said, stated, ‘Well, I have not got time to go out there now, but I will look after it just as soon as I can’?’'’ (The State objects, .as the time is not sufficiently placed, and the party whom he alleges to have made the statement is not identified). By the court: “Q. Do you say this was the woman who made the statement in the office? A. To the best of my knowledge. Q. Will you say this is the woman who made the statement? A. I would not say for sure. (Objection sustained. Exception saved). Q. At the time you were in Mr. Potts’ office was there a negro woman in there? A. Not twhen I went in there. Q. During the time you was there did a negro woman come in? A. Yes sir. Q. State whether or not you heard a conversation between her and Mr. Potts? A. I heard part of the conversation. Q. Do you know what they were talking about? (State objects. Objection sustained. Exception saved). By the court: I will rule that the time is sufficiently placed, but the identification is insufficient. ’ ’
It is then recited that the above testimony of Bradley was withdrawn by agreement of both parties.
Appellant was then called as a -witness, and testified that, in a conference which he had with Rose Tucker in his office, she agreed that he might go to her house and get the machines and credit them as a $50 payment on the fee, and that Bradley was present in his office at the time.
Taylor Potts, a brother of annellant, testified that he was present in his brother’s office and heard this conversation between appellant and Rose Tucker, and that Bradley was also present.
Thereafter Bradley was recalled as a witness and was examined as follows: “Q. You have been on the stand before in this case? A. Yes sir. Q. Do you know about what day of the month it was that you were in the office of Hugh D. Potts — had you ever been there before that day? A. No sir. Q. What time of day were you there? A. Somewhere about 12 o’clock. Q. You have not been talked to since you left the witness stand? A. No sir. Q. When this negro woman came into the office and talked to Mr. Potts, I will ask you if she stated, in substance, this: ‘Mr. Potts, I can’t get the money; you go on out ■ and get the machines, and I will get you the rest of the money today or tomorrow or the next day;’ and if Mr. Potts did not reply, ‘I am busy now, and I don’t know whether I can go out there today or not, but I will go as soon as I can’? (State objects). By the court: Q. If you can testify that Rosie Tucker made such a statement as that, you may answer the question? A. I don’t know her name. Q. Can you say she was the woman who made the statement? A. To the best of my knowledge. Q. Answer my question? A. No sir. Objection sustained. Defendant excepts.” Counsel for the defendant then stated: “We put Mr. Potts (appellant) on the stand and he said this was the woman who was in his office when Mr. Bradley was there, and if we identified her as being the woman, this man can testify. By the court: Mr. Potts cannot testify for this witness. (Objection overruled. Exceptions saved).”
We think this ruling was erroneous and necessarily prejudicial. The defense was that Rose Tucker, the owner of the property, had consented that appellant might have it as a credit on the fee he had agreed to charge her husband. It was the theory of the State that no such conversation had occurred. Appellant and his brother testified that there was such a conversation and that Bradley was present when it occurred. Bradley stated that he did not know Rose Tucker, and he was not positive in his identification of her, although he did state, as appears from the testimony of Bradley, set out above, that he thought the woman presented to him for identification at the trial in the courtroom was the woman he had seen in appellant’s office. Moreover, appellant and his brother, who knew Rose Tucker, had testified that it was she who was in appellant’s office at the time Bradley was in there, and, if this were true, it would have been compe tent for Bradley to have testified what that woman said, although he had been uncertain in his own identification of her or had been unable to identify her at all. But we think that his own identification of her was sufficient to make the proffered testimony admissible. Its value would have depended upon the jury’s- opinion of the witness’ credibility. They might have regarded his testimony as untrue, just as they did the testimony of appellant and his brother. The jury might also have thought that Bradley’s identification of the witness was not sufficiently certain to make the testimony very important. But these were all questions for the jury. But, in view of Bradley’s testimony that he thought the woman who appeared in court was the woman he had seen in appellant’s office, and the additional testimony of appellant and his brother that the woman present in appellant’s office when Bradley was there was Bose Tucker, we think it was clearly erroneous for the court to refuse to permit Bradley to testify concerning the conversation between appellant and the woman who was in appellant ’s office.
The judgment of the court below must therefore be reversed, for the error indicated, and the case will be remanded for a new trial. | [
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McHaney, J.,
(after stating’the facts). The question for decision on this appeal is whether the complaint states facts sufficient to constitute a cause of action. Counsel for appellants first insist that the decree of the chancery court of October 2, 1925, construed the will of Nathan Combs “as devising a defeasible fee in said real property to Isaac G-. Combs, and, upon his death without issue, the remainder to the sons of Alfred, Sewell and Isaac Combs.” In this contention we believe counsel is in error, for this is not the effect of the finding of the chancery court. It found “that Isaac G-. Combs died testate in Washington County, Arkansas, March 6, 1925, and that his last will and testament has been duly probated in the manner required by law, and that said last will and testament provided ‘that, after the payme'ht of all my just debts and funeral expenses, I will, devise and bequeath all my property, both real and personal, to my beloved wife, Martha Combs, to her sole'use and benefit, ’ and that, under this provision of said will, plaintiff, Martha Combs, was the sole beneficiary and legatee under said will, and, as such sole legatee, was the owner in fee of all the real and persorial property of which the said Isaac Gr. Combs died seized and possessed, and that the said Isaac Gr. Combs died without having born to him any child or children, and that he died seized and possessed of the real estate situated in Washington County, Arkansas, which he derived from and under the last will and testament of his father.” Therefore it is manifest that, instead of the court decreeing that Isaac Gr. Combs was devised a defeasible estate under the will of his father, the court did find and decree that Isaac Gr. Combs, by the will of his father, Nathan, became the owner in fee simple of said lands, and that Martha Combs became the owner thereof in fee as sole beneficiary and legatee under the will of her husband. If Isaac G. Combs got only a defeasible fee, how could his wife get the absolute fee under his will? Certainly she could acquire by virtue of his will no greater interest in the lands than he had. This being true, appellants’ whole argument, based on this assumption, must fall, as it is without foundation to support it.
Under that paragraph of the will of Nathan Combs hereinbefore quoted, the residue of the testator’s estate was given to his wife, Elizabeth, and his son, Isaac, for and during their natural lives, “with remainder in fee to Isaac Gr. Combs, if he should survive my said wife.” The lower court found that this .clause gave to Isaac G. Combs the fee simple in said lands, and that his will gave to his wife, Martha, the same estate, the fee, and we think the court was right in so holding. The clause following, after vesting the fee in the remainder in Isaac G. Combs, is: “And in the event my said son, Isaac G. Combs, should fail to have a child or children born to him, and should die seized and possessed of any of said property, I desire and will that the same be divided equally between the sons of my three brothers,” naming them.
Under the decisions of this and other courts generally, this clause of the will must be held to be mere sur plusage, and void, fox* the reasoxx that it is a subsequent clause attempting to limit a cleax* fee already given by the testator.
The gexxeral rule is laid down ixx 40 Cyc, pages 1585, as follows: “A limitation over, after a clear fee is given, oxx the death of the first taker, at a certain age, or without issue, children, or heirs, or intestate, or on his or her marriage, is usually void, aixd leaves a fee in the first taker. So a fee may be created notwithstanding other restrictions. Where property is given ixx clear language sufficient to convey an absolute fee, the interest thus given should not be taken away or diminished’ by any subsequexxt, vague, or gexxeral expressions in the will. Where fee .is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted, whether the gift over is expressed to be of what remains, or may be left, or the residue, or is on death of the first taker without having disposed of the property.”
Many authorities are cited in the footnotes to sustain the above declaration of law.
Ixx the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, the following clause ixx a will was under consideration: “All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby give, devise and bequeath to my beloved wife, Minna Elle, to have and to hold the same ixx fee simple forever. But, in the case of the death of my beloved wife, it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Moritz Elle, and my sister,' Henrietta Bernstein, or their heirs ixx equal parts.” This is a very similar paragraph to the one ixx question, and, in construing same, this court said: “The property in controversy was devised to Minna Elle ixx fee simple 'with an absolute power of disposition either by will or devise clearly and unmistakably implied,’ accoi*ding to the authorities cited, the limitation over to Moritz Elle and Henrietta Bernstein is void.”
Tlie cases on this question were exhaustively reviewed by Judge Battle, who wrote the opinion in the Bernstein case, and, among others, he quoted from Page on Wills, '§ 684, which, as said in Davis v. Sparks, 135 Ark. 417, 205 S. W. 804, “is peculiarly applicable to the ease in hand.”
It follows: “It not infrequently happens that a testator disposes of property in fee, .and then attempts to provide for the disposition of the property after the death of the devisee in fee simple. A provision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devise over after the death of the first taker. The distinction between the two classes of cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A is intended to pass entire property, it is evident that the testator contemplated that A should take only a life estate, without any power of disposing of his property for a longer term than his own life. But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate, and void. * * * A condition that, if devisee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons, is held to be void.” GarlLee v. Ellsberry, 82 Ark. 209, 101 S. W. 407; Davis v. Sparks, 135 Ark. 417, 205 S. W. 803; Archer v. Palmer, 112 Ark. 527, 167 S. W. 99; Fies v. Fiest, 145 Ark. 351, 224 S. W. 623.
Clearly Isaac G-. Combs took the fee, and had the power to convey, either by deed or by will, and this is further evidenced by the clause, “and should die seized and possessed of any of said property.” Evidently this contemplated that he might sell and dispose of the property during his lifetime, conveying the fee thereto, and, if so, he could dispose of it by will at his death. Having done so, the fee vested in his wife, Martha Combs.
Counsel for appellants nest contend that, even though this may be the correct rule, and although Martha Combs may have taken the fee, yet he says she renounced the will of her husband, and that she and J. W. and A. T. Combs are estopped to raise the question of the invalidity of the subsequent clause in the will of Nathan Combs, aforesaid; that a devisee or legatee who has accepted benefits under a will is estopped to deny its validity. No doubt this is a correct declaration of law, but we do not think the facts, as reflected solely by the decrees of the chancery court as set out in appellant’s complaint, which is the only evidence in the record now before us, justify the conclusion that appellees assumed or took any position in that cause contradictory to the one they now take in this case. The pleadings in the chancery court in the Martha Combs case are not before us. Judging from the decrees in the record we are of the opinion that appellees were seeking the construction of the two wills, that Martha Combs desired a construction of -the will of Nathan, in which the two appellees joined, to ascertain who was entitled to the property under said clause of said will, if same was legal, and the court decreed that appellees, J. W. and A. T. Combs, being the survivors of the class mentioned in said will, would take the whole of said property. She then asked that said property be decreed to them, or, in other words, that her title to said property under the will of her husband be divested out of her and vested in them. We do not think this amounted to a renunciation or a refusal to accept the legacy under the will of her husband. At least it cannot be said that either she or the other appellees accepted any benefits under the will by her action, but, on the contrary, she surrendered certain rights under the will, and the other appellees accepted her grant or gift. The effect of her action was to grant or give to J. W. and A. T. Combs, as the only survivors of the class mentioned in the will of Nathan Combs, the property in controversy, and the decree of the court passed the title as per her request.
Appellants’ next contention is that, the complaint having alleged that C. F. Comhs and H. H. Combs are the sons of Sewell Combs, named in the will of Nathan Combs, and that Nathan Combs .never had a brother named Sewell, bnt that said Sewell Combs, of which said appellants were sons, was in fact a nephew of Nathan Combs, and that it was the intention of Nathan Combs to designate the sons of his nephew, Sewell Combs, instead of his brother, Sewell Combs, states a cause of action. But the language of the will of Nathan Combs was: “To the sons of my three brothers, Alfred, Sewell and Isaac Combs.” The contention of appellants is that Nathan Combs intended only to mention the sons of one brother, Isaac Combs, and intended to mention his two nephews, Alfred and Sewell Combs, instead of his two brothers, Alfred and Sewell Combs. To do so, we would have to change the language of the will to read: “To the sons of one brother, Isaac Combs, and to the sons of two nephews, Alfred- and Sewell Combs.” We cannot do this, and we cannot hold that the testator intended to name the sons of two nephews instead of the sons of the two brothers named. This clause of the will, upon this allegation of the complaint, would be void for uncertainty. 40 Cyc., 1445, announces the rule of the law on this point as follows: “In order that a beneficiary may take under a will, he must be designated therein, either by name or by description, with such certainty that he can be readily identified and distinguished from every other person, otherwise the devise or bequest is void for uncertainty.”
But counsel contends that parol evidence is admissible for identifying the beneficiary. This is always true where there is uncertainty or ambiguity in the designation of the beneficiary. In the case of McDonald v. Shaw, 81. Ark. 240, 98 S. W. 953, cited by appellant, this court said: “It is an elementary rule of construction that a bequest or devise will not fail because of a mere inaccuracy in the designation of the beneficiary, where the meaning of the testator can be gathered with reasonable certainty from the instrument itself, or where the identity of the object of his bounty can be shown by extrinsic evidence; and such evidence is always admissible for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation.”
A complete answer to this contention is that, in the case at bar, there is no uncertainty or ambiguity in the designation, “to the sons of my three brothers, Alfred, Sewell and Isaac Combs. ’ ’ It does not read to the sons of one brother and two nephews, but to- the sons of three brothers. Therefore parol evidence would not have been admissible in proof of the allegation in the complaint. 40 Cyc., 1440.
The decree of the chancery court dismissing appellants ’ complaint for want of equity is therefore affirmed. | [
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Mehaffy, J.
The plaintiffs brought suit in the Ouachita Circuit Court, alleging that Henry C. Cates was the owner of the south half of the northwest quarter of the southwest quarter of section 33, township 18 south, range 15 west, Union County, Arkansas, which was subject to an oil and gas lease in favor of the Gf. S. & Gf. Corporation; that Cates was the owner of one-eighth royalty interest in and to the oil produced and severed from said tract of land; that the Gf. S. & Gf. Corporation, from November 21 to March 22, sold and delivered to the defendant numbers of barrels of oil for the total price of $135,924.31, of which sum the plaintiff, Henry Cates, was entitled to $16,990.54; that the defendant had paid Cates one-half this sum and owed him $8,495.26, which was past due; that Henry C. Cates had assigned and transferred to the plaintiff, Harlan Bennett, his interest and claim to said money.
The defendant, Shreveport-El Dorado Pipe Line Company, Incorporated, denied that Cates was the owner of the land and entitled to receive royalty of one-eighth of the oil, and denies that it received the oil from the Gf. S. & Gf. Corporation, as alleged in the complaint; denied that it had paid Cates any sum whatever on account of oil purchased from the land described. Defendant, by way of cross-complaint, alleged that it purchased oil from the Gf. S. & Gf. Corporation, which was delivered to it on the southwest quarter of the southwest quarter of section 33, township 18 south, range 15 west, and paid Henry Cates one-sixteenth royalty interest; that this payment was made in pursuance to a division order executed by Henry C. Oates, in which division it was alleged that Cates agreed that this was his only interest. Defendant further alleged that, at the same time, it paid to Cordell, Swilley and Cobb the other one-sixteenth; that, by the terms of the division order, the title to the oil purchased by the defendant was guaranteed, and the defendant made payments to the parties other than Cates, in accordance with the division of interest as shown by said division order; defendant asked that Cordell, Swilley and Cobb be made parties to the action, and that defendant have judgment against them in case plaintiff obtained judgment against it. The case was transferred to equity.
Cordell, Swilley and Cobb filed separate answer. Defendant filed an amendment to its answer, denying that the plaintiff, Cates, was the owner of any oil severed from the lands, but alleged that the G-. S. & Gr. Corporation, under the terms of the lease, was the owner of all oil produced and severed from the soil, and that, if any oil which defendant ran was in fact produced and severed from land described in plaintiff’s complaint, it was purchased by this defendant from the Gr. S. & Gr. Corporation, which failed and refused to run any part of said oil to’ the credit of the plaintiff, Henry Cates, except one-sixteenth, for which payment had been made to plaintiff. Defendant says it had no knowledge that plaintiff was entitled to receive any royalty on any part of the oil purchased by it from the Gr. S. & Gr. Corporation, except an undivided one-sixteenth, and, if plaintiff had failed to receive what was due him, it was caused by breach of the contract existing between plaintiff and Gr. S. & Gr. Corporation, and not the fault on the part of defendant, and was caused by the carelessness of plaintiff in failing to notify defendant about the division order. Defendant alleged that all oil purchased by it was purchased under the division order referred to in the original answer, which was signed by the plaintiff, Cates, and that said division order authorized said defendant to pay to Cordell, Swilley and Cobb one-sixteenth; that, if part of the oil purchased by the defendant, of which Cates was entitled to one-eighth, was delivered to Cordell, Swilley and Cobb, he and his co-plaintiff, Bennett, knew the fact, and knew that said oil was being run under said division order, and they allowed and permitted defendant to make payment in accordance with said division order, and, by their failure to object and call defendant’s attention do the fact that the oil was being produced from lands where the plaintiff was entitled to receive and collect one-eighth, they are estopped to insist that defendant be required to pay them. That, if plaintiff has any right of action, it is against the G-. S. & G. Corporation. The court found in favor of the plaintiff against the Shreveport-El Dorado Pipe Line Company, Incorporated, and found in favor of the Shreveport-El Dorado Pipe Line Company, Incorporated, against cross-defendants, Cordell, Swilley and Cobb, finding the amount due each.
The lease passed to the G. S. & G. Corporation, in so far as sixty acres of the land is concerned, and, in discussing the issues and the case, the attorneys have referred to the land as the south forty and the north twenty. The lease is the usual oil and gas lease by Cates and his wife of the land described, for the sole and only purpose of mining and operating for oil and gas, laying pipe lines, etc. After a description of the land and the statement as to the term it is to remain in force, it is stated: “In consideration of the premises the said lessee covenants, (1) to deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of the oil produced and saved from said leased premises.” The above is the important section involved in this suit, because the main contention of appellant is that the lessee became the owner of all the oil and gas, and that the one-eighth was merely paid as rental. Another clause of the lease provided :
“If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding, on the lessee until the lessee has been furnished with a written transfer or assignment or a true copy thereof; and it is hereby agreed that, in the event this lease shall be assigned as a part or as to parts of said above described lands, and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportional part of the lands due from him or them, such default shall not operate to defeat or affect this lease in so far as it covers a part or parts of said lands upon which said lessee or any assignee thereof shall make due payment of said rentals. ’ ’
The last quoted clause is also important, because ■of the contentions of the different parties.
On December 17, 1921, the parties interested signed a division order directed to the Shreveport-El Dorado. Pipe Line Company, Incorporated, in which they stated that they certified. and guaranteed that they were the legal owners of the wells on the south forty and that they are entitled to the entirety of the oil produced from said well, including the royalty and interest, until further written notice. The Shreveport-El Dorado Pipe Line Company, Incorporated, was to give credit for all oils received from said wells as per directions 'below. Then the directions were to give Henry C. Cates one-sixteenth, the G-. S. & G-. Corporation seven-eighths. This letter or division order was signed by the Gr. S. & G-. Corporation, Henry Cates, John A. Cobb, J. C. Swilley, treasurer, and R. M. Cordell.
It is unnecessary to set out the testimony in full or at length. ' The real contention is largely a question as to the law. That portion of the testimony necessary to be discussed will be set out later.
The appellant’s first contention is that, under the terms of the lease, the title to all the oil from the land covered by the lease vested in the lessee and his assigns as and when it was produced and severed from the soil, and that the stipulation in the lease for the delivery of one-eighth of all the oil produced to the pipe line to the credit of the lessor was a covenant by the lessee to pay rent in kind, and was not a reservation of title in the lessor as to snch one-eighth. We dq not agree with the contention of appellant that this is true.
Appellant’s attorneys call attention to a'number of cases decided by this court to the effect that, when the oil or gas is taken from the ground and placed in the pipe line, it becomes the personal property of the plaintiff, just like any other personalty owned by it, but, even in those cases referred to, the question now before the court was not under consideration* and we do not think the authorities of this court cited by appellant support its contention.
The evidence shows that the pipe line company had ■ knowledge of the provisions of the lease, and the provisions of the lease advised it that the appellee owned one-eighth of the oil on the south forty and the north twenty. About this there is no dispute. The division order expressly states that the persons signing it are the legal owners and entitled to the entirety of the production from said wells, including the royalty interest. Therefore, when appellant examined the lease, it was bound to know that one-eighth of the oil which went into its pipe line, under the terms of the lease, belonged to the appellee. When it received the division order, it showed on its face that it applied to the south forty alone. It therefore had knowledge 'that, under the terms of the lease, the- appellee owned one-eighth, and from the division order it knew that he had sold a portion of his royalty on the south forty alone. Therefore, whether the lessee became the sole owner or not would seem to be immaterial, because, when the appellant received the oil into its pipe line, it knew that the appellee was entitled originally to one-eighth on both tracts of land, and knew that he had only sold a portion of that on the south forty. It therefore follows that, when the appellant received oil which came from the north twenty, it was its duty to deliver it according to the terms of the lease, unless it had received a division order as to the oil from this north twenty.
It was said by the West Virginia court: “A complaint is made that the decree required the pipe-line company to make discovery of the oil run into this line, when no officer of it was made a party capable of making discovery. This is answered by the fact that the company filed a statement of such oil which formed the basis of a decree. The law does not require that some officer be made a defendant when discovery is required, as a corporation discovers by an officer; it is a means of discovery for the plaintiff’s benefit, but, when the corporation does make the discovery and it is accepted, where is the error?” Smith v. Linden Oil Co., 69 W. Va. 57, 71 S. E. 167.
It was also said in the above case:
“That the pipe line company was a common carrier; * * * that it contracted only with the Linden Company to receive its oil, and that parties must look to Harter and the Linden Company. This is a claim of nonaceountability by the pipe-line company to the true owner of the oil; a claim that a common carrier .knows only the consignor and consignee, and cannot be called on by a third party, having true title to the goods, to recognize this right. But the authorities do not bear out this position. The carrier is bound to respond to the demand of the real owner for possession of Ms goods, and, in so doing, does not render himself liable to one who, having wrongfully obtained possession, has delivered them to the carrier for transportation. The real owner may maintain an action against the carrier' for refusal to deliver goods to which he is entitled. * * * The lessee in this lease stipulated to deliver the royalty oil into the pipe line to the credit of Harter., When that oil got into the pipe line, it was the property of Smith and Underwood. It was by extraction made personal property, and belonged to them. It cannot be that,,, simply because it was in the pipes, it was beyond the reach of the true owners.”
Again, the court said in the same case:
“Tke'fact that the premises were in the possession of the Linden Company is urged as being the sole test to show that the pipe-line company was not hound to look further, hut only to receive from it without liability to the true owner.”
The court also said:
“Counsel tell us that an oil lease providing for royalty is like an agricultural lease; that tbie royalty is like a share of a grain crop to be paid the landlord; and that title remains in the landlord until he divides the grain and separates the landlord’s part, and Harter and those under him have no title to sustain suit until the oil is separated- Now, all the oil is run into the pipe line. The lease in terms says that the royalty shall be delivered into the pipe to the credit of the party of the first part. It provides no separate delivery, but for running the oil as a whole into the pipes. This peculiar provision distinguishes it from an agricultural lease. Delivery to the pipe line was a separation going to the credit of the lessor, giving him title.”
"We think the decision of the "West Virginia court is a complete answer to appellant’s argument as to the ownership of the one-eighth interest; but, in addition to the fact that the lease itself showed that the appellee was entitled to the one-eighth, the division order expressly states that the persons signing it are the owners of all the oil. There is no controversy about the fact that .oil, before it is severed, is a part of the land, and, when it becomes severed, it is personal property, but it is earnestly argued that it is not only personal property but it is the property of the person who severs it, that is, the property of the lessee. The facts in this case, the lease and the division order, show that a portion of it is the property of the lessor. It is just as much his property under the facts in this case as it would be if he had simply employed the lessee as his servant to do the work and bring it to the surface. In fact, one might employ an agent or servant to bring oil to the surface with the agreement and understanding that, when it 'was brought to the surface, it should be delivered into a pipe line, a certain portion of it to the employer or landowner and a certain portion of it to the person who severed the oil. It therefore seems clear that one-eighth of the oil on the twenty acres was the property of the appellee, but we also think that, even if it were the payment of rent in kind, when the one-eighth together with the other seven-eighths was delivered into the pipe line, all together, the appellant was hound to know that one-eighth of it was to be paid to the lessor.
In the ease of Nonamaker v. Amos, 73 Ohio St. 163, 76 N. E. 949, from which the appellant quotes at length, it .will be observed that one contention in that case was that a parol contract related to an interest in land, and that it was not to be performed in a year. These were the issues, but it was said in that case:
“This is the lessor’s compensation for the lease and rights granted therein. The five-sixths go to the lessees by virtue of the same instrument, because the grant to them was the oil contained in the premises.”
So, it seems from that case that the lessor was regarded as the owner. To be sure, it says that the oil becomes personal property and belongs to the owner of the well. That simply means that it belongs to the parties whose interests are shown in the lease and the division order. Other cases referred to hold that the one-eighth is given as a consideration for the grant, and that it. was not a reservation in any sense of any part of the gas or oil in place in the land. Of course, it did not become personal property until severed from the land, and the lessee himself had no interest in the soil and no interest in the land except the right given him by the lease as to the gas and oil.
Appellant next contends that, because the title is in the lessee when the oil is severed, an action will not lie by the lessor against the lessee’s vendee for conversion. We have already held that the title to the one-eighth is not in the lessee, and certainly, when delivered in the pipe line, one-eighth of it was the property of the lessor.
It is next contended by appellant that appellees are estopped to recover from the appellant by the execution of the division order which sets forth the interest of Cates as one-sixteenth. Defendants argue that they had no notice. We have already shown that they had knowledge of the lease, which showed one-eighth to belong to the lessor, and that the division order was confined to the south forty.
They next argue that the appellees are estopped by the failure to call appellant’s attention to the fact that it was paying royalties to other parties, which should, have been paid to Cates. What we have already said about the notice and knowledge of appellant disposes of this question.
The evidence is sufficient to justify a decree in favor of appellees against appellant, and also in favor of appellant against Cordell, Swilley and Cobb. The decree of the chancery court is therefore affirmed. | [
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Humphreys, J.
The only question involved on this appeal is the constitutionality of the latter part of § 4773 of Crawford & Moses’ Digest, which is as follows: -“Any person wishing to avail himself of the privilege of hunting in this State, upon an application to the commission and furnishing the commission with his personal description, as provided in the form of license hereinafter provided, and payment to the State Treasurer or to the circuit clerk of the county in which application is made (of) a license fee, as follows: For a resident to hunt deer, bear dr turkey, $1.10; to fish with artificial bait, $1.10; for nonresident of the State to hunt, $15; to fish, $5; shall receive a license to- hunt or fish in any county in this State; all licenses to expire December 31 of the year issued. Provided, the commission may, on application, issue to a nonresident a trip license to -fish not to exceed fifteen days for $1.10; but such holder of said license shall not take nor ship any fish so caught out of the State; and provided, further, that only one trip license may be issued to one person during any one year; provided, further, that only those persons shall be classed as residents who possess the qualifications of a legal voter under the laws of Arkansas.” .
The case was tried below on an agreed statement of facts, which resulted in a finding by the court that the latter part of said section was contrary to § 18, article 2, of the Constitution of Arkansas which provides:.
“The General Assembly shall not grant any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.”
Based upon this finding and declaration of law, the trial court acquitted appellee of the charge against him for fishing without obtaining a nonresident license in accordance with said section. The agreed statement of facts is as follows:
‘‘Comes H. IT. Williamson, prosecuting attorney for the State of Arkansas, and Fred M. Pickens, attorney for the defendant herein, and respectfully submit by agreement the following statement of facts upon which this case is to be tried: This cause is here on appeal from the justice court of Union Township, Jackson County, Arkansas, defendant being charged with a violation of the fish and game laws of the State of Arkansas by fishing in the waters of this State without first procuring a nonresident license to do so, and, the defendant waiving a jury, this cause is submitted to the court sitting as a jury for the trial hereof, and the facts are as follows: W. E. Johnson, the defendant in this case, has lived in this State for the past three years, two of which he lived in Blytheville, Arkansas, which is in Mississippi County. He owned a house and lot in Blytheville, and he and his family, composed of wife and children, lived in same for two years; he then sold said property and moved to Newport, in Jackson County, Arkansas, July 25,1926, and took charge of the office of Anderson-Clayton Cotton Company, cotton buyers, and moved to Newport with the intention of making it his permanent home, ■bringing Ms family with him and renting a home in Newport. He has bought three resident'licenses to fish for the three years which he has been in this State, the last resident license being for the year 1926, the fees for said license being .$1.10, and he had same with him at the time of his arrest and while fishing. He has never paid a poll tax in this State since he has been in same, but has paid property tax on his property at Blytheville. He does not claim citizenship in any other State, and has not paid a poll tax in any other State, but claims Arkansas as his home and expects to permanently reside therein. He admits fishing in the waters of this State without the payment of poll tax during the year 1926 for which he was arrested. Admits that he had no nonresident license, but has, and has had for three years, annual resident license. ’ ’
Section 4773 of Crawford & Moses’ Digest, down to the last proviso or last clause, extends to every resident of Arkansas the right to fish with artificial bait upon the payment of a license fee of $3.10. This is a proper classification, because it embraces every bona fide resident in the State, excluding from the right to pay a resident license and fish all who are temporarily residing- in the State. This classification is in keeping- with the well-recognized doctrine that the fish and game of the State belong to the State in trust for the public, and that the Legislature may regulate the taking of same so long as it does not discriminate against any qne class of its citizens. Lewis v. State, 110 Ark. 204, 161 S. W. 154.
The last clause of said section attempts to make a classification within the first classification by limiting- the right to fish in the waters of the State to those residents only who possess the qualifications of a legal voter under the laws of Arkansas. The proviso clearly means that, before a bona fide resident of the State can pay a resident license to take fish out of the waters of the State with artificial bait, he or she must have attained to his or her majority, paid a poll tax, and have resided in the State a year, in the county six months, and his voting precinct thirty days. The attempted classification in the last proviso is in conflict with the first classification, wholly foreign to the subject in hand, that of a right to fish, and is an unjust, unreasonable classification. There is no rhyme, reason or justice in saying that a bona fide resident boy or girl of the State cannot pay a resident license and take fish from the waters of the State until they attain their majority, pay a toll tax, reside in the State a year, the county six months, and their voting precinct thirty days. It would be just as reasonable to say that one could not pay a resident license to fish after he attained to the age of 25 or 30 years, as to deprive him of the privilege until he has reached his majority. Classifications of the citizenship to whom privileges and immunities are granted must be reasonable and just, else there is necessarily an arbitrary discrimination between the citizens embraced in the class, or between the class and all other citizens of the State. Section 18, article 2, of the Constitution of Arkansas prohibits the General Assembly from granting to any citizens or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. The proviso or last clause of § 4773 of Crawford & Moses’ Digest is therefore void because repugnant to the valid part of said section as well as to § 18, article 2, of the Constitution of Arkansas.
The judgment of the trial court is affirmed.
Chief Justice McCulloch dissents. | [
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McCulloch, C. J.
Appellee was the plaintiff below in an action at law instituted against R. W. Bowen to recover upon a promissory note executed by the latter. An order of attachment was duly issued at the time of the commencement of the action, and the writ was levied on 459 sawlogs as the property of Bowen. Appellant inter-pleaded in the action, claiming to be the owner of the attached property. Bowen made default, and a judgment was rendered against him on the note, and the attachment was sustained. The issue between appellant and appellee on the former’s interplea was tried before the court sitting as a jury, and the trial resulted in a finding and judgment against appellant.
Appellant is a foreign corporation, engaged in the hoop business at Memphis, Tennessee. The Des Arc Hoop & Lumber Company is a domestic corporation, owning and operating a plant at Des Arc for the manufacture and sale of hoops and other timber products. R. W. Bowen is the president and acting manager of the Des Arc Hoop & Lumber Company. The lumber company purchased logs from various persons and manufactured them into hoops and lumber and sold the product to appellant and other dealers in those lines of business. It was the custom between appellant and the lumber company that, when the latter purchased logs for the manufacture of hoops, appellant furnished the money to pay for same and the lumber company gave appellant a bill of sale for the logs purchased. The logs were then transported to the mill at Des Arc, and hoops manufactured therefrom Avere shipped to appellant. Appellant took the hoops at the prevailing market price at the time of shipment, which was agreed upon between the parties from time to time, and the price was credited to the lumber company on appellant’s books, the amount advanced to purchase the logs having been already charged to the lumber company, and settlement between the two corporations was made on the basis of the difference- between the amount advanced by appellant for the purchase of the logs and the market price of the hoops delivered.
Appellee was originally the owner of the logs in controversy, and sold them to the lumber company, R. W. Bowen acting for the company in the purchase. The logs were then banked on Black River, and, after the sale and purchase, were throAvn into the river and rafted and then floated down Black River into' White River, and thence down White River to Des Arc. On the day the logs were purchased from appellee they were scaled, and appellee executed the following certificate to appellant:
“7/27/23.
“Cate-LaNieve Co.,
Memphis, Tenn.:
“R. W. Bowen has this day scaled 459 elm logs which are clear from all incumbrance.
“T. C. &R. L. Plant,
“By T. C. Plant, Bald Knob, Ark.”
The scale of the logs, showing 53,226 feet, was forwarded to appellant by the lumber company, together with a bill of sale for the logs, duly executed by Bowen as president of the lumber company, and appellant sent a check for $852.61, the purchase price of the logs, and this check was delivered to appellee in payment. The bill of sale was dated July 28, 1923, and Avas in absolute terms conveying the logs to appellant.
The order of attachment in this case was levied on the logs after they reached the mill at Des Arc. Bowen testified that he purchased the logs for his company, and was acting for the latter throughoüt the transaction. Bowen and the secretary of appellant company, Mr. Bigelow, both testified concerning the method of doing business between appellant and the lumber company, and their testimony is undisputed. Appellee did not introduce any evidence, but relied upon the supposed failure of appellant to make out a case showing title to the property in controversy. The trial court found, as before stated, in favor of appellee, and the primary question presented on this appeal is whether or not the evidence is legally sufficient to support the finding of the court.
Counsel for appellee rely upon the settled rule of law, that an interpleader claiming property seized under a writ of attachment against a third person must prevail, if at all, upon the strength of his own title.
The bill of sale executed by the lumber company to appellant is, on its face, an absolute conveyance, but the evidence tended to show that it was really intended as security for the money advanced by appellant for the payment of the price of the logs.' This fact is mentioned for the reason that counsel for appellee treat it as of primary importance in sustaining the judgment of the court. Their ‘argument in support of the judgment is that the bill of sale was nothing more nor less than a chattel mortgage, and that it was void against third parties because not filed or recorded. The answer to this contention is that the instrument was not in form of a mortgage, even though so intended by the parties, and is not controlled by registration laws governing mortgages. Martin v. Schichtl, 60 Ark. 595, 31 S. W. 458; Priddy & Chambers v. Smith, 106 Ark. 79, 152 S. W. 1028, 44 L. R. A. (N. S.) 285; Williams-Echols D. G. Co. v. Bloyd, 169 Ark. 529
The case stands, then, the same as if the bill of sale was in fact what it purported to be on its face, ail absolute conveyance, and tbe case turns upon tbe question of fact whether or not there was a sufficient delivery of the property to pass the title. Bowen, the defendant in the attachment, has never been the owner of - the property, for, according to the undisputed evidence, he was acting for his company in making the purchase. When the title passed out of the appellee, the original owner, it went to the purchaser, Des Arc Hoop & Lumber Company, and thence passed to appellant under the bill of sale, if there was a sufficient -delivery to consummate the conveyance. There is no question of fraud involved in the case, and appellee is not claiming as an innocent purchaser. He is merely an attaching creditor, and, if there was sufficient delivery, either actual or constructive, to pass the title, then the judgment, of course, should have been in favor of appellant. It has always been the rule of this court that constructive delivery on the sale of a chattel is sufficient to pass title, and that the intention of the parties, when manifested by any overt act, is controlling. Cocke v. Chapman, 7 Ark. 197; Durr v. Henry, 44 Ark. 301; Shaul v. Harrington, 54 Ark. 305, 15 S. W. 835; Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227; Guion Mercantile Co. v. Campbell, 91 Ark. 240, 121 S. W. 164; Elgin v. Barker, 102 Ark. 482, 153 S. W. 598; Vance v. Bell, 153 Ark. 229, 240 S. W. 8. In Shaul v. Harrington, supra, it was said: “If the vendee may leave the vendor in possession to enjoy temporarily the full fruits of ownership, as was done in Twine’s case, and yet be allowed the opportunity to maintain his title, as he may in this State, the reason is all the stronger for allowing the vendor to retain possession as bailee for the vendee’s profit and benefit.”
The testimony in this case shows unmistakably that the intention of the parties was to transfer the title of the property to appellant, and that the lumber company, as the vendor, should retain possession merely for the profit and benefit of the vendee, so this brings the case squarely within the rule announced by the court in Shaul v. Harrington, supra. The facts of the case also come clearly within the rule announced by the court in Lynch v. Daggett, supra, and in that case the facts with regard to delivery were the same, the only difference in the cases being that one was in fact an absolute sale, whereas, in the present case, the bill of sale was intended as security; but, as we have already seen, that distinction is immaterial. The case also falls within the control of our decision in Vance v. Bell, supra, where there was a bill of sale executed without actual delivery or visible change of possession, and the property remained in possession of an employee of the vendor. The trial court held, the same as in this case, that there was no delivery, but this court reversed the judgment, holding that the delivery was complete.
It follows that the judgment of the circuit court was, upon the undisputed facts in the case, incorrect, and the same must be reversed. Appellant having given bond for the attached property, and the case having been fully developed in the trial below, it is unnecessary to remand the cause for a new trial, and .judgment will be entered here in favor of appellant. It is so ordered. | [
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Smith, J.
Appellants are tbe heirs-at-law of Simon Flannigan, who died in 1899, and, at the time of his death, was in possession of a 120-acre tract of land in Columbia County, which he and his wife were- occupying as their homestead. Flannigan and his wife had executed a deed of trust on this land to one S. 0. Couch, but that instrument had not been acknowledged in a manner to conform to the act of March 18, 1887, entitled “An act to render more effectual the constitutional exemptions of homesteads,” which appears as § 5542, C. & M. Digest. This deed of trust contained a power of sale, and, pursuant to the authority" thereof, the trustee sold the land, and Couch became the purchaser. This trust deed was dated October 28, 1910, and in, 1913 appellee, Neely Beavers, purchased the land from Couch, and immediately entered into possession.
This suit was brought against Beavers to recover possession of the land. It was alleged in the complaint, and testimony was offered tending to show, that the indebtedness secured by the deed of trust was paid before the foreclosure sale. It was also alleged that the trustee’s sale was void because notice of the sale was not published as required by the deed of trust, and it was also insisted that the deed of trust was void because the land mortgaged was the homestead of Flannigan, and had not been acknowledged as required by §. 5542, C. & M. Digest.
A number of interesting questions are discussed in the briefs, which we find it unnecessary to decide, because the defendant Beavers defended his possession upon the ground that he had been in the open, actual, adverse and hostile possession of the land for a period of more than seven years, and this issue was submitted to the jury, and the finding in appellee’s favor is conclusive of this question of fact.
Appellants offered testimony tending to show that the indebtedness secured by the deed of trust had been paid, and also that, long’ after the alleged void foreclosure of the deed of trust, a grandson of Flannigan was left in possession of the land as the cotenant of the other heirs of Flannigan, and that he remained in the possession of a portion of the land until a few years before the institution of this suit — a period less than seven years before the suit was brought. On the other hand, the testimony on the part of Beavers was that this grandson of Flannigan occupied the land as the tenant of Beavers. This was of course a question of fact, which is concluded by the general finding of the jury.
The argument for the reversal of the judgment which was pronounced in Beavers’ favor is that the deed of trust was void because it had been paid, and because it was not executed and acknowledged as required by § 5542, 0. & M. Digest, which last argument is answered by reference to act 80, Acts 1923, page 43, which was an act to cure conveyances defective under § 5542, C. & M. Digest. An act of similar purport was upheld by this court in the case of Hanson v. Brown, 139 Ark. 60, 213 S. W. 12.
It is further argued for the reversal of the judgment of the court below that, even though the deed of trust had not been paid and was valid under the act of 1923, the foreclosure sale and the trustee’s deed were void because proper notice thereof was not given, and the case of Stallings v. Thomas, 55 Ark. 326, 18 S. W. 184, is cited in support of that contention. The insistence is that, if this foreclosure sale is void, then Couch became only a mortgagee in possession by his purchase at the trustee’s sale and his entry thereunder, and that Beavers, having purchased from Couch, acquired only, such rights as Couch had, which were nothing more nor less than that of a mortgagee in possession.
The deed from Conch to Beavers was a warranty deed, in usual form, and purported to convey the absolute title to the land, and it was at least color of title, and the testimony on behalf of Beavers was to the effect that he immediately entered into the possession of the land and occupied it openly, continuously and adversely for a period much longer than seven years before the institution of this suit, and, in our opinion, this possession was a bar to plaintiff’s right to recover the land.
It becomes unnecessary therefore to determine whether the indebtedness secured by the deed of trust had been paid, or to determine whether the deed of trust to Couch was void through failure to follow the directions of the power of sale incorporated in the deed of trust. There was a trustee’s sale, and a deed was executed pursuant thereto to Couch, who conveyed to Beavers, and these conveyances were color of title, and the jury has found that Beavers’ possession was at all times adverse and hostile and continued for- a period of more than seven years before the institution of this suit.
Adverse possession of a tract of land, under color of title to the whole, is sufficient to give title to the whole if maintained for the statutory period. Wheeler v. Foote, 80 Ark. 435, 97 S. W. 447.
We hold there ivas color of title, and the jury has found that more than seven years’ possession was had thereunder, and that the same was adverse and hostile, and, this being- true, the plaintiffs’ cause of action was barred, and the judgment of the court below is therefore correct, and is affirmed. | [
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Lavenski R. Smith, Justice.
Appellant Bill J. Ford (“Ford”), Bank Commissioner of Arkansas, appeals an adverse decision from the Pulaski County Circuit Court in which the court determined that the Bank Commissioner’s decision to uphold a bank reorganization was ultra vires of the governing statute, Ark. Code Ann. §23-48-601 et seq. (Supp. 1997), entitled “Reorganization Through Plan of Exchange.” The trial court reversed and remanded the matter to the Commissioner for further consideration. On appeal, Ford argues that the Commissioner’s decision was not ultra vires of the statute and that the banks should have been made parties to this action. In response, Appellee A.M. Keith (“Keith”) argues that the circuit court did not err in finding that the plan of exchange was ultra vires of the statute, that the banks were not required to be made parties to the action pursuant to Ark. R. Civ. P. 81(a) and the Administrative Procedure Act, and that Ford’s failure to rebut the circuit court’s order for remand now renders that decision res judicata and this court cannot change that decision. We reverse the Commissioner.
Facts
This case arises out of the conversion and merger of a state savings and loan into a state bank, and the ultimate freeze-out of the minority stockholders in the bank. For many years, the Benton Savings and Loan Association operated out of Benton, Arkan sas, as a state savings and loan association operating under authority of the Arkansas Savings and Loan Board. Keith, a minority shareholder, maintained 66,001 shares out of 658,912 shares issued by the savings and loan, or approximately 10.02% of the shares. Union Bancshares of Benton, Inc. (“Bancshares”), an Arkansas holding company, owned 567,575 of the shares, or approximately 87% of the shares. The other shares were owned by various minority stockholders.
In April, 1997, Benton Savings and Loan filed an application with the Savings and Loan Board to move the home office of the Savings and Loan from Benton to Bryant, Arkansas. Mac Dodson, Arkansas Savings and Loan Supervisor, approved this move on May 13, 1997. Shortly thereafter, on July 15, 1997, Benton Savings and Loan’s board of directors passed a resolution to convert the Savings and Loan from a state-chartered savings and loan to a state-chartered bank. On July 28, 1997, a majority of the shareholders voted to pass this resolution for conversion, and the Arkansas Bank Commission and State Banking Board approved it on October 16, 1997. The new name of the bank was The Union Bank of Bryant (“Union Bank”).
Approximately one month later, Union Bank’s board of directors notified all of the shareholders that the directors had adopted an Agreement and Plan of Exchange proposing a cash payment of $18.50 per share by Bancshares for all of the minority stock in the bank, with the goal being that the bank would be wholly owned by Bancshares. Notice of the adopted Agreement also included notice that a special meeting of the shareholders would be held on December 16, 1997. The purpose of the special meeting would be to vote on the Agreement and, if approved by a majority of the shareholders, a hearing would be held the same day with the Arkansas Bank Commissioner to approve the plan.
The bank’s directors held the meeting on December 16, 1997. At the meeting, Bancshares, holding the vast majority of the shares in the bank, voted to approve the Agreement. Keith voted against the agreement. In addition, prior to the meeting, Keith gave notice to the bank that he would dissent from the vote in accordance with Ark. Code Ann. § 23-48-603. After the shareholder vote approving the Agreement, Arkansas Bank Commissioner Ford held a hearing that afternoon for the approval of the plan. At the hearing, Keith announced his dissent against the Agreement, specifically arguing that the Agreement was invalid and should not be enforced. Bancshares did not produce any supporting documentation at the hearing in support of approval of the Agreement. Keith, however, produced pleadings and a brief in support of his dissent. At the conclusion of the hearing, Commissioner Ford approved the shareholder vote and the ratification of the Agreement. Ford read his decision into the record from a pre-prepared order. In his decision, Ford determined that the Agreement was not contrary to law, was not inequitable to the stockholders of the bank, provided satisfactory means of disposing of shares of the bank resulting from the dissenting shareholders, and that the merger would not substantially reduce the security of or service to be rendered to the depositors or other customers of the bank. Ford filed his formal order with findings of fact and conclusions of law on January 16, 1998. On December 23, 1997, Keith filed an appeal from Ford’s decision in the Pulaski County Circuit Court, arguing, in part, for a stay of the enforcement of Ford’s December 16, 1997, order. The circuit court held a hearing on January 6, 1998, and in an order dated January 8, 1998, stayed the Commissioner’s December 16, 1997, order. The court determined that the order did not comply with Ark. Code Ann. § 23-48-601 (b) because it failed to “provide a concise and explicit statement of the underlying facts supporting his findings of fact, and simply states in conclusary (sic) form the statutory requirements. . . .” The circuit court gave Ford until January 20, 1998, to enter an order in compliance with the statute, and reset a hearing in the circuit court for February 9, 1998, for further adjudication of the matter. As noted above, Ford subsequently filed his formal order on January 16, 1998.
A full hearing was held on February 9, 1998, at which the parties argued their positions on the matter. On July 6, 1998, Pulaski County Circuit Judge Bogard entered judgment against the Commissioner finding that the Plan of Exchange and Agreement approved by Ford was ultra vires of Ark. Code Ann. § 23-48-601 to 605. The court ruled that the Commissioner cannot treat shareholders differently in a Plan of Exchange under the statute. The court found that Ford’s order left Keith with no option but to accept cash for his stock without adequate opportunity to present evidence or testimony on a fair price for his shares. Based upon the court’s construction of the statute, it ruled that Ford’s decision was ultra vires of the statute, and therefore arbitrary, capricious and an abuse of discretion. The court then reversed the decision for further proceedings before the Commission. It is from this order that Ford timely appealed on July 15, 1998. This case was originally filed in the Court of Appeals, but certified to this court under Rule 1-2 of the Rules of the Supreme Court.
Standard of Review
Decisions of the Banking Board and Commissioner are subject to the Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-201 et seq., under Ark. Code Ann. § 23-46-207. The Arkansas A.P.A. allows this court to review the decision of the administrative agency notwithstanding the decision rendered by the circuit court. In an appeal from an administrative order, our review is directed to the agency’s decision, not the circuit court’s. Hankins v. Department of Finance and Administration, 330 Ark. 492, 954 S.W.2d 259 (1997). When reviewing administrative decisions, we will review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Wright v. Arkansas State Plant Board, 311 Ark. 125, 130, 842 S.W.2d 42 (1992). We recognize that
administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.
Wright, 311 Ark. at 130.
Evidence is given its strongest probative force in favor of the agency’s ruling, and we will not reverse an agency decision when there is substantial evidence to support it. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). To determine whether a decision is supported by substantial evidence, we review the entire record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright, supra (citing Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361 (1986); Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980)).
Statutory Construction and Interpretation
This case involves a first-impression interpretation of a banking statute. The basic rule of statutory construction is to give effect to the intent of the legislature. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 338-339, 969 S.W.2d 190, 191-192 (1998) (internal citations omitted). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be giving to every word in the statute if possible. Id. The construction of a state statute by an administrative agency is not overturned unless it is clearly wrong. Thomas v. Arkansas Department of Human Services, 319 Ark. 782, 894 S.W.2d 584 (1995) (citing Douglass, supra.) Ordinarily, agency interpretations of statutes are afforded great deference, even though they are not binding. Arkansas State Medical Bd. v. Bolding, 324 Ark. 238, 244, 920 S.W.2d 825 (1996). Flowever, although an agency’s interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Kildow, 333 Ark. at 339. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997).
The first and principal issue Keith argued before the Commissioner was that the proposed Plan of Exchange exceeded the authority and scope of Ark. Code Ann. § 23-48-601 et seq. Before the Commission, in his written motion, brief and oral argument, Keith asserted that the Plan of Exchange constituted a forced sale, or “freeze-out,” of the non-favored minority shareholders’ property to the control group, or the majority shareholder, Bancshares. Keith contended that the statute requires that in such a Plan of Exchange where the majority votes to sell the stock, “all” of the stock must be sold and each shareholder must receive the same compensation for his stock. Keith further argued that the statute contemplates “setting up” a holding company, instead of allowing an already existing, majority shareholder holding company, to buy out the minority shareholders. In essence, Keith argues that this statute is only valid if effectuated with a “straw-man” as the buyer of the stock. A contrary reading of the statute, Keith argues, would mean that the Commissioner can use his authority to force the minority shareholders to sell their shares to the majority shareholders of the same class of stock with a simple majority vote. As such, this would be a “taking” implicating the due process and just compensation clauses of the federal and state constitutions. Representatives from Bancshares and Union Bank did not comment on the Plan of Exchange, and did not present any evidence of the validity of the Plan, other than the petition previously filed with the Commissioner seeking approval of the Plan, to dispute Keith’s contentions.
Under Ark. Code Ann. § 23-48-601 et seq., the legislature set out the process for “Reorganization Through Plan of Exchange,” allowing a state bank to “adopt a plan of exchange of all of the outstanding capital stock held by the stockholders for the consideration designated in the section to be paid or provided by a bank holding company which acquires the stock.” Ark. Code Ann. § 23-48-601 (a)(1). As one form of compensation, the acquiring bank holding company may pay cash for the acquired stock. Ark. Code Ann. § 23-48-601 (a)(2)(C). The Plan of Exchange may not go into effect until filed with and approved by the State Bank Commissioner, and the Commissioner’s approval may not be given until made in writing after notice and a hearing on the matter. Ark. Code Ann. § 23-48-601 (b). The Commissioner’s approval must be made within a reasonable time after the hearing, unless he finds that the plan:
(1) Is contrary to law;
(2) Is inequitable to the stockholders of the state bank involved;
(3) Would not provide a satisfactory means for disposing of shares of the state bank resulting from dissenting stockholders; or
(4) Would substantially reduce the security of or service to be rendered to depositors or other customers of the state bank or any affiliate bank of the state bank or the bank holding company.
Ark. Code Ann. § 23-48-601 (b)(1) through (4).
However, a minority shareholder’s dissent from the Plan of Exchange, in and of itself, is not sufficient to disallow the Plan. Rather than permitting deadlock, the statute authorizes the majority to proceed with its plan but provides for dissenters’ appraisal rights. Under Ark. Code Ann. § 23-48-603, once the Plan has been approved by the majority stockholders and the Commissioner, the dissenters may go through a separate process to get a determination of the value of their stock. The statute allows the dissenters to ask for their own appraisal, require the bank holding company to get an appraisal, and, if neither group agrees on an appraisal amount, to get a third appraiser, agreed upon by the parties, to make an additional appraisal. If the dissenters and the holding company still disagree, the appraisal determination may then be made by the Commissioner, and this appraisal value is binding on both parties. Keith took the initial step under the dissenter’s rights provision in the statute by giving notice to the state bank at the stockholders’s meeting. Rather than pursue the remaining specific steps to perfect a dissent under Ark. Code Ann. § 23-48-603, Keith filed the instant action challenging the validity of the Commissioner’s actions.
The legislature enacted the subject statutory provisions in 1997 and, to date, they have not been interpreted by this court. However, reorganization plans have been used in other jurisdictions. In particular, the Eighth Circuit Court of Appeals deter mined that a “freeze-out” merger under the National Bank Act, codified at 12 U.S.C. § 215, was a valid action by the majority shareholders. See NoDak Bancorporation v. Clarke, 998 F.2d 1416 (8th Cir. 1993); But see Lewis v. Clark, 911 F.2d 1558 (11th Cir. 1990). In NoDak, the court held that a merger between two national banks, which ultimately resulted in the minority shareholders having to sell their shares to the new bank, was a valid interpretation of the National Bank Act. There, the stockholders in a national bank consisted of a 73% majority shareholder which was a holding company, and another minority shareholder holding company. The majority holding company created a “phantom bank,” and then the majority shareholders in the first bank voted to merge with the “phantom bank.” In the merger, the majority shareholders would get a stock exchange to gain the same interest in the “phantom bank,” and the minority shareholders would get money for their shares. It was a forced cash-out, which resulted in the disappearance of the original bank once the shares were sold and exchanged with the new “phantom bank.”
In contrast, the Eleventh Circuit Court of Appeals, three years before the NoDak decision, determined that “freeze-out” mergers were not valid, in part under the theory that “there is a longstanding equity tradition of protection of minority shareholders in American jurisprudence.” Lewis, 911 F.2d at 1561. In Lewis, the court determined that without express statutory authority, the Comptroller who was required to approve the merger plan had no authority to approve a merger which requires equally situated stockholders to take different forms of consideration.
The facts of the instant case differ from NoDak and Lewis. Here, the holding company did not create a “phantom bank” into which the stockholders could vote for Union Bank to merge. Instead, by a vote of the majority stockholder, Bancshares, it was decided under the Plan of Exchange that the minority stockholders must sell their stock to Bancshares, the holding company. On the other hand, Bancshares would not have to sell its shares. In fact, Bancshares would not even have to exchange its Union Bank shares with shares of some “phantom bank.” The practical effect of the process used is that the majority shareholders in Union Bank voted to make the minority shareholders in Union Bank sell their shares of stock to the majority.
The issue before us now is whether Ark. Code Ann. § 23-48-601 et seq. contemplates and permits the procedure approved by the Commissioner. Although there may be a perceived unfairness in the “freeze-out” nature of the procedure, if it is authorized by the statute and not violative of constitutional limitations, it is permissible.
While this nation’s jurisprudence in more recent years has moved away from its earlier staunch safeguards for minority stockholders, our general rules of statutory interpretation must still control to determine whether the actions taken here are valid under the statute notwithstanding the movement away from minority stockholder protection. As Keith argues, the statute is clear on its face that the sale of the shares must be a sale of “all” shares under Ark. Code. Ann. § 23-48-601 (a)(1). As previously stated, the basic rule of statutory construction is to give effect to the intent of the legislature. Kildow, 333 Ark. at 338. If the language is plain and unambiguous, our analysis need go no farther. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).
Flere, no ambiguity exists in the statute to require us to analyze the language beyond its plain meaning. The statute at issue reads in pertinent part:
Authority to adopt plan of exchange — Approval hy commissioner required.
(a)(1) A state bank may adopt a plan of exchange of all of the outstanding capital stock held by its stockholders, for the consideration designated in this section to be paid or provided by a bank holding company which acquires the stock, in the manner provided in this subchapter. . . . [Emphasis added.]
Ark. Code Ann. § 23-48-601. This statute is clear and unambiguous. As stated, a plan of exchange may be effectuated by a vote by the stockholders to sell all of the outstanding capital stock. Reading the plain language of the statute, it cannot be said that the legislature intended “all” to actually mean “some,” as Ford argues.
In support of his argument, Ford argues that the change in the above statute which was enacted through Act 117 of 1999 indicates what the legislature truly intended in the original reorganization statutes. Act 117 of 1999, entitled “Clarification of the Procedures to Reorganize Using a A Plan of Exchange,” significantly modifies the 1997 statute. Specifically, subsection -601(a)(1) was changed to read “A state bank may adopt a plan of exchange for shares of the outstanding capital stock. . .” instead of “A state bank may adopt a plan of exchange of all of the outstanding capital stock. ...” (Emphasis added.) In addition, the legislature further changed the language of the statute by altering subsection -604(a)(1) and (2). In -604(a)(1), “and each shareholder of the state bank acquired shall thereupon cease to be a shareholder of the state bank” was changed to “and each shareholder of the state bank whose shares were acquired shall thereupon cease to be a shareholder of the state bank.” Furthermore, in subsection -604(a)(2), “The ownership of all shares of the issued and outstanding stock of the state bank. . .” changed to “The ownership of shares acquired in the plan of exchange. ...” While these changes may seem minor in nature, they are major in effect. Under the statute as amended, the actions that Bancshares took to consolidate the shares for 100% control of the bank may be permitted. However, despite the attempt to characterize Act 117 of 1999 as merely a “clarification” of the earlier statute, our rules of statutory interpretation do not allow us to consider the 1999 amendment as a “clarification” of the legislature’s intent. We briefly summarized the applicable statutory construction principles in State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994), where we stated:
In support of its position, the State correctly asserts that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). Yet, the State fails to note when a statute is clear, it is given its plain meaning, and that we will not search for legislative intent, rather, that intent must be gathered from the plain meaning of the language used. Pugh, supra. We are also very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994). In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). We have recognized that changes made by subsequent amendments may be helpful in determining legislative intent. American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993).
As noted in McLeod, when the express language of a statute is clear, later statutory changes should only be considered if it is obvious that there has been a drafting error or omission.
The “error or omission” concept stems from our caselaw referring to a drafting error or omission. Here, it cannot be said that there was a drafting error or omission in the language used by the legislature in the 1997 statutes when the words used are consistent with a valid, recognized procedure, i.e., the establishment of a “phantom bank,” to accomplish the “reorganization” of a state bank. Merely because Act 117 of 1999 changes the language in the statute, thus changing the available procedures to allow a reorganization, does not necessarily mean that an error occurred in the drafting of the 1997 statute. As such, we hold that there was no drafting error or omission in the 1997 statute, and Bancshares’s actions, approved by the Commissioner, were ultra vires of the statute.
Joinder of Parties
The Commissioner argues in his second point to this court that Bancshares and Union Bank were necessary parties to this action, and should have been joined in the lawsuit pursuant to Ark. R. Civ. P. 19. However, as Keith notes in his brief, agency actions governed by the Arkansas Administrative Procedure Act are exempt from the Rules of Civil Procedure because the A.P.A. provides a different procedure for the parties to follow. See Ark. R. Civ. P. 81(a); See also Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984) and Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992).
Under the A.P.A., Bancshares and Union Bank did not have to be listed as parties, they just had to be served with notice of the proceedings. This was done. In addition, Ark. Code Ann. § 25-15-212(b) (Repl. 1996) allows an interested party to intervene at the discretion of the Commissioner. Bancshares and Union Bank did not move to intervene, although they were served with the pleadings and did appear at each and every hearing on the matter, and the Commissioner did not require them to become parties.
Appellant has not challenged the circuit court’s ruling remanding the case to the Commissioner for further proceedings based on the court’s view that Keith had not been provided “an acceptable opportunity to present evidence or testimony for a fair price for their shares.” The ruling of the circuit court reversing the Commissioner therefore stands.
Commissioner’s decision reversed.
Circuit Court’s decision affirmed.
Arnold, C.J., and Glaze and Thornton, JJ., dissent.
See McLeod, supra (statute clear on no award of attorney’s fees in trade practice cases; no error or omission); Coleman v. State, 327 Ark. 381, 938 S.W.2d 845 (1997) (drafting error not to raise threshold to $500 in the theft-by-receiving statute as it had done in the theft statute); Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994) (obvious from context that effective date of statute for criminal offenders was 1993 and not 1983). It must be clear that a drafting error or omission has circumvented legislative intent. See Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995) (possession of a handgun was erroneously omitted from the definition of a “delinquent juvenile”). | [
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Per Curiam.
Donald R. Huffman, attorney for appellant, has filed his Motion and Amended Motion for Rule on the Clerk. In an affidavit attached to the amended motion Donald R. Huffman states the reason for the delay in tendering the transcript was a mistake on his part in determining the date by which the appeal should have been filed.
We are granting the rule on the clerk upon the verification of attorney Donald R. Huffman that it was not timely filed due to his mistake. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert H. Dudley, Justice.
Appellant was found guilty by a jury of kidnapping for the purpose of engaging in sexual intercourse or deviate sexual activity and of engaging in sexual intercourse and deviate sexual activity with a female person by forceable compulsion, a violation of Ark. Stat. Ann. §§ 41-1702 and 41-1803 (Repl. 1977). The evidence at trial overwhelmingly established appellant’s guilt. The victim was beaten, cut, strangled and burned before her escape and rescue. The appellant does not question the sufficiency of the evidence, but contends that he did not receive a fair trial because of error in the selection of the jury. We affirm the conviction. Jurisdiction is in this court pursuant to Rule 29 (1) (b).
Appellant first argues that the trial court committed error by failing to excuse for cause a venireman who was a security guard and a former police officer. However, appellant peremptorily excused this venireman and the record reflects that no objectionable juror was forced upon appellant without his having the privilege of exercising a peremptory challenge. Thus, appellant has failed to show any prejudice on this point and it is not a ground for reversal. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
Next, appellant contends that the trial court erred in allowing the State to question veniremen regarding their willingness to impose the maximum sentence. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), we reversed a conviction because the prosecutor repeatedly attempted to commit the veniremen to the maximum sentence if they found the defendant guilty of the charge. The case before us is distinguished from Haynes because here, after stating the minimum and maximum penalties for the crimes charged, the prosecutor asked the prospective jurors whether they would consider the maximum penalty. Unlike the situation in Haynes, no juror in this case was asked to commit to a possible penalty or to express an opinion on whether such a penalty would be suitable. The jurors were asked only whether they would consider all the penalties provided by law. This is a proper inquiry on voir dire. See, A.R.Cr.P. Rule 32.2; Ark. Stat. Ann. §§ 43-1918 — 1919 (Repl. 1977).
Appellant also contends that the trial court erred in excusing for cause a venireman who indicated he would not favor imposing the maximum sentence for rape. This venireman stated at one point during voir dire, “I wouldn’t send him for life and I wouldn’t send him for forty years....” This juror was irrevocably committed to voting against the possible penalties, regardless of the facts and circumstances that might have ensued in the course of the trial. If he had been seated the State would have been denied the fair and impartial jury to which it is entitled. Haynes, supra. We affirm the trial court in excusing this juror for cause.
Appellant’s final argument is that the trial court committed error by denying his motion for a continuance. The facts surrounding the motion are as follows: On the date set for trial 35 members of the jury panel had been summoned to appear. However, only 21 members of the panel responded to the summons by appearing in court. Six of the absent 14 previously had been excused by the court for good cause. Appellant admitted that the full panel represented a fair cross-section of the community, but objected to proceeding with only 21 members, stating that number was too few and that small number did not represent the community at large. He asked for a continuance until the remainder of the panel was in attendance.
The prosecuting attorney stated that he believed a jury could be selected from the panel and the trial court denied the appellant’s motion, stating that the panel did represent a fair cross-section of the community. Eleven jurors were seated from the 21 persons present at the beginning of the voir dire proceedings. Two other members of the jury panel who were originally summoned but who were not initially present were then called. One of those two panel members was then seated without objection as the twelfth juror.
A motion for a continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice and the burden is on the appellant to demonstrate such abuse. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). In considering whether the court’s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).
There is no abuse of discretion in this case because there was no showing that the panel was not fairly representative of the community. In this context, the random selection process does not guarantee a proportionately accurate cross-section of the community to match the demographics of an area, and a defendant is not entitled to a jury, a venire, or jury roll with proportionate numbers. Swain v. Alabama, 380 U.S. 202 (1965). Here, appellant contends that most of those who failed to respond to the summons to jury duty were men. However, there is no proof that men were purposely excluded from serving. See Taylor v. Louisiana, 419 U.S. 522 (1974). In fact, the final composition of the jury was seven men and five women. No prejudice is shown from either the size or the composition of the panel. The trial court acted within its discretion in denying the motion.
We have reviewed the record for all errors prejudicial to the appellant pursuant to Rule 11 (f) and have found none. Therefore, we affirm. | [
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George Rose Smith, Justice.
The principal issue argued here is whether this case was properly tried in the circuit court as an action in ejectment rather than being dismissed for an asserted lack of jurisdiction of the subject matter. We hold that the circuit court was right in trying the case.
The plaintiff bank, by its amended complaint in the Drew chancery court, sought to quiet its title to a 9.3-acre tract lying partly in Drew county and partly in Desha county. The defendant Cash filed two motions on the same day, one asking that the suit be dismissed because the defendant was in possession of the land and the other asking that the suit be transferred to the Desha circuit court because the suit was in ejectment. The chancellor denied the motion to dismiss, granted the motion to transfer, and transferred the case to the Drew circuit court.
In the circuit court the case was set for a non-jury trial. At the beginning of the trial Cash’s trial attorney, who is no longer in the case, orally asked in effect that the case be dismissed because the bank had not amended its complaint to seek any relief other than the quieting of its title. After an extended discussion the trial judge permitted the bank to amend its complaint to make the case one in ejectment. Cash’s attorney made no request for a continuance or any other objection, saying instead, “That’s fine.” The case was then tried on its merits, with the decision being in favor of the bank.
It is first argued that since Cash was in possession the chancery court had no subject-matter jurisdiction of the suit to quiet title and the circuit court acquired none by reason of the transfer. The subject matter, however, was not the quieting of title, as counsel argue. Quieting title is merely a remedy. The subject matter was the land, which lies partly in Drew county, within the jurisdiction of both courts. Ark. Stat. Ann. § 27-601 (Repl. 1979). Perhaps Cash could have stood upon his motion in the chancery court to dismiss the suit because he was in possession, but instead he asked alternatively that the case be transferred to the circuit court. The chancellor properly sustained the motion to transfer. As we said in an earlier suit to quiet title, Jackson v. Gregory, 208 Ark. 768, 187 S.W.2d 547 (1945): “Since appellant did not allege that she was in possession of the land, and it appeared that the appellees were in possession when this litigation was instituted, the suit was properly transferred to the circuit court, and that court correctly treated it as an ejectment proceeding.”
That quotation also answers Cash’s second argument, that the trial judge should not have treated the complaint as being amended to state a cause of action in ejectment. Absent any showing of prejudice the bank was entitled to amend its complaint, even without leave of court. ARCP Rule 15. Cash, having moved for the transfer on the ground that the suit was one in ejectment, cannot complain that his contention was sustained.
Cash’s final argument, that the trial court should have allowed him to remove a building from the land, is not supported by any admissible proof brought to our attention. Counsel have abstracted on this point only á letter written to Cash by the bank six months before suit was filed. The letter declared Cash to be a trespasser and ended: “We also expect your temporary building to be removed from our property.” The trial judge refused to consider the letter, because it was not introduced at the trial and was proffered only as an unsupported objection to the judge’s approval of the precedent for judgment. We have no basis in the proof for holding that the court should have allowed the removal of the building.
Affirmed. | [
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Per Curiam.
Petitioner George Austin Wilson was convicted by a jury of aggravated robbery, Ark. Stat. Ann. § 41 -2102 (1) (Repl.1977) and criminal attempt to commit first degree murder, Ark. Stat. Ann. § 41-701, 1502 (Repl. 1977). He was sentenced as a habitual offender with four or more prior felony convictions to fifty years imprisonment on the aggravated robbery charge and thirty-four years on the attempted murder charge. The sentences were ordered served consecutively.
Petitioner alleges that the trial court did not have the authority under Rule 37.1 (b) to impose the sentences for both aggravated robbery and attempted first degree murder. He bases his argument on the contention that aggravated robbery was the underlying felony to the charge of attempted first degree murder. Petitioner cites as support for his contention this Court’s decisions in Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); and Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In those cases, we held that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977). The statute provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2);
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In Rowe v. State, supra, we held that Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) precluded the imposition of both a sentence for aggravated robbery and attempted capital murder. The only distinction between Rowe and the case at bar is the fact that petitioner was sentenced for aggravated robbery and attempted first degree murder. We find therefore that it was unlawful to sentence petitioner on both charges, but we do not accept his conclusion that the sentence for aggravated robbery, rather than the attempted murder sentence, must be set aside.
While it was necessary for the jury to find petitioner guilty of a felony, i.e., aggravated robbery, to find him guilty of attempted first degree murder, the jury and the legislature clearly considered aggravated robbery to be the more serious crime. The jury’s intention can be seen in its verdict specifying 50 years for aggravated robbery and 34 years for attempted murder. The legislative intention can be discerned from the classification at the time of the crime of aggravated robbery as a class A felony, Ark. Stat. Ann. § 41-2102 (2) (Repl. 1977), while attempted first degree murder was punishable as a class B felony, Ark. Stat. Ann. §§ 41-703 (2) , 41-1502 (3) (Repl. 1977). Accordingly, the conviction and sentence for the less serious offense, attempted first degree murder, are set aside. The conviction and sentence for aggravated robbery are not disturbed.
We need not address petitioner’s allegation that counsel was ineffective in not objecting to the sentencing in this case since one of the two convictions and sentences has been removed.
Petition granted in part and denied in part. | [
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Darrell Hickman, Justice.
This is an appeal by the State from a pre-trial order of the trial court dismissing a charge of theft against Richard Jamison. Actually what is sought in this case is an advisory opinion by this court. The trial court was wrong in dismissing the charge and the matter is remanded.
Jamison was charged with theft in violation of Ark. Stat. Ann. §41-2203 (Repl. 1977). He waived a jury and when the matter was before the court, his counsel presented a motion to dismiss, arguing that the facts in this case would not constitute theft. After counsel briefly informed the court of the facts, the court decided that the parties could stipulate to the facts and the court would rule the conduct did not amount to theft, thereby permitting the State to obtain a decision from us before a trial and save both parties time and expenses.
Both counsel agreed that generally the facts were that Jamison was a contract driver for ABC Trucking Company of North Little Rock, and that a dispute arose between Jamison and ABC about the amount of money due to Jamison for services performed. Apparently Jamison claimed he was due $800.00 and ABC acknowledged a debt of only $500.00. Jamison left the North Little Rock terminal with a truck and load belonging to ABC and refused to return it until he was paid what he claimed. After some negotiations, Jamison agreed to meet a representative of ABC in Dallas, Texas. When he did he was arrested for theft.
The question presented to the trial court was whether Jamison’s actions deprived ABC of its property according to the criminal code. Ark. Stat. Ann. § 41-2201.4 (b) defines a form of “deprive” as withholding property or causing it to be withheld with the purpose to restore it only upon the payment of a reward or other compensation. On these skimpy facts, as stipulated by the lawyers, the trial judge found Jamison’s conduct did not amount to depriving an owner of property until the payment of “other compensation.”
The court could have dismissed the charge because it did not state a criminal offense according to the ldw. (There was no challenge in that regard.) But there is no provision for dismissing a charge because the facts that will be presented do not amount to criminal conduct. Who decides what the facts are? The court was careful to get the parties to agree that the trial had not started, that is, double jeopardy could not be a defense if we reversed his decision. But if the trial had not started, how could facts be determined? The court could not accept the “facts” unless it assumed the role of the fact finder, a posture he decided not to do. A.R.Cr.P., Rule 36.10 (Supp. 1981), which allows interlocutory appeals by the state, makes no provision for an appeal from a decision based on what the facts will be. Furthermore, in the crime of theft, there is always the element of intent, which of course has to be decided by the jury, or the court sitting without a jury. Certainly that issue was not resolved.
The matter is reversed and remanded.
Reversed and remanded. | [
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Steele Hays, Justice.
Edwin Hoggard appeals his conviction of rape by engaging in deviate sexual activity with a six-year-old boy. The state’s case was based on the testimony of the boy that during a number of visits to appellant’s apartment he had been shown pictures of homosexual acts between young men and boys with the suggestion that he and the appellant engage in similar acts. The child said he was fondled and on two occasions appellant put the child’s penis in his mouth.
These charges were reported to the police by the boy’s mother, and a search warrant was issued, producing an abundance of homosexual pornography, primarily of adolescent boys. One of the two counts was dismissed and the jury convicted appellant on the remaining count, resulting in a sentence of ten years and a fine of $7,500.
Appellant raises numerous points for reversal, but we affirm the trial court.
I.
Appellant attacks the search warrant from several standpoints: first, that Arkansas’ obscenity statute, Ark. Stat. Ann. § 41-3565 (2) (Repl. 1977), making possession of obscene material a criminal offense, is unconstitutional. He asserts mere possession of such materials is protected by the First Amendment and cannot be made a criminal offense. The simple answer is that appellant is not charged with a violation of the statute on obscenity and, hence, he has no standing to attack the constitutionality of the statute. Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1933).
Second, he challenges the nighttime search. A.R.Cr.P. 13.2 (c) provides that search warrants shall be executed between 6:00 a.m. and 8:00 p.m. unless the issuing judicial officer finds reasonable cause to believe the objects to be seized are “in danger of imminent removal.” This warrant was executed at 9:00 p.m. upon such a finding and we think the affidavit provided reasonable cause to believe the material was in danger of imminent removal. Appellant cites State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1981), where we affirmed a trial court’s suppression of evidence seized in a nighttime search. But the cases are distinguishable. There, no facts were given the issuing magistrate supporting the need for a nighttime search; the arresting officers simply stated that reasonable cause existed for an immediate search. Here, the affidavit stated that appellant was expected to leave the following morning for Conway and that he had said he sometimes took the materials, or part of them, to Conway and Little Rock. On that basis the circuit judge issuing the warrant found sufficient authority under Rule 13.2 (c) (ii), A.R.Cr.P., and we cannot say his finding was clearly erroneous.
Appellant challenges the search warrant on the ground that the affiant did not appear before the issuing judicial officer as required, he argues, by Rule 13.1 (c), A.R.Cr.P. We disagree. Rule 13.1 (c) does not require that the judicial officer interview witnesses, simply that he “may” examine them.
The argument that the affidavit does not establish the reliability of the witness under the two-fold test of Aguilar v. Texas, 378 U.S. 108 (1964), must also fail. There the Supreme Court rejected a search warrant which stated only that “affiants have received reliable information from a credible person and do believe that heroin [and other drugs] are being kept at the above premises for purposes of sale____” In contrast, this affidavit goes into detail in establishing the reliability of the witnesses and the basis of their knowledge. It reveals the identity of the informants, explains their association with the appellant, states when and where the contacts occurred, and gives specific details about the materials said to be kept on the premises and their location in appellant’s apartment and in his pick-up truck. The affidavit is more like one upheld in U.S. v. Ventresca, 380 U.S. 102 (1965) than the one struck down in Aguilar. We find it to be sufficient, when viewed with common sense.
II.
Appellant charges error in the refusal to order a discovery deposition of the young victim. The trial court did allow an interview with the child and his mother, with the prosecuting attorney present, and granted appellant’s motion for psychiatric examinations into the child’s competency. Appellant concedes our A.R.Cr.P. Rule 17.4 makes it discretionary with the trial court, but he insists that due process entitled him to take the discovery of the prosecution’s witnesses. Appellant cites only dictum from Wardius v. Oregon, 412 U.S. 470 (1973). But the fallacy is the Wardius court was not dealing with the issue of whether the Due Process Clause gives an accused a right of discovery, but whether an Oregon statute giving the prosecution the right of discovery from the defendant’s alibi witnesses was constitutional. The test was said to be whether Oregon law gave an accused reciprocal rights of discovery from prosecution witnesses and, finding such rights to be lacking, the Oregon statute was struck down. Obviously, that is not the issue here. The Wardius court made it clear it was not suggesting the Due Process Clause of its own force required Oregon to adopt discovery procedures in criminal cases, citing U.S. v. Augenblick, 393 U.S. 348 (1969) and Cicenia v. Lagay, 357 U.S. 504 (1958), rather it was holding that where a state imposes discovery against a defendant, equivalent rights must be given to a defendant.
We do not imply that there are never instances where due process may entitle a defendant to discovery rights, but we are unwilling to hold that due process invariably requires that an accused have the right to take the discovery deposition of the state’s witnesses, including the victim. We prefer to leave the decision, as our Rule 17 A.R.Cr.P. provides, to the trial judges to be exercised on a case-by-case basis, subject to a limited review on appeal. Here, the trial judge gave the appellant the right to interview the child and his mother and granted broad permission to have the child examined as to testimonial capacity. We cannot say he should have done more.
III.
During the interview session defense counsel asked the mother whom she had dated, which prompted the prosecut ing attorney to instruct her not to answer. Appellant argues a violation of Rule 19.1 A.R.Cr.P., which provides that neither side will instruct persons, other than the defendant, to refrain from discussing a case with opposing counsel.
Whether Rule 19.1 was breached is debatable; however, the prosecutor later withdrew his objection and told the witness she could answer if she wanted. Presumably she did not, as the trial court later denied a motion to order her to answer, finding the question improper. Appellant contends he was prejudiced, because his theory of the accusations against him was that they were a figment of the child’s fantasies, induced, perhaps, by a movie he was thought to have seen. However, we cannot say this was reversible error. Standing alone, the question is irrelevant, and without some clearer explanation of how this lead could only have been pursued by knowing whom the witness had dated, we can find no abuse of discretion.
IV.
Next it is argued that the boy was not competent to testify. He was five years old when his contacts with the appellant began. Some of the alleged acts occurred after he became six. He was six and a half when the case was tried. Appellant concedes that some six year olds might be competent but he urges that this boy was unable to distinguish between fact and fantasy.
This court has consistently said no precise age of testimonial competency in children exists, and it is primarily for the trial court to determine whether a child has the ability to observe, remember and relate the truth of the matter being litigated and has a moral awareness of the duty to tell the truth. Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964); Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950); Payne v. State, 177 Ark. 413, 6 S.W.2d 832 (1926); Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). The issue rests within the trial court’s sound discretion. Guthrie v. State, 188 Ark. 1081, 70 S.W.2d 39 (1934), Batchelor v. State, supra, and we will not reverse on appeal in the absence of manifest abuse, Yother v. State, 167 Ark. 492, 268 S.W. 861 (1925). On appeal, the error of the trial court in accepting or rejecting the testimony must be clear. Hudson v. State, 207 Ark. 18, 179 S.W.2d 165 (1944). Here, the trial court went into the issue of competency in depth, conducting a hearing with experts from both sides who had examined and tested the child with evident thoroughness. Two experts testified that he was above average in intelligence, able to receive information accurately, retain it, and capable of accurately reporting events which happened to him. Granted, there are contradictions in the child’s testimony, as well as some odd remarks about being chased by panthers and men with guns. But these aspects are not sufficient to reverse the trial court’s ruling because, unlike the testimony in Harris v. State, supra, on the essential elements of the case the child’s testimony was generally responsive and consistent. Though unable to articulate what it meant to tell a lie, he knew what it meant to tell the truth and understood he was to do so. We will not attempt to detail his testimony; we are persuaded from a thorough reading of it that the trial court ruled correctly.
V.
The state asked the mother on redirect if she had asked her son whether he had been shown any pornographic pictures. Defense counsel objected to the question as leading and moved for a mistrial, which the trial court judge denied with the comment that the question was not answered and no damage occurred. If any prejudice occurred, which is doubtful, it was not so great that we can say the trial could not properly continue. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1976).
VI.
Over appellant’s objection the state was permitted to introduce a pamphlet entitled “Boy Scout Sex Manual” containing a number of photographs of boys engaged in sexual acts. Appellant contends the prejudicial effect of the exhibit greatly outweighed any probative value and it should have been excluded under Rules 608 and 403, Uniform Rules of Evidence. We readily agree the material was prejudicial, it could hardly be otherwise. But the argument that its probative value was lacking fades under scrutiny. This pornography and the offense being tried had a clear correlation: the pornography depicted deviate sexual acts by young males and the crime charged was deviate sexual acts of a forty-two-year-old man and a six-year-old boy. More importantly, the pornography was used as the instrument by which the crime itself was solicited — the child was encouraged to look at the pictures and then encouraged to engage in it. The value of the evidence as proof of the crime is obvious.
VII.
Appellant’s next contention is that a defense motion for a directed verdict should have been granted because the statute as written does not include the acts described by the victim. The gist of the argument is, assuming the truth of the child’s testimony, only the body of the accused was penetrated, i.e. the mouth of the appellant, and not the body of the victim. The argument is a throw-back to the definition of rape prior to the adoption of Ark. Stat. Ann. § 41-1803 (Repl. 1977), when the offense applied only to the forcible penetration of a female by a male. But § 41 -1803 broadens the definition to eliminate the gender-based element of rape and to cover other deviate sexual acts, which earlier were generally classified as sodomy. A reading of § 41-1803 and the accompanying commentary makes such intent plain — “Deviate sexual activity” is defined as “any act of sexual gratification involving: a) the penetration, however slight, of the anus or mouth of one person by the penis of another person.”
On appeal, appellant has amplified the grounds for his motion to include matters not presented to the trial court and consequently not subject to our review.
VIII.
Finally, appellant submits there was a comment on the evidence. We are not convinced. In closing argument the prosecuting attorney told the jury the date on the information was not an element of the offense. Defense counsel objected that this was an argument on the law and the jury had not been so instructed. The prosecutor answered that the defense could also argue the law. The trial judge responded by saying, “Well, that’s right. There’s been no instruction sought on that and none offered. You may proceed with your argument, but do not talk to the jury about any law except what’s covered by the instructions.” Whether the trial court was agreeing with the prosecutor or the defense we cannot say, but we do not construe these words as a comment on the evidence in any sense; we must reject the claim of error.
The judgment is affirmed.
Purtle, J., dissents.
Unlike Arkansas, Oregon did not require the State to reveal the names and addresses of witnesses, nor even require a bill of particulars. | [
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Richard B. Adkisson, Chief Justice.
Two separate appeals arising from the same trial court case are consolidated in this opinion. Both will be disposed of by a construction of Rule 3 (e), Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979), which provides:
(e) Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal, shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript or specific portions thereof, have been ordered by the appellant. (Emphasis supplied)
The record reflects that the final decree was entered in this case on September 16, 1981; that the “notice of appeal and designation of record” was filed on September 24:
Appellant (Appellee herein) hereby designates the entire record, and all proceedings, exhibits, evidence, and documents introduced in evidence to be contained in the record on appeal.
The notice did not contain a statement that the transcript had been ordered, and on November 13 appellee filed a motion to dismiss the appeal for failure to include such a statement. The transcript was finally ordered from the reporter on December 7, 1981.
The provision for ordering the transcript under Rule 3 (e) has been construed to be satisfied by substantial compliance, provided the appellee has not been prejudiced or misled by the failure to strictly comply with the rule. Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970). However, we stated in Brady, supra, that:
. . . Our view is that if for any reason counsel are not able to state in the notice of appeal that the transcript or portions of it have been ordered, the proper practice would be for an appropriate explanation to be included in the notice of appeal. . . .
Here, there was no compliance with the pertinent provision of Rule 3 (e), substantial or otherwise. The rule was totally ignored. The trial court erred in not dismissing the appeal for failure to file a proper notice of appeal; therefore, the appeal is dismissed and the trial court’s final decree of September 16 is affirmed.
Reversed in part; affirmed in part.
Purtle and Hays, JJ., not participating. | [
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Per Curiam.
On May 24, 1982, we granted the appellant Bruce Sherrod permission to proceed pro se on appeal. Sherrod was notified that the appellant’s brief was due July 3. When no brief was filed by that date, appellant was twice notified of the need to file a motion for permission to file a belated brief. He did not file the motion. On September 9, the State filed the motion to dismiss appeal which is now before us. Appellant responded with a motion for extension of time to file a belated brief. We find no good cause in appellant’s motion for his delay.
The motion to dismiss appeal is granted. Appellant has been afforded every opportunity to file his brief. His failure to file a brief and his inexcusable delay in filing a motion to file a belated brief must be considered a waiver of his right to appeal.
Motion granted. | [
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George Rose Smith, Justice.
In 1979 Miles entered a negotiated plea of guilty to a charge of rape and received a 20-year sentence. He later filed a petition for post-conviction relief, but after a hearing the trial j udge denied relief. Of the eight points for reversal four have been abandoned by court-appointed appellate counsel for want of proof. There is likewise no merit in the other four.
One, Miles’s petition stated that while he was in jail awaiting trial Officers Dove and Tevady had made (unspecified) threats about what they would do if he did not plead guilty, but at the hearing Miles did not so testify. He did say that Dove had mistreated him, but he did not connect any such abuse with his plea of guilty. Moreover, he had stated at the recorded proceeding when his plea was accepted that no one had threatened him in any way. The trial judge was free to disbelieve Miles’s uncorroborated repudiation of his earlier assertions.
Two, Miles testified that his original counsel told him that he would get a sentence of only ten years, but that statement was contradicted at the hearing by the attorney and is contrary to the earlier record. The issue of credibility was for the trial judge to decide.
Three, Miles complains that the original trial j udge was related to the prosecuting attorney. Both Miles and his attorney, however, filed a waiver of the judge’s disqualification, as we suggested with regard to this same situation in Edmondson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). At the hearing below, Miles did not even testify with respect to this point. His former attorney testified that he had told Miles that he could either sign the waiver or wait until another judge could be appointed. That advice was correct.
Four, the charge of rape was based upon forcible anal intercourse committed by Miles upon another inmate of the jail. Miles now argues that at the sentencing he “never stated that the intercourse was voluntary on his part.” A plea of guilty, however, precludes the defendant from later raising a defense to the original charge. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). The post-conviction issue is whether the plea was voluntary. Miles has not shown that his plea of guilty was involuntary.
Affirmed. | [
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Lavenski R. Smith, Justice.
Michael Grine (“Grine”), appellant, sued the Board of Trustees of the University of Arkansas and certain officials and employees of the University. Appellant’s complaint alleged claims for breach of contract, promissory estoppel, constructive fraud, and fraud and sought an injunction to stop the University from enforcing its rule requiring completion of a doctorate within seven years. Grine appeals the Washington County Chancery Court’s order granting appellees’s motion to dismiss. The chancellor ruled that the doctrine of sovereign immunity as set out in Ark. Const., Art. 5, § 20, prohibited the suit. This appeal involves interpretation or construction of the Arkansas Constitution. Hence, we take jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(l). Grine contends his claims state exceptions to the doctrine and should be permitted to go forward. We disagree and affirm.
Facts
Grine failed to obtain his doctorate in Marketing at the University of Arkansas while working under the advice and direction of Appellee Dr. Dub Ashton (“Ashton”). Grine asserts Ashton caused this by acting in bad faith in giving him an unworkable dissertation topic, and then in giving him inaccurate, arbitrary, and false information. Grine alleges he told Ashton in July 1995, that he had to finish his doctorate by October 1995, or he would lose a teaching position in Oklahoma, and that Ashton told him it was not a problem. Then, as the summer of 1995 ended, Grine states Ashton told him he was not optimistic Grine could finish by October. Grine states some drafts had been with Ashton for a year, and he had not read them. Grine asserts Ashton ceased to cooperate until Grine went to the department head to complain. Then, Grine alleges, Ashton read the drafts within a week of his discussion with the department head and returned a negative response when all previous responses had been positive. Grine also asserts that in a subsequent meeting Ashton told him he was angry because Grine had gone to the department head. Some time later, Ashton told Grine that Grine was “unable to conceptualize what a dissertation should look like and that he should just give up.” Grine then took his work to three other professors who told him that his work was inferior in quality. According to Grine, one professor said she was not sure the topic could be developed into anything acceptable as a dissertation.
Grine believes Ashton initially acted out of simple ignorance because Ashton had failed to stay abreast of developments in the field of marketing. Grine asserts Ashton later realized that his ignorance would become manifest to his colleagues during the dissertation process. This, according Grine, made Ashton become deliberate in avoiding him and in giving him false information. Grine asserts that Ashton’s actions ultimately caused him to fail to complete his doctorate within the seven year period allowed by the University. As to the other University officials, Grine contends they should be enjoined from enforcing the seven-year doctoral completion period so that he may continue pursuit of his doctorate.
On appeal, Grine argues that the trial court erred because Grine properly pleaded exceptions to sovereign immunity. More particularly, appellant avers that his complaint alleged acts that were ultra vires, bad faith, and arbitrary and capricious actions, and thus riot entitled to immunity. Grine also argues sovereign immunity is inapplicable to the individuals because they were sued for acts of bad faith for which they and not the State would pay.
Standard of Review
In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Hames v. Cravens, 332 Ark. 437, 442, 966 S.W.2d 244 (1998). However, our rules require fact pleading. A complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Brown v. Tucker, 330 Ark. 435, 438, 954 S.W.2d 262 (1997); Ark. R. Civ. P. 8(a)(1). It should also be noted that we have applied a general policy against intervention by the courts in academic and discipline matters best left to school authorities. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Henderson State University v. Spadoni, 41 Ark. App. 33, 848 S.W.2d 951 (1993).
Sovereign Immunity
Grine asserts the chancellor erred in finding the defendants immune because they acted in bad faith and therefore do not enjoy the benefit of immunity. Sovereign immunity for the State of Arkansas arises from express constitutional declaration. Article 5, section 20, of the State Constitution provides: “The State of Arkansas shall never be made a defendant in any of her courts." Suits against the State are expressly forbidden by this provision. Beaulieu v. Gray, 288 Ark. 395, 705 S.W. 2d 880 (1986); Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). As we stated long ago in Pitock v. State, 91 Ark. 527, 535 (1909), “[A] sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” Recently, we reiterated this express prohibition in Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). In Brown, we pointed out that sovereign immunity is jurisdictional immunity from suit, and where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. However, unlike subject-matter jurisdiction, sovereign immunity can be waived. Newton v. Etoch, 332 Ark. 325, 331, 965 S.W.2d 96 (1998); State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). The doctrine makes no distinction between actions in equity and actions at law. Id.
While the State of Arkansas constitutionally possesses sovereign immunity, its officers and employees do not. However, the legislature has chosen to grant limited immunity to the State’s officers and employees by statute except to the extent the employee has liability coverage. See Ark. Code Ann. § 19-10-305 (Repl. 1998). State officers and employees acting without malice within the course and scope of their employment are immune from an award of damages in litigation. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997). Suits against officers and employees alleged to be malicious are suits against the officer or employees personally, and they are liable to the extent anyone would be liable under tort law. Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983). In the case where the action is intended to prevent a State officer from acting unlawfully, their office does not shield them. In such a cases we treat the suit as an action against the officer and not as a suit against the State. Federal Compress & Warehouse Co. v. Call, Commissioner of Labor, 221 Ark. 537, 254 S.W.2d 319 (1953); See also Pitcock v. State, 91 Ark. 527 (1909). A State can only act through its officers. Pitock v. State, 91 Ark. 527 (1909).
The first issue to be resolved is whether appellant’s action constitutes a suit against the State. To the extent that it does, the Constitution bars it from our State’s courts. Appellant’s complaint does not name the State of Arkansas. However, that is not determinative. In sovereign-immunity cases, we long ago established a test that looks to identify the real party against which relief is sought, not merely to the nominal defendant. Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235, 238 (1938). Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). Even where the State is not named as a defendant, if a judgment for the plaintiff will operate to control the action of the State or subject it to liability, we treat the suit as one against the State. Id. Appellant named as defendants the University’s trustees, President B. Alan Sugg, Chancellor John A. White, Associate Dean Dub Ashton, and all agents and employees of the University responsible for supervising HH.d. marketing candidates. In his prayer for relief, appellant seeks injunctive relief against the University to restrain it from enforcing its policy limiting doctoral pursuit to seven years. He also seeks money damages against all the named defendants and attorney’s fees and costs.
Based on our review of the record, we hold that appellant’s claim for injunctive relief is unquestionably a legal claim against the State of Arkansas and therefore barred from this State’s courts by Article 5, section 20, of the Arkansas Constitution. Were the requested relief to be granted, the University, not any particular individuals, would have its actions controlled by court order. We have previously held that a suit against the Board of Trustees of the University is a suit against the State. State Comm’r of Labor v. U. of Ark., 241 Ark. 399, 407 S.W.2d 916 (1966). Appellant’s complaint names the Board of Trustees, and it is apparent on its face that the gravamen of the relief requested against the Trustees and the school’s officers implicate the State’s authority and financial resources. Therefore, we affirm the chancellor’s dismissal of appellant’s complaint against the University’s Board of Trustees, its president, its chancellor and against “all agents and employees of the University charged with the evaluation and supervision of candidates for the degree of Ph.D. in marketing” as barred by sovereign immunity.
Appellant argues that his complaint states an exception to the doctrine of sovereign immunity. He contends that he alleged facts sufficient to establish the recognized immunity exception which permits a suit against State officials or agencies to enjoin ultra vires, bad faith, and arbitrary and capricious actions. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). Equity does have jurisdiction to enjoin or restrain officers of State agencies where the act to be restrained is ultra vires, wanton, capricious, in bad faith, injurious, or arbitrary. Toan, Comm’r v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980); See also Game Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974); Shellnut v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S.W.2d 570 (1953). However, reading appellant’s complaint in the light most favorable to him, we hold that the complaint does not state facts sufficient to show that any act on the part of the University or any of its officials was ultra vires, in bad faith, or arbitrary. Appellant acknowledges that the administration exercises discretion in granting the extension, and that it does not do so in every case. He fails to allege any specific act or acts of the named administration officials that would remove immunity with respect to their declination to extend additional time to complete the doctorate requirements.
Liability of Individual Defendants
Grine also asserts Dr. Ashton is liable personally for acts of bad faith, and that he would be responsible personally for any damages assessed. As such, Grine alleges a cause of action against Ashton personally and that the State is not involved. The remaining individual defendants are alleged to be liable based upon Ash-ton’s actions. As stated above, State officials and employees do not enjoy the constitutional immunity accorded the state but have immunity granted by statute unless they are shown to have acted with malice outside the scope of their employment. Cross, supra. “[A]n officer or employee who acts maliciously or outside the scope of his employment is not protected by § 19-10-305(a). (Citations omitted.)” Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998).
Intentional torts overcome the immunity extended to State officers and employees. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Thus, in considering the complaint on a motion to dismiss, if the acts or omissions complained of are alleged to be malicious and outside the course and scope of employment, then the coffers of the State are not implicated, and the suit is not one against the State. Under these conditions, Article 5, section 20, of the Constitution is not implicated. Grine’s complaint states only conclusions with no factual support against all defendants with the exception of Dr. Ashton. Therefore, with respect to those defendants, we affirm their dismissal on the basis of their statutory immunity.
In the absence of appellant’s sole claim for equitable relief, chancery jurisdiction is lacking. As a general rule, equity jurisdiction exists only when the remedy at law is inadequate. Townsend v. Arkansas State Highway Comm’n, 326 Ark. 731, 933 S.W.2d 389 (1996); Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999). A review of Grine’s complaint reveals equity jurisdiction is dependent upon his right to seek an injunction that the University suspend or reset the clock on its rule that doctorates be completed within seven years of a candidate’s declaration of an intent to pursue a doctorate. We have already held that sovereign immunity bars the claim for injunctive relief against the State. The trial court acquires no jurisdiction when sovereign immunity is applicable. Brown, supra. Hence, once the equitable claim ceased, appellant essentially brought nothing but legal claims before the chancery court. Ordinarily, the equity clean-up doctrine would permit the chancery court to decide all other issues once it acquires jurisdiction for one equitable purpose. Burns v. First Nat’l Bank, 336, 985 S.W.2d 747 (1999). In the instant case, the court acquired no jurisdiction over any equitable claims because of the State’s immunity. With no equitable jurisdiction ever acquired, the chancery court was “wholly incompetent” to grant the relief sought by appellant. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Therefore, appellant’s remaining purely legal claims for damages against Dr. Ashton should have been dismissed without prejudice.
We affirm. | [
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W. H.“Dub” Arnold, Chief Justice.
Appellant, Brian Keith Bangs, was found guilty of two counts of capital murder in the deaths of his mother-in-law and father-in-law, Carol and Darrel Turner, rape, Class-B-felony kidnapping, and first-degree battery of his wife, Jennifer Turner Bangs, and felony theft of property, namely, a pickup truck belonging to Darrell Turner. Bangs was sentenced to two terms of life imprisonment in the Arkansas Department of Correction for the capital-murder convictions and to a total of eighty-five years’ imprisonment for the remaining offenses. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(2) (1999). In the instant appeal, Bangs challenges the trial court’s (1) denial of his motions for directed verdict regarding the capital-murder and first-degree battery convictions, (2) refusal to suppress his statements to an Arkansas State Police Investigator and the Stone County Sheriff, and (3) denial of his motion to strike two jurors for cause and grant of the State’s motion to strike one juror for cause. We find no merit in appellant’s arguments, and we affirm.
I. Motions for directed verdict
A. Standard of review
At the close of the State’s case-in-chief, appellant moved for a directed verdict. The trial court denied the motion. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401.
Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401 (1998). Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a convic tion, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).
B. Capital-murder convictions
For his first point on appeal, Bangs argues that the State failed to present sufficient evidence to support his two capital-murder convictions. Pursuant to Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Appellant contends that the evidence failed to establish premeditation and deliberation and that the only direct evidence supported his position that the shootings were an “impulsive act.”
However, the State presented testimony that Bangs went to his estranged wife’s home on the afternoon of the crime and hid in the home until he was discovered by his sister-in-law, Crystal. After the two talked, Bangs left the home. Between 6:30 p.m. and 7:30 p.m. Crystal and her son left the home, leaving it unlocked. According to appellant, he returned to the house, parked his truck at a neighbor’s house, a quarter of a mile away, 250 feet from the road, and in some trees, so that the Turners would not see it upon their return. Bangs testified that he then entered the house, hid in the bathroom shower, and remained there until the family returned and went to bed around 10:30 p.m.
Subsequently, Bangs left the cover of the shower and shot Carol twice in the chest and Darrell in the upper left back and right arm, also causing injury to Darrell’s right wrist. Bangs explained that Carol was sitting up in the bed when he shot her and that he merely “clicked” and began shooting. However, the medical examiner testified that both Carol and Darrell’s injuries were consistent with their lying asleep in bed when they were shot. Tests of Carol’s clothing also revealed that she was shot at close range.
We have stated that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)). Moreover, the credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). Here, the jury declined to believe appellant’s theory that he acted impulsively.
In any event, premeditation is not required to exist for a particular length of time. It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 467, 956 S.W.2d 849 (1997). Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id.
Here, the medical evidence revealed that the victims’ wounds were located in positions inconsistent with appellant’s testimony and consistent with the victims lying in their bed. The nature and distribution of the wounds coupled with appellant’s own testimony that he waited in the Turners’ home, hidden in the shower and armed with a gun, provided substantial evidence of premeditation and deliberation. Viewed in the light most favorable to the State, we conclude that there is sufficient evidence to support appellant’s capital-murder convictions.
C. First-degree battery conviction
Appellant’s wife, Jennifer, testified that she was awakened by the shootings and by appellant when she was “yanked up out of the bed.” She called to her father for help, and appellant hit her in the head with a gun. Bangs then dragged her through the hallway by her foot, leaving bloodstains on the carpeting. Appellant then told her, “There is no use in yelling because I shot your mom and dad.” Jennifer next recalled that she was sitting in her father’s truck and that Bangs had tied her hands with a cord. He also hit her several times in the face, and her head hit the back glass of the truck’s cab. Bangs then drove her to a trailer where they lived, drug her by the cord into the trailer, and got more ammunition. He then drove her into the woods and raped her. At some point, he placed her shirt around her head to stop the bleeding, and when she “bled through” the shirt, he wrapped paper towels around her head and put a “toboggan” on it. Appellant eventually released Jennifer in the woods. Ultimately, she encountered a police car.
Jennifer was then admitted to the hospital for treatment. The surgeon who treated her wounds noted that she had two lacerations on her scalp, approximately five centimeters in length, which he closed with staples. She also had bruises on her forehead and face and blunt injuries to her scalp and the back of her head. Notably, the surgeon characterized the wounds as “serious physical injuries.”
Pursuant to Ark. Code Ann. § 5-13-201 (a)(3) (Repl. 1997), a person commits first-degree battery if “he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.” “Serious physical injury” is defined at section 5-1-102(19) (Repl. 1997 & Supp. 1999) as:
physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
(Emphasis added.) Significantly, whether a victim has sustained serious physical injury is an issue for the jury. See Purifoy v. State, 307 Ark. 482, 489, 822 S.W.2d 374, 378 (1991). In light of the medical testimony and Jennifer’s own account, the jury could reasonably conclude that Jennifer sustained serious physical injury. Accordingly, we hold that there was sufficient evidence to sustain appellant’s first-degree-battery conviction.
II. Appellant’s statements to police
Appellant’s second point on appeal challenges the trial court’s admission of statements made by Bangs to Arkansas State Police Investigator Tommy Cleveland and to Stone County Sheriff Fred Black. Specifically, Bangs asserts that he never validly waived his rights, that the State did not conclusively establish that he actually made any statements, and that he was improperly questioned after requesting an attorney. When we review a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. See Wright v. State, 335 Ark. 395, 403-04, 983 S.W.2d 397, 401 (1998). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Phillips v. State, 321 Ark. 160, 163, 900 S.W.2d 526, 528 (1995).
Stone County Sheriffs Deputy Sammy Wilson awakened appellant and arrested him at his home at approximately 10:45 a.m. on the morning of December 24, 1996. While handcuffing Bangs, Deputy Wilson informed him of his Miranda rights. Wilson then transported Bangs to the Stone County jail, where Investigator Cleveland awaited their arrival. Using a standard Arkansas State Police form, Cleveland read appellant his rights, asked whether he understood those rights, and noted appellant’s affirmative responses. Although Bangs reviewed the form and indicated that he understood his rights, he refused to sign or initial the form. Accordingly, Cleveland noted that refusal on the form.
Next, with appellant’s assistance, Cleveland completed a standard description-of-suspect form. Then, Cleveland began to question Bangs about the incidents. Due to appellant’s objection to any notetaking, Cleveland wrote out a statement following the interview. According to that statement, Bangs admitted that he shot Carol and Darrell Turner. However, Bangs refused to sign that statement. Likewise, although Bangs conceded that neither Jennifer nor Crystal Turner was involved in the murders, he declined to sign a statement to that effect.
Sheriff Black joined appellant’s interview at approximately 12:45 p.m., and Bangs thanked him for his treatment of appellant’s family. Black noted that appellant looked tired but did not appear to be under the influence of drugs or alcohol. During the interview, Bangs repeated the statements that he had made to Cleveland. Again, however, he refused to sign a statement, adding that he would not do so without his lawyer.
Cleveland then asked Bangs who his lawyer was and, given a response, telephoned attorney Gray Dellinger at around 1:20 p.m. Dellinger confirmed the call. Dellinger testified that he spoke with Bangs on the telephone and that Bangs’s voice was flat and monotone but that he seemed to understand Dellinger when he told him not to sign, consent to, or say anything. Following this telephone conference, Bangs’s interview was concluded, and both Investigator Cleveland and Sheriff Black took notes regarding appellant’s statements. Recently, in State v. Sheppard, 337 Ark. 1, 5, 987 S.W.2d 677, 680 (1999), we noted that questions about a statement’s credibility and reliability, including whether it was recorded or in the accused’s handwriting, are matters for the jury to resolve and not for the trial court to resolve when ruling on a motion to suppress. The jury was also entitled to resolve any factual dispute regarding attorney Dellinger’s testimony and that of the police investigators.
Similarly, the jury could determine that appellant had the capacity to knowingly and intelligently waive his rights. In Hayes v. State, 312 Ark. 349, 354, 849 S.W.2d 501, 504 (1993), we held that a written waiver is not required to effect a valid waiver. Moreover, in Bowen v. State, 322 Ark. 483, 504, 911 S.W.2d 555, 565 (1995), we noted that the assertion of the right to counsel and the right to remain silent must be made with specificity. Id. (citing Davis v. United States, 512 U.S. 452 (1994)). When the appellant in Bowen acknowledged that he understood his rights but answered questions without mentioning those rights, we held that he waived the rights by implication. Bowen, 322 Ark. at 504, 911 S.W.2d at 565; see also Standridge v. State, 329 Ark. 473, 479, 951 S.W.2d 299, 301 (1997). Significantly, by merely answering questions, one may waive by implication his right to remain silent. Bowen, 322 Ark. at 504, 911 S.W.2d at 565 (citing Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)).
In the instant case, police investigators advised appellant of his rights, and appellant acknowledged that he understood those rights. Additionally, although he refused to sign a statement, he proceeded to answer questions. Reviewing the evidence in the light most favorable to the State and given the totality of the circumstances, we conclude that the trial court was not clearly erroneous in denying appellant’s motion to suppress.
III. Jury selection
Appellant’s third point on appeal claims that the trial court erred by denying his challenges to strike two prospective jurors, Rayburn Holloway and Loyd McHenry, for cause. Additionally, Bangs asserts that the trial court erred by granting the State’s challenge for cause to prospective juror Martha Collins. The State correctly notes that appellant’s objections to venirepersons Holloway and McHenry are barred because he struck the two using peremptory challenges.
In Willis v. State, 334 Ark. 412, 420, 977 S.W.2d 890, 894 (1998), we' declined to address a similar claim of error because it involved venirepersons that the appellant had excused via peremptory challenges. We noted that it is well-settled that the loss of peremptory challenges cannot be reviewed on appeal, and that the focus should be on persons actually seated on the jury. Id. (citing Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1990); Pickens v. State, 301 Ark. 244, 251, 783 S.W.2d 341, 345 (1990) (citing Ross v. Oklahoma, 487 U.S. 81 (1988))). Therefore, we need not consider whether Holloway and McHenry should have been struck for cause because they were not seated on the jury.
We also decline to consider appellant’s claim that he was forced to accept juror Judy Price after exhausting his peremp tory strikes. In order to challenge a juror’s presence on appeal, Bangs must demonstrate that he exhausted his peremptory challenges and that he was forced to accept a juror who should have been excused for cause. See Willis, 334 Ark. at 420, 977 S.W.2d at 895-96. Here, Bangs merely claimed that Price should be removed via a peremptory strike.
Finally, during voir dire, venireperson Martha Collins stated that she knew a potential witness in the case because her husband had hired the attorney to represent him in connection with methamphetamine charges brought against him by the prosecuting attorney. Collins suggested that she could be fair and impartial despite the pending charges against her husband and that she would not have a “built[-]in animosity” against the State. However, after continued questioning, she admitted that the situation would “bother” her. Appellant claims that Collins only became upset because the prosecutor “hollered at her.”
The decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 97-98, 907 S.W.2d 677, 682 (1995), cert. denied, 517 U.S. 1143 (1996). While statements that a venireperson can be fair can make the person an acceptable juror, they are “not an automatic cure-all.” Walton v. State, 279 Ark. 193, 199, 650 S.W.2d 231, 234 (1983). Further, even if the trial court had abused its discretion, appellant failed to show prejudice, a prerequisite to a reversible-error claim. See Williams v. State, 327 Ark. 97, 103, 938 S.W.2d 547, 551 (1997). In light of the foregoing, we conclude that the trial court did not abuse its discretion in granting the State’s challenge for cause.
IV. Rule 4-3(h)
Pursuant to Ark. Sup. Ct. R. 4-3(h) (1999), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. Accordingly, we affirm appellant’s judgment of conviction. | [
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Per Curiam.
Appellant David M. Walston moves this court for a rule on clerk and shows this court as follows. The parties were divorced in 1995, and the decree was entered by the Howard County Chancery Court. There was one child of the marriage, Brittne Nicole Walston, who was born in 1986. Custody was awarded to Karen Walston, now Simmer. In 1998, Ms. Simmer filed a-motion for contempt and modification of decree in Howard County Chancery Court. On March 3, 1999, following a hearing, the Howard County Chancery Court found David Walston in contempt of court and ordered him to pay $2,000 as child-support arrearage, $237 for medical expenses, and $305 for attorney’s fees and costs. Those funds were to be paid directly to Simmer within ninety days of the date of the order. The chancellor refused to change visitation, except for visitation over the spring break, or to change the amount of child support. The chancery court then, on motion by David Walston, transferred the matter to Benton County Chancery Court pursuant to Ark. Code Ann. § 9-12-320 (Repl. 1998), for enforcement purposes because Benton County is where the parties and their daughter now reside. Under § 9-12-320, the chancery clerk of the court of original jurisdiction transfers certified copies of all case records to the county where the matter has been transferred.
On March 8, 1992, the Howard County Chancery Court order was filed in Benton County Chancery Court and given case number E 99-426-2. On April 5, 1999, David Walston filed his notice of appeal in Benton County Chancery Court from the order originally entered in Howard County but subsequently filed in Benton County. The notice of appeal contained the Benton County Chancery Court case number.
The Supreme Court Clerk refused to file the record in this appeal because the notice of appeal in Benton County Chancery Court was filed more than thirty days after entry of the Howard County Chancery Court order.
Appellant David Walston urges in support of his motion for rule on clerk that the notice of appeal was timely from entry of the order in Benton County and that Howard County is no longer the venue for this matter. Karen Simmer filed no response to the motion. We agree that the appeal was appropriately taken from the date the order was entered in Benton County. That, presently, is the venue for the case, because the parties and their daughter live there and because the matter has been transferred to that county in accordance with § 9-12-320. There has been no objection by either party to the transfer of venue, and though the order was framed by the Howard County Chancery Court, Benton County is where certified copies of the case records are and where the order will be enforced. We grant the motion for rule on clerk and direct the Clerk of the Supreme Court to accept the record in this case, as the notice of appeal is timely when calculated from the date the order was entered in Benton County.
Glaze and Imber, JJ., dissent.
At the hearing, she spelled her name “Simer,” but the notice of appeal refers to “Simmer.”
This statute was amended by Act 1491 of 1999 but that Act was not in effect at the time of the transfer. | [
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Ray Thornton, Justice.
Appellants Citizens for a Safer Carroll County are an organization of concerned citizens and church groups that circulated petitions for a vote on the sale and manufacture of intoxicating liquors in certain townships in Carroll County. They bring this appeal from the Carroll County Circuit Court’s decision that certain signatures of persons on their petitions were invalid under Ark. Code Ann. § 3-8-205 (Supp. 1997), with the result that in five precincts there were insufficient signatures on the petitions to place the issue on the ballot for the November 1998 general election. Having determined that appellants failed to timely file their notice of appeal within ten days of the decision of the circuit court, as required by Ark. Code Ann. § 3-8-205(e)(l), we dismiss their appeal.
On September 10, 1998, Shirley Doss, Carroll County Clerk, certified that petitions had been filed in her office having a sufficient number of signatures calling for a local-option election on whether alcoholic beverages could be sold in thirteen precincts in Carroll County. Appellees Billy Jean Epley, Linda Bristow, Susie Hutchinson, Klaus Kupfersberger, Bruce J. Matthews, Jeff Crockett and Quicker Liquor, Inc., Eric Wade Greer, Margaret Work, Virginia Ellis, and Jack Harp filed a complaint in Carroll County Circuit Court against the county clerk and the Board of Election Commissioners of Carroll County, challenging the sufficiency of the number of signatures. Appellants, who were responsible for the petitions, were allowed to intervene in the suit. On October 6, 1998, a trial was held and five precincts were struck from the ballot. The trial court found that signatures of persons who had registered to vote after June 1, 1998, were invalid and struck them from the petitions, leaving insufficient numbers of signatures on the petitions at issue in those five precincts. The trial court’s order was dated October 15, 1998. The local-option issue did not appear on the ballots in those five precincts in the general election held on November 10, 1998. Appellants filed their notice of appeal on November 12, 1998, urging that the circuit court erred in ruling that Arkansas law required that only those qualified electors who had registered to vote before June 1, 1998, could be counted to determine whether a sufficient number of signatures had been certified to place the issue on the ballot, and requesting that we reverse the trial court and order the Board of Election Commissions of Carroll County to place the issue on the ballot for a special election.
We decline to reach the merits of this appeal because appellants failed to timely file their notice of appeal. While the general appeal time as provided in our own rules, Rule 4(a) of the Rules of Appellate Procedure—Civil, is thirty (30) days, Arkansas Code Annotated section 3-8-205, which provides for the determination of sufficiency of petitions on local option issues, states that if an appeal is taken from the decision of the circuit court regarding the sufficiency of the number of signatures on a petition, “Any appeal from the final decision of the circuit court shall be taken within ten (10) days and shall be advanced and immediately determined by the Supreme Court.” Ark. Code Ann. § 3-8-205(e)(1) (Supp. 1997).
Appellants respond that the court rule and our rule-making power supersedes the statute’s shorter appeal time, and we agree that as a general rule, statutes are given deference only to the extent to which they are compatible with our rules and conflicts which compromise those rules are resolved with our rules remaining supreme. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). However, there is an exception to this general rule: when the statutory rule is based upon a fixed public policy which has been legislatively or constitutionally adopted and has as its basis something other than court administration. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). The principle has been recognized in many cases that when the Legislature fixes a short time for appeal in a particular type of case, and such time so fixed is reasonable, then the short time so fixed must govern rather than the long time allowed by the general appeal statute. Kansas City S. Ry. Co. v. Ark. Commerce Comm’n., 230 Ark. 663, 326 S.W.2d 805 (1959). See also Van Grundy v. Caudle, 206 Ark. 781, 177 S.W.2d 740 (1944); Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987) (upholding limited time of appeal from county court to circuit court under prior law).
We note that the trial court expedited the hearing and its decision in accordance with the time limits established by the statute. The Legislature has adopted a shorter appeal time based upon the strong public policy in favor of resolution of such an issue prior to the time for the general election, and indeed, if appellants had filed their appeal within ten days, it is possible that this case could have been advanced and immediately determined by this court, prior to the general election in November. Rather, appellants did not file their notice of appeal until November 12, 1998, twenty-eight days after the hearing, eighteen days after the time for filing their appeal under the local option statute, and two days after the general election was held on November 10, 1998. Because appellants failed to appeal from the trial court’s order within ten days as required by Ark. Code Ann. § 3-8-205, we conclude that their appeal was untimely and dismiss this appeal.
Dismissed.
Brown, J., concurs. | [
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Per Curiam.
Appellant Andra Gaines, through his attorney Donald A. Forrest, has filed a petition asking this court for instructions regarding the incomplete record in this matter. Appellant previously petitioned this court for a writ of certiorari to complete the record with transcripts of a pretrial hearing held on May 9, 1997, and a suppression hearing held on May 13, 1997. This court granted Appellant’s petition on May 13, 1999. The writ was returned on June 7, 1999; however, the completed record contained the May 9 pretrial hearing, but not the May 13 suppression hearing.
Rather than requesting further delay, Mr. Forrest filed Appellant’s abstract and brief in accordance with the original briefing schedule. Because the record did not contain the May 13 suppression hearing, Appellant’s abstract does not contain any reference to that hearing. Appellant asserts that this hearing is necessary to properly pursue his appeal.
Accordingly, we remand this matter to the trial court to settle the record regarding the May 13 suppression hearing. See Ark. R. App. P.—Civ. 6. Once the record has been settled and filed with our Clerk, the Clerk will set a new briefing schedule for substitution of the abstract and brief previously filed by Mr. Forrest. | [
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Per Curiam.
Our Committee on Criminal Practice has recommended in light of the United States Supreme Court’s decision in Knowles v. Iowa (December 8, 1998) that Rule 5.5 of the Rules of Criminal Procedure be repealed. We agree. Accordingly, effective immediately, Rule 5.5 is repealed.
RULE 5.5. Lawful-Scardhesr
The issuance-o-fia-eitation in lieu of arrest or continued custody docs not affect the authority-of-a-lavr-cnforccmcnt officci-to conduct anothcrwisc-iawful search or any other-investigative procedure incidcnt--to-an-arrestT | [
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Frank Holt, Justice.
B. J. McAdams, Inc., a domestic corporation engaged in interstate trucking and having its principal place of business in Pulaski County, brought this action in chancery court to enjoin the Director of Revenues, Department of Finance and Administration, from asserting a claim for registration fees on McAdams’ trucks for July 1, 1980 — December 31, 1980, and to enjoin the Director of the Arkansas Highway and Transportation Department from stopping McAdams’ trucks for failure to register in Arkansas. The parties will be referred to herein as “McAdams,” “Revenue Department,” and “Highway Department.” The chancellor ruled that McAdams owed $45,502.37 in registration fees for the last six months of 1980. The Highway Department appealed, contending that McAdams should be assessed $179,260.57. McAdams cross-appealed, contending that no registration fee was owed, or, alternatively, that the fee should be no more than $13,271.41. The Revenue Department argues that the chancellor was correct in all respects. We agree and affirm.
The factual background to this litigation is rather complex. McAdams registered its trucks in California for the calendar year 1980 and for some years prior thereto. California’s accounting is based on the calendar year. Arkansas’ accounting is based on the fiscal year, which runs from July 1 to June 30. In April 1980 the Revenue Department informed McAdams and other Arkansas based truckers then registered in California that, beginning July 1, 1980, they would be required to register their trucks in Arkansas and pay Arkansas a registration fee as prescribed in Ark. Stat. Ann. § 75-201 (Repl. 1979). McAdams responded by filing this action in chancery court.
Arkansas is a member of a multi-state compact called the International Registraton Plan (IRP), which allowed truckers based in any member state to register in any other member state. The state in which the trucker registers collects the registration fees which are then apportioned among each member in which the trucker operates according to the number of miles traveled by the trucker in each state. California is not a member of the IRP. Therefore, Arkansas does not receive a portion of the registration fee paid to California. States that are not members of this multistate compact often enter into reciprocity agreements whereby each grants to the truckers licensed in the other the right to use the highways without paying a registration fee. Members of the IRP are allowed by the terms of the compact to charge “reciprocity miles”, which are fees assessed on trucks licensed in the IRP state based on miles traveled by trucks in states that are nonmember states. The purpose of these charges is to prevent trucks from being able to operate free in nonmember states. Arkansas and all other member states charge reciprocity miles, except Illinois.
The chancellor concluded that Arkansas did not have a valid reciprocal agreement with California. He entered judgment for the Department of Revenue in the sum of $45,502.37. This sum was computed according to a formula that all parties agree is correct. The sum was computed for 365 tractor-trailer rigs traveling a stipulated number of miles in Arkansas and in other states. The sum includes “reciprocity miles” but allows a credit for fees paid in other states.
Several of the arguments made on appeal are, in effect, that the chancellor’s findings were against the preponderance of the evidence. Therefore, it is important to bear in mind that the chancellor’s findings as to a fact question will not be disturbed on appellate review unless clearly erroneous (clearly against the preponderance of the evidence) and due regard will be given the trial court to judge the credibility of the witnesses. Rule 52, ARCP, Ark. Stat. Ann. Vol. 3A (Repl. 1979), Ballentine v. Ballentine, 275 Ark. 212, 628 S.W.2d 327 (1982).
The Highway Department appeals from the chancellor’s ruling, asserting that the $45,502.37 in favor of the Department of Revenue is inadequate and should be $179,260.57. Although we discuss the merits of the Highway Department’s argument, we first observe that the Highway Department lacks standing to bring this appeal since it is not the agency charged with the duty of collecting the registration fees. Ark. Stat. Ann. §§ 75-110 — 75-120 (Repl. 1979). The Highway Department raises two points for reversal. First, it argues that the granting of credit for fees paid to other states was improper. However, this credit is authorized by the IRP and the IRP was entered into pursuant to Ark. Stat. Ann. § 75-251 et seq. (Repl. 1979). Therefore, we find no error.
Second, the Highway Department argues that the fee should have been computed by the chancellor on 1,150 trucks rather than 365. The assistant chief of the Highway Department testified that 1,150 trucks bearing McAdams’ insignia with different license plates crossed the Arkansas state lines from July 1 to December 31, 1980. However, on cross-examination he admitted that the count could involve duplication, since the same truck could be counted when it entered the state on different occasions at different points, and that the court could include trucks that were on a five day trip lease under the McAdams name but which would not be trucks that McAdams was required to license. We conclude that the chancellor’s finding was not clearly erroneous.
McAdams, on cross-appeal, raises four points for reversal. First, the state was estopped from claiming fees for the last six months of 1980 by an agreement, upon which McAdams relied when it registered in California for the calendar year 1980, between Arkansas and California that allowed Arkansas based truckers to register in California. The chancellor found that no valid agreement existed. We have reviewed carefully the evidence, including exhibits, relied upon by McAdams to prove the existence of an agreement, and we conclude that the chancellor’s finding was not clearly erroneous. The most that all the evidence proves is that there may have been an agreement at some time in the 1940’s or 1950’s; however, there is insufficient evidence that the terms of the agreement, if one existed, allowed an Arkansas domestic corporation, having its principal place of business in Arkansas, to register in California and thus avoid Arkansas’ registration fees.
McAdams’ second point is disposed of by our resolution of the first point. McAdams argues that the notice in April 1980 that Arkansas based truckers would be required to register in Arkansas or some other IRP state constituted “rulemaking” as defined by the Administrative Procedure Act [Ark. Stat. Ann. § 5-701 (c) (Repl. 1976)] and that the Revenue Department erred by not following the rulemaking process outlined in the APA. However, if no valid agreement existed allowing McAdams to escape registration in Arkansas or another IRP state, the Revenue Department was not promulgating or repealing a rule but was merely giving notice that the then existing laws would be enforced.
McAdams’ third point is that the amount of registration fees determined to be due by the chancellor is excessive because it includes “reciprocity miles.” McAdams claims that it owes the Revenue Department no more than $13,271.40 for mileage actually traveled by its vehicles in Arkansas. Two arguments are advanced to support this point. First, McAdams argues that it could have legally registered in Illinois during 1980 and avoided the payment of reciprocity miles, because Illinois is the only IRP state that does not collect reciprocity miles. The reasoning is that since it would have been permissible under Arkansas law for McAdams to have avoided reciprocity miles fees in this manner, Arkansas cannot collect those fees. We. find no merit to this point. It simply makes no sense to say that McAdams should now be able to benefit from a course of action that it could have chosen but did not. Similarly, McAdams complains that it will have to pay twice, once to California and once to Arkansas, for registration for June 1, 1980 to December 31, 1980. However, McAdams chose to register in California and pay the fee for the entire calendar year 1980. That registration was not in compliance with Arkansas law. No rule of law is cited which allows a taxpayer to voluntarily pay a tax in a state where none is owed and then claim that payment as a credit against taxes that are owed in the taxpayer’s home state.
In a subordinate argument McAdams asserts that the collection of fees for mileage traveled in other states violates the commerce and due process clauses. McAdams’ brief does no more than assert this point. No authority is cited and no real argument is made in support of this point. As we stated in Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken.
Affirmed on direct appeal and cross-appeal. | [
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Steele Hays, Justice.
In August, 1980, Mrs. Pauline White Ratterree was found to be incompetent and City National Bank of Fort Smith was appointed guardian of her estate. Her husband, John H. Ratterree, appellant, was appointed guardian of the person. Mrs. Ratterree’s son by a former marriage, Lloyd White, appellee, petitioned to intervene and permission was granted.
After a hearing the probate judge granted White’s petition that John Ratterree deliver to the court the tax returns of Mrs. Ratterree’s, which were their joint returns, for three years preceding the guardianship. The bank and John Ratterree were ordered to make a complete inventory of the furnishings of Mrs. Ratterree’s home and to show entries and contents of a bank lock box in Mr. Ratterree’s name but thought to contain property of Mrs. Ratterree.
John Ratterree claims on appeal the Probate Court had no jurisdiction to order the delivery of tax returns for years before the guardianship was created and asserts it was error to order the delivery of the returns and the inventory of the furnishings and lock box. We find no error.
I.
Notwithstanding a prolonged argument, appellant cites nothing to support the proposition that Probate Courts are powerless to order a guardian of the person to surrender the tax returns of an incompetent ward over to the court for inspection by the guardian of the estate, as well as other parties to the litigation. Because the returns are for years preceding the guardianship, appellant insists he should not have to deliver “his” returns, without some showing of fraud or wrongdoing, simply to satisfy the curiosity of appellee. But the fact is the returns are also the property of the ward and they are, perforce, a useful source of information to the court and to the guardian in marshalling the estate. We note that even before their delivery had been ordered by the court, the bank had sought, without success, to obtain these documents from Mr. Ratterree.
Article 7, Section 34 of the Constitution of Arkansas gives Probate Courts exclusive, original jurisdiction over guardians and persons of unsound mind and their estates. In furtherance of that provision the legislature has imposed on guardians of the estate the duty to exercise due care in the protection and preservation of the property of an incompetent [Ark. Stat. Ann. § 57-625 (Repl. 1971)] and the duty to take possession of all the ward’s real and personal property and of “rents, incomes, issue and profits therefrom, whether accruing before or after his appointment. . . ” . [Ark. Stat. Ann. § 57-626 (Repl. 1971)]. We believe those duties are sufficient to uphold the power of the Probate Court, in its discretion, to order the returns to be available in this case.
II.
In the alternative, Ratterree next argues that even if the court has jurisdiction, it was error for the Probate Court to make the tax returns available to White. He argues that good cause must be shown before one party must produce his tax returns for the inspection of another and that appellee White is without standing to request the tax returns. But White was permitted to intervene in the proceedings and no appeal has been taken from that order. On that basis, we disagree with the assertion that he is without standing in this case.
Appellant cites cases holding that a party seeking the production of tax returns, as opposed to other documents, must first show good cause, which, he says, White has failed to do. The principle itself is sound enough, but the argument ignores two important distinctions: one, White has a clear interest in preserving the estate of his mother, for her sake as well as his own, and two, the returns are not simply “appellant’s tax returns”, but are at once the returns of the incompetent ward as well.
The whole question of “good cause” for discovery rests within the sound discretion of the trial court. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973); Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). We find no abuse of discretion by the trial court in ordering the inspection of these tax returns.
III.
The final argument is that the court was wrong in ordering an inventory of the household furnishings of the Ratterree’s homeplace and in ordering an inventory of appellant’s safety deposit box, with the dates of entry shown. What possible benefit will be gained from knowing when Mr. Ratterree entered the lock box we cannot say, but issues of evidence and its discovery are better left to the trial courts and we are not willing to disturb an order merely because it may prove to be of no consequence.
As to the box itself, the testimony was that it originally belonged to Mrs. Ratterree and contained papers of her as well as Mr. White’s, but that Mr. Ratterree changed it to his name and to another location, which he seemed reluctant to reveal even to the trial judge. We cannot say it was clearly improper for the court to order an inventory of the contents of the box. We take the same view of the household items.
The order of the Probate Court is affirmed.
Dudley, J., dissents.
Glazer v. Glazer, 374 F.2d 390 (1967); Ullmann v. Hartford Fire Insurance Co., 87 N.J. Super. 409, 209 A.2d 651 (1965); Boswell v. Curtis, 334 S.W.2d 757 (Mo. App. 1960). | [
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Philip E. Dixon, Special Justice.
This is an appeal from an interlocutory order. It presents the single issue of the voluntariness of an in-custodial confession.
In sustaining Appellee’s motion to suppress the confession, the Trial Judge made, inter alia, the following ruling:
“In view of the defendant’s limited education, his illiteracy, his views toward uniformed authority, his psychological makeup, the custodial interrogation, and the totality of the circumstances, the Court is of the opinion that the statement obtained from the defendant was not a voluntary statement as defined by existing law.”
Appellee, Judon Graham, was contacted by Detective Sergeant Robert Dunaway of the White County Sheriff’s Office and State Police Investigator, Mary Kesterson, at his place of employment at the Pangburn School System. They requested that he accompany them to Searcy, Arkansas, to talk with them. Appellee agreed and drove his own vehicle to the White County Detention Center.
At the Detention Center, Appellee acknowledged that he was advised by the officers as to his constitutional rights as an accused, had questions asked him, and testified that he signed and understood the Rights Waiver.
After having signed the Rights Waiver, Graham was informed of the allegations that had been made against him by a student at the Pangburn School System.
The recent decision of this court in Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982), clearly dictates that in ruling upon the suppression of a confession, each case must be determined by looking at the totality of the circumstances. This totality is subdivided into two main components; first, the statement of the officer, and second, the vulnerability of the defendant.
The Davis decision, supra, also sets forth the procedural rules that are applicable. The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981); Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1970). While this court does not reverse the Trial Court’s finding unless it is clearly erroneous, it does make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Davis, supra.
It is first necessary to examine the statements of the officer. At the hearing before the trial court, Officer Dun-away testified that he initially attempted to establish a rapport with Graham. He advised Graham that he would have no objection to handling the case in the Judge’s chamber, because Graham was concerned about an appearance in the Court room in the presence of people and representatives from the press. The officer also told Graham that he would try to see that this matter would be handled that way and, as far as he was concerned, there was no reason why it could not be done in this case. Officer Dunaway further told Graham that he would do all he could to see that the matter would be handled quietly and would try to keep the case from being sensationalized. The questioning officer also told Graham that his lack of a previous criminal record would be in his favor and that he would go to court as a first offender. In addition, Graham and Dunaway had a conversation about medical help that would be available to Graham and that he was told that it could perhaps be provided on an out-patient basis.
Secondly to be considered in the totality of the circumstances is the vulnerability of the accused. The testimony before the trial court in this regard was significant. Appellee testified that he was very concerned about what his family would think of his arrest and did not want any publicity and wanted the matter over with in a few weeks. He believed the statement of the Officer that he could be treated as an out-patient, and that he believed that Officer Dunaway knew what he was talking about. He further stated that he had never been in trouble with the law and had never had a police officer tell him something that wasn’t true. Of importance was the testimony of Graham that he believed that if he signed the statement, he would not have to go to the penitentiary and would just get mental help as an outpatient. He testified that he honestly believed it was going to be that way and that Officer Dunaway knew what he was talking about because he was the Sheriff, represented the law, Graham believed him, and that is the reason he signed the confession.
Testimony was also presented on behalf of Appellee by a clinical psychologist who stated that Graham could not read or write sufficiently to take any paper and pencil tests and that all questions had to be read to him. Additionally, Graham’s achievement level was somewhere at the second or third grade level and he was illiterate. The psychologist testified that Appellee was a very trusting person to anyone in a position of authority, and that in his opinion, Graham was willing to attest to something with which he did not basically agree because of the promise of an “easy way out” from pressure and from the publicity that he so greatly feared for himself and his family.
We do note, and affirm the trial court’s ruling, that Sergeant Dunaway did not intend to induce, mislead, misrepresent, or otherwise persuade or intimidate Appellee in order to obtain a statement. However, the critical issue to be resolved is how the conversations between the Officer and Appellee were perceived by Graham; here, the trial court found that because of Appellant’s limited education, illiteracy, respect for uniformed authority, psychological makeup and the totality of the circumstances, his statement was not voluntary, as defined by law.
It was for the trial court, as the fact finder, to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, supra. We hold that the trial court’s ruling that the confession was not voluntarily and knowingly given was not clearly against the preponderance of the evidence.
Adkisson, C.J., dissents.
Hickman, J., not participating. | [
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Robert H. Dudley, Justice.
Respondent filed a claim for unemployment insurance benefits with the Employment Security Division of Arkansas Department of Labor. The Agency, Appeals Tribunal and Board of Review, created by the Employment Security Law, held she was not entitled to the benefits. The Court of Appeals reversed and remanded with directions to extend benefits holding that, under the circumstances, the Employment Security Division was estopped to deny the benefits to respondent. Jones v. Everett, Director, 4 Ark. App. 169, supplemental opinion at 174A and 174B, 629 S.W.2d 305 (1982). We granted certiorari pursuant to Rule 29 (1) (c) to determine whether there was error in extending the doctrine of estoppel against the State. We reverse the Court of Appeals and affirm the judgment of the Board of Review.
Judy Jones, respondent, voluntarily quit her last work as a secretary in Ashdown to move to El Dorado with her husband. On June 8, after arriving in El Dorado, she applied for unemployment insurance benefits. On June 23, more than two weeks after filing her claim, respondent declared n a certified statement that she had not contacted any employers but had checked with friends about employment openings.
Ark. Stat. Ann. § 81-1106 (a) (Supp. 1981) disqualifies employees from benefits if they voluntarily leave work unless they qualify under an exception by immediately entering the labor market after following their spouse to a new place of residence. The Agency disqualified respondent from receiving benefits becuse she had “made no realistic effort to locate employment...” Respondent gave notice of appeal by letter.
At the appeals hearing the respondent testified that her earlier statement was not correct and that, instead of not contacting any employers, she had contacted four potential employers. She explained the discrepancy by stating that her first statement referred to employers to whom she had actually made job application while her subsequent testimony referred to employers she had contacted who were not then accepting job applications. At the hearing she could not recall the names of any of the persons who refused to let her make a job application nor could she remember the dates she talked to them. She testified that, in addition, she mailed two resumes to employers. Subsequent to the hearing she gave by letter the dates on which she alleged that she had contacted employers. The Appeals Tribunal and the Board of Review upheld the Agency finding that respondent did not immediately enter the labor market. The Court of Appeals reversed and remanded with directions to award benefits. Jones v. Everett, Director, supra.
In reviewing the sufficiency of the evidence on appeal of Employment Security cases to the Arkansas Court of Appeals, the evidence is to be considered in the light most favorable to the successful party below and the decision is to be affirmed if there is substantial evidence to support the decision. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978); Ark. Stat. Ann. § 81-1107 (d) (7) (Supp. 1981).
Respondent’s first statement that she did not contact any employer for a little longer than the first two weeks of unemployment was substantial evidence to support the findings of the Board of Review. The Board was not bound to believe her subsequent explanation. However, the Court of Appeals held that the petitioner was estopped to deny that respondent immediately entered the job market.
In its supplemental opinion, the Court of Appeals stated that it based its holding of estoppel on the actions of the agency at its initial contact with appellant. The Court of Appeals found that during the two week interval from petitioner’s first visit until her second she had absolutely no guidance and was never advised of what was required of her in order to draw benefits during her period of unemployment. In addition, according to the Court, the agency created a situation where the claimant could have reasonably believed that she needed only to return on the assigned date.
However, the only evidence in the record of the actions of the agency in its initial contact with respondent is in her statement in the notice of appeal, quoted by the Court as follows:
In my opinion I have followed every procedure you have set forth. Upon arriving in El Dorado, I immediately went to the Employment Security Division and signed up for employment. At that time I was not informed of any particular procedure I was to follow in seeking employment. The only information I was given was to fill out the paper I was given and return on 6-23-81 to see a film that would give me complete details regarding my responsibilities and unemployment insurance. . . .
The Court of Appeals in holding that the State is estopped to deny benefits to respondent stated:
[O]n these facts, and based on prior holdings of this Court and the Arkansas Supreme Court, we hold that the Employment Security Division is estopped to deny benefits to the appellant. Where the claimant has relied on the failure of Employment Security Division to advise of any additional requirements, that Agency should not be allowed to turn around and impose additional requirements, which were unknown to the claimant, in order to deny her benefits. Obviously, a claimant must make an attempt to find a job in order to be qualified under the Act, but if the Agency wishes to impose specific requirements such as two job contacts a week, four contacts a week, or any other such number, claimants should be advised of what those requirements are at the time they make initial contact with the Agency.
In Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), we abandoned the principle that the doctrine of estoppel could never be applied against the State and announced that estoppel would lie against the State in very limited circumstances. However, this doctrine is to be applied against the State only when there is substantial proof and a compelling reason. Here there was no substantial proof of the only allegation of affirmative misconduct. That allegation was made in respondent’s notice of appeal quoted above. In addition, the State was never given the opportunity to submit evidence to rebut the allegation.
In Rainbolt v. Everett, 3 Ark. App. 48, 621 S.W.2d 877 (1981) the Court of Appeals properly refused to apply estoppel without the State first being afforded the opportunity to submit evidence to rebut appellant’s claim about false representations by an agent of the Employment Security Division. There the Court reversed and remanded the case for additional evidence on the issue of estoppel. See also, Clay v. Everett, 4 Ark. App. 122, 628 S.W.2d 339 (1982); Foote’s Dixie Dandy, Inc. v. McHenry, supra; Ark. Stat. Ann. § 81-1107 (d) (7) (Supp. 1981). In this case the only evidence presented other than the statement in the notice of appeal, was on the issue of immediate entry into the labor force. Yet, while there was no substantial proof on the estoppel issue, the Court of Appeals made a finding on the merits of estoppel. This was error.
The other reasons given by the Court of Appeals for applying the doctrine do not involve allegations of affirmative misconduct. They can be summarized as findings of unconscientiousness on the part of the administrative agency. Likewise these issues were not fully developed below and there was no substantial proof of lack of conscientiousness. Certainly, we do not intend that the Foote’s doctrine be extended to a nebulous and indefinite situation where the agent of the State has not clearly caused the claimant to believe that nothing more is necessary other than to return on the assigned date. We additionally note that the General Assembly has provided: “Mere registration and reporting at a local employment office shall not be conclusive evidence of the ability to work, availability for work, or willingness to accept work unless the individual is doing those things which a reasonably prudent individual would be expected to do to secure work.” Ark. Stat. Ann. § 81-1105 (c) (Repl. 1976).
The function of the Employment Security Division is to administer the Act and to make sure that only those persons who are entitled to benefits receive them. The law imposes a requirement on the claimant to do those things which a reasonable person would do to seek work. Ark. Stat. Ann. § 81-1105 (Repl. 1976). The requirement is for the benefit of the general public and is to prevent payment of benefits to persons who are not entitled to them. Before the State is estopped from applying this law there must be substantial evidence that the citizen relied upon actions or statements by an agent of the State.
There was no substantial evidence to apply the doctrine of estoppel against the State in this case. Therefore we reverse the decision of the Court of Appeals and affirm the decision of the Board of Review.
Reversed and the judgment of the Board of Review is affirmed. | [
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Darrell Hickman, Justice.
The underlying issue in this case is a wet-dry election. But the only issue decided by the trial court and to be decided by us is whether the voting precinct in which that election is proposed is legal.
The Circuit Court of Conway County held the law had been substantially complied with and the precinct was “legal.” We agree.
The controversy involves a liquor store located outside the city limits of Morrilton. It is located in what was originally Welbourne Township, a large township virtually surrounding the City of Morrilton.
In 1975, the Conway County Election Commission divided Welbourne Township into two parts, calling one Welbourne West, the other Welbourne East. This division was made after Amendment 55 to the Arkansas Constitution was adopted to create new districts, equal in population, for the county’s new nine justices of the peace.
On October 29,1975, the Election Commission caused a document entitled “Proposed Justices of the Peace Districts for Conway County” to be filed with the county clerk. It was signed by all three commissioners. It named and defined Welbourne East and West precincts. But no formal document was filed adopting that proposal. Nor were the parties able to find or produce any minutes of the Election Commission that approved the new precincts, although the chairman said the commission kept minutes.
Nonetheless, after 1975 all elections held in Conway County were conducted in Welbourne East and Welbourne West as though the precincts legally existed. Separate precinct “binders” were maintained in each precinct containing only the voter registration information for that respective geographic area. Separate j udges and clerks served in each precinct in every election since 1975. Separate polling places were adopted and maintained, whereas before all of Welbourne Township voted at the courthouse in Morrilton. Separate justices of the peace were elected serving the respective areas; all elected officials, state and local, were voted on separately. (But only one constable is serving the area originally designated as Welbourne Township.)
In December, 1981, a document styled “Proposed Justices of the Peace Districts for Conway County” was filed with the Secretary of State. It was prepared in answer to the 1980 census to insure the justices of the peace districts complied with the principle of “one man-one vote.” It defined more specifically the boundaries of Welbourne East and Welbourne West but did not alter in any way existing boundaries. In fact it did not alter any of the nine districts adopted in 1975. For example, the first document filed in 1975 with the clerk regarding Welbourne West read:
District 2: Welbourne (west of 1970 census line and west city limits of Morrilton) and Ward 2 (bounded by East Street on the east, south to Green Street, west to West Street, north to city limits, east to East Street); 2034 people.
The document filed with the Secretary of State read:
DISTRICT 2: Ward 2 and West Welbourne Township better defined as that portion lying West of the Morrilton City Limits to the Pope County line, North to Gregory Township line, South to the Arkansas River. Highway #95 North of Morrilton is the dividing line of Welbourne East and West Township. (2188 people)
Certain citizens of Welbourne West sought an election on the wet-dry issue and filed with the county clerk a petition signed by more than 15% of the electors of that precinct. It was accepted, approved, and ordered on the ballot for the general election.
The opponents’ only argument is that Welbourne West is not a valid election precinct pursuant to Ark. Stat. Ann. § 3-601 and, therefore, the election cannot be valid — the old Welbourne Township is the only legal precinct.
The relevant portion of the statute reads:
The action of said commissioners in changing the voting place in any precinct, or in altering the boundaries of any precinct, or in establishing any new one, shall be entered in the record to be kept by them, and a copy of said order shall set out intelligently and accurately the boundaries of said precincts as so altered or established, shall be filed with the Clerk of the County Court who shall record the same at full length on the record book on which the minutes of the proceedings of the County Court are recorded.
The trial court found substantial compliance with this law, observing that:
All requirements of Ark. Stat. 3-601 have in fact been complied with, except the filing of an appropriate order. Since the precinct has in fact been established, the technicality of filing an order can be performed at any time.
The court observed that all but two of the 28 or 29 precincts in Conway County may suffer from the same defect that exists in this case — the lack of a formal order of approval. Two of the three election commissioners testified and both confirmed they had agreed and approved the change of the precinct. The order would be entered by the commissioners.
In fact, one said the 1981 document was filed with the county clerk with a map, but the records do not reflect it was in fact filed. The chairman said he and the commission, so far as they knew the law, had tried to comply with the law, and stood willing to abide by any court orders.
We find no controlling precedent. In Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976), we dealt with a precinct imperfectly formed but it was created only for one election and that was the deciding factor.
In Lovewell v. Bowen, 75 Ark. 452, 88 S.W. 570 (1905), we recognized that voters should not be disenfranchised who for years had voted within recognized township lines that were not actually the true lines. See also Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956).
The precinct in question has existed in fact through at least three elections. Its boundaries are not questioned by anyone. It has been recognized by the election officials and voters as a valid precinct and the only question of legal insufficiency is the lack of a formal order. As the trial court observed, such an order could be entered at any time. It is a mere technicality. We agree.
Affirmed. | [
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Steele Hays, Justice.
On October 7,1979, appellant, an unmarried minor, gave birth to a son. On January 31,1980, she signed a consent to adoption by the appellees and an adoption hearing was held on April 28. The appellant was not present and no guardian ad litem was appointed for her. On May 6, a temporary decree of adoption was entered. On July 22, the appellant filed a petition to set aside the decree, alleging that the consent was not valid because no guardian ad litem had been appointed. On September 4, 1981, appellant’s petition was dismissed and the adoption decree was made final. The appellant appeals from thatrulingand argues that the interlocutory decree was in error because no guardian ad litem was appointed as required by Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976) and by Arkansas Rules of Civil Procedure 17 (b). We affirm the Chancellor.
Under Arkansas’ prior adoption laws, service of process was required even though a consent had been given, and if the consenting parent was a minor a guardian ad litem was necessary. Arkansas’ new adoption act (Act 735 of 1977) institutes a different procedure and no longer requires service of process if consent has been given. The act requires no service, notice, or any further participation by those who consent to an adoption. Since appellant has not challenged the new act on constitutional grounds, we need not consider whether it meets due process requirements. Rather, the question presented is whether Rule 17 (b) of the Arkansas Rules of Civil Procedure, requiring the appointment of a guardian ad litem, should be used to supplement the present adoption act where the consenting parent is a minor.
Appellant relies on Schrum v. Bolding, decided in 1976, before the passage of the Revised Uniform Adoption Act. Ark. Stat. Ann. §§ 56-201 — 56-221 (Supp. 1981). Under Arkansas law in effect prior to Schrum all persons whose consent to an adoption was required, regardless of whether consent was given, were to be named as defendants and were to receive notice of the proceedings by service of summons. Ark. Stat. Ann. § 56-104 (Repl. 1971). It was on this statute that the holding in Schrum was based. The minor mother in Schrum had waived service of process, but the Court pointed out that a minor cannot waive service of process, Moore v. Wilson, 180 Ark. 41, 20 S.W.2d 310 (1929), nor can a guardian ad litem be appointed until after service of process, Ark. Stat. Ann. § 27-826 (Repl. 1979), and no judgment can be rendered against an infant until a defense has been made by a guardian ad litem, Ark. Stat. Ann. § 27-825 (Repl. 1979). Under the current Revised Uniform Adoption Act, which streamlines the old adoption procedure, we have a totally different scheme. If consent has been given, notice to the consenting party is not required, nor is any further participation required of them. The new act makes this quite clear in Ark. Stat. Ann. § 56-207 (b):
Except as provided in section 12 notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.
and again in § 56-212 (a), directing to whom notice shall be given:
... to (1) any agency or person whose consent to the adoption is required by the Act but who has not consented and (2) a person whose consent is dispensed with upon any ground mentioned in subsections (1), (2), (6), (8) and (9) of subsection (a) of Section 7 of this Act.
Because the language of the RUAA is clear in dispensing with notice once the necessary consent is given, the holding in Schrum must be read in light of the prior adoption statutes which did require notice to all whose consent was required. Too, we take note of the fact that of the seven other states that have adopted the RUAA or substantially similar acts, none has provided for or been construed as requiring a guardian ad litem.
Appellant argues that Rule 17 (b) requires the appointment of a guardian ad litem in proceedings where the consenting parent is an infant. We disagree. Once consent is given under the RUAA, it eliminates the need for any court appearance and any requirement that the person whose consent was given be a party to the proceedings. Rule 17 (b) contemplates an adversarial situation requiring a guardian ad litem whenever a minor has to “sue or defend.” Under the statutory scheme of the RUAA, however, once consent has been given, the participation by the individual giving consent is finished. In contrast, had a minor mother not given consent and was contesting the adoption, the application of 17 (b) would be appropriate. We might point out the act does not preclude a careful practitioner from seeking the appointment of a guardian ad litem for a minor mother and certainly that precaution would lessen the probability of an attack on the adoption decree in a later proceeding, as occurred in this case, and of a subsequent contention that the minority of the parent contributed to an invalid consent. See 2 UALR L.J. 135 (1979).
We might well point out that the new adoption act provides yet another method of surrendering parental rights which is intended to be followed where the consenting mother surrenders her child, not directly to the adopting couple, as here, but to an agency, which may later place the child for adoption by parents it selects. The latter method is set out in Section 20 of the act (Ark. Stat. Ann. § 56-220 [Repl. 1971)] and provides that the consenting parent, regardless of age, can appear before a j udge of a court of record or before a representative of the agency and relinquish her parental rights as well as the rights to later withhold her consent. Under this procedure the consenting parent has ten days in which to revoke her consent and the relinquishment is invalid unless this right of withdrawal is stated.
Appellant’s other argument challenges the trial court’s finding that the appellant gave a valid and informed consent to the adoption. We find the evidence sufficient to sustain the court’s findings and not clearly against the preponderance of the evidence. We will not disturb the decision unless we find to the contrary. Rule 52 ARCP.
Affirmed.
Hickman and Dudley, JJ., dissent.
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Steele Hays, Justice.
The essential question here is whether John Erickson was wrongfully discharged in April .1980 from his job as Subdivision Administrator by Nathaniel M. Griffin, Director of the Office of Comprehensive Planning of the City of Little Rock. Relying on a document entitled “Statement of Management Policy”, Erickson claimed he was discharged without cause and appealed to the City Manager, Carlton McMullen, who upheld the discharge. Erickson then filed suit against Griffin, McMullen and the City. The Chancellor held Erickson’s discharge was not warranted under the proof and ordered his reinstatement with back pay totaling $30,502.68. On appeal, we reverse.
John Erickson was first employed by the City in 1963, working directly under Richard Wood, in what was then called the Department of Community Development. In 1977 a major change in emphasis and philosophy occurred in the office, shifting from a caretaking approach in subdivision development to a more professional approach, applying more updated principles of planning. Nathaniel Griffin was hired as director and the department was renamed “Office of Comprehensive Planning.” In June of 1978, Erickson received a memorandum from Griffin outlining in depth his objectives for the office of Subdivision Administrator and pointing out areas of deficiency where improvement was expected. He proposed to review performance after six months and if merited, promotion would be recommended. In February of 1979, Erickson was promoted, but in May he received the first of a series of critical memoranda alleging excessive absences from the office. In September a memorandum went to all 15 members of the staff from Richard Wood dealing with poor work habits, tardiness, lax attitudes and inefficiency. A later memo from Griffin stressed the same points. On October 1, a memo to Erickson from Griffin and Wood referred to “Unacceptable Job Performance”, generally stressing the same problems and mentioning tardiness and unwillingness to do unpleasant tasks or to work to capacity. In October and December Erickson received memos from Griffin alleging the mishandling of six subdivision matters, outlining the alleged failures in specific terms. The following day a Wood to Erickson memo cited unacceptable job performance in connection with excessive or unauthorized absences from the office and in the preparation of the subdivision committee agenda. The memo suggested Erickson was becoming increasingly indifferent to the issues and solutions of the office and said another notice would result in termination or demotion.
In February 1980, a memo alleged that Erickson had left the office to go to the races without completing a report Griffin had requested in response to an inquiry from the City Manager’s office. A March memo cited tardiness on March 27 and an unauthorized absence of 3.5 hours on March 28. In April 1980 Erickson was terminated for alleged substandard performance extending back to June 8, 1978.
Erickson requested a hearing pursuant to the “Statement of Management Policy” and a hearing was conducted first by the City Personnel Director, Ron Lloyd, and then by the City Manager, Carlton McMullen. Both affirmed the decision to terminate Erickson.
Before considering what effect the Statement of Management Policy may have had on the employment of John Erickson, basic elements of this case should be reexamined by reviewing the law with respect to the right of an employer to discharge an employee. It is generally, perhaps uniformly, held that when the term of employment is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause. See cases cited in 56 Corpus Juris Secundum, Master-Servant, § 31, p. 412 and 53 American Jurisprudence 2nd, Master-Servant, § 17, p. 94. It has been stated generally that employment is held only by mutual consent, and that at common law the right of the employer to terminate the employment is unconditional and absolute. Jefferson Electric Company v. N.L.R.B., 102 F.2d 949 (1939).
Generally, a contract of employment for an indefinite term is a “contract at will” and may be terminated by either party, whereas a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. Little v. Federal Container Corporation, 452 S.W.2d 875 (Ct. of App. Tennessee, 1969).
Our own cases have adhered to this principle, that either party has an absolute right to terminate the relationship. Miller v. Missouri Pacific Transportation Company, 225 Ark. 475, 283 S.W.2d 158 (1955), Moline Lumber Company v. Harrison, 128 Ark. 260, 194 S.W. 25 (1917), St. Louis, I.M. and S.R. Company v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897). Federal decisions applying Arkansas substantive law in this field are: Tinnon v. Missouri Pacific Railroad Company, 282 F.2d 773 (8th Cir. 1960); Cato v. Collins, 539 F.2d 656 (8th Cir. 1976), and Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977). Nor does the fact that the employment is public rather than private alter the rule. Ruggieri v. City of Somerville, 405 N.E.2d 982 (Mass. 1980). Board of Regents v. Roth, 408 U.S. 564 (1972), and Mittlestaedt v. Board of Trustees of the University of Arkansas, 487 F. Supp. 960 (1980).
It is quite clear, therefore, that in the absence of some alteration of the basic employment relationship, an employee for an indefinite term is subject to dismissal at any time without cause.
Moreover, we have held firmly to this view even where a contract of employment provides the employee will not be discharged except for good cause. We have said that where an employer and an employee agree the employee shall not be discharged without cause, the contract is not enforceable where there is no agreement by the employee to serve for any specified time. In St. Louis I.M. and S.R. Company v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), we said:
It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either party may put an end to it at will, and so without cause, (our italics).
Forty-six years later, in Petty v. Missouri and Arkansas Railway Company, 205 Ark. 990, 167 S.W.2d 895 (1943) we reaffirmed the rule in Matthews. Petty, a railroad engineer, claimed he was wrongfully discharged under a contract and asked that the Matthews case be overruled. We declined to overrule Matthews and said:
We see nothing in [Matthews] that runs counter to any well established rule of law of contracts. On the contrary, it appears to us to be in harmony with the rule of mutuality of obligation. The fact that it was decided forty-five years ago and by a divided court, Chief Justice Bunn dissenting, is not sufficient to justify overruling it. Decisions of other courts are cited to support the decision made, and our investigation discloses that there are a number of decisions of courts of last resort since that time and up until quite recently that are in accord with it.
Whether Petty and Matthews should be followed now, we do not decide, as neither side has relied on these cases and we are unwilling to decide a question of significance in that setting. We cite these cases to illustrate how firmly ingrained in our case law is the rule that either party may terminate a contract of employment where no specific duration is agreed on even where the contract requires cause. A number of federal cases cite Matthews and Petty as the controlling substantive law of Arkansas. Tinnon v. Missouri Pacific Railroad Co., 282 F.2d 773 (1960), Smithey v. St. Louis Southwestern Railway Co., 237 F.2d 637 (1956) and Roberts v. Thompson, 107 F. Supp. 775 (E.D. Ark. 1952).
Erickson makes no claim that he was employed for a definite term. Rather, like Petty and Matthews, he claims the Statement of Management Policy prohibited his discharge without cause. The City, on the other hand, contends the SMP was not applicable to Erickson and, even so, sufficient grounds for his dismissal existed.
The City argues the SMP was never formally adopted and had no binding effect. Although the SMP was drafted with union members in mind, it was followed and applied as the operating manual for non-union employees of the City and we find no reason to disregard it. The more difficult question is how literally it was intended to apply to professional employees. The instrument itself lacks clarity and we are unable to determine what is intended by it. We conclude that by usage it was generally applied to other employees as well as those expressly covered. At the same time we point out that literal compliance is not required. Maxwell v. Southside School District, 273 Ark. 59, 618 S.W.2d 148 (1981), and McElroy v. Jasper School District, 273 Ark. 143, 617 S.W.2d 356 (1981). The testimony of Carlton McMullen, and others, that with respect to professional employees the SMP was intended to be more of a procedural guide than a statement of strict substantive rights is plausible. Without belaboring the point, we are satisfied the SMP applied to John Erickson but we believe there was substantial compliance with its requirements and the hearings conducted by Lloyd and McMullen were sufficient.
Turning to the grounds themselves, the Chancellor found the discharge unwarranted by the proof, but we are convinced that view cannot be sustained. It would be impractical to attempt to examine the grounds separately. The list is too long and in some instances too complex. It was conceded some of the complaints were legitimate. We have studied the allegations and responses fully and putting the burden of proving justification on the City the evidence supports the termination. We find the Chancellor’s findings to the contrary to be clearly erroneous. Besides, the grounds are merely symptoms of the problem, the important thing is the root causes and the inescapable fact is that John Erickson failed to perform professionally in a manner acceptable to his two immediate superiors. Plainly, he and Nathaniel Griffin had a fundamental difference of opinion in philosophy which was never resolved. Richard Wood’s testimony attests to that and John Erickson’s does not refute it, if anything it confirms it. Whatever the basic differences were, or which was correct, we cannot say. But it is clear the end result was a growing inability of the two men to work cooperatively toward the same end and in all probability it contributed to the decline in performance which both Griffin and Wood attributed to John Erickson. Wood described the quality of Erickson’s work as substandard, saying he became increasingly indifferent to the disciplines of the job, that he adopted a “so-what” attitude and told Wood he was not in accord with the objectives of the Planning Department, that his sympathies lay with the development community. Griffin’s testimony was similar, in sum, that Erickson was not working up to capacity nor at a level acceptable to Griffin. These are the appraisals of the two men under whom John Erickson worked and whose concepts he was obliged to satisfy. Whether Erickson’s philosophy was sound and Griffin’s faulty is not for us to decide, but we believe a subordinate employee has a responsibility to accommodate his professional views and objectives to those of his superior if an efficient operation is to be achieved. The proof is that John Erickson declined to do that and chose instead to discuss his differences with Griffin with other members of the staff and with “forty to fifty” other people, yet not once did he go to Griffin to discuss areas of disagreement:
Q. The point is you discussed your disagreement and problems that you had with Nat Griffin with somewhere between forty and fifty people, but yet you never bothered to discuss them with Nat Griffin.
A. He never bothered to discuss them with me.
Q. Well, I mean his office door was open, wasn’t it?
A. So was mine.
Q. Well, how was he to know that you were having a problem philosophically?
A. He was the one that — I was having no philosophical problems.
Erickson’s assertion that Griffin never bothered to discuss problems with him is both inaccurate and revealing. The long memo to Erickson in June, 1978, explained Griffin’s views and objectives for the planning department in detail. It invited questions from Erickson about the memo and urged him to express his own views, not to be a “yes-man”, proposing that once the staff had developed its position, it be unified in presenting that position.
Nor do we think unreasonable demands were put on Erickson. He makes no claim that that was so. He was expected to be prompt and regular in job attendance, yet it is plain that absenteeism was a problem and he had a tendency to be late, as one co-worker stated. We reject the notion that Erickson was the object of a vendetta.
There was testimony supportive of John Erickson which we have not overlooked: two secretaries testified that rules were loosely enforced and others were late and did not always follow the rules. One member of the Planning Commission testified that Erickson’s presentations to the commission were clear and concise. A developer described his staff reports to the commission as forceful and articulate, regarding him as more knowledgeable and capable than Griffin. On the other hand, a former commission chairman said Erickson’s presentations failed to frame the issues sufficiently for the commission to understand them, that Erickson did not know the material or knew it but failed to articulate it. He said the presentations were not clear and forthright and it was Richard Wood who got to the heart of the matter. Giving John Erickson the fullest benefit of these opinions, the test is not so much how outsiders saw his work, as how the men to whom he was responsible saw it, and of that there can be no question.
We have come to this view in part because we think the reinstatement of an employee at the professional level under the circumstances of this case would be especially unfortunate and ill-advised. If cooperative effort was lacking before, it would be nonexistent now. The authority of Woods and Griffin to manage and direct the staff would be undermined, and the orderly and efficient handling of the operation of the office would be impaired. Too, we have serious doubts that reinstatement is an available remedy. Our cases suggest otherwise. In St. Louis I.M. and S.R. Company v. Matthews, supra, the court questioned whether an employment contract calling for reinstatement was void as against public policy, and other cases, without mentioning reinstatement, have said an employee wrongfully discharged has these remedies: he can either sue for damages for breach of contract or treat the contract as rescinded and sue to recover the value of his services on a quantum meruit basis. Van Winkle v. Satterfield, 58 Ark. 617, 25 S.W. 1113 (1894), and Seaman Stores Co. v. Porter, 180 Ark. 860, 23 S.W.2d 249 (1930).
The decree is reversed and the suit dismissed. | [
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Frank Holt, Justice.
The principal issue in this case is whether the trial court erred in setting aside its declaration of a mistrial and reinstating the jury verdicts.
On November 24, 1981, a jury rendered verdicts of $222,698.81 in favor of appellee Delma Gold and $18,755.76 in favor of appellees Kenneth and David Blackmon against the appellants Clyde Martin and Arkansas Power and Light Company. The appellants’ attorney requested that the trial court poll the jury. The court then asked each of the eleven jurors, who had signed the verdicts, whether they were his or her own verdicts and “not the result of compromise.” Ten jurors spontaneously affirmed the verdicts as their own. One juror stated, “That was compromise.” Upon further questioning, another juror stated that the verdicts were a “compromise.” Thereupon, one juror asked the court to explain what he meant by “compromise,” and the court gave the following explanation:
Well, what I’m saying is that after you all have had every opportunity to discuss it that you are not to of course give up your own individual ideas after you have had an opportunity to discuss it between yourselves and to debate it then if this is a pure compromise such as if you all wrote down a figure and divided it by eleven it’s compromise.
After this explanation another juror stated that the verdicts were a compromise. The trial court declared a mistrial and excused the jury. As the jury dispersed, appellants’ counsel also left while counsel for the appellees were attempting to object and explain that the verdict, although a compromise, was valid or permissible inasmuch as there was no showing that the jury agreed to be bound in advance.
Within the next week, without notice to appellants’ counsel and without approval of the court, the attorneys for the appellees obtained affidavits, transcribed by the official court reporter, from each of the eleven jurors stating that the jury had, without previous agreement to be bound by the results, taken the average of the percentage of liability each would assign to the appellants and used that as a basis for discussion. The average was 76% fault attributable to the appellants. The jury then concluded that this average was too high and reduced the amount of fault attributed to the appellants to 60%. The verdicts represent 60% of the amount requested by the appellees.
After obtaining the affidavits, the appellees moved the trial court to set aside the mistrial order and reinstate the jury verdicts. At a hearing on the motion, over the objection of appellants’ counsel, the affidavits were read to the court and entered into evidence. The trial court candidly acknowledged that he had erred in declaring the mistrial since the verdict was not “a lot verdict” and reinstated the verdicts. A few days later the appellants moved to have the mistrial order reinstated. The court’s written order denying appellants’ motion to reinstate the mistrial states, in pertinent part:
. . . [A]fter considering a transcript of the proceedings conducted by this Court of November 24,1981 at the conclusion of the trial of the cause herein, the responses of the Jurors to the Court’s questioning, and arguments of counsel, . . .
The court specifically finds that the polling of the jury tended to confuse the jury, and that the Court while attempting to identify if a verdict had been reached by lot, inquired if the jurors had ‘compromised’ in reaching their verdict....
After considering the Arkansas cases on the subject, and reviewing the transcription of the jurors’ statements taken by the official court reporter at the time the verdict was rendered to the Court, the Court is of the opinion that there is no evidence that the verdict was reached by lot or in such a manner as would render the verdict impermissible. (Italics supplied.)
The court further found:
. .. [T]his court need not rely upon those affidavits or statements in reaching its decision herein. The record according to the statements of the jurors before being dismissed is clear of any evidence of misconduct or of the jury having reached its verdict by lot. (Italics supplied.)
Appeal is taken from that order denying the motion to reinstate the mistrial.
The appellants argue that the appellees should have been required to clear up any confusion at the verdict proceedings by requesting that the jury be polled further. Ark. Stat. Ann. § 27-1737 (Repl. 1979); Smith v. Perkins, 246 Ark. 427, 439 S.W.2d 275 (1969). Unlike Smith, appellees here objected and did all they could reasonably be expected to have done under the circumstances, as indicated previously, to correct the trial court’s mistake and clear the confusion at the time of the verdict proceedings.
The appellants also argue that the trial court erred in accepting into the record the eleven juror affidavits, and, therefore, it erred by granting the motion to reinstate the jury verdict and by denying the motion to reinstate the mistrial. Appellees respond that although an affidavit may not be received to impeach a verdict, it may be received into evidence to support a verdict. Pleasants v. Heard, 15 Ark. 403 (1854); and Stanton v. State, 13 Ark. 317 (1853). Here, however, we must agree that this evidence is inadmissible pursuant to Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 606 (b), Uniform Rules of Evidence. That rule clearly states that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations” but “may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any jurors.” Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). This is in contrast to the previous Arkansas statute, which allowed questioning of jurors to ascertain whether the verdict was by lot. Ark. Stat. Ann. § 43-2204 (Repl. 1964). This statute was specifically repealed when the Uniform Rules of Evidence were adopted. Acts 1975 (Extended Sess. 1976), No. 1143 § 2. Presently, it appears the law in Arkansas governing the admissibility of jurors’ testimony with respect to their deliberatons is Rule 606 (b), which does not permit questioning jurors to ascertain whether they reached their verdict by lot. Further, Rule 606 (b) makes no distinción between questioning jurors to impeach a verdict and questioning them to support a verdict. Therefore, we think our caveat in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), is applicable here. There we said:
... [I]t is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.
Likewise, here it is impermissible to question jurors in support of a verdict.
Nevertheless, we cannot reverse unless the error was prejudicial. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977); Rule 103 (a), Uniform Rules of Evidence; A.R.Civ.P. Rule 61. Here the trial court would have been obligated to set aside the mistrial and reinstate the verdicts even in the absence of the affidavits, because there was no ground upon which a mistrial could be declared, without an abuse of discretion, at the verdict proceedings. A verdict may not be set aside arbitrarily and without reasonable cause. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961). See also Bridges v. Hemmer, 256 Ark. 312, 506 S.W.2d 835 (1974); and Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978). It is apparent that the trial court, at the time of the verdict proceedings, was confused as to the distinction between a verdict by lot and a quotient verdict, which we recently explained in Scheptmann v. Thorn, 272 Ark. 70, 612 S.W.2d 291 (1981):
Where the j urors each submit a figure and agree in advance that the verdict will be one twelfth of the total, the verdict is by lot and cannot be upheld. If, however, there is no agreement in advance to be bound by the procedure, but the jurors do adopt the result, it is a quotient verdict and is valid. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1982).
The party challenging a jury verdict as a verdict by lot has the burden of proving to the trial court that it was a verdict by lot and not a quotient verdict. National Credit Corp. v. Ritchey, 254 Ark. 139, 491 S.W.2d 811 (1973). Here, nothing that any juror said when polled by the trial court on the day of the trial indicated that the jury had rendered a verdict by lot. Nothing any juror said indicated misconduct of any kind. Based solely on the statements of the jurors when polled at trial, we have no hesitation in saying that the evidence to support the order of mistrial was insufficient. Since the trial court erred in ordering a mistrial, it follows that the court necessarily was correct in setting aside the mistrial.
The appellants point out that the trial court heard the affidavits from the jurors and may have been influenced by them. Proper respect for the trial court requires that we give due credence to his finding that his decision to not reinstate the mistrial order was based upon the transcription of the statements of the jurors at the time the verdict was rendered. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981). Even so, it is ultimately irrelevant whether the trial court considered or was influenced by the jurors’ affidavits. The issue is whether the trial court acted properly by reinstating the jury verdict. If reinstating the verdict was the proper action to take, that action does not become error simply because the trial court gave the wrong reason for taking it. Dale, Co-Administrators v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965). Therefore, even if the trial court erroneously considered the inadmissible affidavits, we cannot reverse, because reinstating the verdicts was proper for the previously stated reasons.
The appellants’ final argument is that the trial court erred in not granting a new trial, because the jury was not required to deliberate further. §§ 27-1737 and 27-1738. However, the jury was excused by the bailiff and the appellants’ counsel left the courtroom while the appellees’ counsel were attempting to object and explain the basis of their objection to the court’s ruling a mistrial. Furthermore, nothing said at the verdict proceedings indicated that any j uror answered in the negative when asked if it was his or her verdict, nor did any juror disagree with the verdict. Cf. Williams v. Williams, 112 Ark. 507, 166 S.W. 552 (1914).
Affirmed.
Hickman and Hays, JJ., dissent. | [
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Frank Holt, Justice.
The appellant was convicted of two counts of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]) and sentenced to twenty years imprisonment for each count, to be served consecutively. We affirm.
Appellant first contends, through substituted counsel on appeal, that the jury verdict, finding him guilty of two counts of aggravated robbery, is not supported by the evidence. However, he limits his argument to the sufficiency of the evidence as to count two, which names the victim as Kory Zuniga. The alleged victim in count one is Mark Kessinger. Specifically, appellant asserts there is no evidence that he threatened to employ physical force upon Zuniga while armed with a deadly weapon.
Zuniga did not testify. Kessinger testified that Zuniga and he were selling housewares from a van when appellant approached them. He, Kessinger, had stepped from the van. Zuniga remained in the driver’s seat. The appellant stuck a pistol in Kessinger’s back and threatened to kill him if he moved and demanded money. Kessinger saw the pistol and described it. Appellant then took Kessinger’s wallet, which contained $78, from his back pocket. The appellant then told Zuniga to give him his wallet while he was still standing behind Kessinger, who was facing Zuniga. According to Kessinger, when the appellant asked Zuniga for his wallet, the appellant “had the gun underneath my armpit behind me, in plain sight. ...” Zuniga opened his wallet which showed it contained no money. The appellant then took their brief case and told them to open it, which was done. It contained no money, only checks. At gunpoint, he then ordered them to get in the van and leave the scene. As they started to leave, an officer arrived and they reported the incident. The arresting officer testified that after a short footrace he apprehended the appellant and found him in possession of the wallet. He observed appellant with a pistol and found the pistol a few feet from him at the time of the arrest. Appellant denied any complicity or knowledge of the alleged offense. Thus, the testimony is in conflict only as to his participation in the alleged offense.
In Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), we summarized the elements of aggravated robbery:
A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to im mediately employ physical force upon another. Ark. Stat. Ann. § 41-2103 (Repl. 1977). Physical force means any bodily impact, restraint, or confinement or the threat thereof. Ark. Stat. Ann. § 41-2102 (Repl. 1977). A person commits aggravated robbery if he commits robbery armed with a deadly weapon, or represents by word or conduct that he is so armed. Ark. Stat. Ann. § 41-2102 (Repl. 1977).
On appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury verdict. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982); and Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Here, there is ample substantial evidence to support the jury’s verdict finding appellant guilty of aggravated robbery of Zuniga, i.e., the appellant, with the purpose of committing a theft, employed or threatened to immediately employ physical force upon Zuniga, and did so while armed with a deadly weapon.
Neither do we find any merit in the contention that the trial court erred in failing to instruct on robbery, a lesser included offense of aggravated robbery. The thrust of appellant’s argument is that the evidence is deficient or in conflict as to the appellant’s being armed. As indicated, Kessinger and the officer, who chased and arrested the defendant immediately after the robbery, testified that appellant was armed. No witness testified to the contrary except appellant, who denied any involvement in or knowledge of the robbery. The trial court is not obligated to charge the j ury with respect to a lesser included offense when there is no rational basis for the jury to find appellant guilty of a lesser included offense. Ark. Stat. Ann. § 41-103 (3) (Repl. 1977); and Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Here, obviously, there was no rational basis for the jury to find appellant guilty of robbery, a lesser included offense. The evidence clearly shows the only fact issue for the jury to resolve was whether the defendant was guilty of aggravated robbery as charged or was innocent.
Finally, the appellant argues that the court erred in permitting the prosecutor to inquire of appellant on cross and recross examination as to his previous conviction of three robberies based on multiple counts. Since no objection was made at trial and it is raised for the first time on appeal, we do not consider this contention. Neither do we consider this questioning as being an exception to the requirement of an objection as is defined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Affirmed. | [
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John I. Purtle, Justice.
This is an appeal from a decree of the Washington County Chancery Court declaring an ordinance of the city of Fayetteville to be valid. The decree specifically held that Fayetteville’s City Ordinance No. 1661, as amended, does not take or damage appellants’ property without just compensation and therefore is not in violation of Article 2 § 22 of the Arkansas Constitution. On appeal the appellants insist that Ark. Stat. Ann. § 76-2205 (Repl. 1981) and our decision in Arkansas State Highway Comm. v. Arkansas Power & Light Co., 231 Ark. 307, 330 S.W.2d 77 (1959), mandate a reversal of the chancellor’s ruling. Also, appellants argue that ordinance no. 1661 constitutes an unreasonable exercise of the police power. We agree with appellants’ argument and reverse and remand.
This is a declaratory judgment action by the appellants against the appellees. The facts are stipulated and the decree was rendered upon the pleadings and stipulations. Ordinance no. 1661, as amended, provides for development of service roads along controlled access highways. This particular service road is alongside the U.S. Highway 71 by-pass in the western part of the city of Fayetteville, Arkansas. This ordinance does not apply to any area of the city except controlled access highways. The crucial clause in the contested ordinance requires the owner and developer of land abutting a controlled access highway to construct a service road at his expense and dedicate the road to the city of Fayetteville. Sections 3 (a) and 3 (c) of ordinance 1661 provide in part:
(a) ... a service road may be constructed on state highway right-of-way by the published standards of the Arkansas Highway Department and acceptable to said Highway Department. The service road shall be provided at the expense of the developer.
(c) The service road (unless constructed on state highway right-of-way) and any property between it and the right-of-way to the controlled access highway shall be dedicated to the City of Fayetteville upon completion and acceptance.
In the present case the highway department had instituted condemnation proceedings and taken possession of this property under an order of taking. The service road has been completed and the trial on the amount of damages to be awarded the plaintiffs is yet to follow. The appellants brought an action for a declaratory judgment after the Arkansas State Highway Commission had reduced their deposit from $102,000 to $16,000, acting in reliance upon Fayetteville City Ordinance No. 1661, as amended.
Title 76, chapter 22 of the Arkansas Statutes deals with controlled access facilities. Section 76-2205 authorizes acquisition of private property by the state, county or city for the purpose of constructing controlled access facilities and service roads. The pertinent part of this section authorizes acquisition by “gift, devise, purchase, or condemnation.” All rights acquired under this section are in fee simple. There is no question but that the service road which is the subject of this action is a part of the controlled access facility. Section 76-2203 grants authority to the state, county, cities, towns and villages
... to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide controlled-access facilities for public use whenever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities; provided, that within cities and villages, such authority shall be subject to such municipal consent as may be provided by law.
Chapter 28 of Title 19, Arkansas Statutes Annotated (Repl. 1980), authorizes building and zone regulations. Section 19-2829 (c) pertains to control of development and subdivision of land by cities and towns and states in pertinent part:
The regulations controlling the development of land may establish or provide for the minimum require ments as to: information to be included on the plat filed for record; the design and layout of the subdivision, including standards for lots and blocks, street rights-of-way, street and utility grades, and other similar items...
The regulations . . . may provide for the dedication of all rights-of-way to the public.
When the highway commission took this property, it deposited $102,000 into the registry of the court. The taking was, no doubt, pursuant to Ark. Stat. Ann. §§ 76-2201, et seq. (Repl. 1981). Under such an action it was their duty to pay just compensation to the owners of the property. Subsequently, the highway commission discovered the existence of Fayetteville’s Ordinance No. 1661 and under its apparent authority reduced their deposit by some $86,000. It is obvious the highway commission was taking advantage of the city ordinance to pay the landowner less than the actual value of the land. Act No. 385 of 1953 applies specifically to controlled access facilities. Ark. Stat. Ann. § 19-2829 is a general statute regulating various aspects of subdivisions and setting up a board of zoning adjustment. The two statutes may seem to overlap when facts develop such as exist in the case before us. We have held that a general statute does not apply if there is some specific statute on the same matter. Williams v. Pulaski County Election Comm., 249 Ark. 309, 459 S.W.2d 52 (1970). We held in Arkansas State Highway Comm. v. Arkansas Power & Light Co., supra, that a city could not acquire property under the guise of police power for construction of streets. That is, in effect, what the city of Fayetteville is attempting to do in the present case. However, looking in depth at the two sets of statutes, it is evident that the one (Ark. Stat. Ann. § 19-2829) deals exclusively and comprehensively with subdivisions across the state, while the other (Ark. Stat. Ann. §§ 76-2201, et seq.) addresses itself to controlled access facilities as defined in the statute. A subdivision is not a controlled access facility, even though it may abut one. It does not appear inconsistent considering the separate purposes of the aforementioned acts, that a developer should receive compensation for giving up a right-of-way along a controlled access facility while having to relinquish title and control of thé streets within a sub division without being compensated. The General Assembly has seen fit to allow highway authorities to acquire property along access roads and compensate the owners for such property. We have many times held that it is the duty of this court to reconcile legislative enactments and permit both to stand, if possible. Ward v. Harwood, 239 Ark. 71, 387 S.W.2d 318 (1965). It is our opinion that Ark. Stat. Ann. §§ 76-2201, et seq. are applicable in this case and that Ark. Stat. Ann. § 19-2829 is not applicable under the facts as presented to us. Therefore, ordinance 1661, as amended, is in conflict with the provisions of the statute relating to controlled access facilities. If we were to permit ordinance 1661 to control, it would be a taking of private property without due process and in violation of the Constitution of the State of Arkansas, Article 2 § 22, and this we cannot allow. Therefore, the case is remanded with instructions to disregard the portions of ordinance 1661 which are in conflict with Ark. Stat. Ann. §§ 76-2201, et seq. and to otherwise proceed in a manner not inconsistent with this opinion.
Reversed and remanded.
Hays, Dudley and Smith, JJ., dissent. | [
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Per Curiam.
J. Sky Tapp, attorney for appellant McDaniel, and Sam L. Anderson, Jr., attorney for appellant Gookin, appeared before this court on October 11, 1982, as directed by our per curiam of September 13, 1982, to show cause, if any, why they should not be held in contempt of court for failure to timely file their respective briefs as directed by the rules of this court and the orders pursuant thereto.
The court finds that the original briefs were due to be filed in this court on June 7, 1982; that on June 7, 1982, the time was extended to July 7, 1982; that on July 12, 1982, the time was extended to September 5, 1982; and on September 13, 1982, the time was extended to October 4, 1982. That notwithstanding the original 40 days and the additional 120 days the appellants did not file their briefs as directed by this court. That J. Sky Tapp filed the brief for appellant McDaniel on October 6, 1982, but the brief for appellant Gookin has not been filed by attorney Sam L. Anderson, Jr. at this date. That a two weeks’ extension was requested by attorney Apderson when he appeared before the court on October 11, 1982.
This court finds that J. Sky Tapp and Sam L. Anderson, Jr. are in contempt of court for failure to file briefs in a timely manner. A letter of reprimand from this court will be issued to J. Sky Tapp. Punishment as to Sam L. Anderson, Jr. is withheld at this time. The brief on behalf of appellant McDaniel is accepted, and the attorney for appellant Gookin is granted until October 25, 1982, to file his brief. | [
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George Rose Smith, Justice.
When the appellee Arkmo filed this suit in 1980 to foreclose its second mortgage upon land in Pulaski county, the appellant First National filed a cross-complaint to foreclose its construction-money first mortgage upon the same land. The mortgagors, apparently insolvent, let both claims go by default. Arkmo pleaded in response to the cross-complaint that First National’s mortgage was void for usury. This appeal is from a decree sustaining that plea.
For reversal First National contends: First, Arkmo lacks standing to challenge the first mortgage for usury; second, Arkmo’s plea of usury should have been disregarded as a mere conclusion of law; and third, the first mortgage was not usurious. We hold that the chancellor’s decision was correct.
First, the matter of Arkmo’s standing. Ever since 1887 our statute has provided that any creditor having a lien upon property may attack the validity of a rival lien arising from a usurious contract. Ark. Stat. Ann. §§ 68-609 and -610 (Repl. 1979). In Hiner v. Whitlow, 66 Ark. 121, 49 S.W. 353, 74 Am. St. Rep. 74 (1899), we construed the statute so narrowly that it was practically of no effect, but we overruled the Hiner case in Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S.W.2d 314 (1954). We adhere to our holding in Bailey, despite the suggestion made there on rehearing that the ruling was dictum.
Second, Arkmo’s conclusory plea of usury. Arkmo’s plea was in fact a conclusion, asserting merely that First National’s note and indebtedness were void for usury. In a 1975 case we denied an application for a writ of prohibition on the ground that usury is an affirmative defense which the trial court may in its discretion reject without a hearing when no facts are pleaded to support the assertion of usury. Girley v. Wood, 258 Ark. 408, 525 S.W.2d 454 (1975). We indicated, however, that a conclusory plea would be good if the note is usurious on its face.
That case is not controlling here, especially in view of the Rules of Civil Procedure that became effective in 1979. In the case at bar the conclusory plea was filed in August, 1981. First National went to trial six months later, in February, without having moved for a more definite statement, as it was entitled to do under Rule 12 (e). At the trial counsel for Arkmo, without objection, adduced facts supporting its plea of usury by cross-examining First National’s principal witness, Dennis Mills. There was no claim of surprise. At the conclusion of the trial counsel for both sides argued the question of usury and submitted written briefs within a week. The trial judge, in deciding the case, specifically held that First National had sufficient notice of the allegation of usury. Thus under Civil Procedure Rule 15 the trial court properly treated the pleadings as having been amended to conform to the proof.
Third, the question of usury. First National’s promissory note, dated November 8, 1977, ostensibly obligated the makers to pay $38,800 on or before November 8, 1978, with interest from date until maturity at 8.75% per annum and thereafter until paid at 10% per annum. The note recited that it was secured by a construction-loan mortgage and contained this typed insertion in the printed form: “The signers hereby agree to pay 1% commitment fee.” The accompanying mortgage recited that the loan would be used solely for the construction of improvements on the mortgaged land and that construction would be optional with the mortgagors. Thus the transaction was a typical construction loan, which is one to finance a building project until its completion and the issuance of the long-term mortgage. Webster’s Third New International Dictionary (1961).
Here Arkmo’s argument that the note was usurious on its face was accepted by the chancellor. We have held that a commitment fee, assessed by the lender for its readiness to have the total amount of a construction loan available when needed, is in fact part of the lender’s cost of doing business and must be treated as interest if charged to the borrower. Ark. Sav. & Loan Assn. v. Mack Trucks of Ark., 263 Ark. 264, 566 S.W.2d 128 (1978). Under the language of First National’s note, the 1% commitment fee could have been charged to the borrowers at the outset, as was done in the case cited. In that event the inclusion of the commitment fee in the principal amount of the note would have resulted in an excessive interest charge after maturity. Hence the exaction of the commitment fee made the note usurious.
There is an alternative basis demonstrating the correctness of the chancellor’s decision. The witness Mills testified that during the original one-year term of the note First National made four disbursements as construction progressed. We list those four advances, with the interest accrued at 8.75% from the date of each advance until the one-year maturity of the note on November 8, 1978:
Amounts Advanced Interest at 8.75%
Nov. 8, 1977: $ 5,352 ■ $ 468.30
Dec. 28, 1977: 6,288 474.83
Feb. 22, 1978: 15,520 963.61
Apr. 26, 1978: 4,000 188.04
Total interest accrued first year 2,094.78
Plus 1% commitment fee 388.00
Total chargeable to borrowers 2,482.78
The maximum legal interest, at 10% per annum, upon the four advances from their dates until maturity would be only $2,394.03. Hence the addition of the 1% commitment fee, deductible at the outset, resulted in an excessive interest charge of $88.75 during the first year. First National did not actually charge the commitment fee, perhaps because such a fee was disapproved in Mack Trucks a few months after the date of the construction loan now in question. The option to make the charge lay with the lender, however, not with the borrowers. A lender cannot purge a loan of usury by dropping the excess charge when suit is filed. Bunn v. Weyerhaeuser Company, 268 Ark. 445, 598 S.W.2d 54 (1980). The chancellor’s decision was right.
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Richard B. Adkisson, Chief Justice.
Appellants brought an action in the chancery court of Pulaski County to enjoin appellee, Paul Riviere, Secretary of State, from furnishing the State Board and County Boards of Election Commissioners with the “Ballot Title” of proposed Amendment 60. The trial court held that, although not required, the “Ballot Title” was sufficient and refused to grant the injunction. On appeal, we affirm.
Proposed Amendment 60, which deals with interest rates on loans, was promulgated by House Joint Resolution 7 of the 1981 General Assembly. It was proposed pursuant to Art. 19, § 22 of the Arkansas Constitution which provides:
Constitutional amendments. — Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.
(Emphasis supplied)
The General Assembly gave proposed Amendment 60 a “Ballot Title,” although Art. 19, § 22 does not require that one be given to an amendment submitted by the General Assembly.
Appellants argue that we should review this “Ballot Title” by the standard we use in reviewing a ballot title of an amendment proposed by the people pursuant to Amendment 7. We disagree. An Amendment 7 standard of review should not be applied to an Art. 19, § 22 “Ballot Title” because there are significant differences between Amendment 7 and Art. 19, § 22.
Amendment 7 does not require publication of the proposed amendment except as may be required by the General Assembly, but it does provide a safeguard by specifically requiring that the proposed amendment have a ballot title. The purpose of such a ballot title is to inform the voter so that he can mark his ballot with a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958). On review of an Amendment 7 ballot title, we look to see if the title is “free from any misleading tendency, whether of amplification, of omission, or of fallacy.” Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).
On the other hand, as pointed out above, Art. 19., § 22 does not specifically require a ballot title. All that is required is that the proposed amendments under Art. 19, § 22 “be so submitted as to enable the electors to vote on each amendment separately.” So, the purpose of the “Ballot Title” under Art. 19, § 22 is not to inform the voter, but merely to distinguish and identify the amendment. Voters can be presumed to be informed as to the contents of the amendment since Art. 19, § 22 specifically requires an extended publication period of six separate monthly insertions in one newspaper in each county prior to the election. See Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917).
When the purpose of a ballot title is to identify, as opposed to inform, the title is sufficient if it distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers. A ballot title which meets this test will be upheld unless it is worded in some way so as to constitute a manifest fraud upon the public.
Here, the actual wording of the “Ballot Title” in question is as follows:
An Amendment to Section 13 of Article XIX of the Constitution of the State of Arkansas to Control Interest Rates and Set the Penalty for Violations Thereof.
It is not suggested that this wording is insufficient to distinguish or identify the amendment.
Affirmed.
George Rose Smith, Hickman, and Purtle, JJ„ dissent. | [
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Per Curiam.
Rule 2 of the Rules of Appellate Procedure—Criminal is being amended to incorporate a recent change in the comparable provision of the civil appellate rules. Subsection (b)(1) is amended to provide that a premature notice of appeal is to be treated as if it had been filed after entry of the judgment, decree, or order. Previously, such a notice was ineffective. For additional explanation concerning the changes, refer to the Reporter’s Notes at the conclusion of the amended rule.
Below, subsections (a) and (b) are published with the changes highlighted for ease of reference. Then the rule as amended is republished in its entirety. This amendment is effective immediately.
[Highlighted changes to the rule]
Rule 2. TIME AND METHOD OF TAKING APPEAL
(a) Notice of Appeal. Within thirty (30) days from
(1) the date of entry of a judgment, or
(2) the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 33.3, or
(3) the date a post-trial motion under Ark. R. Crim. P. 33.3 is deemed denied pursuant to RAP-Giv-4-(c) subsection (b)(1) of this rule, or
(4) the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37, the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2 (a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.
(b) Time for Filing, (i) A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered. Amo tree of appeal is invalid if-filcd-at-any-time prior to the day that the judgment or order appealed-from isentcrcdmr-prior to the day herein. If a noticcmf-appeaHs-filcdmn-trhe-samc day that the judgtrial motion is deemed denicdwthcmotiecmfappeal-shall be cffcctiver-Amoticc of appeal filcd-within thirty-(36)-days-of-cntry-of the judgment of conviction-shall-bc- cfFcctivc-to-appeal the judgtrial motion is filed after the notice of-appcalr-it-shahmot-bemccefr to appeal an adverse ruling on a post-trial motion and-thc-appcl= lant has previously filed a notice of appeal of the judgment;.....the appellant must file a notico of-appcal regarding-the ruling-on-thc ■motion-within-tfac-time-provided-in subpart (a)(2) or (3) hereof.
Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
(2) A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with subsection (a) of this rule. No additional fees will be required for filing an amended notice of appeal.
[Rule, as amended, in its entirety]
Rule 2. TIME AND METHOD OF TAKING APPEAL
(a) Notice of Appeal. Within thirty (30) days from
(1) the date of entry of a judgment, or
(2) the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 33.3, or
(3) the date a post-trial motion under Ark. R. Crim. P. 33.3 is deemed denied pursuant to subsection (b) (1) of this rule, or
(4) the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37, the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2 (a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.
(b) Time for Filing. (1) A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered. Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
(2) A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with subsection (a) of this rule. No additional fees will be required for filing an amended notice of appeal.
(c) Certificate That Transcript Ordered. (1) If oral testimony or proceedings are designated, the notice of appeal shall include a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter, and, except for good cause, that any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510 (c) have been made. If the appealing party is unable to certify that financial arrangements have been made, then he shall attach to the notice of appeal an affidavit setting out the reason for his inability to so certify. A copy of the notice of appeal shall be mailed to the court reporter.
(2) Alternatively, the notice of appeal shall include a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal.
(3) It shall not be necessary to file with either the notice of appeal or the designation of contents of record any portion of the reporter’s transcript of the evidence of proceedings.
(d) Notification of Parties. Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives and to the Attorney General, but failure to give such notification shall not affect the validity of the appeal.
(e) Failure to Pursue Appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.
(f) Dismissal of Appeal. If an appeal has not been docketed in the Supreme Court, the parties, with the approval of the trial court, may dismiss the appeal by stipulation filed in that court or that court may dismiss the appeal upon a motion and notice by the appellant.
Reporter’s Notes: The rule has been revised to reconcile it with recent changes in the comparable Rule of Appellate Procedure— Civil, Rule 4.
Subdivision (a)(3) has been amended to reference (b)(1) of this rule which has been amended to incorporate the “deemed denied” language. Before this amendment, the rule merely referenced Rule 4(c) of the Rules of Appellate Procedure—Civil.
Subsection (b)(1) now provides that a premature notice of appeal is to be treated as if it had been filed after entry of the judgment, decree, or order. Previously, such a notice was ineffective. Additionally, the “deemed denied” language of Rule 4 of the Rules of Appellate Procedure—Civil is now contained in this rule so reference to the civil rules is no longer necessary.
Subdivision (b)(2) addresses the effect of post-trial motions on the timing of the notice of appeal. If there are multiple motions, the 30-day period for filing a notice of appeal begins to run from entry of the order disposing of “the last motion outstanding” or the date on which such motion is deemed denied by operation of law.
It further provides that a notice of appeal filed before disposition of a post-trial motion becomes effective on the day after a dispositive order is entered or the motion is deemed denied by operation of law pursuant to subsection (b)(1). The effect is to suspend a premature notice until the motion is ruled on or deemed denied, and a new notice is not necessary to appeal the underlying case. However, a party seeking to appeal from disposition of the post-trial motion must amend the original notice to so indicate. No additional fees are required in this situation, since the notice is an amendment of the original and not a new notice of appeal.
As directed in Rule 4 of the Rules of Appellate Procedure— Criminal, the time to file the record in a criminal case is governed by Rule 5 of the Rules of Appellate Procedure — Civil. Rule 5 provides that the record shall be filed and docketed “within 90 days from the filing of the first notice of appeal.” In light of the change in subsection (b)(1) of Rule 2 to treat a premature notice of appeal as filed on the day after the judgment or order is entered, it is intended that the 90 days runs from the effective date of the notice of appeal. Likewise, in other instances when the filing date of the notice of appeal is critical, it should run from the effective date of the notice. | [
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Per Curiam.
Appellant Tim A. Womack moves this court to advance this appeal concerning an election contest on our docket and to establish an expedited briefing schedule. Appellee Phillip Foster objects to the motion because the transcript of the trial has yet to be completed and filed.
The Election Code provides that it is this court’s duty to advance appeals of election contests. See Ark. Code Ann. § 7-5-804(b) (Supp. 1997). We have had occasion to expedite consideration of election appeals in the past, which involved setting a schedule for filing the record and for briefing. See, e.g., Heathscott v. Raff, 334 Ark. 224, 971 S.W.2d 266 (1998) (per curiam). We grant the motion to expedite the appeal and to set the briefing schedule. The record in this matter shall be filed no later than Friday, September 24, 1999. Simultaneous briefs shall be filed by the parties no later than Monday, October 11, 1999. Responsive briefs shall be filed by the parties no later than Monday, October 18, 1999. There will be no reply briefs. | [
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Annabelle Clinton Imber, Justice.
The appellant, James A. Neal, in his capacity as Executive Director of the Committee on Professional Conduct, filed a complaint for disbarment against the appellee, Perlesta A. Hollingsworth, alleging numerous violations of the Model Rules of Professional Conduct. The trial court dismissed certain allegations contained in Paragraph 10(b) of the complaint due to lack of notice and then proceeded to conduct a bifurcated hearing on the remaining allegations in Mr. Neal’s complaint. The first phase of the hearing pertained to the issue of whether Mr. Hollingsworth had violated any of the Model Rules and the second phase pertained to the issue of sanctions. Based upon the evidence presented during the hearing, the trial court found that Mr. Hollingsworth violated the Model Rules of Professional Conduct and ordered that Mr. Hollingsworth be suspended from the practice of law for a period of six months. Mr. Neal now appeals the trial court’s decision, asserting that disbarment was the appropriate sanction and that the trial court erred in dismissing certain allegations in the complaint. We reverse and remand.
In January, 1987, Mr. Hollingsworth commenced the representation of the Estate of Samuel S. Sparks, deceased, in a probate proceeding in Woodruff County, Arkansas. On June 1, 1987, Mr. Hollingsworth sent a letter to Mrs. Joyce Sparks, Mr. Sparks’s widow and the executrix of his estate, that confirmed the fee arrangement for representing the estate. Specifically, Mr. Hollingsworth’s law firm would charge for services to the estate in accordance with the schedule set forth in the Arkansas Probate Code “unless special or unusual services to the estate are required” and would bill the estate periodically for costs and out-of-pocket expenses. In connection with probating the Sparks estate, Mr. Hollingsworth undertook to “prepare and present to the probate court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports, and all other proper and necessary legal instruments during the entire six (6) months, or longer when necessary, while said estate is required by law to remain open.” The letter also referenced the collection of certain notes receivables due to the estate as involving “special or unusual services anticipated in connection with administering the estate” and established a special contingency-fee arrangement, which was twenty-five percent of any funds collected on the notes. No other special matters or fees were noted, and there was no reference to hourly billing for any matters.
At the time Mr. Hollingsworth negotiated the fee arrangement for representing the estate, he was aware that other matters existed in connection with his representation of the estate. These included a determination-of-heirship claim and claims by creditors on two promissory notes that were endorsed or guaranteed by Samuel Sparks. Mr. Hollingsworth also instituted a wrongful death action against Dave’s House of Guns in 1988. No fee arrangements were reduced to writing for any of these matters.
After commencing representation of the Sparks estate, Mr. Hollingsworth successfully defended the determination-of-heir-ship claim by Ms. Shirley Hodges and represented the estate in two lawsuits filed in federal district court by the Small Business Administration and Planters Bank and Trust Company to recover $144,809.38 and $119,498.16, respectively, on the promissory notes guaranteed by Mr. Sparks. Mr. Hollingsworth also filed several lawsuits on behalf of the estate. He obtained a judgment against Mr. Warren Barge for $10,000.00 and represented the estate in an unsuccessful claim against Mr. Bobby Smith. The estate’s wrongful death action against Dave’s House of Guns went to trial but ultimately culminated in a directed verdict in favor of the defendant. Finally, with regard to the notes receivables that were the subject of the special fee arrangement, Mr. Hollingsworth filed two separate lawsuits in federal district court in 1997. In the first lawsuit, the Sparks estate sued Mr. James M. Griffin to collect $100,000.00 that Mr. Griffin owed Mr. Sparks on a promissory note. In the second lawsuit, the estate sued Mr. Griffin and the United National Bank of Washington, D.C., to secure the release of a $100,000.00 certificate of deposit that Mr. Sparks had given as collateral on a loan to Mr. Griffin by United National Bank.
While representing the estate, Mr. Hollingsworth collected various funds belonging to the estate. When the $100,000.00 certificate of deposit was released by United National Bank in 1988, Mr. Hollingsworth deducted his twenty-five percent contingency-fee of $25,000.00 and gave the balance of $75,000.00 to Mrs. Sparks. All other estate funds collected by Mr. Hollingsworth were deposited into his firm’s trust account. Those funds included $5000.00 for a retainer fee, $1,640.60 for expenses, $8,500.00 derived from the sale of a Lincoln automobile and $136,235.77 recovered over a two-year period (May 1987 — May 1989) on the Griffin promissory note. Mr. Hollingsworth maintained that these monies were placed in his firm’s trust account in order to facilitate the payment of litigation expenses incurred by the estate. Some of those expenses were in fact paid out of the firm’s trust account. Although Mr. Hollingsworth suggested that Mrs. Sparks agreed to this arrangement, she testified otherwise. For several years, Mrs. Sparks thought that the estate’s funds were being held in a separate estate account. Only after she began to make persistent inquiries about the estate’s account did Mrs. Sparks learn from Mr. Hollingsworth that the estate’s funds were being held in his firm’s trust account.
Mrs. Sparks’s inquiries about an accounting of the estate’s funds began in 1992. On February 10, 1992, she wrote a letter to Mr. Hollingsworth requesting a statement of expenses incurred by the estate for the year 1991 and a statement of the money being held in the “Estate trust account.” When no accounting was forthcoming after several months, Mrs. Sparks wrote another letter in November of 1992. In fact, the record reflects that Mrs. Sparks wrote almost twenty letters between 1992 and 1994 asking for an accounting. Mr. Hollingsworth never directly responded to her request for an accounting. Rather, his letters to Ms. Sparks during that time period were merely status reports on the litigation being pursued by the estate. Mrs. Sparks’s letters also reflect that Mr. Hollingsworth made repeated excuses for failing to provide an account of the estate’s funds. For instance, when Ms. Sparks visited his office in November 1992, he informed her that the estate files were not on his computer because the estate was opened before his office acquired computers. On another occasion in 1993, he told Mrs. Sparks that his former secretary destroyed part of the estate’s files when she quit working for him. Mr. Hollingsworth also told Mrs. Sparks that the accounting was “in the mail.”
Ms. Sparks continued to request, and then to demand, access to the records for the estate’s trust account. Finally, in May, 1993, when Mrs. Sparks discovered that the estate funds were being held in the law firm’s trust account and not in a separate account, she expressed concern “especially since you have admitted to me that you have not kept accurate records.” Mrs. Sparks’s letters also reflect that Mr. Hollingsworth never sent her an itemized fee statement and that he unilaterally and without notice charged her hourly rates. She repeatedly asked Mr. Hollingsworth for some indication of when the estate could be closed, noting in her letters that the estate had been open for over five years.
Mrs. Sparks never denied that Mr. Hollingsworth performed valuable services for the estate. Nor did she ever accuse him of stealing. However, the many letters she wrote to Mr. Hollingsworth vividly conveyed her building frustration with the manner in which he was handling the estate’s affairs. On July 15, 1994, Ms. Sparks terminated Mr. Hollingsworth’s services as the attorney for the estate. She further advised him that she had filed a formal complaint against him with the Supreme Court’s Committee on Professional Conduct.
Even before his services were terminated in July 1994, Mr. Hollingsworth had been notified by letter dated March 7, 1994, that Mrs. Sparks had contacted the Committee’s office. Mr. Hollingsworth filed a response in the form of an affidavit on May 19, 1994. The Committee then began to investigate Mr. Hollingsworth’s representation of the Estate of Samuel Sparks. During the two-year investigation, Mr. Hollingsworth provided the Committee with canceled checks, deposit slips, correspondence, explanations of expenses, and a computer printout of bank statements on his firm’s trust account, all in response to the Committee’s requests for all documents and information pertaining to the Sparks estate.
The Committee’s investigation revealed that Mr. Hollingsworth failed to keep accurate records on the estate’s funds and expenditures. Specifically, the trust account checks that Mr. Hollingsworth produced to document estate expenses were made payable either to third parties or to the Hollingsworth law firm’s operating account. Other than Mr. Hollingsworth’s written explanations in a letter to the Committee, there was little, if any, documentary proof, such as invoices or receipts, that the canceled checks were for expenses attributable to the Sparks estate. Some checks, especially those made payable to a court clerk, process server, court reporter, or expert, contained a specific reference to the Sparks estate. However, other checks made payable to credit card companies, common carriers, or the firm’s operating account, contained no specific reference to the Sparks estate. Although Mr. Hollingsworth testified at the disbarment proceeding that his attorney’s fees were paid out of the firm’s trust account, he admitted that he could not locate or produce any trust account checks to support that assertion. He also conceded during the disbarment proceeding that checks were written on the firm’s trust account to make other clients “whole” when his firm suffered serious shortfalls after a former partner misappropriated substantial funds from the law firm’s accounts. Although Mr. Hollingsworth did not produce canceled checks to document this testimony, it is clear from a compilation of bank statements on the firm’s trust account that the canceled checks provided to the Committee by Mr. Hollingsworth were a mere fraction of the checks written on the firm’s trust account between 1987 and 1994.
Based upon the documentation provided by Mr. Hollingsworth, the Committee made ■ a comparison of balances in the Sparks estate with balances in the firm’s trust account beginning in February 1987 and ending in November 1994. Beginning in late 1987, the trust account balance was consistently below the balance in the estate. By November 1989, the estate’s balance reached $107,888.07 and stayed at that level through November 1994. However, the trust account balance for that five-year period always remained well below the estate’s balance. In fact, the balance in the trust account went as low as $186.21 in October, 1991, when the Sparks estate should have had a balance in the trust account of $107,888.07.
On September 20, 1996, Mr. Neal filed a complaint for disbarment against Mr. Hollingsworth in which he alleged numerous violations of the Model Rules of Professional Conduct. The complaint not only included allegations concerning Mr. Hollingsworth’s handling of the Sparks estate, but also added a charge concerning another client in a separate matter. With regard to the added charge, Mr. Neal alleged that Mr. Hollingsworth failed to disclose his relationship with an attorney who had been appointed guardian ad litem for the minor child in a divorce proceeding in which he was representing the child’s father. The trial court granted Mr. Hollingsworth’s motion to dismiss this added charge on grounds of lack of notice.
The hearing on Mr. Neal’s complaint for disbarment was held on August 6-8, 1998. During the violations phase of the bifurcated hearing, Mr. Neal presented his case-in-chief through the testimony of Ms. Leslie Fryxell, staff attorney for the Committee, Mrs. Joyce Sparks, and Mr. Hollingsworth and through the introduction of several exhibits. Mr. Hollingsworth’s defense included his own testimony and that of his associate, Michéle Strauss.
During the sanction phase of the bifurcated hearing, Mr. Hollingsworth presented mitigating evidence through the testimony of Judge Marion Humphrey, Judge Robert Faulkner, Senator William L. Walker, Jr., and Rev. Steven Arnold, with each witness attesting to Mr. Hollingsworth’s reputation for integrity and good character. Mr. Hollingsworth testified that in almost thirty years of practice he had never- been cited for a violation of the Model Rules. He also expressed his intention to make complete restitution to Mrs. Sparks. While conceding only a “technical violation” of the Model Rules, he expressed remorse and regret, stating that he was sorry this had happened. Mr. Neal rested on the evidence of aggravating factors already contained in the record.
By order entered on August 24, 1998, the trial court found that Mr. Hollingsworth violated Rules 1.1, 1.3, 1.4(a), 1.5(a) (b), 1.15(a)(b)(c), 3.2, 4.1, and 8.4(c)(d) of the Model Rules of Professional Conduct. In connection with its duty to determine the appropriate sanction for the listed violations, the trial court made specific findings regarding the aggravating and mitigating circumstances before concluding that Mr. Hollingsworth should be suspended from the practice of law for a period of six months. The trial court also required that Mr. Hollingsworth reapply with the Committee for reinstatement to the practice of law. Mr. Neal now appeals the trial court’s decision, asserting that the sanction should have been disbarment and that the trial court erred when it dismissed the added charge against Mr. Hollingsworth involving another client in a separate matter. Neither party appeals the trial court’s specific findings regarding rule violations or aggravating and mitigating circumstances.
I. Whether the Trial Court Erred When It Imposed a Six-Month Suspension From the Practice of Law in a Bifurcated Disbarment Proceeding.
A. Determination of Proper Standard of Review
Disciplinary proceedings are neither civil nor criminal but are sui generis, meaning of their own kind. See Procedures of the Ark. Sup. Ct. Regulating Prof. Conduct of Attorneys at Law, Section 1(C); Black’s Law Dictionary 851 (6th ed. 1990). The standard of review that governs appeals from disbarment proceedings is clearly articulated in Section 5(L)(4) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law:
(4) Appeals from any judgment of a Circuit court in a disbarment proceeding shall be heard in accordance with the rules governing appeals in civil cases.
These Procedures were originally adopted by the Supreme Court by per curiam order dated July 1 of 1990. They have been amended by per curiam order dated January 8, 1998, and effective January 15, 1998. The language in Section 5(L)(4) is identical in both versions of the Procedures, although Section 5(L)(4) was formerly numbered Section 5(H)(4).
Disbarment proceedings are tried by the circuit court without a jury. Procedures, Section 5(K)(1), formerly Section 5(G)(1). Under the Arkansas Rules of Civil Procedure, the standard of review on appeals from bench trials is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P 52(a); McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Wade v. Arkansas Dept. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); AD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). The court must view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id.
Applying the clearly erroneous standard of review mandated by Section 5(L)(4) of the Procedures, we now consider Mr. Neal’s assertion that the trial court erred when it imposed a six-month suspension from the practice of law instead of disbarment.
B. Appropriateness of Trial Court’s Sanction.
The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. See American Bar Association Model Standards for Lawyers Sanctions § 1.1 (1991). In Arkansas disbarment proceedings, if the trial court finds that an attorney has violated the Model Rules of Professional Conduct, then the trial court “shall caution, reprimand, suspend or disbar such attorney as the evidence may warrant.” Procedures, Section 5(K)(2), formerly 5(G)(2). With regard to whether the evidence warrants suspension or disbarment, Section 7 of the Procedures divides violations of the Model Rules into two separate categories of misconduct: serious misconduct and lesser misconduct. Procedures, Section 7(B) and (C). Serious misconduct warrants a sanction terminating or restricting the lawyer’s license to practice law, whereas lesser misconduct does not. Id. Conduct will be considered serious misconduct if any of the following considerations set forth in Procedure Section 7(B) apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “serious crime” as defined in the Procedures.
Likewise, when the trial court finds that the Model Rules have been violated by either serious or lesser misconduct, the trial court must proceed to the penalty phase during which the defendant attorney and the Committee’s Executive Director are allowed to present evidence and arguments regarding aggravating and mitigating factors in order to assist the trial court in making its determination of the appropriate sanction. Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). Those factors developed by the American Bar Association Joint Committee on Professional Standards and adopted by this Court in Wilson are:
Aggravating Factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally fading to comply with the rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances;
Mitigating factors:
(a) absence of prior disciplinary record;
(b) absence of dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation;
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
Wilson, supra. Additionally, the Procedures now identify the following factors as appropriate for the Committee’s consideration in determining the sanction to be imposed:
• The nature and degree of the misconduct.
• The seriousness and circumstances surrounding the misconduct.
• The loss or damage to clients.
• The damage to the profession.
• The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
• The profit to the lawyer.
• The evidence of reputation.
• Whether the conduct was deliberate, intentional, or negligent.
• The deterrent effect on others.
• The maintenance of respect for the legal profession.
• Matters offered by the lawyer in mitigation or extenuation.
See Procedures, Section 7(F) adopted by per curiam Order dated January 8, 1998.. While these factors are not classified as either aggravating or mitigating circumstances, we believe they are harmonious in their objectives and their focus with the factors adopted in Wilson II.
During the penalty phase in this disbarment proceeding, Mr. Neal presented no evidence, opting instead to rest on the evidence already in the record from the first phase of the hearing. This is reflected in the following colloquy between the trial court and counsel:
The Court: The burden is on the court for me to consider whatever evidence you gendemen want to put on in regard to those two [sets of] factors. I’m not sure who has the burden.
Mr. Brown: It’s my position that the Committee has the burden. The standards address two [sets of] factors, that is, aggravating and mitigating .... [I] t seems to me that they have the burden of proof of establishing the violation, they would have the burden of proof of trying to convince the court what the appropriate sanction is.
The Court: Any aggravating factors they wanted me to consider that are not already in the record, I’m not sure anything further is necessary in a case, it’s whatever you lawyers feel.
Mr. Everett: If I have the burden, I do not offer evidence as the offeror in Phase Two. I may do some cross-examination, if I have the burden, I yield.
The Court: You are resting in both phases?
Mr. Everett: Except, as the Court said, whatever evidence is in the record, yes, sir, I’m resting in both phases.
Mr. Hollingsworth proceeded with the presentation of mitigating evidence. In that regard, Mr Hollingsworth testified that he had been in practice for almost thirty years without any prior caution or reprimand by the Committee. He also testified that he was deeply sorry for what had happened, and that he had no dishonest or deceitful motive in his actions with regard to the Sparks case. However, he conceded only to committing a “technical” violation of the rules and continued to assert that his actions had been undertaken in the belief that he was acting in the best interest of his clients. He testified that he had made restitution of all sums due to Mrs. Sparks, except for some interest which he intended to pay Mrs. Sparks and thereby make her whole again. Mr. Hollingsworth also admitted that he made payments out of the firm’s trust account to make other clients “whole.” Mr. Hollingsworth testified to his full cooperation with the Committee and to his promptness in responding to discovery requests. This was corroborated by Ms. Leslie Fryxell in her testimony during the first phase of the hearing.
With regard to his character and reputation in the community, Mr. Hollingsworth presented the testimony of several witnesses. Judge Marion Humphrey testified that he had known Mr. Hollingsworth for over twenty years and that during that time he had formed the opinion that Mr. Hollingsworth was a diligent servant of the law with a good reputation in the community. Judge Humphrey also testified that Mr. Hollingsworth had taken on causes which contributed to the advancement of African-Americans within the judicial system in this state. Judge Robert Faulkner of the United States District Court, Eastern District of Texas, testified that he had known Mr. Hollingsworth for over thirty years. Mr. Hollingsworth was working as Governor Rockefeller’s legal representative to the prison system when Judge Faulkner first became acquainted with him. Judge Faulkner testified that he was familiar with Mr. Hollingsworth’s reputation for truthfulness and veracity and that his employment history with Governor Rockefeller corroborated that reputation because the position of legal representative to the prison system required someone with a good reputation for honesty. Judge Faulkner testified that Mr. Hollingsworth took on unpopular causes and that he was known as a champion for causes and an outstanding attorney. Judge Humphrey and Judge Faulkner both testified that Mr. Hollingsworth was still able to make a contribution to the community as an attorney in light of his reputation and character. Mr. Hollingsworth’s pastor, Rev. Stephen Arnold, and Mr. Sparks’s godson, Senator William L. Walker, Jr., both testified to Mr. Hollingsworth’s reputation for honesty and integrity and to his sincerity.
By order entered on August 21, 1998, the trial court made the following findings pertaining to aggravating factors:
• That [Mr. Hollingsworth] entered into a written fee agreement regarding his representation of the estate of Sam Sparks, deceased, then pending in the Probate Court of Woodruff County, Arkansas. At the time of the agreement, three (3) claims had been filed against the Estate. Generally, the fee agreement called for the statutory fee plus a twenty-five percent (25%) contingency fee for the collection of notes and monies receivable by the Estate. The defendant was also to bill the Estate periodically for named costs.
• That the defendant did not file required annual accountings in the probate action nor did he send notices to interested parties appropriately. That, in the representation of the Estate of Sam. Sparks, the defendant acted almost entirely without obtaining the Probate Court’s authority, treating the assets of the trust funds owned by the Estate as if they were his own.
• That, between November, 1989, and November, 1994, the Estate of Sam Sparks should have had a balance in the defendant’s trust account of $107, 888.07 but the account had only a fraction of that sum and, at one point, in October 1991, the account had only $186.21.
• That the Court finds that the defendant knowingly diverted the funds of the Estate of Sam Sparks for his own use and did so over a period of time exceeding five (5) years. Further, the Court finds that his failure to file annual accountings in the probate action were due to the fact that his diversion of funds would have been discovered had such accountings been filed.
• That there is no basis in the evidence for the defendant’s claim that the shortage of funds in his trust account was based on his belief that he could bill the Estate for hourly work on certain matters and the Court finds that the defendant’s assertion to the contrary was an attempt to explain away the shortages in the account.
• At least by 1992, the Executrix of the Estate of Sam Sparks began to repeatedly ask the defendant for an accounting of the trust account funds but that the defendant stonewalled those requests. Only at the time he was fired did the defendant make an attempt to make restitution by sending Seventy Thousand 00/100 Dollars ($70,000.00) to the attorney substituting him.
• That the defendant was subsequently ordered by the Probate Court to pay the Estate of Sam Sparks the sum of Thirty Thousand and 00/100 Dollars ($30,000.00) and has now paid such sum in full excepting only for the accrued interest on such sum of money.
After listing these findings, the trial court found that, as a mitigating factor, Mr. Hollingsworth had “been in practice for almost thirty (30) years [sic] and has no prior disciplinary offense.” Further, the trial court found that the evidence of extenuation and mitigation represented by the community leaders who testified on Mr. Hollingsworth’s behalf was impressive and that the acts complained of were not a pattern of conduct.
The trial court considered the aggravating and mitigating factors before concluding that Mr. Hollingsworth should be suspended from the practice of law for six months. By imposing the sanction of suspension from the practice of law, the trial court recognized that Mr. Hollingsworth’s conduct was serious and warranted “a sanction terminating or restricting . . . [his] license to practice law.” Procedures, Section 7(B). Mr. Neal, however, strongly contends that the trial court’s limited sanction does not match the seriousness of the misconduct committed and that the only appropriate sanction is disbarment.
In order to determine whether the trial court’s imposition of a six-month suspension instead of disbarment was clearly erroneous, we review the trial court’s specific findings regarding rule violations and aggravating and mitigating factors. First, the trial court found that Mr. Hollingsworth had treated the assets of the trust funds owned by the Sparks Estate as if they were his own and that Mr. Hollingsworth “knowingly diverted the funds of the Estate of Sam Sparks for his own use and did so over a period of time exceeding five (5) years.” The trial court also found that between November 1989 and November 1994 the Sparks Estate should have had a balance of $107,888.07 in the trust account, but the trust account only had a fraction of that sum and at one point dipped as low as $186.21. Mr. Hollingsworth admitted that he used the estate’s funds to pay claims against his law firm by other clients. When asked whether he would characterize his use of the estate’s money as dishonest or selfish, Mr. Hollingsworth testified as follows:
Q: Let me ask you, sir, if you would agree with me that if what you did was to take money out of your trust account, owned by the Estate of Sam Sparks, and used that money to pay claims of other clients, as you have described that you had done, don’t you agree that is dishonest to use the estate’s money to pay claims against your law firm by other clients, do you agree with that?
A: I cannot characterize it as dishonest.
‡ ^ ^
Q: Do you think it is selfish to use funds belonging to one client to pay claims lodged by another client, do you think that’s selfish to the extent that you are protecting your own self against those claims from other clients, do you think that’s selfish?
A: I do not consider it selfish, I cannot characterize that by using that adjective.
Next, the trial court found that Mr. Hollingsworth did not file required annual accountings in the probate action because “his diversion of funds” would have been discovered. Similarly, when Mrs. Sparks, as executrix of the Sparks Estate, began to ask Mr. Hollingsworth in 1992 for an accounting of the trust account funds, he “stonewalled” her requests. The letters Mrs. Sparks wrote to Mr. Hollingsworth are particularly poignant. Mrs. Sparks was the victim of the misuse and clearly was kept in the dark about what was happening. What follows is a sampling from some of her many letters:
November 26, 1992:
If there is a reason you can’t provide me with this information please let me know. I have requested this information several times in the past three years and have not received it and I am uncomfortable with your reluctance to provide me with an accounting of the money you are holding in trust for the Estate of Sam Sparks.
December 18, 1992:
There is still a misunderstanding regarding my concerns about the estate. When I met with you on October 6th, I left with the idea that you would give me a statement of the amount that is in the trust account the following week. When I didn’t receive the statement I felt I needed to remind you that I was expecting one. Since I have not had a statement I can only guess at the amount and since I don’t know how much the expenses were from the gun suit my estimate will be unenlightened. All I want is a bank statement or something similar.
February 6, 1993:
I am still waiting for the statement of the amount you are holding in the Estate of Sam Sparks .... I want access to all bank statements and canceled checks written on the Estate of Sam Sparks. Please have copies of these files available for me so I can pick them up on Thursday February 11th.
February 15, 1993:
Your letter was disturbing to me because in November when I saw you in your office, after I had purchased a computer, you told me that the Estate files weren’t on your computer since the Estate of Sam Sparks was opened before you got your office computers. Now you tell me that your former secretary destroyed part of the files when she quit working for you. The latest bank statement that you have received on the Estate of Sam Sparks trust account will be sufficient for now. I expect the rest of the bank statements, receipts for expenses and any other information concerning the trust account and other funds collected on the behalf of the Estate within the week following your receipt of this letter. If you cannot provide this information by Friday, please understand that I plan to make a claim against the law firm for negligence and malpractice.
February 21, 1993:
I have been trying to get a statement from you of how much cash is in the account you are supposed to be holding in trust. I can’t understand how this request is so difficult to fulfill when bank statements showing balances and debits should be easy for you to obtain.
* * *
What I want from you is a bank statement showing the balance in the Estate account and when your records are complete, I expect a full accounting of your expenditures. I expect this by March 5th.
April 5, 1993:
In your letter to me dated February 23, 1993, you said that the attorney client relationship had deteriorated to a point of complete distrust and breakdown, this is true because you have not provided me with the account of the Estate that I am entitled to and you have been telling me it is in the mail when no such report exists. Throughout our attorney-client relationship you have been telling me one thing when I meet with you and the complete opposite the next time we meet, as a result the question of credibility, trust and confidence has been lost.
* * *
I want the name of the bank or banks and the account numbers of all accounts where you have placed money belonging to the Estate of Sam Sparks immediately.
April 19, 1993:
There was no bank statement and canceled checks included in the information I received. I want to be provided with a copy of the latest bank statement for the account and copies of the canceled checks from the account used to pay expenses.
May 3, 1993:
I regret that my correspondence has caused you concern, however I have been concerned over the length of time you required to give me any form of accounting. None of this would have taken place if you had provided me with a statement following our meeting on October 6, 1992, as promised. If our roles were reversed I feel that you would not have been as patient as I have been.
Our phone conversation on Sunday also concerned me since I assumed the Estate of Sam Sparks account was separate from any others. When you told me that the account was in your firm’s trust account and not in a separate account, I was very bothered, especially since you have admitted to me that you have not kept accurate records.
November 29, 1993:
In my letter to you dated October 21, 1993, I requested that you send my accountant all the expenses and fees you have deducted from the money you are holding that belongs to the estate. We have not received that information from you. I would like the balance of the money that belongs to the Estate of Sam Sparks placed in a separate account from your firm’s trust account in a different bank.
I feel that you have taken advantage of our friendship ignoring my requests, making promises to me that you had no intention of keeping and charging me by either percentage or hourly whichever suited you best. I don’t like the feeling of having to fight with the person I hired to protect my interests.
January 18, 1994:
I think we must have different concepts of a full accounting because I haven’t received what I would call one. I think a full accounting includes all expenses along with receipts and canceled checks, monies collected and interest earned.
February 4, 1994:
... I don’t know the amount of my entitlement or the value of the estate. The only way that can be accomplished is to do a final inventory and accounting, which I have been requesting for over a year. In your letter dated January 7, 1994, you stated that you had already given me a full accounting. Please send me a copy of that accounting.
April 4, 1994:
I still want the accounting you said you were recapitulating sent to Holda Ward.
April 18, 1994:
I want only the full accounting and the location of the bank where the estate funds are kept sent to Holda Ward.
When asked why he did not respond to Mrs. Sparks’s letters, Mr. Hollingsworth testified as follows:
A: I did respond to her letters, obviously, I did not give her the information that she wanted. How I missed that, I don’t know .... I just didn’t get the point that she was asking for an accounting until she hit me in the face with it.
With regard to restitution, the trial court found that no attempt to make restitution was made by Mr. Hollingsworth until after he was fired by Mrs. Sparks, which according to the record was in July 1994. Mr. Hollingsworth actually sent a cashier’s check in the amount of $70,244.51 to her new attorney in February 1995, several months after the Committee began its investigation. The trial court also found that Mr. Hollingsworth was subsequently ordered by the probate court to pay the Estate an additional $30,000. The probate court’s order was entered on August 26, 1997. At the time of the disbarment hearing in August, 1998, Mr. Hollingsworth had paid the sum ordered by the probate court except for some accrued interest.
Finally, the trial court found that Mr. Hollingsworth violated the following Model Rules:
Rule 1.1 — Competence
Rule 1.3 — Diligence
Rule 1.4(a) — Communication
Rule 1.5 (a)(b) — Fees
Rule 1.15 (a)(b)(c) — Safekeeping Property-
Rule 3.2 — Expediting Litigation
Rule 4.1 — Truthfulness in Statements to Others
Rule 8.4(c) (d) — Misconduct
Mr. Hollingsworth admitted on direct examination that he was “in a technical violation of one of the professional rules.” When cross-examined about this testimony, Mr. Hollingsworth testified as follows:
Q: Mr. Hollingsworth, you have described your misconduct as being in technical violation of the rules, that’s the words you used early on in your testimony, and I want to know from you, if you believe that your misconduct is only technically in violation of the rules, or do you believe and can you tell the court that your conduct impacted the underpinnings of this profession, that it was much greater than a technical violation, that it was a substantive and egregious violation of the rules.
A: I don’t agree my conduct with [sic] an egregious violation of the rules, if I understand what the word egregious means.
Q: It means awful bad, Mr. Hollingsworth, that’s what I think it means.
A: I don’t think my conduct was awful bad.
Q: Do you think it’s fair to say that your conduct was only technically in violation of the rules, that it’s a technicality you’ve been called in on?
A: No, I’m saying that there’s a violation of the rules, I have violated the rules, I did not intend to violate the rules.
Q: I’m going to get to that. I just wonder why, when you were being examined by your lawyer, you described your conduct as a technical violation of the rules, I want to know if that was a misstatement or do you agree that it was much more than technical, it was substantial.
A: I don’t agree with you it was substantial or egregious.
The trial court’s findings with regard to mitigation include the fact that Mr. Hollingsworth had been in practice for almost thirty years without any prior disciplinary offense. The trial court found other evidence of extenuation and mitigation to be impressive. A number of community leaders came forward to attest to Mr. Hollingsworth’s contributions to the advancement of African-Americans within the State’s judicial system and to his reputation for integrity and good character.
Based upon our review of the evidence and the trial court’s findings, we conclude that the record in this case supports the following aggravating factors:
(1) dishonest or selfish motive;
(2) a pattern of misconduct with respect to Mrs. Sparks;
(3) multiple offenses over more than five years;
(4) refusal to acknowledge the wrongful nature of the conduct;
(5) vulnerability of Mrs. Sparks;
(6) substantial experience in the law practice; and
(7) indifference to making restitution until fired and disciplinary investigation instituted.
We also conclude that the evidence supports the following mitigating factors:
(1) absence of prior disciplinary record;
(2) full cooperation with the Committee’s investigation;
(3) character and reputation; and
(4) expression of remorse.
When these mitigating factors are compared to the trial court’s findings that Mr. Hollingsworth knowingly diverted more than $100,000.00 of the Sparks Estate’s funds to his own use over a period of five years and that he attempted to postpone discovery of that misconduct by fading to account to the probate court and by stonewalling Mrs. Sparks’s requests for an accounting, we are left with a firm and definite conviction that the trial court committed a mistake when it imposed a short period of suspension from the practice of law. Mr. Hollingsworth’s actions of misusing and misappropriating funds from the Sparks estate clearly come within four out of six considerations for “serious misconduct” under Section 7(B) of the Procedures. Notwithstanding ample proof that he violated numerous provisions of the Model Rules, the record unequivocally reflects that Mr. Hollingsworth does not recognize or appreciate the gravity and seriousness of his misconduct. The evidence in this case demonstrates a pattern of misconduct over the course of several years in which Mr. Hollingsworth misappropriated his client’s funds and concealed his wrongdoing from the client and the court. This type of misconduct can only be characterized as serious, substantial, and egregious. Under these circumstances, we hold that the trial court clearly erred when it imposed a mere six-month suspension from the practice of law. The only appropriate sanction commensurate with Mr. Hollingsworth’s actions is disbarment. The misconduct in Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975), which involved less than $12,000.00 and lasted less than one year, certainly pales in comparison to the long-term pattern of misconduct here.
Other jurisdictions have also held that the intentional misappropriation of a client’s funds and the misrepresentation of that fact to the client warrants disbarment. See, e.g., People v. Torpey, 966 P.2d 1040 (Col. 1998); In the Matter of Barlow, 140 A.2d 1197 (N.J. 1995); In Matter of Wilson, 409 A.2d 1153 (N.J. 1979); In the Matter of Lake, 236 S.E.2d 812 (S.C. 1977); In the Matter of Nicholas Addams, 579 A.2d 190 (D.C. Ct. App. 1990).
We conclude that Mr. Perlesía A. Hollingsworth should be, and hereby is, disbarred from the practice of law in the State of Arkansas. Accordingly, we reverse and remand for entry of judgment consistent with this opinion.
II. Whether The Trial Court Erred When It Dismissed The Added Charge Against Mr. Hollingsworth
For his second point on appeal, Mr. Neal asserts that the trial court erred when it dismissed the allegation concerning Mr. Hollingsworth’s failure to disclose his relationship with an attorney who had been appointed guardian ad litem for the minor child in a divorce proceeding in which he was representing the child’s father, Mr. Ted Skokos. In view of our holding that the only appropriate sanction commensurate with Mr. Hollingsworth’s actions is disbarment, we need not address Mr. Neal’s second point on appeal.
Reversed and remanded.
Section 7(B) and (C) were added to the Procedures in the amendments adopted by per curiam order dated January 8, 1998, and effective January 15, 1998.
“Serious crime” is defined in Procedure Section 1(E)(8) as follows:
(8) “SERIOUS CRIME” means any felony or any lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, firaud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a “serious crime.” | [
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Annabelle Clinton Imber, Justice.
This is a juvenile case. The appellant, Joey Miller, was adjudicated delinquent for capital-felony murder and was committed to the Department of Youth Services until his twenty-first birthday. On appeal, Miller contends that the trial court should have suppressed his inculpatory statement because: 1) the police failed to inform him of his statutory right, under Ark. Code Ann. § 9-27-317(g)(2)(A)(ii) (Repl. 1998), to speak to a parent or guardian or to have one present during questioning; 2) the statement was not voluntarily made; and 3) he did not knowingly and intelligently waive his rights. We affirm on all three points.
On September 1, 1998, Joey Miller and his cousin, Tyrone Duncan, were stopped for speeding. The police soon discovered that the car they were driving had been reported as stolen and that they were suspects in the kidnapping of an eighty-four-year-old man from Little Rock. The police arrested the boys and transported them to the Jackson County Detention Center in Newport.
Detectives J.C. White and Ronnie Smith questioned Miller around 6:45 p.m. or 7:00 p.m. that evening. Miller was just four days away from his fourteenth birthday. After explaining that he was a suspect in the crimes of kidnapping, capital murder, theft of property, and theft by receiving, Detective Smith asked Miller if he could read and write. Miller responded in the affirmative and said that he had completed the sixth grade. This information was recorded on the Miranda waiver form, which Miller initialed. Detective Smith then read the Miranda waiver form to Miller, who indicated that he understood each of his rights, that he wanted to waive those rights, and then signed the form. The detectives, however, did not inform Miller of his statutory right to speak to a parent or guardian or to have one present during questioning.
After completing the Miranda waiver form, the detectives questioned Miller about the crimes. At first, Miller denied any involvement, but later he admitted to participating in the crimes. After taking a short break, the detectives started a tape recorder and read Miller his Miranda rights for a second time. Again, Miller indicated that he understood his rights and that he wished to waive them. Miller than gave a tape-recorded statement implicating himself in the kidnapping and murder of the victim.
During the suppression hearing, the detectives testified that Miller was coherent and did not appear to be under the influence of drugs or alcohol. They also testified that they did not use threats, promises, or coercion to obtain the statement, and that Miller did not invoke his rights to remain silent, to speak to an attorney, to talk to a parent or guardian or to have one present during questioning. Miller does not contest these assertions. Finally, the entire questioning lasted approximately two hours.
Miller’s father, Floyd Prunty, testified that his son was slow to mature, that he was “a quiet, humble little boy,” that he was a “follower,” and that he did not understand “the big concepts of fife.” Mr. Prunty also testified that he notified the police on August 31 that his son was missing, but the police did not tell him that his son was in custody until 2:30 a.m. on September 2, which was after his son had waived his rights and had given an inculpatory statement. Mr. Prunty declared that if the police had contacted him, he would have been present during questioning, and, more importantly, that he would not have allowed the police to question his son until he obtained an attorney.
At the conclusion of the suppression hearing, the trial court ruled that the taped statement was voluntarily, intelligently, and knowingly made because:
the child was close[er] to 14 than 13. He was not threatened; he was not coerced; he was not promised anything. He gave a full and deliberate statement of an account of the events that transpired.
After questioning the wisdom of the law, the trial court ruled that:
It’s clear: The law enforcement officials are not legally bound and required to tell a juvenile of his or her right to request a parent to be present or a guardian to be present, which then automatically stops the proceeding. But that’s what the law is.
But you’ve got the other law, and you’ve got the other legal rights that are attached through Miranda, the right to remain silent, which he did not invoke; the right to request an attorney and have one appointed free if he so desired, which he did not invoke. After ruling that the State had “more than met its burden by a preponderance of the evidence,” the court denied Miller’s motion to suppress.
I. Ark. Code Ann. § 9-27-317(g)(2)(A) (Repl. 1998)
Arkansas Code Annotated § 9-27-317 (g)(2) (A) (Repl. 1998), provides that:
No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
(i) Does not wish to be questioned;
(ii) Wishes to speak with a parent or guardian or to have a parent or guardian present; or
(iii) Wishes to consult counsel before submitting to any questioning.
In several cases, we have explained that juveniles, and not their parents, must invoke their right, under section 9-27- 317(g)(2)(A)(ii), to speak to a parent or guardian or to have one present during questioning. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). In Isbell, we recognized that this was a somewhat onerous burden to place on the shoulders of a juvenile, but we recognized that this was the precise intention of the statute. Isbell, supra. Significantly, the legislature did not amend section 9-27-317(g)(2)(A)(ii) in response to Isbell, nor did it do so in this year’s legislative session when it substantially revised the Juvenile Code. See The Extended Juvenile Jurisdiction Act of 1999, 1999 Ark. Acts 1192.
The novel issue presented by this case is whether officers are required to inform juveniles of their right, under section 9-27-317(g)(2)(A)(ii), to speak to their parent or guardian or to have one present during questioning. The trial court ruled that officers are not required to do so, and we agree.
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that during a custodial interrogation officers must inform the accused of certain constitutional rights, including the privilege against self-incrimination and the right to an attorney. These rights were extended to juveniles in In re Gault, 387 U.S. 1 (1967). There is not, however, a constitutional right for a juvenile to speak to a parent or guardian or to have one present during questioning. In fact, in Fare v. Michael C., 442 U.S. 707 (1979), the United States Supreme Court held that a juvenile did not have a constitutional right to speak to his probation officer even though the juvenile trusted the probation officer who had a statutory duty to act in the juvenile’s best interest. In reaching this result, the Court explained that the Constitution gives juveniles, as well as adults, only the right to speak to an attorney. Id.
Although it is not required by the Constitution, the Arkansas General Assembly has given juveniles the statutory ri^ht to speak to a parent or guardian or to have one present during questioning. Ark. Code Ann. § 9-27-317(g)(2)(A)(ii). We emphasize that without this statutory provision, the police would not be required to allow a juvenile to speak to his parent or guardian even if the juvenile repeatedly made such a request. Because the right is statutory instead of constitutional, Miranda does not require the police to inform juveniles of that right. Hence, we must turn to the plain language of the act to determine if the legislature intended to impose such an obligation on the police. After a thorough review, we can find no such requirement in the clear language of the statute.
In sum, the legislature has given a juvenile the statutory right to speak to a parent or guardian or to have one present upon the condition that the juvenile makes such a request. The legislature has not, however, imposed upon the police the duty to inform the juvenile of that right, and we cannot do so where the statute is silent. Hence, this case is very similar to K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998), where we recently held that a juvenile does not have a right to assert the insanity defense in the adjudication phase of a delinquency proceeding because no such right could be found in the constitution or the juvenile statute. Although we may question the prudence of giving a juvenile a right without imposing a corresponding duty on the police to inform the juvenile of that right, that is a policy decision properly left to the legislature, and not this court. See Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999); McDonald v. Pettus, 337 Ark. 265, 989 S.W.2d 9 (1999) (holding that the determination of public policy lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error).
For these reasons, we affirm the trial court’s ruling that the detectives were not required to inform Miller of his statutory right under Ark. Code Ann. § 9-27-317(g) (2) (A) (ii) to speak to a parent or guardian or to have one present during questioning.
II. Voluntary Statement
Next, Miller contends that his statement should be suppressed because it was not voluntarily made. In Conner, supra, we recently explained that:
A statement is voluntary if it is “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Sanford, supra. In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision is clearly erroneous. Id. Relevant factors include the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Id. Two other pertinent factors are the statements made by the interrogating officers and the vulnerability of the defendant. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996); Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).
Whether a juvenile’s statutory rights have been violated is also a factor to be considered when applying the totality test. Isbell, supra; Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979). However, for the reasons explained above, we find no statutory violation in this case.
Miller was four days away from his fourteenth birthday when he was questioned. He had completed the sixth grade, he could read and write, and there was no evidence that he had a below average I.Q. Furthermore, the detectives properly informed Miller of his Miranda rights, the detention was not long, and there was no evidence of coercion, threats, or violence. Finally, distinguishable from Conner, supra, which we affirmed, the police did not use false statements, psychological tactics, promises, or any other devices to obtain Miller’s confession. Accordingly, we cannot say that trial court was clearly erroneous when it found that Miller’s statement was voluntarily given.
III. Knowing and Intelligent Waiver
Finally, Miller contends that he did not knowingly and intelligently waive his Miranda rights. As we have explained in the past, the relevant inquiry here is whether Miller waived his rights with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Conner, supra; Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). We make this determination by reviewing the totality of the circumstances surrounding the waiver including the age, experience, education, background, and intelligence of the defendant, and we will reverse a trial court’s ruling only if it was clearly erroneous. Conner, supra; Sanford, supra.
At the time Miller waived his Miranda rights, he was four days shy of his fourteenth birthday and in the seventh grade. The detectives read Miller his Miranda rights twice, and Miller executed a waiver form. There is also no indication from the record that Miller is unintelligent. Finally, there was no evidence that Miller was under the influence of drugs or alcohol at the time he decided to waive his rights. Based on the totality of these circumstances, we hold that the trial court did not err when it ruled that Miller knowingly and intelligently waived his Miranda rights.
Finally, the appellant contends that as a matter of law a juvenile does not have the mental capacity or maturity to knowingly and intelligently waive his or her constitutional rights. In support of this argument, Miller cites several statutes where the legislature has determined that a juvenile does not have the maturity or capacity to undertake certain activities. See, e.g., Ark. Code Ann. § 3-3-203 (Supp. 1997) (a person must be twenty-one years old to purchase or possess alcoholic beverages); Ark. Code Ann. § 27-16-604 (Supp. 1997) (a person must be sixteen years old to obtain an unrestricted driver’s license). As mentioned previously, the constitutional analysis of whether a juvenile or adult has knowingly and intelligently waived his or her rights depends upon the totality of the circumstances, including the individual’s age and maturity. See, Conner supra; Isbell, supra. Neither this court nor the legislature has developed a bright-line rule based on the accused’s age or maturity alone, and we refrain from doing so in this case.
Affirmed.
Act 1192 of 1999 did not go into effect until July 30, 1999, and thus does not apply to the case at hand. Op. Att’y Gen. #99-120.
After K.M. v. State, supra, was decided, the General Assembly gave juveniles the statutory right to assert the insanity defense in certain situations. See 1999 Ark. Acts 1192. | [
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Lavenski R. Smith, Justice.
Appellant Marcel Williams appeals his convictions for capital murder, kidnapping, rape, and aggravated robbery from the Pulaski County Circuit Court. Following conviction, the jury imposed a sentence of death. Williams asserts numerous errors in both the guilt and penalty phases of the trial. We find no reversible error and affirm.
Facts
On November 20, 1994, Stacy Errickson, the victim, on her way to work, stopped at the Jacksonville Shellstop for gas. The time was approximately 6:45 a.m. Williams approached Errickson’s vehicle, drew a firearm, and forced her to move from the driver’s seat to the passenger’s side. Williams then drove Errickson’s car away from the convenience store. Williams then took Errickson to several automated teller machines and coerced her to attempt withdrawals. A total of eighteen transactions yielded the sum of $350. The last transaction occurred at 7:37 a.m. These transactions were recorded by security cameras at several banking facilities. Stacy Errickson did not make it to work that day, nor did she pick up her child from the babysitter at the end of the day.
Police arrested Williams on an outstanding warrant on November 29, 1994, and questioned him based on physical evidence linking him to two other assaults on women. During the course of an intensive interrogation lasting some thirteen hours, Williams admitted having abducted Errickson from the convenience store and robbing her through ATM withdrawals. However, he denied any sexual assault and assured the officers that to the best of his knowledge Errickson was alive. Appellant attempted to implicate others as accomplices asserting that they were the ones responsible for physically harming her. Based upon information Williams supplied, the police recovered a sheet matching Williams description as one he used in connection with the abduction and also recovered a gold ring which Williams identified. On December 5, 1994, police discovered Stacy Errickson’s body buried in a shallow grave. Other evidence adduced at trial indicated that witnesses Tammy Victoria and Tammy Keenahan identified Williams as a man they had seen on the morning of November 20, 1994, at the Shellstop. They also testified that after they left the station he followed them in a car and attempted to stop them until they sought refuge at the air force base. Williams subsequently returned to the Shellstop and abducted Stacy Errikson.
On April 5, 1995, the Pulaski County prosecutor by felony information charged Williams with capital murder, kidnapping, rape, and aggravated robbery. The information also asserted that Williams had four prior felony convictions. The Pulaski County Circuit Court tried Williams on these charges beginning on January 6, 1997. Appellant was convicted on all counts. During the sentencing phase of the trial the prosecutor introduced evidence in support of three aggravating circumstances, and the appellant offered one mitigating circumstance. The jury found that all three alleged aggravating circumstances existed beyond a reasonable doubt and that Williams’s mitigating circumstance was also established. In balancing these findings the jury recommended a sentence of death, which the trial court accepted.
On appeal, Williams challenges the sufficiency of the evidence on all charges against him. Williams also contends the trial court committed reversible errors in refusing to strike the jury panel; in admitting his custodial statement; in admitting testimony of another victim in sentencing; in admitting other specific evidence; and in denying his pretrial death-penalty motions. We disagree and affirm.
Sufficiency of the Evidence
We consider sufficiency of the evidence before addressing other alleged trial errors. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Davis v. State, 314 Ark. 257, 863 S.W.2d 259, 262 (1993), cert. den. 511 U.S. 1026 (1994). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only evidence supporting the verdict will be considered. Stewart v. State, 331 Ark. 359, 961 S.W.2d 750 (1998). It is important to note that we make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Davis, 314 Ark. at 264, 863 S.W.2d at 262. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Id. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).
Appellant first asserts insufficiency of the evidence to support the element of forcible compulsion in the aggravated-robbery charge. A person commits aggravated robbery if he commits the offense of robbery, and is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1993). Our statutes focus on the threat of harm rather than the taking of property. Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979). Williams, in his statement, told police he and his companions abducted the victim at gunpoint. Given the circumstances of her abduction, the jury could have reasonably believed that Williams also used the weapon to coerce the victim to accompany him to ATMs and hand her money over to him. We hold there was substantial evidence to support the jury’s verdict on aggravated robbery.
Appellant next asserts insufficiency of the evidence to support forcible compulsion on the rape charge. This assertion is meritless. Forcible compulsion means “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1997). We recently stated the relevant considerations in Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400 (1998), where we said, “‘physical force’ [is defined] as ‘any bodily impact, restraint or confinement, or the threat thereof.’” Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991). The test that we have used to determine whether there was force is “whether the act was against the will of the party upon whom the act was committed.” Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996). In the instant case, Williams abducted the victim at gunpoint, robbed her, and took her to a storage facility where the evidence shows she was sexually assaulted. There is no evidence of any consensual conduct in the events of November 20, 1994. Police discovered the victim’s lunch cooler at the storage facility as well as an article of clothing that proved to contain evidence of Williams’s assault upon the victim. Substantial evidence supports the verdict on the rape.
Similarly, appellant Williams then asserts there was insufficient evidence to show the kidnapping element of restraint. The assertion, though, is similarly meritless. Ark. Code Ann. Section 5-11-101(2) [Definitions] provides: “(2) ‘Restraint without consent’ includes restraint by physical force, threat, or deception, or in the case of a person who is under the age of fourteen (14) years or incompetent, restraint without the consent of a parent, guardian, or other person responsible for general supervision of his welfare. . . .” The facts of this case indicate Williams restrained the victim by threat of force with a fiream. Also, the victim’s hands were bound behind her back. The purpose of the restraint may be inferred from circumstantial evidence. Fairchild v. State, 305 Ark. 406, 808 S.W.2d 743 (1991). The circumstances surrounding Errickson’s abduction clearly support the jury’s verdict that she was restrained without consent.
Appellant Williams also asserts there was insufficient evidence to support the verdict for capital murder in that there was a failure to prove kidnapping. As discussed previously, we find substantial evidence supported the verdict for kidnapping. This assertion, therefore, is meritless.
Finally, with respect to sufficiency of evidence, Williams asserts there is insufficient evidence to support the imposition of the death penalty. We will uphold the jury’s verdict if there existed substantial evidence for the jury to find beyond a reasonable doubt that one or more aggravating circumstances exist and that they outweighed any mitigating circumstances. Prior to trial, the State disclosed its intent to introduce evidence to establish the existence of four aggravating circumstances. They were:
(1) The defendant previously committed another felony, an element of which was the use or threat of violence to another person.
(2) The capital murder was committed for the purpose of avoiding or preventing an arrest.
(3) The defendant committed the murder of Stacy Errickson for pecuniary gain.
(4) The capital murder was committed in an especially cruel or depraved manner.
At trial, the State introduced evidence in support of (1), (3), and (4). In response, appellant introduced evidence which established the existence of one mitigating circumstance. Based on that evidence, the jury found that Williams accepted responsibility for his conduct and admitted participation in the crime. The State’s evidence reflected Williams forcibly abducted Stacy Errikson, robbed her, raped her, and killed her. It further showed Errikson had a significant period of time to contemplate her fate. The physical evidence established a violent physical assault by appellant against the victim. Injuries to her head indicated deep bruising to her neck and to her face. The victim was bound with her hands behind her back. The medical testimony further indicated her death was by asphyxiation from strangulation. Appellant offered no evidence to contradict the proof establishing robbery and, indeed, admitted to robbing the victim. The State introduced into evidence convictions on both previous violent felonies — aggravated robbery and kidnapping. On review, the jury’s judgment will be upheld if, taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953-954, cert. denied, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996). Willett v. State, 335 Ark. 427, 434, 911 S.W.2d 937 (1998). The balancing of aggravating and mitigating circumstances is properly the duty of the jury. Willett, id. at 436. We conclude substantial evidence supported the jury’s finding that aggravating circumstances existed beyond a reasonable doubt and that they outweighed the defendant’s mitigating circumstance.
Alleged error in refusing to strike the jury panel
Williams alleges racial bias in the selection of the jury in violation of his constitutional rights as outlined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, (1986). Williams alleges he established a prima facie case by showing (1) that he was a member of a cognizable racial group, i.e. African-American, (2) that the State exercised peremptory challenges to remove members of that group from the venire, and (3) that such challenges were exercised on account of their race. Williams contends that although the State offered a racially neutral explanation, in reality the explanation was a mere pretext.
We recently addressed the requirements of Batson and set out the specific procedures to be followed by our state’s trial courts in MacKintrush v. State, 334 Ark. 390, 399, 978 S.W.2d 293, 297 (1998). In MacKintrush, we delineated a three-step analysis process that includes: (1) the peremptory-challenge opponent must make a prima facie case of racial discrimination, (2) the strike’s proponent must offer a racially neutral explanation, and (3) the trial court must decide whether the opponent has proven purposeful racial discrimination. Id. at 397. These steps are taken from the U.S. Supreme Court’s clarification of Batson contained in Purkett v. Elem, 514 U.S. 765 (1995). In MacKintrush, we stated “In light of the Purkett decision, we have reassessed the proper procedures for the trial courts to follow in Batson cases and take this opportunity to set forth those procedures. Manifestly, there is a three-step processs that must be used when the opponent of the strike makes a prima facie case. Furthermore, it is clear that the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. And, finally, the Batson process must occur outside of the hearing of the venire.”
During voir dire, the prosecution used six peremptory challenges striking four African-Americans, three female and one male. Williams made a Batson challenge upon the State’s first peremptory challenge, which was for a Ms. Artis, an African-American female. In the court’s view, element two of a prima facie case, “process or pattern to discriminate” was not established. However, the State responded with a racially neutral explanation. The State challenged the juror due to her relatively low education level, the complex DNA evidence at issue and that she did not seem “bright.” The trial judge weighed and assessed what had been presented and did not seat the challenged juror but made no final ruling on the challenge itself. During the course of voir dire, there was discussion about why jurors were being excused, which included educational levels as well as predisposition toward the death penalty.
On the State’s seventh challenge, the State attempted to excuse Ms. Collins, an African-American female. Williams made a Batson challenge noting Ms. Collins had a B.A. The court found that Williams had now stated a prima facie case. The State responded with a racially neutral explanation by arguing she was ambivalent on the death penalty and that although she indicated a willingness to impose death if it were appropriate, she also indicated a reluctance to do so. The court noted the State had reduced the panel of African-Americans by 66%. However, the court then also found, after assessing the circumstances, that the prosecution did not engage in a pattern of racial discrimination. The court then found that Ms. Collins should be seated and seated her. After completion of jury selection but before the start of the trial, the court replaced one of the original jurors with an alternate due to illness. The original juror was Caucasian and the alternate who replaced him was African-American. It is undisputed that the jury eventually seated for the trial included four African-Americans. From our review of the record, the trial court properly applied our holding in MacKintmsh.
It is undisputed that the prosecution used peremptory challenges with African-American potential jurors. It is also undisputed that the jury eventually seated for the trial included four African-Americans. As Williams acknowledges, the prosecution stated race-neutral bases for the challenges, and that they were made to obtain a jury capable of understanding the complex evidence, particularly, DNA evidence. Additionally, the State justified its challenges, stating they were to ensure that all jurors would follow the law with respect to imposition of the death sentence. Williams argues, in turn, that lower-educated whites were retained when higher-educated blacks were not.
We will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). In making Batson rulings, this court accords some measure of deference to the trial court in that it is in a superior position to make these determinations because it has the opportunity to observe the parties and determine their credibility. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). Moreover, unless discriminatory intent appears in the prosecution’s explanation, the reason given will be considered race-neutral. Hernandez v. New York, 500 U.S. 352, 360 (1991). Consistent with our holdings, the record reflects the court struggled over this issue, weighing and assessing the facts and arguments presented, to decide whether the State’s explanation was merely pretextual. MacKintrush, id. , Upon review, we cannot say that the trial court’s rulings were clearly against the preponderance of the evidence.
Finally, as to the jury, Williams argues that the trial court erred in refusing to strike jurors for cause, which forced Williams to use all his peremptory challenges on jurors who should have been excused. Specifically, Williams contends that he could not strike juror Fortson. However, Williams admits juror Fortson could not have been struck for cause. We have said that in order to challenge a juror’s presence on appeal, the appellant must have exhausted his peremptory challenges and must show that he was forced to accept a juror who should have been excused for cause. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 569, 944 S.W.2d 838, 846 (1997). Appellant must have asked the court to remove the juror for cause, and the court must have improperly denied the request. Willis v. State, 334 Ark. 412, 420, 977 S.W.2d 890 (1998). Williams did not show he was forced to accept a juror who should have been excused for cause. It is also worthy of note that Mr. Fortson did not sit on the jury, in any event, due to illness.
Admission of the Appellant’s Statement
As to Mr. Williams’s statement, this court reviews the voluntariness of confessions by making an independent determination based on the totality of the circumstances and reverses the trial court only if its decision was clearly erroneous. State v. Sheppard, 337 Ark. 1, 987 S.W.2d 677 (1999). Custodial statements are presumed involuntary, and the State must prove by a preponderance of the evidence that the statement was given voluntarily and was knowingly and intelligently made. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998).
Williams first argues ignorance of the rights he waived in making the statement as well as ignorance of the ensuing consequences. Williams contends the police did not inform him of the actual charges which were the subject of the interview. He also states that he was arrested on a misdemeanor charge and told he was a suspect in a kidnapping. He alleges impropriety in the interrogation since he only believed he was a suspect in a kidnapping and not a murder.
Williams was arrested and interviewed on November 29, 1994. Police read him the required Miranda rights, and Williams gave written consent for interrogation on a police form. The transcript of the interview and police testimony indicated he exhibited knowledge and understanding of the process he was undergoing. Appellant had sufficient education and intelligence to comprehend the explanation of rights having obtained a GED and at least one semester of college. Appellant knew one officer by name. The record reflects the police principally questioned appellant about the abduction hoping that Mrs. Errickson might still be found alive. The victim’s body was not found until December 5, 1994. No evidence establishing the commission of a homicide had been found at that time. During the interview, Williams did not confess to murder but instead insisted throughout that she was alive when he last saw her. As of the interview, the police only knew Errickson was missing and that Williams was a suspect. We find Williams understood he was voluntarily giving up substantial rights and that he understood the potential consequences, and accordingly find the trial court was not clearly erroneous.
Mr. Williams also asserts the statement was not voluntary because he was enticed by promises. He alleges the officers promised to go the prosecutor and tell him Mr. Williams had cooperated and knew he’d made a mistake. “A statement induced by a false promise of reward or leniency is not a voluntary statement.” Knight v. State, 62 Ark. App. 230, 233, 971 S.W.2d 272 (1998), quoting Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). As with other aspects of voluntariness, we look at the totality of the circumstances. Conner v. State, 334 Ark. 457, 469-70, 982 S.W.2d 655 (1998). During the interview, Williams, not the police, raised the prospect of police discussions with the prosecutors. Although the officer mentioned he would relate Williams’s cooperation to the prosecutor, no assurance of any benefit to Williams was conveyed. We find no false promise of leniency.
Conditions of the interview are also alleged to have been coercive. The questioning commenced at 4:22 p.m. and concluded the following morning at 6:00 a.m. At least two officers were present and Mr. Williams alleges he was reduced to tears twice. Length of detention is an issue in an analysis of voluntariness of a confession. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). The statement itself is helpful on this issue. Over the thirteen hours, at least two were spent in driving to try and find a house. Length alone, however, is not determinative. We found twelve hours of intermittent questioning to not be coercive in Vaughn & Wilkins v. State, 252 Ark. 505, 479 S.W.2d 873 (1972). A critical consideration in this interview was that the focus of the officers was on finding Stacy Errickson, who at the time of the interview was still missing and presumed alive. The police remained optimistic that they might find Errickson alive, and over the course of the interview it became increasingly clear Williams had knowledge of her whereabouts but refused to cooperate fully. At one point the police took Williams to a house in Litde Rock where he stated he thought Errickson could be found. During the interrogation, Williams was provided food, drink, and cigarettes. He requested that an officer he knew be brought to the interview, and he was obliged. He showed familiarity with the criminal justice system and never once asked that the interview be stopped. While the interview was lengthy and intensive, we hold no impermissible coercion occurred.
Finally, Mr. Williams challenges admission of the statement on the basis that the prosecutor should not have used it at trial because the prosecutor knew the statement was false. This assertion is without merit. “It is settled beyond question that a party’s attempt to fabricate evidence is admissible, not merely as an admission under Uniform Evidence Rule 801(d)(2) but as proof relevant to show his own belief that his case is weak. As one court has said in a case involving a fabricated alibi, “Fabrication of evidence of innocence is cogent evidence of guilt.” Harvey v. United States, 215 F.2d 330 (D.C. Cir., 1954). Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).
Denial of pretrial motions
Prior to trial, Williams made several motions attacking on principle the constitutionality of the death penalty and the use of victim-impact evidence. Williams first argues death-qualifying the jury was unconstitutional. This issue has already been settled by this court. We have time and again rejected the notion that death-qualified juries are unconstitutional. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied 466 U.S. 988 (1984). The United States Supreme Court has also rejected this argument, holding that death-qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986). Davis v. State, 314 Ark. 257, 268, 863 S.W.2d 259 (1993), cert. den. 511 U.S. 1026 (1994).
Next, Williams seeks a finding that Ark. Code Ann. section 5-4-603 is unconstitutional because it requires death on certain findings. This argument is without merit. We have previously held and do so here again that it does not result in a mandatory death sentence. See Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. den. 479 U.S. 1101 (1987); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).
It is also alleged the death sentence is imposed arbitrarily and capriciously in that the death penalty is more likely to be imposed on a black than a white person. Williams cites Patterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984). This argument has already been rejected and the article has been considered. We addressed the matter in Lee v. State, 327 Ark. 692, 704, 942 S.W.2d 231 (1997), cert. den. 118 S.Ct. 572 (1997), where we stated:
We considered this argument and law review article in Nooner v. State, supra. In Nooner, we emphasized the United States Supreme Court’s requirement that a discriminatory purpose must be proved on the part of the decision-maker in the defendant’s particular case. McClesky v. Kemp, 481 U.S. 279 (1987). As in Nooner, Lee’s allegations are very general. He has offered no proof to show how his due process or equal protection rights were violated by a biased or arbitrary judge or jury. Thus, due to absence of proof of discriminatory purpose, we cannot say that the trial court erred in denying Lee’s- motion.
See also, Nooner v. State, 322 Ark. 87, 105, 907 S.W.2d 677 (1995) .
Williams next argues that Arkansas’s capital murder statute, Ark. Code Ann. section 5-10-101, is void for vagueness. This argument, too, has already been rejected. Lee, supra, at 702.
Mr. Williams also argues the death penalty is cruel and unusual. This argument has been repeatedly rejected. Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998), cert. den. 119 S.Ct. 1451 (1998) citing Pulley v. Harris, 117 S. Ct. 37 (1984).
Next, Williams argues the statutory aggravating circumstances are vague and overbroad. This argument, too, has been rejected. As we stated in Ruiz v. State, 299 Ark. 144, 155, 772 S.W.2d 297 (1989), “The final phase of the argument is that the aggravating circumstances are vague and overbroad. We have considered and rejected that argument previously without disagreement by the Supreme Court.” Gregg v. Georgia, 428 U.S. 153 (1976); Gardner v. State, 296 Ark. 41, 55, 754 S.W.2d 518, 525 (1988); Snell v. State, 290 Ark. 503, 518, 721 S.W.2d 628, 634 (1986), cert. denied, 108 S.Ct. 202 (1987); and Collins v. State, 261 Ark. 195, 200-01, 548 S.W.2d 106 (1977), 119-20, cert. denied, 434 U.S. 878 (1977).”
Williams also asserts victim-impact evidence is unconstitutional. This argument is without merit. As noted in Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), cert. den. 119 S.Ct. 1471 (1999), we have upheld the constitutionality of the victim-impact statute on many occasions. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) ; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In all of the appellant’s various assertions relative to the death penalty, no demonstration of prejudice or error with respect to its imposition in the specific facts of this case has been persuasively made.
Error in admission of a previous conviction for a subsequent crime
Based upon our holding in Hill v. State, 289 Ark. 387, 731 S.W.2d 233 (1986), Williams contends the trial court erred in admitting evidence of appellant’s kidnapping of Karen Nicols. It is undisputed that Williams abducted Karen Nicols four days following his abduction and murder of Stacy Erikson. Williams argues that in Hill, we construed “previous committed felony” to mean evidence of criminal acts occurring prior to the acts for which the defendant is now being tried. He asserts that the purpose of this aggravating circumstance is to show the defendant’s history of violence. Appellant misconstrues our holdings on this point. In Hill, we upheld the admission of the crimes used to support a finding of an aggravating circumstance. In construing the meaning of “previous felony”as an aggravating circumstance, we stated:
Since there are other avenues by which the state can prove crimes immediately connected with the principal crime, the only logical conclusion is that section (3) applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. In this case the crimes used to prove an aggravated circumstance involved other victims, in another place and previously in time. Therefore, they were properly used as an aggravating circumstance. (Emphasis added.)
From a careful reading of Hill, it is apparent that it did not lay down an inviolate rule that “previous felony” invariably means actions occurring before the killing sub judice. Rather, it means that it pertains to crimes not connected in time and place. It just so happened that in Hill, the alleged felony occurred at a different place and at a different time which was prior to the killing for which Hill was charged. This analysis of Hill is supported by our later holding in Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994).
In Sanders, the appellant contended that the trial court erred in admitting evidence of a murder conviction as an aggravat ing circumstance where the murder occurred approximately one month after the murder for which he was then being tried. As a case of first impression, we cited persuasive authority from other jurisdictions. We noted the distinction between our statute using the term “previous felony” and the statutes of those jurisdictions which used the term “previous conviction” or in the case of Florida which used the term “previous crimes.” We then construed our statute involving previous felony, Ark. Code Ann. § 5-4-604(3), as follows:
Implicit in the Arkansas statute’s phrase “previously committed another felony,” which itself is supported by the statutory elaboration of the element of the “the use of threat of violence” and “the creation of a substantial risk of death or serious physical injury,” is at least the contemplation of a conviction. Indeed, proof of a conviction serves to establish the aggravating circumstance of a previous violent felony. And, it should be recalled, the Florida court stressed in Daugherty that the purpose of the statute was to ensure that “any violent crime for which there was a conviction at the time of the sentencing should be considered as an aggravating circumstance.” (Citation omitted.)
Ultimately, we held that “the trial court did not err in allowing the State to introduce evidence of Sanders’s conviction for the murder of Frederick LaSalle.” Id. at 339. We based that holding on the rationale that the “fundamental thrust of the Arkansas aggravating-circumstances statute is prospective . . . Naturally, a violent felony that was committed after the killing in question (but which resulted in a conviction prior to the sentencing hearing) would have considerable bearing on a convicted murderer’s propensity to ‘strike again.’” Id. at 338. Hence, it is evident that the purpose of this aggravating circumstance is not simply to show the defendant’s violent history, as appellant contends, but it is also intended to show the defendant’s propensity for a violent future. “Previous felony” can thus include felonies for which the defendant was convicted prior to the sentencing phase of the murder trial even though the underlying felonious conduct occurred after the murder.
In the instant case, Williams, therefore, mistakenly asserts that a violent felony is not admissible as an aggravating circumstance unless it was committed previous in time to the capital murder at issue. Ms. Errickson was kidnapped, raped, and murdered on November 20, 1994. Karen Nichols was kidnapped on November 24, 1994. However, Williams’s conviction on the Karen Nichols kidnapping predates the trial on Ms. Errickson’s murder but under Hill and Sanders is admissible as a section 5-4-604(3) aggravating circumstance of a previous felony because it was not connected in time or place to the murder and demonstrates a propensity for further violent conduct. The federal constitution permits both a backward-looking and a forward-looking inquiry. Tuilaepa v. California, 512 U.S. 967 (1994). We hold, therefore, that the trial court did not err in permitting the State to establish a section 5-4-604(3) aggravating circumstance by admission of a kidnapping conviction based upon an abduction occurring subsequent to the capital murder.
Admission of testimony of a rape for which he was tried but not convicted
Williams was convicted for the November 24, 1994, kidnapping of Karen Nichols. There was also a rape charge; however, the jury deadlocked, and the rape charge was nol prossed. We do not reach the issue of whether a previously committed felony for which there is no conviction may be considered by the jury as an aggravating circumstance under Ark. Code Ann. section 5-4-604(3) because we find only the conviction for kidnapping was introduced. A review of the record shows the prosecutor introduced evidence of appellant’s 1986 aggravated-robbery conviction and the Karen Nichols kidnapping conviction. The record reveals the following sequence of events relative to the Nichols kidnapping:
1. After the jury left the courtroom to deliberate on guilt, the State told the court in the penalty phase the aggravating circumstances would be:
a. “Pecuniary gain;”
b. “Cruel and depraved;” and,
c. “aggravating robbery prior, kidnapping prior.” TR 1040.
2. A side-bar discussion during the penalty phase indicates the aggravated robbery from 1986 and the kidnapping of the victim on November 24, 1994, would be introduced. TR 1054 and 1057.
3. Defense counsel stated in a discussion with the trial court, “[A]s to the kidnapping, the Court has previously ruled that that is a crime of violence, and I believe there is sufficient case law to back that up. There was also in that case a charge of rape that the jury hung on, and the State later nol-prossed that case. I would ask there be no mention of that activity.” TR 1041.
4. The State countered that the kidnapping was for the purpose of deviate sexual activity, and therefore, the activity was part of the kidnapping conviction. The trial court stated, “Yeah, I think it was kidnapping for the purpose of, and that’s not a conviction of the rape.” TR 1041-1042.
5. In the course of summing up on the aggravating circumstances, the trial court notes there is proof of two priors; however, the prosecutor when asked about witnesses states, “We’ll put on Karen Nichols, as to proof of the rape.” TR 1045.
6. Still later in the penalty phase the judge stated, “She’s [Karen Nichols] going to get into the purpose of the kidnapping. Well, I’m overruling an objection and you’re going to have to live with whatever the folks upstairs. . . .” The Prosecutor stated, “I understand.” TR 1058.
7. The victim was specifically asked by the prosecutor, “What, if anything, did he do to your body?” She testified of the events including demands she disrobe, digital penetration and Williams’s simultaneous activity. TR 1061.
8. Defense counsel states, “Your honor, I want to renew my previous motion at this time to any discussion by this lady of any sexual offense, aside from the kidnapping of which he was convicted.” TR 1056.
9. The defense asserts the prosecution was going to get into “sexual contact” with Karen Nichols. The prosecutor states, “Absolutely,” and states the kidnapping was for the purpose of deviate sexual activity.
10. In closing on the penalty phase, the prosecutor stated, “The second aggravating circumstance, Ladies and Gentlemen, are prior violent felonies. Does Mr. Williams have prior violent felonies? Aggravated robbery, yes; kidnapping, yes. You heard from Karen Nichols. You heard what happened to her. We’ve proven to you beyond a reasonable doubt.” TR 1097.
Williams was convicted of kidnapping Karen Nichols for the purpose of deviate sexual activity. The code provides in pertinent part:
Ark. Code Ann. § 5-11-102. Kidnapping.
(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. . .
The previous felony at issue is kidnapping for the purpose of deviate sexual activity. There was no mention to the jury of the rape charge. There was no introduction of the elements of rape or argument of rape as to Karen Nichols. Based upon defense counsel’s argument at trial, it appears Williams felt the jury should only be told that the previous felony was kidnapping and that kidnapping is a violent crime. However, the specific crime for which he was convicted included sexual activity. We hold the court did not err in admitting Karen Nichols’s testimony.
Error in introduction of the Shellstop video and Tammy Victoria
Williams argues the events with Tammy Victoria are not relevant and were prejudicial. “This court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rules 403 and 404(b), and that those decisions will not be reversed absent an abuse of discretion. See, e.g., Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Lindsey v State, 319 Ark. 132, 890 S.W.2d 584 (1994). We conclude appellant has failed to show an abuse of discretion.” Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773 (1995). The evidence is relevant, however, for the permissible purpose of showing motive, opportunity, intent, and a plan. Arkansas Rule of Evidence Rule 404(b) provides for admission of such evidence. The similarity of circumstances between the two events is sufficient to support the trial court’s decision. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
Crime scene and autopsy photos
Williams next argues the photos did not have a tendency to prove facts but rather were intended to inflame the jury. All photographs were not admitted. The trial court carefully reviewed the photos. The trial court showed care that the photos not be cumulative and that each served to prove a fact. Specifically, the autopsy photos were in aid of the medical examiner Dr. Stumer’s testimony. “It is well settled that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Carmargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). We have further held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Id. Here, the State used the three photographs to show the state of the body after the attack and the number of wounds, including one to the victim’s back and another defense wound and slash cut to his wrist.” Chase v. State, 334 Ark. 274, 282, 973 S.W.2d 791 (1998). We do not find the trial court abused its discretion.
Testimony of Paul Gabucci
Finally, Williams asserts it was error to admit the testimony of Mr. Gabucci, which placed Jimmy Jackson at work at the time of the abduction. Appellant had contended in his statement to police that Jackson was involved in the abduction. He again argues as with regard to his own statement being false, that the prosecution knew Williams’s assertion about Jimmy Jackson was a fabrication. For the same reasons stated above with respect to the statement, the testimony was admissible. Evidence of Williams’s lies to throw the blame on others casts light on his own culpability.
Rule 4-3 (h)
In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.
Affirmed.
Daugherty v. State, 419 So.2d 1067 (Fla. 1982); Ex Parte Coulter, 438 So.2d 352 (Ala. 1983); State v. Steelman, 612 P.2d 475 (Ariz. 1980). | [
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Frank Holt, Justice.
Appellant was convicted of first degree murder in the shooting death of one person and second degree battery in the shooting of another person. He received sentences, as the jury recommended, of 40 and 6 years imprisonment, respectively, and a $10,000 fine. We affirm.
Appellant, who claimed self-defense, first contends for reversal that the trial court erred in refusing to declare a mistrial following the testimony of a state’s witness who did not see either of the shootings. The witness testified that he was in a house fifty or sixty feet from the incident when he heard two shots. He immediately went outside and saw the appellant waving a gun, asking “who else wants some of this.” He also observed the appellant point a gun at a man named Nathaniel and say, “Do you want some of this?” and “I should have killed him.” This is not evidence of “other offenses” contrary to Rule 404 (b) of the Uniform Rules of Evidence as the appellant argues. The testimony of this witness as to what he saw and heard established a course of conduct during which the alleged crimes occurred and was relevant to the issue of motive or intent. Rule 404 (b) and Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). Further, where acts are intermingled and contemporaneous with one another, the evidence with respect to any and all of them is admissible to show the circumstances surrounding the whole criminal episode. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Russell and Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977); and Easley v. State, 109 Ark. 130, 159 S.W. 36 (1913).
The appellant next asserts that the trial court erred in denying his motion in limine to prevent the state from impeaching him, if he had testified, by a prior felony conviction. He argues that Rule 609 (b), Uniform Rules of Evidence, requires that the trial court should have granted this motion because the prejudicial effect of his prior conviction for murder outweighed its probative value. This argument was not made to the trial court, and, therefore, it cannot be considered on appeal. Rule 103 (a) (1), Uniform Rules of Evidence, A.R.Cr.P., Rule 36.21, Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), Pace v. State, 265 Ark. 712, 580 S.W.2d 689(1979).
Affirmed. | [
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Darrell Hickman, Justice.
A jury found Paula Rasmussen guilty of the first degree murder of her boyfriend, Clarence Corley, and sentenced her to life in prison. Rasmussen’s arguments on appeal concern the trial judge’s admission and exclusion of evidence. We find that he did not abuse his discretion and affirm the conviction.
Rasmussen and Corley lived and worked together in North Little Rock. On their way home from work on April 10, 1981, they began to argue about Corley’s attention to another woman. They had both been drinking beer for several hours and the argument became more heated when they got to their apartment. Rasmussen testified that Corley asked her for the keys to his truck so he could leave but that she refused. She said she was fearful that Corley was going to physically injure her, so she grabbed a pistol out of the gunrack in their apartment and took the safety strap off. Rasmussen said that Corley then slapped her hand and the gun, a .38 caliber double-action revolver, went off, shooting Corley in the chest. She said that he told her to call an ambulance; but, according to the doctor who performed the autopsy, he died instantly upon being shot.
A neighbor said she heard the arguing, the shot, and heard Corley tell Rasmussen to call an ambulance. The neighbor then called the police. When the police arrived, Corley was dead. The police officers took her to the pólice station, warned her of her rights, and she gave a statement which essentially said that she had pointed the gun at Corley in self defense, and that Corley pushed the gun causing it to fire. Two of Corley’s daughters testified that before the homicide they had heard Rasmussen say she could kill Corley for his infidelity.
Rasmussen raises three points on appeal. The first concerns a pair of eyeglasses that the defense had made which purportedly would allow a person with normal vision to see as Rasmussen sees without her glasses. Apparently, Rasmussen has very poor vision when uncorrected. Rasmussen said that Corley had knocked her glasses off before the shooting. The defense’s theory was that when Rasmussen shot Corley, her vision was so blurred that she felt more apprehension of bodily harm than the situation actually presented, thus supporting her claim of acting in self defense. The defense offered no expert proof of the weakness of Rasmussen’s vision, nor any expert testimony that the specially made glasses would enable the j urors to see what Rasmussen saw without her glasses. The trial judge pointed out that he had no way of knowing whether the glasses were effective or whether there were any jurors with perfect vision so that the glasses could work anyway. The admissibility of demonstrative evidence is discretionary with the trial j udge, and in considering the facts that the trial judge had before him, we find no abuse of that discretion. Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982); see McCORMICK’S EVIDENCE § 202 (1972 ed.).
Two photographs of Corley’s body were introduced which Rasmussen claims were inadmissible because of their inflammatory nature. One was a color photograph of the victim lying dead on the bed where the police found him. Another was a black and white photograph of the victim from his abdomen to his head. The admissibility of photographs lies within the trial court’s discretion. A photograph is ordinarily admissible when it shows the nature, extent, and location of the wounds. Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). We find no abuse of the trial judge’s discretion.
Rasmussen’s third point for reversal is that the trial court erred by allowing evidence of Corley’s intoxication level to go to the jury. After Rasmussen said Corley had ten beers, the State asked Rasmussen whether she would “... be surprised to know that the autopsy report showed that he [Corley] had a blood alcohol level of only .07 and the legal limit for intoxication — the lowest level is . 10? Would that kind of surprise you?” The defense objected, stating that that was an incorrect statement of the law. The following exchange took place:
DEFENSE COUNSEL:
Your Honor, I’m going to object to that. That’s not a proper statement of the law. The lowest intoxication level is .05.
THE STATE:
I think the Arkansas law is .10.
THE COURT:
I believe that’s correct.
DEFENSE COUNSEL:
.10 raises a presumption that this man had been drinking.
THE COURT:
It raises a presumption that he was under the influence, I believe is a proper statement of the law. Proceed.
The attorneys and the court were no doubt referring to Ark. Stat. Ann. § 75-1031.1 (Repl. 1979). On appeal, the appellant argues that the objection should have been sustained for four reasons: (1) Because Corley’s autopsy report had not been introduced; (2) because blood-alcohol content cannot be admitted into evidence until several statutory requirements have been met; (3) because the trial judge’s comments supported the prosecutor’s declaration; and, (4) the trial judge’s comments were misleading. The defense attorney did not try to prevent the discussion of the law; rather, he joined in and argued his interpretation of the statute. Furthermore, the only objection made by the defense at the trial was that the prosecutor’s question to Rasmussen was an incorrect statement of the law. Under those circumstances, we find that he did not properly preserve his right to raise these arguments on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
We have reviewed the record for other errors, and found none.
Affirmed. | [
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Per Curiam.
Petitioner Tywanna Martin was convicted by a jury of capital murder and kidnapping. She was sentenced to life imprisonment without parole for murder and 20 years imprisonment for kidnapping. The sentences were ordered served consecutively. We affirmed. Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). Petitioner now seeks permission to proceed under Arkansas Criminal Procedure Rule 37 for postconviction relief.
Rule 37.2 (c) provides that a petition under Rule 37 must be filed within three (3) years of the date of commitment unless the ground for relief would render the judgment void. Petitioner was committed to the Arkansas Department of Correction on April 17, 1978. Her petition is therefore untimely unless we find a ground for relief alleged which would render the judgment for murder or kidnapping void. We find no such ground with regard to the murder conviction but do find reason to set aside the 20 year sentence for kidnapping.
Petitioner alleges that it was improper for her to be convicted and sentenced for capital murder and kidnapping since kidnapping was the underlying specified felony to the charge of capital murder. She asserts that the conviction violated the constitutional prohibition against double jeopardy.
This Court has held that when a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977). Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). The statute provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2);
(2) A defendant may not be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense (required to establish the commission of the offense) charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In proving the elements of capital murder, it is necessary to prove the elements of kidnapping. In light of our recent holdings in regard to Ark. Stat. Ann. § 41-105 (1) (a) in Rowe, Singleton, Simpson and Swaite, supra, we find that the trial court did not have the authority to convict petitioner of kidnapping. The judgment is therefore void, and, in accordance with Rule 37.1, we set aside petitioner’s conviction and sentence for the lesser included offense of kidnapping. The conviction and sentence for capital murder are not disturbed.
Petitioner also raises six (6) allegations of ineffective assistance of counsel. None of the allegations is sufficient to render the judgment in petitioner’s case void. Accordingly, they are untimely raised.
Petition granted in part and denied in part. | [
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Frank Holt, Justice.
On June 16, 1981, the appellant was charged with committing the offenses of aggravated robbery and theft of property on June 2, 1981. The informa tion also charged that the appellant was a habitual offender, having been convicted of four or more previous felonies and, therefore, should have his sentence increased pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). In January, 1982, a jury found appellant guilty of both offenses and in a bifurcated proceeding assessed his punishment, as a habitual offender, at life imprisonment for aggravated robbery and twenty years imprisonment for theft of property.
The trial court determined that the substantive law in effect at the date of the offense governs and, therefore, the jury was instructed on the range of sentences found in Ark. Stat. Ann. § 41-1001 (Repl. 1977), which was in effect on the date of the offense, rather than Act 620 (1981), § 41-1001 (Supp. 1981), which became effective after the offense. On the other hand, the trial court determined that Act 252 (1981), Ark. Stat. Ann. § 41-1005 (Supp. 1981), by which the court and not the jury determines the number of previous convictions, is procedural rather than substantive. Since the procedural law in effect on the date of the trial, rather than the date of the offense governs, the trial court followed the procedure stated in Act 252. The previous statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977) provided that the jury would determine the number of previous convictions.
Summarizing, the appellant was sentenced in accordance with the range of punishments provided in the habitual offender statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977), which was in effect at the time of the alleged offenses, but the court, rather than the jury, determined the number of prior felony convictions, as Act 252, Ark. Stat. Ann. § 41-1005 (Supp. 1981),.provides.
The appellant makes three arguments for reversal. First, he argues that the determination of the number of prior felony convictions by the judge deprived him of his right to have the jury determine the facts. Second, Act 252 violates Art. 7, § 23, Ark. Constitution (1874), which says, “Judges shall not charge juries with regard to matters of fact, but shall declare the law ...” Third, if the trial judge was correct in making the determination of the number of prior felonies pursuant to Act 252, he also should have instructed the jury on the new range of punishments found in Act 620 of 1981, which arguably would be less harsh as applied to him.
The state responds that the appellant is precluded from raising these arguments on appeal for want of a proper objection below. With respect to the appellant’s third argument the state clearly is correct. The appellant’s attorney not only failed to object to the use of the range of punishments in the act which existed at the time of the offense, he actually agreed with the trial court that “it’s substantive and would depend on the date of the offense.” The appellant cannot agree with a ruling by the trial court and then attack that ruling on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
The appellant’s first two arguments are but different ways of contending that Act 252 is unconstitutional because it grants to the trial court duties that only the jury may perform. In Price v. State, 276 Ark. 80, 632 S.W.2d 429 (1982), we held that we need not reach the question of the constitutionality of Act 252 if the number of prior felony convictions is not disputed. Here, it is undisputed that the appellant had been convicted of eight prior felonies. The appellant, however, claims that he pleaded guilty simultaneously to the last three felonies, which he understood from plea negotiations, would run concurrently and count as only one conviction. However, each plea of guilty to each offense is considered as a separate and previous conviction, even though concurrent sentences are imposed, under the habitual offender statutes. Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981). Further, a defendant’s claim of innocence with respect to some of the established prior convictions is irrelevant. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). Since the number of prior felony convictions is not actually disputed by the appellant, this case is in the same posture as Price v. State, supra, where we deemed it unnecessary to reach the question of the constitutionality of Act 252.
Affirmed.
Smith, J., concurs and Purtle, J., dissents. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Willie Lee Penelton, was convicted of capital murder and sentenced to death by electrocution. On appeal, we reverse the conviction and remand for a new trial.
Appellant and his girlfriend were walking along Highway 70 near Hicks Station, St. Francis County, shortly after noon on March 17, 1981. The murder victim, who was driving a dump truck, picked them up. They stopped shortly thereafter at a grocery store, where appellant purchased a six-pack of Schlitz beer with a five dollar bill which the victim gave him. The three of them continued down the highway toward West Memphis until the girlfriend stated that she needed to go to the bathroom. The victim pulled onto the shoulder of the road and the girlfriend walked into the woods.
The victim got out of the truck and asked appellant “how she was.” Appellant replied that “she was all right” and the victim then went into the woods. After a short period of time, appellant followed them, taking with him a tire tool. When he saw them, both were partially undressed and it appeared to appellant that the victim was attempting to have sex with the girlfriend. The victim tried to get up but appellant struck him several times with the tire tool. He then took approximately $40 from the victim and he and the girlfriend walked to a grocery store. Appellant paid one of the girlfriend’s relatives to take them to appellant’s apartment in West Memphis.
The victim’s body was discovered between 1:00 p.m. and 3:00 p.m. by a local resident who immediately called the sheriff’s department. Several deputies investigated the crime scene and found various items lying near the body, including the tire tool, a can of Schlitz beer, plugs of tobacco, and a snuff can.
Appellant first argues that the trial court erred in refusing to quash the jury panel because the jury panel was not made up of a cross section of the community. Testimony from the jury commissioners who chose the panel revealed that they had been instructed to exclude persons who could request to be excused under Ark. Stat. Ann. § 39-108 (Supp. 1981). This statute provides:
Occupations excused — Necessity of objection. — The following persons will not be required to serve as grand or petit jurors if they object to serving and make their objections known to the court prior to being sworn:
(a) Practicing physicians, osteopaths, chiroprac tors, nurses, dentists, dental hygienists, and optometrists and pharmacists.
(b) Persons whose principal activity is that of a clergyman.
(c) Practicing attorneys and officers of a court.
(d) Persons 65 years of age and older.
(e) Persons actively employed as undertakers or embalmers.
(f) Active members of any fire department or fire company.
(g) Persons serving on active duty in the military service of the United States or the National Guard.
(h) Active members of any law enforcement agency.
(i) Members of the General Assembly, elected county officers and elected township officers. [Cites omitted]
Generally, the commissioners testified that they did, in fact, exclude persons in the classifications enumerated above. One commissioner took notes on the trial court’s instructions and her notes, which were introduced into evidence, state: “Exclude people in essential fields . . . Doctors, ministers, all the health fields, firemen and attorneys — legal pro — and relatives — officers of the court.”
Ark. Stat. Ann. § 39-108 does not provide for the automatic exclusion of persons within the classifications mentioned, but rather, provides for exclusion if the individual objects to serving and makes the court aware of such objection before the jury is sworn. Therefore, it was error for the trial court to instruct the commissioners to automatically exclude a large class of eligible jurors. Hall v. State, 259 Ark. 815, 634 S.W.2d 155 (1976).
Appellant also argues that his confession should have been suppressed because it was involuntary. We disagree. Here, the voluntariness of the confession turns almost entirely upon matters of credibility. No physical mistreatment is alleged, and appellant’s signature appears on the rights form as well as the confession, but there were conflicts in the testimony about when and to what extent appellant was informed of his rights and whether or not he was threatened by police officers. However, having given due weight to the trial judge’s advantageous position in the resolution of such conflicts, we cannot say that his finding of voluntariness was clearly against the preponderance of the evidence. Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).
There is clearly sufficient evidence to support a finding of guilt in this case, based upon the testimony of various witnesses and the confession. However, the case is remanded for a new trial because of the prejudicial procedure used in selecting the jury.
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George Rose Smith, Justice.
Ricky Rector argues two grounds for reversal in appealing from a verdict and judgment sentencing him to life imprisonment for the first-degree murder of Arthur Criswell. Neither contention is meritorious.
First, trial counsel filed a pre-trial motion asking the court to find Rector mentally incompetent to stand trial as a result of brain injury caused by Rector’s having shot himself some time after he killed Criswell. At the hearing on the motion the expert testimony was in conflict. The defense witnesses testified that Rector’s brain injury caused retrograde amnesia, so that he could not remember either having shot himself or having committed the crime now on trial and other felonies at about the same time. Those witnesses considered Rector to be unable to understand the issues to be tried and to assist his counsel in his own defense. For the State the expert witnesses testified essentially to the contrary, with Dr. Hamed expressing the opinion that Rector was lying about his loss of memory, that he was competent to stand trial, and that he could cooperate with his counsel when he decided to do so. With the evidence hopelessly in conflict upon an issue of fact, it cannot be said that the trial judge’s conclusion is clearly erroneous. The trial judge apparently accepted the claim of amnesia, but he correctly pointed out that amnesia is not an adequate ground for holding a defendant incompetent to stand trial. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978).
Second, it is argued that the trial judge should have excused the juror Larry James for cause. James at first said that from earlier news accounts he had probably formed an opinion that Rector, might be guilty, but his voir dire examination concluded in this way:
The Court: Mr. James, could you, if you were selected as a juror, and would you, if you were selected as a juror, set aside any opinion you might have at this time and listen to the testimony presented here and the evidence introduced into court and make your decision solely on what you have heard in the courtroom during the trial?
Juror James: I would try to.
The Court: He’s all right.
Q [by defense counsel]: You sure you could do that?
A (No verbal response)
Defense counsel: I ask he be struck again, your Honor.
The Court: He nodded in the affirmative. ... No, he’s all right.
Thus the trial court found that the juror, by nodding in the affirmative, asserted his ability to lay aside his impressions and render a verdict based upon the evidence in court. The juror was therefore qualified. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied 449 U.S. 1057 (1980). We note the remote possibility that the juror might have understood defense counsel’s final question to refer to the juror’s ability to try to lay aside his opinion rather than his ability to do so, but such an inquiry by defense counsel would have been so utterly pointless that we have no doubt the trial judge was right in denying the challenge for cause.
We find no error in the two points argued or in the other rulings that have been presented in the briefs.
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George Rose Smith, Justice.
At about 8:00 p.m. on March 11, 1981, two armed men entered a drugstore in Fort Smith and forced the clerks to turn over the money in the cash register. One of the men displayed a knife and had a dark pullover shirt drawn up over part of his face. The robbery was reported at once, with descriptions of the robbers being broadcast over the police radio. Within a very few minutes two cruising police officers detained the appellant Brasher four or five blocks from the drugstore, because he matched the description of one robber in that he had on a dark pullover shirt, was of medium height and build, and had blond hair. Before the police placed Brasher under arrest one of the clerks, who was following Brasher, drove up and identified him as one of the robbers. When Brasher was patted down the police found a knife under his belt. A line-up was conducted at about 10:00 that night, with three clerks identifying Brasher.
Brasher was charged with aggravated robbery; the State also requested revocation of Brasher’s suspended sentence in an earlier case. This appeal from a verdict and judgment finding Brasher guilty and fixing his sentence at 50 years comes to us under Rule 29 (1) (b). There is no substance to any of the appellant’s arguments for reversal.
It is first argued that the trial judge should have recused himself, for bias, because he fixed Brasher’s bond in the revocation case at $25,000 after a municipal judge had set a $5,000 bond in the present case. No testimony was taken upon the appellant’s motion for recusal or with respect to the reasonableness of the $25,000 bond. It is simply argued that the trial judge’s action in setting the $25,000 bond, in contrast to the smaller bond set by the municipal judge, showed such bias against Brasher that the circuit judge should have withdrawn from the case. In our opinion a mere statement of the argument is sufficient to show its total want of merit.
Second, it is argued that Brasher’s knife and pullover shirt should have been excluded as evidence, because the police had no probable cause to stop Brasher as he walked down the street. Brasher did match the broadcast description except that his height is 5'10" instead of 5'7" and he was not wearing a jacket described in the broadcast. He could have discarded the jacket; the variance in height is trivial. Moreover, an eyewitness identified Brasher immediately after he was stopped. Thus there was ample probable cause for Brasher’s detention and arrest.
Third, the line-up was not unfair. Brasher was slightly shorter than the other four men in the line-up, but they all had similar mustaches, they all wore similar jail clothing, and there is nothing in the picture of the line-up that tends to point to Brasher as a suspect. The public defender’s fourth point, that two harmless remarks by the prosecutor called for a mistrial, is so lacking in merit that no discussion is necessary.
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John I. Purtle, Justice.
The Jefferson County Circuit Court convicted appellant of rape and sentenced him to a term of 40 years. On appeal he alleges (1) the insufficiency of the evidence; (2) the trial court should have directed a verdict of acquittal; and, (3) the trial court should have granted a mistrial. We cannot agree with any of these arguments.
We first deal with the sufficiency of the evidence. The twelve year old victim testified that the appellant placed his hands between her legs and his finger penetrated her body. It is true she later said she could not say whether either his finger or his penis penetrated her body. In any event, the uncorroborated testimony of a rape victim has many times been held sufficient to uphold a conviction. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981), and Smith v. State, 277 Ark. 64, 638 S.W.2d 692 (1982). On appeal we view the matters in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). Likewise, we have held that circumstantial evidence may be sufficient to support a conviction. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). The victim also testified she was afraid and that appellant pulled her arm and threatened to kill her mother.
Appellant’s second argument was that he was entitled to a directed verdict. Like appellant we agree this point needs no discussion in view of what was said under the first argument.
Lastly it is argued that the court erred in failing to grant a mistrial when a policeman testified about an independent criminal activity. The officers were called to the victim’s home, which was rented by her mother, and were invited in for the purpose of arresting the appellant on a charge of rape. While in the house one officer stated: “I observed items in the bedroom that were believed to be controlled substances. Numerous seeds ...” Appellant’s counsel immediately objected and moved for a mistrial. The motion was denied and the jury was instructed to disregard the statement regarding the observation of this evidence. Subsequently another officer testified: “I remained in the house collecting evidence on the other charge.” Again, appellant’s counsel objected and moved for a mistrial. The court also overruled the second motion for a mistrial. The trial court recognized the manifest impropriety of these officers voluntarily furnishing information about an alleged.crime which was not the subject of this trial. In view of the fact that the jury was admonished to disregard such testimony the first time it was mentioned and that the appellant did not request an admonition on the second happening, we cannot say the result was prejudicial error. We agree with appellant that we still rely on Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We do not allow unrelated criminal acts for the purpose of showing that the accused is a person of bad character. The exceptions to this rule are too numerous to mention. We must also consider the fact that on cross-examination the appellant’s attorney questioned the officer as follows:
Question: All you did was go in and arrest a man and pick up some clothes. What exactly did you pick up. You mentioned evidence.
Answer: The controlled substance that was in —
DEFENSE COUNSEL: Not relevant. I move for a mistrial for that.
THE COURT: You invited the question.
A mistrial is an extreme remedy and will be granted only when no other action by the court will insure a fair trial. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). We do not find that the appellant was prejudiced by the manner in which this improper evidence was handled.
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John I. Purtle, Justice.
A jury in the Cleburne Circuit Court returned a verdict against the appellant in the amount of $4,071,770.46. It was stipulated that property damage amounted to $71,770.46. The jury allocated $1,000,000 compensatory damages and $3,000,000 punitive damages. Celotex appealed and argued that the court should have rendered a judgment against the appellees as a matter of law. Appellant settled the judgment for $2,171,770.46 and took a release on behalf of both appellant and appellees. The appeal in this case is from the refusal of the trial court to direct a verdict of liability against the appellees. For reasons which will be stated later we affirm the judgment of the lower court.
The facts reveal that decedent obtained the services of Cloyce Eddings to build a brooder house in 1970 and another one in 1977. In 1979 an addition was made to the newer structure and furnace rooms were added at both brooder houses. Eddings poured a concrete foundation and appellees installed their woodburning furnaces. Eddings came back and built the walls and roofs of the furnace rooms. The appellees’ employees then returned to the site, completed the duct work and set up the woodburning furnaces.
Appellees sold and installed a single wall chimney in each of the furnace rooms. Single wall chimneys were installed contrary to the installation manual produced by the appellees. This type chimney was to be installed only in all metal buildings. The furnace rooms in this instance were constructed of wood and fiber which came within eight inches of the single wall chimney. According to the evidence, it was unacceptable to have combustible materials anywhere near a single walled chimney. At one point, it was noted that one of the chimneys was not properly installed in that it allowed water to leak into the furnace room. The appellees’ representative came to the premises to inspect the leak prior to repair and observed the single wall chimney and the structure which enclosed the furnaces.
The appellant furnished insulation which was installed in the original brooder houses. The Celotex insulation used in the addition built in 1979 was known as TF-600, a polyisocyanurate material. No Celotex product was used in the older structure nor in either of the furnace rooms.
When the furnaces were first operated in December of 1979, a fire broke out in the furnace rooms during the first hours of operation. It was not disputed that the fire started where the single wall chimneys were installed near the combustible material. The decedent was working in the brooder houses on the night of the fire because his baby chickens had arrived the day before and he was apparently on guard to see that the furnaces worked properly throughout the cold night. Two passing motorists observed a fire in the newer chicken house about 6:00 a.m. They went to decedent’s house, which was near the brooder houses, and notified decedent’s wife. The witnesses and decedent’s wife immediately went to the burning chicken house in search of decedent. His unburned body was found in an area near a door of the chicken house some distance from the furnace room. The decedent was pulled from the burning building but never regained consciousness. The autopsy indicated he had died from the inhalation of smoke which contained carbon monixide and hydrogen cyanide. The combustible material in the furnace room produced carbon monoxide and the insulation furnished by Celotex produced hydrogen cyanide when burned.
At the close of the evidence appellant moved for a directed verdict against appellees on the question of liability. The court denied the motion. The jury, by interrogatories, found Celotex 100% at fault for all damages. Appellant then moved for a judgment notwithstanding the verdict. The motion also sought alternate relief in the form of a new trial on the ground that the jury erred in awarding a verdict only against Celotex. On appeal appellant contends that the court erred in refusing to grant appellant’s motion for a directed verdict on its cross-complaint against appellees.
The question presented on appeal is whether the court should have directed a verdict of liability against appellees. This is not the usual argument that there was insufficient evidence to support the verdict but rather that a verdict should have been directed on the matter of liability against the appellees. In the early case of Woodmen of the World v. Brown, 194 Ark. 219, 106 S.W.2d 591 (1937), this court held that the trial court should have directed a verdict in favor of the defendant insurance carrier who was charged with the burden of proof. In that holding this court determined that as a matter of law the facts clearly revealed that the policyholder either fraudulently or negligently deceived appellant. Therefore, the court should have directed a verdict for the defendants. The same type question was presented in Woodmen of the World Life Ins. Society v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1943). In the last-cited case we stated:
A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.
This case was followed in Southern National Ins. Co. v. Pillow, 206 Ark. 769, 177 S.W.2d 763 (1944). A somewhat later case is that of Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). In Spink, the court quoted with approval the previous quotation from Woodmen of the World Life Ins. Society v. Reese. The rule followed in Spink is as follows:
... the motion for judgment n.o.v. was properly denied unless it can be said that the trial court should have directed a verdict in favor of the plaintiffs.
The court in Spink referred to the case of United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958), where it was stated:
Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circum stantially or inferentially, for a jury to believe otherwise.
The appellant, by filing the third party complaint, had the burden of proving that the appellees were guilty of negligence which proximately caused the injuries complained of herein. The original plaintiff also had the duty to prove the appellees were negligent in the circumstances of this action. The jury exonerated the appellees in spite of what was obviously an abundance of facts upon which liability could have been levied against them. Therefore, we now consider whether the position of the appellant was so clearly proven that there was no rational basis in the facts shown nor circumstances inferred upon which the jury could have refused to find against the appellees. We do not believe the facts in this case reach the point where there would be absolutely no rational basis upon which the jury could have exonerated the appellees in this action. Inferences could have been drawn by the jury that adequate warning had been given by the appellees. We cannot speculate as to what the j ury considered so long as the verdict comports with the law. We have not been referred to any case, nor have we found one, where the facts are not admitted and no dispute remains, where the proponent of a negligence claim successfully presented evidence to establish liability to the extent required to meet the burden of proof of converting a fact question to one of law.
The case has been compromised and settled, therefore, we do not have before us the matter of separation of the property damage from the personal injury. Also, the settlement of the judgment by the appellant precludes us from attempting to determine which damages may have been caused by the appellant’s negligence. For the foregoing reasons, we affirm the judgment below.
Affirmed.
Hickman, J., not participating. | [
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George Rose Smith, Justice.
Mullins was charged with having sold “a quantity of controlled substance, to-wit: 100 quaalude tablets containing methaqualone, a Schedule II controlled substance,” to an undercover police officer. The jury returned a verdict of guilty, with a 30-year sentence. The only argument for reversal is that the cpurt should not have admitted into evidence the 90 whole tablets and 10 half tablets that remained after the other 10 half tablets had been tested by a chemist at the State Crime Laboratory.
The chemist testified that she received 100 white tablets each monogrammed “Lemon 714,” which is the mark used by the Lemon pharmaceutical firm in marketing the drug methaqualone under the name of Quaalude. She selected ten tablets at rapdom for testing, cut them in half, and found by testing ten of the halves that all ten contained methaqualone, a Schedule II drug. She admitted on cross-examination that she could not state on oath just what the other tablets were without having tested them. On the basis of that admission it is argued that the remaining tablets and half tablets should not have been admitted into evidence.
There are two answers to this contention. One, there is not the slightest basis in the record for a speculation that either Lemon or some third person substituted counterfeit tablets for some of those that were sold as Quaaludes. The trial judge could find from the representative sampling and testing of ten tablets that the other ninety were identical. Uniform Evidence Rules 104 (a) and 901 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979). See also Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (Ark. App. 1980).
Two, although the information charged Mullins with having sold 100 tablets, the trial judge without objection instructed the jury that Mullins was charged with the offense of delivering methaqualone and that the State’s burden was to prove that Mullins "transferred methaqualone to another person in exchange for money.” Under that instruction any question about whether there were ten or a hundred genuine tablets became immaterial, because in either view there was substantial evidence to support the verdict.
Affirmed. | [
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Robert H. Dudley, Justice.
On November 14, 1976, appellant pleaded guilty to first degree murder and was sentenced to life imprisonment. On July 13, 1981, over four and one-half years later, he filed a handwritten petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. In it he alleged that his conviction should be set aside because (1) he was under age at the time of the crime, (2) he received misleading advice by his attorney, and (3) he was under the influence of drugs when the crime was committed. The trial court appointed an attorney to represent appellant and scheduled a hearing. However, immediately before the hearing was to begin, the trial court asked the appellant if he was contending that he was too young to be tried or convicted of a crime at the time of the murder. Appellant responded negatively. The trial court then reexamined the pleadings and ruled that appellant was not entitled to a hearing and dismissed the petition. The basis of the holding was that the claim for post-conviction relief was barred by the three year limitation contained in A.R.Cr.P. Rule 37.2 (c) as there were no allegations which would render the conviction absolutely void. We affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (e).
Appellant contends that the three year limitation was erroneously applied since he had not previously filed an appeal. We find no error. The limitation found in A.R.Cr.P. Rule 37.2 (c) is applicable whether or not there was an appeal. Of course, if the judgment was absolutely void the limitation does not apply. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).
Appellant next contends that the trial court erred in dismissing his petition without a hearing to determine if the judgment of conviction was absolutely void. Again, we find no error.
Our procedure requires that the petitioner set forth facts from which it must appear he is entitled to discharge. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). Jurisdictional facts must be pleaded to extend the period beyond the three year limitation. Appellant’s petition stated only one ground, lack of age, which possibly could have rendered the judgment void. See Ark. Stat. Ann. § 41-617 (Supp. 1981). However, the allegation was waived and was no longer a viable issue when appellant stated in open court before the hearing commenced that he did not claim lack of age as a ground for relief. In addition, the issue is not argued on appeal.
Appellant also alleged “his court appointed attorney misled him in sentencing.” This bare statement does not constitute a pleading of fact sufficient to allege that the judgment of conviction is absolutely void.
The right to jcounsel in a State prosecution is guaranteed by the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). No sentence involving loss of liberty can be imposed where there has been a denial of counsel. Argesinger v. Hamlin, 407 U.S. 25 (1972). Even when an accused is represented by counsel, the assistance he receives may be so lacking in competence that a denial of the Sixth Amendment protection will result. Hawk v. Olson, 326 U.S. 271 (1945). However, a bare allegation of “misleading advice” does not meet the standard of a sufficient factual allegation to obtain relief outside the period of limitations. It is so lacking in specificity that it does not even meet the strict standard to obtain relief within the period of limitations. As noted in Harvard Law Review:
[I]f the defendant claims that his plea was prompted by erroneous advice from his counsel, it may be that he has misinterpreted remarks that amounted to no more than an educated guess as to the consequences of the plea. To avoid the difficulty of ascertaining the exact nature of conversations between counsel and client, the courts have generally been reluctant to entertain this type of claim unless it appears that counsel unqualifiedly and falsely represented that the state had accepted a plea bargain and that the defendant justifiably relied on the representation.
78 Harvard L. Rev. 1434 at 1441 (1965).
The allegation that he was under the influence of drugs at the time the crime was committed is barred by the three year limitation. Since appellant entered a plea of guilty he is precluded from raising this issue on a post-conviction proceeding. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). Relief on this issue is not available by collateral attack to one who could have raised the issue before sentencing. Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975). This type of issue is significant only in relation to an allegation of ineffective assistance of counsel. Irons v. State, supra. It is not that type of allegation of ineffective assistance of counsel that it would render a judgment of conviction absolutely void.
The trial judge was correct in upholding the three year limitation and denying the hearing because the appellant did not plead facts sufficient to render the judgment of conviction void.
Affirmed. | [
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